GBENGA ADEKOYA v. THE STATE (2014)

GBENGA ADEKOYA v. THE STATE

(2014)LCN/7014(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of March, 2014

CA/I/225/2012

RATIO

GUIDING PRINCIPLES IN DECIDING AN APPELATE COURT’S INTERFERENCE WITH THE SENTENCE OF A LOWER COURT

It is trite law that, this court cannot interfere with the sentence passed by a trial court unless there is an appeal against sentence. When there is an appeal against sentence, an appeal court would bear in mind that the ‘sentence to be imposed upon conviction is at the discretion of the trial court, who saw and heard the Appellant during the trial; provided such discretion is not exercised arbitrarily or whimsically, in the sense that a sentence is imposed in excess of that prescribed by the Law creating the offence for which the Appellant was convicted. The general principle of law guiding an Appellate Court in deciding whether or not to interfere with the sentence passed by the Lower Court are that:

An appeal Court should not interfere with a sentence on appeal, merely because the justices would have passed a different sentence had they tried the case at first instance.
The facts of the particular case should be considered.
The justices of the Court of Appeal should review the sentence only which is shown to be manifestly excessive or inadequate or based on wrong principles.

See Blessing Toyin Omokuwajo v. Federal Republic of Nigeria (2013) LPELR – 20184 (S.C). Per HARUNA SIMON TSAMMANI, J.C.A.

WHETHER AN ACCUSED PERSON IS DEEMED TO HAVE UNDERSTOOD THE CHARGE READ ONCE HE OR SHE PLEADS TO SAME

It is clear therefore that once an accused person pleads to a charge it is deemed that he understood the charge as read to him. The mere fact of pleading: whether “guilty” or “not guilty” is sufficient to impute on him knowledge that he understood the charge read against him.In the instant case, it is apparent that the appellant understood what he was pleading to or pleaded to and unequivocally pleaded guilty thereto. The learned trial judge assured and thus satisfied himself that the appellant understood the essentials of the charges read against him. Per HARUNA SIMON TSAMMANI, J.C.A.

WHETHER AN ACCUSED PERSON CAN STILL MAKE A DEFENCE AFTER A PLEA OF GUILTY

Accordingly, where a plea of guilty is made, all the law requires of the trial judge is to satisfy himself that the accused person understood the allegation against him and is therefore admitting the truth of the facts garnered against him. The trial judge satisfies himself that the accused intends to plead guilty by putting questions to him, so as to ensure that the accused knows what he is doing. After satisfying himself that the accused person intends to plead guilty, from the nature of answers he gives to the questions put to him, he may proceed to convict. See Amanchukwu v. F.R.N. (2009) 8 (Pt. 1144) p. 475 at 488 paragraphs C – D; Torri v. National Park Services of Nigeria (2011) 3 NWLR (Pt. 1264) p. 365 at 387 paragraphs C – H. Thus, all that Section 218 of the Criminal Procedure Law (supra) requires is for the trial judge to satisfy himself that the accused person intended to admit the truth of all the essentials of the offence. Whether or not the judge is satisfied is a subjective judgment, as the moment he is satisfied, he can convict thereon. See Omoju v. F.R.N. (2008) 7 NWLR (Pt. 1085) p. 38 at 62. Per HARUNA SIMON TSAMMANI, J.C.A.

