IDOWU SOMEFUN v. THE ATTORNEY-GENERAL, OGUN STATE
(2010)LCN/3647(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of March, 2010
CA/I/135/2007
RATIO
ORDER: DIFFERENCE BETWEEN AN ORDER FOR RE-TRIAL AND AN ORDER FOR A PROPER TRIAL
An order for re-trial would be made where there has been a previous trial that was properly conducted but which is vitiated by reason of an error in law or procedure. On the other hand an order for a proper trial to take place would be made where there has been no trial because the purported trial was vitiated ab initio. See Yahaya vs. The State (supra) at 304 F – H. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
ORDER: FACTORS CONSIDERED WHEN ORDERING A RE-TRIAL OR PROPER TRIAL
The factors to be considered when ordering a re-trial or proper trial were laid down in the case of Yusufu Abondundu & Ors. Vs. The Queen (1959) SCNLR 162, and reiterated in Yahaya vs. The State (supra) at 304 A – F thus:
(a) That there has been an error in law (including the observance of the law of evidence) or any 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 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.
(f) 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. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
IDOWU SOMEFUN Appellant(s)
AND
THE ATTORNEY GENERAL, OGUN STATE Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN (Delivering the leading judgment): This is an appeal against the judgment of High Court of Ogun State, sitting at Ilaro delivered on 7th November, 2006. The appellant was charged before the said court on a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 5 and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria (LFN) 1990. The matter proceeded to trial wherein the prosecution called five witnesses. The appellant testified on his own behalf and called no other witness. At the conclusion of the trial the appellant was convicted and sentenced to death. Being dissatisfied with the decision he filed a notice of appeal dated 17/11/06 but filed on 27/11/06 containing the omnibus ground of appeal that the judgment is unreasonable having regard to the weight of evidence. With leave of this court granted on 15/1/09 he amended his notice of appeal. The amended notice of appeal contains four grounds of appeal.
The grounds of appeal are as follows:
1. The learned trial Judge erred in law when he tried and convicted the accused person when there was no compliance with Section 215 of the Criminal Procedure Law of Ogun State and Section 36 (6) (a) of the 1999 Constitution.
2. The learned trial Judge erred in law in convicting the appellant of a capital offence when the provisions of Section 352 of the Criminal Procedure Law, Ogun State, Rule 5 Robbery and Firearms Tribunal (Procedure) Rules Cap 398 Laws of the Federation 1990 and Section 35 (2), 36 (6) (c) of the 1999 Constitution, were not complied with substantially, which thereby led to a breach of fair hearing when:
(a) The right to Counsel in a criminal trial is the foundation of the right to fair hearing.
(b) The assignment of a Counsel to an indigent person facing a capital offence is not a mere formality.
(c) The Counsel assigned to the appellant did not exert his best effort on behalf of the applicant in the conduct of his case.
(d) The appellant did not get a fair hearing.
3. The learned trial Judge erred in law when he held that “the prosecution has proved the charge of conspiracy and armed robbery beyond reasonable doubt against the accused person” when:
(a) The evidence of the prosecution witness was insufficient, contradictory and unreliable.
(b) The accused person was not found in possession of the amount of money allegedly stolen.
(c) The accused person was not found in possession of any offensive weapon and neither was any offensive weapon tendered in evidence.
(d) The burden of proof is always on the prosecution and never shifts to the accused person in a criminal trial.
(e) The essential ingredients of the offence of armed robbery were not proved or established by the prosecution.
4. The decision of the High Court is not supported having regard to the weight of evidence.
In compliance with the Rules of this Court the parties duly filed and exchanged their respective briefs of argument. The appellant’s brief, settled by J.A. Badejo is dated and filed on 21/11/08 but deemed filed on 15/1/09. He also filed a reply brief dated and filed on 22/7/09. At the hearing of the appeal on 9/2/2010, Mr. Badejo adopted and relied on both briefs and urged the court to allow the appeal. He observed that the respondent in its brief had conceded that the trial at the court below was a nullity for non-compliance with Section 215 of the Criminal Procedure Law of Ogun State. He stated that the only issue in contention in this appeal is whether this court should order a proper trial or discharge and acquit the appellant. He argued that in the circumstances of this case, the appellant should be discharged and acquitted. O.T. Olaotan, of counsel settled the respondent’s brief dated 25/4/09 and filed on 30/6/09 but deemed filed on 15/7/09. Mrs. AO. Oguntola, learned State Counsel, Ogun State Ministry of Justice adopted and relied on the said brief. She submitted that both parties agree that the trial at the court below was a nullity. She urged the court to allow the appeal in part and order a proper trial.
