Nnukwu Umuolo V. The State (2002)
LawGlobal-Hub Lead Judgment Report
IBIYEYE, J.C.A.
The appellant, Nukwu Umuolo, was arraigned before the Delta State High Court of Justice sitting in Asaba and presided over by Akoro, J. on a one count charge for the murder of John Ogbue on 18th of August, 1989 under section 139(1) of the Criminal Code Cap. 48, Volume 1, Laws of Bendel State of Nigeria, 1976 as applicable to Delta State.
A plea of not guilty appeared to have been taken from the appellant after the P.W.1 had been sworn on iron but before he started adducing evidence.
Evidence was adduced by both the prosecution (now respondent) and the accused person (now the appellant).
The items of evidence in this case are briefly as follows, the respondent called seven witnesses while the appellant testified in his own behalf. Only the P.W.1 out of the seven respondent’s witnesses appeared to give an eye witness account of what happened.
The P.W. 2, P.W. 4, P.W.5 and P.W. 6 testified to what happened after the deceased, John Ogbue, had been attacked. The testimony of the P.W.3, Madam Margaret Akpapuna, who ran a beer parlour is that both the deceased and the appellant, among others, patronized her outfit on the 13th day of August, 1989. Both of them separately placed order for bottles of beer which she obliged them. In the course of consuming the contents of the bottles ordered, she heard both the deceased and the appellant exchanging words. She intervened and the appellant informed her in the presence of others that the deceased threw an ashtray at him. She pacified the appellant who left the beer parlour. The deceased also left the beer parlour some twenty minutes after the appellant had left. The P.W. 7, Dr. Suleiman Abu, a consultant pathologist at the General Hospital, Benin City testified, in essence, that he performed autopsy on the corpse of John Ogbue. He wrote a report which he gave to the police. That report was not tendered and no police officer testified for the respondent. The seeming star witness, Mr. Benjamin Igbeka, the P.W. 1, who said the deceased was his brother testified that he saw when the appellant hit the deceased on the neck with an object he could not identify because the appellant put it back in his pocket immediately after use. The appellant thereafter held the deceased person’s throat. He tried in vain to release the appellant’s hand from the deceased but in vain. He raised an alarm and the appellant ran away from the scene and threatened to shoot anyone who came near him. In view of the threat, he withdrew and reported the incident to Ekeobodo, the sister of the deceased that the appellant had killed her brother. I shall cursorily remark that Madam Ekeobodo did not testify. Mrs. Veronica Obodo, the sister of the deceased, who testified as the P.W. 4 did not say that it was the P.W.1 who told her what she described as certain things. Under cross-examination the P.W.1 said that when he saw the deceased in a built up area at about 7.p.m. he was staggering and smelling of alcohol.
Only the appellant testified for himself. He denied killing the deceased. He instead alleged that it was the deceased who threw an ashtray at him in the beer parlour. The P.W. 3, the owner of the beer parlour, intervened and ordered the deceased out. He left the beer parlour. The appellant further testified that as he got out of the beer parlour, he met the deceased who slapped him and he retaliated and he (the deceased) staggered, and fell down. He further denied bringing anything out of his pocket to hit the deceased.
At the close of the case for the appellant, the learned counsel for both the respondent and the appellant addressed the court. In a considered judgment, the learned trial Judge convicted the appellant for murder on 25th April, 1995 and sentenced him to death by hanging.
The appellant was dissatisfied with the entire judgment and appealed against it on seven grounds.
The appellant formulated the following five issues for the determination of this appeal.
(i) Did the learned trial Judge comply with the provisions of Section 215 of the Criminal Procedure Law and Section 33 sub-section 6(a) and (e) of the Constitution of the Federal Republic of Nigeria, 1979, where he merely stated after P.W.1 had been sworn and after proceedings has commenced that; the charge was read to the accused person through a court interpreter and he appears to understand same and pleads not guilty to the offence of murder without disclosing the language in which the charge was purportedly read to the accused person?
(ii) Did the statement credited to the deceased by the P.W.6 qualify as dying declaration under section 33(1) (a) of the Evidence Act?
(iii) Was the learned trial Judge entitled in law to, in one breath, believe the confession of assault by the appellant as contained in exhibits A and B and in his examination-in-chief and in the same breach (sic) reject the said confession of assault by the appellant and believe that the appellant brought out an object to inflict injury on the neck of the deceased?
(iv) Was the learned trial Judge right in inferring intention to kill on the part of the appellant given the circumstance of the case?
(v) Was the learned trial Judge right in holding that there was no contradiction in the evidence of the prosecution witnesses?