WHETHER TWO OR MORE ISSUES MAY BE FORMULATED FROM ONE GROUND OF APPEAL

It is settled law that, although counsel is at liberty to formulate an issue out of a ground of appeal, he is not permitted to formulate two or more issues out of one ground of appeal. It is equally true that, while counsel may formulate fewer issues than the number of grounds of appeal he cannot formulate more issues than the grounds of appeal. Thus Tabai, JSC in the case of Teriba v. Adeyemo (2010) 11 NWLR (Pt. 1211) p. 242 at 255 paras. D – E held that:

The settled principle is that it is not proper to proliferate issues for determination to the extent of their out numbering the grounds of appeal. This is because, issues must of necessity be predicated on or arise from grounds of appeal; they can only be either equal to or less than the grounds of appeal and not more. Thus, while two or more grounds of appeal can by some dexterity, be considered in an issue, it is not desirable to split a ground of appeal into a number of issues…”

Similarly, in the case of Orji v. The State (2008) 4 S.C.N.J. p. 85 at 94 it was held that:

“Issues for determination are supposed to be distill from the grounds of appeal filed by an appellant, and not raised capriciously. They must not out-number the grounds of appeal, for where they so outnumber them there is the danger that some of the issues do not derive their source from the grounds of appeal, and therefor are not related to one another. It is trite that an issue that does not so relate will not be tolerated…”

It is therefore obvious that proliferation of issues for determination or formulation of issues in excess of the number of grounds of appeal filed is seriously frowned upon. See also Ahadu v. The Commandant, P. C., Maiduguri (2009) 15 NWLR (Pt. 1163) p. 75; G.K.F.I. (Nig.) Ltd v. NITEL Plc (2009) 15 NWLR (Pt. 1164) p. 344; Ogbe v. Asade (2009) 18 NWLR (Pt. 1172) p. 106 at 125 per Chukwumaeneh, JSC, Okwuegbala v. Ikwueme (2010) 19 NWLR (Pt. 1226) P. 54 at 62-63 Per Onnoghen, JSC and Colito (Nig) Ltd v. Daibu (2010) 2 NWLR (Pt. 1178) p. 213. Accordingly, where issues for determination are proliferred, as done by the Appellant in the instant case, those issues are incompetent and therefore ought to be struck out together with the brief of Arguments, save where there are cogent and compelling reasons to order otherwise. See Kalu v. Odili (1992) 2 NWLR (Pt. 240) p.130 and Ehuwa v. O.S.I.E.C. (2006) 18 NWLR (Pt. 1017) p. 544. See also Jamiu v. Ayinla (2009) 17 NWLR (1170) p. 238.

It is perhaps due to the desire to see to it that proliferation of issues for determination in an appeal is avoided that, it has become the practice that the ground of appeal from which an issue for determination is distilled is indicated. This is because, indicating the grounds from which the issues for determination are derived, would ease the determination of the competence of such issues in an appeal, where an objection is raised as to the competence of such issues. In the instant case, the Appellant did not indicate the grounds from which the issues he formulated for determination are derived from similarly, though learned counsel for the Respondent diligently abided by the rules where he formulated only three issues for determination from the four grounds of appeal, he did not however indicate from which grounds of appeal those issues are derived from. In that respect, to resort to the issues formulated by the Respondent in the determination of this appeal, may not meet the justice of the case.

I had found earlier in the course of this judgment that, where issues in an appeal are proliferated, they become incompetent and therefore liable to be struck out together with the brief. However, one other side of the law is that, where there are competent grounds of appeal, an Appellate Court, rather than strike out the issues formulated by the appellant for being incompetent, should look at the grounds of appeal and proceed to formulate issues therefrom for a just determination of the real issues in controversy in the appeal. This is moreso in a criminal proceeding where the liberty of the citizen is at stake. See Obi-Odu v. Duke (2006) 1 NWLR (Pt. 961) p. 375; Colito (Nig). Ltd. v. Daibu (supra) at p.265; Ejiogu v. Irona (2009) 4 NWLR (Pt. 1132) p. 513; Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) p. 134 at 156 and Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) p. 506 at 524. Per HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES:

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

GBENGA ADEKOYA – Appellant(s)

AND

THE STATE – Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): The Appellant herein and three other persons were arraigned, tried and convicted by the Ogun State High Court sitting at Abeokuta for having committed sundry offences of conspiracy to commit felony, stealing and uttering false documents, which are offences punishable under Section 516, 390 and 468 respectively of Criminal Code Law, Cap. 29, Laws of Ogun State of Nigeria, 1978.

