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Tag: arraignment

  • How CJN can avoid arraignment, by lawyers

    Despite strenuous arguments against the competence and timing of the charge pending against the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, only few options exist for the CJN to avoid his arraignment scheduled for today before the Code of Conduct Tribunal (CCT), law experts have said.

    The arraignment could only be put aside either by the intervention of the Presidency, through the Attorney-General of the Federation (AGF) or the Chairman of the CCT, who could decide to adjourn the tribunal’s proceedings to a later date, The Nation has learnt.

    The CJN, the experts noted, could also decline to attend the proceedings on which basis, the tribunal could, upon an application by the prosecution, issue an arrest warrant.

    These options, some Senior Advocates of Nigeria (SANs), who prayed for anonymity, argued only exist, despite the Appeal Court’s judgment in Nganjiwa v Federal Republic of Nigeria (2017) LPELR-43391(CA), in view of the provisions of sections of the Administration of Criminal Justice Act (ACJA) 2015 and the public interest the case has attracted since information went public at the weekend about the CJN’s scheduled arraignment before the CCT today.

    They referred to the provisions of sections 107 and 396(2) of the ACJA.

    The Supreme Court has since 2016, in its decision in an appeal by the Senate President, Bukola Saraki, held among others that the ACJA is applicable to the proceedings of the CCT.

    The Court of Appeal, in its December 11, 2017 judgment in the appeal by Justice Hydiazira A. Nganjiwa, held that sections 153(1) (i) (2), 271 (1), 292(1) (a) (ii) and Paragraph 21 of Part 1 of the Third Schedule to the 1999 Constitution, must be read together to mean that any judicial officer accused of an offence must first be subjected to an investigation and a disciplinary action by the National Judicial Council (NJC) before such a judicial officer can be arraigned in court.

    Section 107(1) of the ACJA states: “In any criminal proceeding for an offence created by an Act of the National Assembly, and at any stage of the proceeding before judgment, the Attorney-General of the Federation may discontinue the proceedings either by stating in court or informing the court in writing that the Attorney-General of the Federation intends that the proceeding shall not continue, and based on the notice, the suspect shall immediately be discharged in respect of the charge or information for which the discontinuance is entered .”

    Section 395(1) & (2) provides that: “The defendant to be tried on an information or charge shall be arraigned in accordance with the provisions of this Act relating to the taking of pleas and the procedure on it.

    “After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgement, provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgement.”

    Justice Onnoghen, in the lead judgment in the appeal by Saraki, a seven-man panel of the Supreme Court, led by then Justice Mahmoud Mohammed, held among others that the Administration of Criminal Justice Act 2015(ACIA) was applicable to proceedings at the CCT.

    But lawyers query the timing, competence of the charge against the CJN

    President of the Nigerian Bar Association (NBA) Paul Usoro (SAN), Sebastine Hon (SAN), Mike Ozekhome (SAN), Jiti Ogunye and Ebun-Olu Adegboruwa, argued against the planned arraignment of the CJN.

    Usoro, Ozekhome and Adegboruwa querried the competence of the charge. Hon and Ogunye disagreed with the timing in view of the approaching general elections.

    Usoro, who is facing a money laundering charge filed by the Economic and Financial Crimes Commission (EFCC), alleged that the charge against the CJN was part of efforts by agencies of the Executive arm to intimidate and subjugate the other arms of government.

    Usoro, who was part of Saraki’s legal team during the Senate President’s trial before the CCT, argued that the decision to file a charge against the CJN was a repeat of what was allegedly done by the Executive to suppress the Legislative arm.

    The NBA President added: “We still wonder why the FGN choose to deviate from the laid down and explicit provisions of the law as expounded in Nganjiwa v FRN (supra). Could it be that it was misadvised? Or is this a naked show of power and force by agencies of the FGN?

    “It is also difficult for a disinterested observer not to see a pattern of consistent assault by agencies of the FGN on the heads of the two independent arms of government, to wit, the legislature and the judiciary, starting with the prosecution of Dr. Saraki, before the CCT and now, the ill-fated prosecution of the CJN before the same CCT.

