Godwin Josiah V. The State (1985)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

On 1st November, 1984 when this matter came before the Court, I allowed the appeal of the appellant, set aside the judgment of the High Court of Bendel State sitting at Ogwashi-Uku and the Court of Appeal, and ordered a retrial by the High Court of Bendel State sitting in Benin City. I will now give my reasons for the course I took and the orders I made.

Let me first state the facts of the case that are relevant to the point of law that have arisen here. The appellant, Godwin Josiah, was one of three prisoners arraigned before the High Court of Bendel State sitting at Ogwashi-Uku.

At the end of the prosecution case, two of the prisoners were discharged by the court and the appellant was the only one left to face trial. The case was, at that stage, adjourned for further hearing till another date. It is pertinent at this stage to observe that throughout the trial, that is from the beginning to the end, the appellant was not represented by counsel.

What followed after two of the accused persons had been discharged is better reproduced from the record –

“The accused in person (sic) is present in Court.

Avbenaghegha State Counsel appears for the Attorney-General. Court: To the accused: – I now call you to state your defence. The right of the accused are explained to him and the accused says:- ‘I like to give evidence in my defence on oath…..”

What these rights were, that were explained to the accused person, had not been specifically set out in the record. Now, s.287 of the Criminal Procedure Law of Bendel State (Cap. 49) Laws of Bendel State of Nigeria, which is the relevant provision in issue, provides-

“At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence; the court shall call upon him for his defence and –

(a) if the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely-

(i) he may make a statement, without being sworn, from the place where he then is; in which case he will not be liable to cross examination; or

(ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross examination, or

(iii) he need say nothing at all, if he so wishes ” (Italics for emphasis)

This is the position only where a person is not represented by a legal practitioner. If he is represented, there is no problem, for the legal practitioner knows fully the implications of the accused person electing to pursue any of the three courses and to this, I will return anon.

This then was the gravamen of the attack on the judgment by Mr. Shola Rhodes of learned counsel with the learned Deputy Solicitor General of Bendel State conceding the point. Incidentally, this Court had the opportunity of examining the point in the case of Prophet Malam Sheriff Kajola v. Commissioner of Police 1973 1 All N.L.R. (Part 2) 31. There, Elias C.J.N. as he then was, said, after setting out the provisions of s.287 of the Criminal Procedure Act, which corresponds with the provisions of the Bendel State Law already set out supra, and examining the implications of the provision-

“Section 287(1) of the Criminal Procedure Act lays a duty upon the Court of trial to put the three alternatives to the accused specifically and also to draw his attention to the provision of s.288 of the Act especially, as in this case, where the accused is either not represented by counsel at his trail or is so represented but his counsel is not in court at the material stage in the proceedings. The court must show clearly that the trial court has done so…….” (Italics mine)

The information to be given by the court to the accused, as requested by s.287(1) of the Criminal Procedure Law or Act as the case maybe, is not one of reading a “catechism”. For it is not one wherein mere reading of the provisions of the section as a matter of form, would be sufficient. What is essential is the appreciation by the accused person of the situation in which he has found himself without the advantage of a legal practitioner.

What then are the implications of the election to which the accused is put The implications will depend on the circumstance of each case. The election gives him the right to elect to give evidence, he might elect not to give evidence, the evidence if given might be from the dock or the witness box. He might as a result of his election be sworn or unsworn. Indeed, whereas an election might attract his being cross-examined, with another election he would not.

Except an accused person actually appreciates the implications of each therefore, it might be the fancy of it and not the substance of the depth of the legal result that might be the attraction to him. For instance, the accused person might choose the line of least resistance, and except he fully understands and appreciates the implication of each alternative and such alternative is so specifically explained to him he might make an irretrievable mistake.

One must always bear in mind that what called for this elaborate election is the fact that the accused is not represented by counsel. In other words the advice which his counsel, had he been so represented, would have given him is now ascribed as a duty to the court trying his case as one which is contained in s.287(1) of the Criminal Procedure Law. It is to this end that I think the accused must be made to be aware of the advantage or not of giving evidence in the case. He should be able to decide on the advisability of submitting himself to cross-examination or not before deciding on what he would elect to do. For, if it has to be his decision (and this is why it is referred to as his election) then he has to understand perfectly before he can be left to that election.

