FRIDAY v. STATE (2020)

FRIDAY v. STATE

(2020)LCN/14666(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, October 02, 2020

CA/AK/98CA/2014

RATIO

CRIMINAL PROCEDURE: EFFECT OF THE TRIAL, CONVICTION AND SENTENCE OF AN ACCUSED WITHOUT AN ARRAIGNMENT AND PLEA

The Law is trite that a trial, conviction and sentence of an accused person without an arraignment and plea known to Law renders the entire proceedings null and void, and of no effect whatsoever. A Court of Law must accord an accused person the opportunity to take his plea, otherwise the proceeding will be a nullity. See YUSUF V. STATE (2011) 18 NWLR (pt. 1279) 853. PER ABDULLAHI, J.C.A.

CRIMINAL PROCEDURE: NATURE OF AN ARRAIGNMENT

An arraignment consists of charging the accused and reading over and explaining the charge to him to the satisfaction of the Court, followed by taking his plea. The absence of plea, where exist, will surely truncates the Appellant’s inviolable right to fair hearing as ingrained in Section 36 (6) (a) of the 1999 Constitution (as amended) “to be informed promptly in the Language he understands and in details of the nature of the offence”. See ODUNLAMI vs NIGERIAN NAVY (2013) 12 NWLR (pt. 1367) 20, EZE vs FRN (2017) 15 NWLR (pt. 1589) 433, KALU vs STATE (2017) 14 NWLR (pt. 1586) 522. PER ABDULLAHI, J.C.A.

CRIMINAL LAW: DOCTRINE OF COMMON INTENTION

The Law is that where two or more persons intentionally do a thing jointly, it is the same as it had been done individually. Each person is not only liable for his own act, but for the sum acts of the conspirators in furtherance of the common intention. See PETER vs STATE (2018) LPELR 44357 (SC). PER ABDULLAHI, J.C.A.

CRIMINAL LAW: WHETHER THE PROSECUTION IS REQUIRED TO CALL A HOST OF WITNESSES TO PROVE HIS CASE

It is trite Law, that the prosecution, is not required to call a host of witnesses to prove his case. One reliable witness is enough to prove the commission of a crime. See ALI vs STATE (2015) 10 NWLR (pt. 1466) 1, ADEGBITE vs STATE (2017) LPELR 42585 (SC). PER ABDULLAHI, J.C.A.
EVIDENCE: INADMISSIBLITY OF HEARSAY EVIDENCE

The Law is trite that hearsay evidence is inadmissible, and it cannot be relied upon to establish the truth of the fact it alleges. See FRN vs USMAN & ANOR (2012) LPELR – 7818 (SC), POPOOLA vs STATE (2018) LPELR 43853 (SC). PER ABDULLAHI, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

THEOPHILUS FRIDAY APPELANT(S)

And

THE STATE RESPONDENT(S)

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Ondo State, sitting in Akure, delivered by Hon. Justice A. O. Odusola on 20th March, 2014 in Suit No. HK/34C/2013. The Appellant, as 3rd accused person was arraigned with two others before the lower Court on two counts charge of kidnapping and murder of one Dada Rachael Akingboye pursuant to Section 3 of the Ondo State Anti-Kidnapping and Anti-Abduction Law 2010 and Section 319(1) of the Criminal Code Cap. 30 Vol. 11 Laws of Ondo State of Nigeria, 1978 respectively.

The gist of the facts that culminated into the case before the Lower Court as gleaned from the printed record before this Court is that one Olusegun Obaro and Jonah Lase were sent by the 3rd accused person, the Appellant herein, to kidnap one Dada Akingboye a baby of 1½ year old. That the said baby was kidnapped from her mother in the night while she was sleeping beside her mother in the midnight of 16/6/2011 at Ikorigho community and handed the baby over to the Appellant. On 17th June, 2011, the body of the baby was found close to her

mother’s house with her right ear, right eye, right breast and the right part of her scalp removed. Subsequently, the three accused persons were arrested by the Ikorigho community in connection with the crime and handed them over to the police. After investigation, the Appellant and the two other accused persons were eventually arraigned before the lower Court for the offence of kidnapping and murder and they all pleaded not guilty to the charge.
Following the non-guilty plea, the lower Court proceeded to a full-scale determination of the case.