    “The impression must not be created that the agencies of the Executive arm of the FGN are interested in destabilising and laying prostrate the other arms of the government and in the process eliminating and destroying any and all voices of dissent and checks and balances.

    “That is not desirable for the democracy that we strive to build neither is it good for the image of the Government. We urge restraint on the part of Government and demand that the CCB follow due process in proceeding against the CJN by complying with Nganjiwa’s Judgment (supra) and other similar judicial precedents.

    “This continuing attack on the justice sector must cease forthwith. FGN and its agencies must desist from debasing the rule of law,” Usoro said.

    Ozekhome argued that the President Buhari administration had been intolerant of dissenting voices.

    He noted: “From the crude break–in and invasion of judges’ houses in October 2018 by masked DSS operatives to the horrific siege laid on the National Assembly and the residences of Senate President Dr Bukola Saraki and his Deputy, Dr Ike Ekweremadu, it is clear that this government, which protects its own members, however corrupt and despicable, has blown into full maximum dictatorship, totalitarianism and absolutism. Nigerians must say no to fascism.

    “The latest onslaught is against the Chief Justice of Nigeria, Justice Walter Nkanu Onnoghen, a man of great nobility, erudition and lucidity of thought.

    “It has come to light that the government has hurriedly filed charges against Onnoghen, even with a motion (most curiously and unusually), that he should recuse himself from his Chief Justice-ship until the case filed against him is finally determined by the Code of Conduct Tribunal (CCT).

    “This is to force him out of office. First, it was a selected class of Judges, then SANs, then NASS, then Media, then NBA President, and now the entire Judiciary. Impunity now reigns supreme, strutting about proudly like a peacock,” Ozekhome said.

    Hon argued: “Nothing stops the Federal Government from deferring, in the interest of national peace and cohesion, the filing of those charges till an opportune time – since there is no limitation of time in criminal proceedings. Why now?

    “The Federal prosecutors are also aware of extant decisions of the Court of Appeal, to the effect that unless and until the NJC pronounces a judicial officer guilty, he cannot be arraigned in court.

    “Those authorities know full well that these decisions of the Court of Appeal have not been overruled; but they have decided to humiliate the CJN, by rushing some charges to the Tribunal and leaking same to the press over the weekend.

    “I strongly counsel the CJN not to heed the obviously unholy call that he should step aside. There is light, I am strongly persuaded, at the end of the tunnel!”

    Ogunye, who also queried the competence of the charge in view of the decision in the Nganjiwa case, added: “We support the fight against corruption in the public sector and in the Judiciary in particular. But this fight must be done in scrupulous conformity with the rule of law.

    “In the light of the foregoing, we call on the President of Nigeria to direct that the charges filed against the CJN be withdrawn forthwith for its incompetence, even as the administration continues to explore other legitimate and constitutional means to continue its fight against corrupt practices in our public life.

    “The allegations against the CJN may be grave, but justice cannot be served by resorting to patent illegalities.”

    Adegboruwa argued that the CJN cannot, by virtue of these illegal charges alone, be asked to vacate his office.

    He noted that the Senate President and his Deputy both faced their criminal trials recently and they both participated in and presided over the affairs of the Senate.

    Adegboruwa added: “Whereas no citizen is above the law to be arraigned or charged for any criminal offence, however, the CJN must be accorded his full constitutional rights as guaranteed by the Constitution.

    “In the course of this present administration, judicial officers have been on trial, legislative officers have been on trial, lawyers and many others have been on trial, for one alleged offence or the other, but no member of the Executive arm has been so tried, notwithstanding the myriad of complaints and allegations against them.

    “I therefore appeal for transparency and uniform application of standards, in the prosecution drive of the administration.

    “As we approach the 2019 general elections, I appeal for calm from all and I urge the Executive arm of government to demonstrate unlimited respect for the due process of law always, in order not to heat up the polity unduly, given the current state of affairs of our dear country,” Adegboruwa said.

