"In view of the fundamental nature of issue one in the Appellant's brief of argument, which is capable of disposing of the appeal, I shall deal exclusively with the issue raised by both parties which is on the procedure of arraignment and taking of plea by Appellant. The contention of the Appellant's counsel is that not only were the provisions of Section 215 of the Criminal Procedure Law of Ebonyi State not complied with but also that of Section 36(6)(a) of the Constitution. This case is peculiar in that there is no contention between the parties regarding whether the standard requirements of a valid arraignment as highlighted in Section 215 reproduced later in this judgment was met, but the matter here hinges on the fact that upon the conclusion of evidence, parties filed their respective final written addresses and the Court adjourned to 12th of May 2017 for Judgment. On the adjourned date, that is the 12th of May, 2017, the Court could not find in the record that the Appellant took his plea in the charge even though he insisted he had taken his plea and the Court clerk also insisted that the charge was read to the Appellant and he duly took his plea. In view of the development, the trial Court ordered that his plea should be re-taken. The charge was read to the Appellant and he took his plea. The trial Court immediately after the Appellant re- took his plea delivered judgment that same day. Therefore, the concern here is the question whether failure of the Appellant to take his plea at the beginning of trial amounts to non compliance with the mandatory provision of Section 215 of the Criminal Procedure Law, even though eventually taken on the day judgment was delivered. I have to say here that there was nothing in the trial Courts' record to show that the Appellant earlier took his plea on the one count charge. The trial Court stated thus at page 64 of the record: "The Court however after final addresses of the parties looked through its record and did not find a record evidencing that the accused person took his plea in this charge and before judgment asked the clerk of Court to read the charge to the accused person. Same was read and the accused person pleaded not guilty to the charge." The Respondent counsel argued that the record of the trial Court shows that the Appellant was represented by counsel during the hearing at the trial Court, and in view of that, the fact of taking of plea by the Court ought to be presumed in favour of regularity. The starting point in my view is whether or not a trial conducted in this case without the plea having been taken is a nullity ab initio. I am afraid I have to answer that question in the affirmative. See KAJUBO v. THE STATE (1988) 1 NWLR Pt. 73 Pg. 721, KALU v. THE STATE (1998)13 NWLR Pt. 583 Pg. 531; OGUNYE v. THE STATE (1999) 5 NWLR Pt. 604 Pg. 548; UDEH v. THE STATE (1999) 7 NWLR Pt. 609 Pg. 1 at 22; OLABODE v. THE STATE (2009) 5 SCNJ 98; AUDU YUSUF v. THE STATE (2011) 7 SCNJ 136; TORRI v. NATIONAL PARK SERVICE (2011) 7 SCNJ 17. In MADU v. THE STATE (2012) 6 SCNJ Pg. 129; (2012) 15 NWLR Pt. 1329 Pg. 405 at 439, the Supreme Court held that the co-existing requirements of a valid arraignment are: (a) that the accused must be placed before the Court unfettered unless the Court sees cause to otherwise order (b) the charge and information must be read over and explained to the accused in the language he understands to the satisfaction of the Court by the registrar of the Court (c) the accused must be called upon to plead instantly thereto (d) the plea of the accused must be instantly recorded by the Judge. Where as in the instant case, the foregoing steps were not taken before commencement of proceedings, the proceeding is a nullity. Nothing can save it. On the law of presumption of regularity this Court stated in JEREMIAH JOSEPH v. THE STATE (2013) LPELR-22604(CA) Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A ( P. 30, paras. B-E ) as follows:"For the presumption of regularity referred to by the Counsel to the Respondent to come into play, there must be evidence on record that the trial Court at least took some steps in the process of arraignment. Where this occurs, then compliance with other steps can be presumed - Peter Vs State (1997) 12 NWLR (Pt 531) 1. Where there is no such evidence, the presumption cannot come into play - Olowoyo Vs State supra at page 371."(Emphasis mine) I understand the Appellant's counsel's sentiment. I have perused the record severally; there is nothing in relation to arraignment of the Appellant until the 12/5/17 when the Court was to deliver judgment. The law is that there must be something in the Court's record to show that there were steps taken in the process of arraignment. Yes, in IDEMUDIA V STATE (1999) 7 NWLR Pt.610 Pg. 202, Karibi-Whyte JSC at page 222 A - F observed: "...However, where there is counsel in the case defending an accused person, the taking of the plea by the Court it ought to be presumed in favour of regularity, namely that even if it was not stated on the record, the charge had been read and explained to the accused on arraignment before the plea was taken. Omnia praesumuntur rite es solemniter esse acta. Accordingly in the absence of proof to the contrary, the presumption prevails. See also Section 150(1) Evidence Act. It does not seem to me that the requirement that the judge should be