Francis Durwode Vs The State (2000)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
The appellant was convicted and sentenced for the offence of murder punishable under section 319(1) of the Criminal Code by Odita J. of Warri High Court.
Bomboy Ovie was a child, seven years old. On 18th September, 1985, his mother, Wini Ovie was to travel out of their village. Before she left, she directed her children, including Bomboy Ovie, to go to her father’s house and stay there until she returned. She returned later in the day and saw the children; but Bomboy Ovie was not among them. Wini Ovie began to search for the child. She met the appellant coming out of the bush holding a jerry can and a cutlass, and she observed that he was sweating profusely. She asked the appellant if he had seen Bomboy. He asked back, “Is your child missing” The appellant said further, “If it is true that your child is missing, we will look for him”. Later Wini Ovie reported the matter to her sister, Amroghe Mrovhoghare. The sister remembered that she saw the appellant boiling hot water and later pouring the hot water into a jerry can. When she asked what he was doing with hot water he answered that he was going to hunt for rabbit. She too observed that the appellant was sweating profusely at the time. She then saw the appellant carrying the jerry can with hot water into the bush.
The matter of the missing child was reported to the village elders including the father of the appellant. They all joined hands in conducting a search and when it became dark they stopped and agreed to continue the following day. In the night, the sister of Bomboy’s mother remembered about the behaviour of the appellant on that day and how he boiled water and carried it into the bush. On the following morning, when the sister of Bomboy’s mother mentioned about the appellant’s behaviour of boiling water and carrying it in a jerry can into the bush, the search party followed the direction where the appellant carried hot water into the bush. Amroghe, the sister of Bomboy’s mother, led the search party to the direction which the appellant followed into the bush. As they were going, they saw plantain leaves with blood and a little further they saw a jerry can. The Chairman of the village who was leading the search party opened the jerry can and saw flesh which they believed to be human parts inside. Amroghe identified the jerry can as the one she saw the appellant pouring hot water inside and later carrying it into the bush. Not far from the jerry can they saw two heaps of sand. When they dug the heaps they saw the head of Bomboy Ovie in one heap and human intestines in another heap.
The search party carried all these items to the compound where the appellant lives. I may pause here to explain that the father of the appellant, the mother of Bomboy Ovie and Amroghe are all of the same parents. The appellant lives in the same compound with Amroghe. The party came to the room where the appellant was living. They asked him to open the door but he refused. When they forced the door open, they found a black paper bag containing three pieces of cooked meat. When asked how he came by the meat, the appellant answered that his father bought the meat for him. The father who was present denied buying meat for him. The appellant was arrested. He was charged before the High Court for the murder of Bomboy Ovie. At the conclusion of the trial, Odita J. found the appellant guilty as charged, convicted him and sentenced him to death. On appeal to the court below, the verdict of the High Court was affirmed and the appeal dismissed. The appellant has now come finally to the Supreme Court. His counsel, learned Imadegbelo, identified three issues for the determination of the appeal. They read:
“1. Whether the trial of appellant is not a nullity for breach of the mandatory provisions of Sec. 215 of the Criminal Procedure Law, Laws of Bendel State 1976 and Sec. 33(6) (a & e) of the 1979 Constitution of the Federal Republic of Nigeria and which occasioned a miscarriage of justice”.
- Whether the circumstantial evidence against the appellant was positive, cogent and conclusive.
- Whether the evidence of PW2, PW3, PW4, PW5 and PW7 are admissible in law”
Learned counsel for the respondent identified similar issues but couched in different terminologies.
I start with issue 1. Issue 1 was not canvassed at the court below and no leave was applied for to raise it, being a new issue. It should be emphasised that issues for determination must be based on the decision of the court from the decision of which the appeal is filed. See Ogoyi v. Umagba (1995) 9 NWLR (Pt. 419) 283. However, an issue challenging the jurisdiction of the trial court can be raised in the Supreme Court for the first time. The matter raised in issue one touches the jurisdiction of the trial court. The appellant is therefore quite in order to raise the matter before us.