In my view, a bald statement, as in this case, that – “the rights of the accused are explained to him” is certainly not enough. Not only should the court record show clearly what the trial court has done, whatever rights have been explained to the accused must be fully recorded see Ama Ema v. The State (1964) 1 All N.L.R. 416, for, indeed, this is the essence of having a court of record.

Finally, I hold that all these must be a pre-requisite to a fair trial. For an accused to be held to have had a fair trial, he must be shown to have been fully aware of his rights. Whatever he does with those rights after that is purely his business.

It is for these reasons that I allowed the appeal of the appellant on 1st November, 1984 and ordered that he be retried by the High Court of Bendel State sitting in Benin City.

A. O. OBASEKI, J.S.C. (Presiding): On the 1st day of November, 1984, after hearing the submissions of counsel, I allowed the appeal of the appellant against his conviction of robbery and murder and sentence of death, quashed the conviction and sentence and ordered the case to be remitted to the Ogwashi-Ukwu Division of the High Court of Bendel State to be tried de novo on the charge of murder. My reasons for the judgment were reserved till today and I now proceed to give them.

Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules 1975 provides:

“where an accused charged with an offence punishable with death is not defended by a legal practitioner, the tribunal shall assign a legal practitioner for his defence.”

The Criminal Procedure Law Cap. 44 Vol. 2 Laws of Bendel State which came into force on 1st June, 1945 contains similar provision in section 352. The said section 352 reads:

“where a person is accused of a capital offence, the State shall, if practicable, be represented by a law officer, or legal practitioner and if the accused is not defended by a legal practitioner, the Court shall, if practicable, assign a legal practitioner for his defence.”

Our law therefore accords to any person accused of a capital offence a right to have his defence conducted by a legal practitioner assigned by the Court if he is unable to afford the services of one.

This is in further realisation of the fundamental right entrenched in our Constitution that

“every person who is charged with a criminal offence shall be entititled (c) to defend himself in person or by legal practitioner of his own choice.”

(see section 33(6)(c) of the Constitution of the Federal Republic of Nigeria 1979) and to ensure that all legal defences, the accused is entitled to be brought forward before the court.

One of the two questions for determination in this appeal is whether the failure of the trial court to comply with the provisions of Rule 5 of the Robbery and Firearms Tribunal (Procedure Rules) 1975 and section 352 of the Criminal Procedure Law of Bendel State Cap. 49 Vol. 21976 does not nullify the proceedings and judgment.

The second question is whether there was sufficient compliance with section 287(1) of the Criminal Procedure Law Cap. 49 Vol. 2 Laws of Bendel State 1976 by the learned trial judge when he recorded that “the rights of the accused were explained to him, the accused”.

The short answer to these questions is that any conviction and sentence arising from failure to comply with the aforesaid provisions of law will not be allowed to stand. See Lateef Saka v. The State (1981) 11-12 SC. 65 at 68.

The two questions have been exhaustively dealt with in the Reasons for Judgment just delivered by my learned brother, Eso, J.S.C. the draft of which I had the pleasure of reading in advance. I agree with my learned brother in his opinion on the issues.

It was for those reasons so ably set out in his judgment that I allowed the appeal of the appellant, set aside the judgment of the Court of Appeal and the High Court and ordered a retrial. A failure to order a retrial will not, in my view of the evidence on record, meet the ends of justice in the case.

A. NNAMANI, J.S.C.: When this appeal came before this court on 1st November, 1984. I allowed it, set aside the conviction and sentence and remitted the case to the High Court of Bendel State for retrial. I also indicated that I would give my reasons for this judgment today. I now give my reasons.

The facts of this appeal have been fully set down in the lead reasons for judgment delivered by my learned brother, Eso, JSC. The issues involved in the appeal have also been exhaustively dealt with by him and his reason accord with mine. I shall merely seek to emphasise them.

The appellant had been convicted of the murder of Innocent Oluwah by the High Court of Bendel State Ogwashu Ukwu Division. The conviction and sentence were sustained by the Court of Appeal. On appeal to this court, learned counsel to the Appellant sought and obtained leave of this Court to file and argue two additional grounds which were –

(1) The Court of Appeal erred in law in affirming the conviction and sentence of the Appellant when the provisions of Section 287 and Section 288 of the Criminal Procedure law and the Robbery and Firearms Tribunal (Procedure Rules 1975 (Legal Notice No. 56 of 1975) Rule 5 were not complied with and thereby led to miscarriage of justice.

