May 14, 2025
Legalpedia Citation: (2013) Legalpedia (CA) 71111 In the Court of Appeal HOLDEN AT JOS Thu May 30, 2013 Suit Number: CA/J/95C/2011 CORAM PARTIES IBRAHIM JOSEPH THE STATE […]
CORAM
PARTIES
IBRAHIM JOSEPH
THE STATE
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant was arraigned on a three-court charge before the Federal High court, Bauchi to wit: possession of firearms without license, contrary to Section 3; dealing in firearms, without license contrary to Section 9 and manufacturing firearms without license contrary to Section 22 of the Fire Arms Act Cap. F28, LFN 2004 and all punishable under Section 27 of the same Act. When the matter came up for hearing, the Appellant pleaded not guilty to count 1 but pleaded guilty to counts 2 and 3 of the charge before the trial court. The prosecution then urged the trial court vide Section 33 of the Federal High Court Act to impose sentence on the Appellant in respect of the 2nd and 3rd Counts of the charge, and sought for an adjournment to enable the prosecution produce witness to proof count 1 of the charge to which the Appellant had pleaded not guilty. The trial Court obliged and the matter was adjourned to 11th day of February 2011 for hearing. The Appellant was remanded in prison custody by the lower court. For reason not apparent on the record the matter came up on 14th day of February 2011, on that date the prosecution applied to effect correction “minor typographical error” on the charge, as it was printed Section 22 instead of Section 23 of the Firearms Act; which application was granted by Court. Thereafter, Counsel to the Appellant entered a plea of allocutus for him. The Court convicted the Appellant upon his plea of the 2nd and 3rd count charges; he was sentenced to 2 years imprisonment for the 2nd count while for the 3rd count, he was sentenced to ten years imprisonment. Aggrieved with the sentence, the Appellant has appealed against same vide his Notice of Appeal. The Appellant is seeking from this court an order quashing the decision of the lower court and directing for the trial de novo before another judge of the lower court.
HELD
Appeal Succeeds In Part
ISSUES
Whether the lower court was under a legal obligation to read and explain the charge to the accused (now appellant) before asking him to plead thereto. Whether the appellant was entitled to be heard before allowing the respondent to amend or alter the charge. Whether the lower court after altering or amending the charge was required under the law to read over and explain the amended charge to the appellant and thereafter ask him to plead thereto. Whether from the evidence and printed record of the lower court, the appellant was given a fair hearing.
RATIONES DECIDENDI
CRIMINAL TRIAL – CONDITIONS PRECEDENT TO ENSURE LAWFUL AND PROPER TRIAL OF ANY PERSON CHARGED WITH A CRIMINAL OFFENCE
“Now by Section 36(6) (a) (e) of the Constitution of the Federal Republic of Nigeria 1999 as amended provisions and conditions precedent to ensure lawful and proper trial of any person charged with criminal offence have been put in place. They are all sine qua Non to all criminal trials in order to further ensure that a defendant in a criminal trial is given fair hearing before a court or Tribunal in the determination of his civil rights and obligations. The provisions of the said Section 36(5) (a) (e) of the 1999 Constitution aforesaid are as follows:-
“36(6) Every person who is charged with a criminal offence shall be entitled to:-
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioner of his own choice.
(d) Examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) Have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence”
The above provisions of the constitution are inbuilt and made part of our criminal procedure Act and criminal procedure code depending on whether the offence is/was committed in the southern or Northern part of this country. It is in the right of the above that Sections 215 and 218 of the Criminal Procedure Act, Sections 241, and 242 of the Criminal Procedure Code provide that where any person is charged with criminal offence the charge must be concisely and precisely explained to him in the language he understands before his plea could be taken. Furthermore he is also entitled to an interpreter who can fluently speak his language so that the interpreter can properly read and interpret the charge or the offence with which he is charged and be able to interpret the proceedings to him. The relevant provisions of the constitution aforesaid and criminal procedure laws have received eloquent juridical interpretations in numerous decisions of the apex Court in the land viz:- Golden Dibie & Ors V. The State (2007) 9 NWLR (Part 1038) 30 at 46 C – H where KATSINA ALU said:
“Section 215 of the Criminal Procedure Law Provides as follows:-
“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the Registrar or other officer of the court and such person shall be called upon to plead instantly, thereto unless where the person entitled to service of a copy of the information he objects to want of such service and the court finds that he has not been duly served”
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ARRAIGNMENT – REQUIREMENTS OF A VALID ARRAIGNMENT OF AN ACCUSED PERSON
“This court has, in a number of cases, laid down the requirements of a valid arraignment of an accused. In Tobby vs The State (supra) this court laid the following requirements of a valid arraignment:-
(a) The accused must be placed before the court unfettered unless the court shall see cause otherwise to order;
(b) The charge or information must be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court;
(c) It must be read and explained to the accused in the language he understands;
(d) The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith.
