SAMUEL PETERS v. THE STATE (2016)

SAMUEL PETERS v. THE STATE

(2016)LCN/8094(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of February, 2014

CA/L/782/2011

RATIO

CRIMINAL PROCEDURE: THE PROCEDURE OF INITIATING TRIAL

Section 215 of the Criminal Procedure Law of Lagos State is apt as to its provision. It says:
“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the Registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith” per. RITA NOSAKHARE PEMU, J.C.A.

CRIMINAL PROCEDURE: THE DUTY OF THE PROSECUTION AFTER THE ACCUSED HAS PLEADED GUILTY

By Section 240 of the Criminal Procedure Law of Lagos State, it says:
“After the accused person has pleaded guilty to the charge, or information, the person appearing for the prosecution may open the case against the accused person and then adduce evidence in support of the charge” per. RITA NOSAKHARE PEMU, J.C.A.

JUSTICE

SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria

Between

SAMUEL PETERSAppellant(s)

AND

THE STATERespondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of M. A. Dada (Mrs.) J of the Lagos State High Court, Ikeja Division delivered on the 17th of March, 2010, whereby she convicted the Appellant to a term of life imprisonment for manslaughter – pages 128-138 of the Record of Appeal.

At the lower Court, the Appellant SAMUEL PETERS had been charged with a one count charge of conspiring to murder one Wale Masaku (Deceased) on or about the 21st day of June 2006 contrary to Section 316 (1) of the Criminal Code Law of Lagos State 2003 – page 3 of the Record of Appeal.

However at page 4 of the Record of Appeal, which is the Information sheet, the offence stated thereon for which the Appellant is charged is MURDER contrary to Section 316(1) of the Criminal Code Law, Cap 47 Vol. II, Law of Lagos State 2003.

In proof of the prosecutor’s case, it called two (2) witnesses, and the Appellant testified on his behalf.

Written addresses were filed by the respective parties – pages 64-79 of the Record of Appeal.

The Appellant, having been convicted to life imprisonment, is dissatisfied with the Judgment of the lower Court and is desirous of appealing it.

By leave of this Honouable Court granted on the 3rd of July 2012, the Appellant was granted extention of time within which to appeal. On the 12th of July 2012, the Appellant filed a Notice of Appeal encapsulating four (4) Grounds of Appeal – pages 139-141 of the Record of Appeal.

From Record, on the 17th of April 2008, one A.A George told the Court below that he intends to amend the charge – page 102 of the Record of Appeal. There is nothing in the record to reflect any amendment.

On the 25th of June 2008, the Appellant pleaded not guilty to what was simply referred to as 1st count – page 104 of the Record of Appeal. On the 30th of October 2008, the Appellant plead not guilty to a new one count charge, which charge was not stated in the record – page 107 of the Record of Appeal.

On the 27th of November 2008, PW1, P.C. Morgan Enabulele, whose name was not listed in the list of witnesses testified. The Court granted the oral application of learned counsel for the Respondent to add the witness name – page 108 of the Record of Appeal.

Simply put, PW1 testified that on the 22nd of June 2006, a case of assault occasioning harm was reported and referred to him for investigation. He is a Police Officer at Alakuko Police Station attached to Surveillance Branch.

PW2, a Policeman also testified. His names are Patrick Nnadi – pages 117-118 of the Record of Appeal.
The Appellant testified as shown at pages 122-123 of the Record of Appeal.

By motion on notice filed on the 19th of October 2012, the Appellant sought an order of this Honourable Court setting down this appeal for hearing on the Appellant’s brief of argument alone in view of the Respondent’s failure to file its Brief of Argument in this appeal.

The Application was granted on the 20th of November 2013.
The Appellant filed his Brief of Argument on the 16th of August 2012.
It is settled by Olusola O. Idowu Esq.
The Respondent filed no Brief of Argument.

The Appellant had distilled three (3) issues for determination from the Grounds of Appeal filed. They are:
(1) “WHETHER THE ENTIRE PROCEEDINGS AND THE TRIAL THAT LED TO THE CONVICTION AND SENTENCE OF THE APPELLANT WERE NOT A NULLITY IN VIEW OF THE BREACH OF SECTION 215 OF THE CRIMINAL PROCEDURE LAW OF LAGOS STATE AND SECTION 36(6) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA”
(2) “WHETHER THE PROSECUTION HAS PROVED A CASE OF MANSLAUGHTER AGAINST THE APPELLANT WITH LEGALLY ADMISSIBLE EVIDENCE BEYOND REASONABLE DOUBT AS REQUIRED BY LAW”
(3) “WHETHER THE SENTENCE OF LIFE IMPRISONMENT IMPOSED ON THE APPELLANT BY THE TRIAL JUDGE IS NOT EXCESSIVE CONSIDERING THE CIRCUMSTANCES OF THIS CASE”

ISSUE NO. 1
The Appellant submits that on the 25th of June 2008, there is nothing in the Record of Appeal to show that any charge was read out to the Appellant before he took his plea – referring to page 104 of the Record of Appeal.

He submits that a look at the record of appeal, particularly at page 107, shows that the Appellant’s counsel was served at the lower Court with a “one count charge”. This was on the 30th of October 2008.

He submits that the style adopted in the Court below is wrong. He submits that by the provisions of Section 215 of the Criminal Procedure Law, the charge must be read to the accused person in the language he understands and he must plead by himself not through his counsel.

That in the Court proceedings of 30th October 2008 as reflected at page 107 of the Record of Appeal, Mrs. Olorunfemi, the Appellant’s counsel informed the Court that the Defendant pleaded not guilty to the charge. This is wrong in law, he submits. Cites TORRI vs THE NATIONAL PARK SERVICE OF NIGERIA (2011) 13 NWLR PART 1264 AT 365 where the Apex Court in this Country held inter alia that

“An accused person must plead himself. He is not allowed to plead through his counsel. If a plea is made through counsel, the trial is a nullity”

The Appellant argues that the act of reading the charge to the Appellant when he opened his defence, is belated and unknown to law. That decidedly, the charge must be read to the accused before the trial commences, and not in the middle of the trial – BARMO VS STATE (2000) NWLR PT. 641 AT 424.

He urges this Court to declare the proceedings, at the Lower Court a nullity, and to set aside the conviction and sentence of life imprisonment.

Urges Court not to order a retrial of this case, as this would amount to hardship, and double jeopardy on the Appellant.

He submits that there was no direct evidence as to the manner and way the fight broke out between the Appellant and the deceased. That out of the eight witnesses listed at the back of the information, only two were called, and they were no eyes witnesses.

He submits that PW2, Inspector Patrick Nnadi, did not see the deceased before he died, neither did he witness the fight. He only said that the accused person was handed over to him at Panti. He did not write the accused person’s statement at Panti. He further submits that PW2’s evidence contributed nothing to the case of the prosecution. That the case of TOBBY VS. STATE (2010) 10 NWLR PART 720, 23, where the Supreme Court refused to order a retrial because of the evidence of the sole witness, is on all fours with the present case. Citing AGBANYI VS STATE (1995) 1 NWLR PART 369, 1 @ 26, where the Court held that even though the trial was declared a nullity, the prosecution did not prove the charge against the Appellant beyond reasonable doubt, and consequently refused to order a retrial.

Urges on this Honourable Court that the Appellant has been in detention since June 2006 to date. Urges Court to resolve this issue in favour of the Appellant.

ISSUE NO. 2
Arguing that it is the prosecution that the onus rests on, to prove, in a criminal matter, the guilt of the accused beyond reasonable doubt ABDULLAHI VS STATE (2008) 17 NWLR PT.11115, 203, he submits that the learned trial Judge should have discharged and acquitted the Appellant, instead of wrongly convicting him for manslaughter.

He submits that non of the two requirements of the law to establish manslaughter was proved by the prosecution at the trial.

The Appellant submits that out of the eight witnesses listed at the back of the information, no eye witness was called. The Medical Doctor listed was not called as a witness. No autopsy report was tendered.
Urges Court to invoke the provisions of Section 167 (d) of the Evidence Act 1990, for withholding evidence because the prosecution knew it would be unfavourable to it.

Submits that the failure of the prosecution to call eye witnesses and the Medical Doctor who performed the autopsy, is fatal to the prosecution regarding the cause of death and the death being attributed to the act of the Appellant.

He submits that there is no proof that the death of the deceased was caused by the Appellant, either by direct evidence, or by circumstantial evidence. He submits that the prosecution has not even been able to establish any offence by circumstantial evidence against the Appellant for manslaughter.

He submits that when the learned trial Judge declared that
“the death of the deceased come by violent means and was almost if not out rightly instantaneously”
this finding is without any evidence and perverse.

