MARTINA OPARA vs ATTORNEY GENERAL OF THE FEDERATION (2016)

MARTINA OPARA vs ATTORNEY GENERAL OF THE FEDERATION

(2016) LCN/4402(SC)

In the Supreme Court of Nigeria

Saturday, December 24, 2016

Case Number: SC.553/2014

RATIO

INTERPRETATION OF THE PROVISIONS OF SECTION 215 OF THE CRIMINAL PROCEDURE ACT, CAP C.41, LAWS OF THE FEDERATION OF NIGERIA 2004 AS REGARDS THE REQUIREMENTS THAT MUST BE COMPLIED WITH FOR THE PROPER ARRAIGNMENT OF AN ACCUSED

The appellant had set up a disagreement on inappropriateness of the arraignment pursuant to section 215 of the CPA which provision I shall quote hereunder thus: “The person to be tried upon any charge of 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.” This court in underscoring the need for strict compliance with the provisions of section 215 of the CPA has not hesitated to bring down its big stick on any infringement thereof and stating and re-stating the steps to be taken at every point in the arraignment so that every area of the stipulations is covered. In the case of Okeke v State (2003) 15 NWLR (Pt. 842) SC 25 at 73, this court provided what is required for a valid arraignment thus: 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 or 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 of this requirement. a. That the charge or information shall be read over 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 then be called upon to plead instantly thereto unless there are valid reasons to do otherwise as provided in itself. ” The same criteria were repeated in the case of Edet Bassey v The State (2012) ALL FWLR (Pt. 633) 1816 at 1829 per Mukhtar JSC (as she then was) Again to be reiterated is that the three requirements are not independent of each other but must co-exist before the standard can be said to have been met. See Kajubo v State (1988) NWLR (Pt. 73) 721; Idemudia v State (1999) 7 NWLR (Pt. 610) 202. PER MARY UKAEGO PETER-ODILI. J.S.C

IMPORTANCE OF A VALID ARRAIGNMENT OF AN ACCUSED TO HIS TRIAL BEFORE THE TRIAL COURT

EFFECT OF UNCONTROVERTED EVIDENCE

Evidence not controverted is admitted. This is the law as propounded in many leading authorities. See the cases of Adejumo v Avanleghe (1979) 3 NWLR Pt. 110417; Odulaja v Haddad (1973) 11 SC 357. PER MARY UKAEGO PETER-ODILI. J.S.C

JUSTICES:

MARY UKAEGO PETER-ODILI

KUMAI BAYANG AKA’AHS

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

CHIMA CENTUS NWEZE

EJEMBI EKO

APPELLANTS

MARTINA OPARA

RESPONDENTS

ATTORNEY GENERAL OF THE FEDERATION

Delivered By Mary Ukaego Peter-Odili. J.S.C
The is an appeal against the judgment of the Court of Appeal, Ibadan Division delivered on the 17th day of June,2014, Coram: A. B. Gumel, M.B. Dongban-Mensem and M. N.Oniyangi JJCA. In the said judgment, the Court of Appeal dismissed the appeal of the accused appellant and affirmed the decision of the learned trial judge except for the conviction and sentence on count six.

FACTS BRIEFLY STATED
The appellant was charged on a nine (9) count charge of procurement of persons for prostitution, forceful or deceitful inducement of persons and confinement or detention of persons against their will contrary to and punishable under sections 15(a), 19(b) and 19(c) respectfully of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended).

The appellant was first arraigned on the 3rd day of August, 2009 before B. I. Molokwu J of the Federal High Court, Abeokuta Division. After several adjournments without proceeding to trial the matter was taken before R. N. Ofili-Ajumogobia J. who after taking the plea proceeded to trial.

The prosecution called four (4) witnesses and tendered four Exhibits to wit: Exhibit PD1, Letter forwarding the case file, Exhibit PD2a, extra judicial statement of the appellant made on 3/6/09; Exhibit PD2b, extra-judicial statement of the appellant made on 5/6/09 and Exhibit PD111, Micah Eteng Ibe’s statement.

The learned trial judge found the appellant guilty of the offences charged, convicted her on all the nine counts of the charge and sentenced her to 14 years imprisonment. The appellant being dissatisfied with the verdict appealed to the Court of Appeal on the 6th day of November 2013 which court affirmed the decision of the court of trial except for the sixth count which it reversed.

Again aggrieved the appellant has come before the Apex court through a Notice of appeal of two grounds filed on the 14th day of July, 2014. The thrust of which is that the appellant did not understand the language of the court and that the proceedings were not interpreted to her from the beginning to the end. That the plea of the appellant was not properly taken and so the trial court was stripped of its jurisdiction to entertain the matter. That stand of the appellant is disputed by the respondent hence this present adjudication.

On the 1st day of December, 2016 date of hearing, learned counsel for the appellant, Isiaka Abiola Olagunju Esq. adopted the appellant’s brief of argument filed on the 20th October, 2014. He framed a single issue for determination which is thus:

Whether the Court of Appeal rightly affirmed the conviction and sentence of the appellant on all counts except one preferred against her in view of the fundament irregularities in the arraignment and trial of the appellant by the trial court. (Grounds 1 and 2).

C. J. Ajaegbu Esq. of counsel for the respondent, adopted the brief of argument settled by Selbot A. Langyi Esq., filed on 23/3/2015 and deemed filed on 20/1/16. In the brief was tersely crafted a sole issue for determination as follows:
Whether the court below was right when it affirmed the conviction and sentence of the appellant by the trial court.

Each of the issues as framed on either side in the main asks the same question which I shall use in this way.

SOLE ISSUE
Whether the court below was right when it affirmed the conviction and sentence of the appellant by the trial court save in count six.
Learned counsel for the appellant canvassing the position therefore stated that the procedure guaranteeing fair trial of the accused person are reiterated in several cases and the three requirements must co-exist. He cited Edet Asuquo Bassey v The state (2012) ALL FWLR (Pt. 633) 1816 at 1829; Kajubo v State (1988) NWLR (Pt. 73) 721; Idemudia v State (1999) 7 NWLR (Pt. 610) 202.

It was submitted that the court took only the arraignment of 1st July, 2010 at the trial before Ofili-Ajumogobia J, and did not take into consideration the earlier one before Molokwu J of 3rd August 2009. That the manner of the plea was taken in the trial court was faulty as it ought not to be recorded in blanket form as it was. That the situation as it was produced a fatality to the proceedings and thereby rendered the trial, a nullity as the trial violated section 215 of the Criminal Procedure Act as well as section 36 (6) of the 1999 constitution as amended. He cited Ewe v The State (1992) 6 NWLR (Pt. 246) 147 at 152 – 153; Rufai v The State (2001) 7 NSCQR 420 at 427 etc.

