Whether presumption of regularity will avail Judicial, official acts which are not in compliance with mandatory provisions of law

OLAMILEKAN OGUNBOWALE v. THE STATE

CITATION: (2021) LPELR-53498 (CA)
In the Court of Appeal
In the Ibadan Judicial Division
Holden at Ibadan

ON TUESDAY, 30TH MARCH, 2021
Suit No: CA/IB/83C/2018

Before Their Lordships:

JIMI OLUKAYODE BADA
JUSTICE, COURT OF APPEAL
UGOCHUKWU ANTHONY OGAKWU
JUSTICE, COURT OF
APPEAL
FOLASADE AYODEJI OJO
JUSTICE, COURT OF APPEAL

Between

OLAMILEKAN OGUNBOWALE – Appellant(s)

THE STATE
– Respondent(s)

LEADING JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.
FACTS
The appellant was arraigned on information that preferred a one-count charge of conspiracy to commit armed robbery and two counts of armed robbery, all punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.

The appellant took his plea before Agbelu, J. on 15th March 2013, but the trial and adduction of evidence in proof of the offences charged were not conducted by Agbelu, J. The matter was subsequently heard by Ogunsanya, J., and the proceedings before she commenced on 18th October 2016 when PW1 and PW2 testified. The appellant was not formally arraigned before Ogunsanya, J., and his plea was taken.

At the close of trial, the Appellant was found guilty and sentenced to death.

Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on the alone issue as follows:
“Whether the absence of an arraignment of the Appellant in the lower Court before its assumption of jurisdiction vitiates the whole trial.”

APPELLANT’S SUBMISSIONS
The appellant’s counsel referred to Section 215 of the Criminal Procedure Act and submitted that arraignment in a criminal charge is mandatory before the assumption of jurisdiction by a Court to try an accused person for the offences charged. He maintained that the requirements of a valid arraignment must be strictly complied with in order for there to be a fair trial, failing which the whole trial would be defective, unfair, null and void ab initio vide MADUKOLU vs. NKEMDILIM (1962) 1 ANLR 581 at 589-590; (1962) LPELR-24023(SC).

He argued that there was nothing in the Records of Appeal showing that the appellant was arraigned at the lower Court, which is a breach of his right to fair hearing as guaranteed in Section 36 (6) of the 1999 Constitution and which has the consequence of nullifying the trial conducted. He relied on FIRST BANK PLC vs. UDEOZO (2017) LPELR-43263 (CA) at 8-11.

RESPONDENTS’ SUBMISSIONS
The respondent’s counsel submitted that arraignment is the process of bringing an accused person to Court in order to formally accuse him of a crime or crimes. He cited Section 215 of the Criminal Procedure Law, Laws of Ogun State, 2006 on the procedure for the arraignment of an accused person and stated that the most essential aspect of arraignment is compliance with Section 36 (6) (a) of the 1999 Constitution vide DAWODU vs. THE STATE (2000) 12 SC (PT I) 1.

The respondent stated that failure to comply with the four stages for arraignment, the provisions of Section 215 of the Criminal Procedure Law, and Section 36 (6) (a) of the Constitution would render the trial null and void. The case of YAHAYA vs. THE STATE (2002) 3 NWLR (PT 754) 289 at 303; (2002) LPELR-3508(SC) was cited in support.

Counsel stated that from the additional records, plea, which complied with the legal requirements was taken before Agbelu, J.; and that when the trial commenced before another trial judge; Ogunsanya, J., it is reflected in the Judgment of the Records of Appeal that the appellant pleaded to the charge.

He maintained that not expressly getting the record of the day when the plea was taken should not vitiate the Prosecution’s case since both parties and the Court made reference to the fact that plea was taken and that the Appellant was complicit in not raising any objection that plea was not taken and therefore cannot equitably take benefit of this. The case of ALABI vs. DOHERTY (2005) LPELR-6145 (CA) was called in aid

RESOLUTION OF ISSUES
The Court cited TRANSOCEAN SHIPPING VENTURES PRIVATE LTD vs. MT SEA STERLING (2018) LPELR- 45108 (CA) 1 at 9 and explained that parties and the Court are bound by the Records of Appeal. That it is the Records of Appeal that the Court will rely upon in the determination of the appeal. The Court stated further that the Court would not depart from the Records, that any extraneous facts not contained in the Records would be mere conjecture, which cannot be relied on or acted upon.

The Court stated that a valid plea and arraignment has to be in strict fidelity to the stipulations of Section 215 of the Criminal Procedure Law. That it is the law that when it is alleged that there has been an invalid arraignment, in that the mandatory provisions of Section 215 of the Criminal Procedure Law had not been complied with, all that an appellate Court needs to do is to examine the records on the day of the arraignment to see if the arraignment is proper.

