FRIDAY AGAGARAGA V. THE FEDERAL REPUBLIC OF NIGERIA
(2006)LCN/1903(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of March, 2006
CA/PH/256/2001
RATIO
APPEAL: BINDING EFFECT OF THE RECORD OF APPEAL FROM A LOWER COURT ON AN APPELLATE COURT
I must say straight away that the records of this appeal do not support this submission of the learned counsel. Section 132 of the Evidence Act, Cap 112 LFN 1990 provides for the bindingness of the records of proceedings. In the case of Mohammed Bello & 7 Ors. v. The State (1994) 5 NWLR (Pt. 343) p. 177 at 186, the Jos Division of this court held that the records of the lower court bind this court. It cannot therefore add to nor subtract from the records before it or guess or conjecture at the contents of the record of proceedings. The written brief of the learned counsel cannot supplement the records of the lower court. PER DONGBAN-MENSEM, J.C.A.
Section 44 of the NDLEA Act which gives the interpretation of the words and phrases used in the Act gives no definition nor expatiation of the terms “deals in” The Oxford Advanced Learner’s Dictionary 5th Edition by Jonathan Crowther pg. 298 states the meaning of “Deal in” as “to buy and sell something as a business. By this definition “deal in” means the same as the ingredients listed in section 10 (c) to wit “sells, buys, exposes or offers for sale…” which then, of these activities did the appellant’s plea of guilt admit to doing. PER DONGBAN-MENSEM, J.C.A.
Double jeopardy in a criminal process means being tried twice for the same offence. Section 36 (9) of the 1999 constitution prohibits the trial of a person more than once for the same criminal offence. PER DONGBAN-MENSEM, J.C.A.
JUSTICES:
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
Between
FRIDAY AGAGARAGA – Appellant(s)
AND
THE FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): On the 11th day of July 2001, the Hon. Justice A.M. Liman of the Federal High Court Holden at Umuahia, Abia State of Nigeria, convicted the appellant and sentenced him to a term of ten years imprisonment without an option of fine. The offence as stated in the charge sheet was “…dealing in 34.0 kilograrns of Indian Hemp… known as Cannabis Sativa, without lawful authority contrary to and punishable under section 10 (c) of the NDLEA Act Cap 253 of the LFN 1990” It was a short summary trial, the appellant having pleaded guilty to the offence.
The appellant has now come to this court upon three grounds of appeal challenging his conviction and sentence.
Two issues were formulated for the appellant for determination. The respondent however merged the issues of the appellant into one. I agree with the learned counsel for the respondent that the appeal can be resolved upon the issue for formulated for the respondent.
This appeal shall be determined on the said issue, which fully incorporates the three grounds of appeal filed by the appellant.
The Issue:
“Whether there was a proper arraignment and conviction of the appellant having regard to:
(a)Section 215 of the Criminal Procedure Act Cap 80 Laws of the Federal Republic of Nigeria, 1990;
(b) Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999.”
It needs to be stated that section 215 of the Criminal Procedure Law, Cap 31 Laws of Eastern Nigeria 1963 (applicable to Abia State) cited by the learned counsel to the appellant and section 215 of the Criminal Procedure Act Cap. 80 Laws of the Federation, 1990 are one and the same law. Same with section 218 as variously cited by the said learned counsel.
Citing sections 215 & 36 (6) respectively of the CPL cap 80 LFN 1990, vol. V and the Constitution of the Federal Republic of Nigeria 1999, the learned counsel to the appellant contends that the appellant was not properly arraigned before the trial court. The learned counsel submits that merely reading the charge to the appellant (as accused) without explaining same utterly violated the provisions of section 215 of the CPL & 36(6) of the 1999 Constitution. (supra). The situation, maintains counsel, was further compounded by the fact that the appellant, by the records of the court, is not literate in English language, which is the language of the court. Accused was recorded as speaking Igbo.
The learned counsel posits that by these facts alone, the entire proceedings conducted by the trial court was a nullity. Counsel cited the following cases to buttress his argument:
1. Paulinus Tobby (Alias Udo Eddy) v. The State (2001) 10 NWLR (Pt.720) 23, (2001) 30 WRN,
2. Kalu v. The State (1998) 13 NWLR (Pt. 583) P 531.
3. Durwode v. The State (2000) 15 NWLR (Pt.691) 467, (2001) 7 WRN p.50 at 61.
4. Adeniji v. The State (2001) 25 WRN, p. 117 at 126, lines 10-20.
The learned counsel to the respondent contends the contrary. Counsel submits that the records of the trial court as shown on page 2 lines 1-4 and 5 indicate that the trial court complied with the provisions of section 215 and 218 of the CPA. It is further the contention of the counsel that the charge was interpreted to the appellant, he understood and pleaded guilty thereto. The court was satisfied that the appellant understood the charge against him and intended to plead guilty to it. The court convicted and sentenced him accordingly.