The Appellant submits that there is nothing to show that his act caused the death of the deceased.
Citing AHMED VS STATE (2001) 18 NWLR PART 746, 622 @ 646, where KUTIGI JSC (Rtd) observed at page 652 that
“it is settled law that in a charge of murder or manslaughter, it is not enough to show that the act of the accused person caused the death of the deceased. The prosecution has the onus to prove that it did in fact cause the death of deceased. And if the evidence does not prove that he did, then the failure of the defence to suggest some other causes does not confirm the case of the prosecution”

He submits that, as in AHMED’S case (supra) the eye witnesses were not called; no medical doctor was called. In the instant case, no autopsy report was tendered. That the Court discharged and acquitted the accused person in the Ahmed’s case. He urges Court to do the same in this case.

ISSUE NO 3.
The Appellant submits that the learned trial Judge sentenced him to a term of life imprisonment based on Section 325 of the Criminal Code Act of Lagos State.

He submits that the sentence is excessive. That Section 325 of the Criminal Code Act does not make it mandatory that in every case wherein a Defendant is found guilty of manslaughter, the sentence must always be life imprisonment. This is because the provisions of the Section does not make it mandatory for the Courts to impose life imprisonment, as the word “shall” was not used, and cases differ from circumstance to circumstance. He submits that Courts have a discretion to impose lesser punishment on an offender, even where maximum punishment is prescribed – IGBOANUGO v. STATE (1992) 3 NWLR PART 228, 176 @ 189.

He submits that where maximum penalty is prescribed, Courts are given discretion, citing UDOYE v. STATE (1967) NMLR. 197 where the Supreme Court held that the trial Court had a discretion not to give the convict the maximum punishment. He submits that the view held by the Learned trial judge, that Section 325 of the Criminal Code Act of Lagos State is mandatory is wrong. That the learned trial judge did not state the factors that influenced him to sentence the Appellant to a maximum punishment of life imprisonment, and failure to state these factors occasioned miscarriage of Justice against the Appellant- TSAKU V. STATE (1986) 1 NWLR (PART 17) 516 @ 521.

He submits that the learned trial judge had a discretion in the matter of sentencing, but failed to exercise same judiciously.
He urges this Honourable Court to reduce the sentence imposed on the Appellant.

I had observed from Records that the Appellant was charged with conspiracy to murder contrary to Section 316 (1) of the Criminal Code law, Cap C17 Vol. 2 Laws of Lagos State 2003.
The Particulars of offence read thus:
“SAMUEL PETERS on or about the 21st day of June 2006, at about 9.00 pm at Alagbado, Lagos State at the Ikeja Judicial Division hit one Wale Masaku (Deceased) on his neck with a plank” – Page 3 of the Record of Appeal.

But Section 316(1) of the Criminal Code Act of Lagos State speaks of “DEFINITION OF MURDER” and not conspiracy.
I observe a lot of anomalies in the proceedings before the Court which I must mention, in considering this issue and indeed the entire appeal.

At Page 102 of the Record of Appeal A. A. George for the State told the court at its proceedings of 17th April 2008, that he intends to amend the charge. The matter was adjourned to the 8th of May 2008 for “possible arraignment”.

It was however on the 25th of June 2008 that the Accused Appellant was arraigned – page 104 of the Record of Appeal.
Let me reproduce the proceedings of that day verbatim.

“ARRAIGNMENT”
Defendant Absent
1ST COUNT
Plead not guilty.
MRS. OLUWOLE: We have written our witness but they have not responded.
COURT: Case is adjourned to Tuesday, 15th July 2008 for trial.
Signed
Hon. Justice M. A. Dada (Mrs.)
JUDGE 25/06/2008 ”

As at this stage, we do not know if the charge has been amended as indicated by the prosecution. Therefore we do not know what he purportedly pleaded to.

However on the 30th of October 2008, the Court observed that there is a new charge before it. She then directed that the accused person’s plea be taken. Mrs. Olorunfemi, appearing for the Appellant then said:
“No problem my Lord, I’m just being served ONE COUNT CHARGE: Defendant pleads Not guilty to the one count charge in Yoruba interpret by MR. Bewaji, Senior Registrar of this Court” – Page 107 of the Record of Appeal.

Now the question is how did the Defendant plead not guilty to the one Count charge and what is the charge? Did he plead personally, or through Counsel? We are left in limbo!

