Albert Ezeala V. The State (1996)
LawGlobal-Hub Lead Judgment Report
ONALAJA, J.C.A.
The Appellant was convicted and sentenced to death on 21st day of February, 1991 by Pats-Acholonu, J., (as he then was) sitting at Etiti High Court of Imo State of Nigeria on a charge that on the 3rd day of January, 1982 at Isiebu Umuduru, appellant murdered his wife Comfort Ezeala contrary to Section 319 of the Criminal Code of Imo State. Being dissatisfied with the said conviction, he appealed to this court.
It transpired at the trial before Justice Pats-Acholonu (as he then was) that due to inadvertance, commission and omission the charge was neither read nor explained to the Appellant and in fact his plea was never taken.
In proving its case the prosecution hereinafter referred to in this judgment as the Respondent called five witnesses. The 5th PW Police Officer in the team that investigated the case tendered the statement of the Appellant to Police during the conduct of investigation of the case by the police. As the statement turned out to be a confessional statement, Appellant was taken before a senior police officer before whom he confirmed the content of the statement and that it was given voluntarily by him. The document was admitted as Exhibit “A” without any objection by the learned counsel for the Appellant. But alas, when the Appellant gave evidence, he resiled the content and that he was maltreated by the police and that it was not voluntary.
The summary of the facts of the case being that the Appellant lived with the deceased his wife in Lagos. Appellant worked with U.A.C. Nigeria Ltd., in Apapa in Lagos. In December, 1981, the appellant and his wife now deceased returned to their home at Mbano for the final funeral rites for his father-in-law. The ceremony lasted for two days in the deceased home. After the ceremony on 30th December, 1981 the appellant left for his own family home while the deceased wife remained behind in her family home and compound. By 2nd January, 1982 the deceased did not return to join her husband (Appellant) in his family home, so he came to look for the deceased. Appellant was intimated by the senior brother of the deceased who testified as 1st PW of the maltreatment meted out to the deceased several times in Lagos one of which resulted in abortion of a pregnancy. To resolve the issue and settle the differences, appellant was advised to go home and bring his relations to settle the matter.
In compliance with the advice appellant went back home and returned to his in-laws accompanied with his own relations. The appellant’s brother raised the tradition and custom that in such a situation the deceased should have sent back a jar of palm wine to her husband and family before any issue could be tabled for discussion. After discussions and deliberations, it was resolved that the deceased should go back and return in the evening for settlement in the deceased’s family home.
The appellant and his wife now deceased left her family home and accompanied her husband to return to his family home. She never reached her husband’s family home; her body was later found dead in her pool of blood battered with knife cuts and wounds all over her body along the road leading from the deceased’s home close to the appellant’s home. The appellant ran into the bush for two weeks until he was found by the Police and later arrested and upon completion of investigation by the Police during which he confessed killing his wife with his knife, he was eventually charged as stated above with murder of his wife.
Being dissatisfied with his conviction at page 69 of the record of appeal, in accordance with the law, Appellant personally signed the notice of appeal and raised therein two grounds of appeal as follows:-
“(1) The learned trial Judge erred in law in convicting me as the evidence he believe does not establish the essential ingredients of murder.
(2) The decision of the learned trial Judge is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence adduced during the trial of the case before the court.”
With the leave of this court, learned counsel for the appellant sought and was granted leave to amend the ground of appeal. The amendment was just to add an additional one ground of appeal as ground 3 which is hereby set down below:-
“(3) The trial, conviction and sentence passed on the Accused/Appellant by the learned trial Judge are a nullity in that the accused was not arraigned in accordance with the mandatory provisions of Section 215 of the Criminal Procedure Law.
PARTICULARS
(a) Charge No. HME/2C/82 was struck out and the accused person discharged on 27/7/83 by Okoroafor J.
(b) Plea was taken or recorded by Nwa-Wachukwu, J., when the matter came before him but he did not comply strictly with Section 215 Criminal Procedure Law.
(c) No plea was taken by Maranzu J., when he took over the matter.
(d) No plea was taken or recorded by Pats-Acholonu, J., (as he then was) before he commenced the hearing of the matter.
(e) There is nothing on record to show that the learned trial Judge (Pats-Acholonu, J., as he then was) was satisfied that the charge was read over and explained to the accused person in compliance with the Criminal Procedure Law.
(f) The trial, conviction and sentence passed on the Accused person are a nullity.”
In accordance with the rules of the Court of Appeal, Appellants from the above grounds of appeal raised the under-mentioned as the issues arising for determination in this appeal in the appellant’s brief of argument.
