Cyril Udeh V. The State (1999)
LAWGLOBAL HUB Lead Judgment Report
AYOOLA, J.S.C
The appellant, Cyril Udeh, and one Osmond Onuoha, were convicted by the High Court of Enugu State of the offence of murder contrary to section 274(1) (Cap. 36 Laws of Anambra State, 1986) and each sentenced to death on 26th June 1991. Their appeals to the Court of Appeal were dismissed by a majority (Niki Tobi. and Salami. J.J.C.A., Akpabio. J.C.A, dissenting) on 31st March, 1998. The appellant appealed further to this court from their conviction, Onuoha died before he could appeal.
The facts as found by the trial Judge (Ubaezonu, J. as he then was) and confirmed by a majority of the Court of Appeal were that the deceased, Christopher Aniaghoso, and his sister, Beatrice Chibueze, who was the 1st prosecution witness (“P.W.1”) at the trial, decided to travel to their village, lmezi-Olo in Ezeagu Local Government on 18th February, 1998. They traveled in a public transport up to a place described as the Iwollo Maternity Centre, where they alighted in order to walk to their village. In the course of the journey they were stopped by the people of Ogbugbuaga, including the appellant, who beat the deceased for some time and dragged him away. That was the last time P.W. 1 saw the deceased alive. Two days later, on 20th February. 1989, she saw the body of the deceased.
At the trial, P.W.1, the deceased’s elder sister, gave evidence of these facts. The appellant who pleaded not guilty to the charge denied these facts in so far as they concerned him. His defence was that all that he did was to take the deceased to the police station. He denied that he was in the crowd that had beaten the deceased.
The trial Judge believed the evidence of the prosecution witnesses and disbelieved that of the appellant. He found the appellant guilty and convicted and sentenced him as earlier stated.
Two major issues taken by counsel on behalf of the appellant on his appeal to the Court of Appeal and repeated on this appeal are, first, that the arraignment of the appellant was not in compliance with the law; and, secondly, that the trial Judge was wrong in holding that the prosecution had proved its case beyond reasonable doubt. Niki Tobi, J.C.A” who delivered the leading majority judgment, expressed his entire agreement with the appellant’s counsel’s submission that for the purpose of taking the plea of an accused person, compliance with the provisions of section 333 of the Criminal Procedure Law of Anambra State and section 33(6)(a) of the 1979 Constitution is obligatory. However, he dismissed as inconsequential the ground of non-compliance and irregularity which counsel for the appellant had alleged, namely: that the charge was read to both appellants once and not to each of the appellants. Niki Tobi, J.C.A., described such reading of the charge shortly as “block reading”. It is convenient to adopt such description for the purpose of this appeal. In his view:
“What the court ought have done was to read the charge twice, once to each of the accused person who then makes his plea separately immediately following the reading of the charges.”
However, being satisfied that the learned trial Judge fully satisfied the constitutional provisions of section 33(6) (a) of the 1979 Constitution and that the charge was read and explained to the accused persons who both said they understood the charge and pleaded thereto after the Judge had satisfied himself that the charge was properly read and explained to the accused persons, he held that –
“the procedure adopted by the learned trial Judge in the plea decision (sic) (i.e. by ‘block reading’) had no dent or fault which entitles the appellants to either an acquittal or a retrial.”
In regard to the second of the issues, which is the factual issue, Niki Tobi, J.C.A. held that the findings of the trial Judge clearly borne out from the evidence of P.W.1 could not be faulted.
For his part, Salami, J.C.A., agreed with Niki Tobi J.C.A. in the view that the appeal should be dismissed. It is evident however that in his view, what was described as ‘”block reading:” was not an irregularity. He dismissed the ground or irregularity alleged by the appellant’s counsel in the taking of the plea as misconceived and referred to section 41(6) of the Interpretation Law Cap. 73 of the Laws Anambra State, 1986 which provides that in any Law “words in the singular shall include the plural, and words in the plural shall include the singular”. On the factual issue, he was satisfied that on the evidence of P.W.1 the conviction was justified.
Dissenting, Akpabio, J.C.A. expressed no opinion on the regularity of the arraignment. He held that the charge was not proved beyond reasonable doubt, he being of the view that there was an inconsistency in the oral evidence of P.W.1 and her extra-judicial statement and that “neither of the appellants was mentioned in the statement of P.W.1 made on 20th February, 1989 when facts were fresh, but only in the event, yet P.W.1 said she had known them from infancy”. Apparently, the “inconsistency” he found was in the omission of P.W.1 to mention the appellant in her statement.
On this appeal, although four issues have been formulated by counsel for the appellant as issues for determination, it is evident that the issues for determination are substantially the issues earlier identified as the two main issues raised in the court below, namely: first, whether there was a valid reading of the plea to the appellant and. Secondly, whether the trial court and the Court of Appeal (in the majority view) were right in holding that the prosecution had proved its case beyond reasonable doubt. Much the same arguments as were canvassed in the court below were rehearsed on this appeal. On the validity of the plea, it was contended that section 333 of the Criminal Procedure Law Cap. 37 Laws of Anambra State does not contemplate interpreting the words “person” or “to him” in the plural. It was contended therefore that the charge had not been “read over to the accused” nor “explained to the accused” in terms of section 333 as it was read and explained jointly, and not separately, to them.
