➥ CASE SUMMARY OF:
Mrs E.A Lufadeju v. Evangelist Bayo Johnson (30th March 2007, SC.247/2001)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Arraignment;
Magistrate jurisdiction;
Remand by magistrate.
➥ CASE FACT/HISTORY
This appeal emanated and got its root from the proceedings in the Chief Magistrate Court of Lagos State, where the respondent and some others were taken on the allegation of committing the offence of conspiracy to commit treason and actually committing treasonable felony. The respondent with the others were arrested and detained at the Police Criminal Investigation Department, CID, Alagbon Lagos on 12th of January 1997. The respondent sought bail, but the appellant said she had no jurisdiction to entertain the application for bail, and remanded the respondent in custody. As a result of this refusal of bail and the remand in custody, the respondent sought a judicial review in the High Court. The learned judge ruled that by virtue of Section 236 (3) of the Criminal Procedure Law, the 1st appellant was authorized to remand persons who may have been arrested for indictable offence.
Dissatisfied with the decision, the respondent appealed to the Court of Appeal, who in turn allowed the appeal.
The respondents in that appeal have now appealed to this court, having been aggrieved by the decision of the Court of Appeal.
➥ ISSUE(S)
I. Whether the Court of Appeal was right to hold that the proceedings before the 1st Appellant on the 12th of March, 1997 was an arraignment proceeding as opposed to a remand proceeding and that consequently once the 1st Appellant lacked jurisdiction to try the respondent for treasonable felony she could not remand him under Section 236 (3) of the Criminal Procedure Law?
II. Whether the Court of Appeal was right to hold that Section 236 (3) of the Criminal Procedure Law Cap 32 Volume 2 Laws of Lagos State, 1994 is in direct conflict with Section 32 of the 1979 Constitution of the Federal Republic of Nigeria (now Section 35 of the 1999 Constitution) and other relevant constitutional provisions and whether the above mentioned Section 236 (3) of the CPL is in effect unconstitutional?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE RESPONDENTS WERE NOT ARRAIGNED
‘It is instructive to note that the submissions of counsel were not recorded, as is apparent in the supra proceedings (which in my view is missing), for we can only surmise that the submissions had something to do with bail, .in view of the content of paragraphs (1) and (2) supra. As far as the nature of the proceedings or the actual purport of what transpired on that 12TH of March, 1991 is concerned, I think it fell within the ambit of the procedure prescribed by Section 78 (b) of the Criminal Procedure Law supra, in that the accused/respondent was taken before the Magistrate Court with a charge in a charge sheet that contained all particulars and the offence allegedly committed by him. This was read over to him and I suppose it was for him to know the reason for his remand in custody. Even though Section 78 (b) of the Criminal Procedure Law supra is silent about reading the charge out to the accused/respondent, the very fact that it was read to him does not mean he was arraigned or charged to court under Section 215 of the Criminal Procedure Law supra. It is instructive to note that the provision of this later section necessitates the taking of plea, and in this proceedings plea was not taken, as is clearly and specifically stated in the reproduced proceedings of above. Perharps I should state here that the offence the accused/respondent was alleged to have committed was that of a treasonable felony which the 1st appellant had no jurisdiction to try/and in fact she said so in her ruling, so there was no way how it can be said there was an arraignment, since she had no power to try the accused/respondent of the said treasonable offence, which only a High Court can try.’