Going on, learned counsel stated for the appellant that she was an illiterate who did not understand the language of the court, English and so the court not providing her with an interpreter invalidated the arraignment and trial. He cited Aqbule v W.R.& P. Co Ltd (2013) ALL FWLR (Pt. 688) 829 at 862 – 863; Eqwumi v The State (2013) ALL FWL’R (Pt. 678) 824 at 840 etc.

That the appellant’s right to fair hearing was breached.

Mr. Olagunju of counsel stated further that the trial court’s heavy reliance on Exhibits PD2a and PD2b, the extra-judicial statements which appellant retracted occasioned a serious miscarriage of justice. He referred to Oqudo v The State (2011) 12 SC (Pt. 1) 71 at 96; The State v Rabiu (2013) 2 – 3 SC (Pt. Ill) 63 at 107 – 108.

Also that the trial court’s reliance on Micah Eteng Ibe’s statement when there was no testimony from the maker of the statement was wrong. He relied on Theophilus v The State (1996) 34 LRCN 74 at 90; Kasa v The State (1994) 18 LRCN 28 at 46; Section 232 of the Evidence Act, 2011, Section 287 of the Criminal Procedure Act.

Mr. C. J. Ajaegbu of counsel for the respondent contended that section 215 of the Criminal Procedure Act, 2004 is germane to the determination of this case and that the trial court was in compliance thereof. That the cases cited by the appellant were not relevant to the case in hand.

That the appellant was represented by counsel at the trial court but counsel did not raise any objection on the procedure adopted and followed by the Court of Appeal. That raising same now is too late. He referred to Okoro v State (2012) vol. 1 MJSC (Pt. 11) SC 59 at 68 – 79; FRN v Mohammed (2014) vol.3 MJSC 68 at 99 – 100 etc.

The summary of the two contending positions in this appeal is on the one side that of the appellant, that the arraignment, trial, conviction and sentencing of the appellant by the trial court which were affirmed by the lower court were in contravention of section 215 of the Criminal Procedure Act (CPA) and section 36(6) of the constitution of the Federal Republic of Nigeria 1999 as (amended). That the trial of the appellant was in breach of section 287 of the Criminal Procedure Act.

The opposing posture of the respondent on the other hand being that the stance of the appellant was not borne out of what transpired at the court of trial which was in strict compliance with the provisions of the law.

The attack presented by the appellant is substantially two pronged, the first being that the arraignment was fundamentally faulty enough to vitiate the entire proceedings and second that the entire proceedings thereafter fell short of what could produce a conviction and a follow-up sentencing.

In respect to the first part of this stand of the appellant the court below as seen at page 173 of the record had this to say per Gumel JCA thus:

“Against the foregoing scenario, there is no doubt that the appellant was serially arraigned on the 9 counts charge in her trial. The respective learned judges, through whom the matter passed in my view, were fully aware and conscious of the need for an arraignment before a proper trial could commence. They were at all times also aware of their responsibility in that respect. From the record of what transpired on 1st July, 2010, the appellant briefed counsel to conduct her defence. Learned counsel Miss C. Osaigboro was indeed physically present in court and properly announced appearance for the appellant on that day. It was also in the presence of Miss.CR. Ifudu, learned counsel to the complainant/respondent, and on behalf of the prosecution prayed that the learned trial judge may order that the 9 count charge be read to the appellant for her plea to be taken. What transpired further is very well documented-the charge was somehow read and the learned trial judge may have apparently satisfied herself that the appellant understood each of the counts on the charge sheet and was seemingly asked to plead to them and opted to plead not guilty to each.

Further to these seeming events, the trial of the appellant commenced with PW1 and PW2, 2 of the victims of the alleged crimes of the appellant, giving oral evidence. PW1 was clearly seen to have been fully cross-examined by learned counsel Miss Osaigboro, on behalf of the appellant. Since learned counsel at the trial is deemed to have had very sufficient knowledge of the law saw all that happened and participated fully in the trial, is it possible to now re-open the issue of the appropriateness of the various steps taken by the lower court in the arraignment and trial of the appellant? I will answer this crucial question very shortly.”

In answering the matter raised by the appellant that she was not fully represented by counsel, the court below went on to state as follows:
“Learned counsel had complained about the failure of the lower court to provide an interpreter to the appellant, because according to him she is not literate enough to follow the language of the court (English). It must be stated that section 36(6) (e) of the 1999 constitution, as amended provides that where an accused person standing trial does not understand the language of the court in which the proceedings, were being conducted, he shall be entitled free of charge to an interpreter of the proceedings in any language that he understands.”
The appellate court below further stated thus:
“With respect to the facts and circumstances of this matter, the 9 count charge was read to the appellant and explained or interpreted to her in Pidgin English on 3/8/2009, in the presence of her counsel Mr. I. P. Ezugwu. Learned counsel acquiesced to this procedure and did not complain against it whatsoever. Also, on the 1/06.2010, the charge was read and interpreted to the appellant in Pidgin English by one Joseph Oyinye, a Registrar of the trial court. It is a very well known principle in adjudication that each case must be treated and decided upon or based on its peculiar facts and circumstances. Even though the 2 arraignments on 3/6/2010 are not the most crucial and relevant for the eventual trial, conviction and sentence of the appellant, the 2 taken together with the arraignment of 1/7/2010 before the court in the presence of learned counsel Miss Osaigboro, as well as the subsequent events, when taken together paint a clear picture on my mind as to form a good impression on me that the arraignment of the appellant was well conducted in substantial compliance with section 215. The arraignment was good enough to lay a solid foundation for the subsequent trial of the appellant. I also do not have any doubt in my mind that the appellant fully followed and understood the entire proceedings in her trial. The courts do not give what was not sought from them. There is no record in the circumstance of this appeal that either appellant or any of the counsel who represented her had complained to the lower court that she had any difficulty following the proceedings of the court in English language. Upon the combined effect of the decisions of the Supreme Court in Oqunye v The State (supra) Durwode v The State (supra) and Lufadeju & Ors. v Johnson (supra), I am fully satisfied that the appellant was properly arraigned before the trial court. This issue must and is hereby resolved against the appellant.” See pages 174 -175 of the record.

In respect to the second part of the attack of the proceedings at the court of trial, the court below stated at page 185 thus:

“In my view this feeble attempt of the appellant to turn back the hands of the clock was to deny what she knew about the offence alleged against her. I do not think this attempt goes far enough to impugn the procedure and the steps taken to obtain the extra-judicial statements of the appellant or even to amount to a challenge on the voluntariness of those statements.”