Learned counsel for the appellant submitted that the learned trial Judge failed to comply with the provisions of section 215, of the Criminal Procedure Law of Bendel State and section 33(6)(a) of the Constitution of the Federal Republic of Nigeria, 1979 when the appellant was arraigned before him. Counsel referred to the case of Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385. In the case Olatawura J.S.C., held as follows:
“In this case on appeal, and according to the printed record, there is nothing to show that the court fully complied with these requirements. The five requirements must be satisfied. They are mandatory. The best that could be seen to have been done was that the charge was read to the accused, but in what language If as it has been shown that it was read, was it explained to him. No. There is nothing on record to show that it was read by the Registrar or an officer of court. Where for instance no officer of the court is capable of interpreting the charge in the language the accused person understands, a sworn interpreter is produced to explain the charge to the accused. As shown on page 26 of the printed record, the appellant spoke Urhobo language”
Learned counsel for the appellant argued that the learned trial Judge did not comply with the mandatory provisions of section 215 of the Criminal Procedure Law because when the appellant was arraigned before him, he simply recorded thus;
” Accused person present.
Mr. P.O. Isibor State Counsel for the State
Charge read and explained to the accused person.
He says he understands it.
Accused person pleads not guilty”.
Counsel submitted that since the appellant speaks pidgin English the court should have ordered for the charge to be read and explained to him in pidgin English. Counsel supported his submission by reference to Peter v. The State (1997) 12 NWLR (Pt. 531) 1; Sunday Kajubo v. The State (1988) 1 NWLR (Pt. 73) page 721 and Nwankwo v. The State (1990)2 NWLR(Pt. 134) page 627.
The most essential aspect of arraignment is the constitutional requirement that every person who is charged with a criminal offence shall be entitled to be informed promptly in the language he understands in detail of the nature of the offence. See S. 33(6) (a) of the 1979 Constitution which was relevant when the appellant was tried. Section 215 of Criminal Procedure Law reads,
“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.”
There are a litany of Supreme Court’s case law authorities in respect of the procedure and method to be followed in taking the plea of an accused person during arraignment. The provision of the law is clear in this regard. After the charge has been read and explained to the accused, he is required to plead personally to it. The requirement that the charge shall be explained in the language the accused understands is more rigid where the accused does not speak English which is the language of the court. Counsel appearing for the appellant in a criminal appeal more often than not make heavy weather on the failure of a trial Judge to record that the charge has been read and explained to the accused. A strict observance of the provision of section 33(6)(a) of the Constitution and section 215 of Crirninal Procedure Law is however more seriously looked into in a case where the accused is not literate in English language. Even if he is not, in my view, where a charge is of one count and the appellant had earlier made a statement to the police on the allegation of the crime which he has been arraigned for trial the failure of the trial Judge to record that the charge has been read and explained to the accused will not amount to a miscarriage of justice once the trial court is satisfied that the accused understood the nature of the charge framed against him.
In the case in hand, the appellant had earlier made a voluntary statement in pidgin English to the police on allegation that he caused the death of Bomboy Ovie. He knew the facts of the allegation very well before his arraignment. He was charged on a one count charge of murder of Bomboy Ovie and when his plea was to be taken, the learned trial Judge recorded further that the accused understood the charge and pleaded not guilty to the charge. It is without doubt that the appellant knew that he had been arraigned for the murder of Bomboy Ovie. There was no other count besides the count of murder. The appellant pleaded not guilty to the charge when it was read and explained to him. See Effiom v. The State (1995) 1 NWLR(Pt. 373) 507. I therefore accept that the arraignment of the appellant is in compliance with section 33(6)(a) of the Constitution and Section 215 of Criminal Procedure Law of Bendel State.
