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Name of person who read a charge to an accused must not be reflected in record of proceedings

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Duru v. F.R.N
CITATION: (2020) LPELR-50099 (CA)

In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos

ON MONDAY, 29TH JUNE, 2020
Suit No: CA/L/417C/2018

Before Their Lordships:
JOSEPH SHAGBAOR IKYEGH
Justice, Court of Appeal
UGOCHUKWU ANTHONY OGAKWU
Justice, Court of Appeal
EBIOWEI TOBI
Justice, Court of Appeal

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Between

CHARLES DURU
– Appellant(s)
And
FEDERAL REPUBLIC OF NIGERIA
– Respondent(s)

LEADING JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.
FACTS

The appellant was arraigned with one other person before the Federal High Court, Lagos Division. They were charged on two counts of conspiracy to deal in cocaine and conspiracy with intent to export cocaine. Upon their arraignment, they pleaded guilty to the charge and after a review of the facts; the Federal High Court convicted and sentenced them to three years and four years imprisonment respectively on each of the two counts. The sentences were ordered to run consecutively.

The appellant was dissatisfied and thus appealed to the Court of Appeal.

Issues for determination
The Court determined the appeal on the following issues:
1. Whether or not the learned trial Court complied with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and all other applicable laws especially the Administration of Criminal Justice Act, 2015 in the arraignment of the appellant so as not to make the proceedings before the trial court a nullity.
2. Whether considering the totality of the proceedings before the trial court, the appellant was given a fair hearing by the court.

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Appellant’s submissions
Arguing issue 1, counsel for the appellant submitted that trial starts with the arraignment and ends with the sentence and that for there to be a successful criminal prosecution there must be a valid and lawful arraignment otherwise the trial will be a nullity. See BLESSING v. FRN (2015) 13 NWLR (PT. 1475) 1 at 44 and ADEWUNMI v. THE STATE (2016) 10 NWLR (PT.1521) 614 at 625. It was stated that the right to fair hearing enshrined in Section 36 of the 1999 Constitution requires that an accused person be informed of and must fully understand the charge in order for there to be a fair trial. Counsel argued that it is only where there has been a valid arraignment that a trial court will have the requisite jurisdiction to adjudicate. Where there is no proper, lawful and/or valid arraignment, the trial conducted will be a nullity. See MOHAMMED v. FRN (2018) LPELR 43908, S.C. Counsel argued that the arraignment of the appellant was done in total disregard of the provisions of Section 36 of the 1999 Constitution and Sections 271 and 274 of the Administration of Criminal Justice Act. As such, the entire trial was null and void. 

Counsel argued that in order to comply with the stipulations of the law and properly arraign the appellant, the High Court had the obligation to call on the registrar or other officer of the court to read and explain the charge to the appellant in the language he understands. Counsel argued that there was nothing on record showing that the charge was read or that there was an interpreter who interpreted the charge. The Court was urged not to speculate that the appellant’s plea of guilty was because the charge was read to him since the court can only look at the Record of Appeal in order to decipher what took place and act only on the evidence before it. Counsel argued that although the previous position under Section 215 of the Criminal Procedure Act did not make it mandatory for the trial court to expressly record that it was satisfied that the accused understood the charge, the current position under Section 271 (3) of the Administration of Criminal Justice Act expressly requires the trial court to record its satisfaction. See EMORDI v. IGBEKE 2011) 9 NWLR (PT 1251) 24 at 39.

On issue 2, counsel submitted that the prosecutor combined the role of counsel and witness, as it was the counsel that gave evidence of the drug subject of the charge and as such, it cannot be said that there was evidence of any drug allegedly seized from the appellant. The trial was thus a nullity.

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Counsel further submitted that even where there was a guilty plea, the prosecution still has to lead evidence to prove the specific drug referred to in the charge. See FRN v. DANIEL (2011) LPELR – 4152 (CA) and FRN v. MICHAEL (2018) 6 NWLR (PT. 1616) 438. The prosecutor not being the maker of the test result cannot tender the same even if he can give evidence, which he cannot do. See BELGORE v. AHMED (2013) 8 NWLR (PT 1355) 60 at 100. 