In proof of the case, the Respondent fielded a sole witness and tendered documents, Exhibits A-E2. In defence of the case, the Appellant testified in person as DW3 and called no other witness. At the closure of evidence, the parties through their counsel, addressed the Court.

In a considered judgment, delivered on 20th March, 2014, the lower Court found the Appellant and other two accused persons guilty of the offence charged and sentenced them to death.

The Appellant was dissatisfied with the judgment, filed a Notice of Appeal dated 10th April, 2014. The Appellant with the leave of Court, filed

an Amended Notice of Appeal on 11th September, 2014 containing four (4) Grounds wherein he prayed this Court for:
i. An order of the Court of Appeal allowing this Appeal and setting aside the judgment of the trial Court delivered on 20th March, 2014.
ii. An Order discharging and acquitting the Appellant.

Thereafter, the parties via Counsel, filed and exchanged their briefs of argument in line with the rules governing the hearing of Criminal appeals in this Court. The appeal was heard on 13th July, 2020.

During its hearing, Learned Counsel for the Appellant, B. A. Aderosin, Esq. adopted the Appellant’s brief of argument filed on 23rd October, 2014 but deemed properly filed on 11th April, 2016 as representing his arguments for the appeal. He urged the Court to allow the Appeal. Similarly, Learned Counsel for the Respondent, A. A. Oladunmiye, (ACLO) Ondo State MOJ adopted the Respondent’s brief of argument, filed on 16th January, 2018 as his reaction against the appeal. He urged the Court to dismiss it.

In the Appellant’s brief of argument, he distilled three (3) issues for determination to wit:

Whether the entire proceedings before the trial High Court in this case were not illegal, unconstitutional null and void having been conducted in violation of (a) Section 215 of the Criminal procedure Act Cap. 38 Laws of Ondo State 2006; (b) Section 36(1)(6)(a) of the 1999 Constitution of the Federal Republic of Nigerian (as Amended).
ii. Whether the prosecution has proved the case of kidnapping and murder preferred in this case against the Appellant at the trial Court beyond reasonable doubt as required by it to justify the conviction and sentence of the Appellant to death by hanging?
iii. Whether the means by which the Appellant’s identity through a Juju oracle called “Agbadi” was carried out in this case which linked and/or revealed him (Appellant) as one of the persons that kidnapped and murdered the deceased is known to law?

The Respondent, in its brief of argument crafted a sole issue for determination viz:
“Whether or not the prosecution has proved the offence of murder against the Appellant beyond reasonable doubt to warrant his conviction by the trial Court.”

A close look at the two sets of issues shows that they

are identical in substance and the Respondent can conveniently be subsumed under the Appellant’s issues. I will therefore decide this Appeal on the issues formulated by the Appellant.

ARGUMENTS ON THE ISSUES
ISSUE ONE
Learned Counsel for the Appellant submitted that the trial, conviction and sentence of the Appellant by the trial Court when the said offences were not read and explained to the Appellant in the language he understood is unconstitutional. Counsel submitted that the trial Court did not give the Appellant the chance to make his plea on arraignment before the prosecution was called upon to prove its case, that the trial is in violation of Section 215 of the Criminal Procedure Act, Laws of Ondo State of Nigeria 2006 and Section 36 of the 1999 Constitution (amended). Therefore, said counsel, the trial, conviction, and sentence as ordered by the trial Court is a travesery of Justice, illegal, unconstitutional, null and void and of no effect whatsoever. He cited the cases MADUKOLU V. NKEMDILIM (1962) 2 NSCC 374, EREKANURE V. THE STATE (1993) 5 NWLR (pt. 294) 385 at 392-393, EDET EFFIOM V. STATE (1995) 1 NWLR (pt. 373) 507,

EWE V. STATE (1992) 6 NWLR (pt.246) 147 at 152-153 among others for the view.

Learned Counsel argued that where there is no proper arraignment, there is no trial. That the Learned trial Judge only made a passing reference that the accused persons pleaded not guilty to the charge. That the manner or form the charge was read and the Language they made such plea and when it was taken were neither stated nor disclosed from the record.