The appellant formulated the following three issues for determination from the four grounds of appeal:
1. Whether there was compliance with Section 36(6) (a) of the 1999 Constitution and Section 215 of the Criminal Procedure Law Cap 30, Laws of Ogun State in the trial of the accused person. (Ground 1).
2. Whether there was a breach of the provisions of Section 352 Criminal Procedure Law, Ogun State, Rule 5 Robbery and Firearms Tribunal (Procedure) Rules, Cap 398 Laws of the Federation 1990 and Section 35 (2), 36 (6)(c) of the 1999 Constitution, which occasioned a breach of fair hearing for the accused person. (Ground 2).
3. Whether the prosecution was able to prove its case beyond reasonable doubt against the accused person. (Grounds 3 and 4).
It is noteworthy that in the conclusion of the brief, learned counsel for the appellant urged the court not to order a re-trial for the following reasons:
1. There has been an error in law and irregularity in procedure of such a character that this Court is unable to say that there has been no miscarriage of justice.
2. Leaving aside the error and irregularity, the totality of the evidence does not disclose a substantial case against the appellant. There are manifest contradictions in the evidence of the prosecution, which are material. The essential ingredients of the offence were not established by the prosecution.
3. The delay in the trial of the accused person and inability of the state to try the accused within a reasonable time offends Section 36 (5) of the 1999 Constitution and constitutes a special circumstance that will render it oppressive to put the appellant on trial a second time.
4. Though the offence for which the accused was convicted is not trivial and carries a capital punishment, a consideration of the other surrounding circumstances renders it oppressive to order are-trial.
5. An order for re-trial will occasion a miscarriage of justice.
The cases of Tobby vs State (2001) 10 NWLR (720) and Edibo vs State (2007) 13 NWLR (1051) 306 were referred to.
The respondent raised a sole issue for determination thus:
“Whether in the circumstances of this case, this Honourable Court should order a proper trial.”
Having considered the issues formulated by the parties in this appeal, I am of the view that the issues formulated by the appellant would fully dispose of the issues in contention in this appeal. I am not unmindful of the fact that the parties have conceded that the trial before the lower court was a. nullity.
However, I am of the view that it is necessary for this court to make a pronouncement on the issue one way or the other. The remaining issues would be considered thereafter if need be.
Issue 1
In support of the first issue, learned counsel for the appellant referred to Section 36 (6) (a) of the 1999 Constitution and Section 215 of the Criminal Procedure Law of Ogun State. He submitted that the rights conferred by these provisions are fundamental and cannot be waived or derogated from. He submitted that failure to comply with the provisions vitiates the entire proceedings. He relied on: Kajubo vs The State (1988) 1 NWLR (73) 721. He urged the court to hold that the trial at the lower court was a nullity for failure to comply with the aforesaid provisions. He also relied on Eyorokoromo vs. The State (1979) 6 – 9 SC 3; Effiom vs The State (1995) 1 NWLR (373) 507.
In reaction to this issue, learned counsel for the respondent at paragraphs 4.05 and 4.06 of their brief submitted thus;
”Having gone through the record of proceedings at the High Court it is obvious that the plea of the accused was not recorded by the presiding Judge even though the learned trial Judge said that it was taken. This means that the accused/appellant was not arraigned at all (in line with the provisions of Section 215 of the Criminal Procedure Law of Ogun State, and Section 36 (6)(a) of the 1999 Constitution). This however, is a procedure that cannot be dispensed with.
