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(1988) NWLR (Pt.84) 533
BEFORE THEIR LORDSHIPS
KAYODE ESO, J.S.C. (Presided)
ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.
CHUKWUDIFU AKUNNE OPUTA, J.S.C. (Read the Lead Judgment)
ABDUL GANIYU OLATUNJI AGBAJE, J.S.C.
EBENEZER BABASANYA CRAIG, J.S.C.
Mr. Jide Oki (with him O. Ogundipe) – for the Appellant
Mr. U.f. Essang, D.P.P. Akwa Ibom State – for the Respondent
CRIMINAL LAW – Murder
CONSTITUTIONAL LAW – Right to representation – Fair hearing
ETHICS – Duty of counsel defending an accused in a murder trial – Decline in professional responsibility – Propriety of sending NYSC lawyers to represent accused person
OPUTA, J.S.C. (Delivering the Lead Judgment):
On the 19th day of May, 1988, the Court allowed this appeal, ordered a retrial and indicated that reasons for judgment will be given today the 1st day of July, 1988. Hereunder are my reasons.
This case is important because it exposes the laxity and lack of seriousness of some young members of the profession. It mirrors and reflects the general and steady decline in the standard of professional responsibility required of counsel defending an accused person on the gravest of all charges – murder – attracting the death penalty. On the 24th June, 1988, this Court delivered judgment in SC. 124/1987: Michael Udu Udo v. The State (1988) 3 NWLR (Pt. 82) 316. There, the counsel defending the accused charged with murder was conspicuously absent when 2 important witnesses testified. His cross-examination on the days he was present was feeble and half-hearted. When ultimately called upon to deliver his final address all he said was – “I leave the matter to the Court.” That was to my mind a mockery of a defence.
But bad as the conduct of the defence in Michael Udu Udo’s case supra was, the case now on appeal is even worse. The Appellant Udo Akpan Udofia was charged with the offence of murder. He was alleged to have killed his own mother. In every culture the crime of matricide is shocking, revolting and a bit unnatural. Normal people do not go about killing their own mothers. Was the Appellant insane? Why did he commit such a heinous and unnatural crime? What were his reasons if he was capable of reasoning? These are some of the compelling questions which should normally and naturally suggest themselves to the average lawyer called upon to handle the defence in a case like this. These are questions the defence lawyer must seek answers to. And having found those answers, put them across to the Court through effective and purposeful cross-examination or by calling relevant witnesses for the defence.
One Mr. M. O. Uduma of the Legal Aid Council was entrusted with the defence of the accused, Udo Akpan Udofia. The learned trial Judge was very careful not to take any important step in the proceeding in the absence of counsel. So on the 7th of December, 1982, when the Appellant was arraigned before him, the Judge did not as much as record his plea. Rather he caused his Registrar to contact the Legal Aid Council to provide legal representation for the Appellant. Before counsel was provided, the case was adjourned several times. On the 14th of April, 1983, Mr. Uduma of the Legal Aid Council appeared for the Appellant and his plea of Not Guilty was then recorded and the case was adjourned to 13/6/83 for hearing. On the adjourned date, Mr. Uduma appeared but the case could not go on, as prosecution witnesses were not available in Court. The matter was further adjourned to 4/7/83.
On 4/7/83 the Court record read:
On 6/7/83 Mr. Uduma was again absent and the learned trial Judge recorded:
“Principal Registrar to write to Mr. Uduma, Legal Aid Council.”
On the 13/7/83 Mr. Uduma appeared. The Court did not sit and the Clerk of Court adjourned the case to 18/7/83. Again on the 18/7/83 Mr. Uduma for the accused was absent. On the 4/8/83, 11/8/83 and 12/10183 Mr. Uduma for the defence was on each occasion absent. The case on the last date 12/10/83 was adjourned to 12/1/84. That day, the Court did not sit but the prosecuting Principal State Counsel, Amoo and Mr. Uduma for the defence both appeared. On the 1/3/84 when the Court sat, Mr. Amoo appeared for the State, Mr. Uduma was again absent as usual. On 3/4/84 Mr. Uduma appeared and the Court took the evidence of Police Corporal No. 35561, Fintam Bassey, called as P.W. 1. The record of the cross-examination by Mr. Uduma read as follows:
“xx by Mr. Uduma: yes I met accused in his father’s house where he identified him to me. Accused person appeared quite normal throughout the period of my investigation.”
