⦿ CASE SUMMARY OF:
Sunday Kajubo v. The State (1988) – SC
Arraignment of a suspect;
Stating to the accused the offence he is charged;
Ordering a new criminal trial;
(1988) NWLR (Pt.73)721;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– H. A. Lardner, S.A.N
* FOR THE RESPONDENT
– A.N. Kesington
The Appellant, Sunday Kajubo was tried by Oshodi, J., of the High Court of Lagos State, Ikeja Judicial Division on a two-count charge of robbery punishable under section 402(2)(a) of the Criminal Code Law, (Cap. 31), Laws of Lagos State. He was found guilty and sentenced to death. His appeal against the conviction and sentence to the Court of Appeal, Lagos Division was also dismissed. He has now further appealed to this Court.
Brief of arguments were filed and exchanged for and against the only ground of appeal in which the competence of the trial was attacked. It reads as follows: “The trial, conviction and sentence passed on the appellant by the learned trial judge are a nullity because the accused was not arraigned-in accordance with the mandatory provisions of section 215 of the Criminal Procedure Law, Cap 32, Laws of Lagos State”.
Are the trial, conviction and sentence passed on the appellant a nullity in view of the omission to comply with the express provisions of section 215 of the Criminal Procedure Law, Cap 32, the omission being to state to the accused the offence for which he was charged and to explain it to him?
⦿ HOLDING & RATIO DECIDENDI
The Supreme Court held in favour of the Appellant, that the trial was a nullity for failure to comply with the criminal procedure code; in addition, it ordered a fresh trial.
i. A strict compliance with a mandatory statutory requirement relating to the procedure in a criminal trial is a pre-requisite of a valid trial, and where a trial judge proceeded to try the accused without strictly complying with the provisions of section 215 of the Criminal Procedure Law and section 33(6)(a) of the 1979 Constitution, the trial would be declared a nullity by an appeal court.
ii. It is common knowledge that this Court is a superior court of record, in fact the highest superior Court. Since the whole trial has been declared a nullity, which in short means that the appellant has never been tried, the relevant and appropriate order to make in the circumstance, taking the evidence, the gravity of the offence and the interest of justice into consideration, is the one for a fresh trial of the appellant. By the power conferred on this Court by section 33(9) of the 1979 Constitution, it is hereby ordered that the case be remitted to the High Court of Lagos State for a fresh trial of the appellant by another judge of that court.
Supreme Court Act No. 12 of 1960;
Section 33(6)(a) of the 1979 Constitution;
Section 33(9) of the 1979 Constitution;
⦿ SOME PROVISIONS
Section 215 of the Criminal Procedure Law (Cap 32) provides as follows: “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.”
Section 33(9) of the 1979 Constitution: “No person who shows that he has been tried by any court of competent jurisdiction for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.”
Section 32(3) of the Constitution 1979: “Any person who is arrested or detained shall be informed in writing within 24 hours (and in a language he understands) of the facts and grounds of his arrest or detention”.
Section 26(2) of the Supreme Court Act No. 12 of 1960 prescribes: “Subject to the special provisions of this Act, the Supreme Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered or order the appellant to be retried by a Court of competent jurisdiction”.
Also Section 30 of the Supreme Court Act No. 12 of 1960 empowered this Court on the hearing of an appeal “to order the case to be retried by a Court of competent jurisdiction”.
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
For a valid and proper arraignment of an accused person, the following conditions as contained in the section mentioned (supra), must be satisfied:
