Gbenga Oriyomi Adeboye V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, JCA (Delivering the Leading Judgment)

The appellant herein and two other persons were arraigned before the Kwara State High Court, holden at Ilorin (coram judice: Afolayan J) (hereinafter referred to “the lower court”) on March 18, 2008. They were charged with the offences of, criminal conspiracy to commit armed robbery; armed robbery and giving information to armed robbers as to who and where to rob contrary to sections 6 (6); 1 (2) (a) and 6 (a), respectively, of the Robbery and Fireams Act Cap R 11 Laws of the Federation of Nigeria 2004.

At the close of evidence, the appellant was found guilty of the offences of criminal conspiracy and armed robbery. The lower court convicted him, accordingly.

Aggrieved by that decision, he appealed to this court. He formulated three issues for the determination of this appeal from his six grounds of appeal. They were couched thus:

(1) whether the failure of the learned trial Judge to ensure a legal representation on the day of arraignment i.e. 18th March, 2008 has not denied the appellant his right to fair hearing.

(2) whether the appellant is bound to prove his innocence on the commission of the alleged offences against him.

(3) whether the learned trial Judge was right in relying on (sic) evidence of the pw2 without tendering the alleged confessional statement of the 1st accused Person/appellant.

(a) whether failure to provide the appellant the opportunity to cross examine PW4 has not robbed the appellant of his defences.

The respondents adopted the above issues: issues which will guide this court in the determination of this appeal, first issue one.

ISSUE ONE

(1) Whether the failure of the learned trial Judge to ensure a legal representation on the day of arraignment i.e. 18th March, 2008 has not denied the appellant his right to fair hearing.

Learned counsel for the appellant, first, pointed out that on March 18, 2008, the three charges were read to the appellant and the other two accused persons. They pleaded not guilty to the charges. He explained that although the appellant (as the first accused person) as well as the second accused person were not represented by any counsel on the date of their arraignment, the lower court failed and or refused to oblige them with the services of counsel. In effect, the lower court proceeded with the proceeding of the day even in the absence of their counsel. He, further, observed that on the same day, that is, March 18, 2008, the prosecution moved an application dated February 28, 2008 and filed on 3rd March, 2008, asking for the leave of the Court to supply additional exhibit and evidence in support of the charges. The said application, which was taken on that day, was brought pursuant to section 237 of the Criminal Procedure Code. He explained that during the final addresses, counsel pointed out this anomaly to the lower court but it still went ahead and convicted the accused Persons, citing page 121 of the record for the court’s findings in this respect.

Counsel submitted that the court’s position was unjustifiable against the background of the surrounding circumstances of the case. He, further, submitted that in a criminal proceeding, particularly, in capital offences as in the instant case, it is a fundamental right of an accused person to be provided with counsel where he is unrepresented, citing Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules 1975 and section 36 (6) of the 1999 constitution of the Federal Republic of Nigeria.

He canvassed the view that apart from violating the appellant’s right contained in Section 36 (6) (b) (supra), the proceedings of that day, also, contravened section 36 (c),of the said Constitution. He noted the operative phrases in the latter provision, namely , to “defend himself in person” and (b) “or by legal practitioners of his own choice.” He took the view that since it was not on record that the appellant opted to defend himself during the proceedings of the said 18th March, 2010 it was the duty of the lower court to ensure that the accused person was, duly, represented by counsel. This is so for the word “shall” use in section 36 (6) of the Constitution connotes a command which must be given a compulsory meaning, Bamaiyi v Attorney General of the Federation (2001) 12 NWLR (pt.727) 480.