From the above cross-examination, it would appear that learned defence counsel was laying the foundation for the introduction of evidence touching on the probable insanity of the accused person.
The next hearing date was Monday, 14th May, 1984. One Akpan Udofia Akpan, the father of the Appellant, testified as the 2nd P.W. A lot could have been established through this witness as to the mental history of the Appellant or his ancestors:- R. v. Ashigifuwo (1948) 12 W.A.C.A. 389.: R. v. Inyang (1946) 12 W.A.C.A. 5. In Sanusi v. The State (1984) 10 S.C. 166 this Court per Aniagolu, J.S.C., at p.177 observed:
“‘… Defence counsel must always work hard to present before the Court proof which could include among others, positive acts of the accused before and after the deed complained of, evidence of a doctor who examined and watched the accused over a period of time as to his mental state, evidence of relations who know the accused intimately relating to his behaviour and the change which had come upon him, the medical history of the family which could indicate hereditary mental affliction or abnormality. and such other facts and circumstances which will help the trial Judge come to the conclusion that the burden of proof of insanity, placed by the Criminal Code, on the defence, has been amply discharged . . .”
In Nwoye Igweze Onyekwe v. The State (1988) 1 N.W.L.R. 565 at p.5791 detailed some of the types of evidence which defence counsel seeking to establish insanity as a defence would naturally like to adduce viz:
Defence Counsel should first and foremost know what type of evidence he needs before working hard to collect and present them. Defence Counsel can extract most of the evidence necessary by purposeful cross-examination. In the case now on appeal the father of the Appellant gave evidence. What and what did Mr. Uduma, counsel for the Appellant, establish through him? The answer is – Nothing for the record shows “x x by Mr. Uduma – Nil.”
The P.W.1 Corporal Fintam Bassey was recalled by the prosecution and examined in-chief at length. At the end, the Court record again showed – “xx by Mr. Uduma – Nil.” Is there then any surprise Mr. Uduma does not appear in Court since he normally does not cross-examine witnesses? After the recall of P.W. 1 on 15/5/84, the case was adjourned to 21/6/84. As usual, on this date the Court record shows:
“Mr. Uduma for accused absent but writes for adjournment. Adjournment: This case will continue on 18th and 19th July, 1984.”
On the 18th July, 1984, the case was called up and could not go on as the prosecuting Principal State Counsel, Mr. Amoo was away to Calabar on duty. Then on the 26th July, 1984 the prosecution called its last witness, Dr. Mfon Jackson Udo Ibanga, as P.W.3. At the end of his evidence, Mr. Uduma for the defence as usual had “no questions” in cross-examination. The prosecution then closed its case.
The case was then adjourned for Defence to 11/10/84. On the adjourned date 11/10/84, Mr. Uduma for the accused was again absent and the Court adjourned the defence to 6/11/84. Mr. Oni and Mr. Igika both of the N.Y.S.C. appeared for the accused. To do what?; one will naturally ask. To conduct a murder case? What is the country turning into when members of the N.Y.S.C. will be sent to Court to defend a man on trial for his life? The learned trial Judge would not be a party to this apparent travesty of justice. He therefore made the following Order:
In view of the fact that this case has been adjourned three times since July, 1984, but the Legal Aid Counsel cannot attend to defend the accused, the Defence of this accused person is hereby assigned to Mr. C. A. Udoh of Ekemini Chambers. Ikot Ekpene, who is registered with the Legal Aid Council in this zone. The Legal Aid Council office Calabar shall handover forthwith to Mr. C. A. Udoh their case file with notes of evidence so far, to enable him defend the accused failing which the Principal Registrar shall serve him with a copy of the information and let him read the Court’s Notes of Evidence.
Adjournment. 5th and 6th December, 1984.”
The above was a very wise step for the learned trial Judge to take. It is fundamental to a fair trial of a serious criminal charge like murder that the accused person should not be left unrepresented at any stage of the trial: R. v. Mary Kingston (1948) 32 CR. App. R.183.
