IFEANYI EKWURUEKWU v. THE STATE (2013)

IFEANYI EKWURUEKWU v. THE STATE

(2013)LCN/6724(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of March, 2013

CA/PH/454/06

RATIO

NATURE OF THE RIGHT TO FAIR HEARING

As can be gleaned from Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, part of which are reproduced above, the right to fair hearing is a fundamental right which is guaranteed under the supreme law of the land – the constitution and its breach in a judicial proceedings vitiates the whole proceeding, including the judgment or ruling made thereat. See F.R.N v. AKUBUEZE (2010) 17 NWLR (Pt. 1223) 525; PAN AFRICAN INTERNATIONAL CORPORATION v. SHORELINE LIFEBOATS LTD (2010) 6 NWLR (Pt. 1139) 98; OVUNWO v. WOKE (2010) 17 NWLR (PT. 1277) 522.

That the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
That the court or tribunal shall give equal treatment, opportunity and consideration to all concerned.
That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of Public hearing, and
That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.

See also ADIGUN v. ATT. GEN. OYO STATE & ORS (1987) 1 NWLR (Pt. 53) 678, SHELDON v. BROMFIELD JUSTICES (1964) 2 QB 573 at 578; DADUWA v. OKORODUDU (1976) 10 SC 329; ROBERT C. OKAFOR & ORS v. ATT. GEN. & COMMISSIONER FOR JUSTICE & ORS (1991) 6 NWLR (Pt.200) 659. In OKAFOR v. ATT. GEN and COMMISSIONER FOR JUSTICE (supra) it was held that the true test for fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.It is important to note that fair hearing lies not in the correctness or propriety of the decision but rather in the procedure followed in the trial and determination of the case. It is only when the opponent has been heard that the judge would be seen to have discharged the duty of an unbiased umpire. That is why the rule of audi alteram partem has been introduced in the 1999 Constitution of the Federal Republic of Nigeria via Section 36 thereof. It is a fundamental right and once the right is violated, it is irrelevant whether the decision made subsequent thereto is correct. See PAN AFRICAN INTERNATIONAL INCORPORATIONAL & ORS v. SHORELINE LIFEBOATS LTD & ANOR (supra); TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517. Per JOHN INYANG OKORO, J.C.A

Before Their Lordships

JOHN INYANG OKOROJustice of The Court of Appeal of Nigeria

PHILOMENA EKPEJustice of The Court of Appeal of Nigeria

HARUNA S. TSAMMANIJustice of The Court of Appeal of Nigeria

Between

IFEANYI EKWURUEKWUAppellant(s)

AND

THE STATERespondent(s)