The court of appeal therefore discountenanced the arguments of the appellant on the obtaining of the extra judicial statements and ruled that the statements were properly obtained and in conclusion of the judgment held thus as seen at pages 195 – 196 as follows:
“After a very careful and calm consideration of the entire facts in this appeal, it is immaterial if it was at Terminus Hotel Shagamu or whatever Hotel in Abeokuta that PWl and PW2 were allegedly forced to be involved in prostitution. Therefore, whatever contradiction that exists in the evidence of the witnesses against their respective extra-judicial statements remains of no moment and would definitely not be a good ground to adversely affect the quality of the findings of the lower courts on counts 1, 2, 3, 4 and 5. PW1 and PW2 were respectively born between 26th September, 1991 and 25th August, 1991 and they would definitely be under 18 years of age at the date of the alleged commission of the offence in May, 2009. The same may however not be said with respect to the age of Micah Eteng Ibe. She was 20 years old. The conviction of the appellant on count 6 may therefore not be very safe or sound and is therefore liable to being set aside and I accordingly so do.”

The long and short of what the Court of Appeal did was to uphold the arraignment of the appellant at the court of trial as adequately done and save for count 6 which it held was not up the required standard of proof, affirmed the conviction and sentence on all the other counts as done by the trial court.

In going back to the very beginning, the appellant had been arraigned on a nine (9) count charge thus:
“COUNT 1
That you Martina Okpara (F) 29 years of No. 24, Sabo Street, GRA, Sagamu, Ogun State on or about 23rd day of May, 2009 at Calabar, Cross River State within the jurisdiction of the Federal High Court procured, used, and offered Comfort Bassey (F) 18 years of Odo-dono Compound Abini, Calabar, Cross River State for prostitution in Terminus Hotel at Sagamu, Ogun State and thereby committed an offence contrary to Section 15(a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) and punishable under same section of the Act.

COUNT 2

That you Martina Okpara (F) 29 years of No. 24, Sabo Street, GRA, Sagamu, Ogun State on or about 23rd day of May, 2009 at Calabar, Cross River State within the jurisdiction of the Federal High Court procured, used, and offered Roseline Ikwa (F) 18 years of Biase LGA, Cross River State for prostitution in Terminus Hotel at Sagamu, Ogun State and thereby committed an offence contrary to Section 15(a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) and punishable under same section of the Act.

COUNT 3
That you Martina Okpara (F) 29 years of No. 24, Sabo Street, GRA, Sagamu, Ogun State on or about 23rd day of May, 2009 at Calabar, Cross River State within the jurisdiction of the Federal High Court procured, used, and offered Mikah Eteng Ibe (F) 20 years of Biase LGA, Cross River State for prostitution in Terminus Hotel at Sagamu, Ogun State and thereby committed an offence contrary to Section 15(a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) and punishable under same section of the Act.

COUNT 4
That you Martina Okpara (F) 29 years of No. 24, Sabo Street, GRA, Sagamu, Ogun State on or about 23rd day of May, 2009 at Calabar, Cross River State within the jurisdiction of the Federal High Court deceitfully induced Comfort Bassey (F) 18 years of Odo-dono Compound Abini, Calabar, Cross River State to go from Calabar, Cross River State to Terminus Hotel at Sagamu and thereby committed an offence contrary to Section 19(b) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) and punishable under same section of the Act.

COUNT 5
That you Martina Okpara (F) 29 years of No. 24, Sabo Street, GRA, Sagamu, Ogun State on or about 23rd day of May, 2009 at Calabar, Cross River State within the jurisdiction of the Federal High Court deceitfully induced Roseline Ikwa (F) 18 years of Biase LGA, Cross River State to go from Calabar, Cross River State to Terminus Hotel at Sagamu, Ogun State and thereby committed an offence contrary to Section 19(b) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) and punishable under same section of the Act.

COUNT 6
That you Martina Okpara (F) 29 years of No. 24, Sabo Street, GRA, Sagamu, Ogun State on or about 23rd day of May, 2009 at Calabar, Cross River State within the jurisdiction of the Federal High Court deceitfully induced Mikah Eteng Ibe (F), 20 years of Biase LGA, Cross River to go from Calabar, Cross River State to Terminus Hotel at Sagamu, Ogun State and thereby committed an offence contrary to Section 15(a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) and punishable under same section of the Act.

COUNT 7
That you Martina Okpara (F) 29 years of No. 24, Sabo Street, GRA, Sagamu, Ogun State on or about 23rd day of May, 2009 at Terminus Hotel, Sagamu, Ogun State within the jurisdiction of the Federal High Court confined/detained Comfort Bassey (F) 18 years of Odo-dono Compound Abini, Calabar, Cross River State against her will and there thereby committed an offence contrary to Section 19(c) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) and punishable under same section of the Act.

COUNT 8
That you Martina Okpara (F) 29 years of No. 24, Sabo Street, GRA, Sagamu, Ogun State on or about 23rd day of May, 2009 at Terminus Hotel, Sagamu, Ogun State within the jurisdiction of the Federal High Court confined/detained Roseline Ikwa (F) 18 years of Biase LGA, Cross River State against her will and thereby committed an offence contrary to Section 19(c) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) and punishable under same section of the Act.

COUNT 9
That you Martina Okpara (F) 29 years of No. 24/ Sabo Street, SRA, Sagamu, Ogun State on or about 23rd day of May, 2009 at Terminus Hotel, Sagamu, Ogun State within the jurisdiction of the Federal High Court confined/detained Mikah Eteng Ibe (F) 20 years of Biase LGA, Cross River State against her will and thereby committed an offence contrary to Section 19(c) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) and punishable under same section of the Act.
Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) and punishable under the same section of the Act.”

The said provisions of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) are captured hereunder in respect to sections 15 and 19 thereof thus:
Section 15(a) provides thus:
“Any person, who procures, uses or offers any person for prostitution, or the production of pornography or for pornographic performance commits an offence and is liable on conviction to imprisonment for fourteen years without an option of fine.”

Section 19(1) (b) provides thus:
“any person who by force compels or by any deceitful means induces any person to go from any place, commits an offence and is liable on conviction to imprisonment for ten years or to a fine not exceeding N200,000.00 or both.”

Section 19 (1) (c) provides thus:
“Any person who confines or detains another person in any place against his will, or otherwise unlawfully deprives another person of his personal liberty, commits and offence and is liable on conviction to imprisonment for five years or to a fine of N100,000.00 or both.”

This court in underscoring the need for strict compliance with the provisions of section 215 of the CPA has not hesitated to bring down its big stick on any infringement thereof and stating and re-stating the steps to be taken at every point in the arraignment so that every area of the stipulations is covered. In the case of Okeke v State (2003) 15 NWLR (Pt. 842) SC 25 at 73, this court provided what is required for a valid arraignment thus:
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 or 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 of this requirement.
a. That the charge or information shall be read over 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 then be called upon to plead instantly thereto unless there are valid reasons to do otherwise as provided in itself. ”

The same criteria were repeated in the case of Edet Bassey v The State (2012) ALL FWLR (Pt. 633) 1816 at 1829 per Mukhtar JSC (as she then was)

Again to be reiterated is that the three requirements are not independent of each other but must co-exist before the standard can be said to have been met. See Kajubo v State (1988) NWLR (Pt. 73) 721; Idemudia v State (1999) 7 NWLR (Pt. 610) 202.