This unfortunate case appeared to be ill-fated and star-crossed for on the adjourned date Mr. C. A. Udoh was late and one Mr. D. O. Iro, Legal Aid Counsel complained:
“This brief was handed over to Mr. C. A. Udoh as Court brief.” After the above complaint, Mr. Udoh then appeared, rested his defence on the case of the prosecution and addressed the Court. The above has been the chequered history of the defence in this unfortunate case. The learned trial Judge convicted the Appellant and sentenced him to death by hanging for committing what he described as “that dastardly act of cold-blooded murder of his mother, Etok Unwa Udo Usora.” The Court of Appeal dealt briefly with “the conduct of the trial by the defence Counsel” but at the end dismissed the appeal and confirmed the conviction and sentence of death of the trial Court. The Appellant has now appealed to this Court complaining inter alia that he had no fair trial in the Court of first instance.
The only issue considered in this appeal was- Having regard to the overall conduct of this case by the defence Counsel, can it really be said that the Appellant had a fair trial? In Mary Kingston’s case supra the English Court of Appeal held that the failure of was counsel briefed for the defence to attend Court thus leaving the appellant, Mary Kingston, to be tried as an unrepresented person was tantamount to depriving the appellant of the right which she had to be defended by counsel. Her conviction was quashed on that ground alone. In Godwin Josiah v The State (1985) 1 N.W.L.R. 125. (1985) 1 S.C. 406 at p.416, this Court held inter alia that an appellant accused of capital offence has a right to have his defence conducted by a legal practitioner assigned by the Court if he was unable to afford the services of one.
In my view, a right to have one’s case or defence conducted by a legal practitioner inevitably imposes an obligation on that legal practitioner, otherwise that right becomes hollow and meaningless: See Jaundoo v Attorney-General of Guyana (1971) P.C. 972 at p.978. In The Queen v. John Uzorukwu (1958)3 F.S.C. 14 the Federal Supreme Court spelt out some of a legal practitioner’s obligations in murder cases:
“We wish to make it known, however, that in our view no more important professional duty, and we emphasise the word “duty” falls to members of the Nigerian Bar than that of representing persons charged with murder and that once counsel accepts instructions in such a case, he is expected to give it priority to all other engagements, however important or lucrative they may be Counsel who shoulders the very heavy burden of defending an accused person charged with murder, the gravest of all charges, an accused person on trial for his life should devote himself completely to his task whatever he himself may think of the charge. He should lay aside every other duty so that he may completely, and the better, watch the interests of the accused. He should take infinite pains to be properly and thoroughly prepared by acquainting himself fully with the facts and circumstances o his client’s case. The above sentiments are echoed and re-echoed in Rules 7 and 8 of the Rules of Professional Conduct in the Legal Profession made pursuant to The Legal Practitioners Act No. 15 of 1975:
“7. Employment in Criminal Cases
(a) Every person accused of crime has a right to a fair trial, including persons whose conduct, reputation, or alleged violations may be the subject of public unpopularity or clamour. This places a duty of service on the legal profession and, where particular employment is declined the refusal of the brief or to undertake a defence may not be justified merely on account of belief in the guilt of the accused, or repugnance towards him or to the crime or offence charged.
(b) Any member of the Bar who accepts a brief for the defence in a murder trial shall be deemed to have given a solemn undertaking that he will personally conduct the defence provided his fee is paid.
A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial reason, and should always exert his best effort in his behalf ‘ (italics mine).
From the above Rules the following appear in bold relief:
If counsel for the defence has obviously and scandalously not discharged his duty to the accused he is defending, I do not know how one can call the trial fair.
In the case now on appeal, Mr. Uduma, learned Counsel for the defence was absent on the following dates: 4/7/83, 18/7/83, 12/10/83, 19/1018, 12/1/84, 1/3/84, 21/6/84, during the presentation of the prosecution’s case and on 11/10/84, 6/11/84 and 21/11/84 since the case was adjourned for defence on 11/10/84. On 21/11/84, the learned trial Judge was compelled by the continued and sustained absence of Mr. Uduma to assign the defence to one Mr. C. A. Udoh who made a no case submission and rested on that submission and addressed the Court. On the credit side (if there be one in this case) Mr. Uduma appeared on 3/4/84 when P.W.1, Corporal Finta Bassey, testified. He asked two feeble and irrelevant questions and sat down. He also appeared on 14/5/84 when the P.W.2, Akpan Udofia Akpan, the father of the Appellant, testified. He had no questions for him. On 15/5/84 P.W.1 Corporal Finta Bassey was recalled and he testified further for the prosecution. Mr. Uduma as usual had no questions for him. On the 20/7/84 P. W.3, Dr. Mfon Jackson Udo Ibanga testified. There was no cross-examination.