The prosecution’s case against the Appellant and his co-accused persons is that, a routine audit was conducted by the defunct National Electric Power Authority (N.E.P.A), Abeokuta District office on the 20th October, 2003. That during the audit exercise, the Appellant (Gbenga Adekoya) held himself out as Gbenga Afolayan Amos for the purpose of collecting payment as a pensioner for the defunct National Electric Power Authority (NEPA). According to the prosecution, the audit exercise was conducted consequent upon discovery during checks on the payment vouchers of pensioners at the Abeokuta District Office which revealed that six (6) fake pensioners were on the Pay-Roll. Upon the arrest of the Appellant and his co-accused, they were arraigned on the 6th day of December, 2011 for the offences stated above.

When the Appellant and the other three accused persons were arraigned, they all pleaded not guilty on all the counts, whereupon the matter proceeded to trial. However, after the PW4 had completed his testimony and the court resumed on the 20/3/2012, learned counsel for the Appellant informed, the court that the accused persons (including the Appellant on record) intended to change their plea, so that there will be no need for further hearing in the matter. He therefore sought for and was granted an adjournment to enable him further consult with the accused persons on the issue. When the court resumed on the 2nd day of April, 2012, learned counsel for the defence affirmed the previous position taken by the defence, when he informed the court that the accused persons intended to change their plea. The learned trial judge then directed the Registrar to read and explain the charges to the accused persons. That was done in respect of each count and to each of the accused persons to which the charges applied. They all pleaded guilty, whereof the learned trial judge proceeded to convict each of them (including the Appellant) thereon. The Appellant who was the 3rd accused person at the trial, was consequently sentenced to seven (7) years imprisonment on each of counts 1, 2, 3 and 11, and fourteen (14) years in respect of count 14. The sentences are to run concurrently. The Appellant is aggrieved by the decision of the trial court and has now
approached this Court for relief.

The Notice of Appeal which is contained at pages 89-94 of the record of appeal was undated but filed on the 13/7/2012. By the Notice of Appeal, the Appeal raised four (4) Grounds of Appeal, which I endeavour to reproduce below (but without their particulars) for a better understanding of the issues involved in this appeal.
Those Grounds are:-
1. The learned trial judge erred in law in convicting the third accused person/appellant on counts 1, 2, 3, 11 and 14 of the Information.
2. The learned trial judge erred in law in convicting the defendants on counts 1, 2, 3, 11 and 14 of the Information where the statement of the accused person to the police is inconsistent with the plea of guilty.
3. The trial judge showed bias by sentencing the 3rd accused person to the maximum punishment when the alleged crime is not a capital offence.
4. The trial judge erred in law in convicting and sentencing the 3rd accused Person/Appellant on counts 1, 2 and 3 of the Information.

In obedience to the Rules of this Court, the parties filed and exchanged briefs of arguments. The Appellant’s Brief of Arguments is dated the 23/10/12 and filed the 24/10/12. Therein, the Appellant formulated seven (7) issues for determination out of the four (4) Grounds of Appeal. The Respondent’s Brief of Arguments is dated the 25/4/2013 and filed the same date, but deemed filed the 10/6/2013. Three (3) issues were formulated by the Respondent at page 6 of the Respondent’s Brief of Arguments. Before I proceed however, I wish to point out again that the Appellant distilled seven issues for determination out of the four Grounds of Appeal filed.

It is due to the above stated reason that learned counsel for the respondent drew out attention to the number of issues formulated by the appellant, which he submits are proliferated. He however cited the case of Amadasun v. Atirie (2010) All FWLR (Pt. 505) p. 1728 at 1744 paras F-H, to contend that the proliferation of issues will not nullify the Appellant’s brief.