(2) The Court of Appeal erred in law in affirming the conviction and sentence of the Appellant when the Prosecution did not prove its case against the Appellant beyond all reasonable doubt”

As regards Section 287(1)(a) of the Criminal Procedure Law the learned trial judge’s records merely state that the provisions had been explained to the accused. In the circumstances of this case, particularly the fact that the appellant was throughout the trial not represented by counsel non-compliance with Section 287(1)(a) becomes even more grievous for such an accused cannot be expected to appreciate the implications of the choice he makes out of the 3 options open to him. The mandatory words in which Section 287 is couched seem to me to indicate that the duty which the trial court has to perform is of a fundamental nature if the unrepresented accused person is to have a fair trial. In that circumstance that requirement cannot be satisfied by a mere record of compliance. The trial court must show on the record that the requirements of Section 287(1)(a) have been complied with. See Commissioner of Police v. Kajola 1973 1 All N .L.R. Part II 31. So fundamental is compliance with Section 287(1)(a) of the Criminal Procedure Law that this Court has held that non-compliance with it is an irregularity which would lead to the selling aside of a conviction unless it appeared that no substantial miscarriage of justice had occurred. See Arua Erne v. The State (1965) N.M.L.R.62.

But perhaps the most serious complaint put forward by learned counsel for the Appellant is the absence of representation by counsel of the appellant throughout the trial. It is astonishing to say the least that this aberration neither occurred to the State Counsel who prosecuted nor indeed to the learned trial judge himself.

The appellant was charged with armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 and with Murder punishable under Section 319(1) of the Criminal Code Law Cap. 48 Vol. II of Bendel State of Nigeria 1976. Both are capital offences. Under Section 352 of the Criminal Procedure Act a person accused of a capital offence shall, if practicable, be represented by a law officer, state counselor legal practitioner and if the accused is not defended by a legal practitioner the Court shall if practicable assign a legal practitioner for his defence. The Robbery and Firearm Tribunal (Procedure) Rules 1975 Rule 5 also makes it mandatory for the accused to have legal representation. In the instant appeal the appellant cross-examined witnesses and gave evidence on his own behalf. Although State Counsel addressed the Court he was not even asked if he wished to address too. The breach of these two Sections was in my view sufficient to vitiate the proceedings. It cannot be said that the appellant faced with such a serious charge has had a fair trial as he was entitled to under our law.

The Conception of a fair trial under our law has been fully set down in Section 33 of the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No.1 of 1984 and I am of the view that the circumstances under which the appellant was tried are contrary to some of the provisions of subsection 6 of that Section.

As regards ground 2 of the additional grounds of appeal I am of the view as i was on 1st November, 1984 that it lacks substance. The evidence on which the learned trial judge convicted the appellant, though circumstantial, was overwhelming and conclusive. The deceased was last seen alive with the appellant and this taken together with other facts led to the learned trial judge to the conclusion he reached and which the Court of Appeal upheld. In the fact of such overwhelming evidence it would have amounted to a travesty of justice to discharge and acquit the appellant. I am reminded that it is not only the accused who demands or desires justice; the victim, sent to his death prematurely in some cases, and always unjustly demands and deserves that justice.

It was for these reason and for the more exhaustive reason given by my learned brother, Eso, JSC. to which reference had been made earlier that I allowed the appeal.

B. O. KAZEEM, J.S.C.: On 1st November, 1984, this appeal was allowed and the conviction and sentence of the appellant were set aside. The case was then remitted for retrial by a court of competent jurisdiction. I now give my reasons for that judgment.

The appellant and two other persons who were discharged at the close of the case for the prosecution, were charged on two counts of Armed Robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 17 of 1970; and Murder contrary to section 319(1) of the Criminal Code Law Cap. 48 of the Laws of Bendel State. The evidence led by the prosecution in support of both counts was mostly circumstantial; but at the conclusion of the trial, the learned trial Judge accepted the testimonies of the prosecution witnesses and found the appellant guilty on both counts. He then convicted and sentenced him to death. The appellant’s appeal to the Federal Court of Appeal, Benin was also dismissed.