I must say straight away that the records of this appeal do not support this submission of the learned counsel. Section 132 of the Evidence Act, Cap 112 LFN 1990 provides for the bindingness of the records of proceedings. In the case of Mohammed Bello & 7 Ors. v. The State (1994) 5 NWLR (Pt. 343) p. 177 at 186, the Jos Division of this court held that the records of the lower court bind this court. It cannot therefore add to nor subtract from the records before it or guess or conjecture at the contents of the record of proceedings. The written brief of the learned counsel cannot supplement the records of the lower court.
There is nothing on page 2 lines 1-4 & 5, nor on any other page of the short proceedings which shows that the trial Judge satisfied itself that the appellant fully understood the charge and intended to plead guilty to same.
The short proceedings in the suit are hereby reproduced for purposes of emphasis and the ease of reference:
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE UMUAHIA JUDICIAL DIVISION
HOLDEN AT UMUAHIA
ON WEDNESDAY THE 11TH DAY OF JULY, 2001
BEFORE THE HON. JUSTICE A. M. LIMAN
JUDGE.
CHARGE NO FHC/UM/86C/2001
BETWEEN:
THE FEDERAL REPUBLIC OF NIG. – COMPLAINANT
AND
FRIDAY AGAGARAGA – ACCUSED
Accused in Court: – Speaks Igbo.
Appearances: – B.E. Igberaese for the Complainant.
Court Clerk: – Interpreting.
Charge read to the Accused.
Accused: – I understand the charge and I plead guilty.
Igberaese: – Based on the plea of guilty of the accused I will like to tender the following in evidence:-
1. The certificate of test analysis dated the 5/5/2001 thumb printed by the accused.
2. Packing substance form thumb printed by the accused.
3. Statement of the accused dated the 25/5/2001 and thumb printed by the accused.
4. The bulk of the exhibit in the sack.
Accused: –
(1) Certificate of test analysis was thumb printed by me.
(2) Also packing of substance Form.
(3) The Statement was made by me.
Court: –
The above documents are admitted in evidence and marked as exhibit 1, 2, 3, and 3A respectively.
The bulk of the sack containing the exhibit is admitted and marked as exhibit 4.
(sgd.)
Judge
11/7/2001.”
The appellant’s plea to the charge read to him as shown supra is “I understand the charge and I plead guilty”. He was asked no question by the trial court upon his plea of guilt. By the records the next statements of the appellant were as to the exhibits tendered by the prosecution; rather short responses to serious legal proceedings.
Exactly what was the charge to which the appellant pleaded guilty? It is necessary to reproduce the said charge which is recorded at page one of the records for this appeal: –
“CHARGE
That you, Friday Agagaraga, male, adult on or about the 5th of May, 2001 at Asagba Camp, Uchie Village, Ndokwa East, Local Government Area of Delta State, within the jurisdiction of this court without lawful authority dealt in 34.0 kilogram’s of Indian hemp otherwise known as cannabis sativa, a drug similar to cocaine, Heroin, LSD and thereby committed an offence contrary to and punishable under Section 10 (c) of the National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation 1990 (as amended).
Dated this 20th day of June 2001 .
B. E. Igberaese
Prosecutor
For Attorney General of the Federation”
The offensive act is “dealing in … Indian Hemp…” what is meant by “dealing in”? The offence is contrary to and punishable under section 10 (c) of the NDLEA Act Cap 253.
The charge does not however state the nature of the punishment.
Section 10 (c) of the NDLEA Act states the ingredients of the offence as follows:-
Section “10: -” Any person who, without lawful authority –
“(c) sells, buys, exposes, or offers for sale or otherwise deals in or with the drugs popularly known as cocaine, LSD, heroine or any other similar drugs shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life, or”.
There is nothing on the records to show that these ingredients of the offence were sufficiently explained to the appellant before the trial court.
It is obvious from the records of the proceedings that the appellant was not represented by a counsel nor was the appellant recorded as being a lawyer and was therefore representing himself. The appellant spoke Igbo and the court clerk was recorded as the interpreter.
