AUGUSTINE MICHAEL v. THE FEDERAL REPUBLIC OF NIGERIA
(2010)LCN/3812(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of May, 2010
CA/S/84c/2009
RATIO
CRIMINAL PROCEEDING: DUTIES OF A COURT BEFORE CONVICTING AN ACCUSED PERSON ON A PLEA OF GUILT
The law is very clear as to what a trial court must do before convicting an accused person on a plea of guilty. The trial court must –
a. Explain the charge to the accused and record the manner, including the language, in which it is explained;
b. Record the replies of the accused as nearly as possible in the words uttered by him;
c. Explain the ingredients of the offence to the accused person and record his reply; and
d. Show that it satisfied itself that the accused person has clearly understood the meaning of the charge in all its details and essentials and also the effect of the plea.
See SULE MAIDOKI V. COMMISSIONER OF POLICE (1975) N.N.LR. 142 PER AHMAD OLAREWAJU BELGORE, J.C.A.
EVIDENCE: ADMISSION; WHETHER A PERSON CAN ADMIT WHAT HE DOES NOT KNOW
It is trite that a person can only admit what he knows. It is strange and absurd to admit what one does not know. PER AHMAD OLAREWAJU BELGORE, J.C.A.
EVIDENCE: CONDITIONS FOR AN ACCUSED PERSON TO BE CONVICTED IN AN EXTRA-JUDICIAL STATEMENT MADE
In ADEYEMI V. STATE [1991] 6 NWLR (Pt.195) 1, the Supreme Court of Nigeria held that an accused person can be convicted in an extra-judicial statement to the Police:-
“…where such is a voluntary and unequivocal confession of guilt and there have been proved same facts and circumstances which show:-
(a) That he had the opportunity of committing the offence charged;
(b) That the confession had been corroborated;
(c) That the confession is possible;
(d) That there are facts outside the confession to show that it is true; and
(e) That the confession is consistent with other facts proved in evidence.”
The so called confessional statement, Exhibit A, has not passed the test set by the Supreme Court in ADEYEMI’S case (supra). PER AHMAD OLAREWAJU BELGORE, J.C.A.
FAIR HEARING: MEANING AND ESSENCE OF FAIR HEARING
I must state clearly, and loudly too, that a fair hearing connotes or involves a fair trial and a fair trial of a case consist of the whole hearing. There is no difference between the two. Therefore, fair hearing within the meaning of Section 36(1) of the Constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. See OGBOH V. F.R.N. [2002] 10 NWLR (Pt. 774) 21 and ESHENAKE V. GBINIJE [2006] 1 NWLR (Pt. 961) 228. PER AHMAD OLAREWAJU BELGORE, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
AUGUSTINE MICHAEL Appellant(s)
AND
THE FEDERAL REPUBLIC OF NIGERIA Respondent(s)
AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): The Appellant herein was an accused person charged before the Federal High Court, Sokoto (now the “Lower Court”) upon a charge which reads thus:-
“That you Augustine Michael W 32 years of age, of Paramount Peace Guest House, Zango in Zuru LG.A. of Kebbi State on or about the 10th April, 2006, without lawful authority had in your
possession 6.8 Kilograms of Indian hemp, a Narcotic drug similar to Cocaine and thereby committed an offence contrary to and punishable under section 19 of laws of the Federation NDLEA ACT 2004.”
On the 17th day of May, 2006, the plea of the Appellant was taken and he pleaded guilty to the charge. Thereupon, the prosecuting counsel, Ibrahim Dangana, urged the lower court to convict the Appellant. He then proceeded to tender in evidence –
1. Accused Statement of 10/4/2006
2. Certificate of Test Analysis
3. Packing of Substance Form
4. Request for Scientific aid Form
5. The recovered drug concealed in Ghana Must Go bag weighing 6.8 kilograms
The Appellant was recorded as saying: “No objection” The lower Court then admitted all these in evidence in the terms hereinafter following:-
“Court: Each of the documents together with the recovered substance is admitted in evidence and marked as Exhibit A, B, C, D and E respectively.”
The Appellant was convicted but before sentencing, the prosecuting counsel informed the lower court that the Appellant had at one time been arrested by the NDLEA, Zuru Area Command with small quantity of cannabis and he was counseled and released. He further informed the court that the NDLEA was in receipt of a petition from the State Security Service (SSS) Kebbi Command on the drug activities of the Appellant in Zuru Area, dated 6/4/2006. He sought to tender it in evidence. It was accepted and admitted in evidence by the lower court as Exhibit F.