However, during the trial at the High Court, the appellant was not represented by any legal practitioner nor was any assigned to him even though the offences for which he was being tried carry death sentences. That was of course contrary to the provisions of section 352 of the Criminal Procedure Law Cap 49 of the laws of Bendel State (hereinafter referred to as the “LAW”) and Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules 1975. Moreover, at the conclusion of the case for the prosecution and after the learned trial Judge had ruled that the appellant had a case to answer, the learned trial judge did not specifically put to the appellant before he commenced his defence, the three alternatives open to him as required by section 287(1)(a)(i)-(iii) of the Law. What the trial Judge did as contained at page 15 lines 7 to 10 of the Record is as follows:

“Court to the Accused: I now call you to state your defence. The rights of the accused are explained to him and the accused says:-

I like to give evidence in my defence on oath.”

Those two lapses during the proceedings at the trial of the appellant were the main cause of complaint during the appeal to this court; and learned counsel assigned to the appellant (Mr. Shola Rhodes) was granted leave to file and argue the following additional grounds:

GROUND I: “The Court of Appeal erred in law affirming the conviction and sentence of the Appellant when the provisions of S.287 and S.288 of the Criminal Procedure Law and the Robbery and Firearms Tribunal (Procedure) Rules 1975(Legal Notice No. 56 of 1975) Rule 5 were not complied with and thereby led to miscarriage of justice”.

GROUND II: “The Court of Appeal erred in law in affirming the conviction and sentence of the Appellant when the Prosecution did not prove its case against the Appellant beyond all reasonable doubt”.

PARTICULARS OF ERROR

The fact that the deceased was last seen alive in the company of the Appellant is not enough evidence as required by law that the Appellant was the murderer. NOR the fact that the Appellant was found in unlawful possession of the taxi cab driven by “his victim” after “the murder” and that he made attempt to repaint the vehicle and falsify document”, irresistibly point to the Appellant as the murderer without the standard of proof required by law.

GROUND III: “The conviction of the Appellant as affirmed by the Court of Appeal is unwarranted, unreasonable and cannot be supported by the evidence.”

As can be seen above, only ground one related to the main complaint of irregularities in the procedure adopted at the trial. The remaining two grounds dealt with the merit of the case. But learned counsel for the appellant on opening his submissions in this court, said that he was not pursuing the question of the merit of the case thus abandoning the last two additional grounds of appeal. Ground one relates to the breach of sections 287(1)(a)(i)(iii), 288 and 352 of the Law and Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules, 1975 which provide as follows:

“287. (1) At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and –

(a) if the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely –

(i) he may make a statement, without being sworn, from the place where he then is; in which case he will not be liable to cross-examination; or

(ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross-examination; or

(iii) he need say nothing at all, if he so wishes, and in addition the court shall ask him if he has any witnesses to examine or other evidence to adduce in his defence and the court shall then hear the defendant and his witnesses and other evidence, if any;”

“288. Failure to comply with the requirements of paragraph (a) in section 287 shall not of itself vitiate the trial provided that the court called upon the defendant for his defence and asked him if he had any witnesses and heard the defendant and his witnesses and other evidence, if any.”

“352. Where a person is accused of a capital offence the State shall, if practicable, be represented by a law officer, or legal practitioner and if the accused is not defended by a legal practitioner the court shall, if practicable, assign a legal practitioner for his defence,”

“Rule 5: Where an accused charged with an offence punishable with death is not defended by a legal practitioner, the tribunal SHALL assign a legal practitioner for his defence”.

With respect to ground one of the grounds of appeal which deals with procedural irregularities at the trial, the West African Court of Appeal as well as this Court have pronounced on the issue in so many of their judgments such as:.

Oladimeji v R. 13 WACA. 275.

Atunde v Police Commissioner 14 WACA 171.

Aruna Eme v The State (1964) 1 All N.L.R. 416.

(Same as Anyah v The State (1965) N.M.L.R. 62).

Kajola v Police Commissioner (1973) 1 All N.L. R. Pt. 11 31 at p.37 and Lateef Saka v. The State (1981) 11-12 SC. 65 at page 79.

