Olatayo V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Akure division delivered on the 19th February, 2016 Coram. Mojeed Adekunle Owoade, Mohammed A. Dajuma, James Shehu Aribiyi (JJCA) which affirmed the decision of the trial Court delivered on the 13th January, 2014, by Hon. Justice R. A. Shiyanbola J of the Osun State High Court convicting the Appellant of the offence of Conspiracy, Murder and Indecent Assault of late Bilikisu which is contrary to Sections 324, 319(1) and 360 of the Criminal Code cap 34 Vol. II Laws of Osun State.

The Appellant was the 2nd defendant at the trial Court. The Appellant with one Fatai Ademola and Suraju Olanrewaju, Bilikisu Adeyemi (deceased) and Latifa were all sleeping in a room at Oke Abesu Street Osogbo. On 1st June, 2005, the Appellant and Suraju Olanrewaju at about 12am had sexual intercourse serially with Bilikisu Adeyemi who died in the process. The Appellant and Suraju Olanrewaju were charged to Court on 3 counts of Conspiracy, Indecent Assault and Murder. The charge was subsequently amended several times and last amendment was dated and filed on the 4th of April, 2008. The trial Court then held that based on the confessional statement wherein the Appellant and the co-defendant admitted they both had sexual intercourse with the deceased serially and stuffed her mouth with bread so she couldn’t shout for help meant they conspired to rape her which caused the death of the victim. The trial Court held that the confessional statement revealed they tried to resuscitate the deceased by pouring water on her but she died which means she died in the process and either the sexual intercourse or the suffocation from the bread could have led to the death of the deceased. The Appellant was sentenced to death by hanging.

Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal, Akure division for the determination of the issue whether the trial and conviction of the Appellant was not a nullity? The Court below in determining this issue held that although it is good practice for the Courts to record extensively that the charge was read and fully explained to the accused to the satisfaction of the Court, failure to do so will not render the trial a nullity.

The appeal was dismissed.

Further dissatisfied with the judgment or the Court below, the appellant has appealed to this Court vide a Notice of Appeal filed 1st March, 2016 containing two grounds of appeal.

The Appellant in their brief of argument settled by Prince Abioye A. Oloyede-Asanike Esq., formulated a sole issue for determination set out below as follows:

Whether the conviction of the Appellant or the lower Court and affirmed by the Court below was not a nullity.

Appellant filed a reply brief on 3rd of November, 2020. The Respondent in their brief of argument settled by Yemi Adesina, Esq., formulated a sole issue for determination not dissimilar from the issue distilled by the Appellant’s counsel.

For determining this appeal, I will adopt the issue distilled for determination by the Appellant.

SOLE ISSUE

Whether the conviction of the Appellant of the trial Court and affirmed by the Court below was not a nullity?

The main complaint of the Appellant on this issue is that when the plea of the Appellant was taken on 13/11/2007, the trial Court did not fully comply with S. 215 of the Criminal Procedure Act in that the Court did not indicate on the record that the charge was read to the Appellant in English Language, and subsequently translated to Yoruba Language and there was no indication on the record of proceedings the person who did the translation. Counsel also argued that the 2 policemen prosecution witnesses gave evidence in English Language and there were no evidence that an interpreter was in Court to interpret to the Appellant and his Counsel. Counsel argued that this is contrary to S.36(6) (a) & (e) of the CFRN. 1999. Counsel submitted that since no interpretation of the proceeding was done to the Appellant during the trial, the proceedings are completely vitiated moreso, as counsel for the Appellant is not of Yoruba extraction and the Appellant did not understand the evidence given against him in the language he didn’t understand. Counsel cited Akpiri Ewe V. the State (1992) 7 SCN 1 5 at Pg. 19, Kajubo v. The State (1988) 1 NWLR Pt. 73 Pg. 721, Eyorokoromo v. The state (1979) 6-9 SC 3, Counsel sought to distinguish the facts and resolution of FRN v. Ya’u Mohammed (2014) 3 SC 53 at 86 and Idemudia v. The State (1999) 5 SCNJ 47 from those of this case. Counsel submitted that:

1. The arraignment of the Appellant fell short of the requirements of the law.
2. Failure of the lower Court to interpret the proceedings of the Court to the Appellant is a breach of his constitutional right of fair hearing and has occasioned a miscarriage of justice.
3. The person who interpreted the charge to the Appellant having not being stated by the lower Court in its record vitiates the trial.

In reply, learned Respondent’s counsel argued that:

There is no contention whatsoever in this appeal that one Bilikisu Ademola died and that the Appellant and another caused the death of Bilikisu (the deceased) by suffocation when the duo blocked her mouth with bread to prevent her from shouting to attract people to rescue her while they were raping her. The confessional statements of the Appellant confirmed this and evidence of PW1 and PW2 were also relevant. Furthermore, it is also established that the act was done with the intention to cause death or grievous bodily harm. Hence, the issue of the Appellant being guilty and convicted for the offence of murder consequent upon which he was sentenced was not in issue as same has been put to rest.

That the core of a valid arraignment is the understanding of the charge by the Appellant before he is called upon to make his plea to the charge.

Furthermore, in determining the validity of the arraignment, one must look into the circumstance of each case.

Counsel further submitted that this Court should follow Idemudia v. The State (1999) 5 SCNJ 47 to consider the details of the arraignment complained against in order to arrive at the conclusion that the arraignment hearing must be vitiated for non-compliance with the law.