1. He shall be placed before the court unfettered unless the court shall see cause to otherwise order;
2. 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
3. He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in section 100 of the Criminal Procedure Law).
Failure to comply with any of these conditions will render the whole trial a nullity. – WALI, J.S.C. Kajubo v. The State (1988)
An arraignment consists of charging the accused and reading over and explaining the charge to him to the satisfaction of the court, followed by taking his plea. – WALI, J.S.C. Kajubo v. The State (1988)
The power to order a new trial or a fresh trial by the Supreme Court can only arise if there has been a transfer to it, of the complete jurisdiction formerly vested in the West African Court of Appeal or by some specific enactment conferring that power. There has been no transfer of such jurisdiction. The provisions contained in Part IV of the Act states the powers of the Court in relation to criminal appeal before it and does not contain a provision, either express or implied, of making an order of a new trial where the appeal is allowed upon the ground that the proceedings in the trial court are declared a nullity. – WALI, J.S.C. Kajubo v. The State (1988)
A trial on an information starts with arraignment. – Oputa, J.S.C. Kajubo v. The State (1988)
Now arraignment is ad rationem ponere; it is calling an accused person to reckoning. Now how can anyone be called to reckoning if he does not know or does not fully understand the allegations being made against him? It is a notorious fact that English, the language of the Court, the language in which charges and informations are drafted, is not the mother tongue of Nigerians. It is also correct that most Nigerians are illiterate in English and that even those of them who are literate may not easily follow and comprehend the language of the Court. For these reasons, our Criminal jurisprudence and our 1979 Constitution considered it necessary that for there to be a proper arraignment:
(i) The accused person shall be present in Court.
(ii) The charge or information shall be read over to him in a language he understands.
(iii) The charge or information after being read over in such language should then be explained to him avoiding as much as possible the use of technical expressions. This explanation should acquaint the accused with the essential ingredients of the offence charged and with the factual situation resulting in and giving rise to the offence charged.
(iv) To make assurance doubly sure the trial judge should also satisfy himself that the explanation of the offence charged was adequate and that the accused understands what he is standing trial for. – Oputa, J.S.C. Kajubo v. The State (1988)
The learned Director of Public Prosecutions Lagos State (A.N. Kesington) as an officer of court and an impartial minister in the sacred temple of justice readily, in his Brief, conceded that the trial of the Appellant was a nullity. He also conceded that the appeal judgment of the Court of Appeal, Lagos Division (coram Ademola, Nnaemeka-Agu and Uthman Mohammed, JJ.C.A.) was also a nullity. This is how it should be. To admit the obvious does save time. It also shows maturity. – Oputa, J.S.C. Kajubo v. The State (1988)
It was further argued that the Appellant had been in prison custody since his arrest in 1980 and his invalid arraignment on the 25th day of August 1981. I am sorry for the length of time the Appellant had been in prison custody. However, a Court of law should not only temper justice with mercy but what is sometimes vitally important it should also temper mercy with justice. And this is a case calling for mercy to be tempered with justice. The natural leaning of our minds may be in favour of and in sympathy with Appellant and we may in like manner be thus tempted to sympathies with any prisoner in the position of the present Appellant. But one has to sound a note of serious warning against giving way too easily to mere formal objections on behalf of accused persons. Such extreme facility may constitute a great blemish on the judicial process, owing to which more offenders may escape than by the manifestation of their innocence. The danger here is that by such “leniency” we (the Courts) may imperceptibly loosen the bands of society, which is kept together by the hope of reward, and the fear of punishment. – Oputa, J.S.C. Kajubo v. The State (1988)
They also show that the expressions “trial”, “new trial”, “trial de novo”, “retrial”, “fresh hearing”, “trial a second time” have been freely used in these judgments. This suggests that these expressions are inter-changeable as they relate to the same concept-that is, finding out by due examination of witnesses the truth of a point in issue or a question in controversy where-upon judgment may be given. Call it any name and it will make no difference for a rose by any other name smells equally sweet. – Oputa, J.S.C. Kajubo v. The State (1988)
A trial may be declared a nullity on many grounds:
(i) The charge itself may be incurably defective as was the case in Okoro’s case supra.
(ii) The arraignment may be irregular null and void as happened in the case now on appeal.
(iii) The trial Court may have no jurisdiction to try the case as in R v. Shodipo 12 W.A.C.A. 374 or Oruche v. C.O.P. (1963) 1 All N.L.R. 262.
(iv) The trial may be null and void as a result of a serious error or blunder committed by the trial Court as we [saw] done in Adisa’s case supra where there was a total failure to ask the appellant to plead to the amended charge. – Oputa, J.S.C. Kajubo v. The State (1988)