Jerome Akpan V. The State (2002)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

The appellants were convicted at Umuahia High Court of the murder of Sampson Etim on November 30, 1990 and sentenced to death. The case for the prosecution was that on April 22, 1988 the deceased, his wife Alice Sampson (P.W 2) and two friends of his named Friday Ben (P.W. 3) and James Okoro (PW. 4) went to harvest cassava from the deceased’s farm. After a while on the farm, the deceased decided to go to the portion of his cassava farm which was harvested by thieves from Ndiwo village. He was soon after halted by about 20 persons as to what he was doing on the farm. A noisy argument soon ensued when one of the persons ordered “shoot him! shoot him!”. Immediately the deceased was shot and he fell and died on the spot. The matter was reported to the police and after investigation the appellants together with three other persons were put on trial.

The appellants were in the gang that killed the deceased. P.W 3 had known them before this incident; he mentioned their names in his statement to the police and also in the court. The police conducted an identification parade in which P.W 2, P.W 3 and P.W 4 identified some of the accused persons.

The learned trial Judge found the case against the 1st accused, Okechukwu Benedict not proved. Accordingly he was acquitted and discharged. He however found the appellants, Damian Etim and Boniface Iseh guilty of murder as charged.

They appealed against the conviction to the Court of Appeal. The appeal of Boniface Iseh who was the 2nd appellant before that court was allowed. He was accordingly acquitted and discharged. The appeals of the appellants and Damian Etim were dismissed. The appellants Jerome Akpan, Monday Imo, Peter Uyaudoh and Peter Job have further appealed to this court. The appellants filed separate briefs of argument. I shall, therefore, deal with the four appeals separately.

1st appellant: The first appellant is Jerome Akpan. In his brief of argument, this appellant raised four issues for determination which read:

1. Whether the defence of the appellant was properly considered by the two courts below.
2. Whether the discharge and acquittal of the 1st accused on the same piece of evidence which incriminated the appellant, should not have resulted in the discharge and acquittal of the appellant.
3. Whether the court below could believe the evidence of P.W. 3 as against that of P.W. 2 and 4, on the identification of the appellant.
4. Whether the trial of the appellant was valid in law.

The respondent, for its part, adopted the issues for determination formulated by the appellant.

The appellant, in his brief of argument dealt with the last issue (issue no.4) first. Under this issue it was submitted that a charge or information as framed and filed must be read to an accused person in a proper and lawfully approved arraignment proceedings. It was pointed out that section 215 of the Criminal Procedure Act governs arraignment proceedings. Under the provisions of s. 215 of the Criminal Procedure Act the requirements for a valid arraignment consists of:

1. The accused must be placed before the court unfettered. Simply put, the accused person shall be present in court.
2. 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
3. The accused person shall then be called upon to plead instantly thereto. Failure to comply with these conditions would render the whole trial a nullity.
4. The record of the court must show that this procedure is followed. It is good practice for trial court to specifically record that: “Charge was read and fully explained to the accused to the satisfaction of the court”.

It was the submission of the appellant that the proceedings of 20/9/88 did not comply with conditions (2) and (4). It was contended that there is nothing on record to show in which language the charge was read to the appellant before he was asked to plead thereto. It was also said that there was nothing on record to show that the charge was fully read and explained to the appellant to the satisfaction of the court. It was submitted that non-compliance with these requirements rendered the trial a nullity. The appellant relied on the following cases: Eyorokoromo v. The State (1979) 6-9 SC. 3; Kajubo v. The State (1988) I NWLR (Pt. 73) 721.

For the respondent it was contended that it is sufficient if on the face of the record of the court, it was clear that the charge was explained to the appellant before he pleaded to it. The fact that the trial court proceeded to take the plea of the appellant is an indication that it was satisfied with the explanation of the charge to the appellant. For this contention the respondent relies on Eyisi v. The State (2000) 15 NWLR (Pt. 691) 555 and Durwode v. State (2000) 15 NWLR (Pt. 691) 467 at 485.

The arraignment of the appellant is contained on page 32 of the record. The trial court recorded the following:

“Accused present.

Ejelonu E. J. Legal Adviser for the state.

Kalunta C. A. for the accused.