  • N162m ONSA cash: EFCC summons Doyin Okupe ahead of arraignment

    •Ex-presidential spokesman says anti-graft agency accused him of cyber crime

    The Economic and Financial Crimes Commission (EFCC) has invited Dr. Doyin Okupe, a former senior Special Assistant to ex-President Goodluck Jonathan for documentation ahead of his arraignment in court.

    He is to face trial for alleged N162million illicit payments to him and his companies by a former National Security Adviser, Col. Sambo Dasuki (rtd) and Chanchaga Local Government Area in Niger State.

    Okupe has been on bail after he was initially interrogated on June 22, 2016.

    But necessary processes for his arraignment in court, including filing of charges, were perfected on Friday.

    Okupe, in a series of tweets yesterday, said a team of EFCC officials stormed his Ilupeju, Lagos residence “asking me to follow them. No letter. No letter of IV no warrant.”

    He added: “The men from EFCC left my house finally after I promised them that I will be in their office on Monday.

    “The officers finally agreed to leave on d promise I will see them Monday. Offence. CYBER CRIME.”

    However, a top source in EFCC said: “Our operatives were in his house to invite him for interaction on Monday in preparation for his arraignment for alleged N162million fraud.

    “The charges against him are ready but he needs to come around to our office and it is from here we will take him to court for trial.”

    Giving an insight into the allegations against Okupe, the source said: “Investigation confirmed that he received illicit payments from the office of the former National Security Adviser, Col. Sambo Dasuki as well as strange payments to his companies by a council in Niger State.

    “He was quizzed over N50million which he collected in cash from the former NSA without record or accountability.

    “Another company that is linked to Okupe, Abraham Telecoms Limited allegedly received N35.5million from the NSA through the Central Bank of Nigeria (CBN).

    “Also, one of his companies, Romic Soil Fix International Limited received N63million from Chanchaga Local Government council of Niger State and another N13.5m from the same council, for unknown reasons.

    “The payments from Chanchaga LG to Romic were made on 21st of November, 2014 during the PDP primary election and 13th February 2015, just before the general election.”

    But Okupe said the funds collected from ONSA followed a presidential directive by ex-President Goodluck Jonathan.

    He had said: “The initial N50m was approved by the President to be paid to me from his security vote. N10m was to furnish my rented living apartment and another N10m for my office. The balance N30m was approved as takeoff grant.

    “The N10m I received from the ONSA monthly was to run my office, pay salaries of staffs, including overheads, pay expenses for our numerous press conferences, pay for publications in newspapers, magazines, local and foreign, television programs, bulletins, and media consultants who assist and facilitate our work. I had about 23 staff, 11 were graduates out of which five were masters degrees holders.

    ” The second N50m was approved again by Mr. President when I reported to him that the monthly allowance had been cut from N10m to N5m and that I was no longer in a position to keep running a one hour NTA network program called INSIGHT which was aired 9-10am every Friday.

    “We paid NTA about N1.2m monthly for airtime. Two presenters were paid N600, 000 monthly.

    “The lead presenter on Insight earned N400, 000 and the second presenter earned N200, 000.

    “We paid for tapes and editing per programme. Besides we also pay honorarium for guests either directly or inform of hotel bills for those outside Abuja, or transportation.

    “This cost an average of N500, 000 weekly or about N2m monthly. All in all we spent about N4m monthly on the programme.

    “Mr. President promised to help with the expenses. About a few months later when we had incurred some debts the NSA sent me this N50m which was to cover the cost of the program for 12 months.

    “I am not a thief. I have only two houses in Lagos and in my hometown.

    “The monthly allowance was not my salary. It was meant to be used to run the office. 40% went on salaries.

    “Salary sheets with names and offices of employees were submitted to EFCC. I was paid a salary of N853, 000 per month through the office of the SGF.”

    On the N76.5m contracts awarded to his firm, Romix Soilfix, by Chanchaga LGA of Niger State, he said the firm was “one of the over 20 construction companies who were duly awarded contracts for rural roads some five years ago by the Niger State Government.”

    He said the jobs were delayed because of irregular payment to contractors by the council.

    He added:  “The job is still ongoing. The relationship of this to my service as senior special assistant to President is still not clear.”