It is with respect that I submit that where there is no proper or valid arraignment under the law, the effect is that the trial is a nullity. See Kajubo vs. The State (1988) 1 NWLR (73) 721; Yahaya vs. The State (2002) 9 NSCQR 36.”
Section 36 (6) (a) of the 1999 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 the nature of the offence.”
Section 215 of the Criminal Procedure Law, Cap. 30 Vol. II Laws of Ogun State 1978 provides:
“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 official 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.”
In the case of Okeke vs. The State (2003) 15 NWLR (842) 25 at 72G – 74 A, the Supreme Court considered Section 33 (6) (a) of the 1979 Constitution (which is in pari materia with Section 36 (6) (a) of the 1999 Constitution) and Section 333 of the Criminal Procedure Law Cap. 37 Laws of Anambra State 1986 (which is in pari materia with Section 215 of the Criminal Procedure Law of Ogun State 1978). The Court held that by virtue of these two provisions, the requirements for a valid arraignment are as follows:
1. “The accused person shall be present in court unfettered unless the court shall see cause to otherwise order that he be fettered. The requirement that an accused person shall be present in court marks a difference between our criminal jurisprudence and that of jurisdictions where trial in absentia is allowed.
2. The charge or information shall be read over and explained to him in the language he understands to the satisfaction of the court by the registrar or other officer of the court. There are two limbs to this requirement:-
(a) that the charge or information shall be explained to the accused person; and
(b) that the charge or information shall be explained to him in the language he understands to the satisfaction of the court.
3. The accused person shall be called upon to plead instantly thereto unless there are valid reasons to do otherwise as provided by the law itself.” (See page 73 D-H supra).
His Lordship, Ogundare, JSC at pages 73 – 74 H-A (supra) observed:
“An arraignment is not a matter of mere technicality; it is a very important initial step in the trial of a person on a criminal charge. All the authorities recognise that where there is no proper arraignment” there is no trial. ”
His Lordship referred to the case of Kajubo vs. The State (1988) 1 NWLR (73) 721 wherein Wali, JSC held that “failure to comply with any of these conditions will render the whole trial a nullity.”
In the instant appeal, there is no indication in the record of proceedings that the second and third requirements were complied with. In other words, there is no record of the charge having been read and explained to the accused person at all. There is also no record that his plea was taken. In the judgment at page 52 line 33 of the record, after setting out the particulars of the two-court charge against the appellant, the learned trial Judge stated that the accused pleaded “not guilty” thereto. Unfortunately this assertion is not borne out by the record. In the circumstances, the inevitable conclusion is that there was no arraignment of the appellant in accordance with Section 36(6)(a) of the 1999 Constitution and Section 215 of the Criminal Procedure Law of Ogun State. The failure to comply with this mandatory requirement renders the whole trial a nullity. The first issue is accordingly resolved in favour of the appellant.
Having found that the trial at the lower court was a nullity no useful purpose would be served by a consideration of the remaining issues formulated by the appellant. It would amount to an academic exercise.
The issue that now arises is the consequential order to make in the circumstances of this case. As noted earlier in the conclusion of the appellant’s brief it was argued that in the event that the appeal succeeds, the appellant should be acquitted and discharged. Incidentally, this is the only issue argued in the respondent’s brief. It was argued on behalf of the respondent that the two options available to the court where the trial of an accused has been declared a nullity are:
1. To order a retrial. See: Yusufu Abodundu &. Ors. vs The Queen 4 FSC 70 at 71-72; Abu Awkwa vs The State (1969).All NLR 133; or
2. To order a proper trial… See: Samuel Erekanure vs. The State (1993) 5 NWLR (294) 385 at 392 – 393; Yahaya vs The State (2002) 9 NSCQR 36.