Particularly in the last case of Lateef Saka (Supra), all the previous decisions were reviewed before this court came to the conclusion that the appellant in that case did not receive a fair trial. Consequently, his appeal was allowed, and his conviction and sentence were quashed.

I have had the privilege of reading the draft of the reasons for judgment just delivered by my learned brother Kayode Eso, J.S.C. He has again carefully considered the facts in this case; and the decisions of this court on the matter. I entirely agree with the reasons and conclusions reached by him. I therefore adopt them as my own.

In addition, I also agree that section 287(1) of the Law imposes a duty upon the court of trial to put the three alternatives to an accused person specifically and also to draw his attention to the provision of section 288 of the Law especially as in this case where the appellant was not represented by a legal practitioner at his trial. Moreover, the court record must also show clearly that the trial court had done so. But as that was not done in this case, and because learned counsel for the appellant did not pursue the question of the merit of the case, we were of the view that it would be more in accord with the interest of justice to order a retrial in this case; and we did.

C. A. OPUTA, J.S.C.: After a careful consideration of the record at proceeding, and the Briefs filed by learned counsel on both sides; and after listening to the oral arguments advanced by the learned counsel in further elaboration of the questions canvassed in their respective Briefs; I allowed this appeal, quashed the conviction and sentence of the trial court – the Ogwashi-Uku Judicial Division of the Bendel State High Court and the judgment of the court below – the Court of Appeal Benin Division. I also ordered that the appellant be sent back to the appropriate High Court for a retrial on the charge of murder. I then indicated that I will give my reasons today. Hereunder are those reasons.

The appellant, Godwin Josiah, was the 1st accused in charge No. 0/5C/82. He and two others, Alexander Maduawusi and Monday Obiazi were arraigned before Mitaire Unurhoro, J. on a two count charge of (1) Armed Robbery and (2) Murder. All three, each pleaded – “Not Guilty”. The trial commenced with Ebioke State Counsel for the State and J J .C. Odiete for the 2nd and 3rd accused persons. The 1st accused, the appellant in this court, was not represented by counsel. He conducted his entire defence. He personally cross-examined the prosecution witnesses. At the close of the prosecution’s case, learned counsel for the 2nd and 3rd accused made a “No case” submission which was upheld, and rightly in my view, by the learned trial judge. The 2nd and 3rd accused ‘persons were then as a result discharged on the 26/1 0/82.

With regard to the 1st accused, the present appellant, the learned trial judge held, and rightly too:-

“I hold that a prima facie case has been made out against the 1st accused with respect to the two counts to require him to state his defence.”

The case was then “adjourned to 3/11/82 for further hearing.” On the adjourned date, 3/11/82, the appellant appeared again in person. He was not represented by counsel. The record of proceedings (p. 15) contains the following entry:-

“Court: To the accused:- I now call you to state your defence. The rights of the accused are explained to him and accused says:- I will like to give evidence in my defence on oath..”

The appellant then gave evidence on oath in his own defence and was cross-examined. He told the trial court he had no witnesses to call. The case was thereafter “adjourned to 11/11/82 for further hearing.” On 11/11/82, learned State Counsel for the prosecution addressed the court and the learned trial judge adjourned the case to 29/11/82 for judgment without as much as asking the appellant whether he wanted to address the court, (since he conducted his entire defence). On the 29/11/82, the learned trial judge delivered his judgment convicting the appellant on each of the two counts and sentenced him to death by hanging.

The appellant then appealed from his prison cell to the Court of Appeal, Benin Division on 3 grounds. He signed the Grounds of Appeal himself. Ground of reads as follows:

“The trial judge erred in law to try the appellant in a case of armed robbery and murder when there is no lawyer for the appellant to defend him according to the law of Nigeria an accused having a case of armed robbery and murder cannot be tried without a lawyer;

This ground of appeal may be grammatically and legally inelegant but it is a very vital and substantial ground. This ground notwithstanding, both learned counsel for the appellant and the respondent, in the court below told the court that they had “nothing to urge in favour of the appellant.”

