OLATAYO v. STATE (2022)

OLATAYO v. STATE

(2022)LCN/5019(SC)

In The Supreme Court

On Friday, January 14, 2022

SC.336/2016

Before Our Lordships:

John Inyang Okoro Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Between

LEKAN OLATAYO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

INGREDIENTS OF THE OFFENCE OF MURDER

My Lords, the requirement of the Criminal Code regarding the ingredients of the offence of murder with which the Appellant was charged, convicted and sentenced, which must be proved against the Appellant are as follows:
i. The decease had died
ii. The death of the deceased was caused by the accused and
iii. The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was probable consequence.
See Nwaeze v. The state (1996) 2SCNJ 42 at P.50. HELEN MORONKEJI OGUNWUMIJU, J.S.C

INTERPRETER

The constitutional duty of the trial Court to ensure that an interpreter is provided for the Defendant during the whole proceedings is immutable. What is however not set in stone and what will not vitiate a trial is the omission of the trial Court to state on the record on each date of the proceedings at trial the fact of the presence of an interpreter and the name of the said interpreter. See FRN v. Mohammed Ya’u (2014) 3 SCNJ 53 at Pg. 86.

CONFESSIONAL STATEMENT, BEST MODE OF ESTABLISHING GUILT OF AN ACCUSSED

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Akure division delivered on the 19th February, 2016 Coram. Mojeed Adekunle Owoade, Mohammed A. Dajuma, James Shehu Aribiyi (JJCA) which affirmed the decision of the trial Court delivered on the 13th January, 2014, by Hon. Justice R. A. Shiyanbola J of the Osun State High Court convicting the Appellant of the offence of Conspiracy, Murder and Indecent Assault of late Bilikisu which is contrary to Sections 324, 319(1) and 360 of the Criminal Code cap 34 Vol. II Laws of Osun State.

The Appellant was the 2nd defendant at the trial Court. The Appellant with one Fatai Ademola and Suraju Olanrewaju, Bilikisu Adeyemi (deceased) and Latifa were all sleeping in a room at Oke Abesu Street Osogbo. On 1st June, 2005, the Appellant and Suraju Olanrewaju at about 12am had sexual intercourse serially with Bilikisu Adeyemi who died in the process. The Appellant and Suraju Olanrewaju were charged to Court on 3 counts of Conspiracy, Indecent Assault and Murder. The charge was subsequently amended several times and last amendment was dated and filed on the 4th of April, 2008. The trial Court then held that based on the confessional statement wherein the Appellant and the co-defendant admitted they both had sexual intercourse with the deceased serially and stuffed her mouth with bread so she couldn’t shout for help meant they conspired to rape her which caused the death of the victim. The trial Court held that the confessional statement revealed they tried to resuscitate the deceased by pouring water on her but she died which means she died in the process and either the sexual intercourse or the suffocation from the bread could have led to the death of the deceased. The Appellant was sentenced to death by hanging.

Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal, Akure division for the determination of the issue whether the trial and conviction of the Appellant was not a nullity? The Court below in determining this issue held that although it is good practice for the Courts to record extensively that the charge was read and fully explained to the accused to the satisfaction of the Court, failure to do so will not render the trial a nullity.

The appeal was dismissed.

Further dissatisfied with the judgment or the Court below, the appellant has appealed to this Court vide a Notice of Appeal filed 1st March, 2016 containing two grounds of appeal.

The Appellant in their brief of argument settled by Prince Abioye A. Oloyede-Asanike Esq., formulated a sole issue for determination set out below as follows:
Whether the conviction of the Appellant or the lower Court and affirmed by the Court below was not a nullity.

Appellant filed a reply brief on 3rd of November, 2020. The Respondent in their brief of argument settled by Yemi Adesina, Esq., formulated a sole issue for determination not dissimilar from the issue distilled by the Appellant’s counsel.

For determining this appeal, I will adopt the issue distilled for determination by the Appellant.
SOLE ISSUE
Whether the conviction of the Appellant of the trial Court and affirmed by the Court below was not a nullity?