    Osinbajo flags off door-to-door campaign in Lagos

    Vice President Yemi Osinbajo yesterday flagged off a door -to- door campaign for President Muhammadu Buhari in Lagos.

    He said the difference between Buhari and other candidates in the 2019 elections is the president will not steal or allow stealing of public funds.

    Osinbajo said some leaders who would steal while others will  use the country’s money for the common good, noting that Buhari belongs to the latter category.

    “We should not allow those who have stolen our money in the past to come back. They stole all the money and they want to come back. People are saying, enough is enough,” he said.

    “In four years, PDP spent $383 billion. And they want to come back. 16 years is enough.

    “After 16 years of ensuring that the country did not make progress, they want to come back. They will never come back,” he said.

    Osinbajo said that Nigeria’s greatest problem was corruption and not planning because without money you could not executive any plan; hence the need to stop those who had stolen in the past from returning.

    The vice president said the door-to-door campaign was more effective in reaching out to the people, saying it goes a long way in speaking directly to the people about the plans of the government for the people.

    Director-General of the Prof Yemi Osinbajo Support Group, Pastor Yomi Kasali, said the organisation had raised 900,000 canvassers for Lagos State.

    He explained that each canvasser was expected to meet with 50 people.

    The vice president visited some parts of Sogunro community, Ogba , Ikeja to seek support directly from voters in their homes.

     

  • Court fixes November 6 for arraignment of IPMAN factional president …as judge’s absence stalls trial

    Court fixes November 6 for arraignment of IPMAN factional president …as judge’s absence stalls trial

    Federal High Court, Jabi, Federal Capital Territory (FCT), yesterday adjourned the arraignment of the alleged factional President of the Independent Marketers Association of Nigeria (IPMAN), Mr. Lawson Obasi, till November 9.

    Speaking with journalists in Abuja, counsel to the Elder Chinedu Okoronkwo-led IPMAN, Barrister Nnamna Oru, said the adjournment was due to the absence of the presiding judge who is engaged at the election tribunal in Gombe State.

    The counsel to the complainant recalled that “on the 6th of July, the suspect was to be arraigned here but the court couldn’t sit on the account of the absence of the presiding judge, who is engaged in the tribunals in Gombe State. So, because of the state and urgency of the matters at the tribunal, he is still sitting and the court couldn’t sit today.

    “So the matter was adjourned to the 9th of November, by which period he would have been through with his tribunal engagement and appropriate steps taken to prosecute the matter.

    “I am watching view for the nominal complainant of this matter. The complainant is the Independent Petroleum Marketers Association of Nigeria (IPMAN), led by the National President, Elder Chinedu Okoronkwo.”

    The court had fixed yesterday for the arraignment of Obasi and three others who were dragged before it over criminal allegations.

    Others charged alongside Obasi are Ukadike Chinedu, Augustine Erhabor and Andrew Ashiga.

    The Director of Public Prosecutions (DPP), Mohammed Diri, who was present in court on September 6, had filed the six-count charge before the FCT High Court.

    Count one of the 6-count charge filed by Diri on behalf of the Federal Government, among others, reads: “That you, Chief Lawson Obasi, Ukadike Chinedu (aka Asha), Augustine Erhabor and Andrew Ashiga (now at large) on or about the 14th day of April 2014, within the judicial division of the High Court of FCT, conspired to commit an offence, in that while you armed yourselves with dangerous weapons such as cutlasses, wood, iron rod and knives, you violently forced yourselves into the premises of Independent Petroleum Marketers Association of Nigeria (IPMAN) headquarters located at No. 41, Gnassigbe Eyadema Street, Asokoro, Abuja and attacked the headquarters by breaking the doors, windows, lockers and cardboards of the office and inflicting various degrees of injuries on the occupants and robbed them of large sums of money and valuable properties valued at millions of naira.”

    The FG stated that in pursuance of their conspiracy, the accused persons “thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act 2004.