Concluding on the issue, counsel argued that the procedure which the High Court adopted was neither summary trial nor a full-fledged trial, as the appellant was not allowed to cross-examine the prosecutor who gave evidence or allowed to see the exhibits tendered. Counsel urged the court to allow the appeal and discharge and acquit the appellant especially as ordering a retrial would afford the prosecution the opportunity of re-presenting its case and that such would amount to double jeopardy. See ABODUNDU v. THE QUEEN (1959) SCNLR 162 at 167.

Respondent’s submissions
Arguing issue 1, counsel for the respondent argued that the provisions of the constitution and the Administration of Criminal Justice Act were complied with. Counsel argued that the appellant was represented by counsel at the High Court and the said counsel did not raise any objection that the charge was not understood, but rather affirmed that they were ready. The case of UDO v. THE STATE (2006) 15 NWLR (PT. 1001) 179 at 189-190 was referred to. Counsel maintained that all the conditions for a valid arraignment were satisfied as the appellant was placed before the court unfettered, the charge was read to him by the Registrar/or any other officer of the court to the satisfaction of the court and the appellant was then called upon to plead to the charge, which he did. See KALU vs. THE STATE (2002) 3 LRC NCC @ Vol. 3 page 39, AMANCHUKWU v. FRN (2007) 6 NWLR (PT 1029) 1 at 16-17, IDEMUDIA v. THE STATE (1999) 7 NWLR (PT 610) 202.

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Counsel argued that records of court are not supposed to be a carbon copy of all that transpired in court. It was argued that the fact that the name of the person who read the charge was not stated in the record was not fatal, especially as courts now abhor mere technicality. See SOLUADE v. COP (2007) 7 NWLR (PT. 712) 432 and OYEDIRAN v. THE REPUBLIC (1967) NMLR 122. Counsel posited that apart from the appellant’s plea of guilty, the High Court relied on other corroborative evidence to reach a verdict and that the appellant’s counsel, not having raised any objection when the exhibits were tendered, cannot raise any procedural defects on appeal. Counsel conclusively submitted that Section 36 of the Constitution was complied with as the appellant was served a copy of the charge before the day of arraignment. Even if Section 36 was not complied with, the failure did not occasion a miscarriage of justice as the appellant had made a statement in English Language admitting the facts and the High Court was satisfied that the appellant understood the charge. See DURWODE v. THE STATE (2000) 12 SCNJ 1 at 14 – 15.

On issue 2, counsel argued that the appellant was given a fair trial as he had adequate time to present his case. Counsel stated that the appellant was represented by counsel when the prosecution reviewed the facts of the case and tendered the relevant documents without any objection. Counsel further submitted that the appellant made a confessional statement, which was tendered in the course of review of facts without objection, which corroborated the appellant’s plea of guilty. The appellant has pleaded to the charge, issues were joined and the High Court rightly exercised jurisdiction in the matter. See OKEGBU v. THE STATE (1979) 11 SC 1 at 9. Counsel urged the court to dismiss the appeal as it was based substantially on a mere technicality and that no miscarriage of justice was occasioned. See OKONJO v. ODJE (1985) 10 SC 260 at 268.

Appellant’s reply on points of law
Replying to issue 1, counsel submitted that the respondent’s contentions were premised on the legal position under Section 215 of the Criminal Procedure Act, which has been supplanted by Sections 271, 274 and 356 (2) of Administration of Criminal Justice Act. That the presumption of regularity no longer applies as the procedure for arraignment has been explicitly and comprehensively laid down. Replying to issue 2, counsel stated that there was nothing on the record to show that the High Court relied on any confessional statement to convict. Counsel further contended that the respondent did not file a respondent’s notice and therefore the instant court cannot pronounce on the effect of the confessional statement.

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Resolution of the issues
Resolving issue 1, the court stated that arraignment is a very fundamental aspect of a criminal trial, thus the need for strict and mandatory compliance with the requirements in respect thereof. Any criminal trial, no matter how well conducted without the plea of the defendant having been properly taken is a nullity. See ALAKE v. THE STATE (1991) 7 NWLR (PT 205) 567 and EDIBO v. THE STATE (2007) LPELR (1912) 1 at 15.