“C. ISSUES FOR DETERMINATION
(1) Whether failure of the trial court to read and explain the charge of murder to the Appellant as well as to take his plea vitiated the entire proceedings.
(2) Whether this is a proper case in which an order for fresh trial or acquit and discharge the appellant.
(3) Whether the learned trial Judge was not in error when he held upon the totality of the evidence adduced at the trial that the charge of murder had been established against the appellant beyond reasonable doubt.”
On its part in Respondent’s brief of argument at page 2 paragraph 3 it raised one issue as the issue for determination in this appeal:-
“3. ISSUE FOR DETERMINATION
Whether or not this is a proper case in which the Court of Appeal will make an order for a retrial.”
The only issue raised by the Respondent is very fundamental and the crux of this appeal. As this issue was raised as Issue 2 by the appellant in appellant’s brief of argument is going to be considered together with Issue 1 in Appellant’s brief and bold to say it is the centre of gravity and hub upon which the outcome of this appeal is going to turn out.
It is common ground and conceded by the Respondent that no plea was recorded as having being taken from the appellant by the learned trial Judge, Pats-Acholonu (as he then was) in accordance with the mandatory provisions of Section 215 of the Criminal Procedure Law, which 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 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.”
To constitute a valid and proper arraignment of an accused person, the undermentioned conditions must prevail as laid down in Section 215 supra and must be satisfied:-
(a) The accused must be placed before the court unfettered. Simply put the accused person shall be present in court;
(b) The charge or information shall be read over and explained to him in a language that he understands to the satisfaction of the court by the registrar or other officer of the court; and
(c) He shall then be called upon to plead instantly thereto.”
The three conditions must co-exist any break in the chain or link and failure to comply strictly shall render the whole trial a nullity.
Since the 1979 Constitution of the Federal Republic of Nigeria, it entrenched fundamental right Section 33(6) dealing with fair hearing and provides that:-
“33(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.
(b) To be given adequate time and facilities for the preparation of his defence.
(c) To defend himself in person or by legal practitioners of his own choice.
(d) To examine in person or by legal practitioners the witnesses called by the prosecution before arty court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to the witnesses called by the prosecution and
(e) To have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”The complaint of the appellant in my understanding are the provisions of Section 33(6) (a) of the Constitution 1979 in particular and section 215 Criminal Procedure Law supra and to reiterate that non-compliance with any of the conditions above shall render the whole trial a nullity. See: Eyorokoromo v. The State (1979) 6-9 SC 3, Kajubo V. The State (1988) 1 NWLR (Pt. 73) page 721, Godwin Josiah v. The State (1985) 1NWLR (Pt.1) 125; (1985) 1SC 406 all followed and adopted in unreported judgment of this court in CA/PH/153/95 delivered on 27th March 1996 between Linus Dike and Ors. v. The State and see further Samuel Erekanure v. The State (1993) 5 NWLR (Pt. 294) page 385 at 393 per Olatawura, J.S.C.
Learned counsel for the Appellant contends that non-compliance with the provisions of Section 215 of Criminal Procedure Law and Section 33(6)(a) 1979 Constitution supra renders the trial, conviction and sentence a nullity with the court faced with the consequential order either to acquit the accused or whether it be proper in the circumstance to order a retrial.
He stated that the authorities show that in considering whether or not to order a retrial, each case must be decided on its own peculiar facts and circumstances.
The undermentioned factors based on decided cases are to guide the appellate court in consideration before deciding to order a retrial or not in a criminal case:-
(i) That there has been such an error in law or an irregularity in procedure which neither renders a trial a nullity nor makes it possible for the Appeal Court to say that there has been no miscarriage of justice.
(ii) That apart from the error of law or irregularity in procedure, the evidence taken as a whole discloses a substantial case against the Appellant.
(iii) That there are no special circumstances as would render it oppressive to put the Appellant on trial second time.
(iv) That the offence of which the Appellant has been convicted is not merely trivial.
(v) That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.”
The above excerpt originated from the decision of the Supreme Court in Yesufu Abodundu & 4 Ors. v. The Queen (1959) SCNLR 162, which is now regarded as the locus classicus on order of retrial in a criminal case as manifested by its adoption and followed in the underlisted cases referred to by Appellant’s learned counsel in argument of issue 2 in his brief of argument (2) Ankwa v. State (1969) 1 All NLR 133, (3) Aigbe v. State (1976) 9 – 10 SC 77 (4) Akinfe v. State (1988) 4 NWLR (Pt. 85) 729 (5) Ebem v. State (1990) 7 NWLR (Pt. 160) page 113.
