Yes he can. Where the court can convict of the other offence, it may with the consent of the prosecution accept this plea and may proceed to convict the defendant on it. However, if the court rejects the plea and proceeds to try the defendant on the charge against him, but found him not guilty of that charge, it cannot convict him of that charge to which he has pleaded guilty. See section 219 Criminal Procedure Law, S.275 ACJA and R v. Kelly (1965)
Where an offender is to be prosecuted, he must attend court in order to answer to the charges brought against him from the date of arraignment till delivery of judgement. See S.266 ACJA
The following are parties whose presence is integral to the proper conclusion of his trial;
a. Defendant: He must be present in court throughout the whole proceedings- S.208 ACJL Lagos, S.266 ACJA. However, his presence may be dispensed with firstly, if he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable. Secondly, if he is of unsound mind. Lastly, where he is charged with an offense which carries a penalty not exceeding N10, 000 or imprisonment not exceeding 6 months or both. S.135 ACJA
b. The complainant; Where the complainant has due notice of the time and place of hearing and does not appear in court, the court shall dismiss the complaint unless the court receives reasonable excuse for the absence in which case, it can adjourn. S.351 ACJA, S.232 ACJL Lagos.
When a case is called and neither the prosecutor nor the defendant appears, the Court shall make such order as the Justice of the case requires. S.236 ACJL Lagos
Where a witness is absent from trial the court may take the following steps to compel his attendance;
a. Witness Summons; This is an order of the court directing a person named therein to appear before the court at a given time and date for the purpose of giving evidence. This order is made on the application of parties and service is effected personally on the witness and may be by substituted means when necessary. See S.177(1) ACJL Lagos, S.241(1) ACJA
b. Subpoena: This is a writ or order directed to a person requiring his attendance at a particular time and place to testify as a witness. He may also be required to bring documents or books under his control.
c. Subpoena ad testificandum; is used to order a person to come to court and give evidence on behalf of a party and he/she will be cross-examined. S.218 Evidence Act 2011
d. Subpoena Duces Tecum; This order compels a person or organization to bring physical evidence to court, the person is not stricto sensu a witness and thus will not be cross-examined. See S.219 Evidence Act 2011
Arraignment is a mandatory process of bringing the defendant to court unrestrained, the reading and explaining of the charge to him in the language he understands by the registrar or other officers of the court to the satisfaction of the court and calling upon him to take his plea instantly and the court recording his plea. S.271 ACJA, S.211 ACJL Lagos
In the case of Tobby v. The State the Supreme Court laid down the following requirements for a valid arraignment;
a) The defendant is to be placed before the court unfettered unless there’s cause for the court to so order.
b) The charge or information must be read over and explained to the accused to the satisfaction of the court.
c)The charge is read over and explained to the accused in the language he understands.
d)The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise.
See also the case of Lateef Adeniji v. The State (2001). The supreme court held that the above requirements must be satisfied, and records of court must show that they were complied with.
The defendant’s plea must be unambiguous and must be recorded as nearly as possible in the language used by him. Where a charge sheet contains more than one count, the defendant must plead separately to each of the counts in the charge sheet and the trial court must record separate pleas to each count. See Sammabo v. The State (1967)
An accused upon arraignment is expected to plead any of the following;
a) Preliminary objection; it may relate to the jurisdiction of the court to try him or to a defect in the charge. His objection shall be duly considered and may be upheld or discharged on its merits.
b) Refusal to plead: The court shall enquire for his reasons. Where the court is of the view that those reasons are not valid and the defendant still refuses to plead, "a plea of not guilty" shall be entered on his behalf and the trial shall proceed. See Gaji v. The State (1975) See S.276 ACJA, S.215 ACJL Lagos.
c) Stand mute: He may stand mute, and the court shall call evidence to determine whether his muteness is of malice or due to the visitation of God. If the Court finds that his muteness is of malice, a plea of not guilty shall be entered and the trial shall proceed. See Yesufu v. The State (1972). However, if his muteness is of the visitation of God (e.g. insanity) the trial shall not proceed, and the defendant shall be ordered to be detained until the pleasure of the Governor is known. See R. v. Ogor (1961)
d) Plea of guilty: The guilty plea shall be recorded by the court and where the defendant intends to admit the truth of the essentials of the offence, it may convict him on such a plea. See S.274 ACJA, S.213 ACJL Lagos. See also Aremu v. The COP (1980)
e) Plea of not guilty: It is a denial by the defendant that he did not commit the offence he’s charged with. In such a circumstance he joins issues with the state. See S.212 ACJL Lagos, S.273 ACJA.
f) Plea of not guilty by reason of insanity; The court shall proceed with trial and determine: (a) whether the defendant did commit the offence; and (b) whether he was insane at the time of committing the offence. If he is found to have committed the offence and to be insane at the time of committing it, he shall be remanded in prison custody until the Governor's pleasure is known. See R. v. Ogor (1961)
g) Plea of autrefois acquit or autrefois convict: This plea is hinged on section 36(9) of the Constitution, that: "No person who shows that he has been tried by a competent court 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". See also 277 ACJA, and 216 ACJL Lagos.
No, a defendant will not be convicted on such plea while the inconsistencies exist. R. v. The Middle-sex Justice Exparte Rubens (1970)
No he cannot be convicted. Such expert evidence must be tendered and made available before he can be convicted on his plea of guilty. Stephenson v. The Police (1966)
Where the offence charged is a capital offence, a plea of not guilty shall be recorded notwithstanding a plea of guilty by the defendant. See Sanmabo v. The State (1967) S.213 (3) ACJL Lagos, S.274(3) ACJA.
The following facts are to be established and proven to sustain the above mentioned plea;
a. That the defendant had previously been tried on a Criminal charge. Any other investigation or report of committee does not count as a previous criminal trial, see R v. Jinadu (1948)
b. That the trial had taken place before a court of competent jurisdiction
c. That the trial ended with an acquittal or a conviction. Thus, where trial was terminated by nolle prosequi, this plea cannot be sustained.
d. That the criminal charge for which the defendant was tried was the same as the new charge against him, or that the new charge is one in respect of which the defendant could have been convicted at the former trial although not charged with it. The Police v. Johnson (1959)
e. Where the charge was dismissed on a successful submission of no case to answer, it operates as an acquittal. See IGP v. Marke (1957)