Pius Edem Udo V. State (2006)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C

The offence for which the appellant was charged and convicted was the murder of one Sunday Okon Udoette, on 21st of February, 1995 at Odukpani in Calabar Judicial Division, contrary to section 319(1) of the Criminal Code. The charge was read and interpreted to the appellant in Efik language. The prosecution called seven witnesses to prove its case and the appellant gave evidence in his defence.The prosecution’s case was that the appellant having suspected that a servant of the deceased stole his cassava and farm tools, went to the deceased’s house to complain and to ask for his hoe and axe, and in the process threatened to use matchet on him. The deceased retorted that the matter did not concern him, so he should report his servant to the police. The deceased left for the bush, but never came back alive. The appellant was later seen by the witnesses who were present during the threat, coming from the direction of the path the deceased took wielding a matchet whilst he searched the deceased’s house. The appellant reported himself to the police who in turn accompanied him to scene of crime where they saw the corpse of the deceased. The appellant in his statements to the police, exhibits ‘A’ and ‘D’ confessed that he killed the deceased with a matchet. The defence of the appellant was that somebody shot him, resulting in a serious wound. He disarmed the person of his gun and cut him with a matchet. The learned trial Judge evaluated the evidence, considered the appellant’s defence, (which he did not believe or accept), and at the end of the day, found the appellant guilty as charged and convicted him. Aggrieved by the conviction, the accused/appellant appealed to the Court of Appeal on five grounds of appeal. The Court of Appeal affirmed the conviction of the trial court and dismissed the appeal for lack of merit. Again, dissatisfied with the decision of the court below, the appellant appealed to this court on two grounds of appeal. Learned counsel for both sides exchanged briefs of argument, which were adopted at the hearing of the appeal. Two issues for determination were raised in the appellant’s brief of argument, and these issues were adopted by the respondent in its brief of argument. The issues are:-

“1. Whether the learned Justices of the Court of Appeal are right in finding that the arraignment of the appellant at the trial court met the mandatory requirement as envisaged by section 215 of the Criminal Procedure Law of Cross River State and section 36(6)(a) and (e) of the 1979 Constitution .

2. Whether the Court of Appeal was right in finding the defence of self defence was clearly suspect.”

But then after adopting the appellant’s issues, learned counsel for the respondent went on to formulate the following issues in their brief of argument:-

“1. Whether the Court of Appeal was wrong to have held that the arraignment of the appellant complied with the provisions of section 215 of the Criminal Procedure Law of Cross River State and section 33(6) and (e) of the 1979 Constitution of the Federal Republic of Nigeria , and if so, whether the trial was a nullity.

2. Whether the prosecution by the evidence led before the trial court proved the case against the appellant beyond reasonable doubt to warrant his conviction and sentence.”

In proffering argument under issue (1) supra, learned counsel for the appellant has submitted that the mandatory requirements of the laws mentioned above were not complied with, and reproduced the provisions of the law in his brief of argument. I will reproduce them hereunder, for the purpose of properly grasping the issue and the argument canvassed there under by both learned counsel, starting with section 215 of the Criminal Procedure Law which provides thus:-

“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 officers 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.”

Then section 33(6) of the 1979 Constitution of the Federal Republic of Nigeria makes the following provisions:-

“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;

(b) to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”

Learned counsel reproduced extensively from the judgment of Iguh, JSC in Kalu v. State (1998) 13 NWLR (Pt.583) page 531, the requirements of a valid arraignment. He also referred to the cases of Ewe v. State 1992 6 NWLR (Pt.246) page 147, Erekanure v. The State (1993) 5 NWLR (Pt.294) page 385, and Sunday Kajubo v. The State (1988) 1 NWLR (Pt.73) page 721.

Learned counsel for the respondent on the other hand, cited the cases of Adeniyi v. State (2001) FWLR (Pt.57) page 809; (2001) 13 NWLR (Pt.730) 375, Idemudia v. State (1999) 7 NWLR (Pt.610) page 202, and Kajubo and Kalu’s case supra, on the strict observance and compliance with the Constitution and procedural provisions of arraignment. Learned counsel submitted that there was a valid and proper arraignment in the instant appeal. Now, I will look at what transpired on the day the appellant was arraigned. See page (29) of the record of proceedings for what was recorded by the learned trial Judge. The material portion of page (29) reads:-

“Accused person in court. Ekanem B. Asuquo, Esq. for the state. Chief Amba Wills Obong for the Accused says he has an application for bail of accused.