He stated that the failure of which is fatal to the prosecution’s case and a breach of the Appellant’s Constitutional right of fair hearing. He cited the cases of EREKANURE V. THE STATE (SUPRA), KALU V. THE STATE (1998) 13 NWLR (pt.583) 531 and IDEMUDIA V. THE STATE (1999)5 SCNJ 47 at 55-56 for the view.

Learned Counsel contended that, trial, conviction, and sentence of the Appellant by the trial Court cannot stand in view of the apparent and incontestable violation of his Constitutional right to fair hearing and same should be set aside. He urged the Court to resolve this issue in favour of the Appellant and allow the appeal.

On behalf of the Respondent, Learned Counsel for the Respondent in reacting to

this issue, submitted that the contention of the Appellant that the charge was not read and explained to him in a Language he understood for him to make his plea is misconceived in view of the additional record of proceedings of the trial Court which shows clearly that the plea of the Appellant and his co-accused were taken before evidence was led by the prosecution. Therefore, according to Counsel. The Appellant’s issue one and the argument thereon, goes to no issue.

RESOLUTION OF ISSUE ONE
The fulcrum of the Appellant’s grievance on this issue is that, the lower Court’s failure to read and explain the charge to the Appellant and take his plea before calling the prosecution to prove its case, vitiated the entire trial and rendered it a nullity. The Law is trite that a trial, conviction and sentence of an accused person without an arraignment and plea known to Law renders the entire proceedings null and void, and of no effect whatsoever. A Court of Law must accord an accused person the opportunity to take his plea, otherwise the proceeding will be a nullity. See YUSUF V. STATE (2011) 18 NWLR (pt. 1279) 853.

In the instant case, I have perused the main record and the supplementary records, the bedrock of the Appeal, curiously, I am able to locate where the trial Court read and explained the charge to the Appellant and his co-accused to the satisfaction of the Courts and they pleaded not guilty to each of the two count, as can be seen at pages 2 to 3 of the Supplementary record in the proceeding of 31st July, 2013.

For the avoidance of doubt, the relevant portion of the proceedings is hereunder reproduced:
“The charges is read to the 1st, 2nd and 3rd accused in

English Language and interpreted to them in Yoruba by the Court clerk. They appear perfectly to understand the charge to the satisfaction of the Court, and they pleaded as follows:
1st Count
1st accused pleads not guilty.
2nd accused pleads not guilty.
3rd accused pleads not guilty.
2nd Count
1st accused pleads not guilty.
2nd accused pleads not guilty.
3rd accused pleads not guilty…”.

It can be gleaned from the above that the contention of the Appellant that there was no proper arraignment of the Appellant has no basis and goes to no issue. The trial that led to conviction and sentence of the Appellant and his co-accused was done in accordance with the Law and was not in violation of his right to fair hearing. So I hold.
Issue one is resolved against the Appellant.

ISSUE TWO AND THREE
Learned Counsel for the Appellant submitted that it is the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt and this burden never shifts. See DR. ODUNEYE V. STATE (2001) 83 LRCN 1 at 220, IGABELE V. STATE (2006) 139 LRCN 1831, UDOSEN V. THE STATE (2007) Vol. 146 LRCN 771 at 175 for the point.

Counsel argued that the prosecution has failed to discharge the onerous burden required of it to prove the guilt of the Appellant beyond reasonable doubt to ground the Appellant conviction and sentence by the Lower Court. He listed some names of persons to include, the mother of the deceased, the grandfather of the deceased, the Juju ‘Agbadi’ and the Ba’ale of Ikorigho and submitted that the failure of the prosecution to call the named persons is fatal to its case and urged the Court to so hold.

Learned Counsel contended that the evidence of the prosecution on the culpability or otherwise of the Appellant was never credible, cogent, reliable and convincing enough to support the trial Court’s conviction and sentence of the Appellant when no corroborative evidence was adduced outside the alleged confessional statements. He submitted that the only evidence adduced by PW1 which linked the Appellant’s and the co-accused persons was revested to the prosecution vide a technical investigation and by juju ‘Agbadi’ who secretly carried out the identification parade of the accused persons. That

neither the Ba’ale nor the invisible juju oracle ‘Agbadi’ were called to testify. Therefore, according to counsel, the evidence of PW1 is purely hearsay and inadmissible in Law. He cited the case of ANYANWU vs SAGRANI (2008) FWLR (pt. 426) 1995 at 2004-5, OJO vs GHARORO (2006) ALL FWLR (pt. 316) 197, OSUOHA vs STATE (2010) 16 NWLR (pt. 1219) 364 at 400 among others for the view.

