FRANCIS NKIE V. FEDERAL REPUBLIC OF NIGERIA (2011)

FRANCIS NKIE V. FEDERAL REPUBLIC OF NIGERIA

(2011)LCN/4371(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of March, 2011

CA/PH/388/2009

RATIO

COCAINE/ CANNABIS SATIVA : DIFFERENCE BETWEEN COCAINE AND CANNABIS SATIVA

Cocaine is defined as an addictive drug obtained from the leaves of the coca plant, which is sometimes used medically as local anesthetics but more commonly used as an illegal stimulant. On the other hand,cannabis sativa is defined as a narcotic drug, prepared from the leaves and flowers of the hemp plant, that produces euphoria or hallucinations when smoked or swallowed, and the use of which is prohibited in Nigeria and many other nations. See Chambers 21st Century Dictionary pages 264 and 206. PER ISTIFANUS THOMAS, J.C.A

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTIONS 218 AND 285 (1) AND (2) OF THE CRIMINAL PROCEDURE ACT AS IT RELATES TO THE DUTY OF THE COURT WHEN AN ACCUSED PLEADS GUILTY TO ANY OFFENCE WITH WHICH HE IS CHARGED AND THE COURT IS SATISFIED THAT HE INTENDS TO ADMIT THE OFFENCE AND THERE IS NO CAUSE WHY THE SENTENCE SHOULD NOT BE PASSED

Sections 218 and 285 (1) and (2) are reproduced and they read thus: Section 218 of the Criminal Procedure Act provides as follows: “If the accused pleads guilty to any offence with which he is charged the court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to admit the trust of all the essentials of the offence of which he has pleaded guilty, the court shall convict him of that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary” Similarly, Section 285 (1) and (2) provides. (1) “At the commencement of the hearing, the court shall state or cause to be stated to the defendant the substance of the complaint and shall ask him whether he is guilty or not guilt”. (2) “If the defendant says that he is guilty and the Court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why Sentence should not be passed, the court shall proceed to sentence”. From the quoted above provisions of the CPA, once the accused has pleaded guilty to the offence and he had shown that he intended to plead guilty, the trial court can lawfully convict the accused without asking the prosecution to call witnesses any more. PER ISTIFANUS THOMAS, J.C.A

CONFESSIONAL STATEMENT: EFFECT OF A CONFESSIONAL STATEMENT
In law, confessional statement of an accused person is the best and strongest evidence against him as it determines his guilt. The confessional statement is very relevant and admissible against the accused in a criminal trial as done in the instant matter; see the golden principle on confessional statement made by the Supreme Court erudite, Niki Tobi, JSC in the case of Omoju V. Federal Republic of Nigeria (2008) 33 NSCQR Vol. 33 part 1, 75 at 98. His Lordship, Tobi, JSC, still authoritatively stated at page 100 of the case of Omoju V. FRN (supra) that:-“…by entering a guilty plea, hearing is foreclosed as the next and last procedural step of the judge is to convict and pass appropriate sentence.” PER ISTIFANUS THOMAS, J.C.A