In a rather short judgment, the court below dealt entirely with the merits of the case, obviously either ignoring or else overlooking the issue raised by the appellant in Ground 1 of his grounds of appeal. In it’s judgment, the court below observed as follows:

“In the instant case, the deceased was last seen alive in the company of the accused person and his conviction is not unlike that in Peter Igho v. The State (1978) 2 S.C. 87 and in James Igbinovia v. The State (1981) 2 S.C. 5-28. His appeal on ground 2 is therefore dismissed”

Nothing was said about ground I before the court below finally concluded:-

In the circumstances, the appeal is dismissed in its entirety and the conviction and sentence of the Ogwashi-Uku High Court dated 29th November 1982 are accordingly affirmed.”

The appellant was dissatisfied with the above judgment of the Court of Appeal, Benin Division and he now appeals to this court.

Shola Rhodes, Esquire, asked for and was granted leave to file and argue 2 additional grounds of appeal. Ground 1 of the additional grounds complained that:-

“The Court of Appeal erred in law in affirming the conviction and sentence of the appellant when the provisions of Section 287 and Section 288 of the Criminal Procedure Law and the Robbery and Firearms Tribunal (Procedure) Rules 1975 (Legal Notice No. 56 of 1975) Rule 5 were not complied with and thereby led to miscarriage of justice.”

Now Section 287(1) of the Criminal Procedure Law stipulates:-

“At the close of the evidence in support of the charge, if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence, the court shall call upon him for his defence and –

(a) if the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely –

(i) he may make a statement, without being sworn, from the place where he then is; in which case he will not be liable to cross-examination, or

(ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross-examination, or

(iii) he needs say nothing at all, if he so wishes: and in addition, the court shall ask him if he has any witnesses to examine or other evidence to adduce in his defence and the court shall hear the defendant and his witnesses and other evidence if any.”

The above provisions of S. 287(1)(a) of the Criminal Procedure Law are not decorative, so, they are functional and their main function is to safeguard justice to an accused person (not defended by counsel) who himself not being legally qualified may unknowingly or unwillingly incriminate himself.

It is not easy to stand up to cross-examination. It may even be difficult for a trained lawyer to decide in any particular case whether it is safe or unsafe to expose an accused person to the ordeal of cross-examination. Under our system, there is no onus on an accused to prove his innocence. The law presumes him innocent. There is thus no duly on the accused to help the prosecution prove him guilty. Our law is against self-incrimination. It is in the interest of justice that every rule in favour of an accused person is meticulously observed and that no rule is broken to his prejudice. The least that the trial court could have done for the appellant whose life was at stake, (he was standing trial for his very life) was to inform him of his rights under S.287(1) and it should be apparent on the record that each alternative was explained to the appellant since he was not represented by a legal practitioner.

It is not for fun that the duty of the court where an accused person is represented is much lighter. Under S. 287(1)(b) of the Criminal Procedure Law, the court will merely “call upon the legal practitioner to proceed with the defence.” The rationale here is that the legal practitioner will know what to do and how to do it. He takes full responsibility.

In the instant appeal, the issue boils to this – Is the trial court’s record:-

I now call on you to state your defence. The rights of the accused are explained to him” – sufficient compliance with S.287(1)(a) of the Criminal Procedure Law From a review of the authorities, the answer should be in the negative – a positive, unhesitating, No. This court in Kajola v. C. O. P. (1978) 1 All N.L.R. (Part II) 31 at p. 35 held that a record of the trial court namely:-

I hold that the accused has a prima facie case to answer in respect of count 3 and I now call him for his defence in respect of this count.”

“is insufficient by itself to satisfy the requirements of S.287(1), Criminal Procedure Act.” That judgment went further to state that “Section 287(1) of the Criminal Procedure Act lays a duty upon the court of trial to put the three alternatives to the accused specifically.” The learned trial judge’s record

“The rights of the accused are explained to him” is, to say the least, and that, with the greatest respect, vague. His rights under what law one may ask Definitely the appellant has some rights under the Constitution. In any event, what is required under S.287(1) is not evidence of an ambiguous “explanation of his rights” but evidence on the record that “the three alternatives (envisaged in S.287(1) were put to the appellant specifically.” The record does not show that this was done in this case.

