ESTHER SOKEYE V. THE STATE (2010)

ESTHER SOKEYE V. THE STATE

(2010)LCN/4063(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of November, 2010

CA/I/64/07

RATIO

CONSEQUENCE OF OF THE OMISSION OR FAILURE TO READ AND EXPLAIN THE CHARGE TO THE ACCUSED AS WELL AS THE ABSENCE OF PLEA THEREOF

The omission or failure to read and explain the charge to the appellant as well as the absence of her plea in the proceedings was unfortunate and mortally struck at the root of the entire case. It is fatal and has rendered the entire proceedings a nullity, as rightly submitted by Mr. Agbebi for the appellant – see section 36(6)(a) of the 1999 Constitution and section 215 of the Criminal Procedure Law (C.P.L.) (not “Act” mistakenly stated in the appellant’s brief of argument). The effect of non-compliance with section 36(6)(a) of the 1999 Constitution and section 215 of the C.P.A., as happened here, is to render the whole proceedings null and void ab-initio. A case on all fours with this case is Salisu Yahaya v. The State (2002) 2 SCNJ page 1, a murder case, where the trial court omitted to read the charge to the appellant and; also, omitted to take his plea before it took evidence in the case and eventually convicted him of murder. The Supreme Court declared the proceedings null and void ab-initio in the lead judgment of Uwais, C.J.N. at page 9 of the law report thus: “Now both the appellant and the respondent are at ad idem that there has been an infraction of the provisions of section 215 of the Criminal Procedure Law Cap. 30, which provides:- “215. 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'” PER IKYEGH, J.C.A.

RETRIAL : WHAT ARE THE THE PRINCIPLES LAID DOWN FOR A RETRIAL

…see Salisu Yahaya (supra) at page 10 on the issue and the conditions under which a proper trial may be ordered: “The principles laid down for a retrial, beginning with the case of Yusufu Abodundu & Ors. (supra) and the later authorities, seem to me to have been met in this case. The principles are that in ordering a retrial, the facts of the case must contain the following factors:- (a) That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the court is unable to say that there has been no miscarriage of justice. (b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant, (c) That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time. (d) That the offence or offences of which the appellant was convicted, or the consequences to the appellant or any other of the conviction or acquittal of the appellant, are not merely trivial. (e) That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it. (d) That to enable the prosecution adduce evidence against the appellant which evidence may convict him when his success at the appeal is based on the absence of that same evidence. I am aware that all these factors must exist conjunctively for a retrial to be ordered. However, a retrial is ordered only where there has in fact been a previous trial that was properly conducted but which is vitiated by reason of an error in law or procedure. In the present case there had been no trial because the purported trial whatsoever was vitiated ab initio. Therefore, the order to be made is for a proper trial to take place and not a retrial.” PER IKYEGH, J.C.A.

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

ESTHER SOKEYE Appellant(s)

AND

THE STATE Respondent(s)

IKYEGH, J.C.A., (Delivering the Leading Judgment):  The appellant was convicted and sentenced to 18 months imprisonment for the offence of manslaughter contrary to section 325 of the Criminal Code Law (Cap.29), Laws of Ogun State, 1978, by the Ogun State High Court of Justice sitting at Abeokuta.
The case against her was that in the morning hours of 15.3.2003, there was an uproar in the premises of one Sokoye at No.5 Igbore Road Abeokuta. It involved a quarrel and fight between some of the children of the landlord and the care-taker of the premises. The deceased, a woman and one of the tenants, intervened and pacified them. Later in the evening of the same day, the appellant confronted the deceased along the corridor of the premises where she was cooking, close to her room. She queried her for intervening in the quarrel. Their interaction led to the appellant slapping the deceased first. It was followed by her push against a wardrobe; the push brought the deceased to the ground. The appellant then ran away.
The evidence for the respondent added that the deceased could not stand up from the ground. She was unable to talk. She held her chest, cried of chest pain. On the second day, her chest condition worsened. It caused her not to move. She was taken to the hospital, speechless, on 16.3.03 where she died on the 17.3.03; so ended respondent’s case.
Appellant’s evidence was to this effect. The deceased cursed her ceaselessly on the fateful day. Because she did not intervene in a fight between one Mowunmi and the brother of her husband. That her failure to intervene escalated the fight into a police case. But appellant cautioned her to steer clear of the matter, as it was a family affair not concerning her. The deceased retorted that appellant could not have spoken to her mother in such manner. She added that appellant would not live to see the following day. Appellant’s husband then escorted her away from the scene. News later reached them of deceased’s demise. The sad news surprised them. Appellant was arrested and prosecuted for her death.
It was against the backdrop of the above state of affairs that appellant appealed against her conviction and sentence in a notice of appeal comprising two grounds of appeal. She was given leave of court to argue the appeal on her brief of argument after respondent neglected to file a brief in the appeal.
Two issues for determination were formulated from the two grounds of appeal. They relate to the failure of the court below to take the plea of the appellant before proceeding with her trial as required by section 215 of the Criminal Procedure (sic) Act (C.P.L.) and section 36 of the Constitution of the Federal Republic of Nigeria, 1999, (1999 Constitution); and alleged improper evaluation of evidence by the court below. Issue (1) appears to connect the first ground of appeal, while issue (2) is attached to the second ground of appeal. The issues as framed are’ in my opinion, apposite.
It was contended on issue (1) that the charge sheet was not read and explained to the appellant, nor was her plea taken by the court below before it commenced the hearing of the case in breach of section 36 of the 1999 Constitution and section 215 of the C.P.L. There is substance in the above submission. The compiled record of appeal indicated the case first came up before the court below on 28.4.2004, where it was recorded that the appellant was present and represented by her counsel, A. Ogundeyi, Esq., while the respondent was represented by Mrs. A. A. Shobayo leading Mrs. O. Oke.
The next entry in the record of the court below was the preliminary examination of a minor of 13 years old who was presented as the first prosecution witness. Thereafter the evidence of the minor ‘a girl’ was taken, followed by the evidence of the other prosecution witnesses. Then, on subsequent dates, evidence for the defence was taken. It was followed by the final addresses of the parties. The judgment of the court below closed the proceedings.
It is very clear from the compiled record of appeal that the charge sheet was not read and explained to the appellant. Nor was her plea taken before the case against her proceeded to finality. The very foundation of a criminal trial – proper arraignment – was absent from the case. The omission or failure to read and explain the charge to the appellant as well as the absence of her plea in the proceedings was unfortunate and mortally struck at the root of the entire case. It is fatal and has rendered the entire proceedings a nullity, as rightly submitted by Mr. Agbebi for the appellant – see section 36(6)(a) of the 1999 Constitution and section 215 of the Criminal Procedure Law (C.P.L.) (not “Act” mistakenly stated in the appellant’s brief of argument).  The effect of non-compliance with section 36(6)(a) of the 1999 Constitution and section 215 of the C.P.A., as happened here, is to render the whole proceedings null and void ab-initio. A case on all fours with this case is Salisu Yahaya v. The State (2002) 2 SCNJ page 1, a murder case, where the trial court omitted to read the charge to the appellant and; also, omitted to take his plea before it took evidence in the case and eventually convicted him of murder. The Supreme Court declared the proceedings null and void ab-initio in the lead judgment of Uwais, C.J.N. at page 9 of the law report thus:
“Now both the appellant and the respondent are at ad idem that there has been an infraction of the provisions of section 215 of the Criminal Procedure Law Cap. 30, which provides:-
“215. 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'”
At the time the trial purportedly commenced on 24th May, 1995, the applicable provisions of the Constitution were those of the Constitution of the Federal Republic of Nigeria, 1979. Section 33 subsection (6) (a) thereof states:-
