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Tag: nullity

  • ‘Saraki, Ekweremadu’s elections are a nullity’

    ‘Saraki, Ekweremadu’s elections are a nullity’

    Frontline lawyer and rights activist Jiti Ogunye examines the crisis at the National Assembly. His opinion: the election of Senate President Bukola Saraki and Deputy Senate President Ibe Ekweremadu should not stand.

    Since the National Assembly (NA) erupted in crisis during the  “inauguration” of the 8th NA and the “election” of the leadership of the Senate and House of Representatives on Tuesday, the 9th of June, 2015, a lot has been said and written about the issues in dispute in the crisis.  Unfortunately, rather than subject the “election”  in the NA, in particular  in the Senate, on that day, to a rigorous legal examination, in order to determine the legality of that election, many of the principal actors in  the NA leadership crisis or in the All Progressives Congress.

    Since the National Assembly (NA)  erupted in crisis during the  “inauguration” of the 8th NA and the “election” of the leadership of the Senate and House of Representatives on Tuesday, the 9th of June, 2015, a lot has been said and written about the issues in dispute in the crisis.  Unfortunately, rather than subject the “election”  in the NA, in particular  in the Senate, on that day, to a rigorous legal examination, in order to determine the legality of that election, many of the principal actors in  the NA leadership crisis or in the All Progressives Congress (APC) imbroglio, and a host of other  interveners have been discussing the  politics of the crisis and its  “mishandling” by the APC leadership, who, according to these interveners,  was hell bent on foisting a leadership on the NA. Many simple-minded gloaters have even reduced the serious issues thrown up by the crisis to a  celebration of the  “ political defeat of  Bola Ahmed Tinubu”, as if that alleged defeat was all that was needed to make the aberration that occurred in the NA acceptable.  In this intervention, we seek to redirect the discourse. We argue that the NA leadership crisis primarily should be discussed and resolved on the basis of enquiries as to whether there had been a violation of the  rule of law and the provisions of  the Constitution.

    What transpired in the NA on Tuesday, 9th June, 2015 was a coup d’état. If it was merely a coup d’état by  the treacherous members of the APC against their party’s choices  for  the offices that constitute the leadership of the NA, we would not have been bothered. We are bothered because it  was also a coup d’état against the Constitution of the Federal Republic of Nigeria, and the rule of law.

    On that day, while Senator Bukola Saraki of the APC, who has confessed that, like a typical coup d’état leader, he sneaked into the premises of the NA at dawn, was “elected  unopposed” as the Senate President, by 57 Senators, in the absence of 51 Senators, who were “ambushed” into a fence-mending and ranks-closing meeting that eventually turned out to be a hoax, Senator Ike Ekweremadu of the People Democratic Party ( PDP) “defeated” his opponent, Senator Ali Ndume of the APC by 50 votes to 24 votes  ( with one abstention)  to clinch the post of the Deputy Senate President. Instructively, the APC controls the Senate with 59 ( now 58)  Senators, while the PDP has 49 Senators, meaning that 108 members ought to have congregated on the Senate Floor on the said date to constitute the leadership of the Senate. Alas, only 57 senators and 75 senators took part in the elections into the two offices.

    In the run up to the “inauguration” of the NA  on 9th of June, 2015, after the initial intra-party horse-trading  and compromises, two blocs within the APC, keenly interested in fielding candidates and contesting available positions in the NA leadership, had emerged: The offices are that of  the Senate President, Deputy Senate President, Speaker of House of Representatives and Deputy Speaker of House of Representatives. For the House of Representatives, there was the Femi Gbajabiamila and Yakubu Dogara Blocks, and for the Senate, there were the Bukola Saraki and Ahmed Lawan Blocks. To put its house in order, the APC, correctly and responsibly, in our view, conducted a straw  poll amongst her elected legislators to determine the popularity and acceptability  of the aspirants and adopt consensus candidates of the party for the positions. It would not have made any sense for the APC to have allowed its aspirant members to go on the floors of the Senate and the House to slugger it out amongst themselves. That is not the way a responsible party behaves. Strangely, some  dubious partisans and  jaundiced interveners have condemned the APC for striving to forge consensuses  amongst its party members, insisting that the NA should have been left alone to self-constitute its leadership, without the input of the  parties of the respective members. This position that is being laundered as the correct approach that ought to have been adopted by the APC in order to guarantee  the independence of the legislature is ignorant,  plain dumb and silly.   At the end of the straw poll, which the Saraki and Dogara blocs boycotted and walked out of, obviously because they were in the minority and because they did not want the decision of the majority to bind them,  the Lawan and Gbajabiamila Blocks emerged victorious. Consequently, the APC directed all its legislators that were to participate in the NA Leadership Elections to tow the party line and vote for the party’s  candidates in the elections.

