Esther Sokeye V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IKYEGH, J.C.A., (Delivering the Leading Judgment)

The appellant was convicted and sentenced to 18 months imprisonment for the offence of manslaughter contrary to section 325 of the Criminal Code Law (Cap.29), Laws of Ogun State, 1978, by the Ogun State High Court of Justice sitting at Abeokuta.

The case against her was that in the morning hours of 15.3.2003, there was an uproar in the premises of one Sokoye at No.5 Igbore Road Abeokuta. It involved a quarrel and fight between some of the children of the landlord and the care-taker of the premises. The deceased, a woman and one of the tenants, intervened and pacified them. Later in the evening of the same day, the appellant confronted the deceased along the corridor of the premises where she was cooking, close to her room. She queried her for intervening in the quarrel. Their interaction led to the appellant slapping the deceased first. It was followed by her push against a wardrobe; the push brought the deceased to the ground. The appellant then ran away.

The evidence for the respondent added that the deceased could not stand up from the ground. She was unable to talk. She held her chest, cried of chest pain. On the second day, her chest condition worsened. It caused her not to move. She was taken to the hospital, speechless, on 16.3.03 where she died on the 17.3.03; so ended respondent’s case.

Appellant’s evidence was to this effect. The deceased cursed her ceaselessly on the fateful day. Because she did not intervene in a fight between one Mowunmi and the brother of her husband. That her failure to intervene escalated the fight into a police case. But appellant cautioned her to steer clear of the matter, as it was a family affair not concerning her. The deceased retorted that appellant could not have spoken to her mother in such manner. She added that appellant would not live to see the following day. Appellant’s husband then escorted her away from the scene. News later reached them of deceased’s demise. The sad news surprised them. Appellant was arrested and prosecuted for her death.

It was against the backdrop of the above state of affairs that appellant appealed against her conviction and sentence in a notice of appeal comprising two grounds of appeal. She was given leave of court to argue the appeal on her brief of argument after respondent neglected to file a brief in the appeal.

Two issues for determination were formulated from the two grounds of appeal. They relate to the failure of the court below to take the plea of the appellant before proceeding with her trial as required by section 215 of the Criminal Procedure (sic) Act (C.P.L.) and section 36 of the Constitution of the Federal Republic of Nigeria, 1999, (1999 Constitution); and alleged improper evaluation of evidence by the court below. Issue (1) appears to connect the first ground of appeal, while issue (2) is attached to the second ground of appeal. The issues as framed are’ in my opinion, apposite.

It was contended on issue (1) that the charge sheet was not read and explained to the appellant, nor was her plea taken by the court below before it commenced the hearing of the case in breach of section 36 of the 1999 Constitution and section 215 of the C.P.L. There is substance in the above submission. The compiled record of appeal indicated the case first came up before the court below on 28.4.2004, where it was recorded that the appellant was present and represented by her counsel, A. Ogundeyi, Esq., while the respondent was represented by Mrs. A. A. Shobayo leading Mrs. O. Oke.

The next entry in the record of the court below was the preliminary examination of a minor of 13 years old who was presented as the first prosecution witness. Thereafter the evidence of the minor ‘a girl’ was taken, followed by the evidence of the other prosecution witnesses. Then, on subsequent dates, evidence for the defence was taken. It was followed by the final addresses of the parties. The judgment of the court below closed the proceedings.

It is very clear from the compiled record of appeal that the charge sheet was not read and explained to the appellant. Nor was her plea taken before the case against her proceeded to finality. The very foundation of a criminal trial – proper arraignment – was absent from the case. The omission or failure to read and explain the charge to the appellant as well as the absence of her plea in the proceedings was unfortunate and mortally struck at the root of the entire case. It is fatal and has rendered the entire proceedings a nullity, as rightly submitted by Mr. Agbebi for the appellant – see section 36(6)(a) of the 1999 Constitution and section 215 of the Criminal Procedure Law (C.P.L.) (not “Act” mistakenly stated in the appellant’s brief of argument). The effect of non-compliance with section 36(6)(a) of the 1999 Constitution and section 215 of the C.P.A., as happened here, is to render the whole proceedings null and void ab-initio. A case on all fours with this case is Salisu Yahaya v. The State (2002) 2 SCNJ page 1, a murder case, where the trial court omitted to read the charge to the appellant and; also, omitted to take his plea before it took evidence in the case and eventually convicted him of murder. The Supreme Court declared the proceedings null and void ab-initio in the lead judgment of Uwais, C.J.N. at page 9 of the law report thus:

“Now both the appellant and the respondent are at ad idem that there has been an infraction of the provisions of section 215 of the Criminal Procedure Law Cap. 30, which provides:-

“215. 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’”

At the time the trial purportedly commenced on 24th May, 1995, the applicable provisions of the Constitution were those of the Constitution of the Federal Republic of Nigeria, 1979. Section 33 subsection (6) (a) thereof states:-

“33(b) Every person who is charged with a criminal offence shall be entitled –