It is not in doubt that learned counsel for the Appellant formulated seven issues out of the four grounds of appeal. It is settled law that, although counsel is at liberty to formulate an issue out of a ground of appeal, he is not permitted to formulate two or more issues out of one ground of appeal. It is equally true that, while counsel may formulate fewer issues than the number of grounds of appeal he cannot formulate more issues than the grounds of appeal. Thus Tabai, JSC in the case of Teriba v. Adeyemo (2010) 11 NWLR (Pt. 1211) p. 242 at 255 paras. D – E held that:
The settled principle is that it is not proper to proliferate issues for determination to the extent of their out numbering the grounds of appeal. This is because, issues must of necessity be predicated on or arise from grounds of appeal; they can only be either equal to or less than the grounds of appeal and not more. Thus, while two or more grounds of appeal can by some dexterity, be considered in an issue, it is not desirable to split a ground of appeal into a number of issues…”
Similarly, in the case of Orji v. The State (2008) 4 S.C.N.J. p. 85 at 94 it was held that:
“Issues for determination are supposed to be distill from the grounds of appeal filed by an appellant, and not raised capriciously. They must not out-number the grounds of appeal, for where they so outnumber them there is the danger that some of the issues do not derive their source from the grounds of appeal, and therefor are not related to one another. It is trite that an issue that does not so relate will not be tolerated…”
It is therefore obvious that proliferation of issues for determination or formulation of issues in excess of the number of grounds of appeal filed is seriously frowned upon. See also Ahadu v. The Commandant, P. C., Maiduguri (2009) 15 NWLR (Pt. 1163) p. 75; G.K.F.I. (Nig.) Ltd v. NITEL Plc (2009) 15 NWLR (Pt. 1164) p. 344; Ogbe v. Asade (2009) 18 NWLR (Pt. 1172) p. 106 at 125 per Chukwumaeneh, JSC, Okwuegbala v. Ikwueme (2010) 19 NWLR (Pt. 1226) P. 54 at 62-63 Per Onnoghen, JSC and Colito (Nig) Ltd v. Daibu (2010) 2 NWLR (Pt. 1178) p. 213. Accordingly, where issues for determination are proliferred, as done by the Appellant in the instant case, those issues are incompetent and therefore ought to be struck out together with the brief of Arguments, save where there are cogent and compelling reasons to order otherwise. See Kalu v. Odili (1992) 2 NWLR (Pt. 240) p.130 and Ehuwa v. O.S.I.E.C. (2006) 18 NWLR (Pt. 1017) p. 544. See also Jamiu v. Ayinla (2009) 17 NWLR (1170) p. 238.

I had found earlier in the course of this judgment that, where issues in an appeal are proliferated, they become incompetent and therefore liable to be struck out together with the brief. However, one other side of the law is that, where there are competent grounds of appeal, an Appellate Court, rather than strike out the issues formulated by the appellant for being incompetent, should look at the grounds of appeal and proceed to formulate issues therefrom for a just determination of the real issues in controversy in the appeal. This is moreso in a criminal proceeding where the liberty of the citizen is at stake. See Obi-Odu v. Duke (2006) 1 NWLR (Pt. 961) p. 375; Colito (Nig). Ltd. v. Daibu (supra) at p.265; Ejiogu v. Irona (2009) 4 NWLR (Pt. 1132) p. 513; Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) p. 134 at 156 and Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) p. 506 at 524.

It is on the above premise that, I shall endeavour to formulate the issues which I consider as germane for the determination of this appeal. Accordingly, I hereby formulate the following issues for the determination of this appeal:-
1. Whether the learned trial judge was right when he convicted the Appellant based on his plea of guilty?
(Grounds 1, 2 and 4),
2. Whether the learned trial judge was right when he sentenced the Appellant to a maximum of the sentence prescribed by the Law in respect of each of the counts for which he was convicted? (Ground 3).