There is another defect on the record of proceedings of the trial court showing another non-compliance with S. 287 and S.288 of the Criminal Procedure Act. At the end of the sworn testimony of the appellant, the trial court made the following record:

“Court to accused:- Have you any witness

Accused:- I have no witness”

The case was then adjourned for addresses. Under S. 287(1) of the Criminal Procedure Act. after putting the three alternatives specifically to the accused, the trial court “shall in addition ask him (i) if he has any witnesses to examine or (ii) if he has other evidence to adduce in his defence.” Surely, an accused may not have witnesses to examine but he may have “other evidence to adduce” like documentary evidence. In the case of appeal, the appellant was asked if “he had witnesses” but not if he had “other evidence to adduce.” It is my humble view that to amount to full compliance with S.287(1) Criminal Procedure Act, the trial court should have also asked the appellant if he had “other evidence to adduce.” This was not done.

As to the effect of this failure to comply with Section 287 of the Criminal Procedure Act, this court in Lateef saka v. The State (1981) 11/12 SC. 65 considered the English case of Rex v. Joseph Carter 44 CR. App. R. p. 225 where the Court of Appeal in England quashed the conviction of an unrepresented prisoner, because the prisoner at the end of his testimony in his defence had not been asked by the judge who tried him if he so desired to call any witness in his defence. This shows how seriously appellate courts should view any infraction of the provisions of S. 287 of the Criminal Procedure Act. But in Anucha Anya & Ors. v. The State (1965) N.M.L.R. 62 at p. 65, this court held that failure to comply with S. 287(1) of Criminal Procedure Act will not per se and ipso facto nullify the trial, the proper course is to consider the effect of such failure.” The court “applied the proper” course in Saka v. The State supra and held (per Irikefe, J.S.C.) at p. 84 that

“In view of the undisputed non-compliance with the provisions of Section 287(1)(a)(i)-(iii) of the Criminal Procedure Law, coupled with the fact that the appellant was neither defended by counsel nor had one assigned for his defence by the tribunal as stipulated under Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules 1975, I was not in any doubt that the appellant, in his case, could not be said to have had a fair trial.”

In other words, the court will have to go beyond the mere failure to comply with S. 287 of the Criminal Procedure Act to see if in the surrounding circumstances of the case in hand, there were other aggravating factors which will combine to vitiate the trial.

This leads naturally to a consideration of the second limb of the 1st Ground of Appeal filed on behalf of the appellant, namely: failure to comply with the mandatory provisions of Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules 1975. Those Rules were published as Legal Notice No. 56 of 1975. Rule 5 stipulates

“where an accused charged with an offence punishable with death is not defended by a legal practitioner, the tribunal shall assign a legal practitioner for his defence.”

The above Rule is in essence also reflected in Section 352 of the Criminal Procedure Act. Both emphasise the need for legal representation of an accused person on trial for his life. In addition to the two requirements mentioned above, there is a constitutional right in the appellant to fair hearing under Section 33 of the 1979 Constitution.

A fair hearing presupposes first and foremost a hearing. We operate the “Adversary System”. The major feature of this system is the passive and inactive role of the judge in the presentation of cases in court. The judge under our system is at best an attentive listener to all that is said on both sides. He is not an investigator. He speaks mainly to deliver judgments. This passive role of the judge emphasises the active role of counsel for the prosecution and for the defence. What is a “hearing” worth to an accused person who does not understand the language of the court, who does not know the rules of procedure, and who cannot properly present his case The right to counsel is thus at the very root of, and is the necessary foundation for a fair hearing. The ordinary layman, even the intelligent and educated layman is not skilled in the science of law and he therefore needs the aid and advice of counsel. It is because of this need that, in capital offences, attracting the death penalty, the accused is not left undefended. If he cannot afford the services of counsel the State assigns one to him. It is surprising that none was assigned to the appellant in the court of first instance. It is even more surprising that when the appellant himself. (though not a lawyer) raised this point in his 1st Ground of Appeal 10 the court below. nobody look it up. A fair hearing in cases coming under Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules like the one on appeal. (where Rule 5 makes the services of a legal practitioner mandatory), must include the right to and the aid of counsel for the defence. This was denied the appellant in this case. I am satisfied that the appellant had no fair hearing in the trial court. This coupled with the non-compliance with the provisions of Section 287 of the Criminal Procedure Law by the trial judge vitiate the trial and makes it mandatory that this appeal should be allowed.