satisfied that the charge has been read and explained to the accused is one which need to appear in the record and the non-appearance of which affects the justice of the case. It is good practice to so indicate. It is sufficient on the record as a whole if it could be gathered that the accused understood the nature of the charge..." From the above opinion of Karibi-Whyte JSC, it seems to me that where the plea of an Appellant is taken in the presence of his counsel, even though it is not recorded on the face of the record that the plea was read and explained to the Appellant, it will be presumed in favour of regularity as long as there is still something to show that the plea was taken or at least some steps were taken in the process of taking the plea. I strongly believe that it must show on the record that some steps were at least taken in the process of arraignment unlike the instant case where there was nothing to show that there were steps taken towards formal arraignment at the commencement of trial. In view of this, I disagree with the learned counsel to the Respondent on this point, there could not be presumption that the plea was properly taken when there was nothing to show that the Appellant took his plea at all. More so, it is trite that Court records are meant to guide the Court and Courts are bound only by its own record and no other oral statement from anybody can alter the contents of the Court record except where the Court discovers that there exist some clerical mistakes in its record or an error. This is obviously more than a clerical error. ?The law is incontrovertible in this respect, and the position of the law has always been that arraignment is sacrosanct in a criminal trial and that without a valid arraignment of the accused person, no trial in law would have commenced, and whatever trial was conducted would only be null and void ab initio. Both the Constitution of the Federal Republic of Nigeria by Section 36(6)(a), and Section 215 of the Criminal Procedure Law of Ebonyi State are applicable in the instant case. They both provide for the requirements of a valid arraignment. Section 215 of the Criminal Procedure Law of Ebonyi State states 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 find that he has not been duly served/therewith." Also Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria which is in pari materia with Section 33(6)(a)of the 1979 Constitution states:"36 (6) Every person who is charged with a criminal offence shall be entitled(a) to be informed promptly in the language that he understands and in detail of the nature of the offence." As I earlier said, arraignment is sacrosanct and it is the law that necessary steps to a valid arraignment are complied with in the interest of justice. The Courts do not have a choice but to comply and where compliance is not satisfied, it amounts to a flagrant disobedience of the statutory provision of Section 215 of the Criminal Procedure Law and Section 36 (6) (a) of the 1999 Constitution (as amended) earlier highlighted. The Supreme Court had this to say about compliance on the requirements of arraignment in GOLDEN DIBIE & ORS v. THE STATE (2007) LPELR-941(SC) per IKECHI FRANCIS OGBUAGU, J.S.C stated thus: "It is now firmly established in a string of decided authorities, that an arraignment, consists of charging the accused person and the reading over and explaining the charge to him, to the satisfaction of the Court after which his plea is taken. Subject to the provisions of Section 100 of the CPL, Section 215 of the CPL, is mandatory and not directory. The mandatory nature is further confirmed by Section 33(6)(a) of the 1979 Constitution now Section 36(6)(a) of the 1999 Constitution. The condition of a valid trial of an accused person were also stated and restated in the cases of Sanmabo v. The State (1967) NMLR 314; Eyorokoromo v. The State (1979) 6-9 S.C. 3; Josiah v. The State (1985) 1 NWLR (Pt. 1) 125; (1985) 1 S.C. 406; Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721 at 731, 734 -737;(1988) 3 SCNJ (Pt. 1) 1179; and Ebem v. The State (1990) 7 NWLR (Pt. 160) 113 at 118-119 C.A. just to mention but a few. Non-compliance with Section 215 of the CPL, will lead to an order for re-trial as the trial will be vitiated and rendered a nullity. My learned brother, Katsina-Alu, JSC, restated what amounts to a valid arraignment in the case of Idemudia v. The State (1999) 5 SCNJ 47 at 55; (1999) 7 NWLR (Pt. 610) 202. In the case of Sharfal v. The State (1992) 9 SCNJ. 1 at 6; (1992) 7 NWLR (Pt. 255) 510, the recording of the plea of accused persons in a charge containing more than one count and in adjourned trial, was emphasized. In the case of Francis Durwode v. The State (2000) 12 SCNJ 1 at 14-15; (2000) 12 SC 1; (2000) 15 NWLR (Pt. 691) 467, Onu, JSC, citing several other cases, stated that failure to comply with Section 33(6)(a) (now Section 36(6)(a) of the 1999 Constitution and Section 215 of the CPL, will not occasion a miscarriage of justice where an accused person had earlier made a statement to the Police (e.g. in English language) and once the trial Court was satisfied that the accused person understood the nature of the charge against him. See the cases of Ewe v. The State (1992) 6 NWLR (Pt. 246) 147;(1992) 7 SCNJ (Pt. 1) 15 at 17 - 18; and Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385 at 