In the second issue, learned Counsel for the appellant questioned whether the circumstantial evidence against the appellant was positive, cogent and conclusive. Learned counsel submitted that in a charge of murder, the prosecution must prove the following ingredients:-
“1. that the death of the deceased was as a result of the voluntary act of the appellant.
- That the appellant had an intent to cause the death or to cause grievous bodily harm to the deceased;
- that the death of the deceased was a direct result of the act of the accused to the exclusion of all probable causes.”
It is the view of the learned counsel that the prosecution had failed to prove any of the above ingredients. Before I proceed further in this judgment, I must pause here to point out that the conviction of the appellant is based on circumstantial evidence. A conviction on circumstantial evidence cannot be based unless and until all the inferences to be drawn from the whole history of the case point strongly to the commission of the crime by the accused. In this case, the trial court analysed the evidence adduced by the prosecution before it agreed that the appellant had committed the offence charged. In its analysis of the judgment of the trial court, the Court of Appeal, Ibiyeye J.C.A, held as follows:
“The learned trial Judge meticulously reviewed the circumstances of the inferential involvement of the appellant in the decapitation of the deceased Bomboy in such a way that a closely knit chain of implicating events which led to the death of Bomboy was formed. To mention but a few, there is sumptuous evidence that the day Bomboy was reported missing, the appellant was seen carrying boiled water to the bush where the dismembered parts of Bomboy Ovie including the limbs and the severed head were either unearthed or were found in the jerry can which the PW2 saw the appellant carrying the boiled water into the bush . There were also bums on the skin recovered from the bush. Such bums are consonant with the effect of hot water poured on human skin.”
The facts are very clear as I have reproduced earlier in this judgment. The learned trial Judge believed those facts. Learned counsel for the appellant argued that the circumstantial evidence is based on speculations and suppositions by the learned trial Judge. He referred to Okpere v. The State (1971) 1 All N.L.R. page 1. With respect, the learned counsel cannot be correct to say that the learned trial Judge based his finding on speculations. The overwhelming circumstantial evidence in this case is of high degree of probability that any prudent man, considering all the facts as disclosed by the prosecution, would entertain no doubt that the appellant is the person who caused the death of Bomboy Ovie. I agree that the evidence adduced before the trial court is consistent only with the hypothesis of the guilt of the appellant.
Arguing the third and last issue, learned counsel submitted that the evidence of PW2, PW3, PW4, PW5 and PW7 were inadmissible. His reason is that PW2, PW3, PW4 and PW7 gave evidence in Urhobo language and from the record, it was not interpreted to the appellant who speaks Pidgin English. But counsel should not be so pedantic to the rules where the real facts are not apposite to his reasoning. All these witnesses are members of the appellant’s family. They all live in the same village together with the appellant. They are Urhobos and they speak Urhobo language. The appellant is an Urhobo and from the record, he had counsel representing him during the trial. He did not and I believe he cannot complain that he was not understanding what the witnesses were saying during their testimonies. I now refer to the provision of section 33(6)(e) of the Constitution which reads:
“33(6) Every person who is charged with a criminal offence shall be entitled –
(e) To have without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.
Paragraph (e) says that he can have the assistance of an interpreter if he cannot understand the language at the trial of the offence. Can the appellant say that he cannot understand Urhobo language The answer is obvious and I need not consider all the irrelevant authorities cited by the learned counsel on this issue. PW5 told the trial court that he was a Senior Medical Doctor. When asked whether he was a pathologist, he answered in the negative. He is indeed qualified as an expert to conduct a postmortem examination and his testimony is based on that duty. The learned trial Judge did not rely on the evidence of PW5 where he said that the pieces of bones and flesh were that of a human being. He convicted the appellant based on the circumstantial evidence which he found cogent and compelling and which established beyond all reasonable doubt that the appellant voluntarily caused the death of Bomboy Ovie.
In sum, this appeal has failed. I affirm the judgment of the court of appeal in which it dismissed the appellant’s appeal against his conviction and sentence passed by the trial High Court.
SC.22/2000