The above is the sorry catalogue of what happened in this case. Can anyone seriously say that the Appellant was properly and effectively represented by Mr. Uduma which is of the essence of a fair trial? Was the Appellant’s half-hearted representation by Mr. Uduma not as bad as no representation? Maybe, Mr. Uduma believed in the guilt of the Appellant, or was indignant at the crime of matricide, or had some repugnance towards the Appellant because of the enormity of his crime. These notwithstanding, it is essential to the ethics of the profession that the Appellant’s case be conducted with the same seriousness and dedication required of counsel in criminal cases generally and in serious cases, like murder, in particular. I did not see that seriousness, that devotion to duty, that dedication to the cause of the Appellant, that presentation of whatever case he had, with firmness, impartiality and fairness. Any outsider watching the behaviour of Mr. Uduma in this case will go out complaining that the Appellant did not have a fair trial, that justice had not in fact been done by the way the defence was conducted. It was a mockery of a defence and ultimately a mockery of a trial. The trial was far from being fair on that score.
It was for the above reasons that I allowed the appeal on the 19th May 1988 and ordered a retrial.
I have had a preview of the Reasons for judgment read by my learned brother, Oputa, J.S.C., and I am in complete agreement. I will adopt the reasons for the Orders we have made in this case.
On the 19th May, 1988, I allowed this appeal and indicated that I shall give my reasons for so doing today.
I have read the judgment in draft of my learned brother, Oputa, J.S.C., in this appeal. There has been so much identity of views on the reasoning and conclusions in his judgment with what I would be saying that I consider it unnecessary to write in any detail.
I, however, wish to emphasise the importance of a proper defence rather than one that is a sham wherever counsel is assigned the defence of an accused person. A proper defence is when counsel assigned conducts the defence to the best of his ability. It is immaterial that his skill is one that could have been improved upon by a more experienced counsel, or more articulate counsel even of his status.
However, where counsel adopts a tardy approach to the defence of the accuse in respect of the case assigned to him, with the result that he was absent more of the time, and even when present did not conduct the case with the degree of commitment expected of counsel, it is not too much to say that the ordinary person observing the whole episode cannot but come to the conclusion that the accused did not really have a defence. Although the incompetence or inarticulacy of counsel is not sufficient reason to contend that the accused has not had a fair trial; inadequate attention to the defence of an accused leading to the prejudice of the accused may by itself detract from the fairness of the trial. In this case counsel first assigned to the appellant was absent for most of the days the prosecution was leading evidence. The new counsel appointed by the court without adequate familiarity with the case made a submission that the appellant had no case to answer. He was overruled, but he rested his defence on the case of the prosecution and addressed the Court.
There is no doubt in this case that counsel’s attitude of apathy towards the defence of the appellant was not only detrimental to the defence, but also portrayed the trial as not being fair. This is clearly not a case of the in competence of counsel. It is a situation which could be aptly described as a conspiracy between the prosecution and counsel to the appellant not to impede his conviction for the offence.
I do not think Appellant had a fair trial in the High Court, not as a result of what the trial Judge did, but because of the conduct of the defence counsel. The breach of the principle of fair trial is not limited to the established principles of natural justice. In my opinion any act or conduct on the part of the prosecution or defence or counsel which renders the fairness of the prosecution of the case or defence of the accused suspect is capable of breaching the rule relating to fair trial.
The defence in this case was a mockery, and the trial cannot on that ground alone but be far from being fair.
The appeal is allowed.
On 19th May 1988, I allowed the appellant’s appeal and ordered a retrial of the case against him. I indicated I would give the reasons for my judgment today. I am now doing so.