The plea of guilt of the appellant was rather too brief to be have been instantaneously acted upon as did the trial court. The offence as stated in the charge – ”dealing in…” is vague. If the appellant is understood as admitting the offence which could goal him for life, I think it incumbent on the trial Judge to satisfy itself that the appellant indeed understood what he is said to have done and the implication of same. By the provisions of section 218 of the CPA Cap 80 (supra) the trial Judge has a duty to “… satisfy itself that the accused person intended to admit the trust of all the essentials of the offence of which he has pleaded guilty…”(emphasis mine)
There is nothing in the records which show a compliance with this vital provision of the law in a proceeding which could divest the accused of his liberty for as long as ten years up to a term of imprisonment. The case of Durwode v. The State (2000) 15 NWLR (Pt.691) 467, 4 NSCQR pg 33 at 43 cited by the learned counsel to the respondent is not applicable to the facts of the instant appeal. Nor is the case of Okoro v. State (1993) 3 NWLR (Pt. 282) p 425 at 436. Appellant was not represented by counsel.
The punishment for the offence was not stated in the charge. How did the trial court comply with the provisions of section 215 of the CPL and 36 (6) of the 1999 Constitution as contended by the learned counsel for the respondent? What are the essentials of the offence to which the appellant pleaded guilty?. Incidentally, “Indian Hemp also known as cannabis Sativa” is not one of the substances listed under section 10 (c) of the NDLEA ACT.
Section 44 of the NDLEA Act which gives the interpretation of the words and phrases used in the Act gives no definition nor expatiation of the terms “deals in” The Oxford Advanced Learner’s Dictionary 5th Edition by Jonathan Crowther pg. 298 states the meaning of “Deal in” as “to buy and sell something as a business. By this definition “deal in” means the same as the ingredients listed in section 10 (c) to wit “sells, buys, exposes or offers for sale…” which then, of these activities did the appellant’s plea of guilt admit to doing?
Section 10 (c) of the Act is vast and requires some expatiation by the learned trial Judge. The alleged confessional statement of the appellant not withstanding, the trial Judge was obliged by law to satisfy itself that the accused fully comprehended the offence to which he pleaded guilty.
The Supreme Court, per Ogwuegbu JSC, declared such a mini compliance with the provisions of Section 215 of the CPL and Sec. 33(6) (a) of the 1999 Constitution as a mockery of what a plea under the law should be. (Refer Paulinus Tobby (Alias Udo Ebby) v. The State (2001) 10 NWLR (Pt.720) 23; (2001) 4 SCNJ p. 356 at 362. Also Kajubo v The State (1988) 1 NWLR (Pt. 73) p 721.
The offence carries a maximum punishment of life imprisonment.
A conviction, which can divest a citizen of Nigeria of his liberty for life is not one that should be pronounced in haste. Section 218 of the CPA (supra) referred.
The magnitude of the sentence for the offence is sufficient to compel the trial Judge to exercise slow haste in the pronouncement of a conviction and sentence on the accused person upon a perceived plea of guilt and a confessional statement.
The learned counsel to the respondent has in the brief of argument produced a beautiful treatise on what amounts to a proper arraignment in a criminal trial. None of the procedure was however complied with in the trial under review.
One would expect that as a Minister in the Temple of Justice, the learned counsel would have honourably conceded to this appeal in view of all the fundamental omissions made at the trial. A learned counsel needs not contest the obvious.
In the circumstance l of the instant appeal, the appellant cannot be said to have been informed in the language that he understands, and in detail of the nature of the offence to which he pleaded guilty, as required by section 36 (6) of the 1999 Constitution and sections 217, 218 and 285 of the CPL.
Having found that the appellant was not properly arraigned before trial court, it would be academic to consider in details whether his conviction and sentence is proper. No good can flow from a bad process.
The appellant could not have in law been convicted and sentenced in the circumstance. The said conviction and sentence are hereby set aside.
The appellant has since been serving the sentence imposed on him by this illegal process.
The learned counsel or the appellant has urged us not to order a re-trial as such order would amount to double jeopardy.
Double jeopardy in a criminal process means being tried twice for the same offence.
Section 36 (9) of the 1999 constitution prohibits the trial of a person more than once for the same criminal offence. We shall let the sleeping dogs lie.
MUHAMMAD, J.C.A.: I had a preview of the lead judgment of my learned brother DONGBAN-MENSEM, JCA, with whose reasonings and conclusion I entirely agree that this appeal has merit and same should be allowed. The few words I offer come handy purely by way of emphasis.
Appellant appeals against his conviction and sentence by the Federal High court sitting at Umuahia hereinafter referred to as the lower court. The judgment of the court is dated 11th July 2001.