The more difficult question is what order to make on allowing this appeal. At first Mr. Rhodes gave the impression that he was not challenging the merits of this case. In other words, that he was abandoning his Ground 2 which complained:

“That the Court of Appeal erred in law in affirming the conviction and sentence of the Appellant when the Prosecution did not prove its case against the appellant beyond all reasonable doubt.”

But when the court indicated that it will allow the appeal and remit the case back for a “fair trial” and “a fair hearing”, Mr. Rhodes appeared to resist this on the ground of double jeopardy. On the merits of this case, Mr. Rhodes will be batting on a very slippery wicket.

The common law concept of double jeopardy has been enshrined in our Constitution in Section 33, sub-section 9 which stipulates:-

“No person who shows that he had been tried by any court of competent jurisdiction for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredient as that offence save upon the order of a Superior Court.” (Italics mine) Section 33 of our 1979 Constitution deals with fair hearing and when it uses the expression “he had been tried”, this must necessitate, imply that at the trial there was a fair hearing. Where, as in this case, there was no such fair hearing, the trial is vitiated or nullified. If the first trial is a nullity, the result will be as though the appellant had not been tried at all and the question of double jeopardy will not then arise. But for a much stronger reason, the same subsection 9 of Section 33 reserves to a Superior Court the right to order that an appellant be tried again in spite of the fact that he had been tried before. I am sure Mr. Rhodes will concede that this Court is a Superior Court.

In deciding whether to allow the appeal and acquit and discharge an appellant, the court must consider the surrounding circumstances in the interest of justice. Any order allowing this appeal and also acquitting and discharging the appellant will not be an order made in the interest of justice. And justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic – justice for the appellant accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, “whose blood is crying to heaven for vengeance” and finally justice for the society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of. It is certainly in the interest of justice that the truth of this case should be known and that if the appellant is properly tried and found guilty, that he should be punished. That justice which seeks only to protect the appellant will not be even handed justice. It will not even be justice tempered with mercy.

Mr. Pitt Taylor in his book on Evidence observed at p. 597 that justice and common-sense are at times sacrificed on the shrine of mercy. Erie, J. in Reg v. Baldry (1852) 5 Cox C.C. 531 was of the opinion that the sacrifice is not even on the shrine of mercy but rather on the shrine of guilt. In this case on appeal, I will not attempt any such sacrifice, certainly not on the shrine of mercy. On the contrary they cry out eloquently, though silently, for the shattering strokes of retributive justice. To acquit the appellant at this stage, on a mere technical point, and without a retrial on the merits, will be to sacrifice justice and common-sence on the shrine of guilt not mercy, for the community has a right to regard such a wrongful acquittal as unmerciful, firstly, to the accused person whose real interests are sacrificed by his escape on a serious charge when his innocence or guilt still hangs on a balance and secondly, to society whose protection and security are compromised and jeopardised by a rash acquittal.

In the English case of Mary Kingston (1945) 32 Cr. App. R. 183 where the appellant was tried without the assistance of counsel, the English Court of Appeal held that the course adopted was tantamount to depriving the appellant of the right which she had to be defended by counsel and the conviction must be quashed. Commenting on the appropriate order to be made, the English Court of Appeal lamented thus at p. 190:-

“If this Court had the power which this Court times without number has stated that it ought to have, namely, that of ordering a new trial in the very, very few cases in which the Court would consider that a new trial was the appropriate remedy, there is no question that this case is one which would’ cry out for a new trial.”

In this appeal before the Court, I have no doubt at all that if there is a case which would cry out for a new trial, this one on appeal is one such case. Unlike the English Court of Appeal in Mary Kingston’s case (the position has since been remedied), this Court has power under Section 33(9) of the 1979 Constitution and Section 30 of the Supreme Court Act No. 12 of 1960 on the hearing of a criminal appeal to “order the case to be retried by a court of competent jurisdiction.”

It is for the above reasons and for the more detailed reasons in the leading judgment of my learned brother Kayode Eso, J.S.C. that I allowed this appeal. The appellant is hereby sent back to an appropriate High Court for trial on a charge of murder.

Appeal Allowed.

Retrial Ordered.

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SC.59/1984