396; (1993) 6 SCNJ (Pt. 1) 73 at 76 - 77 per Olatawura, JSC, (the later, also cited and relied on in the appellants' briefs.) The need and importance of strictly complying with Section 215 CPL, is predicated on the principle of fair hearing. A fair hearing, it is settled, means a fair trial. Trial in a criminal case; is said to commence with an arraignment which in turn consists of the charging of the accused person or reading over the charge to the accused person and taking of his plea thereon. See the cases of Oyediran & Ors. v. The Republic (1967) NMLR 122 at 125; Isiaka Mohammed v. Kano N.A. (1968) 1 All NLR 424 and Asakitikpi v. The State (1993) 6 SCNJ. (Pt. 11) 201 at 207; (1993) 5 NWLR (Pt. 296) 641." ( Pp. 35-37, paras. B-D) Let me add here that taking of plea completes an arraignment process and it is envisaged that you only proceed to trial after the process of arraignment is completed. See the case of NWAFOR OKEGBU v. THE STATE (1979) 6-11 SC 1, where Aniagolu JSC stated thus: "It has long been established in this country, through a long line of cases, that the plea of an accused person must be taken pursuant to Section 215 before a trial of a charge or information commences and a fresh plea pursuant to Section 164(1) and (4), also taken where, in the course of trial, a charge or information is amended." The trial Court had relied heavily on the authority of ONAKOYA v. FRN (supra) and inferred that the accused person could take his plea before judgment is delivered in this charge based on the evidence already before the Court. From the facts of that case, there were two or more counts lumped up in a charge, the charge containing various counts in it was read and explained to the Appellant at commencement and he took his plea to the charge as read. That was a clear case of duplicity in a charge by the prosecution. Let us consider the facts and the law submitted for determination in ONAKOYA v. FRN (supra). The following statutory provisions were considered in the Appeal; Section 19 (1) (a), (b), and (c), Section 20 of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, No 18 of 1994 as amended and particularly Section 156 of the Criminal Procedure Act, Cap. 80 of the Laws of the Federation of Nigeria, 1990 which states as follows:156. For every distinct offence with which any person is accused there shall be a separate charge and every such charge shall be tried separately except in cases mentioned in Section 157 to 161 of this Act. The Appellant was charged with both approving the grant of the loan of Fourteen Million Naira (N14, 000, 000. 00) to Alhaji Gamiji Ibrahim and granting the loan. These are two distinctive offences under Section 19 (1) of Decree No. 18 of 1994. Although the charge also stated that the Appellant "committed an offence contrary to Sections 19 (1) (a), (b) and (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No 18 of 1994 as amended....", in effect the Appellant was said to have committed the two distinct offences under Paragraphs (a) (b) and (c) of Subsection 1 of Section 19. However the apex Court was not concerned with this aspect of the case because at no time did the Appellant complain about this particular duplicity. The Appellant's sole complaint was about the allegation of approving the grant and the granting of the loan in question. In cases of this nature, the guiding principle is whether the accused is misled, embarrassed, or prejudiced by the charge as framed. If he is misled by the charge then it follows that he is equally misled in his defence. And if he is misled in his defence, there must as a result be a failure or a miscarriage of justice. The Supreme Court held that although the charge is bad for duplicity, it is not fatal to the conviction of the Appellant who was not prejudiced in any way and no miscarriage or failure of justice is shown to have occurred bearing in mind the fact that he was convicted on one count only. A conviction will certainly not be quashed or a trial declared a nullity merely on the ground of patent duplicity in a charge unless a miscarriage or failure of justice has occurred thereby. There was nothing on the record which suggests that the Appellant was convicted for an offence for which he was not charged. In my humble view the facts are entirely different from the instant case where there is nothing in the entire record to show that the Appellant had taken his plea and was properly arraigned before the Court at the commencement of his trial. In the former, there was a proper arraignment though on a defective charge, the charge though bad for duplicity was read to the Appellant at commencement of trial and on the Court record that it was read. In other words he was promptly informed of why he was in Court which he understood clearly before trial commenced; he had been consistent in his defence on the alleged crime. On the other hand, the instant case is not on duplicity of charge or an inelegantly drafted charge. There was nothing on the Court's record to show that the charge was ever read to the Appellant and or understood by him at commencement of trial but until the tail end of the trial-after address. I therefore hold and draw a distinction between ONAKOYA v. FRN (supra) and the instant case and humbly say that the learned trial Judge was wrong to have relied on it in adopting the method used. It is always better to