  • Improper arraignment renders trial a nullity

    The Appellant as second defendant along with Sopuruchi Obed were arraigned before  Justice M. A. Dada of the Lagos State High Court on a two count charge and upon trial, the court in a considered judgment dated  May 28, 2009 found them guilty for the offence of conspiracy and armed robbery and convicted them to death. The offences were contrary to Section 403(4) and 402 (2) of the Criminal Code Cap (17) Vol. 2 Laws of Lagos State, 2003.

    The facts of the case at the trial court are that the appellant along one other, Sopuruchi Obed were charged with conspiracy and armed robbery contrary to Section 403 (A) and 402 (2) (a) of the Criminal Code Cap C17, Vol. 2 Laws of Lagos State, 2003. The appellant and the said Sopuruchi Obed were alleged to have robbed one Mrs. Praise Lawani of various items on September 30, 2004 at Obele Road, off Maigbon, Lagos while armed with a locally made short gun, a knife and eight cartridges. The two accused persons pleaded not guilty to the two count charge and the matter proceeded to trial. The trial court upon due consideration found the two defendants guilty. The appellant dissatisfied with the judgment filed a notice of appeal of six grounds upon which three issues for determination were distilled as follows:

    1. Whether the arraignment of the appellant was not in compliance with the law and consequently the entire trial at the lower court was a nullity?

    2. Whether non-signing of the record of proceedings of the lower court rendered the proceedings of the day a nullity.

    3. Whether the finding of the learned trial judge that the prosecution proved its case as required by law can be supported by the totality of the evidence adduced before the court.

    The issues formulated by the appellant were adopted by the court for determination in this judgment.

    The appellant in arguing issue 1 submitted that the arraignment of the appellant was not properly done and the defect had rendered the trial a nullity. He submitted that the law requires that a charge be read and explained to the accused in a language he understands before he can be called upon to take his plea according to Section 24 of Administration of Criminal Justice Law of Lagos State and 36(6)(a) of the 1999 Constitution. Appellant contended that there was nothing in the record of appeal to show that the charge was read, explained or interpreted to the appellant before the plea was taken. On this issue, he finally submitted that failure to comply with the requirement for a proper arraignment has occasioned a miscarriage of justice and he urged the court to discharge the accused person as it would be unfair to put the appellant through a second trial because the case for the prosecution is weak.

    Addressing this issue, counsel for the respondent submitted that Section 215 of the Criminal Procedure Act and Section 36(6) (a) of the 1999 Constitution provides for how a person accused of an offence shall be brought to court unfettered and the charge to be read over and explained to him in the language he understands to the satisfaction of the court before his plea can be taken. Counsel contended that the provision was not violated by the court and the appellant misconceived what an arraignment is and relied on OGUNYE v. THE STATE (1999) 5 NWLR (Pt. 604) 518 AT 567; (1999) LPELR-2356(SC) where arraignment was explained.

    In deciding this issue, the court stated that it is the requirement of the law that necessary steps to a valid arraignment are complied with as provided in Section 215 of the Criminal Procedure Act. The court further stated that such requirements must co-exist and non compliance will warrant an order of a re-trial as the trial will be vitiated and rendered a nullity. The court held that failure of the trial court to comply with the requirement of Section 215 of the Criminal Procedure Act rendered the arraignment and trial a nullity. The court cited the case of JOSIAH v. THE STATE (1985) 1 NWLR (Pt. 1) 215; (1985) LPELR-1633(SC) where the Supreme Court observed that the condition laid down in Section 215 of the Criminal Procedure Act must be strictly complied with. The court held that the deficiency in the record of appeal concerning arraignment is vital and it has vitiated the trial. The trial was held to be a nullity and this issue was resolved in favour of the appellant.

    On issue 2 , appellant submitted that by virtue of Section 245 of the Administration of Criminal Justice Law of Lagos State 2007 which is the same as Section 294 (1) of the Criminal Procedure Act, it requires the trial court to maintain a record of proceedings and the judge must sign the notes for each day. Counsel submitted that this requirement is mandatory and any failure to observe same renders the proceedings of that day null and void. He contended that the additional record were transcribed but were not signed by the trial judge including the proceedings in which the appellant was arraigned.

