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.