Peter Adewumi V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT M. O. KEKERE-EKUN, J.C.A (Delivering the Leading Judgment)

The appellant was arraigned before the High Court of Ondo State sitting at Akure on 23/02/2005 on a one count charge as follows:

“STATEMENT OF OFFENCE

ARMED ROBBERY contrary to and punishable under section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII, Laws of the Federation of Nigeria, 1990.

PARTICULARS OF OFFENCE

PETER ADEWUMI (M) and others at large on or about the 28th December 2001 at about 4.30pm at Value Tech Company, Ijare in Akure Judicial Division robbed one Jide Amodi the sum of N1000, Osuntuyi Fredrick the sum of N1, 650 and Value Tech company the sums of N40, 000.00 while armed with offensive weapons to wit guns and cutlasses.”

He pleaded NOT GUILTY to the charge. The prosecution called five witnesses and tendered exhibits. The appellant testified on his own behalf and called no other witness. At the conclusion of the trial, the learned trial Judge, in a considered judgment delivered on 4/5/06 found the appellant guilty as charged, He convicted him accordingly and sentenced him to death by hanging.

Being dissatisfied with the decision, the appellant filed a notice of appeal dated 10/5/06 containing four grounds of appeal. With the leave of this court he subsequently filed an amended notice of appeal containing eight grounds of appeal. In compliance with the rules of this court he filed an amended brief of argument dated and filed on 10/10/2011. In reaction thereto the respondent filed a brief of argument dated and filed on 27/3/2012 and deemed properly filed on 28/3/2012.

At the hearing of the appeal on 18/9/2012, CHINONYE OBIAGWU ESQ., adopted and relied on the appellant’s brief. He noted that the respondent did not reply to the submissions in respect of the appellant’s issue 3, which relates to the validity of his arraignment before the lower court. In further adumbration of the arguments in his brief he cited an additional authority: Okolie V. The State (2012) 1 NWLR (1281) 352 @ 378 on the effect of improper arraignment of an accused person. He urged the court to allow the appeal and discharge and acquit the appellant. MRS. A.O. ADEYEMI-TUKI, D.P.P. Ondo State adopted and relied on the respondent’s brief and urged the court to dismiss the appeal.

The appellant formulated the following issues for determination:

1. Whether the findings of the learned trial Judge in respect of the identity of the appellant as one of the robbers was not speculative and based on conjecture and or suspicion, therefore occasioned a miscarriage of justice against the appellant?
2. Whether the failure of the learned trial Judge to avail the appellant of the defence of alibi was not contrary to the totality of the evidence adduced before the trial court, in particular the defence put up by the appellant at the trial?
3. Whether the appellant’s arraignment at the trial court was not improper and consequently nullified the entire trial at the lower court.
4. Whether the prosecution has proved the case of armed robbery beyond reasonable doubt against the appellant?

The respondent adopted the appellant’s issues 1, 2 and 4 as the issues for determination in this appeal. As observed by learned counsel for the appellant, the respondent failed or neglected to address issue 3. I shall determine the appeal on the issues formulated by the appellant. Having regard to the fundamental nature of the arraignment of an accused person whereby failure to comply with the procedure for a valid arraignment would result in the entire trial being rendered a nullity; it would be prudent to commence the determination of the appeal with the appellant’s issue 3.

ISSUE 3

Whether the appellant’s arraignment at the trial court was not improper and consequently nullified the entire trial at the lower court.

Relying on Section 215 of the Criminal Procedure Act (CPA) and Section 36 (6) (a) of the 1999 Constitution learned counsel for the appellant submitted that the arraignment of the appellant was improper on the ground that although the record shows that the charge was read and interpreted to him in Yoruba language before he pleaded thereto, there is nothing in the record to show that the charge was explained to him before his plea was taken. He contended that the omission renders the trial a nullity. He referred to several authorities including Okeke V. The State (2003) 15 NWLR (842) 25. (2003) 2 SC 63 @ 71; Kajubo V. The State (1988) 1 NWLR (73) 721. Kalu V. The State (1998) 13 NWLR (294) 385; Ogunye V. The State (1999) 5 NWLR (604) 548; Okolie v. The State (2012) 1 NWLR (1281) 352 @ 379.