Sabina Chikaodi Madu Vs The State (2012)

LAWGLOBAL HUB Lead Judgment Report

OLU ARIWOOLA, J.S.C.

This appeal is against the decision of the Court of Appeal, Port Harcourt Division delivered on the 30th November, 2006 affirming the conviction and sentence of the Appellant to death for the murder of the deceased Nnenna Nwosu by the Abia State High Court presided over by Uzokwe, J.

The deceased Nnenna was discovered dead inside the septic tank in the premises where the Appellant and the 2nd Accused who is now deceased resided at No.17 1st Powerline. The deceased Nnenna was living with her family at No.16 Power line Abayi Ariaria.

The Appellant was charged with the murder of Nnenna Nwosu as follows:

“That you Sabina Madu (f) on the 30tn day of August, 2002 at No. 17 First Powerline Aba in the Osisioma Ngwa Magisterial District, did conspire with others now at large to commit felony to wit:

Murder and thereby committed an offence punishable under Section 324 of the Criminal Code Cap.30 Vol. II Laws of Eastern Nigeria 1963 as applicable in Abia State.”

Count Two:

“That you Sabina Madu (f) and others now at large on the same date and place and in the aforesaid Magisterial District, did kill one Nnenna Nwosu (f) and threw the corpse into a soak-away pit and thereby committed an offence punishable under section 319 (1) of the Criminal code cap.30 Vol.II, Laws of Eastern Nigeria 1953 as applicable in Abia State.”

The case proceeded to trial. At the end, the court convicted the Appellant and the deceased, 2nd Accused person for the murder of Nnenna Nwosu and consequently sentenced them to death.

The Appellant was dissatisfied with the judgment of the trial court hence appealed to the court below. The 2nd convict had died shortly after he was convicted and sentenced.

The court of Appeal, Port Harcourt Division after hearing the arguments of counsel dismissed the appeal and affirmed the conviction and sentence of the Appellant to death by the trial court.

The Appellant’s dissatisfaction led to the further appeal to this court which was initiated with the Notice of Appeal dated 16/12/2006 but filed on 26/01/2007. The said Notice of Appeal has seven (7) Grounds of Appeal.

Parties filed and exchanged their briefs of arguments.

When the appeal came up for hearing, Mr. Kemasuode Wodu of counsel to the appellant referred to the appellant’s brief of argument dated 26/04/2010 but filed on 8/5/2010. Having been filed out of time, sequel to an order of this court duly sought and obtained, the said brief of argument was deemed properly filed and served on 03/11/2010. Learned counsel adopted and relied on the said brief of argument as their submissions in urging the court to allow the appeal to discharge and acquit the appellant.

Chief Umeh Kalu, the Hon. Attorney General of Abia State, argued the appeal for the State. He referred to the respondent’s brief of argument filed on 12/10/2011 but deemed as properly filed and served on 13/10/2011. He referred to the four issues formulated by the Respondent from the Grounds of Appeal filed by the Appellant. He adopted and relied on the said Respondent’s brief of argument to urge the court to uphold the concurrent decisions of the two courts below in affirming the conviction and sentence of the appellant and dismiss the appeal.

In her brief of argument, the appellant formulated the following five (5) issues for determination.

Issues for determination:

“1. Whether the lower court was right when it upheld the conviction and sentence of the Appellant by the trial High Court, when the arraignment of the Appellant did not comply with the mandatory provisions of Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 and section 215 of the criminal Procedure Laws of Eastern Nigeria 1963 as applicable to Abia state. (Distilled from Grounds 1 & 2)

2. Whether the lower court was right when it relied on the evidence of the PW1, PW2, DW1 and DW2 in affirming the judgment of the trial court convicting and sentencing the Appellant to death for the alleged murder of the deceased. (Distilled from Ground 3)
3. Whether the Appellant was given fair hearing (Distilled from Ground 4).
4. Whether the lower court was right when in affirming the conviction and sentence of the Appellant to death by the trial court, it relied on the alleged piece of evidence that the Appellant was the person with whom the deceased was last seen alive. (Distilled from Ground 5)
5. Whether the prosecution proved its case against the Appellant beyond reasonable doubt to warrant the lower court to have sustained or upheld the conviction and sentence of the Appellant to death for the Murder of the deceased Nnenna Nwosu. (Distilled from Grounds 6, 7, 8, 9, 10, 11 12, 13, 14 and 15).

The Appellant in her brief of argument argued the above issues seriatim.

Issue No.1

The appellant referred to the record of the trial court on the day she was arraigned and her plea taken on 2/3/2004. She contended that the record did not indicate or state the language in which the charge was read and explained to the appellant. Reference was made to Section 215 of the Criminal Procedure Laws of Eastern Nigeria, 1953 as applicable to Abia State. It was contended that before there could be a valid arraignment of an accused person, the following conditions must be met:-

1. The accused person must be placed before the court unfettered, unless the court otherwise orders.
2. The charge or information must be read over and explained to the accused person to the satisfaction of the court and thereafter.
3. The accused person must be instantly called upon to plead to the said charge.

He relied on the following cases; Udeh vs. State (1999) 7 NWLR (Pt.609) 1 at 20 & 22 Ogunye vs. State (1999) 5 NWLR (pt.604) 548 at 555, Ideomudia vs State (1999) 7 NWLR (Pt.610) 202 at 214.

