In The Court of Appeal of Nigeria
On Tuesday, the 13th day of February, 2018
Before Their Lordships
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
MONICA BOLNAAN DONGBAN-MENSEM, J.C.A.(Delivering the Leading Judgment): This appeal challenges the decision of the High Court of Ogun State, sitting at Otta, delivered by Hon. Justice N. I. Agbelu on the 14th of July, 2015.
The Appellant along with three others were charged with offences of Conspiracy to commit armed robbery, and armed robbery contrary to Sections 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap RII Laws of the Federation of Nigeria, 2004.
The Appellant is alleged to be part of a gang that robbed one Mrs. Cecilia Akinsanya (PW1) at her house of the sum of six thousand naira (6,000:00), a laptop, telephone handsets and six yards of Ankara material. The trial Court returned a guilty verdict and sentenced the Appellant to death on two counts of the charges of Conspiracy to commit armed robbery and armed robbery. This appeal is against the conviction and sentence.
The Appellant has submitted two issues for determination thus:
a. Whether or not there was a valid arraignment upon which the trial Court assumed jurisdiction when the Appellant took plea in the absence of a legal representation. (ground 1)
b. Whether the prosecution has fully discharged the onus of proof to sustain the charge against the Appellant to warrant the conviction by the lower Court.
The Respondent also raised two issues for determination as follows:
a. Whether the prosecution has proved the offence of conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.
b. Whether there was a valid arraignment at the trial Court despite the fact that the Appellant was not represented by a Legal Practitioner.
The two issues of each of the parties shall be taken together starting with the question of arraignment.
The Appellant submits that his arraignment was not properly conducted and his right to fair hearing was thereby breached because he did not have legal representation in Court on the day his plea was taken. Cites Section 36 (6) of the 1999 Constitution; Section 215 of the Criminal Procedure Law; TIMOTHY v. F. R. N. (2008) ALL FWLR pt. 402 pg. 1136 @1151; OGUGU v. THE STATE (1994) 9 NWLR pt. 366 pg. 1.
The Respondent on their part argues that the requirements for a valid arraignment are contained in Sections 36 (6) of the Constitution and 215 of the Criminal Procedure Law of Ogun State 2006. He submits further that the law as cited above does not say that the accused person???s Counsel must be present when his plea is taken. Cites YAHAYA v. THE STATE (2002) 3 NWLR pt. 754, 289 @303; R. v. PEPPLE (1949) 12 WACA 441.
In the case of Joseph Daniel v. Federal Republic of Nigeria (2015) LPELR-24733 (SC), the Apex Court explained what constitutes proper arraignment of an accused person as follows:
Ordinarily, for there to be a valid trial of an accused person, there must, be first thing first. There must be a proper arraignment in terms of the procedure laid down in Section 215 of the Criminal Procedure Law. It reads thus:
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 is no doubt, the requirement of the above provision or identical provision has been judicially considered in plethora of decisions of this Court. The requirement is to the effect that the charge must be read over to the accused in the language he understands and the charge must be explained to the accused in the language he understands and to the satisfaction of the Court before being called upon to plead to the charge.
(Section 36(6) Constitution of Federal Republic of Nigeria 1999; S. 215 Criminal Procedure Law).
The Constitutional provision being touted as breached is very clear and needs no special skill to comprehend.
S.36 (6) (a) provides that the person shall be informed promptly in the language he understands and in details of the nature of the offence he is alleged to have committed;
(b) That the person to be tried shall be placed before the Court unfettered.
(c) That the charge or information shall be read and explained to him by the
Registrar or other officer of the Court, to the satisfaction of the Court.
(d) That such a person shall be called upon to plead instantly thereto.
See Olabode v. State (2009) 11 NWLR Pt. 1152, 254; Kajubo v. State (1988) 1 NWLR Pt. 73, 721; Olowoyo v. State (2012) 7 NWLR Pt. 1329, Pg. 350-351.
From the above, it can be seen that a plethora of authorities abound in support of the fact that an accused person should be present throughout his trial.
However, there are no authorities that support the assertion that an Appellant’s Counsel must be present at the time his plea is being taken.