Full blown trial commenced on the 27th of November 2008 – page 108 of the Record of Appeal.

One Onabulele was to testify, even if his name is not listed. This was granted by the court upon oral application made by the prosecution.
Ex-facie, it is apparent that the Provisions of Section 215 of the Criminal Procedure Code has not been complied with, and this renders the entire proceedings a nullity, no matter how well conducted.

Here, we are faced with no charge, no proper plea and indeed nothing you cannot put something on nothing, because it would collapse.

It is my view that there has been a breach of the Provisions of Section 215 of the Civil Procedure Act and this is fatal to the case of the prosecution. This issue is resolved in favour of the Appellant and against the Respondent.

ISSUE NO. 2
The charge for which the Appellant is convicted is the platform upon which he was sentenced. Therefore where there is no plea or proper plea to a charge, which makes the entire proceedings a nullity in law, consideration of the other two issues would amount to embarking on an academic exercise, which is frowned on by this Court.

As earlier observed in my consideration of Issue No.1, I do not know for what offence the Appellant was convicted. The charge says conspiring to murder under a different law; then the amended charge is not in the Record of Appeal. There has to be a CHARGE; followed by A PLEA THERETO; before trial and sentence. The two first requirements are non-existent here. Therefore nothing can stand on them, to stand.

There is no charge of manslaughter before the Court. If there was, it is not reflected in the Record of Appeal.

I must say that the way and manner the prosecution handled this case is shameful and utterly deprecated. There is no element of professionalism exhibited, no diligence, no nothing. Where the liberty of the subject is called to play, it is pertinent that one exhibits the fear of God.
The Appellant had submitted that there are no eyewitnesses called to testify, no medical report, no tendering of the murder weapon. But there has to be a proper plea and an identifiable charge before these other requirements are met.

This issue is resolved in favour of the Appellant and against the Respondent.

ISSUE NO 3
To entertain this issue would be to waste precious time and energy as I shall resolve this issue in favour of the Appellant and against the Respondent for the reasons adumbrated in my resolution of Issues 1 and 2 above.

The result is that this appeal succeeds and the Judgment of Hon. Justice M. A. Dada delivered on the 6th day of October 2009 at the High Court of Justice, Ikeja Judicial Division, Lagos in Suit No. ID/160c/2007 is hereby set aside as a nullity.

The conviction of and sentence on the Appellant is hereby quashed while he is hereby discharged and acquitted.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother RITA NOSAKHARE PEMU, JCA, and I have nothing extra to add.

My learned brother RITA NOSAKHARE PEMU, JCA, dealt with the issues in this appeal thoroughly and well, and left no space for further contribution, for the above reasons and the more detailed reasons given in the lead judgment, I too join my learned brother in holding that this appeal succeeds and the judgment of Hon. Justice M. A. Dada delivered on the 6th day of October, 2009 at the High Court of Justice, Ikeja Judicial Division, Lagos in Suit No.ID/160C/2007 is hereby set aside as a nullity.

The conviction of and sentence on the Appellant is hereby quashed, while he is also hereby discharged and acquitted.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: If the evidence against the appellant had been strong or compellable and/or substantial, the irregularities in the manner the arraignment of the appellant was conducted at the court below would have warranted an order of retrial after allowing the appeal and declaring the trial a nullity, as the precious life of a human being was irrevocably lost in the process of the criminal venture. But, as the evidence does not disclose a substantial case against the appellant, I accede to the judgment by my learned brother, Rita Nosakhare Pemu, J.C.A. which I had the honour of reading in advance that the appellant be acquitted and discharged. See by analogy the case of R. v. Muambo 7 W.A.C.A. 27 at 28 as follows –
“We hold that the proceedings subsequent to the entry of the plea are a nullity. (R. V. Baker 7 Cr. App. R. 217; R. V. Ingleson 11 Cr. APP. R. 21; R. V. Hussey 18 cr. APP. R 121). We have power to order that the appellant be retried by a Court of competent Jurisdiction (but) having regard to all the circumstances of this case, it is not one in which that power should be exercised”.

For the reason stated above and the succinct reasons contained in the lead judgment I too would allow the appeal and quash the conviction and sentence of the appellant and enter verdict of acquittal and discharge in favour of the appellant.

Appearances

Olusola Idowu
Tosin Peters (Mrs)For Appellant

AND

For Respondent