Learned appellant’s counsel referred to section 36 (6) of the 1999 constitution and submitted that the trial of the appellant did not comply with the requirement of the Law hence it was in breach of the appellant’s right to fair hearing rendering the proceedings null and void.

He cited several cases, including Ogunye vs State (supra) Sunday Kajubo vs State (1988) NWLR (pt.73) 721 at 732, Ere Kanure vs State (1993) 5 NWLR (Pt.294) 38s, Anyakora vs Obiakor (2005) 5 NWLR Pt.919) 507 at 532-533.

Learned counsel submitted that the trial court did not comply with the mandatory requirement of the constitution. He contended that it can be reasonably presumed that the charge was read and interpreted to the appellant in English Language being the official language of the court, but not her native language which is Igbo. He submitted that failure to record the language in which the charge was read and interpreted has vitiated the entire trial and conviction of the appellant by the trial court.

Learned counsel further submitted that the appellant was not validly arraigned before the trial court hence the appellant’s trial, conviction and sentence by the trial court are null and void. He urged the court to hold that the court below ought not to have affirmed the judgment of the trial court. He urged the court to resolve the issue in favour of the appellant.

Issue No.2

The appellant contended that the court below, in affirming the judgment of the trial court relied on the evidence of PW1, PW2, DW1 and DW2. He relied on the 12 species of evidence. The appellant contended further that all the said 12 species of evidence except the 9th and 10th species were based on the evidence of the said PW1, PW2, DW1 and DW2. The 9th and 10th species of evidence dealt with the evidence of the Medical Doctor (DW4) as to the cause of death of the deceased.

The appellant referred to the testimony of the PW1, PW2, DW1 and DW2 and contended that having testified in their native Igbo language, there is nothing on record to show that the testimony was interpreted to the trial court in the language of the court.

Learned counsel submitted that the evidence of those witnesses was not admissible before the trial court hence the trial court was wrong to have admitted the evidence and relied on it to convict the appellant. He urged the court to expunge the evidence of the witnesses which were not admissible but admitted wrongly and relied on by the trial court and the court below. He cited Owonyin vs. Omotosho (1961) 2 SCNLR 57 at 61, Shanu v. AFribank (Nig) Plc (2002) 17 NWLR (Pt….) 221 at Olayinka v. The State (2007) 9 NWLR (Pt.1040) 561 at 577-578.

Learned counsel submitted that the effect of expunging or excluding the aforesaid piece of evidence from the record is that there would no longer be any basis or foundation for the decision of the court below in affirming the conviction and sentence of the appellant to death by the trial court. He urged the court to resolve this issue No.2 in favour of the appellant.

Issue No.3

This is whether the Appellant was given fair hearing. Learned counsel to the appellant submitted that it is mandatory for any person charged with a criminal offence to be heard in his defence before he is convicted for the commission of any such offence. He referred to the principle of ‘Audi alteram partem’, and submitted that whenever there is any breach of that principle, the entire proceedings wherein the breach occurred are rendered null and void. He cited, Okafor Vs. A.G. Anambra State (1991) 6 NWLR (Pt.200) 649 at 578.

Learned counsel submitted that the appellant’s right to fair hearing was grossly violated in the proceedings before the trial court as she was not heard in her defence. He referred to the evidence on record where the appellant testified as DW1 and spoke in her native language of Igbo but her testimony was not interpreted to the court in the language of court. He urged the court to hold that the testimony of the Appellant before the trial court was not interpreted to the court which he said meant that the appellant was not heard in her defence. He contended that whatever the trial court may have ascribed to the Appellant as her evidence before the court at best can only be matters of conjecture or speculation and courts of law do not embark on speculation. He relied on ACB Plc Vs N.T.S {Nig} Ltd (2007) 1 NWLR (Pt.1016) 596 at 628. He urged the court to hold that in the peculiar circumstances of this case, the trial court breached the Appellant’s fundamental human right to fair hearing when it went on to convict and sentence the appellant to death for alleged murder without hearing from the appellant.

Learned counsel submitted that the consequence of such a finding by the court is that the entire trial, conviction and sentence of the appellant by the trial court is null and void. He went further to say that if the appellant’s trial, conviction and sentence to death by the trial court is null and void, then the court below could not have rightly affirmed or upheld the appellant’s conviction and sentence. He urged the court to resolve Issue No.3 in favour of the appellant.

Issue No.4

This is whether the lower court was right when in affirming the conviction and sentence of the appellant to death by the trial court, it relied on the alleged piece of evidence that the appellant was the person with whom the deceased was last seen alive

The appellant referred to the findings of the court below in upholding the conviction and sentence of the appellant with the reliance on the alleged fact that the appellant was the last person with whom the deceased was seen alive and the principle that that person is the one that killed the deceased. Reference was made to several decided cases where this court had relied on the above principle to uphold conviction and sentence such as; Nwaeze Vs State (1996) 2 NWLR {Pt.428} 1 at 16, lgho Vs The State (1978) NSCC Vol.II 166 at 108, Emeka Vs State (2001) 14 NWLR (Pt.734) 556 at 685, Igabele vs State (2006) 5 NWLR (Pt.975) 100 at 121.

