Isiaka Rufai V. The State (2001)
LAWGLOBAL HUB Lead Judgment Report
WALI, J.S.C.
The appellant Isiaka Rufai, Alhaja Asiawu Abonko and Yinusa Osolale were arraigned before the High Court Oyo State and sitting at Ibadan, jointly charged with the murder of Bolape Olalekan on or about the 3rd day of June, 1989.
At the end of the trial before Aderemi. J, he concluded as follows:
“In sum, having regard to all the circumstances of the case and the totality of the evidence adduced by the prosecution, I find solidly proved beyond reasonable doubt the charge of murder against the 1st accused only, and I hereby find him alone guilty of the murder of Bolape Olalekan at Ibadan on the 3rd of June, 1989”.The two other accused persons charged along with appellant, Alhaja Asiawu Abonko and Yinusa Osuolale, having been found not guilty, were discharged and acquitted.
The appellant appealed against his conviction to the Court of Appeal, Ibadan Division which, at the end of the hearing unanimously dismissed the appeal and confirmed his conviction by the trial court.
The appellant has now further appealed to this court against the Court of Appeal judgment.
As required by the rules of this court parties filed and exchanged briefs of argument.
In the Court of Appeal, only one ground of appeal was filed by the appellant. Extension of time by this court was sought and granted as a result of which two additional grounds of appeal were filed.
As I said earlier the appellant and the respondent filed and exchanged briefs in which issues were formulated by them. The appellant raised the following issues:-
“1. Whether the charge of murder preferred against the appellant was proved by the prosecution beyond reasonable doubt.
This is predicated on ground one.
- Whether in the absence of the evidence of PW 2 the circumstantial evidence relied on by the trial court and affirmed by the Court of Appeal to convict the appellant point irresistibly to the guilt of the appellant in the circumstances of this case.
This is predicated on ground two.
- Whether the trial, conviction and sentence passed on the appellant and affirmed by the Court of Appeal is not a nullity in view of the failure of the trial court to comply strictly with the mandatory provision of section 215 of Criminal Procedure Act, Cap. 80 Laws of Federation 1990.
This is distilled from ground three.”
The respondent on his part raised the following two issues:-
‘1. Whether the lower court was right to have affirmed the decision of the trial court that the respondent proved the charge/of murder against the appellant beyond reasonable doubt. This covers grounds 1 and 2 of the grounds of appeal.
- Whether there was non-compliance with section 215 of the Criminal Procedure Law Cap 31. Vol II, Laws of Oyo State of Nigeria 1978 and section 33 of the Constitution of the Federal Republic of Nigeria 1979 (as amended) so as to render the whole proceedings at the lower courts a nullity. This covers ground 3 of the grounds of appeal.
For reasons that will be apparent in this judgment, I shall only consider issue 3 of the appellant’s brief and issue 2 of the respondent’s brief. The two issues are substantially the same in contents and nature save that the issue framed by the respondent referred to section 215 of the Criminal Procedure Law Cap. 31, Vol. 11 Laws of Oyo State, while the appellant referred to section 215 of the Criminal Procedure Act Cap 80 Laws of the Federation 1990. Although the provisions of the two sections are in pari materia, I shall base this judgment on section 215 of the Criminal Procedure Law of Oyo State which is the applicable procedural law under which the appellant’s trial was conducted.
The gravamen of the complaint under issue 3 is that the appellant’s plea was not taken in accordance with the procedural law and the constitution, and in support of this contention the following cases and sections of laws were cited and relied upon by the appellant:
“1. Kajubo v. State (1988) 1 NWLR (Pt.73) SC 721.
- Ewe v. State (1992) 6 NWLR (Pt.246) SC 147
- Erekanure v: State (1993) 5 NWLR (Pt.294) 385
- Section 33(6) of the 1979 Constitution.
- Section 215 of the Criminal Procedure Act/Law
Section 215 of the Criminal Procedure Act, Laws of the Federation of Nigeria, 1990 Cap 80, which is in pari materia with section 215 of Criminal Procedure Law of Oyo State, provides as follows:
“215 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 finds that he has not been duly served therewith.”
Also, section 33(6)(a) of the 1979 constitution state thus:
“33(6)(a) 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.”
It was the submission of the appellant that the provisions of section 33(6)(a) of the 1979 Constitution as well as section 215 of the Criminal Procedure Law and the principles enunciated in the decisions cited were not observed and followed in that-
- the plea of the appellant was not properly taken.