I now proceed to consider the arguments of the parties as put forward in their respective briefs of arguments as they relate to the issues formulated by the above.
Now, learned counsel for the Appellant submitted that the burden of proof lies on the prosecution and that such burden does not shift. He then cited the cases of Eme Orji v. The State (2008) 163 LRCN p. 58 at 62 – 64; Isibor v. The State (2004) I.C.A.C. p. 1 at 103 and Section 131 (1) & (2) and 132 of the Evidence Act, 2011 to further submit that it is mandatory for the prosecution to prove its case beyond reasonable doubt, even where the accused person has pleaded guilty to the charge. That the learned trial judge erred when he convicted and sentenced the Appellant when there was no evidence to support the charge against him.

On the charge of stealing, learned counsel submitted that, the evidence revealed that the Appellant previously worked with NEPA and subsequently resigned after a period of ten years service, and was therefore entitled to collect pension. That pension documents were processed for him and was accordingly being paid pension until he was prevented by the complainants on the pretext that he was not entitled to collect pensions. We were accordingly urged to quash the conviction of stealing against the Appellant.

In respect of the charge of uttering a false document under Section 468 of the Criminal Code, it was contended that the Appellant did not offend the provision of Section 468 of the Criminal Code Law of Ogun State as he believed that the pension papers processed for him are genuine. That there is no evidence to controvert that assertion which he made to the police.

It was finally submitted by the Appellant that, the sudden change in the plea of the Appellant was not consistent with the fact in his statement he made to the police; and that he was only persuaded by his former counsel to change his plea with the view of securing freedom from further imprisonment. We were then urged to discountenance the change in the plea as it is inconsistent with the statement of the Appellant. Learned counsel also urged us to consider the issue of bias of the trial court where he imposed maximum terms of imprisonments on the Appellant, and to “graciously” reduce those terms to the barest minimum.

Learned counsel for the Respondent contended that by Section 218 of the Criminal Procedure Code of the Ogun State, 2006, where an accused person pleads guilty, the court is required to:-
(a) Satisfy itself that the accused understood the charge against him, after the charge has been read and explained to him;
(b) Hear facts alleged by the prosecution as constituting the offence charged;
(c) Satisfy itself that the accused intended by the plea tp admit the commission of the offence or offences charged; and
(d) Satisfy itself that the facts stated by the prosecution sustain the charged against the accused.

That in the instant case, where the accused persons, including the Appellant indicated the intention to change their plea from one of not guilty to guilty, the charge was read again to them by the Registrar of the court in the Yoruba language. That counts 1, 2, 3, 11 and 14 which involved the Appellant were so read to him, he said he understood same and proceeded to plead guilty to each charge. That the learned trial judge further requested to know from the Appellant if he actually intended to plead guilty to the charges and he answered in the affirmative. Learned counsel for the Respondent therefore submitted that the Appellant left no one in doubt that he understood what transpired in court and that he infact intended to plead guilty to the facts relating to the charges against him. Furthermore, that the prosecution had called four witnesses who had testified before the Appellant decided to change his plea to one of guilty, and there was therefore evidence before the court to sustain the charges to which the Appellant pleaded guilty to. It was accordingly submitted that, it was when the Appellant heard the overwhelming evidence against him that he changed his plea to one of guilty. The case of Agbogu v. Okoye (2008) All FWLR (Pt. 414) p. 1494 at 1614 para. F was cited in support.

It was further contended by learned counsel for the Respondent that from the testimony of the PW1, PW2, PW3 and PW4 as well as the facts contained in the information paper before the trial court that, it has been established that the Appellant was part of the grand plan to and did draw pension from N.E.P.A. illegally and without authorization. That it was those facts that were commended to the learned trial judge as the facts relied on by the prosecution in proof of the charges against the Appellant. It was therefore submitted that, those facts proved beyond reasonable doubt that the Appellant conspired with his co-accused to steal N.E.P.A. money; that he forged N.E.P.A. pension identity card and N.E.P.A. Payment of Pension letter, which he uttered to N.E.P.A. to collect pension illegally, thereby stealing the sum of Four Hundred and eighty-forty thousand and fifty-eight Naira, eighty kobo (N484,058:08).