Learned counsel contended that the above principle is not rooted in law but in common sense. He submitted that the upholding of the conviction and sentence of the appellant by the court below in reliance on the principle that she was the last with whom the deceased was seen alive, constitutes a grave violation of the appellant’s fundamental human right to the presumption of innocence preserved in Section 36 (5) of the 1999 Constitution. He cited; Ubanatu Vs COP (1999) 7 NWLR (Pt.611) 512 at 522. He submitted further that a breach of that presumption completely nullifies the proceedings in which the breach occurred. He relied on Adeyemi vs State (1991) 6 NWLR (Pt.195) 1 at 29.

Learned counsel contended that if an accused person is deemed to be innocent until proven guilty, such an accused person cannot be made to prove his innocence by offering some explanation simply because the deceased was last seen alive in his company and where he fails to offer any acceptable explanation then he would be presumed to be the killer of the deceased.

Learned counsel contended further that the law has always been static that it is the prosecution that must prove the guilt of the accused person beyond reasonable doubt and not the other way round, that is, the Accused person proving his innocence. He cited Ahmed v. State (1999) 7 NWLR (Pt.612) 641 at 669, section 138(1) & (2) Evidence Act.

Learned counsel contended that if at the close of the case of the prosecution, the only evidence adduced by the prosecution is that the deceased was last seen alive in company of the Accused person, there is obviously no case made out against an accused person to require him to enter into his defence. He submitted that the court ought to accordingly discharge the accused person under section 286 of the criminal Procedure Law.

Learned counsel referred to a couple of decisions of this court where the principle of person with whom the deceased was last seen alive being the one to explain what killed the deceased. And some cases where the court had held otherwise. He contended that this court has the power to overrule itself on its decisions previously held and now hold that it is not a correct law to hold the person with whom a deceased was last seen alive, responsible for the death of the deceased or at least an explanation of what killed him.

He urged the court to resolve the issue in favour of the appellant and accordingly overrule all the decisions of this court where the said principle was applied, that the person in whose company a deceased was last seen alive is the person who killed the deceased.

Issues No.5

This is whether the prosecution proved its case against the appellant beyond reasonable doubt to warrant the lower court to have sustained or upheld the conviction and sentence of the appellant to death for the murder of the deceased Nnenna Nwosu.

Learned counsel submitted that for an accused person to be convicted for the commission of any offence, the prosecution must prove the guilt of the Accused beyond reasonable doubt. He referred to Section 138 of the Evidence Act and Ajisosun Vs State (1998) 13 NWLR (Pt.581) 230 at 256-260.

He submitted that where there is any doubt in the case of the prosecution, such doubt must be resolved in favour of the Accused person. He relied on Onyejiaka vs State (197) 11 NWLR (pt.530) 645 at 651.

Learned counsel contended that in the case in hand, the prosecution which relied on circumstantial evidence woefully failed to prove its case against the appellant, who was the 1st Accused person in the trial court, beyond reasonable doubt.

Reference was made to the record of proceedings at several pages for the facts relied on by the prosecution, the findings of the trial court and the reason why the court below upheld the decision of the trial court and affirmed the conviction and sentence of the appellant.

Learned counsel contended that the appellant, by her testimony under cross examination denied knowledge of the pregnancy of the deceased. That there was no other evidence before the trial court that the appellant knew that the deceased was pregnant or that the appellant carried out abortion on her or advised her to carry out abortion.

Learned counsel submitted that in view of the fact that the appellant could not be linked with the commission of abortion on the deceased which allegedly led to her death, it was wrong for the trial court and the court below to have held that it was the appellant that caused the death of the deceased by abortion.

He referred to the findings of the trial court and urged the court to hold that there was no evidence before the trial court to justify such finding that the appellant was responsible for the alleged abortion or murder of the deceased.

It was contended that the circumstantial evidence relied upon by the prosecution does not exclude the possibility of the alleged abortion to have been committed by someone else such as a quack doctor who may have unsuccessfully carried out an abortion of the alleged pregnancy of the deceased.

Learned counsel submitted that the circumstantial evidence to be sufficient to find the conviction of an accused person, it must exclude the possibility of any other person committing the offence in question. He relied on; Anekwe Vs. The State (1975) NSCC Vol.10 page 558 at 562.

Learned Counsel referred to the evidence of PW4 which attributed the cause of the death of the deceased to laceration in the womb which could have been caused by a sharp object application from a long or short sharp object. He submitted that where the prosecution in a case of murder with an object such as machete or other sharp objects, relies on circumstantial evidence, for such circumstantial evidence to lead to a conviction for murder, the accused person must have been seen with the said object, possibly bloodstained shortly after the commission of the offence or same recovered from the said accused person. He cited, State Vs Ogbubunjo (2001) 2 NWLR (pt. 698) 576 at 591 Ukorah Vs The State (1977) NSCC Vol. II 218/223 Okafor Vs State (1990) 1 NWLR (Pt.128) 614 at 626.

It was contended that in this case there was no evidence before the trial court to the effect that the appellant was seen with a sharp object shortly after the death of the deceased or any sharp object recovered from the appellant’s house. He submitted that the conviction and sentence of the appellant to death by the trial court and the upholding of same by the court below are against the weight of evidence adduced before the court.

The appellant further contended that other areas where the prosecution left with grave doubts exclude the evidence of the date and time of death of the deceased. He submitted that this court had cause to set aside the conviction of an accused person for murder, inter alia, on account of failure of the prosecution to prove the time of the death of the deceased in question. Cited Aigbadion Vs. State (2000) 7 NWLR (Pt.666) 686, 701-702.

He submitted that where an accused person pleads an alibi and the alibi was not investigated by the prosecution, the court is bound to discharge and acquit such an accused person. He cited Mustapha Vs. State (2007) 12 NWLR (pt.1049) 637 at 658, Isiekwe vs. State (1999) 9 NWLR (Pt.617) 43 at 65.

Learned counsel urged the court to hold that the lower court erred when it held that the appellant caused the death of the deceased and affirmed the appellant’s conviction and sentence to death by the trial court when the prosecution failed to prove its case beyond reasonable doubt.

He urged the court to resolve Issue No.5 in favour of the appellant and thereby allow the appeal, set aside the judgment of the trial court which convicted and sentenced the appellant to death for the murder of the deceased Nnenna Nwosu and the affirmation of same by the court below.

The Respondent in its brief of argument also formulated four (4) Issues from the Grounds of Appeal filed by the Appellant, for determination of the appeal by the court. The said issues are as follows:-

“1. Whether the absence of evidence or note by the trial Judge showing that the charge was read and explained to appellant in a language she understands and that the proceedings were interpreted rendered the trial of appellant a nullity.

2. Whether the appellant was denied a fair hearing by the mere fact that PW1, PW2, DW1 and DW2 testified in Igbo language at the trial court.
3. Whether the circumstantial evidence relied upon by the learned trial Judge in convicting the appellant (which said conviction was affirmed by the court below) was cogent, positive and compelling enough.
4. Whether the court below was not right in affirming the conviction and sentence of the appellant as the case of the prosecution was proved beyond reasonable doubt.

The brief of argument was settled by the Hon. Attorney General of Abia State, Chief Umeh Kalu who also argued same. He took the issues seriatim.

Issue No.1

Learned Attorney General referred to the proceedings of the trial court on 2nd March, 2003 when the plea of the appellant was taken upon her arraignment with the 2nd accused person. He indicated that the record shows that the charge on information was read and explained to both accused and each of them pleaded NOT GUILTY respectively.

Learned counsel referred to Section 215 of the Criminal Procedure Law of Eastern Nigeria, 1963, applicable in Abia State and Section 36 (5) (a) and (e) of the 1999 constitution. He referred in particular to the three requirements of Section 215 of the CPL which must coexist and submitted that the three requirements coexisted in the instant case. He contended that the complaint of the appellant is not that she was placed before the trial court fettered, neither is it that he was not called upon to plead instantly thereto, rather her complaint was that it appears that the charge or information was not read over and explained to the accused in the language she understands.

He referred to page 40 of the record of proceedings to show that the trial Judge recorded that the charge on the information was read and explained to the two accused persons. He submitted that the mandatory requirement was complied with by the trial court.

Learned Attorney General contended that when the learned trial judge recorded that charge was read and explained to the accused persons, it means that the said count or information was read in English language and explained/translated to Igbo language to the accused persons who testified in Igbo language at the trial.

He submitted that in the Southern States there is no compulsion on trial Judges to record the fact of interpretation, whereas in the Northern States, there is such a provision to record the issue of interpretation vide-section 241 of the Criminal Procedure Code. The only requirement in the Criminal procedure Law for interpretation is Section 35(5) (a) and (e) of the 1999 Constitution. He relied on Edwin Ogba Vs. The State (1992) 8 LRCN 362 at 399, Per Belgore, JSC (as he then was). Queen Vs Eguabor (1952) 1 All NLR 286, per Brett, F.J at pp. 290-291 Godwin Anyanwu Vs. The State (2002) 13 NWLR (Pt.703) 107, Peter Locknan & Anor Vs The State (1972) All NLR 498; State v. Salih Mohammed Gwonto (1983) All NLR 109. Nwachukwu Vs. The State (2007) 17 NWLR (Pt.1062) 31 Pele Ogunye & Ors V. The State (1999) 88 LRCN 699.

Learned Attorney General submitted that the appellant and the co-accused were represented by their respective counsel before the trial Judge. Both counsel participated in the trial from the beginning to the end without any complaint or objection from either of the counsel. Whereas, it is the appellant’s duty or that of her counsel to have objected to the proceedings if she had any complaint. Not having done so at the trial court, it is too late now so to do. He cited; Francis Durwode V. The State (1997) 1 NWLR (Pt.482) 306 at 402.

Learned Attorney General submitted further that there was no breach of the mandatory provisions of the Constitution and the Procedural Law. The appellant understood the charge read out to her and the fact that she was standing trial for murder. He said there was no procedural irregularity in the trial. He urged the court to resolve the issue in favour of the Respondent.

