EDWARD v. STATE
(2022)LCN/16412(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, January 21, 2022
CA/AK/99C/2019
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
FEMI EDWARD APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE GENERAL POSITION OF THE LAW ON BOTH STATUTORY AND CASE LAW
In fact, the general position of the law both statutory and case law, is that where an accused person in a criminal trial indicates that he does not understand the language used at the trial, or where the Court realizes that the accused does not understand the official language of the Court, then the Court in compliance with the provision of the constitution, shall provide an interpreter to the accused. See ONYIA V STATE (2008) LPELR–2743 YUSUF ALHAJI BASHIR, J.C.A.
IT IS NOT EVERY REQUIREMENT THAT MUST APPEAR ON RECORD
But then the Supreme Court per Mukhtar JSC in UDO V STATE (2006) LPELR–3298 held:-
“It is not every requirement that must appear on record. For example the requirement that the Judge should be satisfied that the charge has been read and explained to the accused need not appear on the record… There is nothing in Section 215 of the CPL which says the trial Judge must put on record his satisfaction for once the record of the Court shows that the charge has been read over and explained to the accused and the accused pleaded to it before the case proceeded to trial, it is presumed that everything was regularly done”.
Similarly, Section 248(2)(5) of the Administration of Criminal Justice Law of Ondo State did not mandate that it must be recorded that the accused was brought to Court fettered and/or unfettered. So, in the absence of any complaint that the accused was fettered the presumption that everything was done regularly operates in terms of the proceedings. Accordingly, I hold the view that the arraignment of the Appellant was quite regular. The right of the Appellant was not violated during the arraignment just because it was not recorded that he was unfettered. YUSUF ALHAJI BASHIR, J.C.A.
YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Ondo State High Court sitting in Akure Coram: Yemi Fasanmi J.
The allegation against the Appellant is that on 12th day of May 2016 the Appellant and others still at large attacked one Segun Kehinde in his house while being armed, robbed him of the sum of Two Thousand Five Hundred Naira (N2,500.00) and a Nokia handset and then inflicted matchet cut on the victim. He testified as PW1.
That also on the night of 8th September 2015 the Appellant and his gang attacked one Risikat Ahmed, upon threat to inflict matchet cuts on her. They took away her Nokia handset, N80,000.00 and set of gold worth Two Hundred and Fifty Thousand Naira only (N250,000.00) and a further sum of N100,000.00 while being armed with gun, axe and small cutlass. Before the High Court of Ondo State Akure the Appellant was arraigned and proceeded against for conspiracy to commit Armed Robbery and Armed Robbery; and membership of secret cult. Contrary to Section 6(6) (b) and Section 1(2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act Qp R 11 Laws of the Federation 2004and Section 1 of the Cultism and Secret Cult and Similar Activities (Prohibition) Law Cap 39 2006.
At the end of the trial where 5 witnesses testified for the prosecution with the Appellant testifying for himself, the learned trial Judge found the Appellant guilty convicted and sentenced him to death by hanging for conspiracy to commit Armed Robbery and Armed Robbery then discharged and acquitted him on the charge for membership of secret cult.
Not satisfied with the conviction and sentence, the Appellant filed a Notice of Appeal at the lower Court on 28th day of January, 2019 containing 4 grounds of appeal which was amended by leave of Court granted on 10/10/2019. Adding one additional ground to the existing 5 bringing the total grounds of appeal to 6 on an amended Notice of Appeal filed on 15/10/2019.
The record of appeal was transmitted on 12th March 2019. After which the Appellant filed his brief of argument on 29/10/2019 settled by Olusegun Samuel Aderibigbe Esq. Learned counsel formulated 2 issues for determination:
(1) Whether the trial of the Appellant and the entire proceedings at the lower Court was a nullity in view of the faulty arraignment of the Appellant. (Ground 6).
(2) Whether the lower Court was right to have convicted the Appellant for both conspiracy to commit Armed Robbery and Armed Robbery in view of the evidence before it. (Distilled from Grounds 1–6).
Respondent’s brief was settled by G. A. Olowoporoku (Mrs.) D.P.P. Simon Oni Esq. Assistant Chief Legal Officer, O. F. Akeredolu Chief Legal Officer. All of the Ministry of Justice Akure, Ondo State.
