Samuel Erekanure Vs The State (1993)

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OLATAWURA, J.S.C. 

The main issue in this appeal is principally the consequential order to make when a trial Judge fails to adhere strictly to the provisions of Section 215 of the Criminal Procedure Law, Cap. 49, Laws of the Bendel State of Nigeria. It is for these reasons that the appellant has formulated two related issues. I say principally because the decisions of this court in the interpretation of Section 215 of the Criminal Procedure law are now many. Some of these will be referred to in this judgment. The issues formulated are as follows:

“1. Are the trial, conviction, and sentence passed on the appellant a nullity, in view of the failure of the learned trial Judge to comply with the express mandatory provisions of Section 215 of the Criminal Procedure Law, Cap. 49, Laws of the Bendel State of Nigeria, as well as Section 33(6) (a) of the Constitution of the Federal Republic of Nigeria, 1979 as amended

2. In the event that it is held that the trial, conviction and sentence passed on the appellant are null, for the reasons mentioned above, what consequential order should the Supreme Court make in the circumstances of this appeal”

The appeal is not on the merit of the case but that some procedural irregularities had occurred which, on the strict interpretation of Section 215 of the Criminal Procedure Law, rendered the proceedings or trial a nullity.

The appellant was arraigned before Maidoh, J. on 2nd December, 1982 on a charge of murder punishable under Section 319(1) of the Criminal Code Law, Laws of the Bendel State of Nigeria 1976. The particulars of offence read as follows:

“Samuel Erekanure (m) alias Orukaisioko on or about the 9th day of November, 1980 at Orogun in the Ughelli Judicial Division murdered one Edijana Ovidje (f).”

Before the first prosecution gave evidence, the notes of the court read thus:

“M.I. Edokpayi S.C. for the State J.E. Sharkarho for the Accused. Charge read to the accused. He pleads not guilty to the Law Court. Prosecution opens its case.”

Mr. Olisa Agbakoba, the learned counsel for the appellant has filed a very comprehensive brief of argument. He has submitted that the arraignment of the appellant was not in accordance with the Criminal Procedure Law of the Bendel State of Nigeria, 1976. These requirements although familiar were not followed by the trial court. These requirements which have been spelt out in Sunday Kajubo v. The State (1988) 1 NWLR (Pt.73) 721/731 and 737 are:

“1. The accused must be present in court unfettered, unless there is a compelling reason to the contrary.

2. The charge must be read over to the accused in the language he understands.
3. The charge should be explained to the accused “to the satisfaction of the court”,
4. In the course of the explanation technical language must be avoided.
5. After requirements 1 to 4 have been satisfied the accused will then be called upon to “plead instantly” to the charge.”

In this case on appeal, and according to the printed record, there is nothing to show that the court fully complied with these requirements. The five requirements must be satisfied. They are mandatory. The best that could be seen to have been done was that the charge was read to the accused, but in what language If as it has been shown that it was read, was it explained to him No. There is nothing on record to show also that it was even read by the registrar or an officer of the court. Where for instance no officer of the court is capable of interpreting the charge in the language the accused person understands, a sworn interpreter is produced to explain the charge to the accused, as shown on page 26 of the printed record, the appellant spoke Urhobo language. The failure to comply fully or wholly with these requirements renders the trial a nullity: Eyorokoromo v. The State (1979) 6-9 S.C.

3. Quite apart from the requirements of Section 215 of the Criminal Procedure of the Bendel State of Nigeria 1976, the Constitution of the Federal Republic of Nigeria in Section 33(6) (a) provides:

“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.”

The Constitution safeguards the interest of those arraigned before the court by requiring strict compliance with this provision. The supremacy of the Constitution has never been in doubt and failure to follow its provision renders whatever was done contrary to it unconstitutional. It is so in this case.