    The respondent’s counsel submitted that the appellant’s complaint was about the transcribed record of court duly certified as required by law. That Section 145 and 147 of the Evidence Act also prescribes  a presumption of genuineness of a certified document and also that Order 17 Rule (9) (1) (c) of the Rules of the Court allow for the use of transcribed copies of record of proceedings as substitute for Judges Notes. Counsel urged the court to discountenance the argument of the appellant under this issue and find for the respondent.

    On this issue, the court held that the portion complained about are the additional record of appeal and these are the transcripts of the proceedings which are certified by the officer duly authorised. The court stated that it is important to note that the portion of the additional record complained about is not directly the note of the trial judge but transcripts from the recording by an officer authorised to do so and it was duly certified. The court held that the complaint of the appellant lacked merit. This issue was resolved against the appellant.

    The appellant in arguing issue three challenged the finding of the trial court that the prosecution proved its case as required by law. Addressing the issue, counsel for the appellant submitted that the prosecution did not prove the allegation according to law. He relied on the case of ALABI v. STATE (1993) 7 NWLR (Pt. 307) 511; (1993) LPELR-397(SC). Counsel submitted that to answer the issue, the evidence of the two prosecution witnesses will have to be analysed and when that is done, it can clearly be seen that the evidence was hearsay evidence as both PW1 and PW2 told the court that Mrs. Praise Lawani told them what they told the court. The said Mrs. Lawani did not testify. The appellant urged the court to expunge the hearsay evidence of PW1 and PW2 and to discharge the appellant. Counsel submitted there was no evidence Mrs. Praise Lawani existed. She was not called even when she is a vital witness in proof of whether a robbery actually took place. That in the face of the retracted confessional statement and the appellant’s alibi which was established, the prosecution failed to prove that a robbery took place. Appellant’s counsel further submitted that there was no clear identification of the appellant as one of those who participated in the robbery and therefore the court erred in finding that the appellant participated in the robbery. And furthermore that the report by Mrs. Lawani was on suspicion since she did not identify anybody on the day the alleged robbery took place.

    Counsel for the respondent submitted that identification parade is not required where the suspect is caught at the scene of crime or closely connected as in this case. Counsel submitted that prosecution is not bound to call witnesses if it can prove its case by those called, he relied on BELLO SHURUMO v. THE STATE (2010) 19 NWLR 9 (Pt. 1226) 73 AT 94; (2010) LPELR-3069(SC).

    On this issue, the court stated that the police man in the station cannot be a witness to a crime which took place in a different location when he was not at that venue except if he is a spirit. The court stated the settled principle of law that where direct evidence of the commission of a crime is absent, the court can infer from the facts proved the existence of other facts which logically and conclusively establish the guilt of the accused, the Court cited the case of AKPA v. STATE (2008) 14 NWLR (Pt. 1106) 72; (2008) LPELR-368(SC). The court held that there is no direct evidence in this case, neither is there circumstantial evidence that can pin the appellant to the crime without the evidence of a victim on the important aspects of how the offence was carried out.

    On the whole, the court held that the appeal succeeds. The judgment wherein the conviction and sentence of the appellant by the Lagos High court presided over by HON. JUSTICE M. A DADA and delivered on  May 28, 2009 was set aside. The appellant was discharged and acquitted.

     

    •Edited by LawPavillion

    LawPavilion Citation: (2014) LPELR-23124(CA)

     

     

     

     

  • ‘Improper arraignment renders trial a nullity’

    The Appellant as second defendant along with Sopuruchi Obed were  arraigned before  Justice M. A. Dada of the Lagos State High Court on a two count charge and upon trial, the Court in a considered judgment dated  May 28, 2009 found them guilty for the offence of conspiracy and armed robbery and convicted them to death. The offences were contrary to Section 403(4) and 402 (2) of the Criminal Code Cap (17) Vol. 2 Laws of Lagos State, 2003.