After admitting the petition in evidence as Exhibit F, the Appellant was recorded thus :-
“I was one time arrested by Area Commander NDLEA Zuru and pleaded with him and I was released and I continued rendering assistance to the Area Commander by repairing their patrol vehicle if it got broken down, and I arranged with the NDLEA Area Commander that if I should continue with selling of Indian hemp in the area I should continue remitting N8,000 Eight Thousand to them every month and since then I continue doing so. This arrangement started early this year 2006, from January to April, 2006. That is all I know with the Area Commander about drugs business. I started the drug business i.e. selling of Indian hemp around April last year 2005.”
It was in these circumstances that the Lower Court sentenced the Appellant to a 15 – year term of imprisonment without option of fine.
The Appellant has now appealed to this Court upon a Notice of Appeal consisting of three grounds of appeal, viz –
GROUNDS OF APPEAL
a. The decision is unreasonable, unwarranted and cannot be supported having regard to the evidence.
b. The learned trial Judge erred in law when he proceeded to convict the appellant on a plea of guilty to a charge of being in possession of substance suspected to be Indian hemp thereby occasioning a miscarriage of justice.
PARTICULARS OF ERROR
(i) Whereas a plea of guilty simpliciter by the appellant cannot absolve the respondent from the onus of proving that the substance was Indian hemp.
(ii) There was no legally admissible evidence to prove that the substance was Indian Hemp.
c. The learned trial Judge erred in law when he admitted Exhibit A, C, D, and E through the prosecutor thereby occasioning a miscarriage of justice.
PARITCULARS OF ERROR
(i) The prosecutor tendered Exhibits A, B, C, D and E without the appellant being afforded the opportunity of cross-examining him.
(ii) Exhibits A, B, C, D and E did not show the manner the Exhibits or evidence were procured, by whom and the role, if any, played by the appellant in the making of the Exhibits.
(iii) There was no evidence that the substance recovered from the appellant was what was actually sent for analysis.
(iv) The prosecution did not establish that there was no opportunity of the substance being tampered with.
d. The learned trial Judge did not observe the principles of fair hearing before convicting the appellant.
PARTICULARS OF ERROR
(i) The appellant was not given an opportunity to cross-examine or challenge the contents of Exhibits A, B, C, D and the evidence of prosecution counsel.
(ii) The appellant was not represented by counsel.
Parties filed and exchanged briefs of argument which were respectively adopted when the appeal came up for hearing. Each party distilled two issues for determination. The appellant’s issues read thus:-
“3.1 Whether the trial court was right to have convicted the appellant on a plea of guilty to a charge of being in possession of Indian Hemp.
3.2 Whether the trial Judge was right to have relied on the evidence, particularly, Exhibits A, B, C, D and E tendered by the prosecution counsel to convict the appellant”
The issues formulated by the Respondent are –
“1. Was the trial and conviction of the appellant on his own plea of guilt proper and in accordance with the law or did the appellant have a fair trial?
2. Was the Trial Judge right to have relied on the evidence tendered in Court by the prosecution to convict the Appellant?”
I find the issues formulated by the Respondent to be clearer and more relevant to the determination of this appeal and this judgment will be anchored on them.
ISSUE ONE
In the Appellant’s brief settled by Dafe Obobo Esq., it is conceded that the general principle of law is that a court of law or a tribunal can convict an accused person on a plea of guilt to a charge. It is also submitted that there are exceptions to this general principle of law, which include a situation where the accused person is charged with an offence punishable with death or any other serious criminal offence that requires special knowledge, such as being in possession of Indian Hemp as it is in the instance case. An offence as in the instant case requires the evidence of an expert. Reliance is place on N.A.F. V. OBIOSA [2003] 1 SCNJ-343, 371 in submitting that the onus is on the prosecution to prove its case beyond reasonable doubt in accordance with section 138(1) of the Evidence Act. It is further submitted that where the prosecution fails to prove any ingredient of an offence, especially the point that the substance which the accused is alleged to be in possession of, has not been found to have the chemical content of Indian Hemp, a court ought not to find such an accused person guilty on his plea. OKORO V. COP [1972] 11 ECSLR 168 is cited. Attention is then drawn to the charge allegedly read to the Appellant in the instant case which did not contain any information to the effect that the substance found on him had been tested and found positively to contain Indian Hemp. The conviction of the Appellant by the learned trial Judge was predicated on the plea of guilt by the Appellant and Exhibits A, B, C, D, and E tendered from the Bar by the prosecution counsel.
