➥ CASE SUMMARY OF:
Godwin Josiah v. The State (1985) – SC
by “PipAr” Branham-Paul C. Chima.
➥ COURT:
Supreme Court – SC.59/1984
➥ JUDGEMENT DELIVERED ON:
Friday, the 25th day of January, 1985
➥ AREA(S) OF LAW
Representation of a murder accused.
➥ PRINCIPLES OF LAW
⦿ EVERY RULE IN FAVOUR OF AN ACCUSED MUST BE METICULOUSLY OBSERVED
Under our system, there is no onus on an accused to prove his innocence. The law presumes him innocent. There is thus no duly on the accused to help the prosecution prove him guilty. Our law is against self-incrimination. It is in the interest of justice that every rule in favour of an accused person is meticulously observed and that no rule is broken to his prejudice. The least that the trial court could have done for the appellant whose life was at stake, (he was standing trial for his very life) was to inform him of his rights under S.287(1) and it should be apparent on the record that each alternative was explained to the appellant since he was not represented by a legal practitioner. — Oputa, JSC.
⦿ FAIR HEARING IN A CRIMINAL TRIAL – STATE MUST ASSIGN COUNSEL TO ACCUSED IN CAPITAL OFFENCE
A fair hearing presupposes first and foremost a hearing. We operate the “Adversary System”. The major feature of this system is the passive and inactive role of the judge in the presentation of cases in court. The judge under our system is at best an attentive listener to all that is said on both sides. He is not an investigator. He speaks mainly to deliver judgments. This passive role of the judge emphasises the active role of counsel for the prosecution and for the defence. What is a “hearing” worth to an accused person who does not understand the language of the court, who does not know the rules of procedure, and who cannot properly present his case The right to counsel is thus at the very root of, and is the necessary foundation for a fair hearing. The ordinary layman, even the intelligent and educated layman is not skilled in the science of law and he therefore needs the aid and advice of counsel. It is because of this need that, in capital offences, attracting the death penalty, the accused is not left undefended. If he cannot afford the services of counsel the State assigns one to him. It is surprising that none was assigned to the appellant in the court of first instance. — Oputa, JSC.
⦿ FOR DOUBLE JEOPARDY TO APPLY, THE CRIMINAL PROCEEDING MUST HAVE BEEN FAIRLY CONDUCTED
Section 33 of our 1979 Constitution deals with fair hearing and when it uses the expression “he had been tried”, this must necessitate, imply that at the trial there was a fair hearing. Where, as in this case, there was no such fair hearing, the trial is vitiated or nullified. If the first trial is a nullity, the result will be as though the appellant had not been tried at all and the question of double jeopardy will not then arise. But for a much stronger reason, the same subsection 9 of Section 33 reserves to a Superior Court the right to order that an appellant be tried again in spite of the fact that he had been tried before. I am sure Mr. Rhodes will concede that this Court is a Superior Court. — Oputa, JSC.
⦿ JUSTICE IS A THREE WAY TRAFFIC
And justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic – justice for the appellant accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, “whose blood is crying to heaven for vengeance” and finally justice for the society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of. It is certainly in the interest of justice that the truth of this case should be known and that if the appellant is properly tried and found guilty, that he should be punished. That justice which seeks only to protect the appellant will not be even handed justice. It will not even be justice tempered with mercy. — Oputa, JSC.
⦿ RIGHTS EXPLAINED TO THE ACCUSED MUST BE RECORDED
In my view, a bald statement, as in this case, that – “the rights of the accused are explained to him” is certainly not enough. Not only should the court record show clearly what the trial court has done, whatever rights have been explained to the accused must be fully recorded see Ama Ema v. The State (1964) 1 All N.L.R. 416, for, indeed, this is the essence of having a court of record. — Eso, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Eso, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Shola Rhodes, Esq.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The appellant and two other persons were charged on two counts of Armed Robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 17 of 1970; and Murder contrary to section 319(1) of the Criminal Code Law Cap. 48 of the Laws of Bendel State. The evidence led by the prosecution in support of both counts was mostly circumstantial; but at the conclusion of the trial, the learned trial Judge accepted the testimonies of the prosecution witnesses and found the appellant guilty on both counts. He then convicted and sentenced him to death.
The appellant’s appeal to the Federal Court of Appeal, Benin was also dismissed.
This is a further appeal to this Court.
The appellant was not represented by any legal practitioner nor was any assigned to him even though the offences for which he was being tried carry death sentences.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the failure of the trial court to comply with the provisions of Rule 5 of the Robbery and Firearms Tribunal (Procedure Rules) 1975 and section 352 of the Criminal Procedure Law of Bendel State Cap. 49 Vol. 21976 does not nullify the proceedings and judgment? [SEE THE PROVISIONS BELOW IN THE REFERENCED SECTION]
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE APPELLANT HAS NOT HAD A FAIR TRIAL BECAUSE HE WAS NOT REPRESENTED BY A LEGAL PRACTITIONER
“The appellant was charged with armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 and with Murder punishable under Section 319(1) of the Criminal Code Law Cap. 48 Vol. II of Bendel State of Nigeria 1976. Both are capital offences. Under Section 352 of the Criminal Procedure Act a person accused of a capital offence shall, if practicable, be represented by a law officer, state counselor legal practitioner and if the accused is not defended by a legal practitioner the Court shall if practicable assign a legal practitioner for his defence. The Robbery and Firearm Tribunal (Procedure) Rules 1975 Rule 5 also makes it mandatory for the accused to have legal representation. In the instant appeal the appellant cross-examined witnesses and gave evidence on his own behalf. Although State Counsel addressed the Court he was not even asked if he wished to address too. The breach of these two Sections was in my view sufficient to vitiate the proceedings. It cannot be said that the appellant faced with such a serious charge has had a fair trial as he was entitled to under our law.”
.
.
.
✓ DECISION:
“Appeal allowed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules 1975 provides: “where an accused charged with an offence punishable with death is not defended by a legal practitioner, the tribunal shall assign a legal practitioner for his defence.”
The Criminal Procedure Law Cap. 44 Vol. 2 Laws of Bendel State which came into force on 1st June, 1945 contains similar provision in section 352. The said section 352 reads: “where a person is accused of a capital offence, the State shall, if practicable, be represented by a law officer, or legal practitioner and if the accused is not defended by a legal practitioner, the Court shall, if practicable, assign a legal practitioner for his defence.”
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