The question of arraignment is settled in the case of Ossai Emedo & Ors. v. The State (2002) LPELR-1123(SC)where the Supreme Court held that:
An irregularity is not a factor justifying the setting aside of a verdict or decision unless it is established that there has been a miscarriage of justice by the Court’s decision. The issue to consider at that stage is whether the learned trial Judge was wrong to discharge the Appellants at the stage he did. It is relevant to consider whether the evidence adduced by the prosecution is sufficient enough to convict the Appellants of the offence charged in the information.
I find that the Appellant was duly and properly arraigned and no miscarriage of justice has been established.
The Appellant argues that there is no shred of evidence directly linking the Appellant to the offences. Submits further that the case of the prosecution was largely hinged on the testimony of the victim (PW1) and the alleged confessional statement which was retracted. Cites OSUMARE v. PEOPLE OF LAGOS STATE (2014) ALL FWLR pt. 757 pg. 605 @ 622; OSUAGWU v. STATE (2013) ALL FWLR pt. 672 pg. 1605 @ 1625; STATE v. RABIU (2013) ALL FWLR pt. 684 pg. 36.
The Respondents on their part submit that the prosecution satisfied the burden of proof beyond reasonable doubt through the evidence of PW1, particularly at page 55 of the records when she described how the Appellant sat on her and pointed a knife at her while the others scratched her legs with cutlass, and also that an identification parade is not necessary where there is good and cogent evidence linking the accused to the crime. Cites AJAYI v. STATE (2013) 3 SCM pg1 @25; NDIDI v. THE STATE (2007) 10 SCM 101 @120; ADEBAYO v. STATE (2014) 8 SCM pg. 34 @55.
It is trite that proof in criminal cases is beyond reasonable doubt and not beyond any shadow of doubt.
In the case of YONGO v. C. O. P. (1992) NWLR pt. 257 36Â it was stated per KUTIGI JSC that:
In criminal proceedings, the onus is always on the Prosecution to establish the guilt of the accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.
The evidence of the victim (PW1) at page 55 of the records on how she recognized the Appellant appears too detailed to have been concocted or made up. PW1 testified in Court that she personally accompanied the victim to the house of the 2nd accused person who she recognized as her neighbour’s son and that all four accused persons were arrested at the house of the 2nd accused, upon the assistance of the 2nd accused’s father who led the police investigation team to Appellant’s house.
In this appeal, the Appellant per his learned Counsel Emmanuel I. Usoh Esq. trumped up numerous legal points in challenge of the Prosecution’s case, while urging this Court to allow the appeal. I will make reference to the submission in the course of this Judgment.
It is a fundamental feature of every proceedings in the determination of the guilt of an accused person, that the entire burden sets on the Prosecution. The only exception is where there exist facts which rest exclusively within the knowledge of the accused person. This is the import of the provision of Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 as amended.
It is the submission of the Appellant that in serious offences carrying the death penalty, a high defence of proof is necessary to secure conviction, refers to OSUMARE V. PEOPLE OF LAGOS (2014) ALL FWLR PT. 757 P. 605 @ 622 AND OSUAGWU V. STATE (2013) ALL FWLR PT. 672 to challenge the reliance solely on the confessional statement of the Appellant to convict and sentence him to death. (Refer Section 27 (1) of the Evidence Act Cap E14 LFN 2004 to fault the method of the assemblage of the alleged Confessional Statement of the Appellant.
The Appellant raised five questions on the propriety of the evidence received and acted upon by the learned trial Court. These questions are:
1. Was PW5 the recorder and at the same time the interpreter?
2. Was the statement first recorded in Yoruba, then translated to English?
3. Was it actually signed in the Yoruba version the accused Appellant admitted at the Police Station upon which he thumb-printed as noted in his objection before Court?
4. Was a new version translated to English and later signed by any other means, tendered before the trial Court as Exhibit J?
5. Was it a question from a superior to an inferior for which a kind of answer is expected?
The Appellant purports that the existence of these questions constitute sufficient doubt which ought to have enured in his favour. The cases of KAREEM SUNDAY V. STATE (2014) LPELR; OGUDO V. STATE (2011) 18 NWLR PT. 1278 PG. 30; STATE V. RABIU (2013) ALL FWLR PT. 684 PT 36 particularly at pg. 59-62; STATE V. AZEEZ & ORS. (2008) ALL FWLR PT. 424 PG. 1423 @ 1461-1462; OSUMARE V. PEOPLE OF LAGOS STATE (2014) ALL FWLR PT. 757 PG. 605 @ 622 and a few others were cited in support of the argument of the Appellant on insufficient materials and poor procedure adopted in recording the Confessional Statement upon which the conviction and sentence of the Appellant were premised. The Prosecution, maintains the Appellant, failed to discharge the burden of proof on both counts of charges.