actually take the time to read these judgments rather than using incomplete information about a judgment to determine a jurisdictional issue. It is apt at this juncture to go back to the point about presumption of regularity made by the Respondent's counsel. In current times, the Honourable Law Lords have moved from a position of overturning judgments of criminal cases on technical grounds but would rather overturn a judgment for substantial error of procedure or law by the trial Court. For example in GOZIE OKEKE v. THE STATE (2003) 2 SCNJ 199 the apex Court refused to set aside a judgment of the trial Court on a complaint that even though the accused understood the language of the charge (English), it was not interpreted in his native language. Also where the records did not specifically state that the judge was satisfied that the accused understood the charge after it was read to him, the Supreme Court held that such omission on the face of the record was not sufficient to vitiate the trial. See AKPAN V. THE STATE (2002) 5 SCNJ 301; AMALA V THE STATE (2004) 6SCNJ 79. In fact in AMALA V THE STATE (supra), the Supreme Court went further to state that it is the duty of the party who has a complaint concerning this to show that the requirement was not complied with by evidence. (I think this would probably be on appeal with affidavit evidence) Also in OLABODE V THE STATE (supra), the Supreme Court held that so long as there was substantial compliance with Section 215 of the Criminal Procedure Act, the appellate Court would be entitled to activate the presumption that the trial Judge was satisfied that the accused understood the charge before he pleaded to it. See also OMOKUWAJO V. FRN (2013) 3 SCNJ 384: The policy and principle of enthronement of substantial justice now is that where an accused is represented by learned counsel, any complaint of unorthodox procedure during arraignment is ignored so long as the arraignment itself substantially complies with the law. For the Court to consider any complaint, it must be one that touches on the jurisdiction of the Court to render the proceedings null and void. See ABDULLAHI IBRAHIM V. STATE (2013) 12 SCNJ 145. The main idea of plea taking in criminal trial must be understood properly in order to appreciate the procedures. The Supreme Court had this to say in NWAFOR OKEGBU v. THE STATE (supra) at page 61 per Aniagolu, JSC: "The whole purpose of plea in criminal trials must always be remembered and borne in mind. A person charged with an offence, upon being arraigned before the Court has either got to confess to the charge or to deny it by pleading (by word of mouth "ore tenus") at the bar the general issue of "Not Guilty"." Thus the whole procedure of arraignment, is a very important step being the initial stage in the prosecution of a person accused of committing a crime in a criminal trial. The Supreme Court further observed in IDEMUDIA v. STATE (SUPRA) at page 222 of the NWLR that: "There appears to be a fairly rigid and inflexible approach to the question of non-compliance with the enabling provisions for arraignment. It is conceded that the conditions have been designed and formulated for the protection of the accused and preservation of the constitutional rights of the citizen. Equally, the Courts should not ignore the nature of the rights protected and the preservation of the Courts in their solemn and sacred duty to do justice. There is clearly observable the distinction between a matter of procedure that affects the substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of the trial of the case. In the latter case, it will not affect the trial. It would seem to me that the mandatory provision of Section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with if there is evidence on the record to show that the accused understood the charge and was in no way misled by the absence of explanation ex facie. It is conceded that the subsequent validity of the procedure rests on the validity of the plea on arraignment..." Relying on the slew of cases so far and from the distinctions I gave above, I will have to disagree with the learned trial Judge on this point. The Court was wrong to have relied on the case of ONAKOYA v. FRN (supra) to draw such inference as the nature of that case is entirely different from the case at hand. It is a grave error on the part of the Court to omit such a sensitive aspect of trial in its record, knowing that it forms the fulcrum of a valid criminal trial. Also the fact that the Appellant said he took his plea when there is actually nothing on the record of the Court will not change anything because the Court is bound by its own record only. The constitutional requirement is to promptly inform the accused of the reason he was brought before the Court in an unambiguous way. Where that is not done it is a gross violation of the constitutional requirement of arraignment and this is improper. An improper arraignment invalidates a proper trial no matter how well conducted. I think I need to make a point here stemming from the provisions of the Administration of Criminal Justice Act 2015. In fact Section 217 of the Administration of Criminal Justice Act 2015 sets out the procedure for alteration of a charge and states in 217 (2) that where a charge has been altered, the Court shall proceed with the trial as if the new or