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): This is an appeal by the Appellant convicted and sentenced to death for conspiracy and armed robbery by the Abia State High Court sitting at Osossioma presided over by T. U. Uzokwe, J in the judgment delivered on the 12th day of January, 2006. The Appellant and four others had stood trial at the Osossioma High Court for conspiracy and armed robbery contrary to section 5(b) and 1(2)(a) of the Robbery and Firearms Act Cap 398 Laws of the Federation 1990. They were alleged to have conspired and robbed one Mrs. Nelly Emereuwa of a Mitsubishi 1300 Bus with Registration No XA 530 HAF, the sum of Nine hundred and sixty-seven thousand, seventy-seven naira, thirty-three kobo ($967,077.33k) and various post-dated cheques valued at N7,240,550.00 property of Chemlap Nigeria Limited.
The alleged robbery was said to have occurred on the 27th day of November, 2003 along Chief Adaelu Road, Osissioma, Aba Abia State. At the trial, the prosecution fielded ten (10) witnesses. The accused persons testified on their behalf. At the end of the prosecution’s case, a no case submission was made on behalf of the 5th accused person, Innocent Adaelu which said submission was upheld and he was discharged and acquitted. At the conclusion of the trial, the learned trial judge discharged and acquitted the first accused person, Nkasiobi Anucha as the case against him was not proved beyond reasonable doubt. The 2nd accused person Odum Ndukwe, the 3rd accused person Ifeanyi Ekwuruekwu (the appellant herein) and Chinwendu Ebere the 4th accused were convicted for conspiracy and armed robbery.
The facts as presented by the prosecution to the learned trial judge are that on the 27th day of November, 2003, the Chief Cashier of Chamlap Nigeria Limited, Mrs. Nelly Emeruwa requested the 1st accused person Nkasiobi Anucha to drive her and another staff in the Finance Department to their Chairman’s premises to collect the bag containing some money and cheques she deposited in the company’s safe therein the previous day.
The 1st accused person who was washing a J5 bus which is originally assigned to him obliged and had to drive them with another company vehicle, this time a Mitsubishi L300 bus. When they got to the Chairman’s house, the PW1 and PW4 went into the house and returned to the bus with a bag containing cash totalling the sum of N967,077.33 and cheque leaves totalling N7,240,550. 00.
As they drove towards the gate of the Chairman’s house, they met the PW2 who also works at Chemlap and he asked them for a lift to the company premises. They obliged and he sat in front of the bus with them. As they drove out of the gate and upon sighting a pothole on the road, the driver slowed down. They were on that spot stopped by two men at gun point. One of them wanted to enter the bus through the side where PW2 was sitting but PW2 quickly locked the door from inside making it impossible for him to get in. Then the 2nd accused came into the car through the driver’s side and took over the steering from the 1st accused. The 2nd accused reversed the vehicle towards Unity Garden Estate. At that point, the PW1, PW2 and PW4 jumped off the vehicle. The 2nd accused and the other robber who had entered the bus through the back door drove off with the 1st accused who was not able to jump out as others did. The robbers took the bag just collected from the Chairman’s house. The PW1, PW2 and PW4 then raised alarm while running towards the factory premises.
The 1st accused was driven by the robbers to the Unity Garden Estate junction where two motorcyclists were waiting for them (one of the two motorcyclists being the appellant herein). The robbers disembarked from the bus, carried the bag with them, left the 1st accused in the bus and sped off with the awaiting motorcyclists. The robbers threw the key to the bus inside the bush.
The 1st accused started running to the factory, met his co-workers who had heard of the robbery on the road and were coming after them.
The 1st accused narrated the incident to his Chairman who mandated the workers to search for the key in the bush. The key was found.
Meanwhile, at this point the police had been alerted and they too, started approaching the scene of the crime. They took the 1st accused with them and later invited other victims to make statements. Following a tip off, the 2nd accused Odim Ndukwe was arrested and the 1st accused, PW1, PW2 and PW4 positively identified him as one of the robbers who robbed them of their bus and money. He made a confessional statement which implicated the 3rd accused (appellant herein) and others who were subsequently arrested. The 3rd and 4th accused persons made confessional statements to the police, stating the role each played either in planning or execution of the robbery. A certain man named Oge was mentioned as the gang leader who executed the operation but the said Oge could not be arrested by the police. He escaped as the police approached to arrest him.
The 2nd accused told the police that he bought a car with his own share of the money and the police traced and recovered it the way he said it. The said confessional statement were tendered in court and for the ones objections were raised on voluntariness, the learned trial judge conducted a trial within trial to determine the voluntariness or otherwise of such before admitting them in evidence. The Appellant’s confessional statement went through a trial within trial before it was admitted.
In his defence the Appellant herein, in his first statement denied knowledge of the offence and stated that he was only a cyclist to the robbers and he was paid N500.00 as his fee. In his second statement on that date, he admitted he was paid the sum of N40,000.00 while the money was shared to the members of the robbery gang. He also stated that $10,000.00 was paid to the owner of the motor cycle which he hired. At the end, the Appellant, 2nd and 4th accused persons were found guilty of conspiracy and armed robbery and were sentenced to death.
Dissatisfied with the decision of the learned trial judge, the Appellant filed notice of appeal on 24-4-07 which said notice contains two grounds of appeal. Thereafter the appellant filed 12 additional grounds of appeal dated 2nd July, 2007. From the fourteen grounds of appeal, the Appellant has distilled two issues for the determination of this appeal. The two issues are as follows:
“1. Whether the Appellant had a fair hearing before the trial high court.
(Distilled from grounds of appeal Nos 5 and 6 in the notice of additional grounds of appeal)
2. Whether the Appellant was validly arraigned before the trial high court
(Distilled from grounds of appeal Nos 7 and 8 in the notice of additional grounds of appeal.
In the brief settled by Chief Umeh Kalu, Hon. Attorney General of Abia State on behalf of the Respondent, four issues are formulated for the determination of this appeal as herein under reproduced:
“1. Whether the omission to record the fact of interpretation of the proceedings to appellant at the lower court rendered his arrangement and trial a nullity.
2. Whether the prosecution did not discharge the burden of guilt of the appellant beyond reasonable doubt as required by law in this case.
3. Whether the trial court was right when it admitted Exhibit “V” (the appellant’s alleged second confessional statement) in evidence and relied on same.
4. Whether the appellant did not have a fair hearing before the trial High Court.”
The Appellant herein is the one dissatisfied with the judgment of the learned trial judge and he has two complaints against the said judgment. The first is that he was not given fair hearing and secondly, that he was not validly arraigned before the trial High Court. I shall determine this appeal on the two issues as distilled by the Appellant, after all, it is his appeal.
The grouse of the Appellant on the first issue is that the learned trial judge had concluded that the Appellant committed the offence of armed robbery while Ruling on the trial-within-trial in respect of the confessional statement of the appellant before considering the evidence of the prosecution witnesses and defence of the appellant. According to the learned counsel for the appellant, the subsequent consideration in the said judgment of the case against the appellant and the defence of the Appellant and the subsequent conviction and sentence of the Appellant, was a fait accompli as the appellant had by then, been already convicted of the commission of the said offence by the lower court. Learned counsel submitted that the eventual conviction of the appellant for conspiracy and armed robbery were a mere confirmation of the views expressed by the lower court in its ruling on the trial within trial.
In his further argument, learned counsel for the Appellant submitted that although the learned trial judge, before making the said finding restated, or summed up the case of the Appellant, that does not amount to consideration or evaluation of the appellant’s case. On the difference between summation or restatement of evidence and evaluation of evidence, learned counsel cited the case of ADEGBAYI v. ISHOLA (2003) 11 NWLR (Pt. 831) 343 at 370.
It is the view of learned counsel for the appellant that in the circumstance of this case, the lower court breached the appellant’s right to fair hearing because, as at the time the lower court found the appellant guilty, it did not evaluate not consider the case against the appellant or the defence of the appellant.
Another reason why the learned counsel for the Appellant contends that the appellant was not given fair hearing is that on 19th December, 2005, the lower court refused to deliver its judgment on account of the absence of sentence warrants which are only used when an accused person is sentenced by the court. According to learned counsel, there is a clear indication that the learned trial judge had made up his mind to convict the appellant from the onset. He urged this court to resolve this issue in favour of the appellant.
In his response, the learned counsel for the state drew the attention of this court to the fact that after the trial within trial, the learned trial judge held that the ruling on it would be subsumed in the main judgment and both parties accepted the procedure. According to him, the point being canvassed by the appellant’s counsel would have made a lot of meaning if the ruling on the trial within trial was delivered on another day or delivered separately, but it was subsumed in the final judgment with the consent of the Appellant and Respondent. He submitted that at the point of delivering the ruling and judgment together, it is expected that the learned trial judge had gone through the gamut of the entire case, reviewed the case presented by both parties, evaluated the evidence before him, before coming to deliver the judgment. Learned counsel submitted that the appellant was not denied fair hearing at all.
In conclusion, learned counsel submitted that on the date the judgment was first fixed for delivery and the judge did not have the materials to deliver the judgment, it was necessary and valid to adjourn to another date. According to him, this act of the lower court did not amount to denial of fair hearing as argued by the learned counsel for the Appellant. He urged this court to resolve this issue against the appellant.
By Section 36(4) of the Constitution of the Federal Republic Nigeria 1999 (as amended), whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by a court or tribunal. Also, Section 36(6) of the said Constitution provides:
“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 of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioners of his own choice;
(d) examine, in person or by his legal practitioners, the witness called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same condition as those applying to the witnesses called by the prosecution, and
(e) have, without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
As can be gleaned from Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, part of which are reproduced above, the right to fair hearing is a fundamental right which is guaranteed under the supreme law of the land – the constitution and its breach in a judicial proceedings vitiates the whole proceeding, including the judgment or ruling made thereat. See F.R.N v. AKUBUEZE (2010) 17 NWLR (Pt. 1223) 525; PAN AFRICAN INTERNATIONAL CORPORATION v. SHORELINE LIFEBOATS LTD (2010) 6 NWLR (Pt. 1139) 98; OVUNWO v. WOKE (2010) 17 NWLR (PT. 1277) 522.

