SUNDAY AZOGOR V. THE STATE: On procedure for a valid arraignment and effect of non-compliance therewith. An insight into the decision of the Supreme Court therein.

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SUNDAY AZOGOR V. THE STATE: On procedure for a valid arraignment and effect of non-compliance therewith. An insight into the decision of the Supreme Court therein. Citation(2019) 1 NWLR PT. 1654 AT 491.  Courtesy: Moruff O. Balogun Esq.

 

 

Summary of facts:
The appellant was charged at the High Court of Ogun State, Ijebu-Ode with 5 counts bordering on conspiracy to commit armed robbery and armed robbery contrary to sections 6(b) and 1(2)(a) respectively of the Robbery and Firearms (Special Provisions) Act, Cap RII, Laws of the Federation of Nigeria, 2004.

When the case came up for hearing on 31st January 2007 before Agbelu, J. the counts were read to the appellant in pidgin English, and he pleaded not guilty to each of the 5 counts. On subsequent dates fixed for trial, trial never took off due to absence of witnesses. On 3 July 2008 the trial court adjourned the case to 23 October 2008 for definite trial. On 23 October 2008, the case went up before Olubgemi, J. also of the High Court in Ijebu-Ode for the first time. He ordered the appellant’s plea to be taken.

The 1st, 2nd, 3rd and 4th counts were read to the appellant in pidgin English. The appellant pleaded not guilty to each of the 4 counts. Count 5 was not read to the appellant, and he did not plead to count 5. The case was adjourned to 24 November 2008. On that day, trial did not go on.

On 23 February 2009, the prosecution filed an application to amend the charge, and on 22 April 2009 the application was taken and granted by Olugbemi, J. The amended charge contained 6 counts. However, the plea of the appellant was not taken to the 6 counts amended charge. Trial commenced on 2nd June 2009. At the conclusion, the appellant was discharged and acquitted on counts 1,2,3,4 and 5, but convicted on count 6 and sentenced to 14 years imprisonment.



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Dissatisfied, the appellant appealed to the Court of Appeal, which dismissed his appeal. Still dissatisfied, he appealed to the Supreme Court.
At the Supreme Court, the appeal turned on whether or not the trial, conviction and sentence of the appellant was not a nullity for failure to strictly comply with the provision of section 215 of the Criminal Procedure Law of Ogun State.

In determining the appeal, the Supreme Court considered the provision of sections 164(1)-(4) and 215 of the Criminal Procedure Law of Ogun State which state as follows:
“164(1) If a new charge is framed or alteration made to a charge under the provisions of section 162 or section 163 the court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charges.

(2) If the accused declares that he is not ready, the court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the court to prejudice the accused in his defence or the prosecutor in his conduct of the case, the court may proceed with the trial as if the new or altered charge had been the original charge.

(3) If the new or altered charge is such that proceedings immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor the court may either direct a new trial or adjourn the trial for such period as the court may consider necessary

(4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.”

“215 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 is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”

Held : Unanimously allowing the appeal.

The following issues were raised and determined by the Supreme Court:

On procedure for a valid arraignment and effect of non-compliance therewith –
There is a valid arraignment of an accused person when and only when:
the accused person is placed before the court unfettered (unless the court orders otherwise);
the charge is read and explained to the accused person in a language he understands, and to the satisfaction of the court; and
the accused is called upon to plead to the charge(s).

The provision of section 215 of the Criminal Procedure Law is mandatory. Thus where in any trial, any of the above requirements is not complied with, the entire trial would be a nullity.

In the instant case, there was no record of a plea being taken by the appellant after the amendment of the charge. The implication of what transpired at the trial court was that the entire proceedings was a nullity as with the charge amended, it was obligatory for a plea on each of the counts to be taken. Therefore the failure of the plea meant in effect that there was no arraignment. Thus, the proceedings from beginning the purported end of the trial court’s conviction and sentence were a nullity.

On procedure for a valid arraignment –
By virtue of section 215 of the Criminal Procedure Law of Ogun State, 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 is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.

On effect of non-compliance with procedure for arraignment of accused-
The provision of section 215 of the Criminal Procedure Law (CPL) relating to the arraignment of an accused person is mandatory and not directory. Failure to comply therewith renders the arraignment invalid. It also amounts to a breach of the accused person’s fundamental right to fair hearing as guaranteed by section 36(6) of the 1999 Constitution, as amended. Non-compliance with section 215 of the CPL renders the trial a nullity.

In the instant case, the trial court did not take the appellant’s plea in respect of count 6 of the amended charge, which was for unlawful possession of firearms. Nevertheless, he was convicted and sentenced to 14 years imprisonment in respect of the said count which conviction and sentence were affirmed by the Court of Appeal.

On procedure on amendment or alteration of a charge-
By virtue of section 164 of the Criminal Procedure Law of Ogun State the following procedure applies upon the amendment or alteration of a charge:
if a new charge is framed or alteration made to a charge under the provisions of section 162 or 163, the court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charges;
if the accused declares that he is not ready, the court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the court to prejudice the accused in his defence or the prosecutor in his conduct of the case the court may proceed with the trial as if the new or altered charge had been the original charge;
if the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor, the court may either direct a new trial or adjourn the trial for such period as the court may consider necessary;
where a charge is amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.
The requirements of section 164 must be strictly complied with. Failure to call on the accused to plead to the charge as amended, renders the whole trial a nullity. In the instant case, after the amendments were granted to the charge, the appellant was not called to plead to the six counts amended charge.

On when amendment of court process takes effect-
An amendment of a court process dates back to the date of the original process. Once an amendment has been made, it is as if the original process did not exist.

On effect where only one of many grounds of appeal competent-
In an appeal from the Court of Appeal to the Supreme Court, where a ground of appeal involves a question of law, it alone can sustain a notice of appeal. Thus, by virtue of section 233 (12)(a) of the Constitution of the Federal Republic of Nigeria, 1999, such a ground of law confers a right of appeal on an appellant without the necessity of seeking or obtaining leave from the Court Appeal or the Supreme Court. In the instant case, either ground 1 or 2 conceded as a ground of law would sustain the appeal thereby defeating the respondent ‘s preliminary objection to the competence of the appeal.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
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