The appellant was first arraigned on the 3rd of August, 2009 before Molokwu J and the arraignment was thus recorded:

“IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABEOKUTA, OGUN STATE
ON MONDAY, THE 3RD DAY OF AUGUST, 2009
BEFORE THE HON. JUSTICE B. I. MOLOKWU
JUDGE
CHARGE NO: FHC/AB/49C/2009

BETWEEN
ATTORNEY GENERAL OF THE FEDERATION COMPLAINANT
AND
MARTINA OPARA ACCUSED PERSON

Accused Person Absent.
Ifudu C.R. (Mrs) Prosecuting
I.P.Ezugwu for the Accused Person.

Matter is for arraignment. The accused person is being brought from Lagos. Prosecutor asks for a stand down as they have already left Lagos.

Appearances as before.
The accused person is now in court.
Prosecutor asks that the charge be read to the accused person in Pidgin English for plea.

Understands charge and for the 1st count and plead not guilty.
2. Count 2 pleads not guilty.
3. Count 3 pleads not guilty
4. Count 4 pleads not guilty
5. Count 5 pleads not guilty
6. Count 6 pleads not guilty
7. Count 7 pleads not guilty
8. Count 8 pleads not guilty
9. Count 9 pleads not guilty”

Then the matter was taken before another judge, Ofili-Ajumogobia J. to be precise and this transpired on the 1st June, 2010 thus:

“IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABEOKUTA, OGUN STATE
ON TUESDAY, THE 1ST DAY OF JUNE , 2010

BEFORE THE HON. JUSTICE R.N.OFILI-AJUMOGOBIA

JUDGE

CHARGE NO: FHC/AB/49C/2009

BETWEEN
ATTORNEY GENERAL OF THE FEDERATION COMPLAINANT
AND
MARTINA OPARA ACCUSED PERSON
Case Called.
C. Ifudu appears for the prosecution
Accused person in court but not represented.

IFUDU:
I ask for a short date to get my witnesses.
COURT:
Her plea has not been taken. I need to take her plea.
(Charge read and interpreted in Pidgin English) – Joseph Aninye Registrar process section Federal High Court, Abeokuta.

Accused person understands charge and pleads not guilty to both counts on charge. COURT:
The matter is adjourned to 11/06/2010 for trial.”

On the 1st July, 2010, this took place as shown below thus:

“IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABEOKUTA, OGUN STATE
ON THURSDAY, THE 1ST DAY OF JULY, 2010
BEFORE THE HON. JUSTICE R.N.OFILI-A JUMOGOBIA
JUDGE
CHARGE NO: FHC/AB/49C/2009
BETWEEN
ATTORNEY GENERAL OF THE FEDERATION COMPLAINANT
AND
MARTINA OPARA ACCUSED PERSON

Case Called.

C.R. Ifudu (Mrs) appears for the complainant.

Accused person in court represented by C. Osaigboro (Miss)

Ifudu:
We are ready for hearing.
Osaigboro:
We want an adjournment to enable us be briefed by the accused person.

COURT:
How long will it take you to be further briefed by your
client?

Osaigboro:
About 30 minutes

The case will be stood down for 30 minutes (11am)

signed Judge 1/7/2010 – 11.25am.

Ifudu:
I apply that charge be read to the accused person in order for her plea to be taken.

Charge read.
Accused person understands the 9 counts of the charge and pleads “Not Guilty” to any of them.”

The hearing then commenced with the evidence of PW1, Comfort Bassey and after her examination in chief. She was cross- examined by defence counsel, C. Osigboro (Miss). There was no legal representation but the appellant from the record was kept abreast of her rights and what was expected of her to conduct her part of the proceedings and she participated fully including cross-examining the PW2.

In fact other witnesses PW3 the investigating police office and PW4, the investigating officer of the National Agency for the Prohibition of Trafficking in Persons and Other Related Matters (NAPTIP) testified.

The appellant is pushing for the nullification of the proceedings based primarily on non-compliance with the law on taking of pleas and taking the stance that an interpreter was not provided for her as required by law. That argument is against the run of events as captured by the record which showed that an interpreter by name Joseph Aninye Registrar of court interpreted from English to Pidgin English. Also to be said is that appellant was represented by counsel at the time of plea taking and part of the hearing and evidence taking. The record further evinces that throughout the entire proceedings the interpretation was carried out and there is nothing to show that there was any lack of understanding of any part of the process on the appellant. The situation quite different from what obtained in the case of Rufai v State (2001) 13 NWLR (Pt. 731) page 718 where the accused understood Yoruba and no interpretation was made to him and so the Supreme Court had no difficulty in finding that there was non-compliance with section 215 CPL of Oyo State. It stands to reason that the appellant herein cannot call in aid that case of Rufai v State (supra) and any of such like cases.

There is no gainsaying that a valid arraignment is a condition precedent to an accused person’s trial, conviction and sentence and so none fulfillment of that would render the whole trial a nullity. That is the ground rule, however the case at hand shows quite clearly that a valid arraignment took place, there was plea properly taken with the needed interpretation carried out. The fact that in the middle of the proceedings legal representation was absent is the choice of the appellant and did not change the regularity of the arraignment and proceedings. The most emphatic aspect is that it is curious the appellant’s attempt to question the validity of the arraignment which was propelled by her counsel who was present and in a position to object and did not and rather went fully along. It is too late now to scratch at any aspect of the arraignment to see if anything tangible can be procured. I place reliance on the cases of Okoro v State MJSC (Pt. 11) 59 at 68-79;
FRN v Mohammed (2014) 3 MJSC 68 at 99 – 100;
Bakare v NRC (2007) 17 NWLR (Pt. 1064) 606.

Now getting into the trial proper, the appellant is making much out of the trial court’s reliance on her extra-judicial statements which she retracted. Those statements are Exhibit PD2a and PD2b which are confessional. The trial court utilized them inspite of the retraction on the ground that there was enough outside of those statements on which reliance could be placed on them and be taken as sufficient to ground the conviction. That court of trial stated as can be found at pages 67 – 68 of the record thus:
“The independent testimonies of PW1 and PW2 reveal that the accused person never took them to the agreed place of work in Lagos but instead took them to Sagamu Terminus Hotel. This clearly is a deceitful act on the part of the accused person and satisfies the essential elements of the offences reflected-Counts 1-3; that of procurement.

The combined testimonies of PW1 and PW2 as well as the statement-Exhibits PD4 culminate in one conclusion
– that all three (3) ladies were coerced and deceitfully taken away by the accused person to a place different from where they expected to go for respectable employment.

