SUNDAY AZOGOR V. THE STATE (2018)

Background

Sunday Azogor was prosecuted before the High Court of Ogun State in connection with alleged conspiracy to commit armed robbery, armed robbery, and unlawful possession of firearms. He was initially arraigned on a five-count charge under the Robbery and Firearms (Special Provisions) Act, 2004, and pleaded not guilty to the counts that were read and explained to him in pidgin English. The case was later transferred from Agbelu J. to Olugbemi J. because the trial had not commenced after several adjournments. Before Olugbemi J., the first four counts were read to the appellant and pleas of not guilty were recorded. However, count five was not read and no plea was taken in respect of it.

Subsequently, the prosecution applied to amend the charge by adding a sixth count alleging unlawful possession of firearms. The application was granted and an amended six-count charge was filed. Despite the amendment, the trial court did not call upon Azogor to plead to the amended charge, including the newly added firearms count. The trial nevertheless proceeded. The appellant was acquitted on counts one to five but convicted on count six and sentenced to fourteen years’ imprisonment. The Court of Appeal affirmed the conviction, leading to the further appeal to the Supreme Court.

Issues

1. Whether the trial, conviction, and sentence were valid in view of the failure of the trial court to comply with the mandatory arraignment requirements under section 215 of the Criminal Procedure Law of Ogun State.
2. Whether the Court of Appeal was correct to affirm the conviction despite the alleged failure of the prosecution to prove the essential ingredients of the offence beyond reasonable doubt.
3. Whether the respondent’s preliminary objection, challenging the competence of the appeal on procedural and jurisdictional grounds, should be upheld.

Ratio Decidendi

The Supreme Court held that a valid arraignment requires three cumulative steps: the accused must be placed before the court unfettered unless otherwise ordered; the charge must be read and explained to him in a language he understands, to the satisfaction of the court; and he must be called upon to plead to the charge. These requirements are mandatory, not directory. Failure to comply with any of them renders the entire criminal trial a nullity.

The Court further held that where a charge is amended under section 162 or section 163 of the Criminal Procedure Law, section 164 becomes mandatory. The court must immediately call upon the accused to plead to the new or altered charge and to state whether he is ready for trial. An amended charge is treated, for procedural purposes, as having been filed in its amended form. Consequently, the plea previously taken to the original charge cannot substitute for a plea to the amended charge.

The respondent’s reliance on provisions permitting conviction for a lesser offence was rejected. Those provisions concern the power of a court after evidence has been received and a conviction is being considered. They cannot cure the fundamental pre-trial failure to arraign the accused on the charge for which he was convicted.

Court Findings

The Supreme Court found that Azogor was not properly arraigned on the six-count amended charge. In particular, he was never called upon to plead to count six, the count on which he was convicted. The record also showed that count five had not been read and explained to him before the amendment. The trial therefore violated sections 215 and 164 of the Criminal Procedure Law and the constitutional guarantee of fair hearing under section 36 of the 1999 Constitution.

The Court described the proceedings and judgments of both the trial High Court and the Court of Appeal as null and void. A nullity is treated in law as though it never existed, although it is advisable to obtain an order formally setting aside the impugned judgment so that the record accurately reflects its status.

The Court also considered its remedial powers under section 22 of the Supreme Court Act, read with section 26. In an appropriate case, the Supreme Court may quash a conviction, enter an acquittal, or order a retrial. Ordinarily, the invalidity of the trial could have resulted in an order for retrial. However, the Court took account of the exceptional circumstances: Azogor had been in custody since 2004, approximately fourteen years, and had not been convicted of armed robbery. The interests of justice and equity therefore did not justify exposing him to another trial.

Conclusion

The appeal was allowed. The conviction and sentence for unlawful possession of firearms were set aside, as were the judgments of the trial court and the Court of Appeal. Sunday Azogor was acquitted and discharged and ordered to be released from custody immediately. The preliminary objection was not considered because the finding that the trial was a nullity effectively disposed of the appeal.

Significance

This decision reinforces the central importance of proper arraignment in Nigerian criminal procedure. It confirms that an accused person must know precisely the charge he is required to answer and must personally enter a plea to every count, especially where the charge has been amended. Courts cannot rely on evidence received during an otherwise defective proceeding, nor can appellate powers concerning lesser offences cure the absence of a valid plea. The decision also illustrates the Supreme Court’s broad statutory power to fashion an appropriate remedy in a criminal appeal. Although a retrial may ordinarily follow a null trial, prolonged incarceration and the demands of substantial justice may justify an acquittal and discharge instead.