“33(b) 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'”
So that not only were the provisions of section 215 of the Criminal Procedure Law, Cap. 30 not complied with but also those of section 33 subsection 6(a) of the 1979 Constitution (which are the same as those of section 36(6) (a) of the 1999 Constitution). As has been seen above, it has been settled by this court by a plethora of cases that once the provisions of section 215 of the Criminal Procedure Law and those of the Constitution referred to above are not followed in a criminal trial, the trial is rendered null and void ab initio. All the other matters that follow thereafter amount to an exercise in futility and are of no significance.”
The appeal is allowed on issue (1) and the entire proceedings resulting in the conviction and sentence of the appellant by the court below for manslaughter are hereby declared null and void ab initio.
Since the proceedings have been declared null and void, issue (2) on the improper evaluation of evidence by the court below becomes otiose. What logically follows in such situation is to consider whether to order a proper trial of the case – see Salisu Yahaya (supra) at page 10 on the issue and the conditions under which a proper trial may be ordered:
“The principles laid down for a retrial, beginning with the case of Yusufu Abodundu & Ors. (supra) and the later authorities, seem to me to have been met in this case. The principles are that in ordering a retrial, the facts of the case must contain the following factors:-
(a) That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the court is unable to say that there has been no miscarriage of justice.
(b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant,
(c) That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time.
(d) That the offence or offences of which the appellant was convicted, or the consequences to the appellant or any other of the conviction or acquittal of the appellant, are not merely trivial.
(e) That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it.
(d) That to enable the prosecution adduce evidence against the appellant which evidence may convict him when his success at the appeal is based on the absence of that same evidence.
I am aware that all these factors must exist conjunctively for a retrial to be ordered. However, a retrial is ordered only where there has in fact been a previous trial that was properly conducted but which is vitiated by reason of an error in law or procedure. In the present case there had been no trial because the purported trial whatsoever was vitiated ab initio. Therefore, the order to be made is for a proper trial to take place and not a retrial.”
The offence of manslaughter under which the appellant was tried prescribes life imprisonment as the maximum punishment for the offence under section 325 of the Criminal Code Law. It is in that wise a serious offence. So condition (d) above to the effect that the offence is not trivial is satisfied, as criminal justice is both for the appellant and the victim of the crime, as well as society in general. Consequently, it may amount to a new greater miscarriage of justice considering the gravity of the offence to refuse a new trial and, in that light, condition (e) (supra) is, also, satisfied,
As for condition (f) (supra) the prosecution did not indicate existence of new evidence outside the evidence it tendered in the court below for the new trial, consequently condition (f) (supra) has not arisen in the present case.
Condition (f) (supra) having not arisen, it is necessary to see whether conditions (a) (b) and (c) (supra) are present in the case.  It was the failure to take the plea of appellant that led to the nullification of the proceedings. No other error in law or irregularity in procedure affected the case as to lead to miscarriage of justice. So condition (a) (supra) has been satisfied.
Condition (b) (supra) is whether there was substantial case or evidence against appellant. The eye-witness, the P.W.1 and daughter of the deceased aged 13 years at the material time, said there was a quarrel between appellant and the deceased. That in the course of the quarrel, appellant slapped the deceased and pushed her against a cupboard. The push resulted in the deceased hitting her chest against the cupboard from where she started complaining of chest pain. And that, she was taken to hospital for treatment the next day, where she died on 17.3.2003.
The P.W.4, a medical doctor, examined the deceased on 17.3.03. According to his post-mortem examination report in Exhibit ‘C’ the cause of death was:
“cardio pulmonary failure as a result of blunt chest injuries.”
There is, in my Considered view, substantial evidence from the P.W.1 and the P,W.4 of nexus between the act of the appellant and the death of the deceased to satisfy condition (b) (supra), for a new trial. Condition (c) (supra) is whether there are no special circumstances to render it oppressive to put appellant on trial the second time. Appellant was sentenced to 18 months imprisonment on 21.6.2005. The compiled record does not indicate she was granted bail pending appeal. I take it she finished serving her sentence of 18 months imprisonment calculated from 21.6,2005 to date. Therefore, it will be oppressive to order her to be tried afresh.
In conclusion conditions (c) (supra) and (f) (supra), for a new trial have not been met. Only conditions (a) (b) (d) and (e) were met. It is trite that all the six conditions must co-exist before a new trial will be ordered – see Salisu Yahaya (supra). It cannot be so ordered in the present case. The appeal is allowed on issue (1), while issue (2) is struck out on ground of redundancy. The entire proceedings in the case in the court below are set aside and declared null and void ab-initio in consequence.