LEGAL IDEAS FORUM

Ngbede v. Nigerian Army: On whether failure of court to record plea of two or several co-accused persons separately is fatal. An insight into the decision of the Court of Appeal therein.

Citation: (2021) 3 NWLR PT. 1762 AT 1.
Courtesy: Moruff O. Balogun Esq.

Summary of fact:
The appellant was of the Nigerian Army. He was alleged to have been involved in acts contrary to the Armed Forces Act, Cap A20, Laws of the Federation of Nigeria, 2004. The appellant and 10 other personnel of the Nigerian Army were charged before a general court martial for criminal conspiracy to commit mutiny, mutiny, attempt to commit murder, disobedience to particular order, insubordinate behavior, false accusation all contrary to various sections of the Armed Forces Act, and punishable under that Act or the Penal Code.

The arraignment of the appellant and his co-accused persons ,the six counts of the charge, which did not state their individual names was read to them. The appellant and his co-accused persons individually pleaded not guilty to count 1, but collectively pleaded not guilty to counts 2 -6.

At the trial, PW2, PW3, PW4 and PW10 adduced evidence showing that the appellant and his co-accused persons were involved in the offence of conspiracy for which they were charged.

The appellant was convicted and sentenced to imprisonment for some of the alleged offences and to death in one of them.

Aggrieved, the appellant appealed to the Court of Appeal. After he had appealed, the army council commuted the Sentences imposed on him to ten years imprisonment.
At the Court of Appeal, the appellant challenged the jurisdiction of the general court martial to try him and convict him. He argued that he was not properly arraigned, that the charge was defective because his name was not specifically mentioned in it, and that the judgment of the general court martial was not supported by evidence and therefore perverse.

In response, the respondent raised a preliminary objection to the appeal on the ground that the notice of appeal was filed before the decision of the court martial was reviewed by army council. The respondent also opposed the appeal on its merits. The respondent, however, did not move its preliminary objection to the appeal.

In determining the appeal, the Court of Appeal considered sections 114 and 183 of the Armed Forces Act, which read:
114(1) : A person subject to service law under this Act who commits any other civil offence, whether or not listed under this Act or committed in Nigeria or elsewhere is guilty of an offence under this section.

(2): For the purposes of subsection (1) of this section, ‘civil offence’ means an act or omission punishable as an offence under the penal provisions of any law enacted in or applicable to Nigeria, and in this Act corresponding civil offence means the civil offence the commission of which constitutes the offence under this section.

(3) A person convicted by a court-martial for an offence under this section is liable –

(a): if the corresponding civil offence is treason or murder, to suffer death; and
(b): in any other case, to suffer any punishment or punishments which a civil court could award for the corresponding civil offence, if committed in Nigeria being a punishment or punishments, less than the maximum punishment, which a civil court could so award, as is so provided, so however that where a civil court may not so award imprisonment, a person so convicted shall be liable to suffer such punishment, less than cashiering in the case of an officer or discharge with ignominy in the case of a soldier, rating or aircraftman, as is provided.

(4): Without prejudice to the provisions of this Act, a person shall not be charged with an offence under this section committed in Nigeria if the corresponding civil offence is treason, murder, manslaughter, or treasonable felony.

(5): Where the corresponding civil offence is murder or manslaughter, an offence under this section shall be deemed, for the purposes of subsection (4) of this section, to have been committed at the place of the commission of the, act or occurrence of the neglect which caused the death, irrespective of the place of the death.

  1. Subject to the following provisions of this Part, an appeal shall lie from decisions of a court-martial to the Court of Appeal with the leave of the Court of Appeal:
    Provided that, an appeal as aforesaid shall lie as of right without the leave of the Court of Appeal from any decision of a court-martial involving a sentence of death.

Held: Unanimously dismissing the appeal.

The following issues were raised and determined by the Court of Appeal.