On Issue No.2, whether the appellant was denied fair hearing by the fact that the PW1, PW2, DW1 and DW2 testified in Igbo Language at the trial court learned Attorney alluded to various decisions of this court and court below on the meaning of “fair hearing”. They include Oloruntoba-Oju Vs Abdulraheem (2009) 13 NWLR (pt.1157) 83 at 142. Amamchukwu vs. FRN (2009) 8 NWLR (pt.1144) 475 at 486- 487 A-G of Kwara state vs. Abolaji (2000) 7 NWLR (Pt. 1139) 199.

He submitted that in the instant case, the appellant was afforded an opportunity to be heard at the trial court. She took her plea after the charge was read and explained to her. She cross examined the prosecution witnesses through her counsel. She defended herself in a language she understands, that is Igbo language. She was present on all day(s) the matter came up.

Learned Attorney submitted further that there is no evidence on record that the appellant did not understand Igbo or English Language, as the case may be. Therefore, if neither the accused person (Appellant) nor her counsel demanded the former’s right to interpretation nor objected to the absence of an Interpreter, the right is lost for all time and cannot be invoked on appeal. No right of the appellant was breached at the trial court. The appellant was given fair hearing. He urged the court to resolve Issue No.2 in the negative and in favour of the Respondent.

Issue No.3 is whether the circumstantial evidence relied upon by the learned trial Judge in convicting the appellant, which said conviction was affirmed by the court below was cogent, positive and compelling enough.

Learned Attorney General contended that the fact that the appellant was the person with whom the deceased was last seen alive, is just one of the many species of evidence from which the learned trial Judge drew the inference that the appellant and her co-accused killed the deceased. The conviction and sentence was affirmed by the court below.

He submitted that even though there is no direct evidence of someone who saw the appellant committed the offence of murder of the deceased, there were enough circumstances that warranted the learned trial Judge to draw the inference. He cited Ude-Dibie & Ors Vs The State {1976) 1SC 133.

Learned counsel referred to the circumstantial evidence relied upon by the prosecution at pages 103-105 of the record of proceedings which was accepted by the court below and reproduced by the court at pages 193-195 of the record. He submitted that the court below was right in affirming the conviction and sentence of the appellant, as this court has maintained that where direct eye witness account is not available, the court may infer from the facts proved, the existence of other facts that may logically tend to prove the guilt of the accused person. He relied on Olusola Adepetu V. The State (1996) 61 LRCN 4519-4543, Chima Ejiofor v. The State (2001) 86 LRCN 1318 at 1344.

Learned Counsel referred to portions of the testimony of the appellant and her attitude, after she discovered the deceased’s body in the soakaway or septic tank. He submitted that there are no other co-existing circumstances which can weaken the inference of her guilt. Cited; Philip Omogodo Vs. The State (1981) SC 5 at 24.

On the doctrine of “last seen” which means, in effect, that the law presumes that the person last seen with the deceased bears full responsibility for his death if it turns out that the person last seen with him is dead. He relied on Igabele Vs. The State (2005) 139 LRCN 1831, Nwaeze Vs State (1996) 2 SCNJ 4t-61. Gabriel Vs. State (1989) 3 NWLR (Pt.122) 457.

On whether this court should depart or overrule itself from its previous decisions, based on the doctrine of “last seen” learned counsel contended that the request is untenable. He contended that the facts of the previous decisions of this court are on all fours with the case in hand. He urged the court to refuse the invitation to overrule itself on the age long doctrine of “last seen”. And resolve Issue No.3 against the appellant.

On Issue No.4 whether the court below was not right in affirming the conviction and sentence of the appellant as the case of the prosecution was proved beyond reasonable doubt, the learned Attorney General submitted that in a charge of murder, the duty on the prosecution is to establish –

(a) That the deceased died;

(b) That the act or omission of the accused which caused the death of the deceased was unlawful and;

(c) That the act or omission of the accused must have been intentional with knowledge that death or grievous bodily harm was its probable consequence.

He relied on; Alewo Abogede Vs. The State (1996) 37 LRCN 674, Godwin Igabele Vs The State (Supra) Idiok Vs. The State (2010) 8 LRCN 96.

He submitted that the guilt of an accused person can be proved or established by the confessional statement of the accused or by circumstantial evidence or by evidence of an eye witness of the crime. He cited; Emeka v. The State (supra) Adekunle v. The State (2006) 5 LRCN.

He submitted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence, of course, it is possible but not in the least probable, the case has been proved beyond reasonable doubt. He submitted that the prosecution proved his case against the appellant beyond reasonable doubt. The court below was right in affirming the conviction and sentence to death of the appellant by the trial court.

Learned counsel referred to the concurrent findings of facts by the two courts below. He submitted that as there is no perversion in this case, this court should not disturb the said concurrent findings of facts of the courts below, but uphold same to dismiss the appeal and affirm the judgment of the court below.

I have considered the respective issues for determination formulated and argued by both the appellant and Respondent. There is not much difference. This appeal will therefore be determined by the issues formulated by the appellant.

Issues 1, 2 & 3 formulated by the appellant shall be taken together. They all point at the same direction, that, if the plea was not properly taken when the appellant was arraigned before the trial court and the evidence of prosecution witnesses was taken in the language the appellant does not speak or understand, then she would be right to say that she was not given fair hearing by the trial court, hence the trial, conviction and sentence by the trial court would be a nullity and then there would be no basis for the court below to affirm the conviction and sentence of the trial court.