He further submitted that there was no direct, positive, and/or circumstantial evidence placed before the trial Court that linked the Appellant with the offence for which he was charged.

Learned Counsel submitted that the means and/or manner by which the prosecution established in proving the fact that the Appellant and his co-accused were the persons who committed the offence of kidnapping and murder of the deceased is basically by a juju oracle who was not called as a witness and be subjected to cross examination. Therefore, said counsel, there was no credible evidence before the trial Court to warrant the conviction and sentence of the Appellant and the prosecution has failed to prove its case beyond reasonable doubt. He urged the Court to so hold and resolve

these issues in favour of the Appellant and allow this appeal.

In his reaction, Learned Counsel for the Respondent submitted that the learned trial Judge rightly found that the prosecution has proved his case beyond reasonable doubt when he inferred the guilty intention of the Appellant given the circumstances of this case. That circumstantial evidence is proof of fact by inference from facts proved.

Learned Counsel submitted that proof beyond reasonable doubt has been held not to be proof beyond every iota of doubt. He contended that there is evidence from Exhibit B and D that the deceased was kidnapped in the night of 16/6/2011 and handed over to the Appellant. That it is also on record that there was a report of the murder of the deceased at the Igbokoda police station as testified by PW1. It is also in evidence that the 1st and 2nd accused told the PW1 during investigation that it was the Appellant that sent them to kidnap the deceased with a promise to pay them N100,000.00. That exhibit C show that the Appellant is related to the deceased mother and knew the 1st and 2nd accused persons even before this incident. Therefore, according to counsel,

the trial Court having believed the confessional statements of the accused persons, and other corroborating evidence is entitled to rely on it and drew inferences of guilt therefrom.

Counsel submitted that the guilt of an accused person could be established by circumstantial evidence. He cited the cases of AGBOOLA vs THE STATE (2014) 10 ACLR 382 and STATE vs USMAN (2007) 5 ACLR 34 at 88 – 89.

Learned Counsel submitted that contrary to the contention of the Appellant that the failure of the prosecution to call the mother of the deceased, the grandfather and the Ba’ale of Ikorigho is fatal to its case, the prosecution need not call a host of witnesses to proof its case but material witness(es). He submitted that PW1 gave uncontroverted evidence that the mother of the deceased became insane in the course of investigation and the grandfather also died later. That the Ba’ale was not an eyewitness to be called. Therefore, said counsel, the contention of the Appellant has no footing in Law. On the issue of the identification of the Appellant by juju Agbadi Oracle, Counsel submitted that the trial Court never convicted the Appellant based on

the alleged technical investigation of Agbadi Oracle but on the outcome of the investigation of the police through PW1.

Counsel submitted that the Appellant’s identity was revisited when the 1st and 2nd accused persons confessed and named the Appellant during investigation as the masterminder of the kidnapping and death of the deceased.

He submitted that the death of the deceased was a probable consequence of her kidnapping prosecuted by the Appellant and his cohorts. He urged the Court to so hold and dismiss the appeal.

RESOLUTION OF ISSUES TWO AND THREE
The grievances of the Appellant under these issues are that the learned trial Judge was wrong to have convicted and sentence the Appellant for the offences of kidnapping and murder of the deceased on the basis of confessional statement and testimony of PW1 relied upon by the trial Court.

It can be gleaned from the provision of Section 3 of the Ondo State Anti-Kidnapping and Anti-Abduction Law, relevant to the Appeal are: – the victim must be taken or enticed out of his or her lawful guardian and/or parent.