The requirements are inherent in the provision (Section 215 CPA).”
The State Vs Salihu Mohammed Gwonto & Ors (1983) 3 SC 52 at 66 where OBASEKI JSC had this say:-
“There can be no doubt about the value and importance of interpretation. Indeed it is the only means of ensuring proper understanding by and participation of the accused persons in the trial proceedings where the proceedings are being conducted in the language they do not understand and enabling justice to be done. It is my opinion, that it is for these reasons that our laws and constitution made special provisions with respect to interpretation of evidence, statement and other proceedings in Section 241 Section 242 of the Criminal Procedure Code and Section 36 (5) (e) of the constitution. The need for interpretation does not arise if the accused person understands the language. Afotiori the court will not know that he does not understand the language unless he makes representation about it to the court or judge”.
The position was reiterated and reinforced by the apex court in the case of Anthony Okoro Vs. The State (2012) 4 NWLR (PART 1290) 351 at 368 B – D per BODE RHODES-VIVOUR JSC who read the lead Judgment thus:-
“Section 33(6) of the 1970 constitution, and/or Section 36(6) (e) of the 1999 constitution ensures that anyone charged with a criminal offence is entitled to have as of right an interpreter in court if he does not understand the language of the court, That is to say, there must be proper interpretation to the accused person of the proceedings. See State v. Gwonto (1983) 1 SCNLR p.142 and it is mandatory that the court supplies an interpreter in cases where one is needed.
The impression of a reasonable person who was present at the trial is the true test of fair hearing. Justice cannot be said to have been done if an accused person who does not understand the English Language (the Language of the court) is denied the services of an interpreter. The entire proceedings would be strange to him and a grave miscarriage of justice would have occurred amounting to a failure of justice.”
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ARRAIGNMENT – ESSENTIAL REQUIREMENT OF A VALID ARRAIGNMENT
“The trial court is not by Section 215 of the Criminal Procedure Law or Section 241 and 242 of the Criminal Procedure Code expected to record verbatim the requirements of the said sections of the constitution and the laws on his record in order to show compliance with those laws on valid arraignment of an Accused person. To my mind what is expected of a trial court in criminal matters is for the court to ensure that the charge or charges is/are read to the Accused in the language he understands and to be satisfied that the Accused understands the charge read to him. It is a subjective thing. It is for the Judge to be satisfied. It is a matter for his mind and conscience. Failure to record the requirements of Section 215 or other relevant sections of the law referred to cannot vitiate and render the manner in which the plea of the Appellant was taken or recorded in this matter invalid or a nullity. See Samuel Ayo Omoju V. The Federal Republic Of Nigeria (2008) 2 SCM 154 at 178.
In the case of Golden Dibie & Ors Vs The State (2007) 9 NWLR (PART 1038) 30 at 47 C-G the position was succinctly put by KATSINA -ALU JSC (Later CJN Rtd) who said:-
“In Adeniyi vs The State (supra) I had this to say on Section 275 of the Criminal Procedure Law:-
“…thirdly, the appellant understood English. This is evidence in the record. He made his plea and also gave his evidence in English. The omission by the learned trial Judge to state that he was satisfied that the appellant understood the charge is of no moment, where the accused understands the language of the court-English, it becomes unnecessary to record that fact. It is however, good practice to ask the accused the question whether he understood the charge so read and explained and to record the answer. But the omission to do so would not constitute non-compliance with the constitutional and procedural requirements, I am therefore, in agreement with the respondent that the appellant was properly arraigned”.”
