Isiaka Rufai v. The State

I read in advance the judgment just delivered by my learned brother Wali, J.S.C. I agree with his reasoning and conclusions. It is glaring from the record that the plea of the appellant was not properly taken as there was nothing to show that the charge was ever read over to the appellant let alone in a language (Yoruba) which he understood. This is a clear violation of section 215 of the Criminal Procedure Law of Oyo State which rendered the trial thereof a complete nullity.

The judgments of the lower courts being nullities must therefore be set aside and I do set them aside (see for example Kajubo v. The State (1988) 1 NWLR (Pt.73) 721 Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385).

The appeal therefore succeeds and it is hereby allowed. I endorse the order for a fresh trial of the accused/appellant before another Judge of the High Court.

P.8

I had the advantage of reading in draft the judgment of my learned brother Wali, JSC just delivered. I am in full agreement with it that the appeal is meritorious and must therefore succeed.

The facts and evidence of this murder appeal from the Court of Appeal, lbadan Judicial Division (hereinafter referred to as the court below) have been exhaustively stated and considered to need any re-statement. It will, in my opinion, suffice to set out the three issues formulated on which this case hinges, namely:

1. Whether the charge of murder preferred against the appellant was proved by the prosecution beyond reasonable doubt.

This is predicated on ground one.

2. Whether in the absence of the evidence of PW 2 the circumstantial evidence relied on by the trial court and affirmed by the Court of Appeal to convict the appellant point irresistibly to the guilt of the appellant in the circumstances of this case.
   This is predicated on ground two.
3. Whether the trial, conviction and sentence passed on the appellant and affirmed by the Court of Appeal is a nullity in view of the failure of the trial court to comply strictly with the mandatory provisions of section 215 of the Criminal Procedure Act, Cap. 80 Laws of the Federation 1990. This is distilled from ground three.Since I take the firm view that a consideration of issue three hereof is enough to dispose of this appeal, I intend to proceed to consider it straight away.

   P.9

It is the appellant’s contention in respect of this issue that the whole trial, conviction and sentence of the appellant in respect of the murder charge subject-matter of this appeal, is a nullity as:

1. The plea of the appellant was not properly taken in accordance with the mandatory provisions of the Criminal Procedure Act, and section 33(6)(a) of the Constitution of the Federal Republic Nigeria 1979 (now section 36(6)(a) of the 1999 Constitution) and;
2. The appellant’s plea in respect of the said charge was not properly recorded to show the mandatory compliance as required by the aforementioned provisions.

For instance, at page 39 of the record of proceedings, the trial court made the following notes prior to the commencement of the trial, VIZ:
“Accused person present
Mrs. O. Oyesina Legal Officer represents the prosecution.
Mr. O.O Sonibare for the 2nd and 3rd accused.
PLEA  TAKEN
1ST accused -pleaded not guilty
2nd Accused -Pleaded not guilty
3rd accused -pleaded not quilty
Prosecution opens its case.”

“It is to be observed that at no other place in the record of proceedings was anything recorded or stated by the trial court in respect of taking the plea of the appellant. It is in this regard that I agree in toto with the appellant’s submission that what was taken and recorded by the learned trial Judge and approved by the Court of Appeal as the appellant’s plea, fell far short of the requirement of the law and must not be allowed to stand. See the cases of:

1. 1. Kajubo v. State (1988) 1 NWLR (Pt.73) 721
2. 2. Ewe v. State (1992) 6 NWLR (Pt.246) SC 147

P.10

3. 3. Erekanure v. State (1993) 5 NWLR (Pt.294) 385 SC
4. 4. Kalu v. State (1998) 13 NWLR (Pt.583) 531 SC
5. 5. Okoro v. State (1998) 14 NWLR (Pt.584) 181 SC
6. Section 215 of the Criminal Procedure Act, Cap. 80 Laws of the Federation, 1990.
7. Section 33(6)(a) of the Constitution of the Federal Republic of Nigeria 1979 (as amended) (now Section 36(6)(a) of the 1999 Constitution)
   It is the specific requirement of section 215 of the Criminal Procedure Act that for a plea to be properly taken:

The person to be tried upon any charge or information shall be placed before the court 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.” See Effiom v. The State (1995) 1 NWLR (Pt.373) 507.

In complimenting the above provisions of the law, section 33 (6)(a) of the Constitution and the principles enunciated in Effiom v. The State (supra), section 33(6)(a) of the 1979 Constitution (now section 36(6)(a) of the 1999 Constitution) it is categorically provided as follows:

“Every person who is charged with a criminal offence shall be entitled:

(a) to be informed promptly in the language that he understands and in detail of the nature of the offence. ”
As the plea of the appellant was neither taken in accordance with the provisions of section 215 of the Criminal Procedure Act (ibid) nor did it comply with the provisions of section 215 of the Criminal Procedure Act; nor did it comply with the provisions of section 33(6)(a) of the 1979 Constitution-(now section 36(6)(a) of the 1999 Constitution) as amended, the purported plea taken is a nullity and I so hold.