The complaint against the appellant was for being in possession of Indian hemp, otherwise known as cannabis sativa, a drug similar to cocaine, heroine, LSD etc without lawful authority. Appellant’s conviction and sentencing occurred by virtue of section 10 (c) of the N.D.L.E.A. Act cap 253 of the Laws of the Federation 1990.
At the lower court, on the charge being read to the appellant, he pleaded guilty to it. There is no indication that the court had explained to and the appellant had understood the charge before pleading to it. Mr. Igberaese for the prosecution, immediately after appellant’s plea, proceeded thus: –
“Based on the plea of the accused I will like to tender the following in evidence:-
(1) The certificate of test analysis dated the 5/5/2001 thumb printed by the accused
(2) Packing substance form thumb printed by the accused.
(3) Statement of the accused dated 25/5/2000 and thumb printed by the accused.
(4) The bulk of the exhibit in the sack.”
The items were admitted in evidence and marked Exhibits 1, 2, 3, 3A, and 4 respectively.
The record of appeal further shows that the appellant, who was not represented by counsel at the lower court, admitted to having thumbed printed exhibits 1, 2 and 3. In exhibit 3, the cautionary statement of the appellant tendered from the bar rather than through the investigating police officer who recorded the statement, appellant is recorded as saying in part: –
“…..one John who is from Calabar and he told me that he wants us to plant Igbo if we harvest it we would get a lot of money and he will assist me in selling my own, so the John brought seeds of the Indian hemp while I gave my farm for the plantation. So we (ultivat) planted it and harvested it last year May and we got about 14 bags so we divide it into two he carry 7 bags and 1 carry 7 bags… So today Saturday, 05/05/01 around 2:30a.m. When we are sleeping me and my wife, officers of NDLEA came to my, house; they arrested and searched the whole of my house, and discovered five bags and one bag of the dust making six bags. I was arrested and brought to their office at Onitsha. It was weighed after testing it. It proved positive for cannabis saliva and weighed 34.0kg. I signed and thumbprint at the necessary forms brought before me while the officers who arrested me signed their own. Then I volunteered this statement.”
Exhibit 1 is the report of the chemist analysis conducted on the substance in the sack exhibit 4 found in appellant’s possession.
appellant’s admission that the substance found in his possession is Indian hemp.
The crucial issue this appeal raises is whether appellant’s admission constitutes sufficient proof, a proof beyond reasonable doubt as required by the law, that part of the substance in exhibit 4 on examination is, as certified by exhibit 1, cannabis sativa, OR whether in spite of appellant’s admission the prosecution still had the duty to have the substance scientifically examined in satisfying the quantum of proof required by law. Put differently, the appeal centres, on appellant’s plea in relation to the evidence on the basis of which the lower court convicted him.
In the instant case, exhibit 1 is the certificate of the test analysis; in respect of the substance recovered from the appellant. This complies with a chain of authorities all of which require that notwithstanding appellant’s admission, the substance he possessed must be established to be indian hemp, a plant of the genus sativa. The rational here is that there could be instances when in spite of the genuine belief of an accused person that the substance found in his possession was cannabis sativa, the substance does not in fact belong to the genus sativa which possession is proscribed by S.10 (c) of CAP 253 Laws of the Federation 1990.
In the instant case with exhibit 1, the chemist report on the substance appellant was found in possession of, prosecution appears to have adopted the correct approach. It is however of the utmost importance that the substance found in appellant’s possession was the actual one analyzed following which analysis exhibit 1 emerged. In Ishola v. The State NMLR Vol.1 (1969) 259 at 261 Kayode Eso, Justice of Appeal (the Western State Court of Appeal) (as he then was), opined as follows:
“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 the opportunity exists for this, the chain snaps and a reasonable doubt would exist as to whether the plant that was taken from the possession of the accused is the one that has been analyzed and known to be of the genus cannabis.”
I subscribe to the foregoing principle. In the case at hand appellant was arrested at Asagba in Elechie village situate within Ndokwa East Local Government Area in Delta state. His house was searched, following his arrest, wherefrom exhibit 4 was retrieved. This was on 5/5/01. He said he was “brought” to Onitsha along with the six bags of the substances found in his house. An unanswered question remains: how was appellant transported to Onitsha at which venue the substance allegedly recovered from his house was packed and scientifically analyzed? There is no evidence that between the time and place of appellant’s arrest and the time and place the retrieved substances were eventually analyzed the substance had not been tempered with. The prosecution was under duty to prove that every opportunity of tempering with the substance found in appellant’s possession had been excluded and that what was examined was the very substance and not one substituted for it. Although there does not seem to be evidence that exhibit 4 had been tempered with, evidence does not also abound that it had not been tempered with. Absence of evidence to explain what had actually occurred to the exhibits between the time of retrieval and examination has caused a snap in the chain of proof thereby creating reasonable doubt as to whether what was retrieved from appellant’s possession was indeed what was eventually examined and exhibit 1 issued as a report thereon.