    The facts of the case at the trial Court are that the Appellant along one other, Sopuruchi Obed were charged with Conspiracy and Armed Robbery contrary to Section 403 (A) and 402 (2) (a) of the Criminal Code Cap C17, Vol. 2 Laws of Lagos State, 2003. The Appellant and the said Sopuruchi Obed were alleged to have robbed one Mrs. Praise Lawani of various items on September 30, 2004 at Obele Road, off Maigbon, Lagos while armed with a locally made short gun, a knife and eight cartridges. The two accused persons pleaded not guilty to the second count charge and the matter proceeded to trial. The trial Court upon due consideration found the two defendants guilty. The Appellant dissatisfied with the judgment filed a notice of Appeal of 6 grounds upon which three issues for determination were distilled as follows:

    1. Whether the arraignment of the Appellant was not in compliance with the law and consequently the entire trial at the lower court was a nullity?

    2. Whether non-signing of the record of proceedings of the lower court rendered the proceedings of the day a nullity.

    3. Whether the finding of the learned trial judge that the prosecution proved its case as required by law can be supported by the totality of the evidence adduced before the Court.

    The issues formulated by the Appellant were adopted by the Court for determination in this judgment.

    The Appellant in arguing issue 1 submitted that the arraignment of the appellant was not properly done and the defect had rendered the trial a nullity. He submitted that the law requires that a charge be read and explained to the accused in a language he understands before he can be called upon to take his plea according to Section 24 of Administration of Criminal Justice Law of Lagos State and 36(6)(a) of the 1999 Constitution. Appellant contended that there was nothing in the record of Appeal to show that the charge was read, explained or interpreted to the Appellant before the plea was taken. On this issue he finally submitted that failure to comply with the requirement for a proper arraignment has occasioned a miscarriage of justice and he urged the Court to discharge the accused person as it would be unfair to put the Appellant through a second trial because the case for the prosecution is weak.

    Addressing this issue counsel for the Respondent submitted that Section 215 of the Criminal Procedure Act and Section 36(6) (a) of the 1999 Constitution provides for how a person accused of an offence shall be brought to Court unfettered and the charge to be read over and explained to him in the language he understands to the satisfaction of the Court before his plea can be taken. Counsel contended that the provision was not violated by the Court and the Appellant misconceived what an arraignment is and relied on OGUNYE v. THE STATE (1999) 5 NWLR (Pt. 604) 518 AT 567; (1999) LPELR-2356(SC) where arraignment was explained.

    In deciding this issue, the Court stated that it is the requirement of the law that necessary steps to a valid arraignment are complied with as provided in Section 215 of the Criminal Procedure Act. The Court further stated that such requirements must co-exist and non compliance will warrant an order of a re-trial as the trial will be vitiated and rendered a nullity. The Court held that failure of the trial court to comply with the requirement of Section 215 of the Criminal Procedure Act rendered the arraignment and trial a nullity. The Court cited the case of JOSIAH v. THE STATE (1985) 1 NWLR (Pt. 1) 215; (1985) LPELR-1633(SC) where the Supreme Court observed that the condition laid down in Section 215 of the Criminal Procedure Act must be strictly complied with. The Court held that the deficiency in the record of appeal concerning arraignment is vital and it has vitiated the trial. The trial was held to be a nullity and this issue was resolved in favour of the appellant.

    On issue two, Appellant submitted that by virtue of Section 245 of the Administration of Criminal Justice Law of Lagos State 2007 which is the same as Section 294 (1) of the Criminal Procedure Act, it requires the trial Court to maintain a record of proceedings and the judge must sign the notes for each day. Counsel submitted that this requirement is mandatory and any failure to observe same renders the proceedings of that day null and void. He contended that the additional record were transcribed but were not signed by the trial judge including the proceedings in which the Appellant was arraigned.

    The Respondent’s Counsel submitted that the Appellant’s complaint was about the transcribed record of court duly certified as required by law. That Section 145 and 147 of the Evidence Act also prescribe a presumption of genuineness of a certified document and also that Order 17 Rule (9) (1) (c) of the Rules of the Court allow for the use of transcribed copies of record of proceedings as substitute for Judges Notes. Counsel urged the court to discountenance the argument of the Appellant under this issue and find for the Respondent.