On Whether failure of court to record plea of two or several co-accused persons separately is fatal-
Where two or several co-accused persons are arraigned, it is preferable for the trial judge to record the plea of each accused person separately in the direct speech. However, failure to do so cannot be fatal to their plea so long as the charge is read over and explained to them, whether jointly or separately, and they understood the same and each of them individually entered his plea thereto. It does not matter whether the court’s record which describes the event is written in direct or reported speech.

On requirements of valid arraignment-
The essential requirements of valid arraignment are:
the accused person must be placed before the court unfettered unless the court sees cause otherwise to order.
the charge or information shall be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court; and
the accused person shall then be called upon to plead instantly thereto unless there exist any valid reason to do otherwise such as an objection to want of service where the accused person is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith.

In the instant case, appellant’s complaints about improper or illegal taking of his plea were grossly unfounded. The appellant and his counsel at the general court martial did not at any time complain about the manner in which the plea was taken.
Further, the plea of the appellant was properly taken as it substantially complied with the law.

On whether failure to record that “the charge was read and fully explained to the accused to the satisfaction of the court” renders trial a nullity-
It is good practice for the trial court to record that “the charge was read and fully explained to the accused to the satisfaction of the court” but the failure to so record will not render the trial a nullity. This is because it is not a requirement that the court must record that the charge was read and explained to the accused to the satisfaction of the court before proceeding to record his plea thereto.
The provision of section 215 of the Criminal Procedure Law should not be stretched to a point of absurdity by reading into it that the Judge must record that the charge was explained to the accused to his satisfaction before taking his plea. It will be impeaching the integrity of the Judge to do that, as no Judge will take the plea of an accused if he is not satisfied that the charge was read and explained to his satisfaction.

On duty on accused person to inform court he does not understand language in which trial is being conducted-
It is not the duty of the court to seek to know whether or not the accused person understands the language in which the trial is being conducted.
It is the duty of the accused person or his counsel to inform the court that the accused person does not understand the language in which the trial is conducted, otherwise it will be assumed that he has no cause of complaint. In other words, the fact that the accused person does not understand the language by which the trial is being conducted is a fact well known to the accused person and it is for him or his counsel to take the initiative to notify the court at the earliest opportunity or as soon as the situation has arisen. If the accused person does not claim the right at the proper time he may not be able to have valid complaint afterwards, for example on appeal. In the instant case, it was not the appellant’s case that he did not understand English language by which the plea was taken at the trial.

On duty on accused person or defendant who complains that charge is defective-
An accused person or a defendant to a criminal charge or information who complains that the charge is defective must show that the defect deprives the court or tribunal or the court martial of jurisdiction to try the offences contained in the charge or information levied against him. He must also show that he was misled by the defect or that the trial on the defective charge had occasioned a miscarriage of justice all bordering on the infringement of his right to fair hearing under the Constitution of Federal Republic of Nigeria. In the instant case, the appellant’s allegations of defect in the charge were not strong enough to vitiate the charge against the appellant and his co-accused persons as the appellant was validly tried on the charge before the court martial. Furthermore, the appellant was represented by legal practitioners who saw nothing wrong with the charge. The court martial had jurisdiction to try the appellant on the charge laid against the appellant and the counts against the appellant as contained in the charge before the court martial.

On whether accused person charged under wrong law can be convicted under right law-
Where an accused person is charged under a wrong law he can properly be convicted of the offence charged once there is a statute prohibiting the commission of such an offence. It is not every slight defect or omission in the charge that is fatal.

On what court looks at in determining issue of jurisdiction in criminal matters-
In criminal trials, the court or tribunal looks at the charge to determine its jurisdiction. It is the charge before the court that determines the jurisdiction of the court to entertain the matter and the charge.
This is so because it is the claim of the plaintiff which determines the jurisdiction of a court entertaining same.

On Importance of jurisdiction of court-
Jurisdiction is very pivotal to adjudication be it civil or criminal. No matter how well or brilliantly conducted, the proceedings of a court or tribunal or court martial is a nullity where there is no jurisdiction. So the issue of jurisdiction is always a live issue that cannot be ignored under any guise.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
07015421156.

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