Section 218 of the Criminal Procedure Act applicable to the instant case provides:-
“If the accused pleads guilty to any offence with which he is charged the court shall record his plea as hereby as possible in the words used by him and if satisfied that he intended to admit 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.”
(Underling supplied for emphasis)
I agree with appellant’s counsel that given the facts surrounding the plea extracted from the appellant it was wrong of the lower court to have preceded to convict and sentence the appellant. The court for reasons already articulated which reasons constitute “sufficient cause to the contrary, of what the appellant pleaded to, should have declined from the convicting and sentencing the appellant. See Yahaya v. Commissioner of Police NNLR (1977) 54 at 56.
For the above and the fuller reasons outlined in the lead judgment I also allow this appeal; the lower court’s conviction and sentencing of the appellant are hereby set-aside. In their place, a verdict of not guilty is resultantly entered.
THOMAS, J.C.A.: I have had the advantage of reading in advance the lead judgment of my learned brother. DONGBAN-MENSEM, JCA, just delivered.
I entirely agree with my Lord’s reasoning and conclusion that the appeal is meritorious as the appellant’s conviction and sentence are set-aside on the basis that he was not properly charged on the offence.
I would like to contribute a little by way of emphasis. In a criminal trial as in the appeal at hand when the lower court at page 2 lines 12 – 15 began and said:
“…
Accused in Court: Speaks Igbo.
Appearances: B. E. Igberaese for the complainant.
Court Clerk: Interpreting.
Charge read to the accused.”
(Italics mine)
The above-italicized proceedings show how hasty the lower court was beginning in a wrong summary trial.
When a court clerk says he is an “interpreter”, he has to state, clearly and in most cases he has to swear on oath that, he is going to interpret from language A to language B. In this appeal to be legal, the record should have stated that the court clerk interpreted from Igbo language to English language and vice versa. It is not enough to just record and say an “accused speaks in Igbo” and the clerk “interprets.”
It is also wrong and unlawful for a trial court to simply record “charge read to the accused person.” If one can ask, in what language was the charge read to the accused person? There is no answer. The proper legal way should be “the charge was read out in English language and interpreted to the accused in Igbo language which he says he speaks.
I am therefore of the considered view that, the proceedings at page 2 of the record of appeal which the appellate court and the parties are bound to, is a sufficient proof that section 218 of the Criminal Procedure Act, Cap 80, Laws of Nigeria 1990, was not complied with by the trial court. There is no doubt that the appellant was not clearly informed by the interpreter on the offence in Igbo language, that he was going to be sentenced to imprisonment for life or lesser terms based on his admission of guilt as envisaged in S.10(c) of the National Drugs Law Enforcement Agency (NDLEA) Act 253 Laws of Nigeria 1990 as amended. Still, it shows that the trial Judge had no basis to say that he was satisfied that the accused had “intended to admit the trust of all the essentials of the offence of which he has pleaded guilty” as enshrined in Section 218 of the CPA.
From the above, I am satisfied that the failure to properly interpret the charge and its consequential punishment to the accused/appellant which is mandatory, had occasioned a miscarriage of justice by not giving him his right to fair hearing as provided by S.36 (6) (6) (a) – (e) of the Constitution of Nigeria 1999 where it is clearly stated as follows:
“(6) Every person who is charged with a criminal offence shall be entitled to –
(a) Be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) Be given adequate time and facilities for the preparation of his defence
(c) Defend himself in person or by legal practitioners of his own choice:
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) Have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
The record of appeal has shown that the appellant was convicted and sentenced on 11-07-2001, with 10 years imprisonment without option of fine. See page 4. By the date of sentencing, it shows that the appellant has been imprisoned for about 4 years 6 months or thereabout to today, I therefore agree entirely in the lead judgment that it will amount to double jeopardy if the appellant is to be sent back for re-retrial. The above order is in compliance with S.36(9) of Nigeria Constitution 1999, where it is stated thus:
“36(9)
No person who shows that he has been tried by any court … for a criminal offence … shall again be tried for that offence … save upon the order of a superior court.”
On the little contributions and especially on the fuller reason and conclusions given in the lead judgment of my learned brother, Dongban-Mensem, (JCA), I allow the appeal and let sleeping dogs lie. I also make no order on cost to any of the parties.
Appearances
I. N. Ijomah For Appellant
AND
A. E. Nwagu For Respondent