The appellant’s complaint is that since her arraignment before the trial court did not comply with the mandatory provisions of section 35(5) (a) of the 1999 Constitution of the Federal Republic of Nigeria, and Section 215 of the Criminal procedure Law of Eastern Nigeria, 1963 as applicable in Abia State, the Court below was wrong to have upheld the conviction and sentence by the trial court.

What are these requirements Section 36(6) (a) states thus:

“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 details of the nature of the offence.”

Section 215 of the Criminal Procedure Law of Eastern Nigeria reads thus:-

“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.”

The learned counsel had contended that the appellant as an Ibo woman, she speaks Igbo language which was not the language of the court.

From the record of proceedings, it is clear that the plea of the appellant was taken on 2nd of March, 2003 by the trial court. The two accused persons, that is, the appellant and the deceased, 2nd Accused were present in court. On pages 40 – 41 of the records, it is stated as follows:

“Court:- Charge in information is read and explained to the Accused persons who Plead as follows:-

Count 1. – 1st Accused – Not guilty

2nd Accused – Not guilty.”

The case, after the plea of the accused persons was taken, was adjourned to a later date for hearing. And on the next adjourned date, which was 30/3/2004, the two accused persons were present in court and adequately represented by counsel, the case proceeded to hearing with the first PW testifying.

In compliance with Section 215 of the Criminal Procedure Law, for the arraignment of an accused person to be valid, the following three essential requirements must be met:-

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

(b) The charge or information shall 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) The accused shall then be called upon to plead, thereto unless of course, 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.

See; Oguniye Vs The State (1999) 5 NWLR (Pt.604) 548 at 555 Idemudia vs The State (1999) 7 NWLR (Pt. 610) 202 at 204.

There is nothing on record to dispute the fact that the trial court in the instant case complied with the mandatory requirement of the Constitution and the Law. The appellant was arraigned before the trial court unfettered, the charge was duly read and explained to the appellant and she was called upon by the court to plead to the charge, to which she accordingly pleaded and was so recorded.

If the charge had been read to the accused without an explanation in the language she understands, she should have said so, or her counsel should have raised an objection. That is, at least, the natural human reaction.

In Paul Onyia Vs. The State (2008) 12 SCM (Pt.2) 520 at 631, a case in which the accused person speaks Igbo which is not the language of the court but where the information was read out in English and explained in Ibo language to the accused person, this court on appeal for an alleged failure to comply with the requirement of the law, opine as follows:-

“It is a common spontaneous human reaction in court for an accused person who does not understand the language used to say so openly in court or protest that he needs an interpretation to the language that he understands.”

See also; Madu Vs State (1997) 1 NWLR (pt.482) 386; Nwachukwu Vs The State (2007) 12 SCM (Pt.2) 447.

It is therefore unfortunate for the appellant’s counsel to have submitted that “the non statement of the language that the charge or information was read and interpreted to the appellant in the trial court clearly shows that the charge or information was not read to the appellant and interpreted in Igbo language which the appellant understands and spoke in the trial court.” There was no sincerity in the statement of the counsel and the argument lacks merit. It is clear from the record and the appellant did not complain that she did not understand the charge or information.

Furthermore, it is clear on record, that the appellant and DW2 testified in court in Igbo language. See pages 55-57 of the record of proceedings. In the same vein, PW1 and PW2 also testified in Igbo language, same language spoken and understood by the appellant. See pages 41-47 and 57-62 respectively of the record of proceedings.

It is note worthy that throughout the hearing, the appellant was present in court and was represented by counsel of her choice who dutifully cross examined the prosecution witnesses.

It is the duty of the appellant and counsel to raise the Issue before the trial court, that she did not understand the language being spoken by the prosecution witnesses. If after such objection was raised the court overruled it and yet proceeded with the case, the story would have been different. Not having stated that an objection or complaint was raised or made, it is safe in my view, to assume that the appellant had no cause to complain. See; Francis Durwode Vs The State (2000) 82 LRCN 3038 at 3065 (2001) FWLR (Pt.36) 950 at 971-2 in which case this court opine as follows:-

“in the realm of criminal Justice, it is the cardinal principle of our criminal jurisprudence that it is the duty of the accused or his counsel acting on his behalf to bring to the notice of the court the fact that he does not understand the language in which the trial is conducted otherwise it will be assumed that he has no cause of complaint.”

See also; Adeniji Vs State (2001) FWLR (Pt.57) 809 at 817

Earlier, this court per Adio, JSC (of blessed memory) in Mallam Madu Vs. The State (1997) 1 NWLR (Pt .482) 306 at 402, had stated thus:

“The fact that the accused does not understand the language which the trial court is being conducted is a fact well known to the accused and it is for him or his counsel to take the initiative of bringing it to the notice of the court at the earliest opportunity or as soon as the situation has arisen. If he does not claim the right at the proper time he may not be able to have a valid complaint, after wards, for example on appeal.”

I am therefore convinced, that the court below was right in affirming the judgment of the trial court, relying on the evidence of PW1, PW2, DW1 and DW2 all of who spoke and understood Igbo language in which each of them testified.

Accordingly, and without any further ado, Issues 1, 2 and 3 are hereby resolved against the appellant.

Now to the other Issues –

Issues No.4 and No. 5 are, whether the lower court was right when, in affirming the conviction and sentence of the appellant to death by the trial court, it relied on the alleged piece of evidence that the appellant was the person with whom the deceased was last seen. And whether the prosecution proved its case against the Appellant beyond reasonable doubt to warrant the lower court to have sustained or upheld the conviction and sentence of the Appellant to death for the murder of the deceased, Nnenna Nwosu.

As earlier noted in this judgment, the Appellant was charged, tried, convicted and sentenced to death for the offence of murder of one Nnenna Nwosu

According to the Criminal Code, an offence of Murder is committed when a person unlawfully kills another under any of the following circumstances, that is to say:

– If the offender intends to cause the death of the person killed, or that of some other person;

– If the offender intends to do to the person killed, or to some other person some grievous harm;

– If death is caused by means of an act done in the prosecution of an unlawful purpose, which act of such a nature as to be likely to endanger human life;

– If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence.

– If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;

– If death is caused by wilfully stopping the breath of any person for either of such purposes;

In the second case above, it is immaterial that the offender did not intend to hurt the particular person who is killed.

In the third case, it is immaterial that the offender did not intend to hurt any person. In the three last cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.

It is trite law, that in a charge of murder, the burden is on the prosecution to prove that the deceased died, that the death was caused by the accused; that the accused intended to either kill the victim or grievously harm him. See: Durwode Vs. The State (Supra) Idemudia Vs State (2001) FWLR (Pt.55) 549 of 564, Akpam Vs. State (2001) FWLR (Pt.56) 735.

In other words, in a murder charge, prosecution owes it a duty to discharge by proving the death of victim, responsibility of accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death. The prosecution must prove that the act or omission caused death but not that it could have caused death. See: Ubanu & Ors Vs State (2004) FWLR (Pt.191) 1533 at 1546, Godwin Igabele Vs The State (2005) 3 SCM 143 at 151, Alewo Abogede Vs State (1996) 5 NWLR (Pt.448) 270.

The issue in contest bothers on the doctrine of “Last Seen”. That is, if a person who was last seen alive in the company of another is found dead, that other in whose company the deceased was last seen alive in law is presumed to bear full responsibility of the death of the deceased.

There is no doubt that in this case, there was no direct eye witness to the murder of the deceased by the appellant. What the trial court relied on was circumstantial pieces of evidence after having duly warned himself on the danger in basing the court’s decision on circumstantial evidence in the absence of any eye witness. Indeed, the circumstantial pieces of evidence which the prosecution relied on and found by the trial court are as follows:-

“- The 1st accused, though much older than the deceased, was a close friend of the deceased, according to the prosecution witnesses and the accused person. 1st accused admitted that the deceased used to take care of her baby, she was the only friend deceased used to…. and the deceased kept her house keys with her. It was also the evidence of pw1 which I accept to be true that 1st accused and his wife were friends right from the time they moved into their present residence opposite accused person’s house. That before his wife left for the village in 1998 she asked first accused to be taking care of their 17 year old child in her absence.

– The 2nd accused admitted that he was the deceased’s boy friend and had sex regularly with her. That it was 1st accused who earlier told him that the deceased was his (sic) sister, that introduced the deceased to him.

-The deceased was last seen alive on 30/8/02 with the accused persons (according to their own admission).1st accused said deceased followed her half way to the market while 2nd accused said she came to him to ask for money.

– PW2 saw the accused persons patrolling the backyard of the premises, but ignored them because he thought they were going to have sex.

– The body of the deceased according to the admission of the accused persons was later seen in the septic tank in their backyard and not that of the deceased.

– The two accused persons up till 1/9/02 were the only persons that knew the body was in the septic tank, i.e. two whole days before the 2nd accused decided to let the cat out of the bag by telling PW2 (the Caretaker) because, according to him, the deceased appeared to him in a dream and demanded to know why he left her body in the Septic tank. 1st accused (sic) said in his statement of 13/9/02, Exhibit E that he did not tell earlier because the 1st accused warned him that if he did she will say that he was responsible because the deceased died as a result of abortion.

– Both accused admitted that it was 1st accused that led 2nd accused to the Septic tank.

– When PW1 returned from the village and asked 1st accused where the deceased was, 1st accused gave him different accounts as to where the deceased told her she was going to.

– The autopsy report Exhibit C showed a gravid (pregnant) Womb that was empty with ragged perforations/lacerations at two points.

– PW4 stated the cause of death to be the combined effect of perforation/laceration of the womb with external protrusions of the internal organs and fracture of the spine of the neck.

– The accused persons lied and contradicted their statement.

– The conduct of the accused persons after the deceased was last seen with them, were more consistent with their guilt than their innocence.”

See pages 104-105 of the record.

The trial Judge in his findings went further to state as follows:

“Thus, absence of credible explanation from the accused persons in this case, who admitted they saw the deceased and were with her that morning prior to her death and before her body was found with extreme violence done to it, in their septic tank, as a result of which she died, leaves no other inference than that the accused persons killed the deceased, moreso, as the 1st accused (sic) never said he was not responsible for the pregnancy. All he said in his defence was that he did not know she was pregnant. 1st accused who threatened 2nd accused that she will disclose that the deceased died of abortion cannot also pretend she did not know the cause of death or deny that she was equally responsible”

See pages 106-107 of the record.