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GROUND OF APPEAL – PROPER WAY OF COUCHING A GROUND OF APPEAL IN A CRIMINAL MATTER
“The rationale for special manner of casting an omnibus ground of appeal in criminal appeals has been explained in the case of Sampson Ebeneht & Anor Vs The State (2009) 3 S.C, 69 at 71 per OGEBE JSC who said :-
“I also observe from the identical grounds of appeal filed by the two appellants that the fourth ground which reads:- That the verdict of the lower court is unreasonable and cannot be supported having regard to the weight of evidence” is not a proper ground of special in a criminal appeal. Such a ground is meant for a civil appeal, see the case of Ibrahim vs The State (1991) 4 NWLR (Pt.186) 399 at p.424 where the Supreme Court held as follows:- In Civil cases, the question is as to weight of evidence. The inquiry is which of the two sets of evidence on an issue outweighs the other. To ascertain this, they are put on an imaginary scale and weigh together to find out which of them preponderates. But in criminal cases, the issue of preponderance of evidence does not really arise. The question is whether there is evidence of such a quality on every material in gradient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge that is end of the matter, provided, of course that it is manifest that he has given due consideration to the evidence by or on behalf of the defence. He needs not weigh them on a balance.”
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RIGHT TO INTERPRETATION – WHETHER AN IRREGULARITY ON AN ACCUSED PERSON’S RIGHT TO INTERPRETATION CAN BE RAISED ON APPEAL
“The Appellant cannot postulate the issue on appeal having been giving ample opportunity to plead to the three counts contained in the charge without any objection or complain about lack of an interpreter in the proceeding at the court below on 3-2-11. It has become a none issue. See The State vs Gwonto & Ors (1983) 3 SC 62 at 96 – 97 where Nnamani, JSC of blessed memory who read the leading Judgment had this to say:-
“Applying these principles to the instant case, the Respondents ought to have failed in the court of Appeal in their contention that their rights under Section 33 (6)(e) of the 1979 Constitution were violated. The proceedings in the High court represented by Counsel Mr. Ahinche, There is nothing in the records of the High court (and no further evidence was led on the issue in the court of Appeal.). I think with respect, the point which was missed here is that the importance of the issue of representation lies in the fact that if an (Accused person is represented by counsel such counsel ought to demand his clients right to interpretation or object to any irregularity such as lack of interpretation. If neither he nor the accused objects, the right is lost for all time and certainly cannot be invoked in a Court of Appeal.”
See also the recent cases of Anthony Okoro Vs. The State Supra 315 at 368 E – F per RHODES-VIVOUR, JSC and Elijah Ameh Okewu Vs The Federal Republic Of Nigeria (2012) 9 NWLR (Part 1305) 327 at 352 D – H per ARIWOOLA, JSC”. –
AMENDMENT OF A CHARGE –PROCEDURE TO BE ADOPTED ON THE AMENDMENT OF A CHARGE
“The law is settled that when a charge which is being tried is amended by the prosecution in the course of hearing or trial the Accused must be asked to plead to the charge amended because it constitutes a fresh charge. There is no doubt that under Section 208 0f the Criminal Procedure Code of Northern Nigeria the trial Judge has discretionary powers to alter, add or frame a new charge by way of amendment before Judgment. Once that is allowed the charge must be read and explained to the accused again. See the case of DOMINIC PRINCENT & ANOR Vs The State (2002) 18 NWLR (part 798) 49 at 58 G-H to 69 A-F G per IGUH, JSC who held:-
“I think the point must be stressed that the vital consideration which governs the amendment of a charge whether suo motu by the court or on the application of the prosecution after addresses by counsel but before judgment is that such amendment may be made without injustice to the accused. In this regard, the various sections of the Criminal Procedure Act, Cap.80, Laws of the Federation of Nigeria, 1990, such as section 164 and 165 and those of the Criminal Procedure Code, Laws of Northern Nigeria, such as Sections 208(2), 206, 210 and 211, all of which prescribe the necessary procedure a court shall adopt on granting the amendment of a charge must be strictly complied with.
