MUBARAQ A. ABUBAKAR v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12767(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/S/63/2018
RATIO
EVIDENCE: ADMISSION OF A CONFESSION
“What this translates in essence is that the trial Court must proceed to the conviction of the accused person without having to call upon the prosecution to discharge the burden of proof placed upon it by law as the plea of guilty, which amounts to an admission of the commission of the offence in itself satisfies the required burden of proof. See the cases of R. vs. WILSON (1959) SCNLR, 462; DONGTOE vs. C.S.C. OF PLATEAU STATE (2001) 9 NWLR (PT. 717) 132. In the case of TIMOTHY vs. FRN (2012) LPELR- 9346(SC) the apex Court per RHODES-VIVOUR, JSC had this to say on the subject; A voluntary confession or/and a plea of guilt is the best evidence to rely on to convict an accused person.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES:
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
MUBARAQ A. ABUBAKAR – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the Judgment of the Federal High Court, sitting at Gusau, Zamfara State of Nigeria in suit no: FHC/GS/9C/2018 between the FEDERAL REPUBLIC OF NIGERIA vs. MUBARAQ A. ABUBAKAR and delivered on the 14th March, 2018, wherein the learned trial judge entered judgment in favour of the Complainant/Respondent and convicting/sentencing the Appellant on the strength of his plea of GUILTY without more. See page 2 – 5 of the record of proceedings.
Dissatisfied with the judgment of the Court the Appellant has appealed to this Court vide his Notice and Grounds of Appeal filed on the 29th March, 2018 containing three (3) Grounds of Appeal. See page 6 – 7 of the record of Appeal transmitted on the 20th April, 2018.
The rather unique fact of this case is that the Appellant was arrested by men of the National Drug Law Enforcement Agency (N.D.L.E.A) on the 6th March, 2018 and subsequently arraigned before the Federal High Court Gusau, convicted and sentenced by the Court on the 14th March, 2018 on the strength of his guilty plea for the offence of unlawful possession of 5.200 Kilograms of Tramadol Tablets, a psychotropic substance contrary to and punishable under Section 20 (c) of NDLEA Act Cap. N30 LFN, 2004.
On the said 14-3-2018 when the Appellant was arraigned before the trial Court, upon the charge being read to the Appellant as an Accused person, the following proceedings took place at pages 3 to 5 of the printed records:
Court: Do you understand the charge just read and explained to you?
Defendant: Yes. I understand the charge read to me.
Court: Since you said that you understand the charge, how do you plead, guilty or not guilty?
Defendant: I plead guilty.
Court: The charge was read and interpreted to the defendant in English language and he appeared to have understood same.
Prosecution: In view of the plea of guilty entered by the defendant and in line with Section 356(1) and (2) and 274 (2) of the Administration of the Criminal Justice Act, we urge the Court to convict the accused person as charged.
Court: Ask the defendant whether he has any cause to show why he should not be convicted as charged.
Defendant: I have no reason to show.
Court: In view of the plea of guilty entered by the defendant and in line with the provisions of Section 356(1) and (2) and Section 274(2) of the Administration of Criminal Justice Act, I hereby convict MUBARAQ A. ABUBAKAR of the offence of unlawful possession of 5.200 Kilograms of Tramadol Tablets a psychotropic substance by which act you committed an offence contrary to and punishable under Section 20(C) of the NDLEA Act.
ALLOCUTUS:
Court: Any record of previous conviction?
Prosecution: No. We do not have a record of previous conviction.
Counsel: This young man is my Brother and among the family nobody knows him in dealing with drugs. This is the first time. From the investigations it reveals that the friends advise (sic) to start dealing in drugs he was arrested while buying drugs. As a family we will get him a job after this case and be rehabilitated. He will not repeat same. We plead for leniency.
SENTENCE HEARING:
In passing sentence, I have taken into cognizance the fact that the convict is a first offender and a young man whose Counsel informed the Court that he was apprehended in the process of buying drugs. The convict claims to sell motorcycles and sugar so it seems he has a job already. I do not know whether it is greed for material things that pushes him into the dangerous trade of narcotic which is unlawful. The harmful substance found in his possession in a very large quantity betrays him as a big time drug dealer. The Counsel to the convict have (sic) submitted to the Court that the convict is remorseful and demonstrated his intention to be re-integrated into society as a responsible and productive man. I hereby sentence the convict MUBARAQ A. ABUBAKAR to four years (4) imprisonment for the offences you have been convicted of and this is to serve as punishment to you and a deterrent to others
Hon. Justice F. M. Aminu
Judge
There are three (3) Grounds of Appeal filed thus;
GROUNDS OF APPEAL:
1. That the Court below erred in law in convicting the accused person in suit no: FHC/GS/9C/2018 considering the facts and circumstances of the case.