altered charge had been the original charge. Section 219 provides of course that witnesses may be recalled by either side after a charge has been amended. Section 222 (1) states that where there has been material error which caused the accused to be misled in his defence, the charge must be recommenced on another charge. I decided to allude to these examples to show how important it is for the trial Court to be sure that the accused understood the content and nature of the charge in order to make appropriate plea and proceed to make defence to it. Before I conclude on this issue, it is important to cite the clear position of this Court on this point. This Court held in the case of JEREMIAH JOSEPH v. THE STATE (2013) LPELR-22604(CA): "The requirements for a valid arraignment are not merely cosmetic or mere semantics. They are provisions considered necessary to ensure that the accused defendant understands and appreciates what is being alleged against him, to which he is required to make a plea. The requirements cannot be waived, ignored or presumed. They are very important and mandatory and there must be clear evidence on the records that they were fully or substantially complied with. To underscore the inviolability of the requirements of a valid arraignment, the Courts have been very strict in their consideration of the question of non-compliance. Thus, it has been held that for an arraignment to be valid, it must be evident from the records of the Court that it took place before the commencement of trial and not at any other time in the course of trial and that where it is shown that it did not take place at the commencement of trial but at some other time in the course of the proceedings, it is invalid (emphasis supplied)- Barmo Vs State (2000) 1 NWLR (Pt 641) 424, Dada Vs State (2013) 2 NWLR (Pt.1337) 59." This position held by this Court is supported by the Supreme Court decision of UWAFOR OKEGBU v. THE STATE (supra); and in IDEMUDIA v. STATE (supra) Pg. 202 at 219 of the NWLR where the Court held thus: "A valid trial is posited on the fact of a valid arraignment. An arraignment as rationem ponere, that is calling on the accused to reckoning for the allegations of the offences against him. The laws of this country have made adequate provisions for the protection of the interest of the accused and the citizens in the proper administration of justice. Accordingly, the Court before whom an accused person is required to appear for reckoning in respect of allegations of offences, is required to observe certain constitutional requirements in Section 36(6)(a) and the provisions of Section 215 of the Criminal Procedure Law. "Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria provides that 'every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence." (emphasis supplied) I do not agree with the Respondent's counsel that taking of plea of the Appellant after final addresses but before judgment only amounts to a mere irregularity acquiesced by the Appellant himself. The requirement cannot be waived, presumed or assumed. The violation of it is fatal. I resolve this issue in favour of the Appellant. It is unfortunate that the learned trial Judge against all decided authorities decided to trivialize this important point. Only one prosecution witness was called and the Appellant himself in defence had given evidence after the Appellant had been in custody for 5 years. After discovering the fundamental flaw in the procedure of the Court, the best thing was to have asked the prosecution to call back the sole witness who was the Investigative Police Officer (IPO). Enough said. The next step is the appropriate order to make. In YAHAYA v. THE STATE (2002) 2 SCNJ 1, without taking the plea of the Appellant, the hearing in the case for the offence of murder against him commenced and judgment was given against him ten years after his arrest. The Appellant raised the issue of no plea at arraignment for the first time at the Supreme Court. The apex Court Coram Uwais CJN; Ogundare; Ogwuegbu, Onu and Ejiwunmi JSC unanimously held that since there had been no trial because the purported trial whatsoever was vitiated ab initio, the order to be made was for a proper trial to take place and not a retrial. The Supreme Court held that a retrial would be ordered only where there has in fact been a previous trial that was properly conducted but in law is vitiated by reason of an error in law or procedure. However, in recent times, the orders made in such circumstances are for a retrial of the charge. See MADU v. THE STATE (2012) 6 SCNJ 1; OMOSAYE v. THE STATE (2014) LPELR 22059(SC). I am bound by the doctrine of stare decisis to make a similar order in the circumstances of this case and to follow more recent authorities of the Supreme Court. Having found that the trial has been rendered vitiated ab initio and is therefore null and void; it will not serve any useful purpose and will be academic to consider the remaining two (2) issues for determination formulated in the Appellant's brief. Apart from that, any opinion given by this Court would prejudice the proceedings at the trial Court. The entire proceeding in HSK/15C/2014 presided over by Hon. Justice I.P Chima Is declared null and void and order of retrial by way of a proper trial is hereby made."

Per OGUNWUMIJU, J.C.A. OKEKE v. STATE CITATION: (2018) LPELR-45053(CA)