It is the law that all the five conditions stated above in Yesufu Abodundu v. The State supra must co-exist and the absence of anyone of them will enure to the benefit of the Appellant. See Ankwa v. State supra at page 137 and Akinfe v. State supra at page 744.Learned counsel for the Appellant submitted that in the circumstances of this instant case on appeal and the evidence adduced in the purported trial, this is not a proper case to order a retrial as the evidence adduced in the purported trial was not substantial enough to establish the guilt of the appellant beyond reasonable doubt as provided in Section 138(1) Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990. In addition the medical doctor who performed the post mortem examination was not called nor was the failure to call him explained. Applying section 149(d) Evidence Act supra to infer that his evidence if called would have been against the Respondent. The failure was not sufficient and compelling evidence to draw the inference that the deceased died as a result of an act or omission of the person charged with causing her death. See: Ozo v. The State (1971) 1 All NLR 111 SC.
The learned trial Judge relied on circumstancial evidence and confessional statement to convict the appellant when the evidence was not cogent, complete unequivocal and so compelling as to lead irresistably to the conclusion that the appellant committed the murder. See:-Abieke v. State (1975) 9-11 SC 97, Adie v. State (1980) 1-2 SC 116, Omogodo v. State (1981) 5 SC 5.
The killing of the deceased took place in 1982 about 14 years ago and the appellant since his trial had been in prison custody. A retrial will therefore be oppressive. That this order of retrial should not be used to assist the prosecution to mend its case where the case against the appellant is studded with such fundamental lapses and inadequacies to order a retrial in such a case shall result in injustice. Therefore it will amount to a traversty of justice to put the appellant on second trial in this case. So the Court of Appeal is urged to discharge and acquit the Appellant.
Respondent conceded that no plea was taken before Pats-Acholonu J., that was a breach of the provisions of Section 215 of the Criminal Procedure Law which must be strictly complied with as held in Ebem v. State (1990) 7 NWLR (Pt. 160) 113; Sanmobo v. State (1967) NMLR 314, Kajubo v. State (1988) 1 NWLR (Pt. 73) at 721. He confirmed the three conditions stated above to have a valid trial and any departure renders such proceedings to be irregular and a nullity. In the instant case as no plea was taken before Pats-Acholonu J., (as he then was) the trial, conviction and sentence before him was aborted leading to a nullity of the trial.
Applying Abodundu v. R. (1959) SCNLR 162, Josiah v. The State (1985) 1 NWLR (Pt. 1) 125 and Ebem v. State supra to the facts and evidence led in this case to refuse a retrial would occasion a greater miscarriage of justice than to grant it.
Respondent led evidence that Appellant was the husband of the deceased and he was the last person that was seen with her before her death. That he took a flight into the bush immediately after the killing of the deceased and was arrested through the efforts of the Police two weeks after. He made a voluntary statement of confession that he killed the deceased. When respondent sought to tender the statement during the trial by 5th PW learned counsel for the Appellant did not object and was admitted as Exhibit “A”. The Appellant in giving his evidence retracted the statement.
The other four prosecution witnesses are the 1st PW the senior brother of the deceased and the appellant and can be easily recalled to give evidence.
Respondent submitted that the confessional statement of the appellant admitted and marked Exhibit A was positive, unequivocal and amounted to an admission of guilt coupled with the fact that appellant was the last person to be seen in company of his deceased wife. Immediately after the death of his wife who was discovered to be killed with knife wounds over all her body on the road close to appellant’s family home instead, of reporting the murder of his wife appellant ran into the bush. So all the pieces of evidence are strong and pointed to the guilt of the accused/appellant. The conviction of the appellant for the gruesome murder of his wife was not trivial but a serious crime and since it carries capital punishment, the retention of appellant since the incident in 1982 is not oppressive.
For the foregoing reasons Respondent submits that having regard to the circumstances of the case but for the inadvertence of the learned trial Judge, the appellant should not be allowed to be acquitted on the slim edge of technicality when the present attitude of the courts all over is the attainment of substantial justice. To achieve this goal of doing substantial justice the appellant should be sent for a retrial of the case anything to the contrary shall amount to travesty of justice and the blood of the deceased should have been in vain. So court should resolve the only issue raised by the Respondent by ordering a retrial of that case in Etiti High Court.