All through the trial, the accused person who was not represented by a counsel but opted to defend herself did not deny any of the allegations made by the prosecution witnesses. Evidence not controverted is admitted. This is the law as propounded in many leading authorities. See the cases of Adejumo v Avanleghe (1979) 3 NWLR Pt. 110417; Odulaja v Haddad (1973) 11 SC 357.

I find the respective testimonies of all four (4) witnesses called by the prosecution to be credible. Adding this to the confessional statements made voluntarily by the accused person on the 3rd and 5th of June – exhibits PD2a and PD2 where she stated that “Chichi sent Emmanuel and myself to Calabar, Cross River State to bring some girls for her to use for prostitution. We brought Comfort, Rose and Mika and took them to Sagamu”
The learned trial judge further stated thus:
“The accused person was not mistaken as to the purpose of her mission in Cross River State which was to procure girls for the purpose of prostitution. This leaves me with no doubt that the accused person is guilty as charged on counts 1-3 which involves the trio of PW1, PW2 and Mikah Eteng Ibe as revealed in the testimony of PW3.

On the same premise as above, the prosecution has further proved beyond any fragment of doubt that the trio of Comfort Bassey, Roseline Ikwa and Mikah Eteng Ibe were deceitfully induced to leave their homesteads to follow the accused person to Sagamu for prostitution. This clearly satisfies the essential ingredient of section 19(b) of the Trafficking in Persons and Administration Act 2003 (as amended).

Under counts, 7-9, accused person is charged with confining and detaining the three (3) victims -PW1, PW2 and a certain Mikah Eteng Ibe against their will at Terminus Hotel Sagamu.”

The court below was satisfied with the evaluation of evidence or assessment of the credibility of the witnesses and found no basis for departure therefrom or to interfere 1 with the findings that came thereby though it had reservation on the evidence of the 3rd victim, Miss Micah who was not cross-examined and so had to set aside the conviction under count 6 which related to Miss Mikah.

In her Exhibit PD2 (b) the appellant said in part thus:
“That Emmanuel followed me to Calabar, in order to bring the three girls to Shagamu, namely; Comfort Bassey, Roseline and Mikah. I paid N1,500 each to Comfort and Roseline’s parents but I did not give Mikah parent anything. The money was given as a gift. I paid N600 as transport fare for each of the girls from Calabar to Abakaliki where Emmanuel dropped. I paid N2,200 as transport fare for each of the girls from Abakaliki to Shagamu.
On getting to Shagamu, Ogun State, I asked them to do prostitution but they refused. Before asking them to do the prostitution, one Chichi and myself had performed an oath for the three girls. We used palm oil, chalk and candle to perform the oath taken. The reason of the oath taken was to scare the three girls not to steal my money. The money realized from prostitution. I beat Mikah and Roseline because they were having strange boyfriends which I did not like. The three girls were prostituting and I was realizing N2,000 in all. Each girl were collecting minimum of N300 from each man per round of sex. I told the parents of the girls that I was taken (sic) them to Sagamu to sell in my bear parlor as salesgirls and I promised to be paying them N5,000 as monthly salary each.”
In her statement to the police the appellant stated thus:
I (Me) went to Bayelsa State to do street prostitution at Hospital Road in Yenogoa. My friend called Chioma described the place for me. Sometimes in May, 2009 when I was at Bayelsa State prostituting, I met a friend called Chichi and his boyfriend called Emmanuel. Chichi sent Emmanuel and myself to Calabar, Cross River State to bring some girls for her to use for prostitution. We brought Comfort, Rose and Mikah and took them to Shagamu, Ogun State, at Terminus Hotel, Shagamu. It was Emmanuel that settled the transport fares and feeding expenses, however, Emmanuel did not follow us to Shagamu because he dropped at Abakakili and promised to meet us at Shagamu when we left for Calabar, Chichi left yenogoa to go and bring other girls, so that we can meet at Shagamu, but (we) she arrived at Shagamu before us. We told the girls that they are going to do sales girl in a beer parlour but on getting to Terminus Hotel, Shagamu, Chichi asked them to do prostitution but they refused and insisted that they want to go back to Calabar. I told Chichi to take the girls back to Calabar but she refused that she has spent so much money on their transport fares and feedings. (He) she said, she was taking them to Abeokuta to put them in another hotel. We were on our way to Abeokuta and dropped at Ishagbo court in Abeokuta, where the girls saw one pastor and a policeman, the girls started running because of the pastor’s hair that is dread. The policeman held them and started questioning them, at that point Chichi ran away but the police arrested me and took me to police station at Abeokuta.”

As for Exhibits PD2a, PD2b, the confessional statements of the appellant she gave her background history that could only have come from the personal knowledge and so no foundation is available to debunk those statements as hers and so the retraction falls flat.

Apart from that, there is a surfeit of corroborating pieces of evidence from PW1 and PW2 and even from the appellant’s testimony on which the court could depend to hold that the confessions were true and reliable. Also the testimony of PW3, Miss Mikah can easily be ignored and the substance of the prosecution’s case not dented in any way. See Oqudo v The State (2011) 12 SC (Pt. 1) 71 at 96.

The cases cited in aid by the appellant such as
The State v Rabiu (2013) 2 – 3SC (Pt. Ill) 63 at 107 – 108;
Theophilus v The State (1996) 34 LRCN 74 at 90;
Kasa v The State (1994) 18A LRCN 28 at 46 are not for our purpose here but for another time and occasion, as they are different from the present situation.

Indeed, I am at one with the court below in its findings and conclusion, that is to say, that the appellant’s plea was in strict compliance with the law, the proceedings of the trial court were interpreted to the appellant to the satisfaction of the court, the retraction of the confessional statements of no moment and there were more than enough outside the confessional statement which afforded corroboration and appellant’s right to defend herself in person or by counsel not violated. The provisions of section 287 CPA are met.

In conclusion this appeal has no leg to stand on and I have no difficulty in dismissing it. Appeal dismissed as I affirm the decision of the Court of Appeal in its affirmation of the conviction and sentencing of the appellant on all the nine (nine) counts of the charge except for count 6 which is set aside.