    On this issue, the court held that the portion complained about are the additional record of appeal and these are the transcripts of the proceedings which are certified by the officer duly authorised. The court stated that it is important to note that the portion of the additional record complained about is not directly the note of the trial judge but transcripts from the recording by an officer authorised to do so and it was duly certified. The court held that the complaint of the Appellant lacked merit. This issue was resolved against the Appellant.

    The Appellant in arguing issue three challenged the finding of the trial Court that the prosecution proved its case as required by law. Addressing the issue, Counsel for the Appellant submitted that the prosecution did not prove the allegation according to law. He relied on the case of ALABI v. STATE (1993) 7 NWLR (Pt. 307) 511; (1993) LPELR-397(SC). Counsel submitted that to answer the issue the evidence of the two prosecution witnesses will have to be analysed and when that is done, it can clearly be seen that the evidence was hearsay evidence as both PW1 and PW2 told the Court that Mrs. Praise Lawani told them what they told the court. The said Mrs. Lawani did not testify. The Appellant urged the Court to expunge the hearsay evidence of PW1 and PW2 and to discharge the appellant. Counsel submitted there was no evidence Mrs. Praise Lawani existed. She was not called even when she is a vital witness in proof of whether a robbery actually took place. That in the face of the retracted confessional statement and the Appellant’s alibi which was established, the prosecution failed to prove that a robbery took place. Appellant’s counsel further submitted that there was no clear identification of the Appellant as one of those who participated in the robbery and therefore the Court erred in finding that the Appellant participated in the robbery. And furthermore that the report by Mrs. Lawani was on suspicion since she did not identify anybody on the day the alleged robbery took place.

    Counsel for the Respondent submitted that identification parade is not required where the suspect is caught at the scene of crime or closely connected as in this case. Counsel submitted that prosecution is not bound to call witnesses if it can prove its case by those called, he relied on BELLO SHURUMO v. THE STATE (2010) 19 NWLR 9 (Pt. 1226) 73 AT 94; (2010) LPELR-3069(SC).

    On this issue, the Court stated that the Police man in the station cannot be a witness to a crime which took place in a different location when he was not at that venue except if he is a spirit. The Court stated the settled principle of law that where direct evidence of the commission of a crime is absent, the Court can infer from the facts proved the existence of other facts which logically and conclusively establish the guilt of the accused, the Court cited the case of AKPA v. STATE (2008) 14 NWLR (Pt. 1106) 72; (2008) LPELR-368(SC). The Court held that there is no direct evidence in this case, neither is there circumstantial evidence that can pin the Appellant to the crime without the evidence of a victim on the important aspects of how the offence was carried out.

    On the whole, the Court held that the appeal succeeds. The judgment wherein the conviction and sentence of the appellant by the Lagos High court presided over by HON. JUSTICE M. A DADA and delivered on May 28, 2009 was set aside. The appellant was discharged and acquitted.

     

    Edited by LawPavillion

    LawPavilion Citation: (2014) LPELR-23124(CA)

  • Lawyers demand arraignment of policeman’s ‘killer’

    Members of the Nigeria Bar Association (NBA) in Ondo town yesterday threatened to sue the police, if the alleged killer of a police Inspector attached to Yaba Division Police Station in Ondo, the late Adelakun Lawal, is not prosecuted.

    The late Lawal, who was a prosecutor at the Magistrate’s Court, was allegedly killed by his friend, Mr. Kazeem Shehu, a police officer.

    The NBA chairman in the area, Kunle Adetowubo, told reporters that the association would ensure that the matter was not swept under the carpet.

    Adetowubo: “Though the NBA hails the police for arresting the suspect on the scene of the incident, we are waiting for the result of the Orderly Room Trial (ORT) and the arraignment of the suspect.

    “The only weapon we have is the court. We are ready to tackle the Ondo State Commissioner of Police, Patrick Dokumor and the Inspector-General of Police, Mohammed Abubakar, if the suspect is not prosecuted.

    “We are disappointed with the slow pace of the investigation and failure to arraign the suspect.”

    Dokumor said investigation is ongoing and the suspect would be prosecuted.