    Upon realising that they did not command the following of a majority of their party members, the Saraki and Dogara blocks surreptitiously hatched a conspiracy against their party’s interest and forged a coalition with the PDP against their party choices  That coalition led to the “defeat” of the APC choices in the elections, and the triumphs of the Saraki and Dogara Blocks. In the House of Representatives leadership election, Dogara scored 182 votes to Gbajabiamila’s 174 votes. Given the result of the election, it was obvious that out of the 209 APC legislators in the House, about 36 of them leagued up with PDP legislators to defeat Gbajabiamila, their “party’s” candidate for the office of the speaker, and Monguno, their party’s candidate for the office of the Deputy Speaker. Saraki, Dogara, and Lasun, all  defectors from the PDP,  simply reached out to their kith and kin in the PDP. And it only took the infusion of Ekweremadu for the family reunion  to be complete. Blood, as we know, is always  thicker than water. It was an act of gross betrayal and misconduct.

    Was that act of betrayal illegal or unconstitutional? No, even if it is immoral.  Section  50 (1) of the Constitution  says so. It provides that “ there shall be:- (a) a President and a Deputy President of the Senate, who shall be elected by the members of that House from among themselves; and (b) a Speaker and a Deputy Speaker of the House of Representatives, who shall be elected by the members of that House from among themselves”. By virtue of this provision, any member of the Senate or House of Representatives, be s/he of the majority party or minority party can be elected into any of the aforementioned positions, in so far as he or she is a member of the Senate or House of Representatives. It only stands to reason that if any legislator, regardless of the numerical strength of his party, can aspire to a leadership position in the upper and lower chambers, he or she can draw his electors from his own party or from other parties in the legislature. And any member can elect any other member of his choice to occupy any of the said positions, regardless of political party affinity or divide.

    Without any doubt, the leadership tussle in the NA has shown clearly the fault lines in Section 50 (1) of the Constitution. Section 50(1)  needs an urgent amendment, such that the indubitable legislative intendment of having a majority party constitute the leadership of the parliament, while the minorities parties play the role of the parliamentary opposition can become more manifest and taken out of its current state of wooliness.

    We have argued that the act of betrayal of the APC insurgents is not illegal or unconstitutional, but  immoral.  But do we all not know that  immorality, lack of integrity, opportunism and perennial power and money hunting  are  the hallmarks of a majority of Nigerian politicians? Lacking in scruples, values, principles and ideology, they change political parties, switch political allegiances and positions on any matter, based on their whims, caprices, political calculations and expectations, and pecuniary interests. Most of them are nothing but charlatans and political mercenaries.  Lacking shame, noble comportment and decorum, but fixated on grabbing power for primitive accumulation and self aggrandizement, they do not  mind dumping a “ national conscience party”, “a national salvation congress”, or people redemption movement” for “ a kidnappers party of Nigeria”, or “congress of Nigerian armed robbers “, regardless of the repugnance of such names, if the platforms give them an assurance of a short cut to power, and a shorter and surer route to the public till.

    The APC that is now talking about party loyalty and supremacy, and is bellyaching about the treachery of the renegades within her ranks reeks of the vice of political prostitution, which usually is masked as patriotic expediency, political pragmatism, and free exercise of the constitutionally guaranteed right to freedom of association.  We are, therefore, not concerned about the moral wrong that the APC has suffered in the hands of her saboteur members, who, apparently  fled a leprous PDP into the APC in the belief that staying back in the  PDP in the 2015 general elections  was going to harm their ambitions to get elected or re-elected  into political offices. It was a mutation from one party to the other for political survival. It was “change”, indeed.

    As we have stated above, we are bothered because the events of 9th of June, 2015 have serious implications for Nigeria’s democracy, constitutionalism and the rule of law.

    It is our considered view that the election of  Bukola Saraki as the Senate President and  Ike Ekweremadu as Deputy Senate President is illegal, unconstitutional, null and void. It is a sham. Put in another way, Bukola Saraki and Ekweremadu, are not, legally speaking, the Senate President and Deputy Senate President of Nigeria. They are impostors, who should stop parading themselves as senate president and deputy senate president. Asking Ekweremadu to yield up the office of the Deputy Senate President, as some partisans who have labeled him a PDP usurper  have suggested, does not arise. De jure, he is not occupying the office of the Deputy Senate President from which he may resign.  You cannot resign from an office you do not occupy. Why do we say so?