DELIVERED BY CHIMA NWEZE
I had the advantage of reading the draft of the judgement which my Lord, Mary U. Peter-Odili, JSC, just delivered now. I agree that, being unmeritorious, this appeal should be dismissed. This short contribution shall, therefore, be circumscribed to the agitation on the propriety of the trial court’s utilisation of the appellant’s retracted confessional statement.
This sort of question has, incidentally, been dealt with so many times in this court. This court’s response has, happily,remained consistent. The settled position is that a retraction or denial of a confessional statement [as the appellant did during his defence at the trial court] does not affect its admissibility, R. v Sapele and Anor (1952) 2 FSC 74; R v Itule (1961) All NLR 462; Ikpasa v The State [1981] 9 SC 7; Akpan v State (1992) LPELR -381 (SC) 36; Osakwe v State [1994] 2 SCNJ 57; Nmangbonu v The State [1994] 2 NWLR (pt 327) 380; Bature v State [1994] 1 NWLR (pt 320) 267; Eragna and Ors v The AG, Bendel (1994) LPELR -(SC) 30; Idowu v State [1996] 11 NWLR (pt 574) 354; Silas Sule v State (2009) LPELR -3125 (SC) 28-30, G-B; FRN v Iweka (2011) LPELR -9350 (SCO 53; Oseni v The State (2012) LPELR -7833 (SC) 22-23.
Indeed, as pointed out in the leading judgement, apart from exhibits PD2a and PD2b, the confessional statements, the testimonies of PW1 and PW2 corroborated these exhibits. In my view, the lower court, rightly, affirmed the position of the trial court on this issue as there was clear evidence of the court’s application and consideration of the principles which should be considered in determining whether or not to believe and act on a confession or confessions which an accused person resiled from as enunciated in many decisions.

They include: R. v. Sykes{1913)8C. A. R. 233, 236; Kanu v The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; [1962] 1 SCNLR 137; Obosi v The State (1965) NMLR 129; Onochie and Ors v The Republic (1966) NMLR 307; Jafiya Kopa v. The State (1971) 1 All NLR 150 Dawa v The State [1980] 8 -11 SC 236; Ejinima v The State [1991] 5 LRCN 1640, 1671; Arthur Onyejekwe v The State [1992] 4 SCNJ 1, 9; [1992] 3 NWLR (Pt 230) 444; Aiguoreghian and Anor. v.The State [2004] 3 NWLR (pt 860) 367; [2004] 1 SCNJ 65; [2004] 1 SC(pt. l) 65.

These are: whether there is anything outside the confession which may vindicate Its veracity; whether it is corroborated in any way; whether its contents, If tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established, Osetola and Anor v The State (2012) LPELR -9348 (SC) 32-33, G-D; Kareem v FRN [2002] 7 SCM 73; Akpan v The State [2001] 11 SCM 66.

It is for these, and the more detailed, reasons, in leading judgement I, too, shall dismiss this appeal. Appeal dismissed.

DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO
KEKERE-EKUN, JSC
The appellant herein was arraigned before the Federal High Court holden at Abeokuta on a 9-count charge for offences ranging from procuring, using, deceitfully indulging, confining and detaining certain individuals in prohibition of The Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003, as amended. She pleaded not guilty to the charge.
Four witnesses testified for the prosecution. The extra-judicial statements of the victims and of the appellant were tendered in evidence. The appellant was represented by counsel at various stages of the trial, including the date of her arraignment. She testified on her own behalf and called no other witness. At the conclusion of the trial she was found guilty on all the counts and sentenced to a cumulative period of 14 years imprisonment. The sentences are to run concurrently.
On appeal to the Court of Appeal, Ibadan Judicial Division, the court in a considered judgment delivered on 17/6/2014 affirmed the appellant’s conviction and sentence on all the counts except count 6, which was set aside. The appellant is still dissatisfied and has further appealed to this court.
I have had the privilege of reading in draft, the judgment of my learned brother, Mary Peter Odili, JSC just delivered. I agree entirely with the reasoning and conclusions therein and add a few comments in support and for emphasis.

Although a single issue was formulated for the determination of this appeal, the issue appears to embrace several sub-issues.
My comments are in respect of the contention that the appellant’s arraignment was irregular for failure to comply with the provision of Section 215 of the Criminal Procedure Act, Cap C.41, Laws of the Federation of Nigeria 2004. It was argued on behalf of the appellant that she is illiterate and speaks only Pidgin English and thus does not understand the language of the court. It is further contented that the language of the court being English Language, her arraignment and subsequent trial, in the circumstances was a nullity.
On the other hand, it is contended on behalf of the respondent that there was due compliance with the law in the arraignment of the appellant, as there is evidence on record that the charge was read and interpreted to the appellant in English by the registrar of the court and interpreted to her in Pidgin English and that the court was satisfied that the appellant understood each count. It was also argued that the appellant was represented by counsel and at no time did she indicate that she did not understand the proceedings.

Section 215 of the Criminal Procedure Act 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 officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to serve 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.”
The proper arraignment of an accused person is fundamental, as non-compliance with Section 215 of the Criminal Procedure Act would render the entire proceedings a nullity. See Kajubo Vs The State (1988) 1 NWLR (Pt. 73) 721 @ 732 E-F Eyorokoromo Vs The State (1979) 6-9 SC. 3; Josiah Vs The State (1985) 1 SC 406 @ 416; Joel Adamu Vs The State (Unreported) in SC, 125/2013 delivered on 13th January 2017. This is to protect the accused person’s right to fair hearing, as guaranteed by Section 36 of the 1999 Constitution, as amended.

Learned counsel for the appellant, as noted earlier, is convinced that the charges could not have been read over and explained to the appellant to the satisfaction of the court because she did not understand the language of the court.

On the contention that the appellant who speaks Pidgin English does not understand English Language, this court in a recent decision in Olanipekun Vs The State (2016) LPELR-40440 (SC) @ 8-9 D-A per Akaahs, JSC had this to say:
“It is erroneous to assume that people who communicate in Pidgin English do not understand proper or Queen’s English especially in Nigeria. The use of Pidgin English allows for free expression without minding the grammar which is usually employed in proper English. Consequently a statement which was said to have been recorded in Pidgin does not require translation into proper English and any statement made in Pidgin can be recorded in proper English.”
The reasoning above is equally applicable in the circumstances of this case. The fact that the appellant speaks Pidgin English does not mean she cannot understand proper or “Queen’s English.” I also venture to say that the fact that a person cannot read or write does not mean he/she cannot understand English when addressed in that language.

In any event, the appellant was duly represented by counsel when her plea was taken and there was no complaint to the court that she could not understand the charges read to her in English before pleading thereto.

I therefore agree with the lower court that the appellant was properly arraigned before the trial court.

On the merit of the appeal while I agree with learned counsel for the appellant that Exhibit PD111, the extra judicial statement of MICAH ETENG IBE, one of the victims of the offence charged in count 6 of the charge, was wrongly admitted in evidence and relied upon by the trial court, as she did not testify and could therefore not be cross-examined on it, I am of the considered view that no miscarriage of justice was occasioned thereby. This is because there was sufficient independent evidence outside of the said statement upon which the guilt of the appellant was established beyond reasonable doubt.

The court below at pages 190-196 of the record examined the extensive review and evaluation of the evidence undertaken by the trial court and rightly in my view, commended the exercise and affirmed the finding that the prosecution had proved its case against the appellant beyond reasonable doubt. I fully endorse the said findings.