The basic criteria and attributes of fair hearing have been succinctly adumbrated by the Supreme Court in ALHAJI ABDULLAHI BABA v. NIGERIAN CIVIL AVIATION & ANOR (1991) 5 NWLR (Pt. 192) 388 to include the following:
1. That the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
2. That the court or tribunal shall give equal treatment, opportunity and consideration to all concerned.
3. That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of Public hearing, and
4. That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.
See also ADIGUN v. ATT. GEN. OYO STATE & ORS (1987) 1 NWLR (Pt. 53) 678, SHELDON v. BROMFIELD JUSTICES (1964) 2 QB 573 at 578; DADUWA v. OKORODUDU (1976) 10 SC 329; ROBERT C. OKAFOR & ORS v. ATT. GEN. & COMMISSIONER FOR JUSTICE & ORS (1991) 6 NWLR (Pt.200) 659. In OKAFOR v. ATT. GEN and COMMISSIONER FOR JUSTICE (supra) it was held that the true test for fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.It is important to note that fair hearing lies not in the correctness or propriety of the decision but rather in the procedure followed in the trial and determination of the case. It is only when the opponent has been heard that the judge would be seen to have discharged the duty of an unbiased umpire. That is why the rule of audi alteram partem has been introduced in the 1999 Constitution of the Federal Republic of Nigeria via Section 36 thereof. It is a fundamental right and once the right is violated, it is irrelevant whether the decision made subsequent thereto is correct. See PAN AFRICAN INTERNATIONAL INCORPORATIONAL & ORS v. SHORELINE LIFEBOATS LTD & ANOR (supra); TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517.
In the instant appeal, the Appellant does not complain that he was not given an opportunity to defend himself but rather that the learned trial judge made up his mind to convict him before evaluating the evidence led at the trial. Secondly, that when the learned trial judge postponed the delivery of judgment on the date fixed because there was no sentence warrant, he had already made up his mind to convict and sentence the appellant. Let me quickly dispose of this last complaint.
On page 171 of the record of appeal contains the proceedings of the court below on 19/12/05. From lines 18-24 of the said record, the learned trial judge states as follow:
“Court: The court did ask the Chief Registrar to ensure that the sentence warrant we applied for since 4 weeks ago is sent to me before now. This case has suffered so many adjournments because of this. Be that it may this case shall once again be adjourned to the 21/12/05 once again (sic) for judgment.”
With due respect to the learned counsel for the Appellant, I find it difficult to appreciate his argument as regards this aspect of the appeal. The learned trial judge had discovered on the date judgment was to be delivered that the sentence warrant he applied for from the Chief Registrar was not provided. Being the person who wrote the judgment, he knew what the outcome would be and he needed to equip himself with all documents needed to do his work to completion. Afterall, it is only a bad and unreasonable farmer who will go to the farm without the correct implements. Imagine also a student who goes into the examination hall without his writing materials. Since he wrote the judgment and knew the outcome thereof, he needed to put in place all necessary documents for the sentence of the Appellant. That statement by the court below regarding the sentence warrant did not by any stretch of imagination amount to a denial of fair hearing. Having written the judgment, the learned trial judge knew its conclusion. That does not, it my humble view, amount to making up his mind to convict the Appellant before the date of the judgment.
The other complaint on this issue is that while the court below was considering issues relating to the trial-within-trial, it stated that the Appellant had the opportunity to commit the offence and did in fact commit the offence from his own account. According to learned counsel for the Appellant, this statement came before the lower court evaluated evidence. It is his view that the court below made up its mind to convict the appellant before evaluating evidence.
From the record of this appeal and also on the submission of both counsel, the court and counsel agreed to adopt the procedure of subsuming the ruling on the trial within trial in the judgment of the lower court. In other words, both the ruling on the trial within trial and the final judgment in the case were taken together. After the summation or restatement of evidence, the learned trial judge considered the trial within trial and found Id1, the second statement of the appellant to the police as voluntarily made which he admitted as Exhibit The court added on page 188 of the record that:
“If indeed the 3rd Accused never made it, one wonders how the police came to know the details of personal things which should be exclusively within his knowledge, moreover the said Id1 and the 3rd Accused were taken to DSP Onwumere who attested it. The attestation form was tendered without objection as Exhibit J”
The “3rd accused” alluded to in the above quotation refers to the Appellant here in and ID1 is the said 2nd confessional statement of the Appellant. So it was after a careful consideration of the evidence adduced at the trial within trial that the learned trial judge held that the said confessional statement of the Appellant was voluntarily made and admitted as Exhibit “V”. It has to be noted that the Appellant does not appeal against the admission of Exhibit v but that at the point of admitting Exhibit V, the court below expressed opinion as to his culpability in the offence charged.
Let me state clearly that where a trial judge pronounces an accused person guilty without considering the evidence led at the trial will certainly amount to denial of fair hearing as the judge has no basis for taking the decision. I do not think this is the case here. At that stage, the lower court made a fair comment on Exhibit v based on its content, having held that it was voluntarily made by the Appellant. Having admitted in the statement that he was paid the sum of N40,000.00 as his share of the booty, the court below was right at that stage to comment that the Appellant had the opportunity to commit the offence having admitted he ferried the kingpins of the robbery incident in a motorcycle to and from the scene of the robbery attack and also getting paid the sum of N40,000.00 from the proceeds of the robbery.