The Respondent in their said brief filed on 25th February 2020 deemed on 23rd March, 2021, they simply adopted the two issues formulated by the Appellant and made their submissions thereunder.
SUBMISSIONS OF COUNSEL
The learned Appellant’s counsel submits that the entire trial and proceedings at the lower Court was a nullity as the arraignment was defective and did not conform with Section 248(2) of the Administration of Justice Law of Ondo State 2015, which require that the person to be tried upon any charge or information shall be placed before the Court unfettered, unless the Court sees otherwise.
The charge shall be read over and explained to him to the satisfaction of the Court and such person shall be called upon to plead Section 248(2) provides that the Court shall record the facts it is satisfied that the defendant understands the charge or information read over and explained to him in the language he understands and shall record the plea of the defendant as nearly as possible in the words used by him.
Counsel submits further that from the records, it was never shown that at the time of arraignment or at any time during the entire trial that the Appellant was unfettered. And provision of S. 248(2) of the Ondo State Administration of Justice Law 2015 which is imparimateria with Section 215 of the Criminal Procedure Act, Laws of the Federation is mandatory and must be complied with. Any slightest infraction makes the whole trial a nullity. See MUSA V STATE (2017) ALL FWLR (Pt. 887) Page 1 at 27.
Where counsel submits that the three conditions that must be satisfied for a valid arraignment were stated.
That from the records nowhere was it stated that the Appellant was unfettered during the proceedings. So, the trial of the Appellant for that reason is a nullity. Because the record of appeal is the only document that a Court of Appeal can examine to see if there was compliance with Section 215 of the Criminal Procedure Act. He cited the case of HASSAN V FRN (2017) ALL FWLR (Pt. 896) Page 1808 per Rhodes Vivour, JSC.
Learned counsel urged us to look at the records of appeal to see that nothing was recorded about whether or not the Appellant was unfettered at his arraignment so his conviction should be quashed on that ground.
Appellant’s counsel submits further that the lower Court did not ensure that each of the count was read over to the Appellant and interpreted to him in the language he understands. That there is no record of the fact that the plea of the Appellant was taken on each count and specific plea made against each count. The record has shown that the Appellant does not understand English only Yoruba. He gave his evidence in Yoruba. So, no valid arraignment took place and that no record of an interpreter being used to interpret proceedings to the Appellant. See OKEKE V STATE (2003) FWLR (Pt. 159) Pg. 1381.
Where the Supreme Court held that:
“An arraignment is not a matter of technicality. It is a very important initial step in the trial of a person on a person on a criminal charge….. Failure to comply with any of the condition precedent to arraignment will render the whole trial a nullity”.
Counsel submitted that the Appellant was denied his right to an interpreter guaranteed by Section 36(6)(e) of the Constitution, 1999.
Appellant’s counsel prayed us to resolve this issue in favour of the Appellant.
ISSUE TWO
The Appellant’s counsel on this issue submitted that the trial lower Court was wrong to have convicted him for conspiracy to commit Armed Robbery and Armed Robbery when he gave evidence of alibi at the point of his arrest that he was in Port Harcourt at the time the alleged offences were committed and that he repeated it in Court during his defence but he was not cross-examined on it and the police did not investigate the alibi which means his alibi remained unchallenged. It means that defence remained unchallenged. So, the Court was wrong to have convicted him. He relied on OFORLETE V STATE (2000) FWLR (Pt. 12) Page 2018 where it was held that where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence.
Yet the lower Court refused to discharge the Appellant but assisted the prosecution in giving reasons why the plea (defence) should fail.
Appellant also argued that the lower Court should not have believed the evidence of PW1 as his story is simply incredible. PW1 said he was attacked in his family house around 8am in the presence of his sister but his said sister was not called to testify. This shows that PW1 merely gave evidence to frame up the Appellant, no evidence to show that the wounds on the PW1 was inflicted by the Appellant.
PW3 did never said he saw the Appellant when he and his wife were attacked.
And that PW2’s evidence on whether she identified the Appellant as one of those who attacked her is not credible as the room she was attacked was dark, she only put on a torchlight when she was woken from her sleep by the sound of her door. The counsel cited the case of C.O.P V ALAO (1959) WNLR 39 at 40 and IDAHOSA V QUEEN (1965) NMLR Pg. 85 to emphasize the importance of prompt identification by an eye witness.