The Respondent per Bamidele A. Adebayo Esq. of learned Counsel to the Respondent points to the clear identification of the Appellant and the distinct testimony of the PW1 who had a close look at the Appellant who assaulted her by holding her down with a knife at her neck. These pieces of evidence, submit the Prosecution provide the requisite corroboration to the Confessional Statement made by the Appellant. The Respondent submit, upon the authority of theÂ JUA V. THE STATE (2010) 2 SCM PG. 68 @ 70; AJAYI V. STATE (2013) 3 SCM PG. 1 @ 25.
It is trite law that the Prosecution in a Criminal trial is required to prove its case against an accused person beyond reasonable doubt. (See the case of JUA V. THE STATE (2010) 2 SCM PG. 68 @ 70, NDIDI VS STATE (2007) 10 SCM 101 @ 120; ADEBAYO VS. THE STATE (2014) 8 SCM PG. 34 @ 55, the Prosecution established that:
(a) That there was robbery or series of robberies
(b) That the robbery was an armed robbery
(c) That the accused was one of the armed robbers.
All of which are the essential elements for proving a charge of armed robbery. By the decision of the Supreme Court in the case of AKPA V. STATE (2008) 8 SCM p. 68; a confession is an admission made by an accused person Such admission, maintain the Prosecution lies in Exhibit. B & J and especially in Exhibit B where the Appellant stated that:
I came out they are already prepared they kept on the ground cutlass, knife and a torchlight. I picked a knife, Suraju picked torchlight and Abayomi picked a cutlass, Shina also was holding a knife
On the authority of NWACHUKWU V. STATE (2007) 12 SCM PT. 2 PG. 447 @ 454 the Respondent submits that the retraction of a confessional statement does not necessarily affect its value in a Court of law.
The retraction of a confessional statement no doubt does not water-down the value of a confessional statement. However, the confessional statement must have some elements of truth and consistency with the other pieces of evidence being relied upon.
I find it necessary to reproduce extracts from the Judgment of the learned trial Court as directly relates to the Appellant in this Appeal. After a review of the testimonies, the learned trial Court proceeded to determine whether there is other evidence adduced by the prosecution to support the Confessional Statement of each of the accused person.
As for the 1st Accused person, PW1 evidence is to the effect that one of the robbers entered through the window into her flat, this fact was corroborated by the 1st Accused statement in Exh. B made at Ajuwon Police Station wherein he stated he entered PW1 house through the window. PW1 testified that the robbers flashed torchlight into her face which affected her sight and it was when the light from the torchlight was removed that she was able to recognize the 2nd Accused person. The 1st Accused stated in Exh. J the confessional statement he made at the State C. I. D Eleweran on 5-05-09 that he collected a torch light from Suraju the 3rd Accused and flashed it on PW1’s face.
The accused person stated that it was because he slapped a
woman police officer that he was arrested at Ajuwon Police Station
The 1st accused who is now the Appellant, had on pg. 66 of the record, testified and the Court reported his testimony as follow:
The 1st Accused in his testimony in Court stated that on 29-3 09 after closing from work he wanted to buy Suya meat which is being sold in front of the Ajuwon Police Station. He bought N100.00 Suya meat which he ate. Thereafter, he received a telephone call from his wife to buy food for the children while coming home. While he was waiting to buy the Suya meat a lady came to him and pushed him away from the Suya Seller. He challenged the lady who slapped him in return while she ordered some boys to beat him. The lady ordered his arrest and he was subsequently detained in the cell. He later discovered that the lady is a Police woman hence when he was taken out of the police cell he started begging her lady while his family members joined him in his pleadings. He stated that was what started his ordeal in this case. He denied knowing PW1 and that he did not steal any money from her. He gave evidence that he made statement to the police in the morning when he was taken out from the cell. He denied making Exh. B at the Ajuwon Police Station and that the statement he made to the police at the Station was thumb-printed to him. He stated that he was later taken to the State C.I.D Eleweran Abeokuta. He also stated that he was tortured to make a statement but which he was unable to sign but while he to thump-print the statement somebody called the policeman popularly called Akobi-Esu. He testified further that up till now the contents of the statement have not been read to him. He was thereafter charged to Court. He denied making Exh. B and J respectively which are the statements he made at both Ajuwon Police Station and the State C. I. D Eleweran Abeokuta in connection with the robbery in incident at PW1 house on 29-3-2009.