The Court reiterated the facts of the case that the Appellant’s plea was taken before Agbelu, J. but the trial and adduction of evidence in proof of the offences charged were conducted by Ogunsanya, J, and not Agbelu, J. The Court held that there is nothing to show that the Appellant was formally arraigned before Ogunsanya, J.

The Court stated that arraignment is a very important step in the prosecution process. That is the initial step in the prosecution of a person accused of committing a crime in a criminal trial. The case of YAHAYA vs. THE STATE (2002) 3 NWLR (PT 754) 289 at 307; (2002) LPELR-3508(SC) was relied upon. The Court further explained that it is the minimum requirement of the law that necessary steps to a valid arraignment as provided in Section 215 of the Criminal Procedure Law must be complied with in order to ensure that the constitutional provision of fair hearing which inures in favour of an accused person, especially as it relates to Section 36 (6) of the 1999 Constitution.

The Court restated that there is nothing in the Records of Appeal on the arraignment of the Appellant before Ogunsanya, J., and on the basis of which it can be ascertained whether the requirements and stipulations of Section 215 of the Criminal Procedure Law and Section 36 (6) of the Constitution were complied with.

The Court cited HASSAN vs. FRN (2016) LPELR (42804) 1 at 9 and held that the trial judge has a duty to ensure compliance with the stipulations of Section 215 of the Criminal Procedure Law.

On the respondent’s contention that the appellant did not object that plea was not taken; the Court held that the argument is of no moment. That whether the plea was taken or not, is a question of fact, and the submission of learned counsel cannot be proof of the fact when such a fact is non-existent.

The Court explained that a matter is to start afresh before another Judge, a fresh plea must first be taken by the new judge before proceeding any further in the matter. Cited SANMABO vs. THE STATE (1967) NMLR 314 at 316-317.

The Court stated the requirement of the law as regards to what constitutes a valid arraignment, that the mandatory stipulations of Section 215 of the Criminal Procedure Law must be complied with, which is as follows:
a) The accused must be placed before the Court unfettered unless the Court shall see cause to otherwise order.

b) The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the Registrar or other officer of the Court.

c) The accused shall then be called upon to plead to the charge thereto instantly otherwise, where there is such an 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.

d) The plea of the accused shall also be instantly recorded by the Court.

The Court emphasized that the requirements are fundamental and non-compliance renders a trial a nullity citing the case of FRN vs. IWUAFOR (2019) LPELR (46901) 1 at 15-18.

The Court held that upon the matter coming before Ogunsanya, J., the matter was to start de novo and a new plea ought to be first taken before Ogunsanya J., before any further steps. ICHE vs. THE STATE (2013) LPELR (22035) 1 at 48-49. That the process of arraignment must, inter alia, show compliance with the constitutional right of an accused person being informed promptly in the language he understands and in detail of the nature of the offence. Furthermore, the Court stated that the stipulation of Section 215 of the Criminal Procedure Law requires that the Court is to be satisfied that the Charge has been read over and explained to the accused person before evidence is led.

The Court held that the proceedings before the lower Court were caught by the abhorrent consequences of non-compliance with Section 215 of the Criminal Procedure Law and the attendant infringement of the right of fair hearing under Section 36 (6) of the 1999 Constitution which it occasioned. That it is a nullity, as though there was never a trial and judgment. Referred to LASISI vs. THE STATE (2013) LPELR (20715) 1 at 10-11.

The Court opined that the entire proceedings were a waste of precious judicial time as the defect of having acted without jurisdiction is extrinsic to the adjudication.

The Court took cognisance of the stipulations of the presumption of regularity of judicial and official acts under Section 168 (1) of Evidence Act but however stated that the said presumption was rebuttable, as it will not avail the Respondent in this instant case because the record showed that the plea of the Appellant was not taken before adduction of evidence before Ogunsanya, J. Relying on FRN vs. IWUAFOR (supra) at 1, the Court held that the presumption of regularity cannot avail where what was done at the trial court cannot be said to be substantially regular in the face of the non-compliance with the mandatory provisions of Section 215 of the Criminal Procedure Law.

In conclusion, the Court held that the proceedings leading to the conviction of the appellant as borne out by the Records of Appeal are not valid in law. That the trial at the lower Court is a nullity.

The Court further held that the evidence disclosed against the appellant is such that to refuse to make an order for a fresh trial would occasion a greater injustice than to grant the order for a fresh trial. The case GANIYU vs. THE STATE (2013) LPELR (20334) (SC) was cited.

HELD
The appeal was allowed; the judgment of the lower Court embodying the conviction and sentence of death imposed on the Appellant was set aside for being a nullity. The Court of Appeal remitted the matter back to the High Court of Ogun State for a fresh trial by another judge to be assigned by the Chief Judge, not being Ogunsanya, J.

Appearances:
J. D. Oloyede, Esq.
ForAppellant(s)

Mrs. F. E. Bolarinwa-Adebowale,
Chief State Counsel, Ministry of Justice,
Ogun State.
For the Respondent(s)

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