- The plea was not properly recorded.
Page 39 of the record was referred to by learned counsel.
The relevant portion of page 39 reads:-
“THE STATE
v.
ISIAKA RUFAI & 2 ORS
Accused persons present
Mrs. O.Oyesina Legal Officer, represents the prosecution
Mr. O. O. Sonibare for 2nd & 3rd Accused.
PLEA TAKEN
1st Accused – Pleaded not guilty.
2nd Accused – Pleaded not guilty.
3rd Accused – Pleaded not guilty.
Prosecution opens its case.”
On the excerpts above can one say with all seriousness that the provision of section 215 CPA/CPL was complied with as laid down in the decided cases interpreting the section
Section 215 of the Criminal Procedure Law Act provides 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 finds that he has not been duly served therewith.”
In Kajubo v. The State (1988) 1 NWLR (Pt.73) 721, this court provided the following guide lines on arraignment of an accused person and the taking of his plea:-
- that the accused person to be tried shall be placed before the trial court unfettered;
- the charge shall be read and explained to him in the language he understands to the satisfaction of the trial court, by the registrar of the court or other officer of the court, and
- the accused person shall then be called upon to plead instantly to the charge, and
- the plea of the accused shall also be instantly recorded.
The provision of section 215 of Criminal Procedure Law (supra) has been further reinforced by section 33(6)(a) of the 1979 Constitution in order to guarantee fair hearing and trial of the accused.
The situation in the present case is almost on all fours with that in Kajubo’s case supra. It has even been made worse in that in the case at hand, and from all available evidence contained in the proceeding, the appellant speaks Yoruba. See pages 22, 24, 25 and 26 of record where it was recorded respectively as follows after taking down the appellant’s statements made under caution.
Page 22: Today 7/6/89 at about 1300 hours the suspect Isiaka Rufai (m) was brought before (sic) by Inspector M. Ogundepo the statement he made in Yoruba language was read to him and translated to him in English language. The suspect admitted that he made the statement voluntarily to police.”
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on the top of pages 24, 25 and 26 of the record of proceedings the following words appear-
Cautionary words administered in Yoruba language and duly
(sgd.) Isiaka Rufai”
The appellant as first accused in the trial court gave sworn evidence in his own defence, and before he testified the record (P.54) shows that he speaks Yoruba language, as in lines 2 and 3 on that page, it was recorded as follows
“Isiaka Rufai:- Sworn on Holy Quaran and speaks in Yoruba language.”
PW7, Sgt Raphael Salako stated in his evidence on page 47 (lines 18 – 20) as follows-
“On 12/6/89, the 1st accused was arrested, charged and cautioned in Yoruba language and he made voluntary statement.”
All the pieces of evidence referred to go to show that the 1st accused/appellant understands no other language than Yoruba I need not emphasize that the language in the High Court in Nigeria is English. This is a notorious fact. The record did not show that the charge was read and explained to the appellant in Yoruba language in compliance with section 215 Criminal Procedure Law and Section 33 (6)(a) of the 1979 Constitution.
I therefore agree with learned counsel for the appellant that the plea of the appellant purportedly taken was in contravention of section 215 of the Criminal Procedure Law Oyo State and section 33(6)(a) of the 1979 Constitution and the trial was null and void. See Kajubo v. The State (supra); Ewe v. The State (1992) 6 NWLR (Pt. 246) 147; Erekanure v. The State (1993) 5 NWLR (Pt.294) 385 and Oyediran v. The Republic (1967) NMLR 122.
This in my view, is sufficient to dispose of the appeal without considering other issues that touch on the merit of the case because of the consequential order I intend to make.
Since the purported trial of the appellant has been declared a nullity, then what is the proper order to make in the circumstance, taking into consideration the nature of the evidence involved, the gravity of the offence committed and the need to do justice to both sides. Guided by the above facts and the principle laid down by this court in Abodundu & 4 Ors v. Queen (1959) 4 FSC 70; (1959) SCNLR 162 and elaborated upon in Kajubo v. The State (supra) I am inclined to make an order for a fresh trial of the appellant, by another Judge of the High Court as the present trial was voided due to non-compliance with the mandatory provisions of section 215 of Criminal Procedure Law Oyo State and section 33(6)(a) of the 1979 Constitution, which is a pure mistake of law. I hereby make that order.
The appeal succeeds. It is allowed.
SC.283/2000