In conclusion and for the more elaborate reasons advanced by my learned brother, MARY PETER-ODILI, JSC in the lead judgment, I find this appeal to be devoid of merit It is accordingly dismissed. The judgment of the Court of Appeal, Ibadan Division in CA/I/255C/2013 delivered on 17th June 2014 is hereby affirmed.

Appeal dismissed.

Delivered by EJEMBI EKO, JSC.

On 19th April, 2012, in the charge No. FHC/AB/49c/2009, the Federal High Court sitting at Abeokuta convicted the Appellant for nine (9) offences contrary to Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as Amended). She was sentenced to 14 years imprisonment for each offence. The sentences are to run concurrently though.

The Appellant’s appeal against the said convictions and sentences was dismissed on the 17th June, 2014 by the Court of Appeal, sitting at Ibadan, in the appeal No. CA/I/255c/2015. This further appeal is against the said decision of the Court of Appeal.
The further appeal was argued on only one issue. The issue formulated by the Appellant is –
”whether the Court of Appeal rightly affirmed the conviction and sentence of the Appellant on all counts except one preferred against her in view of the fundamental irregularities in the arraignment and trial of the Appellant by the trial court.
The Respondent, on the other hand, identified the sole issue for determination of the appeal simply as –
“whether the court below was right when it affirmed the conviction and sentence of the Appellant by the trial court”.

In the Appellant’s Brief settled by Isiaka Abiola Olagunju, Esq., the complaint of the Appellant is broadly –
i. that the Appellant, who understands and speaks Pidgin English, did not understand the entire proceedings of the trial court conducted in English language, and that the trial court’s failure to provide her an interpreter had violated her right guaranteed by Section 36(6} (e) of the 1999 Constitution, as amended; and

ii. that Exhibit PD.III, Micah Eteng Ibe’s extra¬judicial statement admitted in evidence and wrongly relied upon by the trial court to convict the Appellant, when the said Micah Eteng Ibe was not produced as a witness and cross-examined, had occasioned miscarriage of justice to the Appellant”.
Let me start, firstly, with the last complaint. That is the use by the trial court of Exhibit PD.III, the statement of Micah Eteng Ibe, the maker of which neither testified nor was cross-examined, to convict the Appellant. What, in the Appellant’s Brief, is referred to Exhibit PD.III, appears to me to be Exhibit PD.4, referred to at pages 52 – 53 in the final address of Mrs. Ifudu, Principal State Counsel, who was the Prosecutor. In the judgment of the trial court, particularly at page 67 of the Record, the learned trial Judge had held –
“The combined testimonies of PW.l and PW.2 as well as the statements – Exhibits PD.A culminate in one conclusion – that all three (3) ladies were coerced and deceitfully taken away by the accused person to a place different from where they expected to go for respectable employment”.

It is only at page 67 of the Record that the learned trial Judge, in her judgment, made use of Exhibits PD.4.

On Exhibit PD.III (sic: Exhibit PD.4), the extra-judicial statement of Micah Eteng Ibe, who did not testify, Mr. Olagunju submits that the statement was wrongly relied upon by the trial court, and this has occasioned a miscarriage of justice. Counsel submits further that Micah Eteng Ibe did not give evidence in order to be cross-examined; that her statement was admitted as the truth of the matters therein contained, and that the trial court relied on it to convict the Appellant. The Court of Appeal, counsel submits, ought to have expunged the statement in the circumstance “as its non-expunction occasioned a serious miscarriage of justice”. Counsel refers to Section 232 of the Evidence Act, 2011, and the decisions of this Court in THEOPHILUS v. THE STATE (1996) 34 LRCN 74 at 90 per Onu, JSC, and KASA v. THE STATE (1994) 18A LRCN 28 at 46 per Uwais, JSC. (as he then was).

Section 232 of the Evidence Act, 2011, providing for the cross-examination of a witness as to his previous statement in writing for the purpose of contradicting or discrediting him; is not relevant in the circumstance of this case. Exhibit PD.III (Exhibit PD.4) was, at page 39 of the Record, admitted in evidence as the statement under caution of the victim, Micah Eteng Ibe, through the PW.4, one Odudare Oluremi Fidelis, an intelligence Officer of NAPTIP who recorded it. Exhibit PD.III (Exhibit PD.4) was no doubt admitted in evidence for a purpose. That is to establish the truth of what Micah Eteng Ibe, the victim, experienced in the hands of the Appellant. To that extent it amounts to hearsay. On the other hand, if Exhibit PD.III (Exhibit PD.4) was admitted in evidence to merely show or establish the fact that Mr. Odudare Oluremi Fidelis (PW.4), an investigator, interviewed and recorded a statement from the victim, Micah Eteng Ibe, it is not hearsay. This distinction was made in KASA v. THE STATE (1994) 5 NWLR (pt.344) 269 at 286 by Uwais, JSC (as he then was) thus –
“Evidence of a statement made to a witness by a person who is, not himself called, as a witness may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement It is not hearsay and admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was made”.

See also SUBRAMAIM v. PUBLIC PROSECUTOR (1956) 1 WLR 965 at 970; THEOPHILUS v. THE STATE (1990) 34 LRCN 74.

I noticed that it was the prosecutor, herself, who misled the trial court to act on the truth of the content of Exhibit PD.III (which she erroneously referred to as Exhibit PD.4) made on 3rd June, 2009 by Micah Eteng Ibe. The Prosecutor, at pages 52 and 53 with particular reference to counts 4-6, had invited the trial court to hold that the Appellant deceived Micah Eteng Ibe “Into following her to Lagos with the promise of giving her work as sales girl in a beer parlour”; that “the contents of Exhibits PD.4 (Exhibit PD.III) invariably points (sic) to the facts that they were actually deceived by the accused person”, and that “it also points to the fact that Accused person moved from one place to another; in this case Calabar to Shagamu”. Exhibit PD.III (Exhibit PD.4), for the purpose it was admitted in evidence, as proposed by the prosecutor and used by the trial court, was clearly an inadmissible hearsay evidence.

I agree with the Appellant’s counsel that Exhibit PD.III (Exhibit PD.4), being hearsay and inadmissible in evidence, ought to have been expunged from the evidence by the trial court. The court below, at pages 194 and 195 of the Record, seemed to make use of the extra-judicial statement of Micah Eteng Ibe (the victim) contained in Exhibit PD.III (Exhibit PD.4) in its judgment.

The Question is: what prejudice or injustice had the Appellant suffered by the use of the statement in the judgment of the court below?