The respondent, on its part, adumbrated the following four issues for the determination of the appeal.
- Whether the learned trial Judge complied with the provisions of Section 215 of the Criminal Procedure Law, Cap. 49, Volume 11 of the Bendel State applicable to Delta State and Section 33(b) (a) and (e) (sic) of the Constitution of the Federal Republic of Nigeria, 1979.
- Whether the statement credited to the deceased by PW.6 as dying declaration under section 33(1) (a) of the Evidence Act (sic).
- Whether trial Judge properly evaluated the evidence led at the trial by both the prosecution and the defence before convicting the appellant.
- Whether there was any material contradiction in the evidence of the prosecution witnesses.
The appellant’s and the respondent’s briefs of argument are similarly worded but the former’s brief is more comprehensively distilled from the grounds of appeal than the brief of the latter. I therefore prefer the issues identified in the appellant’s brief for the determination of this appeal.
At the hearing of the appeal, J.I. Ofor, Esq. and B.O. Odigwe, Esq., the learned counsel for the appellant and the respondent respectively amplified the issues in their briefs and urged the court to allow the appeal and dismiss the appeal respectively.
On issue 1, the learned counsel for the appellant referred to page 32 lines 20 to 25 of the records of proceedings and reproduced what the learned trial Judge stated thus:
P.W.1 Sworn on the iron, speaks Igbo language. Before P.W.1 testifies, the charge was read to the accused person through a court interpreter and he appears to understand same and pleads not guilty to the offence of murder.
Learned counsel argued that the learned trial Judge could not be in doubt that he was dealing with a murder case and ought to have complied with the provisions of Section 215 of the Criminal Procedure Law and the 1979 Constitution respectively. He referred to part of section 215 (supra) which reads:
“…The charge or information shall be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court and the accused shall be called upon to plead instantly thereto”
and submitted that the provisions of the said section are mandatory in their application and non-compliance with them is fatal and renders the attendant trial a nullity ab inito and he relied on the case of Omakinde Sanmabo v. The State (1967) NMLR 314 at 317 where it was held that the provision of Section 215 of the Criminal Procedure Law is mandatory and the requirement of a plea is not one of mere form but of law. He argued that from the face of the record, the P.W.1 had been sworn and proceedings had in fact commenced when it suddenly dawned on the learned trial Judge that he did not take and/or record the plea of the appellant and he proceeded to state that the appellant’s plea had been taken. He submitted that that approach did not amount in law to recording and/or taking the plea of the appellant and it therefore rendered the trial nullity and he relied on the case of Ede v. The State (1986) 5 N.W.L.R. (Pt. 42) 530 at 531.
He referred to the case of Kajubo v. The State (1988) 1 NWLR (Pt.73) 721, (1988) 3 SC 132 at 139 to 141 when Oputa, JSC (as he then was) exhaustively dealt the proper arrangement.
Learned counsel further submitted that the language in which the charge was read and interpreted to the appellant is very crucial to the understanding of the charge and relied on the provision of Section 33(6)(a) and (e) of 1979 Constitution which is in pari materia with Section 36(6)(a) and (e) of the 1979 Constitution. He equally submitted that the learned trial Judge had bounden constitutional duty to ensure compliance of the said constitutional provision but that he (the learned trial Judge) failed to do so. He contended that the failure of the learned trial Judge to record the language in which the charge was read and interpreted to the appellant was breach of section 33 (6) (a) and (e) of the 1979 Constitution which was judicially interpreted in the case of The State v. Boka 1 N.C.R. 85 at 91.
Learned counsel for the appellant referred to the following extract from the record of proceedings.
“…and he appears to understand same.” See page 321 lines 24 and 25 and submitted that the use of the word “appears” showed that the learned trial Judge was not sure if the appellant understood the charge. He equally pointed out that it is apparent from the record that the appellant spoke Igbo language during the trial yet no interpreter was provided to interprete much of the evidence which was in English Language being the language of the court into Igbo language. He submitted that that was a breach of Section 33(6)(e) of the 1979 Constitution.
He summed up that the entire judgment was a nullity.
In reply to Issue 1, the learned counsel for the respondent submitted that the learned trial Judge substantially complied with the provisions of Section 215 of the Criminal Procedure Law and Section 33 (6)(a) and (e) of the 1979 Constitution. He reproduced part of page 32 lines 20 to 25 of the record (supra) and argued that at the time the plea of the appellant was taken no evidence had been led by the prosecution such as would occasion miscarriage of justice against the appellant.
As regards the appellant’s argument that the language in which the charge was read to him, the learned counsel submitted that the provision of Section 33 (6)(a) and (e) of the 1979 Constitution was neither violated nor breached because first, since the appellant was represented by counsel, Chief G.S. Jideonwo, he (the appellant) did not complain that, he did not understand the proceedings. Secondly, he presumed that the language of interpretation was Igbo although it was not expressly stated on the record. Thirdly, since the appellant made his statement to the police in English language, he presumed the appellant understood the language of the court and that was why he did not object to the language in which the trial was conducted.
Learned counsel for the respondent relied on the following cases in support of compliance with Section 215 of the Criminal Procedure Law and Section 33(6)(a) and (e) of the 1979 Constitution by the learned trial Judge. Durwode v. The State (2000) 15 NWLR (Pt.691) 467 (2001) FWLR (Pt. 36) 950 at 975; Madu v. The State (1997) 1 NWLR (Pt. 482) 386 (1997) 1 SCNJ 44 at 54.
What is of moment in the instant issue is whether or not Section 215 of the Criminal Procedure Law and Section 33(6)(a) and (e) of the 1979 Constitution were complied with by the learned trial Judge in the trial of the appellant who was arraigned for the offence of murder before him. I shall for ease of reference reproduce the provisions of those two legislation (supra). Thus Section 215 of the 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 he has not been duly served therewith.
Section 33(6)(a) and (e) of the 1979 Constitution reads:
33(6) Every person who is charged with a criminal offence shall be entitled:-
(a) to be informed promptly in the language that he understands and in detail of the nature of the offence.
(e) to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence. (underlining for emphasis)
Section 215 of the Criminal Procedure Law has been judicially interpreted by Oputa, JSC (as he then was) in the case of Kajubo v. The State (supra) and I shall extensively reproduce pages 139 to 141 as follows:
The mandatory provisions of Section 215 of the Criminal Procedure Act that the information or charge should be firstly read over to the accused, then secondly explained to the accused and thirdly, explained to him to the satisfaction of the court are not merely cosmetic; they are not semantics. No. They are provisions considered necessary to ensure that the accused understands and appreciates what is being alleged against him, to which he is required to make a plea.Section 215 C.P.A. sets out the mandatory rules required by law for a proper arraignment. Now how can anyone be called to reckoning if he does not know or does not fully understand the allegations being made against him?
It is a notorious fact that English, the language of the court, the language in which charges and information are drafted, is not the mother tongue of Nigerians. It is also correct that most Nigerians are illiterate in English and may not easily follow and comprehend the language of the court. For these reasons our Criminal jurisprudence and our 1979 Constitution considered it necessary that for there to be a proper arraignment:-
(1) The accused person shall be present in court.
(2) The charge or information shall be read over to him in a language he understands.
(3) The charge or information after being read over in such language should be explained to him avoiding as much as possible the use of technical expression. This explanation should acquaint the accused with the essential ingredients of the offence charged and with the factual situation resulting in and giving rise to the offence charged.
(4) To make assurance doubly sure the trial Judge should also satisfy himself that the explanation of the offence charged was adequate and that the accused understands what he is standing trial for.
It is good practice for trial courts to specifically record that the charge was read and fully explained to the accused to the satisfaction of the court before recording his plea thereto.”
The same procedure set out above applies to an amended charge.
Failure to comply with this procedure amounts to a fundamental and radical vice which nullifies the entire arraignment and consequently the trial that followed. See Omakinde Sanmabo v. The State (supra) at page 317.
In the instant case, the circumstances of the arraignment of the appellant in the trial court on 14th December, 1993 are set out at page 32 lines 15 to 29 of the record. That was the day the learned trial Judge set down the matter for hearing. There were two earlier adjournments on 4th November, 1993 and 10th November, 1993 when the appellant was granted bail and the case was further adjourned for hearing respectively without any plea being taken.
The following in essence, was what happened in court on the 1st of December, 1993:
“The State v. Nnukwu Omuolo.
Accused person present R.N. Osuhor- Principal Legal Officer appears for the State.
Chief G.S. Jideonwo appears for the accused person.
P.W.1 Sworn on the iron speaks in Igbo Language. Before P.W.1 testifies, the charge was read to the accused person through a court interpreter and he appears to understand same and pleads not guilty to the offence of murder. P.W.1 testifies through court’s interpreter Mr. Benjamin Igbeka My names are Udeze Nwunokor.
(Italicing for emphasis).