    First, by their own declarations and admissions, the organizers of the sham election on the floor of the Senate on the 9th of  June, principally the Clerk of the National Assembly and his cohorts, claimed that they organized that election pursuant to the Senate Standing Orders, 2015, as amended, which purportedly provided that elections into the two offices shall be by secret ballot, instead of the open ballot as provided by Orders 72 and 73 of the Senate Standing Orders, 2011. As it has now become glaring, there was, in fact, no such Senate Standing Orders, 2015. As at the time of the dissolution of the 7th National Assembly, on the 4th of June, 2015, the operative Rules of the Senate were Senate Standing Orders, 2011. Between that dissolution and the inauguration of the 8th Senate on the 9th of June, the Senate was not in existence. It was a period of interregnum. The Senate leadership of the 7th Senate went with the dissolution of that Senate. Therefore, that leadership, acting alone, or in concert with the generality of the members of the 7th Senate could   not have amended the  Senate Rules to produce the Senate Standing Orders, 2015. By virtue of Order 110(5) of the Senate Standing Orders, 2011,  two-thirds majority of the Senate shall decide proposed amendments and such amendments shall form part of the Rules of the Senate. This purported amendment is the act of forgery that is being alleged against David Mark, Ekweremadu and the Clerk of the National Assembly, which has now become the subject of police investigation. While the crime of forgery that is alleged may lead to prosecution and conviction, if investigation establishes a prima facie case, the effect of that forged or manipulated document on the election at the Senate is stark. Being the foundation of that election, the election is rendered illegal, null and void. No senate president or deputy senate president can be elected pursuant to a non-existent or forged Senate Standing Orders.

    In underscoring the nullity of the Saraki and Ekweremadu’s  presidency and deputy presidency, we find it very apt to use  the analogy of a familiar legal principle.

    “A court can only be competent, if among other things, all the conditions precedent for its having jurisdiction are fulfilled. In Madukolu and Ors. v. Nkemdilim (1962) 1 All N.L.R. (Pt.4) 587 at 594 Bairamian, F. J, (as he then was) stated the principles which , ever since, have been accepted in successive cases in the Supreme Court of Nigeria. ‘A court is competent, he said,  ‘when- (1)it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and (3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided;  the defect being  extrinsic to the adjudication.’ See  Skenconsult(Mg.)Ltd, &Anor. v. Ukey (l98l) 1 SC 6 at 15

    • To be continued

  • Trial by an improper court or tribunal is a nullity

    Introduction

    An immediate display of the factual setting from which this case arose, at the threshold of this judgment, will, I believe, help depict the case in its correct context. The current Constitution of the Federal Republic of Nigeria came into force in 1999. Section 197 of the Constitution establishes for each State of the Federation.

    (a) State Civil Service Commission,

    (b) State Independent Electoral Commission                   and

    (c) State Judicial Service Commission.

    On July 10, 2010, the Constitution was amended. The amendment affected section 200(1), especially, as it relates to the qualification of members of the State Independent Electoral Commission.

    2. For reasons which shall become obvious in the course of this judgment, I should mention here, for record purposes that, when this action was filed, there were three claimants, namely Action Congress of Nigeria (ACN), All Nigeria People’s Party (ANPP) and Congress for Progressive Change (CPC), who shall, hereinafter, collectively be referred to as the original claimants. In the course of these proceedings, leave of court was secured to amend the claimants’ names to All Progressive Congress (APC), following what the original claimants called merger of the three political parties.

    3. Essentially, this action challenges the composition of the 3rd Defendant, Kogi State Independent Electoral Commission, (KOGSIEC), on the basis that its membership consists of persons who are members of the 9th defendant, People’s Democratic Party (PDP). It is the contention of the claimant that the 4th – 8th defendants, being members of the 9th defendant, are not qualified to hold positions as chairman (4th defendant) and members (5th – 8th defendants) of Kogi State Independent Electoral Commission (3rd defendant) hereinafter simply called and referred to as KOGSIEC.