The conviction and sentence of the Appellant on count 6 were set aside. Appellant, on count 6, suffers no prejudice therefore. The extra-judicial statement of Micah Eteng Ibe, Exhibit PD.III (Exhibit PD.4) was one of the bases for the conviction and sentence of the Appellant on counts 4 and 5 by the trial court which were affirmed by the court below. It was not the sole evidence the trial court relied upon for the conviction and sentence of the Appellant on Counts 4 and 5. PW.l and PW.2 testified respectively in respect of Counts 4 and 5. Their evidence were found to be credible and reliable by the trial court and the court below. The concurrent findings of facts are unassailable. If Exhibit PD.III (Exhibit PD.4) were admissible, it would only have been relevant to Count 6, the conviction and sentence in respect of which the court below had correctly, in my view, set aside. It is now trite that it is not every error or mistake in a judgment that will result in the appellate court setting aside the judgment appealed. The appellate court intervenes and sets aside the judgment appealed only when the error complained of is substantial and it has occasioned a miscarriage of justice. See GWONTO v. THE STATE (1983) 1 SCNLR 142 at 152 -153; ONAJOBI v. OLANIPEKUN (1985) 4 (pt.2) 156 at 163; OJE v. BABALOLA (1991) 4 NWLR (pt.185) 267; AMUROTI v. AGBEKE
(1991) 6 SCNJ 54. Accordingly, I shall not interfere with the judgment of the court below merely on the ground that it affirmed the wrong use of Exhibit PD.III (Exhibit PD.4) in respect of counts 4 and 5. Even if Exhibit PD.III (Exhibit PD.4), which was clearly hearsay and inadmissible evidence, were expunged other pieces of evidence still subsist to sustain the conviction.

Mr. Olagunju had complained that the Appellant did not appreciate the entire proceedings, as she did not understand the language of the trial court, and that the court failed to provide her an interpreter as required by the Constitution. Every person who is charged with a criminal offence shall be entitled to be informed promptly in the language he understands and in detail the nature of the offence, and shall also have, without payment or for free, the assistance of an interpreter if he can not understand the language used at the trial of the offence. See 36(6)(a) and (e) of the 1999 Constitution, as amended.

Mr. Olagunju, notwithstanding the so much fuss he had made of the Appellant not understanding English Language that was the language of the trial court, admitted that the Appellant spoke and understand Pidgin English. I agree, on authority of EGWUMI v. THE STATE (2013) ALL FWLR (pt.678) 824 at 840, per Rhodes-Vivour, JSC, that Section 36(6)(e) of the Constitution applies to trials and that failure to provide an interpreter for an accused person, who does not understand the official language of the trial court, could render the trial a nullity.

Where an accused is represented by counsel, the duty falls on the counsel to ensure that the court follows the proper procedure in the trial of his client. Counsel has a duty either to object to wrongful procedure that is adverse to his client, or he is taken to accept and acquiesce in it. See OTHNIEL SHEKESE v. VICTOR PLANSHAK & ORS. (2008) 7 SC. 178. In ANTHONY NWANKWO (2007) 7 SC. 1, this Court made it clear that where an accused person does not understand the language used at his trial, and he is represented by Counsel, it is his duty, or the Counsel’s duty, to bring the fact to the notice of the court at the earliest opportunity and that both the accused and his counsel shall therefore not wait until the end of the trial and thereafter raise it at the appeal. The Appellant is raising this issue for the first time on appeal. They did not raise it at the earliest opportunity at the trial. Raising the issue on appeal without leave first sought and granted renders the issue incompetent. See SHEKESE v. VICTOR PLANSHAK & ORS. (supra).
From the peculiar facts of this case it is clear that the Appellant understood and spoke Pidgin English which is the Nigerian variant of English Language. In my firm view, a party who speaks Pidgin English can not be heard to say that he could not appreciate the proceedings because the proceedings were conducted in English Language. In the instant case, it is clear from the Record that, notwithstanding that the Appellant at the trial was represented by counsel, the trial court caused a Registrar of the court, one Joseph Aninye, to interpret the proceedings to her in Pidgin English Language. Neither the Appellant nor her Counsel at the trial made this complaint at the earliest opportunity. Mr. Langyi, of counsel for Respondent submits in the Brief, and I agree, that the complaint of not supplying an interpreter, on authority of OKORO v. THE STATE (2012) VOL.1 MJSC (pt.11) SC. 59 at 68 – 79, ought to have been taken at the trial and not an appeal for the first time. The failure to raise this procedural irregularity could lead to invocation against the accused person, of the presumption of regularity in favour of the proceedings at the trial under Section 168 (1) of the Evidence Act, 2011 and also estoppel by conduct under Section 169 of the same Evidence Act.

For the Appellant it is further submitted that it is doubtful if on 1st June, 2010, when the Appellant was arraigned, that the charges were read and interpreted to the Appellant in accordance with Section 215 of the CPA and Section 36(6) of the Constitution. It is now settled that an arraignment done in violation of the mandatory provisions of Section 215 of the CPA and Section 36(6)(a) and (e) of the Constitution is a nullity and thus undermining the validity of the entire proceedings thereon. See EWE v. THE STATE (1992) 6 NWLR (pt.246) 147; RUFAI v. THE STATE (2001) 7 NSCQR 240; TOBBY v. THE STATE (2001) 6 NSCQR (pt.l) 362; EDIBO v. THE STATE (2007) 13 NWLR (pt.1051) 306.

However, upon my perusing page 29 of the Records, the proceedings of 1st June, 2010, I am satisfied that the mandatory provisions of Section 215 of the CPA and 36(6) of the Constitution were substantially complied with by the trial court. The court below was therefore right in affirming the procedure at arraignment.

Appellant’s counsel sought to impugn the judgment of the court below on the ground that the Appellant had retracted her confessional statements, Exhibits PD.2(a) and (b) made on 3rd June, 2009 and 5th June, 2009. The trial court made use of the two in convicting the Appellant. Exhibits PD.2(a) and (b) were admitted in evidence without objection on 31st January, 2011 (at page 38 of the Record). I have painstakingly perused the entire Record. I can not see where the purported retraction of Exhibits PD.2(a) and (b) was made by the Appellant. Retraction of a confessional statement is a matter of facts. The law from the Evidence Act and even common sense is settled: he who asserts must prove. The alleged retraction has no factual basis. Appellant’s Counsel created the phantom from the clouds.

The totality of all I have been labouring to say is that there is no substance in this appeal. For the above reasons, and the fuller reasons contained in the judgment just delivered by my learned brother, MARY UKAEGO PETER-ODILI, JSC, which I hereby adopt, the appeal is hereby dismissed. The substance of the decision of the court below in the appeal No. CA/l/253/2012, delivered on 17th June, 2014 is hereby affirmed.

EJEMBI EKO,
JUSTICE, SUPREME COURT.

COUNSELS

Isiaka Abiola Olagunju, Esq., with Masud Alabelewe, Esq., Olalekan Thanni, Esq., Akeem 0. Aponmade Esq., and Umar Faruq, Esq., for the Appellant.

C.J. Ajaegbu, Esq., Asst. C.L.O. (NAPTIP) with S.A. Langyi, Esq., S.L.O. (NAPTIP), for the Respondent.