In convicting the Appellant, the learned trial judge stated

at page 84 – 85 of the record as follows:
“I have carefully considered the evidence adduced by the witness and the accused persons in the course of this trial and the submissions of counsel in their various written addresses before this Court. Having considered the evidence vis-a-vis, proof of kidnapping and exhibits before the Court; it is my view that:-
(1) There was no dispute on the fact that the deceased was missing and taken from where he slept with her mother.
(2) Neither was there any dispute that the deceased was found dead several hours later in a bush beside her parent’s house with some parts of her body missing.
(3) Neither is there any controversy on the fact that the inflicted injuries led to the death of the deceased…
The 1st and 2nd accused gave graphic details in their extra judicial statements on how the deceased was kidnapped and handed over to the 3rd accused because reward was involved.”

He furthered at page 89 of the record thus:
“…From the evaluation of the evidence of the prosecution and the defence, the death of the deceased (the child taken from where she

was sleeping) is an undisputable fact. Likewise, evidence was adduced that the 1st and 2nd accused were responsible for the disappearance of the deceased only to be found later with mutilated body and some missing parts…
The intention and knowledge that death or grievous bodily harm was the probable consequence can be inferred from the actions of the accused persons…
From the totality of the evidence before the Court, the prosecution has proved that the acts of the 1st, 2nd, and 3rd accused persons were responsible for the death of the deceased.”

From the above, it is clear that the Appellant has played a vital role in the kidnapping and murder of the deceased. Evidence abound that the Appellant masterminded the kidnapping and after kidnapping the deceased, the 1st and 2nd accused handed her over to the Appellant and was later found death. There is no doubt that the Appellant has fully participated and aided the 1st and 2nd accused in kidnapping and murder of the innocent deceased. The identity of the Appellant was revealed by the 1st and 2nd accused persons but not by the alleged juju in the circumstances of this case.

The Appellant pinpointed some named persons as persons whose evidence were vital. It is trite Law, that the prosecution, is not required to call a host of witnesses to prove his case. One reliable witness is enough to prove the commission of a crime. See ALI vs STATE (2015) 10 NWLR (pt. 1466) 1, ADEGBITE vs STATE (2017) LPELR 42585 (SC).
PW1 testified and gave uncontroverted evidence that the mother of the deceased became insane because of the trauma of the incident and that the grandfather later died. The Ba’ale cannot be said to be a vital witness in the circumstances of this case. I am unable to christen those persons listed by the Appellant as vital witnesses. Besides, it is the prosecution that determines the vitality of his evidence. See NWEKE vs STATE (2017) 15 NWLR (pt. 1587) 120.

Another grouse of the Appellant is against the evidence

of PW1, the Police investigation officer. He decried it as inadmissible hearsay.

I have given an in-depth study to the evidence of PW1, the investigation Police officer wrapped between pages 29 – 44 of the record. The PW1 gave evidence of the investigation conducted by him and tendered exhibits. To my mind, it cannot be contended that the account or what the witness did and saw in the course of the investigation he conducted was a story that was told to him by another person. The evidence given by PW1 on the investigation he personally conducted cannot be said to be hearsay. The references he made were made not to establish the truth of what was said by the 1st, 2nd and 3rd accused persons and the grandfather of the deceased but to show that they were made by such persons. To my mind, the testimony of PW1 fails within the perimeter of the admissible evidence and do not constitute hearsay evidence. It has not

defiled the Law and therefore admissible. See ANYASODOR vs STATE (2018) LPELR 43720 (SC).

The lower Court was in my view right when it held that the Respondent discharged its burden and proved the case levelled against the Appellant. In sum, issues two and three are resolved against the Appellant.

On the whole, having resolved the three issues against the Appellant, the Appeal lacks merit and deserves the penalty of dismissal. Consequently, I dismiss the Appeal and affirm the decision of the lower Court, delivered on 24th March, 2014.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read the draft of the leading judgment, in this appeal, just delivered by my learned Brother, RIDWAN MAIWADA ABDULLAHI, JCA.

I agree that the appeal is bereft of merits and accordingly dismiss it. I abide by the consequential orders made in the said leading judgment.

PATRICIA AJUMA MAHMOUD, J.C.A.: I read in draft the lead judgment of my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA. I am in complete agreement with his reasoning and conclusion which I adopt as I have nothing more that I can add to it.
This appeal lacks merit. I also dismiss it and affirm the decision of the trial lower Court.

Appearances:

O. Aderosin Esq. For Appellant(s)

A. Oladunmiye Esq. For Respondent(s)