Also, it must be borne in mind that both the ruling and the judgment were taken together. Thus it would not sound strange if views, opinions and expressions are interwoven in the judgment and ruling. That expression by the court below does not suggest that he made up his mind to convict the appellant before considering evidence. With due respect to the learned counsel for the Appellant, this is not a strong point to argue that the Appellant was not given fair hearing.
Perhaps, if the Ruling on the trial-within-trial was given on an earlier date wherein the learned trial judge made the expression, one may be tempted to be persuaded that, maybe there is some sense in the argument. And even at that, it will be an uphill task to convince the court to accede to such submission. But in this case, since both the Ruling and the judgment were taken together, and the appellant did not object to the procedure, he cannot complain now. In BASIL AKPA v. THE STATE (2003) 14 NWLR (Pt. 1106) 72, it was held by the Supreme Court that if a procedure in a trial is consented to by a party, he cannot complain or be heard to complain afterwards or on appeal that the procedure was irregular. See also FRANCIS DURWODE v. THE STATE (2000) 82 LRCN 3038.
From all I have said above, the summary of it is that the Appellant has failed to persuade this court to agree with him that he was denied fair hearing. Accordingly, issue one is resolved against the Appellant.
The second issue for consideration is the complaint by the Appellant that he was not properly or validly arraigned before the trial court. Referring to section 215 of the criminal Procedure Law of Eastern Nigeria 1963 (as applicable to Abia State) and section 36 (6)(a) of the constitution of the Federal Republic of Nigeria 1999 (as amended) learned counsel for the Appellant submitted that the lower court did not comply with the mandatory provision of S. 36(6)(a) of the constitution because the record of appeal on the date the Appellant was arraigned does not say who interpreted the charge to the appellant. Also, that the record does not disclose the language which the information was read to the Appellant. According to learned counsel, the language which the charge was read to the Appellant is very crucial to the proceedings and where it is not recorded, the obvious presumption is that the said charge was read and interpreted in English language to the Appellant which is the official language of the court; OGUNYE v. THE STATE (1999) 5 NWLR (Pt. 604) 548 at 565.
It was the further submission of learned counsel that the record of the court shows that the Appellant testified in Igbo language and as such an inference should be drawn that he is an illiterate man who understand Igbo language only. He urged this court to hold that the Appellant did not understand the proceedings at the lower court. He cited the case of IDEMUDIA v. THE STATE (1999) 7 NWLR (Pt.610) 202.
In his conclusion, he submitted that the failure to state the language in which the charge was read and explained to the Appellant rendered the arraignment of the Appellant improper. He then urged this court to resolve this issue in favour of the Appellant
The learned Attorney General of Abia State, Chief Umeh Kalu who led other counsel to represent the Respondent, submitted that although the court below did not state in the record the language which the charge was read and explained to the Appellant, he (the appellant) was able to plead “not guilty” as recorded by the court which means he understood the explanation made to him. Moreover, that since he was represented by counsel on the date arraignment and they did not object to his plea, they cannot at this stage argue that the Appellant did not understand the charge. The learned Attorney General submitted further that the Appellant at the trial never raised any objection that he did not understand English which is the language of the court. He argued that the presumption of regularity will enure in favour of the proceedings. He relies on the cases of ANTHONY NWACHUKWU v. THE STATE (2007) 17 NWLR (Pt. 1062) 31 at 57-58; MALLAM MADU v. THE STATE (1997) 1 NWLR (Pt. 482) 386; THE STATE v. GWONTO (1933) ALL NLR 109; GODWIN ANYANWU v. THE STATE (2002) 13 NWLR (Pt. 753) FRANCIS DURWODE v. THE STATE (2000) 82 LRCN 3038; PAUL ONYIA v. THE STATE (200S) 13 NWLR (Pt. 1118) 142.
In conclusion, he submitted that if neither the accused person nor his counsel demanded the accused’s right to interpretation nor objected to the absence of an interpreter, the right is lost for all time and cannot be invoked on appeal, citing the case of THE STATE v. SALIHU MOHAMMED GWONTO (supra). He then urged this court to resolve this issue against the Appellant.
Arraignment of an accused person in our courts is very important in the administration of justice in this country and the procedure provided for by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and other relevant laws thereto must be followed failure of which can render the proceedings null and void. The relevant section is Section 36 (6)(a) and (e) of the Constitution of Nigeria 1999 and Section 215 of the Criminal Procedure Laws of Eastern Nigeria 1963 as applicable to Abia State. The said Section 36 (6)(a) & (e) of the Constitution states:
“(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 of 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”It is beyond argument that the official language used in our courts, especially the Superior Courts is English and before now and in some parts of this country, even now, a lot of people are not well versed in the English language. It becomes necessary to make provision for interpretation in our courts for the benefit of those who do not understand the language of the court. Also, where the parties or witnesses testify in any language other than English, it is always necessary to interpret into English for the benefit of the court especially where the presiding justice or even counsel do not understand the language used by a particular witness.
The main purpose of Section 36(6)(a) & (e) of the Constitution in providing an interpreter in the court is to ensure that an accused person understands the proceedings and that no miscarriage of justice is occasioned by the lack of or absence of knowledge in the accused person of the particular language used at the trial. See ONYIA v. THE STATE (2008) 18 NWLR (Pt. 1118) 142; ANYANWU v. THE STATE (2002) 13 NWLR (Pt. 783) 107.

