Paulinus Tobby (Alias Udo Ebby) V The State (2001) LLJR-SC

Paulinus Tobby (Alias Udo Ebby) V The State (2001)

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The appellant was in 1983 arraigned before the Ikot Abasi Judicial Division of the High Court of then Cross River State, now Akwa Ibom State on an information. The charge against him was that on the 10th day of October, 1980, at Ufet Ikpor, Ikot Akpan Obong village in the Ikot Abasi Judicial Division, he murdered one Akin Dick Udo Udo (f) contrary to section 319 of the Criminal Code, Laws of the Cross River State. The case suffered delays. Even though the offence was committed on 10th October, 1980, the information was not filed until February, 1983 and he was arraigned before Nkereuwem, J., on 15-2-84 when his plea was taken.

Hearing commenced on 16-1-85 before Nkereuwem, J. Three witnesses testified for the prosecution between 16th January, 1985 and 27th March, 1985. It suffered four adjournments and on 21st November, 1985 fresh plea was taken before Akpabio, J., (as he then was). It is not apparent on the record why the case started de novo. Only one witness out of eleven witnesses whose names appeared on the information testified before Akpabio, J. The others could not be traced by the prosecution despite series of adjournments granted by the court to enable the prosecution locate the remaining witnesses. On 13th January, 1987, Mrs. Nssien, a Senior State Counsel who appeared for the prosecution applied to the court to close the prosecution’s case since she could not locate the remaining witnesses. The application was granted. The defence opened and the accused testified and closed his case. Both counsel addressed the court and judgment was reserved by the learned trial judge.

Judgment was delivered on 27-4-87. The court found that the prosecution had proved its case against the appellant and he was accordingly convicted as charged and sentenced to death by hanging. His appeal to the Court of Appeal, Enugu Division was dismissed on 30-11-94, hence a further appeal to this court. In dismissing the appeal, Akintan, J.C.A., in the leading judgments to which Tobi, J.C.A., and Ejiwunmi, J.C.A., (as he then was) concurred, held as follows:

“I am satisfied that the trial court adequately considered the evidence adduced before it and came to a right conclusion. The appeal therefore, fails and I accordingly dismiss it. The verdict and sentence of death passed on the appellant by the lower court are affirmed.”

On 1-2-2001, when the appeal came up for hearing, Mr. Kayode, learned appellant’s counsel argued a motion filed on 9-11-2000 for leave of this court to raise fresh issues that were not raised in the court below which are the additional grounds 5 and 6. They are argued as issues (1) and (4) in the appellant’s amended brief of argument. Leave was also sought to amend the appellant’s brief of argument and to deem the amended appellant’s brief already filed as properly filed and served. The application was granted.

The respondent was not represented at the hearing of the appeal. A respondent’s brief signed by D. Archibong, Esq., Deputy Director of Public Prosecutions, Akwa Ibom State dated 27-12-2000 was filed on 18-1-2001 fourteen days before the hearing of the appeal. Since briefs were filed by the parties, the appeal is treated as argued and it is considered as such. See Rule 6 of Order 6 of the Supreme Court Rules, 1999.

The following five issues are identified in the appellant’s amended brief as arising for determining in the appeal:

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“1.Whether the entire proceedings before the Trial Court and the Court of Appeal was (sic) not illegal, unconstitutional, null and void, having been conducted in violation of:-

(i)Section 215 of the Criminal Procedure Law of Cross River State;

(ii)Section 33(6)(a) and (e) of the 1979 Constitution. (Ground 5)

2.Whether the Court of Appeal was right to have affirmed the judgment of the Trial Court which convicted the appellant when the prosecution failed to prove Appellant’s guilt beyond reasonable doubt. (Ground 1)

3.Whether the evidence of P.W. 1 merited the value placed on it by the Court of Appeal (and the trial court) (Ground 2)

4.Whether the Court of Appeal was right to have affirmed the judgment of the trial court which failed to consider all the defences open to the Appellant (Ground 6).

5.Whether the evidence of the accused person was admissible as a confession or at all (Ground 3).”

I am of the settled view that this appeal can be disposed of on issue (1) above. That being the case, it is unnecessary for me to set out the facts of the case in full. On 10-10-80, P.W. 1 and the deceased went out together. The deceased went to a Chemist Shop to buy medicine for her child while P.W.1 went to visit her daughter at her sister’s house, both in the same village.

When P.W.1 was returning from her sister’s house, she again met the deceased coming out from the Chemist Shop. They joined each other and walked homewards. At a point, the deceased started sneezing and stopped. P.W.1 walked on for a distance and stopped when she noticed that the deceased was not following her. As she turned round, she heard the deceased shouting “iya mi” (oh me!). P.W. 1 saw the back view of the appellant as he was running away from the scene. She recognised him as her brother. By this time, the victim was lying on the ground. P.W. 1 approached her and saw matchet cuts on her neck and she was no longer breathing. She raised an alarm and the villagers came out. A complaint was made to the police and the accused was later arrested and charged. The appellant was convicted on the evidence of P.W. 1. The investigating police constable was dead and the medical officer who performed the post mortem examination on the deceased was said to be overseas.

