Emmanuel Olabode V. The State (2009)
LAWGLOBAL HUB Lead Judgment Report
O. ADEREMI, J.S.C
This is an appeal against the judgment of the Court of Appeal, (Ibadan division) (hereinafter referred to as the court below) delivered on the 26th of March, 2007 upholding the judgment of the High Court of Justice sitting in Ibadan by which the appellant had been sentenced to death by hanging in a charge of murder of one Kehinde Omotanwa contrary to and punishable under Section 319(1) of the Criminal Code, Cap 30, Volume 11, Laws of Oyo State of Nigeria, 1978.
The appellant had been charged before the High Court of Justice sitting in Ibadan for the murder of the said Kehinde Omotanwa (Male) on or about 18th of March 2001 at the New Garage Area, Orita Challenge, Ibadan. After taking his plea, the trial commenced with the prosecution calling five witnesses. The accused/appellant gave evidence but called no witness.
On the 18th of March, 2001, at the deceased’s workshop, at New Garage Area, mechanic under one Adeleke Balogun who testified as PW1, the accused/appellant, a panel beater, poured petrol on the deceased and set him ablaze. Consequently the deceased sustained severe burns all over his body. On seeing that the deceased was burning, the appellant hastily left the scene of the to Adeoyo State Hospital, Ibadan where he was admitted for medical treatment. At a point in time after the incident, the appellant surfaced in the hospital to see the deceased on admission for treatment. There, he undertook, in writing, to be responsible for the medical bill of the deceased, the written undertaking was tendered in the course of the proceedings as Exhibit C, However, the deceased died 14 days thereafter. As I have said, hence the accused/appellant was charged with his murder. After taking evidence of the prosecution witnesses and the only evidence from the defence side who, incidentally, was the appellant himself, and of course, the final addresses of counsel for both sides, the trial Judge, in a reserved judgment delivered on the 31st of October 2002 found the appellant guilty as charged and accordingly convicted him and finally sentenced him to death by hanging. Dissatisfied with the judgment, the appellant lodged an appeal to the court below. After taking the addresses of counsel representing the appellant and the prosecution based on their respective briefs of arguments, the court below, in unanimous decision delivered on the 26th of March 2007 dismissed the appeal while affirming the conviction and sentence passed by the trial High Court. Again, being dissatisfied with the aforesaid judgment of the court below, the appellant has appealed to this court by Notice of Appeal filed on the 20th of April 2007. The said Notice carries four grounds of appeal. Three issues were formulated from the said four grounds for determination by this court, and as set out in the appellant’s brief of argument filed on the 6th of March 2008, they are as follows:
“(1) Whether the Court of Appeal was correct in its conclusion that the arraignment of the accused person was valid having regard to the strict requirements of Section 36(6) of the 1999 Constitution and Section 215 of the Criminal Procedure.
(2) Whether the Court of Appeal was correct in holding that the evidence of PW1 and PW2 was not hearsay and whether the Justices of Appeal were right in treating the incidence of the three eye witnesses as unnecessary for the prosecution case
(3) Whether in the absence of supportive oral testimony by the pathologist, there was reasonable basis for the acceptance by the Court of Appeal of the medical report as sufficiently proving the cause of death”.
The prosecution/respondent for its part identified four issues for determination as set out in the respondent’s brief of argument filed on the 29th of April 2008, they are in the following terms:
(1) Whether the appellant was properly arraigned before the trial court.
(2) Whether the evidence of PW1 and PW2 before the trial court was hearsay.
(3) Whether failure on the part of the respondent to call the pathologist who performed the post-mortem examination on the deceased to give evidence before the trial court was fatal to the respondent’s case.
(4)Whether the prosecution proved its case before the trial court beyond reasonable doubt”.
When this appeal came before us for argument on 26th February 2009, Mr. Kazeem, learned counsel for the appellant adopted his client’s brief of argument filed on 6th March 2008 and the appellant’s reply brief filed and served on the 26th of February 2009 and urged us to allow the appeal. On his part, Mr. Lana, the Attorney-General for Oyo State appearing for the respondent, adopted his client’s brief of argument filed on 29th April 2008 and urged us to dismiss the appeal.
I have had a careful reading of the issues both parties have raised and it is my respectful view that they are all similar. Therefore Issue No. 1 in the appellant’s brief which is similar to Issue No.1 in the respondent’s brief shall be taken together. Issue No 2 in the appellant’s brief which is a replica of issue No 2 in the respondent’s shall also be taken together. Issue No.3 in the respondents brief shall be taken together with issue No.3 in the respondent’s brief for similar reasons. I shall finally take issue No. 4 in the respondent’s brief separately.