Learned counsel for the respondent contended that the facts of this case are on all fours with the facts of Yahaya vs. The State (supra) where the Supreme Court ordered that a proper trial should take place. He submitted that having regard to the nature of the offence with which the appellant was charged, which carries the death penalty, the years spent in custody awaiting trial could not be regarded as sufficient punishment for the offence. He relied on: Umaru vs. The State (2008) WRN 60 at 82. Learned counsel argued that on the basis of the charge and information before the trial court, a prima facie case has been disclosed against the appellant in respect of which a judicial pronouncement must be made by way of a proper trial. He argued that an order of acquittal at this stage would constitute an injustice against the victim of the robbery and the society at large.
Learned counsel distinguished the facts of this case from the facts in Tabby Vs. The State (supra) relied upon by learned counsel for the appellant. He submitted that the appellant alluded to other surrounding circumstances that would make it oppressive to order a re-trial but left the court to speculate, as he did not specify those circumstances. He submitted that the court is not entitled to speculate on the issue. He referred to: Okeke vs. The State (supra) at 103 B – C.
In his reply brief, learned counsel for the appellant argued that in the determination of the proper consequential order to make in a case of this nature, each case must be determined on its own merits. He relied on: Samuel Erekanure vs. The State (supra) at 394 H. He submitted that the decision of the Supreme Court in Yahaya vs. The State (supra) did not overrule the decision in Erekanure’s case (supra) and that indeed in the case of Edibo vs. The State (2007) 13 NWLR (1051) 306, where non-compliance with Section 215 of the Criminal Procedure. Law was in issue, the Supreme Court acquitted and discharged the appellant based upon the particular facts and circumstances of that case. He also referred to: Abodunde vs. Queen (1959) SCNLR 162; Attah Vs. The State (1993)7 NWLR(305) 257 at 289.
Learned counsel submitted that the circumstances that make an order for retrial oppressive include:
i. The denial of fair hearing in terms of a right to counsel in compliance with Sections 35(2) and 36(6) (c) of the 1999 Constitution.
ii. Inordinate delay by the prosecution from the time of arrest on 25th June, 1997 to 7th November 2006 in breach of Section 36(4) of the 1999 Constitution.
iii. No exhibits to sustain a charge of armed robbery were tendered; substantial contradiction in the evidence of prosecution witnesses; unreliable evidence of identity.
iv. Difficulty experienced by the prosecution in assembling its witnesses and the fact that even if the witnesses were accessible their memories would have dimmed. See: Ihekwoba vs. The State (2004) 15 NWLR (896) 296 at 311.
Learned counsel referred to several authorities wherein the Supreme Court and this Court acquitted and discharged the appellant in cases involving capital offences rather than ordering a retrial or proper trial. He referred to the case of Ihekwoba vs. The State(supra) at page 313 wherein it was held that the order to make would be dependent on the nature of the evidence, the gravity of the offence and the need to do justice to both sides. He also referred to the case of: Erekanure vs. The State (supra) at page 394 G. He submitted that a discharge of the appellant would serve the interest of justice in the circumstances of this case.
In order to determine the proper order to make in this case, it is necessary to begin by considering the circumstances in which an order for re-trial or proper trial could be made. An order for re-trial would be made where there has been a previous trial that was properly conducted but which is vitiated by reason of an error in law or procedure. On the other hand an order for a proper trial to take place would be made where there has been no trial because the purported trial was vitiated ab initio. See Yahaya vs. The State (supra) at 304 F – H.
The factors to be considered when ordering a re-trial or proper trial were laid down in the case of Yusufu Abondundu & Ors. Vs. The Queen (1959) SCNLR 162, and reiterated in Yahaya vs. The State (supra) at 304 A – F thus:
(a) That there has been an error in law (including the observance of the law of evidence) or any 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 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.
(f) 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 have critically examined these factors and come to the conclusion that they are relevant considerations when there has been an error of law or irregularity in the procedure adopted at the trial, which does not render the trial a nullity but where the court is unable to say that there has not been a miscarriage of justice. However, where the trial was a nullity ab initio, the effect in law is that there was no trial.