Further that the lower Court did not consider the Appellant’s evidence that the son of the PW2 and himself had problems leading to his arrest and it was the same PW2 who said he has identified the Appellant. This should have cast doubt in the mind of the Court which should be resolved in favour of the Appellant. Counsel submitted that both PW1 and PW2 had issues with the Appellant before he was accused of robbing them, so their evidence against him needed to be corroborated as they are both tainted witnesses. ABIODUN V STATE (2017) ALL FWLR (Pt. 878) 519.
The learned counsel submitted further, that he stood his trial alone so there was no way he could have conspired with himself to commit armed robbery. His conviction on conspiracy according to counsel is wrong. He relied on GARUBA V C.O.P (2007) ALL FWLR (Pt. 384) 266 at 287. Counsel urged us to resolve this issue in favour of the Appellant as well, quash his conviction and then discharge and acquit the Appellant.
RESPONDENT’S COUNSEL
Arguing Issue 1 Respondent’s counsel submitted that the Appellant in its case was properly arraigned before the trial Court free and unfettered. It is the duty of the Appellant to show that he was fettered at the time of his arraignment which he has failed to do.
He submitted further that the part of the record containing the Appellant’s arraignment was deliberately omitted. However, a supplementary record of appeal signed by Miss Olaniyi Oladapo dated 4th February, 2020 has now been filed and transmitted which has revealed that the trial Court actually complied with the law in the arraignment of the Appellant in accordance with the requirement of Section 248(2) and (3) of the Administration of Criminal Justice Law of Ondo State.
While submitting on issue two the learned counsel submitted that the trial Court was right in convicting the Appellant for both conspiracy to commit armed robbery and armed robbery.
He further submitted that PW1, PW2 and PW3 gave evidence that the Appellant and his gang members attacked and robbed them of their belongings while being armed with dane gun weapons like axe, gun, etc. inflicting injuries on the victims. All the three witnesses identified the Appellant as being among their attackers. He referred us to pages 24, 25, 30, 31 and 32 of the record. Counsel cited the case of OSUAGWU V STATE (2009) 1 NWLR (Pt. 1123) 523 for definition of ingredient of Armed Robbery and Section 11 of the Robbery and Firearms (Special Provisions) Act Cap 11 Laws of Federal Republic of Nigeria.
Respondent’s counsel also argued that defence of alibi is not available to the Appellant having not raised it timeously to enable the police investigate the defence. It is late in the day to raise such a defence for the first time on the witness stand during defence. That he was in Port Harcourt within the time the robbery was committed. ADEBIYI V STATE (2016) 8 NWLR (Pt. 1515) 459.
Respondent’s counsel also rejected the argument of the Appellant’s counsel condemning the evidence of PW1 contending strongly that the evidence of PW1 is credible and unassailable because the Appellant and his gang are well known to the PW1 and that PW1 was attacked in a broad daylight.
At the same time counsel submitted that the lower Court was right and not in error in convicting the Appellant on the evidence of PW2 because the witness gave a vivid eye witness description of the role played by the Appellant in the robbery incident which they carried out in her house twice on 8th September 2015.
Learned Respondent’s counsel urged us to discountenance the Appellant’s submission that he should not have been convicted for conspiracy to commit armed robbery, because the Appellant did not act alone, he acted with other accomplices.
Counsel further submitted that there was an agreement between two or more persons to do an illegal act. See POSE V THE STATE (2011) 2 SCNJ 37. Conspiracy must be inferred from the circumstances in that the available evidence points to the Appellant as belonging to the gang of robbers that robbed PW1, PW2 and PW3 on three different occasions. All of whom are well identified as Wale Gbenga, Ayo and the Appellant (Femi Edward).
In view of the foregoing, the learned Respondent’s counsel submitted that the lower Court was right in convicting the Appellant. In conclusion, he urged this Court to resolve the two issues in favour of the State and to affirm the decision of the trial Court by dismissing the appeal in its entirety.
On the 29th day of March, 2021 Mr. Aderibigbe Olusegun Esq. filed the Appellant’s reply brief of argument on points of law.
Appellant’s counsel argued that for an arraignment to be valid, the 3 requirements he mentioned in paragraph 11 a-b-c must be apparent on the record including the fact that the Appellant was not fettered at the point of arraignment. That it is wrong for the Respondent’s counsel to argue that there was no need for the learned trial Judge to put on record the fact that the Appellant was fettered.