Under section 215 of the criminal Procedure Law of Eastern Nigeria (1963) applicable in Abia State, for there to be a valid arraignment, the following must be observed and complied with. That is to say –
1. The accused person must be placed before the court unfettered unless the court otherwise directs,
2. The charge or information must be read over and explained to the accused person to the satisfaction of the court, and thereafter.
3. The accused person must be instantly called upon to plead to the charge.
See OGUNYE v. THE STATE (1999) 5 NWLR (Pt. 604) 548. It is however in Section 36 (6)(e) of the 1999 Constitution where it is prescribed that an interpreter be provided. The section does not say that the provision of an interpreter is automatic. An interpreter only becomes necessary where a person charged with a criminal offence does not understand the language used at the trial. In other words an accused person who does not understand the language used in the court has to bring it to the attention of the court. Where an accused person is represented by a counsel, such counsel has to promptly inform the court that the accused does not understand the language of the court. In FRANCIS DURWODE v. THE STATE (2000) 82 LRCN 3038 at 3036, the Supreme Court held as follows:
“In the realm of Criminal Justice, it is the cardinal principle of our criminal jurisprudence that it is the duty of the accused or his counsel acting on his behalf to bring to the notice of the court the fact that he does not understand the language in which the trial is conducted, otherwise it will be assumed that he has no cause to complain.” In the instant case, throughout the trial at the lower court, the Appellant did not complain that he did not understand the language used by the court or that he needed an interpreter. He was represented by c6unsel throughout the trial from arraignment up to judgment. Counsel for the Appellant did not complain to the court that his client did not understand the language used in the court. On the date the Appellant and his co-accused persons were arraigned, the learned trial judge recorded as follows:
“Accused persons present.
Court: charge in the information is read and explained to the Accused persons, who plead as follows:
1st Accused – Not guilty
2nd Accused – Not Guilty
3rd Accused – Not Guilty
4th Accused – Not Guilty
5th Accused – Not Guilty”
That was for the 1st count. The same exercise was conducted for the second court. Clearly the learned trial judge did not state the language which the charge was read and explained to the Appellant. My view is that if the appellant did not understand the charge when it was read to him, why did he plead “Not Guilty”? This is a questing that was put directly to the accused. If he did not understand he would have said so. Alternatively, his counsel would have said so. But then both kept quiet only to raise it now. I think it is too late in the day. The Supreme Court in ONYIA v. THE STATE (supra) held that the constitutional right granted to an accused person to have an interpreter cannot be invoked on appeal by an appellant who had been represented by counsel at the trial as a ground for setting aside a conviction unless he claimed that right at the proper time and was denied it. It was further held that an accused must therefore claim his right to an interpreter at the time of his trial and not after for the first time on appeal. See also STATE v. GWONTO (1933) 1 SC NLR 142; EGUABOR v. QUEEN (1962) 1 SCNLR 409. In ANYANWU v. STATE (2002) 13 NWLR (Pt. 733) 107, the Supreme Court held that the importance of the issue of representation lies in the fact that if an accused person is represented by counsel, such counsel ought to demand his client’s right to interpretation or object to any irregularity such as lack of interpretation. That if neither he nor the accused objects, the right is lost for all time and certainly cannot be invoked on appeal: See also MADU v. STATE (1997) 1 NWLR (Pt. 482) 386.
Thus, the appellant herein and his counsel having not raised this issue at the court below cannot now raise it as there is nothing on the record to avail the appellant. The presumption of regularity enures in favour of the proceedings that the Appellant understood all that transpired at the court below even with the help of his counsel. This second issue, as I can see it, does not avail the Appellant at all.
Having resolved the two issues submitted by the appellant against him, it is clear that this appeal has no merit at all. I hereby affirm the judgment of the lower court which convicted and sentenced the Appellant to death for armed robbery. Appeal is accordingly dismissed.