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

(OFR) Justice of The Court of Appeal of Nigeria

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

FRANCIS NKIE Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

ISTIFANUS THOMAS, J.C.A (Delivering the Leading Judgment): This appeal is against the decision of E. S. Chukwu, (J) of the Federal High Court Port Harcourt, delivered on 17th December 2008, in which the appellant was convicted and sentenced to 18th months imprisonment for the offence of being in unlawful possession of 0. 4 grams of cocaine, contrary to section 19 of the National Drug Law Enforcement Agency, cap N30 Laws of Nigeria, 2004.
As can be gathered from the record of appeal in the instant, the brief fact of the case is that, the appellant was confronted on the High way at Zaakpin Road Junction, in Kaanan Local Government Area of Rivers State and he was asked to bring out any thing in his pocket. The appellant complied and he brought out a 0.4 grams of cocaine. He was there and then arrested and he was cautioned that he was not obliged to say anything unless he wished to do so. There and then appellant made a direct confession of not only having cocaine but also fond of selling cocaine to other users.
Based on his confessional statement, the substance was packed in his presence and he was subsequently arraigned before the afore said Federal High Court. The charge was explained to him, but he pleaded guilty to the offence, and the prosecution presented to the trial court the essential facts of the case and tendered exhibits which were dully admitted in evidence as Exhibits A. B. C. D. E. and F, without any objection by the appellant. The appellant was then found guilty and then convicted and sentenced to 18 months imprisonment after the usual allocutus.
Despite appellant’s plea of guilty, he filed a notice of appeal on 17th March, 2009 containing a single ground of appeal. By leave of this court, appellant filed 10 additional grounds of appeal and urged the court to allow him to argue the totality of the original and additional grounds of appeal which was granted.
From the 11 grounds, the appellant has raised two issues for determination and they read as follows:
“a.) Whether the respondent proved the offence charged against the appellant notwithstanding the plea of guilty by the appellant – grounds 2, 5, 6, 7, 8 and 9.
(b) Whether the none service of Exhibits on the appellant prior to their being tendered in court coupled with the reliance by the court on the review of fact by the prosecutor in the absence of witnesses was not unfair to and resulted in a miscarriage of justice to the appellant. Grounds 3, 4, and 10.”
From the appellants’ issues one and two from which the nine grounds of appeal were distilled, it is now clear that the appellant has abandoned the original ground 1 and the additional ground 11. The two grounds of appeal are therefore struck out.
The respondents’ brief of argument is dated 18th May, 2010, from which appellants’ similar issues are raised for determination. I feel that there is no need to re-produce the identical issues.
The appellants’ main contention is that the offence charged against him for whom he was convicted and sentenced was not proved against him, despite the fact that he had clearly pleaded guilty. Learned counsel for the appellant relied on section 138 (1) of the Evidence Act where it is provided that if the commission of a crime by a party to any proceeding is in issue, it must be proved beyond reasonable doubt.
The appellant has argued that the offence charged against him was for the offence of cannabis sativa, which should have been proved beyond reasonable doubt. In my considered finding, the appellant’s issue on cannabis sativa is fallacious because there is a word of clear difference between cocaine substance and cannabis sativa. Cocaine is defined as an addictive drug obtained from the leaves of the coca plant, which is sometimes used medically as local anesthetics but more commonly used as an illegal stimulant. On the other hand, cannabis sativa is defined as a narcotic drug, prepared from the leaves and flowers of the hemp plant, that produces euphoria or hallucinations when smoked or swallowed, and the use of which is prohibited in Nigeria and many other nations. See Chambers 21st Century Dictionary pages 264 and 206. All that I am saying is that, the appellant goofed completely on the offence on which he was charged and convicted. More over, his extra judicial confessions as can be found on pages 2-4 of the record is very clear as there was no pressure on appellant. The confessional statement is hereby reproduced as follows:
“The police stopped us they asked us to search ourselves. I put my hand in my pockets and brought out my wallet handkerchief and my cocaine. The Police later allowed the bike man and Mr. Iommadari to go and arrested me then took me to their office at Bori. Today Monday August 25th 2008 at about 12.00 noon, the police handed me over to some officers whom I later known to be NDLEA officers with my cocaine. The cocaine was the one I bought from one keke Unkiev of Gbodo village about four days before my arrest. I bought it at the rate of N250 per pinch. The eight pinches costing N2000. I collected the cocaine on credit, ho one kobo was give to keke Unkiev the day I received the cocaine. I only told him that I would give him the only as soon as I see it. The drug re cocaine(sic) was my first time of collecting from keke. I have never sold it before. I intended to market it to any body that asks of it. I told keke that I would return it back to him if I could not market it. In NDLEA office, my cocaine was counted to give eight =8= pinches, tested and shows colours for cocaine and weighed 0.4 grams in my presence. The officers issued some forms on which I signed and thumb printed. I plead with this office to pardon me; I will not sell it again. This is all”.
Since the appellant’s counsel can not make the essential elements of the offence of cocaine on which the prosecution charged and proved beyond reasonable doubt, which was voluntarily confessed and knowingly pleaded guilty when the offence of possession of cocaine was fully explained, the requirement of section 138 (1) of the Evidence Act was properly established.
It is an idle talk for the appellant and his counsel, to say that, the charges on the offence of possession of cocaine was not explained to the appellant. This is also fallacious. At page 11 of the record, the trial judge clearly stated in black and white as follows:
“PLEA OF ACCUSED
Charge is read to accused person who pleads guilty to the charge.”
At the same pages 11 and 12 of the record, the prosecution still pleaded the facts as contained in the charge sheet, and despite the plea of guilt, the prosecution also humbly applied to tender all the ingredients of the drug found on the appellant. They include the certificate of Test Analysis and proved that the drug is cocaine; the package of substance from scientific aid form; the receipt issued to the appellant and the confessional statement made by the accused/appellant were also tendered. In other words, exhibits A, B, C, D, E and F were tendered before the trial court in the presence of the appellant, and it is stated that,
“Accused does not object to any of the exhibits.”
From the above findings in tendering the six exhibits, the appellant’s arguments in issues 1 and 2 are very weak and unacceptable because the respondent successfully discharged the onus placed on it as required by section 218 and 285 (1) and (2) of the Criminal Procedure Act which allowed the trial court to convict and sentenced the appellant. Sections 218 and 285 (1) and (2) are reproduced and they read thus:
Section 218 of the Criminal Procedure Act provides as follows:
“If the accused pleads guilty to any offence with which he is charged the court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to admit the trust of all the essentials of the offence of which he has pleaded guilty, the court shall convict him of that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary”
Similarly, Section 285 (1) and (2) provides.
(1) “At the commencement of the hearing, the court shall state or cause to be stated to the defendant the substance of the complaint and shall ask him whether he is guilty or not guilt”.
(2) “If the defendant says that he is guilty and the Court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why Sentence should not be passed, the court shall proceed to sentence”.
From the quoted above provisions of the CPA, once the accused has pleaded guilty to the offence and he had shown that he intended to plead guilty, the trial court can lawfully convict the accused without asking the prosecution to call witnesses any more. In the instant appeal as ably argued by the respondent, the prosecution still went ahead and tendered all the six exhibits and the appellant had no objection to the tendering of same.
In law, confessional statement of an accused person is the best and strongest evidence against him as it determines his guilt. The confessional statement is very relevant and admissible against the accused in a criminal trial as done in the instant matter; see the golden principle on confessional statement made by the Supreme Court erudite, Niki Tobi, JSC in the case of Omoju V. Federal Republic of Nigeria (2008) 33 NSCQR Vol. 33 part 1, 75 at 98. His Lordship, Tobi, JSC, still authoritatively stated at page 100 of the case of Omoju V. FRN (supra) that:-
“…by entering a guilty plea, hearing is foreclosed as the next and last procedural step of the judge is to convict and pass appropriate sentence.”
From the above quoted cases of Omoju V. FRN (supra), referred to and relied upon by the learned counsel for the respondent, I whole hearted agree that the charge made against the appellant was properly proved by the prosecution. The appeal is therefore dismissed as there is no merit what so ever.