P.11

For instance, there is nothing in the record of proceedings before this court to show inter alia
(a) That the charge or information upon which the appellant was arraigned before the trial court was read over and explained to the appellant to the satisfaction of the court.
(b) That the charge was read over and explained to the appellant by the registrar or other officer of the court, and

(c) That the charge was read over and explained to the appellant in the language that he understood or

(d) That the charge was read in detail and the nature of the offence was sufficiently explained to the appellant.

This court’s attitude has always been that where the plea of an appellant had been defectively taken in violation of the statutory provisions of the law earlier quoted, the whole trial, conviction and sentence passed on the appellant based on such defective plea amounts to a nullity. See this court’s earlier decision in Tabby v. State (2001) 10 NWLR (Pt.720) 23 where we unanimously allowed the appeal (Per. Ogwuegbu, JSC) and declined to order a retrial which I respectfully distinguish from the case in hand.

For the reasons I have proffered and the more detailed reasons given by my learned brother Wali, JSC in his leading judgment, I too, allow the appeal and abide by the consequential orders made.

P.12

I have read in draft the judgment of my learned brother Wali JSC just delivered in this appeal and I agree with him entirely that there is merit in it, and it ought to be allowed.

The 3rd issue for determination raised by the appellant and which was distilled from ground of appeal number 3 in his amended notice of appeal, attacked the validity of the whole proceedings before the trial court which later came to the Court of Appeal and now in this court. That issue reads:-
“Whether the trial, conviction and sentence passed on the appellant and affirmed by the Court of Appeal is not a nullity in view of the failure of the trial court to comply strictly with the mandatory provisions of section 215 of the Criminal Procedure Act, Cap. 80 Laws of Federation 1990.”

Section 215 provides in substance that:-
“The person to be tried upon any charge or information shall be placed before the court … 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 …” (Italics mine)

It is common ground that the appellant, who was the 1st accused, was charged and tried jointly with two other accused per sons, in the Oyo State High Court holden at Ibadan for the offence of murder contrary to section 319 (1) of the Criminal Code, Cap. 30 Laws of Oyo State of Nigeria 1978. At the end of the trial, the appellant was convicted as charged and the other accused persons were found not guilty and discharged and acquitted. His appeal to the Court of Appeal was unsuccessful. He now comes to this court on 3 grounds of appeal and raised 3 issues for determination. I have already set out his 3rd issue earlier in this judgment and I wish to deal with it first.

P.13

On P. 39 of the record of proceedings, after the learned trial Judge recorded the presence of the accused persons and their respective counsel, the record reads:-
PLEA TAKEN
1st accused – pleaded not guilty
2nd accused – pleaded not guilty
3rd accused – pleaded not guilty.”

I have earlier pointed out that the appellant was the 1st accused at the trial. I have also earlier set out the requirements of section 215 of the Criminal Procedure Act with regard to the taking of proper plea of an accused person at the commencement of a criminal trial. These requirements are very clear and are all mandatory and not directory as they are each preceded by the word ‘shall” This court has in many of its decided cases confirmed that the requirements of the said section 215 are mandatory and failure to comply with any of them in a criminal trial, will render the whole proceedings a nullity. See Kajubo v. The State (1988) 1 NWLR (Pt.73); Ewe v. State (1992) 6 NWLR (Pt.246) 147; Erekanure v. State (1993) 5 NWLR (Pt.294) 385; Eyorokoromo v. State (1979) 6 – 9 SC 3.

In the instant case, and from the contents of the record on p. 39 which I set out earlier, it appears to me that there was clear noncompliance on the part of the trial Judge with provisions of the’ said S. 215; in fact the learned trial Judge made no attempt in my respectful view to comply with any of the requirement of that section.

P.14

Apart from the fact that the persons were present in court, all the rest would appear to be his own imagination. It was not shown that anything was said to any of the accused persons by any body or anything explained to them before anything was recorded. This is a clear and utter non-compliance with the provisions of S.215 of the C.P.A. which renders the whole proceedings of the trial court a nullity. I so hold.

Learned counsel for the appellant also submitted in his brief that the trial was not in compliance with the provisions of S. 33(6)(a) of the 1979 Constitution applicable at the time, in that the charge was not shown to have been explained in the language understood by the accused/appellant. I entirely agree with him on this and wish to add that the record did not even show that the charge was read or explained in any language at all.

Having found the trial court proceedings a nullity, those before the Court of Appeal is a fortiori a nullity and of no effect. In the circumstances I resolve issue 3 in favour of the appellant and find it unnecessary to consider the 1st and 2nd issues.

For the above and the more detailed reasons set out by my learned brother Wali, JSC in the leading judgment, I allow this appeal, set aside the decisions of the trial court and the Court of Appeal and abide by the consequential orders made in the leading judgment.

I agree with the judgment of my learned brother Wali, JSC and the consequential order for a retrial of the appellant. There is no special circumstance in the case against such an order of retrial.

Appeal allowed.

Re-trial ordered.

P.15