Counsel further submitted that the arraignment in this case was done in the presence of the Appellant’s counsel without objection of the name or designation of the interpreter as the above record shows that the charge was read and interpreted to the Appellant before he pleaded to same. Counsel cited Okeke v. The state (2003) 15 NWLR Pt.842 Pg.25.

Learned Respondent’s counsel argued further that the Appellant’s counsel on record before the trial Court, E. N. Ukaegbu and C.U. Chukwuemeka who were present at the arraignment and throughout the proceedings accede to the fact without any objection whatsoever as the interpretation was provided by the clerk of the Court and the Clerk of the Court interpreted the proceedings throughout the course of the trial. The accused also was represented by the said Counsel did not complain of not the following the proceedings through the trial. Counsel cited Olabode v. The State (2009) 11 NWLR Pt. 1152 Pg. 279; Okeke v. The State (2003) 15 NWLR Pt. 842 Pg. 25.

OPINION

My Lords, the requirement of the Criminal Code regarding the ingredients of the offence of murder with which the Appellant was charged, convicted and sentenced, which must be proved against the Appellant are as follows:

i. The decease had died

ii. The death of the deceased was caused by the accused and

iii. The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was probable consequence.

See Nwaeze v. The state (1996) 2SCNJ 42 at P.50.

There is no contention by the Appellant regarding the merit of the case proved against the defendant by the prosecution for which he had been convicted. Thus the issue here is very narrow. It is really whether the arraignment of the Appellant violated S.36 (6)(a) and (e) of the CFRN and S.215 of the Criminal Procedure Act.

These provisions requires that a defendant shall be informed in the language he understands, the nature of the offence against him and that he will be entitled to an interpreter without payment if he does not understand the language of the Court.

I agree with learned Respondent’s counsel that the circumstances of which case would determine the validity of an arraignment on Pg. 226- 227 of the Record, the Appellant was re-arraigned and the Courts indicated in is record as follows:

“The question is “was there a proper or valid arraignment on which the trial was base?” the answer lies in the entire circumstance of the case. The accused must be placed before the Court unfettered.”

The record of proceedings show that the defence counsel for both Defendants jointly tried at the trial were present throughout the arraignment and trial of the Appellant. The Appellant’s counsel who understood English understood the evidence of the police officers who gave evidence in English language (the language of the Court), none of the Counsel complained about the arraignment or the entire proceedings. See Ogunye v. The State (1999) 5NWLR Pt.604 Pg. 548. I could not have put the law better than lord Begore, JSC in Okeke v. The State supra, where my lord Stated on Pg. 17 of the NWLR as follows:

“The question is “was there a proper or valid arraignment on which the trial was base?” the answer lies in the entire circumstance of the case. The charge must be read to him in the language the accused person understand, and if he is represented by counsel, if there is no objection by counsel or the accused person, there is clear presumption of regularity that must be done to let the accused know the charge against him has been done. In that wise, it is presumed the accused understood the charge which has been read and explained to him and the Court was equally satisfied the charge was understood by the accused ……”

In respect of the proper application of S.215 of the CPA, I am of the view that where as in this case, there is evidence on record to show that the charge was read to the Appellant in the presence of counsel (particularly in a charge carrying the death penalty). The arraignment in my view was proper and the subsequent proceedings was properly conducted since there was a counsel for Appellant throughout the proceedings. What is important here is that the Defendant and his counsel are not misled regarding the details of the criminal offences on which the Defendant has been indicted. It is also important that the details of the evidence adduced in Court during the trial are clear to the Defendant and his counsel so that the Defendant can make a full defence to the charge. In all these circumstances, there is a presumption in favour of regularity in that the judge would instruct and ensure that throughout the proceedings the counsel and the Defendant would understand the proceedings even where the details of such directions by the trial Judge are not fully and specifically stated on each date of arraignment. On this issue, this Court held as follows in Olabode v. The state (2009) 11 NWLR Pt.1 152 Pg.279 at Pg. 254 as follows:

“Although reflection in the trial Court’s record read and explained the charge to the accused person form part of the procedure a trial Court should adhere to while arraigning an accused person, failure or omission by the trial Court to reflect them is not fatal to the proceeding once the arraignment was carried out in a manner which is substantially regular in the instant case. The Appellant was never misled by the non-reflection of the name of the registrar/officer of the Court who read out and explained the charge to the Appellant.”

The constitutional duty of the trial Court to ensure that an interpreter is provided for the Defendant during the whole proceedings is immutable. What is however not set in stone and what will not vitiate a trial is the omission of the trial Court to state on the record on each date of the proceedings at trial the fact of the presence of an interpreter and the name of the said interpreter. See FRN v. Mohammed Ya’u (2014) 3 SCNJ 53 at Pg. 86. What is important here is that on reading the arraignment and into consideration to determine whether indeed the complaint of the Appellant is one that had occasioned miscarriage or pervasion of justice to warrant declaring the whole proceedings a nullity. In the circumstance of this case as in Idemudia v. The State supra, there is no reason to validate the belated complaints of the Appellant on this procedural point.

In the circumstances, there is absolutely no merit in this appeal. The judgment of the Court of Appeal in Ca/AK/284c/2014 delivered on 19/2/16 is hereby affirmed. The conviction and sentence of the Appellant is affirmed.

Appeal dismissed.

SC.336/2016