M. DATTIJO MUHAMMAD, (OFR), J.C.A: I had a preview of the lead judgment of my learned brother THOMAS JCA. I agree with him that the evidence against the Appellant is overwhelming. The trial court has done a meticulous job and this court lacks the competence of interfering with a decision that clearly draws from the evidence placed before the court. For all the reasons adumbrated in the lead judgment, I also dismiss the appeal and affirm the lower court’s judgment.

T. O. AWOTOYE, J.C.A.: I have had the opportunity of reading the draft of the judgment just delivered by my learned brother THOMAS JCA. I am in full agreement with the reasonings and conclusion therein.
The record of proceedings is clear on what the learned trial judge did at every stage of the proceedings. Since the appellant has not indicted the record of the lower court it must be presumed to have been regularly made. See section 150(1) of the Evidence Act.
The charge was read to the accused (See page 11 of record) Accused pleaded guilty. The prosecutor tendered each of the exhibits relied upon including the statement of the accused.
The record on page 12 as recorded by the learned trial judge reads.
“Accused does not object to any of the exhibits.”
After all these the lower court proceeded to convict the accused. There is nothing else, in my respectful view for the lower court to do see sections 218 and 285 of the Criminal Procedure Act see also OMOJU V. FRN (2008) 33 NSCQR 33 page 75.
I therefore agree that the Respondent proved the offence charged against the appellant.
By way of addition I wish to comment on the issue of non service of Exhibits on the appellants prior to their being tendered in court raised in the second issue of the appellant.
The second issue formulated by the appellant reads thus:
“Whether the non-service of Exhibits on the Appellant prior to their being tendered in court carpled with the reliance by the court on the review of fact by the prosecutor in the absence of witnesses was not unfair to and resulted in a miscarriage of justice to the Appellant?”
Learned counsel in arguing this issue relied heavily on the provisions of section 36(6) of the 1999 Constitution sections 42 and 43 of the Evidence Act. He also relied on the case of ANYAKPELE V. NIGERIAN ARMY (2000) 13 NWLR (pt. 684) 209 222.
The Respondents reaction to the above submission is that for the alleged irregularity to vitiate the proceedings it must be proved by the appellant that it had led to miscarriage of justice. Learned counsel for the Respondent cited CYRIL UDEH V. THE STATE (2001) 2 ACLR page 356.
I agree with the brilliant submission of learned counsel for the Respondent on this. The accused in his unretracted statement stated that the substance was tested in his presence at NDLEA’s office and that it showed colour of COCAINE. He had no doubt as to what he carried and was not suspicious of the test conducted as it was done in his presence. The packing of the substance, as per EXHIBIT “C” was done in his presence. In fact he signed the form. He signed the request for scientific analysis Exhibit “D” and the receipt Exhibit “E”. All these were tendered and he did not object to them. I am therefore unable to see how injustice was to done to the appellant.
I have also carefully gone through the provision of section 43 of the Evidence Act cited by learned counsel for the Appellant on this issue. It reads:-
“Where any such certificate is intended to be produced by either party to the proceedings, a copy thereof shall be sent to the other party at least ten clear days before the day appointed for the hearing and if it is not so sent the court may, if it thinks fit, adjourn the hearing on such terms as may seem proper.”
Even though the word shall is employed for the service of the certificate intended to be used on the accused (in this case) at least 10 days before the day of hearing, if this is not done, the court may if it thinks fit adjourn the hearing on such terms as may seem proper.
Though the word shall used in generally regarded as MANDATORY the permissiveness and discretion given to the trial court in the circumstance whittles down the mandatory force of the “SHALL” used. It means the court should do what it considers proper or fair in the circumstance.
If applied to this case, the court obviously but rightly did not consider it necessary to adjourn to enable the accused see the certificates or documents prepared with the accused’s active involvement and in respect of which the accused did not object.
For the above reasons and the fuller reasons given in the lead judgment I hold that this appear racks merit.
It is accordingly dismissed.