PHILOMENA MBUA EKPE, J.C.A: I have had the opportunity of reading in draft the judgment just delivered by my learned brother JOHN I. OKORO, JCA. I totally agree with the reasons therein advanced to arrive at the conclusion that the appeal is devoid of merit and ought to be dismissed.
This is a case where the Appellant and four others were charged for conspiracy and arrived robbery contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms Act Cap. 398 Laws of the Federation 1990. After a protracted trial, the learned trial Judge convicted and sentenced the Appellant to death for armed robbery. The Appellant now cries foul and claims that he was not given a fair hearing before sentence and conviction. That the court below had concluded that the Appellant committed the offence before considering the evidence of the prosecution witnesses and defence of the Appellant.
To begin with, the right to a fair hearing is a very essential right for a person to secure justice. There are in fact two principles of natural justice under the common law and these are: (a) Audi Alteram partem and (b) Freedom from bias. The first principle means that the one who decides as in the court below, must hear the parties to a dispute. It is therefore trite law that once there is a breach of fair hearing the decision arrived at by the court becomes a nullity. See the cases of:
– A.N.P.P. v. I.N.E.C. (2004) 7 NWLR (pt. 871) 16.
– A.P.P. V. OGUNSOLA (2002) 5 NWLR (pt. 761) 484.In the case at hand, the fact that the learned trial Judge summarized the case of the Appellant does not amount to valuation or consideration of the Appellant’s case. The trial Judge further stated that the Ruling on the trial within a trial would be subsumed in the main judgment and this was acceded to by both parties.
The Appellant cannot now make a volte farce to say that it would not have been the case, and that the trial Judge had drawn a conclusion on his guilt in the Ruling even before the judgment. I presume it is too late in the day to arrive at that conclusion since whatever decision was arrived at the Ruling cannot now be separated from the final decision. Both decisions must therefore sink or swim together.
In the result, I find that the Appellant was accorded fair hearing in line with Section 36 of the Constitution of the Federal Republic of Nigeria. On the whole, I find that this appeal is lacking in merit and I dismiss it accordingly. The judgment of the lower court is hereby affirmed.
Appeal is dismissed.

HARUNA SIMON TSAMMANI, J.C.A: I was privileged to have read before today, the judgment just delivered by my Learned brother JOHN I. OKORO; JCA.
The issues that arose for determination in this appeal were comprehensively considered and resolved by my learned brother. I agree completely with his reasoning and conclusions reached on those issues. I have nothing else useful to add.
I therefore hereby hold that this appeal is not with merit and accordingly dismiss same. I affirm the judgment of the lower court which convicted and sentenced the Appellant to death for armed robbery.

Appearances

E. C. Onumajuru Esq. with F. O. Ike Esq.For Appellant

AND

Chief Umeh Kalu, Hon. Attorney General of Abia State
Dave O. Kalu Esq, Senior State CounselFor Respondent