These, to a large extent, are to ensure that the accused persons neither prejudiced nor suffers any injustice by virtue of the amendment. See R. Vs. Kano and Another, (supra), These procedure which, inter alia, include the reading and explaining of the amended charge to the accused person, the taking of his plea thereto, finding out from the accused whether he is ready to proceed with his trial on such an amended charge immediately or whether he would thereby be prejudiced in which case the trial shall be adjourned and granting the accused and, indeed, the prosecution the opportunity to recall any witnesses who may have testified for further examination or cross-examination in the light of such amended charge must be strictly complied with. See Okonofua v. The State (1981) 12 NSCC 233; Okegbu v. The State (1979) 11 SC 1 etc. Accordingly, an amendment to a charge pursuant to the provisions of Section 208 of the Criminal Procedure Code, Cap 30 may be made at the instance of either the prosecution or, suo motu by the court. However, once the charge is amended, a host of rights inure to the accused as carefully laid down in Sections 208(2), 209, 210 and 211 of the Criminal Procedure Code. Those rights, it seems to me, are inbuilt safeguards with a view to ensuring that an accused person by virtue of an amendment is not thereby prejudiced or misled, that no injustice is occasioned to him and that his constitutional right to fair hearing pursuant to the provisions of the Constitution is fully preserved. See too Okosun v. The State (1979) 3 – 4 SC 36.
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ADMISSION OF GUILT BY AN ACCUSED PERSON – DUTY OF COURT UPON THE ADMISSION OF GUILT BY AN ACCUSED PERSON
“The Appellant had confessed and admitted the said count 2. He cannot have that sentence set aside on account of any irregularity in count 3 that was amended without a fresh plea. See (1) Raymond S. Dangote vs. Civil Service Commission Plateau State & Ors (2001) 9 NWLR (Part 717) 132 at 159 E- G per KARIBI-WHYTE JSC who held:-
“I do not think the provision of the Law and effective administration contemplates or admits the exercise of such circuitous route to the discipline of admitted wrong doings. It is established law that after a plea of guilty by the accused before the court exercising jurisdiction in respect of criminal offences, the court must formally proceed to conviction without calling upon the accuser to prove the Commission of the offence by establishing the burden of proof as required by law – See Section 218 of the Criminal Procedure Act. See also R. v. Wilson (1959) SCNLR 462; (1959) 4 FSC 175. This is because the admission of guilt on the part of the accused satisfied the required burden of proof.”
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PLEA OF GUILT – EFFECT OF A PLEA OF GUILT BY AN ACCUSED PERSON
“The offence involved in this case is a non-capital offence. Therefore the plea of guilty by the accused amounted to throwing the towel and there is no need for the prosecution to call any evidence. Since it is an admission of guilt made in open court it is a confession within the meaning of Section 28 of the Evidence Act 2011 and it became relevant under Section 29(1) of same Evidence Act. (Section 27 and 28 of Evidence Act LFN 1990). It is a judicial confession and the lower court was justified in convicting him and was right in inflicting the sentence upon the Appellant. Summaya Isaah Torri Vs National Park Service Of Nigeria (2011) 8 SCM 217 at 227 H TO 229 A where I. T. MOHAMMAD JSC has this to say:-
The position of the law, as is clear from Section 151(2) of the Criminal Procedure Code set out above, is that where the offence for which an accused person is charged is not a capital offence, the trial court has the discretion to convict the accused. The plea of guilty made by the Appellant is as good as a judicial confession or admission of commission of a crime. Section 27(1) of the Evidence Act Cap 112 of the Evidence Act (Cap E14, 27(1) of the Evidence Act Cap.112 of the Evidence Act (Cap.E74, LFN, 2004) defines confession to be an admission made at any time by a person charged with a crime stating or suggesting the inference that he committee that crime. Where there is that kind of admission of guilt, this court, in a plethora of cases held that the legal burden of proof no longer arises, and no burden of proof rests on the accuser, it having been discharged by the admission of the accused. see: the dictum of Karibi Whyte, JSC, in Dangote v. Civil Service Commission, Plateau State &Ors. (2001) FWLR (Part 50) at page 1671 – B, (2001) 5 SCM, 59; Adetunji v.The State (2001) 13 NWLR (Part 730) 375. See further: AkibuHanssan v. The State (2001) 7 NSCOR 107, (2001) 11 SCM, 100; Gonzie v.The State (2003) NSCQR 663, (2002) 12 SCM, 143.