I have had the opportunity of reading in draft the lead reasons for judgment given by my learned brother, Oputa, J.S.C. I agree with his conclusions and reasoning.
The issue for determination in this appeal is whether, having regard to the way and manner counsel assigned to the appellant to undertake his defence at the trial Court, carried out their assignment, it can be said that in reality and not just apparently the appellant was represented by counsel at his trial. For to all outward appearances, the appellant was represented by counsel at all stages of his trial at the High Court. So apparently the right of the appellant in the capital offence he faced at his trial to have his defence conducted by a legal practitioner was preserved. A Legal Practitioner was at one time or other assigned by the court to undertake his defence when it appeared that he had no means to hire one of his choice. And the legal practitioners were legal practitioners within the meaning of that expression in the Legal Practitioners Act 1975.
The complaint of counsel for the appellant in this appeal is not, and cannot be as I have just shown, that the appellant was not represented by a Legal Practitioner at his trial. His complaint is about the way and manner the legal practitioner assigned to the appellant for his defence carried out his assignment. Having referred to the record of proceedings at the trial Court, he submitted and I agree with him, that Mr. Uduma, who conducted the defence at the initial stages of the case showed no commitment whatsoever to his assignment. He was lackadaisical or indifferent in his approach to the assignment with the result that his cross-examination of prosecution witnesses was either nil or perfunctory. There was nothing to indicate what defence he was putting up or was exploring for the appellant, in earnest.
Late in the proceeding and because of the absence of Mr. Uduma from Court without just excuse, the Court had to assign another Legal Practitioner in the person of Mr. Udoh to the appellant to continue with the con duct of the defence of the appellant. Mr. Udo’s performance in the case was just as unpraiseworthy as that of Mr. Uduma. At the end of the case for the prosecution he called no evidence for the defence.
The appellant was charged with the murder of his mother. It would appear that it was not in dispute that the appellant killed his mother under circumstances which would be murder unless the plea of insanity was raised and established by the defence. The latter would thus appear to be the only plausible defence open to the appellant. The onus of establishing this defence on a balance of probability was on the appellant.
It is in the light of the above that counsel for the appellant has submitted to us that the appellant had not had a fair trial in that in reality his defence in the capital offence with which he was charged was not conducted by a legal practitioner. One has to be very careful in stating one’s reasons for judgment in this case otherwise the judgment may be taken, and wrongly in my view, as an authority that ineptitude of counsel handling a case is a ground for quashing a court’s decision in that case.
I am deciding the point at issue in this case in so far as it concerns a charge involving a capital offence where a right is reserved to an accused person to have his defence conducted by a legal practitioner assigned by the Court if he is unable to afford the services of one, as it is here. It is clear that Mr. Uduma even doing his poor best, did not explore the defence open to the appellant. Mr. Udoh who succeeded him did not fare better. He did worse in my view for he foreclosed the defence open to the appellant by not calling evidence apparently without just cause. In the circumstances can it be said that either Mr. Udoma or Mr. Udoh had in reality conducted the de – fence of the appellant? Unless one is prepared to render illusory the right of an indigent accused person charged with capital offence to have assigned to him by the Court a legal practitioner to conduct his defence, the answer in my view is “no.” For in such a situation one is faced not with the poor best of not a very skillful legal practitioner but with the product of legal practitioners who because of their indifference to their assignment did nothing worthwhile at all. In fact one may justifiably say that they compromised the defence of the appellant, by the way they conducted his defence.
In sum I agree that the appellant did not have a fair trial. It is for the above reasons in addition to those ably expressed in the lead reasons for judgment of my learned brother Oputa, J.S.C., that I allowed the appellant’s appeal, and ordered a retrial of the appellant’s case.
On the 19th day of May, 1988, this Court, after hearing Counsel, allowed the appeal, ordered a retrial, and stated that reasons for judgment would be given today, 1st July, 1988.1 now give my reasons for allowing the appeal.
In this regard, I have had a preview of the judgment just delivered by my learned brother, Oputa, J.S.C., and I agree with his analysis of the case and the conclusions reached in the matter.
It was for these same reasons that I agree that the appeal be allowed and a retrial ordered.
Appeal Allowed. Retrial ordered.