The court quoted the decision in IDEMUDIA v. THE STATE (1999) 7 NWLR (PT 610) which relied on Section 215 of the Criminal Procedure Act to conclude that a trial court does not have to expressly state on the record that the charge was read and explained to the accused where the accused is represented by counsel. That where an accused is represented by counsel, it is the duty of counsel to notify the court where the accused does not understand the language used in the trial. See DURWODE v. THE STATE (2000) LPELR (972) 1 at 28-29. The court also stated the trite position of the law that when there is an allegation of invalid arraignment, it is the duty of the appellate court to examine the records of the proceedings for the day of the arraignment to see if the arraignment was proper.

Applying the above to the instant case, the court held that the appellant’s complaint that the High Court did not record that it was satisfied that the appellant understood the charge and did not record the name of the registrar or other officer of the court who read and explained the charge rendered the trial a nullity holds no water. This is because the appellant was represented by counsel who participated actively in the proceedings and did not object that the appellant did not understand the charge. The court further held that even though the name of the person who read the charge was not stated in the record, the failure did not occasion a miscarriage of justice. In addition, there was the presumption that the charge was read by the registrar of the High Court, which presumption the appellant did not rebut. See SULE v. THE STATE (2017) LPELR (47016) 1 at 33-34, SALISU v. FRN (2017) LPELR (47146) 1 at 11-14 and 24-25 and OLANREWAJU v. THE STATE (2020) LPELR (49569) 1 at 11-13.

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On the failure of the High Court to record that it was satisfied that the appellant understood the charge when it was read to him, the court held that the appellant’s argument that Section 271 (3) of the Administration of Criminal Justice Act makes it mandatory for the court to record same and no presumption can apply in that respect was misguided. This is because, by a community reading of Sections 168 (1) and 145 (2) of the Evidence Act, the court shall regard as proved the fact that a judicial act was regularly done unless it is disproved.

In addition, there is nothing in the Administration of Criminal Justice Act, which proscribes the proof of judicial acts by presumption. The court further held that even though it would have been proper and ideal for the High Court to record its satisfaction since Section 271 (2) of the Administration of Criminal Justice Act employs the mandatory word “shall”, the appellant failed to rebut the presumption of regularity and also did not establish in what respect he suffered prejudice or how a miscarriage of justice was occasioned as a result of the non-reflection of the same in the records. See OGUNYE vs. THE STATE (1999) 4 SCNJ 33 at 50, ABUBAKAR v. FRN (2017) LPELR (43354).

On issue 2, the Court stated that Section 274 of the Administration of Criminal Justice Act requires the court, where a defendant has pleaded guilty, to invite the prosecution to state the facts of the case and thereafter enquire from the defendant whether his plea of guilty was to the fact as stated by the prosecution. The court shall if satisfied that the defendant intended to admit the truth of the essential elements of the offence to which he pleaded guilty, convict and sentence him or make such order as may be necessary unless there appears sufficient reason to the contrary. Furthermore, by Section 356 (2) of the Administration of Criminal Justice Act, where the defendant pleads guilty and the court is satisfied that he intended to admit the offence and shows no cause or no sufficient cause why sentence should not be passed, the court shall proceed to sentence.

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Applying the above to the instant case, the court disagreed with the appellant’s submission that the prosecution counsel was both counsel and witness. The role played remained that of counsel because he was merely stating the facts after the appellant pleaded guilty. The counsel stating the facts of the case and tendering documents in support of the facts cannot be equated to being a witness in the matter since the effect of the appellant had pleaded guilty is that it obviated the need for a formal hearing. See OMOJU v. FRN (2008) LPELR (2647) 1 at 19, DONGTOE v. CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) LPELR (959) 1 at 37-38, MOHAMMED v. FRN (2013) LPELR (21384) 1 at 16.

On the complaint that the appellant was not allowed to see or examine the exhibits tendered, the court, after examining the records, held that the records showed that the appellant’s counsel actively participated in the trial and even objected to the tendering of some exhibits. As such the appellant’s contention holds no water. Based on the above and the appellant’s plea of guilty, the court held that the appellant was not denied a fair hearing at the High Court.

HELD
In conclusion, the court resolved the two issues against the appellant and dismissed the appeal.
Appearances:
Rashidi Isamotu, Esq.
-For Appellant(s)
I. J. Igwubor, Esq., Assistant Chief Legal Officer, NDLEA
-For Respondent(s)
Compiled by LawPavilion.

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