2. The decision of the Federal High Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence and grams of substance.
3. The sentence passed on the accused person being a first offender is unreasonable.
ISSUES FOR DETERMINATION:
The Appellant nominated two (2) issues for the determination of this Appeal thus;
1. Whether the Court below was right in convicting the accused person in suit No: FHC/GS/9C/2018 considering the facts and circumstances of the case?
2. Whether the Appellant can be convicted in the absence of strict scientific evidence and on the basis of unsubstantiated, unreliable evidence?
On the part of the Respondent, the two issues nominated by the Appellant were adopted and in addition, a notice of preliminary objection was filed, which was eventually not argued and therefore considered abandoned and consequently struck out. It was therefore in respect of these two issues that learned Counsel for the parties addressed Court extensively. The Appellants Brief of argument, settled by Z. A. WAMARHYEL ESQ., was filed on the 15-10-2018 and deemed filed on the 23-10-2018, while the Respondents Brief dated 12-1-2019 was settled by AJAGU F. N. (MRS.) and filed on the 14-1-2019, and deemed filed and served the same date. At the hearing of this
Appeal on the 14-1-2019, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUES ONE and TWO:
1. Whether the Court below was right in convicting the accused person in suit No: FHC/GS/9C/2018 considering the facts and circumstances of the case?
2. Whether the Appellant can be convicted in the absence of strict scientific evidence and on the basis of unsubstantiated, unreliable evidence?
The argument of learned Counsel in respect of issue one, which he urged this Court to resolve in favour of the Appellant, he drew attention to the records of Appeal and submitted that it is clear that the Appellant was arrested on the 6th March, 2018 and hurriedly taken to Court, wherefore, he was consequently convicted and sentenced solely on the strength of his plea of guilt without more on the 14th of March, 2018 as the purported exhibit i.e. the alleged psychotropic substance was never tendered and used in proper evaluation to have arrived at a just decision. Counsel cited the case of AKINBISADE vs. STATE (2007) 2 N.C.C pg. 76 at 88 R 3 in support of his submission. According to learned Counsel, it was held in the said case that Exhibits must be considered holistically in their entirety to decipher their real import and effect and not piecemeal.
It was further submitted that the prosecution must establish an unbroken link in the chain beginning from the collection of the alleged offensive substance or article from the accused persons’ possession to the point of scientific/laboratory analysis and to the point of presenting the result of the analysis in Court; that in other words, the prosecution must guarantee the integrity of the entire process in other to secure a conviction. He also cited the cases of SUNMOLA ISHOLA vs. THE STATE (1969) N.M.L.R (1); and SUNDAY SOSIMI vs. C.O.P (1975) (6/CCHC) 881 at 883. Counsel urged this Court to resolve this issue in favour of the Appellant.
In respect of the second issue, Counsel submitted that the Appellant cannot be convicted in the absence of strict scientific evidence and on the basis of unsubstantiated, unreliable evidence. Counsel cited the case of ISHOLA vs.
THE STATE (1969) N.M.L.R; in support, where it was held thus:
It is of the utmost importance then that the plant found in the possession of an accused person is the actual one that has been analyzed by the chemist. The prosecution therefore has a duty to prove that once the plant is taken from the possession of the accused, every possibility whatsoever of its being tampered with or its being substituted with another has been excluded once an opportunity exist for this as to whether the plant that was taken from the possession of the accused is the one that has been analyzed…”
It was also contended by Counsel that in the case of scientific evidence the task of the prosecution is even more onerous as the prosecution must lead strict scientific evidence that the drugs alleged is psychotropic substance and that no other type of evidence; not even a confession will suffice. Counsel cited the cases of; F.R.N vs. DANIEL (2012) ALL F.W.L.R (Pt. 627) 697 and EGBELE AUSTIN EROMOSELE vs. F.R.N (2016) C.A. L/550 A/2013. Counsel therefore contended that in the instant case, no clear evidence based on any certificate emanating from a laboratory having undergone scientific analysis as to the substance being psychotropic in nature was tendered before the Court below by the prosecution after the Appellants plea was taken. According to Counsel, the Court below thus placed reliance on the plea of the accused person without evaluating any certificate of scientific analysis to show that the purported substance is a psychotropic substance and he urged this Court to so hold in favour of the Appellant, while allowing the Appeal.
