OGBA V. THE STATE
| Pages | 203-235 |
OGBA V. THE STATE
203
at a situation where lawyers, so to say, change baton as those in a relay race. The
appearance of Mr. Igbokwe should not affect the consideration for adjournment, it
is only when the lawyer who gave an undertaking is absent and there is no counsel
to represent the client that the court can comment subject to a disclaimer by the
5
new counsel.
It is for these reasons and the fuller reasons given by my brother,
Kawu, J.S.C.,
that I will allow the appeal. The case is sent back for hearing before another judge
of the Federal High Court. Costs of this appeal are assessed at fd1,000.00 in favour
of the appellant.
10
Appeal allowed.
15
OGBA V. THE STATE
EDWIN OGBA
20
V.
THE STATE
SUPREME COURT OF NIGERIA
25
KARIBI-WHYTE,
J.S.C.
KAWU,
J.S.C.
BELGORE,
J.S.C.
WALT,
J.S.C.
AKPATA,
J.S.C.
30
OMO,
J.S.C.
BABALAKIN,
J.S.C.
14th February, 1992.
APPELLANT
RESPONDENT
APPEAL No. SC. 190/1990.
35
constitutional Law -
Section 33 (6)(e ) of the constitution 1979 - Interpretation of - Whether
common law rule of presumption of regularity is inconsistent with the provisions of the
Constitution 1979 - Absence on written record of the fact of interpretation- Not to affect
validity of proceedings - Interpreter - Accused person - Entitlement of - Failure to
provide an interpreter - When it may amount to a denial of fair hearing - Allegation of
40
non-provision of interpreter - Need for proof - Not to be based on assumption - Fair
hearing - True test of:
Criminal Law - Self defence - Plea of - When it may be successful - Defence of provocation
- When it may avail a party - Principles of law - Onus of proof in criminal cases - How
discharged - Homicide - Medical evidence - Whether essential in proof of.
45
Evidence - Murder - Section 137(1) Evidence Act - Standard of proof required -
Prosecution to prove its case beyond reasonable doubt - Where direct evidence not
available - Circumstantial evidence is admissible.
50
204
NIGERIAN SUPREME COURT CASES
[1992] 1 N.S.C.C.
ISSUES:
1.
Whether it is mandatory for the court to state on its records that the requirement
of an enactment has been complied with?
2.
Whether a common law principle can be used to interpret provisions of the 5
constitution 1979?
3.
What is the true test of fair hearing?
4.
When may the presumption of regularity as regards provision of an interpreter
apply?
10
5.
Whether medical evidence is essential in proof of homicide?
FACTS:
The appellant, Edwin Ogba, was charged with murder before the High Court
at Umuahia in the former Imo State under section 319 Criminal Code of the former
Eastern Nigeria Laws of 1963 applicable in Imo State. The victim, Okoro Onyeador 15
died of wounds inflicted on him in two main places - shoulder and abdomen. The
wounds, according to medical evidence uncontradicted, were caused by sharp
object and could not have been self-inflicted. The wounds were deep into the body
and the one that penetrated the abdomen affected the intestines which thus
became hyperanaemic with a lot of blood drained into the intestines. The death 20
was caused by excessive blood loss from the wounds and shock. The learned
trial judge considered the defence of accident raised by the accused and rejected
it. He held on the evidence that the conduct of the accused was calculated and
savage. He also considered and rejected the defence of provocation raised by
the accused holding that even if there was provocation the force used which was
25
intended and is such as is likely to cause death or grievous harm was dispropor-
tionate to the alleged provocation. The defence of self-defence pleaded was also
rejected. The learned trial judge, accordingly found the accused guilty of the
offence of murder and sentenced him to death. The appellant's appeal in the Court
of Appeal against the conviction and sentence was dismissed. The Appeal Court
affirmed the rejection of the defences raised in the trial court. Appellant has further
30
appealed to the Supreme Court.
HELD:
1.
Although sub-sections (1) and (6)(e) of section 33 of the 1979 Constitution
make provision for fair hearing and insist that every person charged with a
criminal offence shall have the assistance of an interpreter if he cannot
understand the language used at the trial of the offence without payment,
unlike the provision of section 242(2) of the Criminal Procedure Code, there is
nothing in the constitutional provision of the said sub- section of section 33
which makes it mandatory for the court to state on its record that the
requirement of the enactment has been complied with.