‘In the instant case both parties agree that though the respondent was charged before the magistrate court, he never pleaded to the charge before the order of remand was made by the learned Chief Magistrate, 1st appellant. In Asakitikpi v The State (1993) 5 NWLR, (pt.296)641 at 652 this court held that: “Trial in a criminal case is said to commence with arraignment which in turn consists of the charging of the accused or reading over the charge to the accused and taking his plea thereon”. I therefore hold the view that the lower court was in error in holding that the proceeding before the magistrate court in which the respondent never pleaded to the charge before that court constitutes an arraignment of the respondent.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THERE IS NO CONFLICT WITH THE CONSTITUTION
‘At the stage at which the – respondent applied to enforce, his fundamental right, it is not feasible to calculate or guess the time within which investigations will be completed, and hearing (whether fair or otherwise) will commence. What is reasonable time is subjective, and since this is dependent on the completion of investigations; all factors will be taken into consideration. Learned counsel for the respondent is talking about a detention of accuseds by Magistrates for periods not less than 7 years. It is instructive to note that the appellant was remanded in custody by the Magistrate on 12/3/97, and he filed his motion for enforcement of fundamental rights on 3/6/97, a period of less than 3 months. I am not unmindful that the respondent’s verifying affidavit in the High Court says he was arrested on 12th January, 1997 and detained in police custody. See paragraphs (4) and (5) of the said affidavit. I therefore disagree with the submission of learned counsel that there has been any infraction. On the presumption of innocence as laid down in Section 33 (5) of the supra Constitution, I fail to see anything in the record before us that there was a contrary presumption in respect of the appellant. The appellant and his co-accuseds were taken before the Magistrate Court for the purpose of lawful remand in custody; and that was exactly what the Chief Magistrate did. She did not ask him of whether he was guilty or not, so the issue of his innocence didn’t come to play at that stage of the proceedings. I need not go into the argument proffered in-respect of Section 33 (6) of the 1979 Constitution supra by learned counsel for the respondent as they have been adequately covered by my reasoning above. Indeed I don’t think I need to belabour this issue any further, for it will be tantamount to over flogging it.’]
.
.
.
✓ DECISION:
In the final analysis this appeal succeeds in its entirety. The judgment of the court of Appeal, Lagos Division is hereby set aside. The order of Chief Magistrate and the Ruling of the High Court are affirmed. I assess costs at N10,000.00 in favour of the appellants against the respondent.‘’
➥ FURTHER DICTA:
⦿ WHAT IS REMAND?
What is remand? It means to send to prison or send back to prison from a court of law to be tried later after further inquiries have been made, often in the phrase “remanded in custody”. It also means to recommit accused on trial to custody after a preliminary examination. Although remand proceedings is not set out in the Criminal Procedure Law, it is known that the charge is not read to the accused and therefore no plea taken. That makes the difference between remand and arraignment. Once an accused person is brought under section 236(3) for remand, the magistrate orders his remand without arraignment. By the subsection, the magistrate can do one of two things. He can remand the accused in prison. He can also grant bail pending arraignment. — Niki Tobi JSC.
⦿ BECAUSE A MAGISTRATE IS WRONG IN THE APPLICATION OF THE LAW DOES NOT MEAN DAMAGES SHOULD BE SUED AGAINST THE MAGISTRATE ON APPEAL
With respect, this is unnecessary hair splitting. It sounds too technical and abstract. Should the slip result in condemning the 1st appellant to damages, I ask? Should a slip of a magistrate not be corrected by the system of appeal, I ask again? When did it become the law that when a magistrate commits an error in procedure, the remedy available to the aggrieved party is to sue for damages? I must express my discomfort when a magistrate is sued for damages in the performance of judicial duties. I see in this appeal such a situation. The 1st appellant performed her duties as a magistrate in the administration of criminal justice and I feel bad that she was sued in her person. While I agree or concede that there are instances where a magistrate could be sued, I do not agree that this is one of such instances. I do not see any abuse of judicial power on the part of the 1st appellant. A magistrate could be wrong in the interpretation of the enabling laws but that should not give rise to an action in damages. The proper step to take is appeal against the decision of the magistrate and not to file an action on damages. — Niki Tobi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Aloma Mariam Mukhtar, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Prof. Yemi Osinbajo,
Mr. O. Olayinka.
⦿ FOR THE RESPONDENT(S)
Norison I. Quakers Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ REQUIREMENTS OF A VALID ARRAIGNMENT
The requirements of a valid arraignment are set out by Ogwuegbu JSC in the case of Tobby v. State (2001) 10 NWLR Part 720 page 23 at page 33 as follows:- “(a) the accused must be placed before the court unfettered unless the court shall see cause otherwise to order; (b) the charge or information must be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court; (c) It must be read and explained to him in the language he understands; (d) the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that lie has in fact not been duly served therewith. The above stated requirement of the law are mandatory and must therefore be strictly complied with in all criminal trials. As they have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest as such a trial, failure to satisfy; any of them will render the whole trial defective and null and void”.
➥ REFERENCED (OTHERS)