RESPONDENT:
ISSUES ONE and TWO:
In arguing these issues, Counsel submitted that the trial Court was perfectly right in convicting the Appellant as charged without any need of hearing any evidence. Counsel said that the law is clear and well settled that in a non-capital offence, an accused person or a Defendant can be validly convicted upon his own guilty plea as happened in this case.
According to Counsel, a plea of guilty is an admission of the Commission of the offence charged and that it implies self-entanglement in the net of the offence – see OJI vs. FRN (2013) ALL FWLR (PT.668) 920. Counsel stated in addition, that the law is well settled that where an accused pleads guilty to a Charge duly read and explained to him, the Court can, without much ado go ahead and convict and pass sentence. See OMOJU vs. FRN (2008) ALL FWLR (PT. 414) 1656.
It is further submitted by Counsel that a plea of guilt, as happened in this case, is a formal confession. So when the plea of any accused person is made after a Charge is read and explained to him and the said plea is unambiguous and unequivocal as the Appellant’s own was in this case, the accused can be duly convicted where the offence is a non-capital offence – OFFOR vs. THE STATE (2012)18 NWLR (PT.1333) 421. Counsel is also of the clear view that the Administration of Criminal Justice Act 2015, by Sections 274(2) and 356(2) give statutory cloaks to these judicial authorities.
This Court was also told that in the instant case, the Appellant was represented by a Counsel in the Court below and that there was no suggestion whatsoever that the Appellant did not understand the charge read and explained to him. In addition, that his plea was unambiguous and unequivocal showing that he understood clearly what he pleaded to and that no law places any other burden on the prosecution to tender any other evidence nor was the Judge at the Court below under any other obligation to take any other evidence. To this end, Counsel submitted that by entering a guilty plea, hearing is foreclosed as the next and last procedural step open to the trial Judge was to convict and pass appropriate sentence on the Appellant. This, Counsel stated is because a satisfactory plea of guilty will have the effect of satisfying the required burden and standard of proof on the prosecution. On account of this position, Counsel submitted that the authorities cited in the Appellants brief are not in all fours with the present case as they are inapplicable and distinguishable and he urged this Court to so hold.
In respect of issue two, Counsel submitted that this issue does not arise from any of the grounds of Appeal filed. He said that the law is settled that issues for determination must arise from grounds of appeal filed and that it is also settled that issues formulated that do not relate to or arise from a ground of Appeal are incompetent and must be struck out; See SHIP CARE NIG. LTD vs. MV FORTUNATO (2011) 4 SCM 224 at 236; AGBITI vs. NIGERIAN NAVY (2011) 1 SCM 31 at 48. It was also contended that the Respondent is unable to see any ground of Appeal in the Appellant’s Notice and Grounds Appeal from where this issue was formulated. Counsel urged this Court to have the issue struck out.
In the event that the Respondent is overruled on this point, Counsel submitted that where an accused has pleaded guilty in a non-capital offence such as the one the Appellant is convicted in the Court below, the onus placed on the prosecution by law is lifted and the Court can safely convict on the plea. See NKIE vs. FRN (2014) 7 SCM 73 at 91 where the Supreme Court went ahead to state the position of the law as follow:
“The summary of what I have been saying above is that in non-capital offence cases, after a plea of guilty by an accused person the Court has a duty to proceed to convict the accused without necessarily calling on the prosecution to prove the commission of the offence by establishing the burden of proof ordinarily required by law. The reason is that the admission of guilt on the part of the accused would have satisfied the required burden of proof. Where however, the prosecution goes ahead to adduce evidence though scanty and tender exhibits, this is an added strength to the case (or the prosecution which also obliterates any doubt whatsoever on the mind of the trial Judge to convict the accused”
Counsel further contended that it is clear from the aforementioned authority that the clear and unassailable principle of law in situations where an accused pleads guilty to a non-capital offence is that a conviction solely on that plea is perfectly valid and that going on the extra mile by tendering any other evidence, scientific or otherwise while commendable, is not a sine qua non to the validity of the procedure adopted as the absence of such evidence cannot in any way fault the conviction.
It was also contended that all that is required where an accused pleads guilty is that the Court must be satisfied that the accused intended to admit the truth of all the essential elements of the offence with which he is charged, whereupon the Court shall convict and sentence him accordingly. See page 91 paragraphs A-B of NKIE vs. FRN (Supra). Counsel finally urged this Court to dismiss the Appeal.