For the Respondent, it is submitted in its brief settled by Pius Nuhu Gamde Esq., that the conviction of the Appellant on his plea of guilty was proper and consistent with the law. It is submitted that the Appellant pleaded guilty instantly to the charge against him when same was read and explained to him in a language he understood in full compliance with section 215 of the Criminal Procedure Act. It is submitted that by instantly pleading guilty to the charge, the Appellant has denied himself the benefit of full trial, which requires the prosecution to lead evidence oral or documentary in proof of all essential ingredients, unless the trial court sees sufficient cause to the contrary. It is also submitted that by virtue of Section 27 of the Evidence Act, an accused can be convicted on the confession alone made by him once it is properly established and or admitted in evidence as in the instant case. As to the effect of a plea of guilty. Section 218 of the Criminal Procedure Act was cited and quoted. It is submitted that though it is not a requirement under Section 218 of CPA, the prosecution went ahead to produce facts in further support or corroboration thereof, and the facts adduced were not objected to by the Appellant when he state on record that “No Objection”. It is then submitted that it is trite law that facts admitted need no further proof, citing in support, the case of IHUEBEKA V. STATE (2001) 2 ACLR 183, 201, lines 15-20. It is submitted for the Respondent that for an appeal against conviction to succeed where an accused person pleaded guilty to a charge, it must be shown that the appellant did not understand the charge or intended to plead “not guilty”, or that upon the admitted facts, the Appellant could not in law be convicted. Reliance is placed on DUAH v. COMMISSIONER OF POLICE (1950) 13 WACA 85 and OKIKI V. STATE (2003) 2 SCNJ 199, per S.M.A. Belgore, JSC (as he then was) at page 221. It is finally submitted that the lower court was right in convicting the Appellant on the basis of his plea of guilt.
ISSUE TWO
It is submitted for the Appellant that the Appellant, who was not represented by counsel, was not called upon by the lower court to examine the documents tendered by the prosecuting counsel from the Bar and that court made use of the exhibits in convicting the Appellant. It is submitted that this is contrary to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as “The Constitution”). Attention is drawn to the fact that the prosecuting counsel was not sworn in as a witness in the case when he tendered Exhibits A, B, C, D; and E and that the Appellant was not afforded the opportunity to cross-examine the prosecuting counsel who gave evidence and tendered those exhibits. It is submitted that this procedure violated the Appellant’s constitutional right to fair hearing guaranteed under Section 36(1) of the Constitution. It is then submitted that where a court fails to observe the principles of fair hearing, in a trial, the appellate court ought to intervene and set aside any order or judgment consequent upon such proceeding. It is submitted that the so called pieces of evidence have proved noting against the Appellant as they have not established that the substance found with on Appellant was either Indian Hemp or that it weighed 6.8 kilograms. It is submitted that there is no evidence of laboratory analysis and that Apini O. Michael who allegedly took every step in respect of the substance did not state his educational qualifications, if any, to enable him examine and certify the sample as Indian Hemp.
As for Exhibit A, it is brought to the attention of the Court that although it was alleged to be the confessional statement of the Appellant, the lower court never took steps to ascertain the voluntariness of the statement, especially, as the Appellant was not legally represented at the trial nor was he asked if it was his statement. Reference is made to Section 28 of the Evidence Act. It is finally submitted that the contents of the so called exhibits ought to create a lot of doubt in the mind of a reasonable tribunal which should have been resolved in favour of the Appellant.