The main complaint of the Appellant on this issue is that when the plea of the Appellant was taken on 13/11/2007, the trial Court did not fully comply with S. 215 of the Criminal Procedure Act in that the Court did not indicate on the record that the charge was read to the Appellant in English Language, and subsequently translated to Yoruba Language and there was no indication on the record of proceedings the person who did the translation. Counsel also argued that the 2 policemen prosecution witnesses gave evidence in English Language and there were no evidence that an interpreter was in Court to interpret to the Appellant and his Counsel. Counsel argued that this is contrary to S.36(6) (a) & (e) of the CFRN. 1999. Counsel submitted that since no interpretation of the proceeding was done to the Appellant during the trial, the proceedings are completely vitiated moreso, as counsel for the Appellant is not of Yoruba extraction and the Appellant did not understand the evidence given against him in the language he didn’t understand. Counsel cited Akpiri Ewe V. the State (1992) 7 SCN 1 5 at Pg. 19, Kajubo v. The State (1988) 1 NWLR Pt. 73 Pg. 721, Eyorokoromo v. The state (1979) 6-9 SC 3, Counsel sought to distinguish the facts and resolution of FRN v. Ya’u Mohammed (2014) 3 SC 53 at 86 and Idemudia v. The State (1999) 5 SCNJ 47 from those of this case. Counsel submitted that:
1. The arraignment of the Appellant fell short of the requirements of the law.
2. Failure of the lower Court to interpret the proceedings of the Court to the Appellant is a breach of his constitutional right of fair hearing and has occasioned a miscarriage of justice.
3. The person who interpreted the charge to the Appellant having not being stated by the lower Court in its record vitiates the trial.

In reply, learned Respondent’s counsel argued that:
There is no contention whatsoever in this appeal that one Bilikisu Ademola died and that the Appellant and another caused the death of Bilikisu (the deceased) by suffocation when the duo blocked her mouth with bread to prevent her from shouting to attract people to rescue her while they were raping her. The confessional statements of the Appellant confirmed this and evidence of PW1 and PW2 were also relevant. Furthermore, it is also established that the act was done with the intention to cause death or grievous bodily harm. Hence, the issue of the Appellant being guilty and convicted for the offence of murder consequent upon which he was sentenced was not in issue as same has been put to rest.

That the core of a valid arraignment is the understanding of the charge by the Appellant before he is called upon to make his plea to the charge.

Furthermore, in determining the validity of the arraignment, one must look into the circumstance of each case.

Counsel further submitted that this Court should follow Idemudia v. The State (1999) 5 SCNJ 47 to consider the details of the arraignment complained against in order to arrive at the conclusion that the arraignment hearing must be vitiated for non-compliance with the law.

Counsel further submitted that the arraignment in this case was done in the presence of the Appellant’s counsel without objection of the name or designation of the interpreter as the above record shows that the charge was read and interpreted to the Appellant before he pleaded to same. Counsel cited Okeke v. The state (2003) 15 NWLR Pt.842 Pg.25.

Learned Respondent’s counsel argued further that the Appellant’s counsel on record before the trial Court, E. N. Ukaegbu and C.U. Chukwuemeka who were present at the arraignment and throughout the proceedings accede to the fact without any objection whatsoever as the interpretation was provided by the clerk of the Court and the Clerk of the Court interpreted the proceedings throughout the course of the trial. The accused also was represented by the said Counsel did not complain of not the following the proceedings through the trial. Counsel cited Olabode v. The State (2009) 11 NWLR Pt. 1152 Pg. 279; Okeke v. The State (2003) 15 NWLR Pt. 842 Pg. 25.

OPINION
My Lords, the requirement of the Criminal Code regarding the ingredients of the offence of murder with which the Appellant was charged, convicted and sentenced, which must be proved against the Appellant are as follows:
i. The decease had died
ii. The death of the deceased was caused by the accused and
iii. The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was probable consequence.
See Nwaeze v. The state (1996) 2SCNJ 42 at P.50.

