Olatayo V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Akure division delivered on the 19th February, 2016 Coram. Mojeed Adekunle Owoade, Mohammed A. Dajuma, James Shehu Aribiyi (JJCA) which affirmed the decision of the trial Court delivered on the 13th January, 2014, by Hon. Justice R. A. Shiyanbola J of the Osun State High Court convicting the Appellant of the offence of Conspiracy, Murder and Indecent Assault of late Bilikisu which is contrary to Sections 324, 319(1) and 360 of the Criminal Code cap 34 Vol. II Laws of Osun State.

The Appellant was the 2nd defendant at the trial Court. The Appellant with one Fatai Ademola and Suraju Olanrewaju, Bilikisu Adeyemi (deceased) and Latifa were all sleeping in a room at Oke Abesu Street Osogbo. On 1st June, 2005, the Appellant and Suraju Olanrewaju at about 12am had sexual intercourse serially with Bilikisu Adeyemi who died in the process. The Appellant and Suraju Olanrewaju were charged to Court on 3 counts of Conspiracy, Indecent Assault and Murder. The charge was subsequently amended several times and last amendment was dated and filed on the 4th of April, 2008. The trial Court then held that based on the confessional statement wherein the Appellant and the co-defendant admitted they both had sexual intercourse with the deceased serially and stuffed her mouth with bread so she couldn’t shout for help meant they conspired to rape her which caused the death of the victim. The trial Court held that the confessional statement revealed they tried to resuscitate the deceased by pouring water on her but she died which means she died in the process and either the sexual intercourse or the suffocation from the bread could have led to the death of the deceased. The Appellant was sentenced to death by hanging.

Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal, Akure division for the determination of the issue whether the trial and conviction of the Appellant was not a nullity? The Court below in determining this issue held that although it is good practice for the Courts to record extensively that the charge was read and fully explained to the accused to the satisfaction of the Court, failure to do so will not render the trial a nullity.

The appeal was dismissed.

Further dissatisfied with the judgment or the Court below, the appellant has appealed to this Court vide a Notice of Appeal filed 1st March, 2016 containing two grounds of appeal.

The Appellant in their brief of argument settled by Prince Abioye A. Oloyede-Asanike Esq., formulated a sole issue for determination set out below as follows:

Whether the conviction of the Appellant or the lower Court and affirmed by the Court below was not a nullity.

Appellant filed a reply brief on 3rd of November, 2020. The Respondent in their brief of argument settled by Yemi Adesina, Esq., formulated a sole issue for determination not dissimilar from the issue distilled by the Appellant’s counsel.

For determining this appeal, I will adopt the issue distilled for determination by the Appellant.

SOLE ISSUE

Whether the conviction of the Appellant of the trial Court and affirmed by the Court below was not a nullity?

The main complaint of the Appellant on this issue is that when the plea of the Appellant was taken on 13/11/2007, the trial Court did not fully comply with S. 215 of the Criminal Procedure Act in that the Court did not indicate on the record that the charge was read to the Appellant in English Language, and subsequently translated to Yoruba Language and there was no indication on the record of proceedings the person who did the translation. Counsel also argued that the 2 policemen prosecution witnesses gave evidence in English Language and there were no evidence that an interpreter was in Court to interpret to the Appellant and his Counsel. Counsel argued that this is contrary to S.36(6) (a) & (e) of the CFRN. 1999. Counsel submitted that since no interpretation of the proceeding was done to the Appellant during the trial, the proceedings are completely vitiated moreso, as counsel for the Appellant is not of Yoruba extraction and the Appellant did not understand the evidence given against him in the language he didn’t understand. Counsel cited Akpiri Ewe V. the State (1992) 7 SCN 1 5 at Pg. 19, Kajubo v. The State (1988) 1 NWLR Pt. 73 Pg. 721, Eyorokoromo v. The state (1979) 6-9 SC 3, Counsel sought to distinguish the facts and resolution of FRN v. Ya’u Mohammed (2014) 3 SC 53 at 86 and Idemudia v. The State (1999) 5 SCNJ 47 from those of this case. Counsel submitted that:

1. The arraignment of the Appellant fell short of the requirements of the law.
2. Failure of the lower Court to interpret the proceedings of the Court to the Appellant is a breach of his constitutional right of fair hearing and has occasioned a miscarriage of justice.
3. The person who interpreted the charge to the Appellant having not being stated by the lower Court in its record vitiates the trial.

In reply, learned Respondent’s counsel argued that: