By Editor

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 10th day of February, 2023

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Helen Moronkeji Ogunwumiju

Ibrahim Mohammed Musa Saulawa

Adamu Jauro

Tijjani Abubakar

SC.479/2013

Between

RAZAQ OLANREWAJU APPELLANT

And

THE STATE RESPONDENT

(Lead Judgement delivered by Honourable Ibrahim Mohammed Musa Saulawa, JSC)

Facts

On November 5, 2002, the Appellant and four other persons were arraigned before the High Court of Kogi State for the offences of criminal conspiracy, culpable homicide punishable with death and armed robbery punishable under Sections 97, 221(b) and 298 (e) of the Penal Code respectively. On the said date, only the 1st accused person was represented by a counsel in the person of Chief B. C. Oyibo. The Appellant who was the 2nd accused person and the other accused persons, did not have any legal representation. With the consent of the Appellant and the other accused persons, the trial court instructed Chief B. C. Oyibo to represent the Appellant and the others. Thereafter, the charge was read to the 1st accused person in Hausa, while it was read to the Appellant and the others in Yoruba. They entered their plea, and the charge proceeded to trial. At the end of the prosecution’s case, the Appellant chose not to testify or call any witness in his defence. After final address by respective counsel, the trial court proceeded to deliver its judgement, in which it convicted the Appellant and the other three co-accused persons of the offences as charged, and sentenced them all to 10 years imprisonment, life imprisonment and death by hanging.

Aggrieved, the Appellant filed an appeal at the Court of Appeal. However, the Court of Appeal dismissed the appeal, and affirmed the decision of the trial court. The Appellant filed a further appeal at the Supreme Court.

Issues for Determination

The Supreme Court considered the following issues, in its determination of the appeal:

1. Whether a miscarriage of justice has not occurred against the Appellant, having regard to the entire circumstances of this case and the decision of the Court of Appeal, that the Appellant was effectively represented by counsel as required by law.

2. Whether the court below was right in holding that the trial court complied with the provisions of Sections 191, 235 and 236 of the Criminal Procedure Code, at the trial of the Appellant.

3. Whether the Court of Appeal was correct in affirming the conviction and sentence of the Appellant for conspiracy, culpable homicide punishable with death and armed robbery.

Arguments

On the 1st issue, counsel for the Appellant argued that the Appellant’s right to fair hearing was breached, because he did not understand the language of the court at the time he was asked if he consented to being represented by Chief Oyibo; hence, he could not be said to have understood the question posed to him, or consented to his representation by the said Chief Oyibo in the absence of an interpreter to interpret the question to him in the language he understands. Counsel submitted that there is nothing on the record to show that the proceeding immediately preceding the reading of the charge to the Appellant in Yoruba language was interpreted to him in Yoruba, hence, his purported consent to have Chief Oyibo represent him is null and void. Counsel for the Respondent argued contrarily on the 1st issue, that the Appellant’s trial was conducted in compliance with the law, and he was effectively represented by counsel in accordance with the law.

He argued on the 2nd issue that there was non-compliance with the provisions of Sections 191, 235 and 236 of the Criminal Procedure Code at the trial of the Appellant, and this caused a miscarriage of justice on him. On the 2nd issue, the Respondent argued that the Appellant failed to establish the breach of the provisions of Sections 191, 235 and 236 of the Criminal Procedure Code by the trial court.

On the 3rd issue, he submitted that the prosecution failed to prove its case against the Appellant beyond reasonable doubt and the Court of Appeal wrongly affirmed the conviction and sentence of the Appellant. On the contrary, the Respondent submitted that the prosecution proved the offences for which the Appellant was charged beyond reasonable doubt, and the Court of Appeal was correct in affirming his conviction and sentence for the said offences.

Court’s Judgement and Rationale

In its determination of the 1st issue, the Court referred to the provision of Section 36(4) of the 1999 Constitution which accords an accused person the right of fair hearing in the course of determination of criminal charge against him. The Court also referred to Section 36(6) of the Constitution which accords an accused person the right to be informed of the offence for which he is charged in the language he understands, and the right to defend himself or be represented by a legal practitioner of his choice.

The Court held that the stage at which to raise an objection to the absence of an interpreter is in the course of trial, especially where the accused is represented by counsel, and an issue would only arise if the accused requests an interpreter but is not provided with one, or where he indicates to the court, that he does not understand the language of the court. The Court referred to STATE v GWONTO & ORS. (1983) 3 SC 62 @ 66. The Court held that the Appellant failed to raise the issue/need for an interpreter throughout the trial at the trial court; hence, it was too late in the day to raise it on appeal. Furthermore, the record clearly showed that the Appellant understood the questions put to him at the trial court and answered accordingly, particularly in light of the evidence on record which showed that at a time when he was asked about the whereabouts of his counsel, he had answered by stating that his counsel was not around.

The Court held further that it was evident in the record, that the Appellant consented to being represented by Chief Oyibo, and he was not under any compulsion to accept the legal aid volunteered by Chief Oyibo as ordered by the court. The Appellant had every opportunity within the two years when the trial was conducted, to have pronounced his rejection of Chief Oyibo as his counsel, if he thought he was not adequately represented. The Court also held that there was also nothing in the record to indicate that Chief Oyibo did not adequately prepare or conduct the defence of the Appellant, to ensure that he received a fair trial. The Court cited OKEKE v THE STATE (2003) 15 NWLR (Pt. 842) 25 @110. Having thus, not raised the issue of interpretation at the trial court or complained against the counsel who represented him pro bono, the Appellant cannot now turn around to complain on appeal.

On the 2nd issue, the Court held that by the provisions of Sections 191, 235 and 236 of the Criminal Procedure Code, after the reading of the examination of an accused person, the court has a duty to ask him whether he wishes to give evidence on his own behalf or call witnesses other than character witnesses. By Sections 235 and 236 thereto, the court may put such questions to the accused person as the court considers necessary after the prosecution witnesses have been examined, and before he is called on for his defence, and the purpose of this, is to discover the accused person’s line of defence and make clear to him particular points in the prosecution’s case which he has to meet in his defence.

The Apex Court held that the evidence on record showed that the trial court asked whether the Appellant would like to give evidence or rely on all the prosecution stated, to which the Appellant promptly responded that he had nothing to add to what the prosecution said, and he would not be calling any witnesses. Thus, contrary to the Appellant’s submission, there was ample evidence on record establishing that there was substantial compliance with Sections 191, 235 and 236 of the Criminal Procedure Code.

On the 3rd issue, the Court held that by virtue of Section 138(1) of the Evidence Act 2011, where the commission of a crime by a party to any proceedings is directly in issue in a criminal or civil proceeding, it must be proved beyond reasonable doubt. On the first count of conspiracy, the Court held that there was cogent evidence on record, direct and inferential; before the commission of the offence up to the point of the arrest of the Appellant in the company of the 4th and 5th accused person; which showed beyond reasonable doubt that the Appellant conspired with the co-accused persons to carry out the offences. On the second count of armed robbery, the court held that in order to prove the commission of the offence of armed robbery against an accused person, the prosecution has a duty to prove beyond reasonable doubt that: there was a robbery; the accused person took part in the commission of the robbery and; at the time of committing the robbery, the accused was armed with firearms or an offensive weapon. The court held that the totality of the evidence on record established these three ingredients against the Appellant beyond reasonable doubt.

On the offence of culpable homicide, the court held that in order to sustain a conviction for culpable homicide, the prosecution must prove by cogent evidence that the deceased died, that the death of the deceased was caused by the act of the accused person, and that the said act of the accused person was intentional; with the knowledge that death or grievous bodily harm will be its probable consequence. The Court relied on MBANG v THE STATE (2001) ALL FWLR (PT. 362) 1766 @ 1781. The Court held that there was no doubt that one Mohammed Shaibu died on the night of the robbery, and totality of the prosecution’s evidence was also to the conclusive effect that the Appellant and his co-accused persons, were responsible for his brutal death. The Court of Appeal thus, rightly affirmed the conviction and sentence of the Appellant.

Appeal Dismissed.

Representation

L. O. Akangbe for the Appellant.

Dr. Agada Elachi Esq. for the Respondent, with the fiat of the A-G, Kogi State.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)

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