Still on record and found by the trial court is as follows:

“1st accused was callous enough to go back to frying her Akara balls while the body of her friend and a girl entrusted to her care was rotting inside the septic tank. She equally got up the next morning and went about her normal business of frying Akara while the body of her late friend was still inside the septic tank and in the same premises where she was frying her Akara. She was callous enough to send PW1 on a wild goose-chase, first to his son at Faulka road to look for her daughter, when she knew all the time that she was dead.”

There is no doubt that the deceased did not die naturally but was killed. Through the evidence of PW4, a Pathologist who also specialized in forensic and hysto-pathology medicine, the cause of death was proved not to have been self-inflicted. PW4 performed the postmortem examination on the deceased and tendered Exhibit C, as his report. It reads thus:

“I received the body of a young adult negroed female. The external findings were that of generalised pallor which is a medical parlance for lack of blood. The neck was rotating which means that there was fracture of the neck bone. Internally there were lacerations and perforations in a womb that was pregnant. There was also protrusion of the internal organs from the vaginal opening. I therefore concluded that the cause of death in my opinion to be lacerations and perforations of the womb and protrusion of the internal organs from vagina. It is my opinion that the lacerations and protrusions in the womb were not self inflicted but by some other persons. The lacerations could have been caused by a sharp object application from a long or short sharp object. The rotating neck could have been caused by either someone forcefully breaking the neck or by fall.”

In Ndike Vs The State (1994) 9 SCNJ 46 at 54-56 which was followed by this court in its decision in Igabele vs The state (supra) the court had held as follows:

“….it is not a condition or legal imperative that there must be an eye witness before a murder charge could be proved beyond reasonable doubt. Proof of the commission of the offence may proceed on circumstantial evidence.”

See also; Ilori & Anor v. State (1980) 8-11 SC 81.

Also in Emeka Vs State (2001) 9 SCM 34, (2001) 14 NWLR (Pt.734) 666 at 683, this court held as follows:

“where the accused person was the last person to be seen in the deceased’s company and circumstantial evidence is not only overwhelming, but leads to no other conclusion, it leaves no room for acquittal”

In the instant case as I stated earlier, the prosecution established that the deceased actually died as a result of an illegal abortion performed or assisted in performing on the deceased by the Appellant.

It is a misconception and misleading, to say the least’ for the learned counsel to the appellant to come to the conclusion that the doctrine of “last seen” is rooted only in common sense but not law therefore urging this court to overrule itself on the previous decisions based on the doctrine. This doctrine is indeed of global application. In some other jurisdictions, it is called “the last seen theory” In the India case of Rajashkhanna Vs. State of A.P (2006) 10 SCC 172, the Indian Supreme Court noted as follows:

“The last seen theory, comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.”

However, in S. K. Yusuf Vs. West Bengal (2011) the same Supreme Court after referring to its earlier stand above further held that where there is a long time – gap between “last seen together” and the crime, and there is possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. Even if time gap is less and there is no possibility of others intervening, it is said to be safer to look for corroboration.

In the instant case, it is very clear without an iota of doubt as found by the trial court and concurred by the Court below, that the circumstances from which the inference of guilt was drawn were fully established by impeachable evidence beyond a shadow of doubt. The circumstances are of a determinative tendency unerringly pointed towards the guilt of the appellant.

From the circumstantial evidence adduced by the prosecution, I am convinced and I so hold that the court below was right in affirming the conviction and sentence of the appellant by the trial court based on the doctrine of “last seen.” The case was therefore proved before the trial court beyond reasonable doubt. Accordingly, Issues 4 and 5 are hereby resolved against the appellant’

Now to the person and attitude of the Appellant. I must say that the appellant did not show that she is a mother herself who has children. Her behaviour as rightly found by the trial court, portrayed her as an embarrassingly callous woman who cannot be entrusted with anything, much more, a human being, she is simply a disgrace and disappointment to motherhood. Her cruelty is simply animalistic’ to say the least. She is not fit to live in the community of man. In my view she was rightly convicted and sentenced by the trial court and the decision was correctly affirmed by the court below.

In effect, I hold that this appeal deserves to fail for lacking in merit and should be dismissed for the following reasons:-

(a) The Prosecution established a clear case of murder against the appellant as all the ingredients of murder was proved; the cause of death had been established through circumstantial evidence. See; Uguru Vs The State (2002) 7 SCM 3.87.

(b) On the doctrine of “last seen”, the appellant was last seen alive with the deceased before being found dead in the septic tank at the back of Appellant’s house.

(c) Concurrent findings of facts of the two courts below should be respected and not disturbed. Being a judgment supported by credible evidence and not being perverse, had not occasioned any miscarriage of justice, hence should be affirmed and upheld.

(d) As proof beyond reasonable doubt is not synonymous with proof beyond any shadow of doubt but ought to be proof beyond reasonable doubt, it is upheld in this case. The case was established beyond reasonable doubt.

In the final analysis, I dismiss this appeal and affirm the decisions of the two courts below on the conviction and sentence of the appellant to death for the murder of Nnenna Nwosu.

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SC.12/2009