The above is the resume of the contentions of the parties in this appeal. It is common ground that there, was a violation of the provisions of Section 215 Criminal Procedure Law and Section 33(6) (a) of the 1979 Constitution of Nigeria which guaranteed the fundamental right of fair hearing to an accused person to be charged promptly with the charge read to him in the language that he understands, any infraction of Section 215 and Section 33(6) from the decided cases referred to by learned counsel boil down to a declaration of such trial to be a nullity.
For failure to take the plea of the appellant by Pats-Acholonu J., (as he then was) his judgment delivered at Etiti High Court of Imo State in Suit HME/25C/85 delivered on 21st day of February, 1991 wherein he convicted and sentenced the Appellant to death by hanging for the murder of his wife Comfort Ezeala contrary to Section 319 of Criminal Code of Imo State is hereby set aside for irregularity in non-compliance with Section 215 Criminal Procedure Law and Section 33(6)(a) 1979 Constitution of Nigeria is hereby declared a nullity.
Having declared the said judgment a nullity the problematic and vexed question is the consequential order to make under Section 16, Court of Appeal Act. Cap. 75, Laws of the Federation of Nigeria, 1990 and whether to discharge and acquit the appellant or to remit the case to the High Court for an order of retrial de novo.
In resolving this vexed question of the exercise of judicial discretion whether to grant or refuse a retrial in this appeal, as the discretion is to be exercised judicially and judiciously it has given me anxious moments, but with relief to be placed on record that moment has been made calm by counsel to both parties in their briefs which are commendable and that I appreciate their industries in resolving this vexed and intriguing question. Counsel on both sides of the line cited and made references to relevant and up to date authorities on the issue. The good brief reduced considerably the research in this case.
Having said much the starting point, the alpha and omega is the locus classicus case of Yesufu Abodundu & 4 Ors. v. The Queen (1959) SCNLR 162 which has always been re-echoed, adopted, followed and referred to by all appellate courts in our jurisprudence. In Manshep Namsoh v. The State (1993) 5 NWLR (Pt. 292) page 129 at page 145-146 the Supreme Court gave a directive when an order of retrial will not be made when it was held thus:-
“HELD 6 An appellate court would not order a retrial where:
(a) The order of retrial would be tantamount to aiding the prosecution to correct its fundamental and serious mistakes.
(b) It would be unjust to the accused.
(c) It would be oppressive to put the accused to another trial.
(d) The guilt of the accused is in doubt.
(Akinfe v. State (1988) 3 NWLR (Pt. 85) page 729 Okoduwa v. State (1988) 2 NWLR (Pt. 76) page 333; State v. Lopez (1968) 1 All NLR 356 referred to).”
The converse to the above on when appellate court will order a retrial in criminal cases was illustrated in the decision of the Supreme Court in the case of Samuel Erekanure v. The State (1993) 5 NWLR (Pt. 294) at page 385 at 390 – 395 and was held:-
“5. Once a trial has been declared a nullity, the order of retrial or trial de novo is not automatic. Whether the appellate court will order a retrial depends on the peculiar circumstances which form the background of each case. Matters that will be taken into consideration are:-
(a) Where there has been a serious lapse of time between the commission of the offence and the subsequent nullification of the trial, the loss of memory of events may affect the evidence capable of being relied upon. The credit worthiness of witnesses may be affected as well by time lag.
(b) The time it will take to reassemble the witnesses if they are still available and the time it will take to start and complete another trial (Abodundu v. Queen (1959) SCNLR 162, Kajubo v. State (1988) 1NWLR (Pt. 73) page 721 referred to.”
In Nosiru Attah V. The State (1993) 7 NWLR (Pt. 305) page 257 at page 289 the Supreme Court laid down the conditions for ordering a retrial as follows:-
“HELD 13: To order a retrial in criminal cases the court must be satisfied: – And adopted rules (d) (b) (c) (d) (e) (f) in Abodudun’s case already referred to in this judgment supra and proceed to say thus:-
“In this case considering the fact that the appellant was convicted and sentenced to 30 years imprisonment in each of the count to run concurrently since 3rd December 1985 and has been serving the term since that date, to order are trial will be oppressive to the appellant. Memories of the witnesses must by now be dim and some of the witnesses might now be inaccessible. It is therefore not right in all the circumstances to order a retrial Abodundu V. R. supra; Okoduwa v. State supra; Ankwa v. State supra; Okosun v. State (1979) 3-4 SC 36 at 52; Okafor v. State (1976) 5 SC 13; State v. Lopez supra referred to and applied.”
In a murder trial with similar facts like the instant appeal Kutigi JSC observed in Erekanure v. The State (1993) 5NWLR (Pt. 294) page 385 supra at 398 thus:-
“In this case clearly the evidence taken as a whole discloses a substantial case against the appellant and there are no special circumstances which would render it oppressive to put him on trial a second time the fact that the offence was committed in November 1980, notwithstanding see Abodundu v. The Queen (1959) 4 FSC 70; (1959) SCNLR 162. The appellant is not serving any prison sentence when he is kept in prison custody all these years. Apart from the fact that people accused of capital offences are not normally granted bail, the appellant is being kept in custody for his own safety too. I cannot therefore decline to order a retrial because of that. If on the other hand because of this factor prosecution witnesses are no longer available, then the authorities in the State Ministry of Justice should know what to do.”In the instant appeal apart from the technical irregularity of not taking the plea of the appellant under the mandatory provision of Section 215 Criminal Procedure Law and Section 33(6) (a) 1979 Constitution of Nigeria substantial evidence was proffered against the appellant. It was established that the deceased was the wife of the appellant and appellant was the last person seen with the deceased. That the deceased left her family home with the appellant to proceed to appellant’s family home. That the deceased never reached her husband’s (appellant) family home. The battered body with knife cuts and wounds of the deceased was discovered on the road close to appellant’s family home. Having been the last person seen with the deceased instead of the appellant reporting the murder of his wife immediately after the incident appellant escaped into the bush. It took the efforts of the Police two solid weeks before they found the appellant. In the course of Police investigation he voluntered a confessional statement which when it was being tendered in evidence learned counsel for the appellant raised no objection. Though during the evidence of appellant he retracted the voluntariness of his confessional statement. The statement was admitted as Exhibit A.
In his contention learned counsel for the appellant capitalised on not calling the medical doctor who performed the autopsy on the deceased and for this failure to invoke the provision of Section 149(d) Evidence Act Cap. 112, Laws of the Federation, 1990 that if called the evidence would have been unfavourable to the Respondent’s case and for the Court to draw the inference. It is trite law that in our criminal justice it is not in every case of murder trial that it is mandatory to call medical evidence. See John Peter (Alias Ikiri Peter) v. The State (1994) 5 NWLR (Pt. 342) page 45 at page 67 wherein it was held 8 as follows:-
“8. Medical evidence though desirable is not a pre-requisite for establishing the cause of death. It is not essential where:
(a) There is evidence of the death of the deceased or
(b) There is evidence that the death of the deceased is as a result of the intentional act of the accused person. Akpan V. State (1992) 6 NWLR (Pt. 248) at 439 referred to.”It is because the evidence led against the appellant was substantial that makes this case to be distinguishable from Grace Akinfe v. The State (1988) 3 NWLR (Pt. 85) page 729 wherein the Supreme Court ruled that the prosecution’s evidence was weak and not of such quality and quantity as to leave the Court in no reasonable doubt as to the guilt of accused.
In the instant appeal the Prosecution witnesses are blood relations of the appellant and the deceased that there would be no much problem and difficulty to reassemble them.
Applying the observation of Kutigi, J.S.C. in Erekanure v. The State supra, the observation is almost on all fours with the instant appeal. After a cool calm view and careful consideration of the evidence led against the appellant that all the five conditions laid down by the Supreme Court in Yesufu Abodundu & 4 Ors. v. The Queen (1959) SCNLR 162, (1959) 4 FSC 70 do co-exist in this case applying Kutigi, J.S.C’s observation supra mutais mutandis to the instant appeal that there are no special circumstances as would render it oppressive to put the appellant on trial a second time. A refusal of an order for a retrial would occasion a greater miscarriage of justice than to grant it.
For the foregoing reasons bearing in mind that Section 16 Court of Appeal Act. Cap, 75, Laws of the Federation of Nigeria, 1990 is not a carte blanche in making any order, but that this court must exercise its discretion with caution, judicially and judiciously, with this beacon light I order a retrial of the Appellant for the murder of his wife, Comfort Eleaza contrary to Section 319 Criminal Code of Imo State before Etiti High Court of Imo State. It is hereby further ordered that the retrial shall commence with immediate dispatch, so as to remove the trial dangling like a sword of Damocles on the appellant. For the avoidance of doubt, retrial shall be accelerated in the High Court.
In conclusion, the Appellant’s appeal is allowed but the case is remitted to the High Court Etiti, Imo State for retrial de novo before another judge not Pats-Acholonu Judge who in any event has been elevated as a Justice of the Court of Appeal. I repeat that the retrial be given accelerated hearing dealt with expeditiously and with utmost and immediate dispatch.
Other Citations: (1996)LCN/0239(CA)