It is obvious that in arguing thus, learned counsel for the appellant had ignored the opinion of Salami, J.C.A, which in my view represents the law.
Section 333 of the Criminal Procedure Law Cap. 37 Laws of Anambra State 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 was not been duly served therewith.”
In this case, the trial Judge had recorded thus:-
“The charge is read and explained to the accused persons to the satisfaction of the court. Both accused persons say that they understand the charge and plead as follows:-
1st accused pleads not guilty
2nd accused pleads not guilty.”
It is difficult to fathom the logic in the argument which, in effect, is that the trial Judge should have stated that the charge had been read to each of the accused persons, or; that only separate reading of the charge meets with the requirements of section 333. It would be manifestly absurd to suggest that if there were twenty or more jointly accused, persons, the charge should be read twenty times, notwithstanding that the charge may have mentioned each of the accused as the joint participant in the crime charged. The provisions of section 333 cannot be interpreted to lead to such absurdity. When, therefore, section 333 provides that the charge shall he read over and explained over to the person to be tried, it does not mean that it is to be read to each of them separately, so that the charge should be read as many times as there are persons to be tried. The reasonable view, in my opinion, is that when persons to be jointly tried on any charge or information are placed before the court, the requirement of section 333 is complied with by reading and explaining it to the group. What the law requires and what satisfies the purpose of the law is that each of them should understand the charge and that each of them should plead separately to it. The argument founded on the use of singular person in section 333 is misconceived having regard to the provisions of section 41 of the Interpretation Law which has been referred to in this judgment. It is not difficult to agree with Salami. J.C.A. when he held that “the complaint of the appellant giving rise to the issue concerning the validity of the arraignment was predicated upon misapprehension of section 333 of the Criminal Procedure Law Cap. 37 which is in pari materia with the provisions of section 215 of the Criminal Procedure Act Cap, 80 of the Laws of the Federation of Nigeria. 1990.” I hold that notwithstanding the joint reading and explanation of the charge, there was compliance with section 333 of the Criminal Procedure Law Cap. 37 and the Court of Appeal was right to have so held.
The evidence of the 1st prosecution witness was the main focus of the appellant’s arguments on the factual issue. It was argued that she should have been held to be an unreliable witness first, because although she said she had known the appellant and his co-accused since she had been eight years old, that is to say for some twenty-two years at the time of the incident, she did not mention their names at the earliest opportunity; secondly, that her previous statements consisting of the statements she made to the police were inconsistent with her evidence at the trial because she did not mention the appellants’ name in her statements. Rather feebly, it was further argued that the trial court did not adequately consider the evidence of the appellant.
In the leading majority judgment of the Court of Appeal, ample quotations were made from the trial Judge’s judgment showing his findings of fact on the question of the identity of the appellant. It suffices to state one such quotation thus:-
“As regards the identity of the accused persons, the incident happened in broad day light. The witness (P.W.1) had known the two accused for some 22 years … In fact the witness who is about 30 years old said that she knew the accused person from the age of 8 years. She used to interact with accused person, P.W. 1 also told me that after accused person and others had beaten the deceased, they dragged him away on the ground … On the identity of the accused person – their identity is not in question … I am satisfied that P.W.1 knew the accused persons before the date of the incident and recognised them on that day.”
The Court of Appeal could not fault the finding of the trial Judge. Neither can I.
Although in her statements to the police P.W.1 did not mention the appellant by name as one of the persons who beat the deceased, she later identified the two accused persons, including the appellant, as being among those who beat the deceased, when she saw them in the company of the police in the hospital. Nowhere did she say that she knew the names of the appellant before the incident. The contention of counsel for the appellant was based on an erroneous basis when the impression was given that the witness had at any time admitted or testified that she knew the name of the appellant.- There is nothing strange or incredible in a person identifying a person whose name he has never known. There was no inconsistency in the P.W.1’s “‘statements to the police and her evidence at the trial. Where a witness failed to mention the name of a suspect to the police at the earliest opportunity that would detract from whatever credibility the trial court may wish to ascribe to his evidence only if he is shown to have known the suspect by name at the time of the incident. The witness having at all times maintained that although she did not know the names of some of her brother’s assailants but could identify them if she saw them, the identification of the appellant as one of the assailants, rather than be an inconsistency. is a confirmation of her prior statement. It was left to the trial court whether to believe or disbelieve the witness’s evidence; including her evidence that she did not know the name of the suspect but could identify him. It is significant that the appellant made no effort to disprove her evidence that she did not know his name.
In this case much care was taken by the trial Judge to evaluate the evidence with meticulous care. The evidence of the appellant was considered and rejected. There was evidence to support the findings of fact made by the trial Judge. The majority of the Court of Appeal were right in their view that the findings of the trial Judge could not be faulted. Nothing has been usefully urged on this appeal that could justify interference by this court with concurrent findings of fact of the trial court and the Court of Appeal.
This appeal is devoid of any merit. I dismiss it accordingly.
SC.74/1998