RESOLUTION OF APPEAL
By way of recapitulation, the tortuous journey of the Appellant to prison actually began on or about the 6th day of March, 2018 when during a motorized patrol of a detachment of officers of the National Drug Law Enforcement Agency (NDLEA) along Sokoto Road, Gummi, Zamfara State, got the Appellant arrested for the offence of knowingly being in unlawful possession of 5.200 Kg of Tramadol tablets, a psychotropic substance. The offence is contrary to Section 20(c) of NDLEA Act CAP N30 Laws of the Federation of Nigeria, 2004. The Appellant was subsequently arraigned vide Charge No: FHC/GS/9c/2018 dated the 13th day of March, 2018 but filed on 14th March 2018. In his plea taken before the trial Court, the Appellant pleaded guilty to the charge after it was read and explained to him in the presence of his Counsel.
Having pleaded guilty to the charge, the trial Court proceeded to convict the Appellant in line with Section 356 (2), and 274 (2) of the Administration of Criminal Justice Act, 2015. The Court having been satisfied that the Appellant fully understood the charge in terms of his plea of guilt went ahead and sentenced the Appellant to a term of imprisonment of four (4) years. It is against this conviction and sentence that the Appellant has appealed to this Court.
Without much ado, the position of the law, which is as clear as daylight is that where the offence for which the accused person is charged is not a capital offence, the trial Court has the discretion to convict the accused. The apex Court per MUHAMMAD, JSC in the case of TORRI vs. THE NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR-8142 (SC) has said that the guilty plea made by the Appellant is as good as a judicial confession or admission of commission of a crime. What this translates in essence is that the trial Court must proceed to the conviction of the accused person without having to call upon the prosecution to discharge the burden of proof placed upon it by law as the plea of guilty, which amounts to an admission of the commission of the offence in itself satisfies the required burden of proof. See the cases of R. vs. WILSON (1959) SCNLR, 462; DONGTOE vs. C.S.C. OF PLATEAU STATE (2001) 9 NWLR (PT. 717) 132. In the case of TIMOTHY vs. FRN (2012) LPELR- 9346(SC) the apex Court per RHODES-VIVOUR, JSC had this to say on the subject; A voluntary confession or/and a plea of guilt is the best evidence to rely on to convict an accused person.
Apart from the fact that the Appellant was duly represented by Counsel at the Court when the charge was read to him, there was no complaint of a failure to have understood the charge read. He admitted having understood the charge and went ahead to enter a plea of guilt. By bringing an Appeal against the judgment of the Court below the way the Appellant has done in the instant Appeal amounts clearly to a failure on the part of the Appellant to be consistent in presenting his case before this Court. It amounts, to say the least to a case of presenting a different version of the same case on Appeal. Here was a situation in which the Appellant had acquiesced to the entire proceeding at the Court below without raising any objections. In therefore coming to this Court on Appeal to raise issues which are supposed to have been raised before the trial Court clearly amounts to an afterthought and for which the Court can be of no assistance whatsoever.
In respect of the second issue, it is glaring that the issue does not arise from any of the grounds of Appeal filed. In agreement with learned Respondents Counsel, the law is settled that issues for determination must arise from grounds of appeal filed. Where issues so formulated do not relate to or arise from a ground of Appeal, such issues are to say the least incompetent and must be struck out. The authorities for this are in the legion See however the decisions of SHIP CARE NIG. LTD vs. MV FORTUNATO (Supra) and AGBITI vs. NIGERIAN NAVY (Supra) cited by learned Respondents Counsel.
In the final analysis, the Appeal fails and it is accordingly dismissed. Consequently, the Judgment of the Federal High Court, sitting at Gusau, Zamfara State of Nigeria in suit no: FHC/GS/9C/2018 delivered on the 14th day of March, 2018 is hereby affirmed.
HUSSEIN MUKHTAR, J.C.A.: I am in full agreement with my learned brother Frederick O. Oho, JCA, that this appeal has no merit and should be dismissed. For the same reasons contained in the said judgment, I also dismiss this appeal.
I adopt the consequential orders made in the judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read a draft copy of the Judgment just rendered by my learned Brother Oho JCA. I agree that the Appeal fails and is accordingly dismissed. I also affirm the Judgment of the lower Court.
Appearances:
Z. A. Wamarhyel, Esq. with him, J. Antony For Appellant(s)
Ajagu F.N (Mrs.) For Respondent(s)