There is no contention by the Appellant regarding the merit of the case proved against the defendant by the prosecution for which he had been convicted. Thus the issue here is very narrow. It is really whether the arraignment of the Appellant violated S.36 (6)(a) and (e) of the CFRN and S.215 of the Criminal Procedure Act.
These provisions requires that a defendant shall be informed in the language he understands, the nature of the offence against him and that he will be entitled to an interpreter without payment if he does not understand the language of the Court.
I agree with learned Respondent’s counsel that the circumstances of which case would determine the validity of an arraignment on Pg. 226- 227 of the Record, the Appellant was re-arraigned and the Courts indicated in is record as follows:
“The question is “was there a proper or valid arraignment on which the trial was base?” the answer lies in the entire circumstance of the case. The accused must be placed before the Court unfettered.”
The record of proceedings show that the defence counsel for both Defendants jointly tried at the trial were present throughout the arraignment and trial of the Appellant. The Appellant’s counsel who understood English understood the evidence of the police officers who gave evidence in English language (the language of the Court), none of the Counsel complained about the arraignment or the entire proceedings. See Ogunye v. The State (1999) 5NWLR Pt.604 Pg. 548. I could not have put the law better than lord Begore, JSC in Okeke v. The State supra, where my lord Stated on Pg. 17 of the NWLR as follows:
“The question is “was there a proper or valid arraignment on which the trial was base?” the answer lies in the entire circumstance of the case. The charge must be read to him in the language the accused person understand, and if he is represented by counsel, if there is no objection by counsel or the accused person, there is clear presumption of regularity that must be done to let the accused know the charge against him has been done. In that wise, it is presumed the accused understood the charge which has been read and explained to him and the Court was equally satisfied the charge was understood by the accused ……”
In respect of the proper application of S.215 of the CPA, I am of the view that where as in this case, there is evidence on record to show that the charge was read to the Appellant in the presence of counsel (particularly in a charge carrying the death penalty). The arraignment in my view was proper and the subsequent proceedings was properly conducted since there was a counsel for Appellant throughout the proceedings. What is important here is that the Defendant and his counsel are not misled regarding the details of the criminal offences on which the Defendant has been indicted. It is also important that the details of the evidence adduced in Court during the trial are clear to the Defendant and his counsel so that the Defendant can make a full defence to the charge. In all these circumstances, there is a presumption in favour of regularity in that the judge would instruct and ensure that throughout the proceedings the counsel and the Defendant would understand the proceedings even where the details of such directions by the trial Judge are not fully and specifically stated on each date of arraignment. On this issue, this Court held as follows in Olabode v. The state (2009) 11 NWLR Pt.1 152 Pg.279 at Pg. 254 as follows:
“Although reflection in the trial Court’s record read and explained the charge to the accused person form part of the procedure a trial Court should adhere to while arraigning an accused person, failure or omission by the trial Court to reflect them is not fatal to the proceeding once the arraignment was carried out in a manner which is substantially regular in the instant case. The Appellant was never misled by the non-reflection of the name of the registrar/officer of the Court who read out and explained the charge to the Appellant.”
The constitutional duty of the trial Court to ensure that an interpreter is provided for the Defendant during the whole proceedings is immutable. What is however not set in stone and what will not vitiate a trial is the omission of the trial Court to state on the record on each date of the proceedings at trial the fact of the presence of an interpreter and the name of the said interpreter. See FRN v. Mohammed Ya’u (2014) 3 SCNJ 53 at Pg. 86. What is important here is that on reading the arraignment and into consideration to determine whether indeed the complaint of the Appellant is one that had occasioned miscarriage or pervasion of justice to warrant declaring the whole proceedings a nullity. In the circumstance of this case as in Idemudia v. The State supra, there is no reason to validate the belated complaints of the Appellant on this procedural point.

In the circumstances, there is absolutely no merit in this appeal. The judgment of the Court of Appeal in Ca/AK/284c/2014 delivered on 19/2/16 is hereby affirmed. The conviction and sentence of the Appellant is affirmed.
Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I read in draft the judgment of my learned brother, Helen Moronkeji Ogunwumiju, JSC dismissing the appeal for being devoid of merit. I entirely agree with his reasoning and conclusion. I will only proffer a few comments in support of the judgment.

This appeal seeks to set aside the judgment of the Court below which affirmed the conviction and sentence passed on the Appellant by the trial Court for offences of conspiracy, murder and indecent assault of late Bilikisu Adeyemi.

The pith of the Appellant’s grievance is that he was not provided with an interpreter from English Language to Yoruba during the arraignment and throughout the proceedings contrary to Section 215 of the Criminal Procedure Act and Section 36(6) (a) and (e) of the 1999 Constitution.

The Appellant who was represented by counsel throughout his trial never objected to any irregularity during the trial. He also failed to show how he was misled during the trial regarding the details of the offences preferred against him. Having failed to raise objection to any perceived irregularity during the trial, the law presumes that proceedings was conducted devoid of any irregularity. See Okeke vs. The State (2003) 15 NWLR (Pt 842) 25.

Moreover, the position of the law is trite that out of the three modes of establishing the guilt of an accused person available to the prosecution, to wit: direct evidence of an eye witness, circumstantial evidence and confessional statement of the accused person, the confessional statement of the accused is the best pointer to the truth of the role played by such accused person in the commission of the offence and the Court can safely rely on it to convict once the Court is satisfied that it is direct and unequivocal. See FRN vs. Iweka (2013) 3 NWLR (Pt 1341) 285; Ikemson vs. State (1989) 3 NWLR (Pt 110) 455. In the instant case, it is beyond peradventure that Bilikisu Adeyemi is dead. It is also established that she died of suffocation. The Appellant completed the puzzle by confessing to stuffing the deceased mouth with bread while raping her, to prevent her from shouting for help. I am baffled that the Appellant could think of using this Court to escape punishment even after he had confessed to committing such a cruel offence against the deceased.