On issue No.1, the appellant, through his brief of argument after referring to the provisions of Section 215 of the Criminal Procedure Act Cap 80 Laws of the Federation of Nigeria 1990 and Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria, and a number of court’s decisions the likes of (1) KAJUBO VS. THE STATE (1998) 1 NWLR (Pt.73) 721, (2) ALAKE VS. THE STATE (1991) 8 NWLR (PT.205) 567 and (3) TOBY VS. THE STATE (2001) FWLR (PT. 52) 208 and the contents of the plea by the accused/appellant. It was submitted that the records of proceedings failed to show who read and explained the charge to the accused, the records were bereft of any statement that the trial judge was satisfied that the accused understood English language in which the information had been read to him whereas the appellant had said he made his statement to the Police in Yoruba language. It was finally on this issue submitted that the arraignment of the appellant was invalid for the reason that there was nothing on the record to show that the accused understood the language in which the information was read to him and therefore it was again submitted that the mandatory requirements of the law having not been complied is a nullity. On its part, the respondent after referring to the records of proceedings to show that the appellant admitted understanding English Language that he read up to secondary school certificate level and again that the plea of the accused person as recorded by the trial judge shows clear compliance with the provisions of the law and while referring to the decisions in AKPIRU EWE VS. THE STATE (1992) 7 SCNLR (PT. 1) 59, (2) IDEMUDIA VS. THE STATE (2001) FWLR (PT.55) 549 AND (3) ADENIJI VS.THE STATE (2001) FWLR (PT. 57) 809, it was urged on as to hold that the arraignment was proper.
I start by saying that an arraignment consists of charging the accused and reading over and explaining to him in the language he understands to the satisfaction of the court and then followed with a plea. It is of great importance that the arraignment of an accused must comply with the provisions of Section 215 of the Criminal Procedure Act, Cap 80, Laws of the Federation of Nigeria which reads:
“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”
And Section 36(6) of the 1999 Constitution of the Federal republic of Nigeria which stipulates:
“Every person who is charged with a criminal offence shall be entitled:
(a) be informed promptly in the language that he understands and in detail of the nature of the offence”.
In recording the plea of the accused, the trial judge had written down this:
“PLEA- the information is read over and explained to the accused person in English. He pleads not guilty”.
Yes, it is true that strict compliance with the relevant provisions of the law and the Constitution to enable the court accord a verdict of validity to a plea proceeding. But it seems to me and indeed I have no doubt in my mind that the only reasonable inference from the nature of the plea proceeding, as recorded supra, is that the charge was read to the accused/appellant in the language he understands and that the learned trial judge was satisfied with the explanation of the charge to him (the appellant) before he pleaded guilty. The essence of this the absence of anything to the contrary, the trial Judge must be given the benefit of doubt that he or she could spare no efforts in seeing to the strict compliance with the provisions of the law. let me even go further to say that in murder cases, the like of the present one, even if the accused had pleaded “GUILTY” to the charge of murder after same should have been read and explained to him, the plea of “NOT GUILTY” while I concede that the aforesaid provisions are there to guarantee the fair trial of the accused person and to safeguard as such trial the requirement of strict compliance with the requisite provisions of the law must not be over-stretched to a ridiculous degree. Measure of confidence and counseling or let me call it a dictum of IGUH JSC in OGUNYE VS. THE STATE (1999) 5 NWLR (PT.604) 548 when at page 567 he opined:
“In as much I fully subscribe to the view that it is a good practice, and indeed desirable, that a trial Judge specifically records that a charge was read over and explained to an accused person to its satisfaction before he pleaded thereto my understanding of the authorities is not that unless the court so expressly records, as now urged upon as by the learned counsel for the 4th and 5th appellants, such an arraignment automatically becomes invalid and null and void. Without doubt, the law enjoins a trial court to be satisfied with the explanation of the charge to the accused person before he pleads thereto. I think, however, that the test with regard to this requirement is subjective and not objective. Clearly, where a trial Judge was not satisfied with the explanation of charge to an accused person, it seems to me that he would have directed that the same be further explained to him before his plea would be taken. Nothing of the sort happened in the present case.
There is nothing absolutely on record to suggest that the learned trial Judge was not satisfied with the explanation of the charge to the appellant.