PW1 by name Cecilia Oluyemisi she mentioned Shina at very first opportunity at the Police Station. His father led the Police search party to his residence where they were arrested and the laptop stolen was recovered. These are vital piece of evidence which add to the value and therefore the veracity of the confession of the Appellant.
What is worrisome however, is that in the two confessional statements allegedly made by the Appellant as the 1st accused, he said he picked a cutlass and in the 2nd, he said he picked a knife. The evidence of the PW1 who claimed to have had close contact with the Appellant said he had the torch light.
The question is which was it? Was the Appellant holding a knife over the PW1 and torch light or a cutlass which she said they used to scratch her leg? These contradictory statements clearly raise a doubt which cannot be ignored. In the evaluation of the evidence of the Appellant as the 1st accused person, the learned trial Court failed to address the contradiction in the actual role played by the Appellant. Was he the one on top of the PW1 holding a knife and threatening her or was he the one who held the torch light to her face and thereby impaired her vision or was he the one who scratched her leg with the cutlass?
There is nothing specific or peculiar to the Appellant in the testimony of the PW1 about the robber who entered her room through the window. If she saw Appellant enter her room, then she would have remembered that he either had a knife, a torchlight or cutlass with which he accosted her. If the confessional statement is anything to go by, the Appellant is alleged to have picked a knife in his first confessional statement while he said he picked a cutlass in the second. Surely, the PW1 who was so brave to look and identity some of her assailants would remember that the Appellant was the one who held her down with a knife. She did not make such assertion. She spoke in general terms. She had two direct contacts with the Appellant per her testimony in Court. She identified him as the person who came through the window and as the last person who left her room. She did not however with certainty, state exactly what role he played while in her room.
The testimony of PW1 cannot therefore be the verifying element needed to receive the alleged confessional statement Exhibit B & J as made by the Appellant.
The evidence and material placed at the disposal of the learned trial Court are not sufficiently linked to the Appellant to place him at the robbery prosecuted in this appeal.
In the circumstance, I am unable to affirm the decision of the learned trial Court.
This appeal succeeds and is
allowed. The decision of the learned trial Court is hereby set aside the conviction and sentence of the Appellant is quashed.
The prison authority shall release the appellant forthwith from the prison.
MODUPE FASANMI, J.C.A.:I had the privilege of reading in draft the leading judgment of my learned brother M.B. Dongban-Mensem, J.C.A.
I agree entirely with the reasoning therein and the conclusion arrived thereat. I too allow the appeal and abide by the consequential orders contained therein.
NONYEREM OKORONKWO, J.C.A.:Â I have been opportuned to have read the lead judgment of my lord Monica Bolna’an Dongba-Mensem JCA in this appeal wherein on the facts, the appeal is allowed and the conviction and sentence of the appellant quashed.
I agree with the lead judgment and its conclusion on the fact. Concerning the arraignment of the appellant in the absence of his legal practitioner, I respectfully add that in a capital offence, the provision of Section 352 of the Criminal Procedure Act to the effect that:
”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 person is not defended by a legal practitioner the Court shall if practicable, assign a legal practitioner for his defence.”
appears to me, clearly, to be mandatory having imposed a duty on the trial Court with the word “shall” to assign a legal practitioner for the defence of the accused. That duty can only be relieved where it is not practicable.
The provision is a safeguard for fair trial particularly in a capital offence where all procedural safeguards are to be observed. It is irrelevant to the observance of this safeguard that “it appears no injustice was done to the accused”. Every non observance is a fundamental irregularity and would taint the whole trial with nullity. The provision of Section 352 applies only to capital offences and the reason for it is obvious – extreme care! Every non observance of it in any capital offence is a fundamental defect and ought to lead to the proceeding being nullified.
Subject to my comments above, I agree with the detailed review of the facts by my learned brother Monica Bolna’an Dongba-Mensem JCA in conclusion discharging the appellant.
Emmanuel I Usoh-For Appellant
B. A. Adebayo (Admin. Gen & Public Trustee, Ogun State) with him, F. E. Bolarinwa Adebowale (A.C.S.C. Ministry of Justice, Ogun State)-For Respondent