I hold therefore that the Court below was right to affirm the conviction and sentence passed on the Appellant by the learned trial Judge.

I find no merit whatsoever in this appeal. It is accordingly dismissed. The Judgment of the Court below affirming the conviction and sentence of the Appellant is hereby upheld.
Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Ogunwumiju, JSC, and I agree with him that this appeal totally lacks merit and must be dismissed. My learned brother addressed the issue at stake in the appeal squarely and decisively, and I hereby adopt his reasoning and conclusion in its entirety and also dismiss this appeal.

ABDU ABOKI, J.S.C.: I have read before now, the lead judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC, just delivered. I agree with His Lordship that this appeal is without merit and should be dismissed. It is dismissed by me.

This appeal emanated from the decision of the Court of Appeal, sitting at Akure, delivered on the 19th of February, 2016, which affirmed the conviction and sentence of the Appellant for murder.

The facts leading to this appeal, according to the prosecution, are that the Appellant, one Suraju Olarenwaju and one Fatai Ademola were said to be sharing the same room at Oke Abesu, Osogbo. One Bilkisu (now deceased), who was the girlfriend of Fatai Ademola had come to visit the boyfriend and at about midnight of the 1st of June 2005, she was said to have had sexual intercourse with her boyfriend Fatai, after which he slept off. It was alleged that the Appellant herein, and Suraju Olanrewaju took turns to have sexual intercourse with the late Bilkisu, despite serious opposition from her. According to the Prosecution, in order for them to carry out their dastardly act, they decided to block her mouth with a loaf of bread, while savagely having intercourse with her, which led to her suffocation and eventual death. A charge of murder was consequently brought against them, and upon arraignment, the accused persons pleaded not guilty and the matter proceeded to trial.

At the end of trial, the trial Court convicted the accused persons for murder, and they were both sentenced to death by hanging.

The Appellant was dissatisfied with the conviction and sentence, and appealed unsuccessful to the Court of Appeal, hence his further appeal to this Court.

In the Appellant’s brief of argument filed on the 26th of September, 2016, Prince Abioye A, Oloyede-Asanike, Esq., who settled the Appellant’s brief, formulated a sole issue for determination, that is:
“Whether the trial and conviction of the Appellant at the lower Court(sic) and affirmed by the Court below was not a nullity?”

For the Respondent, a brief of argument was filed on the 9th of September, 2020. Yemi Adesina, Esq., Counsel for the Respondent, also distilled a sole issue for determination, to wit:
“Whether the Appellant was properly arraigned at the trial Court and the Court of Appeal was right in affirming the conviction and sentence passed on the Appellant based on that arraignment.”

I adopt the issue formulated by the Respondent in the determination of this appeal.

The submissions of learned Counsel on both sides of the divide, have been sufficiently spelt out in the lead judgment of my learned brother, Ogunwumiju, JSC, and I need not repeat them.

Suffice it to say that crux of the Appellant’s appeal is that his arraignment at the trial, was not in compliance with Section 215 of the Criminal Procedure Act. This assertion has been disputed by the Respondent who referred this Court to pages 226 – 227 of the record, where the trial Court stated inter alia as follows:
“Charge read to the accused persons in English language and interpreted in Yoruba Language. Each of the accused persons pleaded not guilty to the two count charges.”

Both the Constitution of the Federal Republic of Nigeria vide Section 36(6)(a), and Section 215 of the Criminal Procedure Act are applicable in the instant case. They both provide for the requirements of a valid arraignment. Section 36(6)(a) of the CFRN 1999, as amended states:-
“36 (6) Every person who is charged with a criminal offence shall be entitled –
(a) to be informed promptly in the language that he understands and in detail of the nature of the offence.”
Section 215 of the Criminal Procedure Act states as follows:
“The person to be tried upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order and the charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served/therewith.”
The whole purpose of plea in criminal trials must always be remembered and borne in mind. A person charged with an offence, upon being arraigned before the Court has either to confess to the charge, or to deny it by pleading “Not Guilty”.

There is no gainsaying that arraignment is sacrosanct and it is the law that necessary steps to a valid arraignment are complied with in the interest of justice. The Courts do not have a choice but to comply and where compliance is not satisfied, it amounts to a flagrant disobedience of the statutory provision of Section 215 of the Criminal Procedure Act and Section 36 (6) (a) of the 1999 Constitution (as amended) earlier highlighted.
This Court had this to say about compliance on the requirements of arraignment in GOLDEN DIBIE & ORS v. THE STATE (2007) LPELR-941(SC):
“It is now firmly established in a string of decided authorities, that an arraignment, consists of charging the accused person and the reading over and explaining the charge to him, to the satisfaction of the Court after which his plea is taken. Subject to the provisions of Section 100 of the CPL, Section 215 of the CPL, is mandatory and not directory: The mandatory nature is further confirmed by Section 33(6)(a) of the 1979 Constitution now Section 36(6)(a) of the 1999 Constitution. Non-compliance with Section 215 of the CPL, will lead to an order for re-trial as the trial will be vitiated and rendered a nullity.
See also Blessing v. F.R.N (2015) LPELR 24689 (SC) A strict compliance with a mandatory statutory requirement relating to the procedure in a criminal trial is a pre-requisite for a valid trial, and where a trial Judge proceeded to try the accused without strictly complying with the provision of Section 215 of the Criminal Procedure Law and Section 36(6)(a) of the 1999 Constitution, the trial would be declared a nullity by an appellate Court.

In the instant appeal, and as manifest from the record, I am satisfied that the learned trial Judge appreciated the mandatory procedure involved in Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as well as Section 215 of the Criminal Procedure Law. All the authorities cited and relied upon by the learned Appellant’s Counsel, being good law, have all been complied with and applied by the learned trial Judge in this case.

Without much ado, I answer this issue in the affirmative, and hold that a valid plea was properly taken by the Appellant and the other accused persons on the amended charge in accordance with the law.

It is for these reasons and the more detailed reasons contained in the lead judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC, that I also adjudge this appeal to be unmeritorious and accordingly dismiss it.
Appeal dismissed.

TIJJANI ABUBAKAR, J.S.C.: This appeal is against the judgment of the Court of Appeal, Akure Division delivered on the 19th day of February, 2016. The lower Court dismissed the Appellant’s appeal and affirmed the Judgment of the trial Court.

The Appellant in this appeal was charged with indecent assault and murder, the Appellant and Fatai Ademola, and Suraju Olanrewaju committed indecent assault on Bilkisu Adeyemi, who died as a result of the indecent assault.

At the trial, the prosecution called three witnesses while the Appellant testified on his own behalf. The trial Court found him guilty and sentenced him to death, he became dissatisfied and appealed to the lower Court, the lower Court found no merit in the Appellants appeal, it was therefore dismissed, and the sentence of death of was affirmed. Appellant became dissatisfied and further appealed to this Court.

Both the trial and lower Courts found the Appellant guilty of the alleged offences, in other words, there is a concurrent finding of facts and it is not the practice of this Court to interfere with concurrent findings of facts. See: LAWALI V. STATE (2019) LPELR-46405 where this Court held as follows:
“… The concurrent findings, supported by credible evidence, cannot be faulted. The well-established presumption is that findings of facts are correct. The burden, on appeal, is on the appellant to displace the presumption. See BAKARE v. THE STATE (1987) 1 NWLR (pt. 52) 579 at 593. Where the appeal challenges only the concurrent findings of fact the burden on the appellant to displace the presumption that the concurrent findings of fact are correct is made difficult by the rule of practice in the appellate Courts to the effect that an appellate Court is loath to disturb concurrent findings of fact and therefore such concurrent findings of fact should rarely disturbed. See ENANG v. ADU (1981) 11 – 12 SC 17 at 27 (Reprint). The usual circumstances concurrent findings of fact are disturbed when it is shown that the findings are perverse and not the result of a proper exercise of judicial discretion, or that there is no evidence at all to support a particular crucial finding, or that the trial Court made wrong deductions or drew wrong inference from the admitted or established facts. See UBANI & ORS v. THE STATE (2003) 18 NWLR (PT. 851) 224.”

For the above reason therefore, and the more detailed reasons in the illuminating and lucid leading judgment of my Lord and learned brother, OGUNWUMIJUI JSC. I hereby join in holding that the Appellants appeal is lacking in a scintilla of merit and therefore deserves to be dismissed. I also dismiss it and affirm the judgment of the lower Court.

Appearances:

Prince Abioye A. Oloyede-Asanike with him, Oyebunmi Musliat Oloyede- Asanike For Appellant(s)

Yemi Adesina For Respondent(s)