I have had a careful reading of the whole record of proceedings. I also find anything suggesting that the accused/appellant did not understand the charge when read and explained to him. In fact, there is on record that the accused was educated up to the School Certificate Level. Issue No 1 is therefore not sustainable in favour of the appellant. It is consequently resolved against the appellant but in favour of respondent
On issue No 2 on reach of the brief of argument of the two parties the question that arises is whether the evidence PW1 and PW2 was hearsay and whether the court below was right in treating the evidence of the three eyewitnesses as unnecessary for the prosecution case. PW1 Adeleke Balogun and PW2- Tajudeen Kehinde mechanic and spring painter respectively gave evidence before the trial judge. PW1 said in his testimony thus:
“On 18/3/2001, I was at home at about 2 pm. I had shouts at the workshop. One Tosin came and told me that Omotanwa had been set on fire. As I was going there I saw the car of the deceased going out. I saw the deceased on grounds with burns. He explained that he siphoned petrol from one of the cars in my garage…
The accused then came and took the petrol and poured on the deceased, took a match, lit it and set fire on the deceased”
“I was at house when one Akeem came and informed me that the deceased was in hospital that the accused poured petrol on him. I went to Adeoyo Hospital to see the deceased. He told me that while he was siphoning petrol in his master’s workshop, one Yaya told him to kneel down. Then the accused came and poured petrol on him and set him on fire. The deceased died after 14 days”
The court below’s treatment of the evidence of PW1 and PW2 is as follows:
“PW1 and PW2 gave evidence of what they heard directly from the mouth of the deceased both at the scene of crime and at the hospital, he saw the deceased on the ground writhing in pain and with buries all over him. It was at that stage that the deceased narrated to him the unfortunate event which led to his predicament. This evidence cannot by any stretch of imagination be classified as hearsay since it relates to what he heard, he gave evidence that he heard it by himself from the deceased.”
The above pieces of evidence represent what the witnesses saw and heard from the deceased. Can these pieces of evidence be said to be inadmissible on the ground that they constitute hearsay
I agree with the trial judge (Justice Esan) that the evidence of PW2 cannot pass for a dying declaration for there being no proof that the deceased, when talking to PW2 he was under the apprehension that death was knocking at his door. See R. v. OGBUEWE (1949) 2 WACA 483.Be that as it may, Exhibits B and B1 the statement of the appellant where he said in Exhibit B and I quote:
“So, I said any time or everyday that we packed motor here you came to lick the fuel, he said no. I then asked him to bring the petrol fuel and I wet (sic) his cloth and I set fire on him”
and in Exhibit B1 another statement of the appellant where he said and I quote him:
“About the case filed against me on Tanwa Kehinde (M) I know that the said Tanwa is dead. Before his death, I travelled to Abidjan to look for money for his treatment. But I instructed my brother to sell my properties to be use (sic) in taking care of him. And they used the money to take care of him, but when I came I met him dead’”
Exhibit C as I have said above is the agreement which the appellant voluntarily entered into whereby he undertook to be responsible for monetary expenses incurred – the medical treatment of the deceased. Of course Exhibit B, B1, C and F are pieces of independent evidence, from the evidence of PW1 and PW2 which adversely affect the accused by connecting him with the crime. They richly corroborate the testimonies of PW1 and PW2. See OKABICHI & ORS VS. THE STATE (1975) 1 ALL N. L. R (PT.1) 71. Evidence of PW1 and PW2 is not hearsay afterall. Issue No 2 is therefore is therefore resolved against the appellant but in favour of the respondent.
On issue No.3, which poses the question as to whether failure to call the pathologist who performed the post-mortem examination on the deceased was fatal to the prosecution case, I wish to say that in a criminal case the prosecution is not duty bound to call all witnesses, the appellant on his brief has strenuously argued that failure to call the said pathologist to testify is fatal to the prosecution’s case. Suffice it to say that the respondent argued to the contrary. Exhibit F is the report of the pathologist admitted in evidence. The records of proceedings are replete with explanation as to why the pathologist could not be called. He had ceased to be in the employment of the respondent and his whereabouts remained unknown. But PW4 took custody of Exhibit F, indeed, by virtue of his duty, a Police Officer attached to the Homicide Section of State C.I.D. he obtained the statement Exhibit F from the pathologist. The need for the appearance in court of the pathologist did not arise. Again Issue No 3 is resolved against the appellant but in favour of the respondent.
The respondent raised a further issue which poses the question whether the prosecution proved its case beyond reasonable doubt. Suffice it to say that the appellant did not go to that extent in formulating his issues. I do not want to belabour this matter anymore. Suffice it for me to say that a reading of the whole record of proceedings leaves me in no doubt that the prosecution satisfied all requirements of proof of criminal case beyond reasonable doubt. That issue is therefore resolved in favour of the respondent.
In conclusion, for all I have said, this appeal is in my judgment, unmeritorious. It must be dismissed and it is accordingly dismissed. The judgment of the court below affirming the conviction and the sentence passed on the appellant by the trial court is also affirmed here.
SC.29/2008