Counsel drew our attention to the fact that it was one Mrs. Olaniyi–Oladepo who compiled the record and not the counsel himself. He therefore disowned the lapses that resulted in the omission of some parts of the record dealing with arraignment. But even then counsel argued that in the supplementary record, nowhere was it recorded that the Appellant was placed in the dock unfettered still the arraignment is faulty.
With respect to the Appellant defence of alibi, counsel submitted that the confessional statement of the Appellant was rejected by the Court when they sought to put it in evidence at the trial so there is no other document from which it will be seen whether the Appellant raised his alibi timeously or not. So the evidence of PW4 andPW5 becomes mere hearsay as there is no document (confessional statement) of the Appellant upon which to anchor their evidence. So the evidence of PW4 and PW5 are not worthy of consideration for being hearsay. He cited the case of OLATUNJI V STATE (2016) LPELR – 41113 (CA).
Counsel contended further that since the evidence to show the Appellant did or did not make the defence in his statement was not before the trial Court and the prosecution did not cross-examine the Appellant with a view to showing that the defence did not avail him. it goes to show that the trial Court was in error to have rejected the Appellant’s alibi.
In all, counsel again urged this Court to allow the appeal.
RESOLUTION OF ISSUES
The substance of this appeal is on the propriety or otherwise of the process of the arraignment of the Appellant in terms of his constitutionally guaranteed right of fair hearing and fair trial. Coupled with lack of interpretation of the proceedings to the Appellant from English to Yoruba language.
The second arm of the appeal deals with insufficiency of evidence to convict for armed robbery and conspiracy to commit armed robbery in a trial that involved only one suspect.
The requirement of a valid arraignment enunciated by the Supreme Court in UDO V STATE (2006) LPELR–3298 and KALU V STATE (1998) LPELR–1655 (SC) are:-
(1) That the accused person must be placed before the Court unfettered.
(2) The charge or information shall be read over and explained to the accused to the satisfaction of the Court.
(3) The accused shall then be called upon to plead instantly to the charge unless there is a valid reason not to do so.
This appeal is supported by two records of appeal duly transmitted to this Court at 2 different times. The first and main record was transmitted on 12th March 2019, while on 4th February 2020 a supplementary record was again transmitted with leave of this Court sought and granted on 22/3/2021. The supplementary record of appeal contain proceedings conducted on 29th November 2017 on which date the Appellant was arraigned in Court; pursuant to information containing five counts of offences very clear and palpable on the face of the supplementary record, the charges against the Appellant were duly read, interpreted and explained to him in Yoruba, the language he elected to speak in Court, in the presence of the Appellant’s counsel one S. A. Ayela Esq. to the satisfaction of the Court. The records show clearly that the Appellant was called upon immediately to make his plea on each of the counts after full explanation was given. The Appellant thereafter pleaded not guilty to all the charges which facts were then recorded in accordance with Section 248(2) of the Administration of Criminal Justice Law of Ondo State 2015 and Section 36(6)a.
What however that is not on record is whether the Appellant was brought into the Court unfettered or whether he was fettered. This much is not contained in the records of appeal as per the sequence of events on the day of the arraignment. But then the Supreme Court per Mukhtar JSC in UDO V STATE (2006) LPELR–3298 held:-
“It is not every requirement that must appear on record. For example the requirement that the Judge should be satisfied that the charge has been read and explained to the accused need not appear on the record… There is nothing in Section 215 of the CPL which says the trial Judge must put on record his satisfaction for once the record of the Court shows that the charge has been read over and explained to the accused and the accused pleaded to it before the case proceeded to trial, it is presumed that everything was regularly done”.
Similarly, Section 248(2)(5) of the Administration of Criminal Justice Law of Ondo State did not mandate that it must be recorded that the accused was brought to Court fettered and/or unfettered. So, in the absence of any complaint that the accused was fettered the presumption that everything was done regularly operates in terms of the proceedings. Accordingly, I hold the view that the arraignment of the Appellant was quite regular. The right of the Appellant was not violated during the arraignment just because it was not recorded that he was unfettered.
With regard to the Appellant’s complaint on the issue of lack of interpretation to the language he understands. The resolution of this question will require an examination of Section 36(6) (a) and (e) of the 1999 Constitution, in order to understand the type of rights guaranteed the Appellant or indeed any person being put on trial for any criminal allegation.
Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria provides that:
S.36(6): “Every person who is charged with a criminal offence shall be entitled to –
(a) be informed promptly in the language that he understands and in detail the nature of the offence.
(e) have without payment, the assistance of an interpreter, if he cannot understand the language used at the trial of the offence.
The trial of the Appellant commenced on the 29th November 2017 with his arraignment where the charge against him was read and explained to him. Meanwhile, before then the Accused/Appellant elected to speak Yoruba, which actually is not the language of the Court, making it necessary that the proceedings must be interpreted to him at no cost. In other words, the Appellant electing to speak in Yoruba has made it mandatory that an interpreter be provided to interpret the proceedings for his benefit in order for him to participate and be well informed of the proceedings against him in accordance with the right of fair hearing. See page 1 of the supplementary record.
On this particular day one Mr. Badewa Adeyinka the lower Court Registrar was sworn to interpret and interpreted the arraignment after which two witnesses PW1 and PW2 testified in Yoruba, a language the Appellant himself elected to speak with. So we take it that he understood the proceedings of the day together with the evidence given by two out of the 5 prosecution witnesses. What we are trying to say here is that the legal and constitutional safeguard for fair hearing in criminal trials does not end with arraignment, certainly not. To that extent, it is absolutely necessary for criminal proceedings, especially one whose verdict may lead to a death sentence to be conducted in strict compliance with the rules and constitutional safeguards, in a free and open atmosphere with the accused being fully carried along. There must be provided free interpretation of the entire proceedings in a language the Accused/Appellant understands; in this case Yoruba language and vice versa. The record in this appeal reveals that the PW3, PW4 and PW5 testified in English language and that there is no indication that their evidence was interpreted to the Appellant into Yoruba language. See pages 36, 42 and 46 of the record of appeal. This has violated the constitutional right of the plaintiff. See AJAYI V ZARIA N. A(1963) LPELR–25395 (SC).
In fact, the general position of the law both statutory and case law, is that where an accused person in a criminal trial indicates that he does not understand the language used at the trial, or where the Court realizes that the accused does not understand the official language of the Court, then the Court in compliance with the provision of the constitution, shall provide an interpreter to the accused. See ONYIA V STATE (2008) LPELR–2743.
During the trial of this matter where the trial Court eventually sentenced the Appellant to death for the offence of conspiracy to commit armed robbery and armed robbery the evidence of 3 out of the 5 witnesses who testified in English before the trial Court was not interpreted to the accused who speaks Yoruba as the record shows. What this amounts to is that the Appellant did not participate in his trial by being kept in the dark which is tantamount to denial of fair hearing as guaranteed by S. 36(6) of the 1999 Constitution. The effect of that is to vitiate the entire trial.
See AJAYI V ZARIA N. A (supra).
The failure to provide an interpreter to interpret the testimonies of PW3, PW4 and PW5 who testified in English to Yoruba language for the benefit of the Appellant has resulted to a miscarriage of justice. For which the conviction and sentence of the Appellant cannot stand, it has vitiated the entire trial.
Accordingly, this appeal has merit and it is hereby allowed. The judgment of the Ondo State High Court in Case No: AK/21/C/2017 is hereby set aside along with the conviction and sentence of the Appellant. Because the error that led to the setting aside of the judgment of the lower Court is purely procedural, a retrial in the circumstance is hereby ordered. Case is therefore remitted back to the High Court of Ondo State for the purpose of hearing the case de novo before a different Judge.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother YUSUF ALHAJI BASHIR, JCA.
I agree with his reasoning and conclusions.
The appeal is allowed by me.
The judgment of the Ondo State High Court sitting in Akure in Suit No. AK/21/C/2017 is hereby set aside.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been availed a draft of the judgment delivered by my learned Brother, YUSUF A BASHIR, JCA.
I agree with him that the conviction of the Appellant is vitiated by the failure of the trial Court to have the evidence of PW3, PW4 and PW5 who testified in English language interpreted to the Appellant in Yoruba language. In the result, this appeal is meritorious and is hereby allowed. The conviction and sentence of the Appellant is hereby quashed.
Appearances:
O. S. ADERIBIGBE For Appellant(s)
S. J. ONI (ASST. CHIEF LEGAL OFFICER ONDO STATE MINISTRY OF JUSTICE) For Respondent(s)