In the case of: Erekanure vs. The State (supra) at 395 G, Olatawura, JSC observed as follows:
“My decision that the trial of this case was a nullity is that there has never been a trial as the purported trial has no legal force or effect… In view of the nature of the gravity of the offence, I will order a fresh trial of the appellant…”
In the instant case, the trial before the lower court was vitiated ab initio for non-compliance with Section 36(6)(a) of the 1999 Constitution and Section 215 of the Criminal Procedure Law of Ogun State. I have considered the nature and gravity of the offence with which the appellant was charged. He was charged with conspiracy and armed robbery, a most serious offence, which carries the ultimate penalty, the death penalty. In this regard, the length of time spent in custody awaiting trial or in prison after conviction would not in itself deter the court from ordering a proper trial. As rightly submitted by learned counsel for the appellant, whether or not the court would order a proper trial depends on the circumstances of each case.
I have given careful consideration to the cases of: Tobby vs The State (supra), Edibo vs The State (supra) and Attah vs The State (supra) cited by learned counsel for the appellant. The decision whether or not to order a proper trial in those cases was based on the facts and peculiar circumstances of each case. In Tobby’s case (supra) the Supreme Court declined to order a proper trial on the ground that having regard to the evidence of the sole witness in the case it would amount to an exercise in futility. In Attah vs The State (supra) the issue in contention was whether failure by the trial court to take a fresh plea on each and every count of the charge after an amendment of only some of the counts did not render the trial a nullity. The Court quashed the conviction in respect of the unpleaded counts but affirmed the conviction in respect of the first two counts, which were not amended and which were proved at the trial. The decision of Karibi-Whyte, JSC at page 289 of the report acquitting and discharging the appellant, relied upon by learned counsel, was a dissenting opinion. In Edibo vs. The State (supra) the Court held that as the evidence adduced at the trial would at best only sustain a conviction for manslaughter, coupled with other circumstances such as the death of the other accused in custody and the fact that the appellant had already been in custody for about ten years, it would be oppressive to order a retrial.
In the instant case, the proof of evidence at pages 3 – 17 of the record discloses a prima facie case against the appellant. The victim of the robbery made a statement describing how he was attacked and robbed by the appellant and others now at large and how he subsequently identified the appellant from among a number of suspects arrested by the Police. The information also contains statements of members of a local vigilante group who chased the robbers after the incident and chased the appellant to a house where he was found hiding in the ceiling. It also contains inter alia, statements of a soldier and policeman, members of “Operation Wedge” who responded to the call of the vigilante group and effected the arrest of the appellant from his hiding place and took him to the police station. The appellant himself made a confessional statement in which he admitted committing the offence. I am of the respectful view that it would not be in the interest of justice to acquit and discharge the appellant on such a serious charge without a proper trial. I am guided by the wisdom of Olatawura, JSC in the case of: Erekanure vs The State (supra} to the effect that the appropriate order to make in the circumstances is a fresh trial to be conducted expeditiously. See also: Yahaya vs. The State (supra) at 303 G – H.
The appeal therefore succeeds in part. The judgment of the High Court of Ogun State, Ilaro Judicial Division in Charge No. RFT/23/98 delivered on 7th November, 2006 is hereby set aside for being a nullity. The conviction and sentence imposed on the appellant are accordingly quashed. It is hereby ordered that there shall be a fresh trial of the appellant before another Judge of the Ogun State High Court other than Dipeolu, J. The Director of Public Prosecutions of Ogun State shall initiate the trial not later than three months from today.
SIDI DAUDA BAGE, J.C.A. I have had the preview of the Judgment just delivered by my learned brother, Kekere-Ekun, J.C.A.
I agree with the reasoning and decision in allowing the appeal in part; and setting aside the judgment of the trial Court of death sentence imposed on the Appellant.
For the fuller reasons given in the lead Judgment, I also adopt same as mine.
MODUPE FASANMI, J.C.A: I have read before now the judgment just delivered by my learned brother K.M.O. Kekere-Ekun J.C.A. I agree with the sound reasoning contained therein and the conclusion arrived there at. I agree that the appeal succeeds in part.
Appearances
J.A. BADEJOFor Appellant
AND
MRS. A.C. OGONTOLA,
MISS A.M. BUSARI, St
MISS G.N. OSAKWE,For Respondent