(See p.214, lines 19 -
26)
2.
To use the common law principle of presumption of regularity to interprete
entrenched constitutional rights may be inappropriate. It is however erroneous
to read into a clear and unambiguous constitutional provision what it does not
embrace. The provision has to be interpreted strictly in accordance with the
ordinary meaning of the words used without its being adorned, as it were, with
ornamental words not therein to make it attractive to wider interpretation. (See
p.213, lines 18 - 26).
3.
The true test of fair hearing is the impression of a reasonable person who was
present at the trial whether from his observation justice has been done in the
35
40
45
50
OGBA V. THE STATE
205
case. A reasonable person who was present in court and observed that an
accused had the assistance of an interpreter would be impressed that the
accused had a fair hearing and that justice had been done. He would be
unaffected by the absence from the court's record of the assistance rendered
5
to the accused by way of interpretation.
(See p.214, lines 38 -
45).
4. It is only if section 33(6)(e) or any other section of the constitution or any other
applicable law had, specifically made it obligatory that the fact that an accused
person received the assistance of an interpreter be recorded, that presumption
of regularity will not hold.
(See p.215, lines 26 - 29).
10
5. It is desirable and it was the practice even in courts in the south of the country
which were not governed by provisions similar to sections 241 and 242 of the
Criminal Procedure Code, to swear interpreters (if they were not the regular
court interpreters) and the fact of so doing recorded. It is also advisable for
trial judges and magistrates to record the fact that interpretation was carried
15
out where necessary. (See p 215, lines 41 - 45).
6.
Although medical evidence as to the cause of death is desirable it is not
essential in all cases of homicide. In the absence of medical evidence the court
can infer the cause of death from the circumstances of the evidence adduced
before it. This is a case in which the cause of death would have been inferred
20
from the evidence of p.w.7 and the statement of the appellant, exhibit 2 if
medical evidence given by p.w.5 was absent.
(See p.217, lines 30 - 35).
7.
It is no defence to a charge of murder that if the deceased had been attended
to in time by an experienced doctor his life would have been saved. Even the
probability that the doctor who first attended to the deceased was negligent,
25
which is not established in this case, and that such negligence could have
contributed or hastened the death of the deceased cannot avail the appellant
a defence.
(See p.217, lines 38 - 44).
8.
The position is that substantial justice should not be sacrificed on the altar of
technicalities or procedural irregularities. Where and appeal court finds that
30
technicalities or irregularities have not occasioned a miscarriage of justice it
will not set aside a judgment which is otherwise impeccable in other respects.
(See p.218, lines 27 - 31).
Appeal dismissed.
35
EDITORIAL:
[As to
when circumstantial evidence may be admissible
see
Ukorah v. State
(1977) 4 SC. 167;
Fatoyinbo v. A.-G., Western Nigeria
(1966) N.W.L.R. 4;
Gabriel v.
State
(1989) 5 N.W.L.R. 457;
Atano v. A.-G., Bendel
(1988) 2 N.W.L.R. (part.75) 201.
40
NIGERIAN CASES REFERRED TO IN THE JUDGMENT:
1.
Abdu Dan Sarkin Noma v. Zaria Native Authority
(1963) N.N.L.R. 97.
2.
Adekunle v. The State
(1989) 5 N.W.L.R. (pt.123) 505.
3.
Akime v. State
(1988) 3 N.W L.R. (pt.85) 729.
45 4.
Akinsanya v. U.B.A. Ltd.
(1986) 4 N.W.L.R. 273 (323)
5.
Ariori & Ors. v. Elemo & Ors
. (1983) 1 SC. N.L.R. 1.
6.
Atano v. A.-G., Bendel
(1988) 2 N.W.L.R. (pt.75 201.
7.
Buraimoh Ajayi & Anor. v. Zaria Native Authority
(1963) 1 All N.L.R. 169.
8.
Bucknor McLean & Ors. v. Inlaks Ltd.
(1980) 8/11 SC. 1.
50
9.
Essien v. The State
(1984) 3 SC. 14.
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