For the Respondent, it is submitted that at the end of proceedings before the trial court, the totality of the case of the prosecution consisted of Exhibits A, B, C, D and E to which the Appellant said he had “NO OBJECTION” after pleading guilty to the charge against him. It is submitted that since the Appellant did not object to the admissibility of the exhibits, and since he did not object to an adverse procedure adopted against him at the trial, he cannot raise the issue on appeal. Reliance is placed on FRANCIS DURWODE V. STATE (2000) 4 SNCQR 33, 37 and EBOH V. AKPOJU (1968) ALL NR 220. The case of STATE V. AJIE (2000) 3 SCNQR 53, 55 is also cited where the Supreme Court held that –
“…for a condition to nullify judicial proceedings it must be a substantive provision which affects the jurisdiction or competence of the Court, or a procedural defect in the proceedings which would result in a miscarriage of justice…”
It is then submitted that there was no procedural defect in the proceedings or miscarriage of justice against the Appellant.
As to the right of the Appellant to fair hearing, it is submitted for the Respondent that it is clear from the record that the Appellant was in court and was given the opportunity to participate in the entire proceedings and he did not object to the prosecution’s application to tender Exhibits A, B, C, D and E which were consistent with the charge.
In this case, one thing stands out very clearly and that is the fact that apart from the plea of the Appellant, as recorded by the learned trial Judge, there was no formal evidence taken by the lower court. Both parties argue that an accused person can be convicted based solely on his plea of guilt. It is only the Appellant who states that there are exceptions to this general principle of law.
The law is very clear as to what a trial court must do before convicting an accused person on a plea of guilty. The trial court must –
a. Explain the charge to the accused and record the manner, including the language, in which it is explained;
b. Record the replies of the accused as nearly as possible in the words uttered by him;
c. Explain the ingredients of the offence to the accused person and record his reply; and
d. Show that it satisfied itself that the accused person has clearly understood the meaning of the charge in all its details and essentials and also the effect of the plea.
See SULE MAIDOKI V. COMMISSIONER OF POLICE (1975) N.N.LR. 142
In the instant case, all we have on the record is as follows: –
“case called up
Accused in court speaks English
IBRAHIM DANGANA for prosecution
There is a charge against the accused person. I apply the charge be read to the accused for his plea.
COURT
Charge read and explained to the accused person who appeared to have understood the charge satisfactorily and pleaded as follows:-
ACCUSED: I understand the charge as read and explained to me and the allegation is true I am guilty.
IBRAHIM: In view of the plea of guilty of the accused to the charge, I urge the court to convict him on his own plea.
In addition I seek to tender:
1. Accused Statement of 10/4/2006
2. Certificate of Test Analysis
3. Packing of substance form
4. Request for Scientific aid form
5. The recovered drug concealed in Ghana Must Go bag weighing 6.8 kilograms.
ACCUSED: No objection
COURT: Each of the documents together with the recovered substance is admitted in evidence and marked as Exhibits A, B, C, D and E respectively.
Signed
Judge
17/05/2006
Ibrahim: That is the case for the prosecution. I urge for conviction.
Court: I have carefully considered the accused’s plea of guilty to the charge along with the exhibits tendered in evidence. I have also considered the accused’s demeanour and I am satisfied that he is not prejudiced. He in fact intends to admit the guilty (sic) of his offence. I therefore accept the accused’s plea of guilty and hereby find the accused guilty and hereby convict him thereof as charged.
Signed
Judge
17/05/2006′
The business of the day, i.e. 17th may, 2006 before the lower court and leading to the conviction of the Appellant was as heretofore reproduced. It was not shown how the charge was explained to the Appellant, including its ingredients and essentials. The lower court stated that it was satisfied that the Appellant understood the charge by his demeanour and he was convicted based on –
demeanour and he was convicted based on –
(a) His plea;
(b) The exhibits tendered in evidence; and
(c) The demeanour of the accused person.
It should be observed that the so-called exhibits were tendered by the prosecuting counsel from the Bar. He thereby turned himself into a witness and prosecutor at the same time, except that he was not sworn-in before testifying.
One of the exhibits, so called, relied upon by the lower court in convicting the Appellant is Exhibit A which the Respondent now considers to be a confessional statement of the Appellant. Both the lower court and the Respondent consider it as an admission of the offence in respect of which the Appellant was arrested and charged. The truth of the matter is that Exhibit A is not qualified to be considered by the lower court as a confessional statement. There is nowhere in the record where it was so described and, in any event, the lower court never considered the truth of it and be satisfied that it was voluntary. The lower court did not confront the Appellant with the statement to enable him admit or deny same.
It is trite that a person can only admit what he knows. It is strange and absurd to admit what one does not know.
Indian Hemp is a narcotic drug which requires scientific test and analysis in order to ascertain that the substance found in possession of an accused person is indeed an Indian Hemp. The evidence that can satisfy a trial court or tribunal must be that of an expert in narcotic drugs. That evidence is conspicuously absent in this case.
In ADEYEMI V. STATE [1991] 6 NWLR (Pt.195) 1, the Supreme Court of Nigeria held that an accused person can be convicted in an extra-judicial statement to the Police:-
“…where such is a voluntary and unequivocal confession of guilt and there have been proved same facts and circumstances which show:-
(a) That he had the opportunity of committing the offence charged;
(b) That the confession had been corroborated;
(c) That the confession is possible;
(d) That there are facts outside the confession to show that it is true; and
(e) That the confession is consistent with other facts proved in evidence.”
The so called confessional statement, Exhibit A, has not passed the test set by the Supreme Court in ADEYEMI’S case (supra). The same thing applies to the so called plea of the Appellant since it was considered by the lower court as an admission of the offence in respect of which the Appellant was charged.
With regard to the issue of fair hearing as it came out in this case and as strongly canvassed by the Appellant and the Respondent, I must state clearly, and loudly too, that a fair hearing connotes or involves a fair trial and a fair trial of a case consist of the whole hearing. There is no difference between the two. Therefore, fair hearing within the meaning of Section 36(1) of the Constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. See OGBOH V. F.R.N. [2002] 10 NWLR (Pt. 774) 21 and ESHENAKE V. GBINIJE [2006] 1 NWLR (Pt. 961) 228.
The procedure adopt by the learned trial judge in convicting the Appellant is, with all respect, most strange to our law and rules of procedure in respect of criminal proceedings. Both the lower court and the prosecution really rode a rough shod on the Appellant and the law cannot permit this rape on the fundamental right of a citizen as has been done in the instant case.
To worsen the situation, hear what the learned counsel for the Respondent has to say in his submission:
“The substance of the evidence before the trial court Indicates that upon arrest at his place of abode (Paramount Guest House) ZANGO, ZURU with the recovered Indian hemp, he was taken to the NDLEA Office wherein, the exhibit officer (Michael Apin) conducted preliminary field test on the recovered drug weighing 6.8 kilogrammes which proved positive for Indian hemp packed and sealed the drug exhibits in the presence of the Appellant and the witnessing Officers therein. The drug exhibits (exhibit E) were kept in custody and produced before the trial court intact.”
I have looked in vain to see where this evidence was given before the lower court. The record bears no testimony to this new evidence being given in the course of a brief writing. If there was any such evidence, one would naturally expect to see where the witness was cross-examined by the Appellant. There was none. The evidence, so called was cooked up in the Respondent’s Brief. See paragraph 28 at page 7 of the Respondent’s Brief.
I find the procedure adopted by the learned trial Judge to be most irregular. I allow the appeal. The best to do in the circumstance is to annul the entire proceeding before the lower court. The proceedings are hereby annulled. The conviction of the Appellant is hereby set aside.
Ordinarily, a case of this nature will qualify for an order of re-trial, but the circumstance of this case would not allow such an order. The Appellant has been in prison custody, consequent upon an irregular trial, for three full years. It will be a double jeopardy to order him to go and face a fresh trial for whatsoever it is worth.
The conviction and sentence of the Appellant by the lower court are hereby set aside.
The Appellant is hereby acquitted and discharged.
MUSA DATTIJO MUHAMMAD, J.C.A.: I had a preview of the lead Judgment of my learned
Belgore, JCA, and agree with his reasonings and conclusions therein. I join him in allowing the appeal, setting aside appellant’s sentence by the lower court as well as discharging and acquitting the Appellant.
MASSOUD ABPULRAHMAN OREDOLA, J.C.A.: I have read before now, the lead judgment just delivered by my learned brother, Belgore, JCA, and I am in full agreement with him on his reasoning and conclusion thereon. Indeed, he has covered the issues canvassed in this appeal and I do not intend to add anything thereto and also adopt the same as mine. In the premise, I also allow the appeal, set aside the decision, conviction and sentence of the appellant. The appellant is hereby discharged and acquitted.
Appearances
Dafe Obobo Esq.For Appellant
AND
Pius Nuhu Gamde Esq.For Respondent