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PLEA OF GUILT – WHETHER AN ALLEGATION OF LACK OF FAIR HEARING CAN BE RAISED WHEN AN ACCUSED PERSON PLEADS GUILTY TO THE CHARGE AFTER SAME WAS READ OVER TO HIM
“There cannot be any allegation of lack of fair hearing concerning count 1 and count 2 since the appellant voluntarily pleaded not guilty to count l and guilty to count 2. count 2 was adequately read to him and explained to him in Hausa Language before he entered his plea of guilty’ see Sunday Offor & Anor V. The State (2012) 18 NWLR (Part 1333) 421 AT 444 F-H to 445 A-A-D per OGUNBIYI JSC. who said:-
“For purpose of recapitulation and even the risk of repeating myself, I wish to restate that the proceedings at the trial court which was confirmed by the lower court were consistent and did not deviate from the laid down principles of law. In other words the charges were read in open court and explained in detail to the accused/appellants. They were asked by the trial court whether they were guilty or not. They both responded in the affirmative, that is to say, that they were guilty and following which their pleas of guilty were recorded. Thereafter the appellants admitted the facts of the case as narrated by the learned counsel for the state in his summary submission. The learned trial Judge, consequent upon the submission by the counsel and in exercise of his discretion as provided for in Section 187(1) and (2) of the Criminal Procedure Code proceeded to convict the accused/appellants on their pleas of guilty, The authority enunciated in the case of Amanchukwu v. F.R.N. v. (2009) 8 NWLR (Pt.1444) 475 is relevant in support wherein this court per Ogbuagu J.S.C. had this to say at page 488 para C:-
“It is now settled that a plea of guilty is valid if made (as in the instant case leading to this appeal) in a very unambiguous and unequivocal way and the same is received by a trial court/tribunal not laboring under the misapprehension of what the law is.”
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AMENDMENT OF CHARGES – DUTY OF COURT TO ADHERE STRICTLY TO THE PROCEDURE FOR ARRAIGNMENT OF AN ACCUSED PERSON UPON THE AMENDMENT OF THE CHARGE
“I agree with the learned counsel to the appellant that the lower court has constitutional and statutory duties to ensure that the Appellant was given another opportunity to plead to the new count 3 after the grant of the amendment sought to count three by the prosecution see the case of John Timothy Vs The Federal Republic Of Nigeria (2013) 4 NWLR (Part 1344) 213 AT 235 G – H To 236 A – C per RHODES-VIVOUR JSC who said:-
“I must consider Section 215 and 218 of the Criminal Procedure Act and the correct procedure to be followed. At the commencement of a criminal trial there must be strict compliance with the provisions of Section 215 of the Criminal Procedure. That is to say:-
(a) The accused person must be placed before the court unfettered unless the court other-wise directs, e.g. he may be fettered if the Judge is satisfied that the accused shows signs of being violent.
(b) The charge must be read over and explained to the accused person in the language he understands by the Registrar of court or other officer of the court.
(c) The accused person must be called upon to plead to the charge.
The above requirements are mandatory and must be strictly followed. If the charge is amended during trial the procedure must again be complied with. The procedure under section 215 of the Criminal Procedure Act guarantees of fair trial of the accused person. Failure to satisfy any of the above (a) – (c) would render the trial no matter how well conducted defective and declared a nullity by an appeal court. See: Josiah v. State (1985) 1 NWLR (Pt.1) p.125 Eyorokoromo& Anor v. State (1979) v. 12 NSCC p.61, (1969) 6 – 0 SC 3; Kajubo v. State (1988) 1 NSCC (1988) Vol. 19 NSCC p. 475, (1988) 1 NWLR (Pt.73) 721. Effiom v. State (1995) 1 NWLR (Pt.373) p.507. –
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Criminal Procedure Act, Cap.80, Laws of the Federation of Nigeria, 1990
Criminal Procedure Code, Laws of Northern Nigeria
Fire Arms Act Cap. F28, LFN 2004