The plea which is the subject of the first issue for determination was taken on 21-11-85 before Akpabio, J. Part of the record of proceedings for that day reads:

“Accused present. Mrs. Nssien SSC (with her Mr. Omodora) for the State. No counsel for accused. Fresh plea taken and accused pleads not guilty.

The case is adjourned to 14th and 15th January, 1986 for definite hearing de novo. Fresh witness summons to be issued to all the witnesses. The defence counsel, Mr. S. Albert to be informed by letter. Accused remanded in prison custody.

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It was submitted by the learned appellant’s counsel that the trial court failed to comply with the mandatory provisions of section 215 of the Criminal Procedure Law of the Cross River State and section 33(6)(a)&(e) of the 1979 Constitution. He contended that non-compliance with the said provisions vitiated the entire trial together with the proceedings in the court below based on that trial. It was submitted in the respondent’s brief that there was substantial compliance with the requirements of section 215 of the Criminal Procedure Law. It was further argued in the respondent’s brief as follows:

“We concede that it is not stated on the record that the charge was read and explained to the appellant in any other language than the language of the court, i.e. English language. But we submit that it will be speculative to say that this was not done, and that appellant was a person of no education and thus did not understand English language as Appellant’s counsel has contended. There is nothing on record to suggest or support this contention. ………………………….. The fact that the appellant elected to testify in Ibibio without more is not sufficient to assume that he could not read or understand English, or that he is illiterate. (See the case of Oyebode v. Oloyede (1999) 2 N.W.L.R. Part 592 Page 523 at 525……”

The above submission of learned respondent’s counsel is a display of ignorance of the heavy responsibility placed on the court and other officers of the court by section 215 of the Criminal Procedure Law of the Cross River State and section 33(6)(a) of the 1979 Constitution. Counsel does not appear to appreciate the purport of these provisions. Section 215 of the Criminal Procedure Law Cap. 32 Laws of Cross River State which came into force on the 30th day of September, 1979 provides as follows:

“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.”

I had earlier in this judgment set out the purported plea of the appellant as recorded by the learned trial judge. It does not pretend to satisfy the conditions laid down in section 215. If anything, it is a mockery of what a plea under the law should be.

There is also the provision of section 33(6)(a) of the 1979 Constitution. S. 36(6)(a) of the 1999 Constitution provides thus:

“(6) Every person who is charged with a criminal offence shall be entitled to:

(a)be informed promptly in the language that he understands and in detail of the nature of the offence.”

The learned trial judge did not also comply with the above constitutional provision.

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There are numerous decisions of this court as to requirements of a valid plea and since it appears that trial courts do not advert to them, I will repeat them. A trial court must comply with the following essential requirements:

(a)the accused must be placed before the court unfettered unless the court shall see cause otherwise to order;

(b)the charge or information must be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court; and

(c)It must be read and explained to him in the language he understands;

(d) the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith.

The above-stated requirements of the law is mandatory and must therefore be strictly complied with in all criminal trials. As they have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest at such a trial, failure to satisfy any of them will render the whole trial defective and null and void. See the cases of Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721, Ere Kanuze v. The State (1993) 5 NWLR (Pt. 294) 385, Effiom v. The State (1995) 1 NWLR (Pt. 373) 507, Ewe v. The State (1992) 6 NWLR (Pt. 246) 147, Okoro v. The State (1998) 14 NWLR (Pt. 584) 181 and Ogunye & Ors. v. The State; (1999) 4 S.C. 30; (1999) 5 NWLR. (Pt. 604) 548.

The above decided cases are there for the trial courts to read. The requirements are so elementary now that those courts should not continue to ignore them.

I agree with the learned appellant’s counsel that there was non-compliance with the provisions of sections 215 of the Criminal Procedure Law and 33(6)(a) of the 1979 Constitution. It vitiated the trial of the appellant and rendered the whole trial null and void and also the proceedings in the court below based on that trial.

The issue of non-compliance with section 215 of the Criminal Procedure Law and section 33(6)(a) of the 1979 Constitution was not raised in the court below. It was raised and argued for the first time in this court after leave was granted. I have no doubt that the court below would have decided otherwise had the issue been argued before it.

In the final result, the appeal succeeds and I hereby allow it. The conviction and sentence of death imposed on the appellant are hereby set aside. I would have considered an order of retrial but having regard to the evidence of the sole witness, I am afraid that such a retrial will be an exercise in futility. The appellant is accordingly acquitted and discharged.


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