The question is: Could the scenario as presented by the foregoing extracts from the record be any compliance with the provision of Section 215 of the Criminal Procedure Act which is in pari materia with the Criminal Procedure Law as regards arraignment of an accused person? The answer is emphatically in the negative.
The picture presented by those extracts is that the case against the appellant was set down for hearing on the 1st of December, 1993. It is therefore little wonder that the learned trial Judge started the case in earnest by calling the first prosecution witnesses who was sworn on the iron. This procedural step is a strong indication that the court was prepared to hear the allegation of murder against the appellant.
The learned trial Judge thereafter realised the irregularity in his approach and recoursed to a procedure which he thought was in compliance with the said law as claimed by the learned counsel for the respondent. The proper approach which is good practice should be that before the allegation against an accused person is set down for hearing, the charge should have been read over to him by either the registrar or other officer of the court in the language he understand. The accused person will thereafter articulate his understanding of the charge and he, on being asked by the court officer whether he is guilty or not guilty, will freely plead which ever is appropriate.
It is also good practice that the question and answer session contemplated by Section 215 of the criminal procedure law shall be specifically and clearly recorded by the trial Judge who will thereby hold that he is satisfied that the accused person understood what he is standing trial for. The court may thereafter proceed to hearing by taking prosecution evidence on the same day or on a subsequent day set down for hearing. See Kajubo v. The State (supra) at pages 139 to 141. What the learned trial Judge did in this matter, with due regard, is patently irregular because he lumped the two procedural segments of a criminal trial together thereby making it difficult for any reasonable tribunal such as this to agree with him that he was satisfied that the appellant understood the offence for which he stood trial. The suspicious assessment of the learned Judge’s satisfaction that the appellant understood the charge came to the fore and clearly at that in the record of appeal see page 32 lines 21 to 23 when he (the learned trial Judge) stated;
“…the charge was read to the accused person through a court interpreter and he appears to understand same…”
The words “appears to understand” call for a critical appraisal.
Thus, those words are synonymous with the words “seems to understand, false way of thinking, as it will appear or false appearance.” See Chambers Twentieth Century Dictionary page 1226. In effect, those words portray the uncertainty in the mind of the learned trial Judge when he recorded that the appellant understood the charge. This degree of uncertainty falls far short of the requisite emphatic understanding of the charge deducible from the provision of Section 215 of the Criminal Procedure Law.
The only noticeable reaction of the respondent to the irregularity strongly taken exception to by the appellant is that it is clear from the record that at the time of the plea of the accused person no evidence had been led by the prosecution. I hold that this argument is not tenable because from the record of proceedings (See pages 31 and 32), the day the appellant’s plea was taken, that is to say 1st December, 1993, was the day set down for hearing. Furthermore, the plea was taken after the first prosecution witness had been sworn in preparation for adducing evidence. That, indeed, was a strong indication that the court was prepared for taking functional evidence and no digression from that course should be entertained. The trial court nevertheless digressed and broke the regular chain of causation.
Despite the irregular approach of the learned trial Judge, he, with due respect, case aside the mandatory requirements of Section 215 of the criminal Procedure Law. Those are fundamental requirements, which if cast aside or not complied with, will result in a fatal consequence of nullifying the entire arraignment and the trial ab initio: See Sanmabo v. The State (supra) at page 317.
Section 33(6)(a) and (e) of the 1979 Constitution (supra) relates to the need to inform the person charged with a criminal offence in the language he understands and in detail of the nature of the offence as well as the need to accord that person the assistance of an interpreter gratuitously if he cannot understand the language used at the trial. It is clear from the record that the trial court, from the day the case was set down for hearing, did not record the language understood by the appellant nor did the appellant inform the court.
The learned counsel for the appellant did not help the situation because he did not state that the appellant did not understand Igbo language. It is settled law, in these circumstances, that it is a cardinal principle of our criminal jurisprudence that it is the duty of the accused or his counsel acting on his behalf to bring to the notice of the court the fact he (the accused) does not understand the language in which the trial is conducted. Otherwise it will be assumed that he has no cause for complaint. See Francis Durwode v. The State (supra) at page 975. Furthermore, in the case of Madu v. The State (supra) at page 54, it was held that there was nothing to show on the record that the appellant or his counsel requested the trial court to provide him with an interpreter in relation to the evidence of certain witnesses which he alleged that he did not understand and that the request was rejected. In view of the foregoing principles, I entirely agree with the submission of the learned counsel for the respondent that Section 33(6) (a) and (e) of the 1979 Constitution was not violated. But those were the cases in which the accused persons were properly arraigned. It is settled that a valid trial is posited on the fact of a valid arraignment. See Idemudia v. The State (1999) 7 NWLR (Pt. 610) 202 at 219. It has been held that the appellant in the instant case was not properly arraigned and that that fundamental vice has rendered the entire trial a nullity. The question is: Does the fact that the trial court complied with Section 33(6) (a) and (e) of 1979 Constitution in the face of blatant disregard for the mandatory provision on arraignment ensure fair hearing to the entire trial? The answer is in the negative because there has been a substantial miscarriage of justice occasioned by the non-compliance with Section 215 of the Criminal Procedure Law.
Issue 1 which is resolved in favour of the appellant appears to have completely dealt with this appeal.
I shall, nonetheless, briefly deal with the other issues. I have considered the items of evidence adduced by the respondent. Only the P.W.1 out of the seven witnesses gave a seemingly eye witness account that the appellant hit the deceased on the neck with an unknown object on 13/8/89. He attempted to arrest the appellant after the attack on the deceased but desisted because the appellant threatened to shoot anyone who came near him. On the same day, he went and reported the incident to the deceased’s sister, Ekeobodo, that the appellant had killed the deceased. None of the other witnesses for the respondent testified that the deceased died on the 13th of August, 1989. They however, confirmed that he died on an undisclosed date. The evidence of the P.W.7, the medical pathologist, whose evidence could have disclosed the date of death did not do anything of the sort. He instead testified that the corpse was brought to the mortuarty on 18/8/89 and he performed autopsy on it on 29/8/89. The autopsy report which the P.W.7 said that he gave to the police was not exhibited. No police officer testified as having investigated this case. Madam Ekeobodo to whom the PW.7 reported the incident he witnessed at about 7.p.m. on 13/8/89 did not also testify in the court below.
The appellant, in the main, denied killing the deceased. He instead alleged that it was the deceased who hit his mouth with an ashtray and slapped him. He retaliated the slap on the deceased who staggered and fell down. The appellant did not also disclose the day the deceased died. But certainly from the state of the evidence, the deceased did not die on the day he had a quarrel with the deceased. The respondent could not, under cross-examination cast aspersions on the appellant’s defence.
The foregoing shows that the appellant had gone through the rigours of a full trial. The appellant, from the state of the record, could not, in view of the unreliable evidence of particularly the P.W.1 and the P.W.7 be said, beyond reasonable doubt, to have cause the death of the deceased.
It is now settled that a new trial or retrial can be ordered after declaring a trial a nullity and allowing the appeal if the following conditions are present:
(a) That leaving aside the error or irregularity in the proceedings, the evidence taken as a whole discloses a substantial case against the appellant.
(b) That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time.
(c) That offence or offences of which the appellant was convicted, or the consequence to the appellant or any other person of the conviction or merely trival.
(d) That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.
(e) The reason for declaring the trial a nullity and the overall interest of justice are also relevant.
See Abodundu & 4 Ors. v. The Queen (1959) SCNLR 162, (1959) 4 FSC 70 at pages 71 and 72 and Kajubo v. The State (supra) at pages 740 and 741.
It is settled in this appeal that the basis for rendering the trial in the lower court a nullity is non-compliance with section 215 of the Criminal Procedure Law. It is discerned from the foregoing principle that it has the effect of declaring the trial a nullity but that a consequential order for a retrial could be made by the appellate court.
There are, however, circumstances where such an order will not be made on taking the evidence as a whole and the interest of justice into consideration. Thus, where the respondent/prosecution has not made out a substantial and convincing case against the appellant it will be against the run of justice to send him back to the trial court for a retrial. It is settled that a Court of Appeal will not send a case back for a retrial simply for the purpose of enabling the prosecution to adduce, as against the appellant, evidence which must convict him when his success at the appeal is based on the absence of that same evidence: See Abu Ankwa v. The State (1969) 1 All NLR 133; Onu Okafor v. The State (1976) 5 SC at pages 19 and 20 and Kajubo v. The State (supra) at page 741. In the instant case, I have reviewed the state of the record with particular reference to the items of evidence therein and I have come to the inevitable conclusion that the respondent failed to make a case against the appellant beyond reasonable doubt and it will therefore work injustice on the appellant to go through the trauma of a criminal trial all over again. I also consider it oppressive in the prevailing circumstance of this case to send back the appellant to face another trial having regard to the length of time taken by the first trial which started in 1990.
In the final result, the appeal has merit and it is allowed. The conviction and sentence for the charge of murder are set aside. I accordingly enter a verdict of discharge and acquittal for the appellant.
Other Citations: (2002)LCN/1087(CA)