    4. It is important to state here, as a background fact that this action was instituted when election into the local government councils in Kogi State was approaching. The claimant articulates its fears and apprehension over the ability of KOGSIEC to conduct credible, fair and free elections, having regard to its (KOGSIEC) composition. The fears are expressed in paragraphs 12, 13, and 14 of the amended statement of claim as follows:

    12.The 4th Defendant as a member of PDP can never be fair and/or be seen to be fair in the discharge of his function as Chairman of the 3rd Defendant likewise the 5th – 8th Defendants.

    13.The Claimants shall be highly prejudiced if the 4th – 8th Defendants are allowed to remain in that office to conduct the forthcoming Local Government Elections as a member (sic) of PDP which party is also in control of the 1st Defendant, and is sponsoring candidates to contest the election which the 3rd Defendant is to organise.

    14.The composition of the 3rd Defendant headed by the 4th Defendant is illegal; unconstitutional null and void.

    5. The claimant, therefore, seeks the following declarations and orders:

    (a) A DECLARATION that members of Political Parties registered in Nigeria are not competent and qualified to be members of the 3rd Defendant rather only men and women of integrity who are not partisan are entitled to be made members of the 3rd Defendant.

    (b) A DECLARATION that the 4th – 8th defendants are not qualified to hold any office of chairman and Members of the 3rd Defendant being members of Peoples Democratic Party (PDP).

    (c) A DECLARATION that the composition of the 3rd Defendant by the 1st Defendant with the Chairmanship and membership of the 4th – 8th Defendants is unconstitutional, illegal, null and void.

    (d) A DECLARATION that all the actions and steps taken by the 3rd Defendant with the 4th – 8th Defendants as Chairman and members of the 3rd Defendant are illegal, null and void owed to their qualification.

    (e) AN ORDER nullifying the appointment of the 4th – 8th Defendants as Chairman and members of the 3rd Defendant.

    (f) AN ORDER declaring all the action taken by the 4th – 8th Defendants as chairman and members of the 3rd Defendant as illegal, wrongful, unlawful, null, void and of no effect.

    (g) AN ORDER nullifying the composition and membership of the 3rd Defendant owing to the disqualification of the 4th – 8th Defendants as the Chairman and members.

    (h) AN ORDER directing the 1st Defendant to appoint persons of proven integrity who are not members of PDP or any other Political Parties as Chairman and members of the 3rd Defendant.

    (i) AN ORDER of perpetual injunction restraining the 4th – 8th Defendants from performing the functions of the Chairman and members of the 3rd Defendants and an order restraining the 1st& 2nd Defendants from recognising the 4th – 8th Defendants as Chairman and Members of the 3rd Defendant.

    6. In their further amended joint statement of defence, the 1st – 8th defendants deny that the 4th – 8thdefendants are members of the 9th defendant. They aver that, at the material time of the appointment of the 4th – 8th defendants as chairman and members of 3rd defendants (as the case may be), they were not and still not registered members of the 9th defendant or any other political party for that matter. It is stated in their pleadings that they are men of honour and integrity who are eminently qualified to be appointed into the respective offices they hold in the 3rd defendant and as such, their appointments remain proper, valid and lawful. The relevant facts in this regard are contained in paragraphs 7, 8, 9 and 12 of the further amended joint statement of defence, reproduced hereunder:

    7.The Defendants admit paragraph 6 of the Claim to the extent that the 4th Defendant is the Chairman of Kogi State Independent Electoral Commission (KOSIEC) and that he lives in Lokoja, Kogi State within the jurisdiction of this Honourable Court. All other averments in the said paragraph are denied and the Claimant is put to the strictest proof.

    8. The Defendants admit paragraph 7 of the Claim to the extent that the 5th – 8th Defendants are members of the 3rd Defendant and that they were appointed by the 1st Defendant. All other averments in the said paragraph are denied and the Claimant is put to the strictest proof.

    9.The Defendants admit paragraph 8 of the Claim to the extent that the 9th Defendant is a registered political party in Nigeria and had the right to sponsor candidates for the just concluded Local Government Election in Kogi State. All other averments in the said paragraph are denied and the Claimant is put to the strictest proof.  

    7. Similarly, the 9th defendant, in its statement of defence avers that the appointment of the 4th- 8th defendants is legal, proper and not in contravention of any law whatsoever. (See paragraph 7 of the 9th defendant’s statement of defence). The 4th – 8th defendants are also described in paragraph 8 of the 9th defendant’s statement of defence as “honest and respectable persons of high integrity who can be trusted to conduct a credible, free and fair election for Kogi state”. (Par. 8)

  • 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)