Learned counsel for the Respondent went on to submit that, the contention of the Appellants that the trial court should have insisted that the prosecution continued with the trial, even after the plea of guilty by the Appellant is not supported by any law. That under Section 287 (1) of the Criminal Procedure Law of Ogun State, 2006, the trial court is only enjoined to call upon accused’s counsel to proceed with the defence; on the premise that the Legal practitioner by virtue of his training knows what to do and how to do it. The case of Nwachukwu v. State (2004) 17 NWLR (Pt. 902) p. 262 at 274 – 275 paras. H – A was cited in support. It was therefore contended that, there is nothing on the record to show that learned counsel for the Appellant persuaded the Appellant and his co-accused to change their plea, but merely helped them to make up their minds judging from the facts of the case. That where an accused person pleads guilty to an offence and the trial judge had complied with Section 218 of the Criminal Procedure Law, 2006, the next duty of the trial court is to proceed to convict upon such a plea; and therefore the learned trial judge was right to have brought the trial to an abrupt end.

On the Appellant’s statement to the police that he was an employee of N.E.P.A, and thus entitled to pension, learned counsel for the Respondent submitted that such statement showed that the documents the Appellant presented for the purposes of collecting pension were procured or forged for him by the 1st accused at the trial, and who had nothing to do with N.E.P.A. pension office. That in any case, the Appellant never contended in his statement that he was entitled to pension, but his confessional statement showed that he was not collecting pension in his own name but in the name of one Afolayan Amos. It was therefore submitted that there were enough facts to show that the Appellant knew that he was not entitled to any pension from N.E.P.A. and that the money he was collecting was not his entitlement.

On the charge of conspiracy, it is the contention of learned counsel for the Respondent that, the offence is completed when it is shown that there was a formation of a scheme or agreement between the parties, but for the doing of the act for which the conspiracy is formed. That in a charge of conspiracy, proof of the actual agreement which is an essential ingredient of the crime is not always easy to come by, the proof of conspiracy is generally a matter of plausible inference deduced from certain criminal acts of the accused done in pursuance of the agreement between the conspirators. He cited the case of Ojo v. F.R.N. (2009) All FWLR (Pt. 494) p. 1461 at 1500 – 1501 paras C – A, to further submit that, the court can actually infer a conspiracy and convict on it if it is satisfied from the evidence that the accused persons pursued, by their acts, the same object, by one performing one part of the act and the other performing the other part of the same act so as to complete their lawful design. It was therefore submitted that, the facts as presented by the prosecution showed clearly that the 1st accused was the one who procured the forged pension letter and identity cards for the other accused persons, including the Appellant. That the Appellant admitted those facts in his statement to the police and further explained how he shared the proceeds with his co-accused (1st accused).

Learned counsel for the Appellant relied on the case of Agbogu v. Okoye (2008) All FWLR (Pt. 414) p. 1494 at 1514 para F, to further submit that, from the facts before him, the learned trial judge dutifully ascertained that the Appellant actually intended to and meant to plead guilty to the five counts involving him. We were accordingly urged to dismiss the appeal on this ground.

The Appellant filed a Reply to the Respondent’s Brief of Arguments. It is dated the 22/6/2013 and filed the 24/6/2013. That reply brief in substance did not add any value to the arguments of the Appellant as canvassed in his Appellant’s Brief of Arguments; rather, it was substantially remarks and criticism of the Appellant’s learned counsel who represented him at the court below. That aside, the said Reply Brief did not address any issue raised in the Respondent’s brief of arguments. Surely, that is not the purpose of a reply brief. The function of a reply brief is to refute any new arguments raised in the respondent’s brief. It is mainly needed when an issue of law or new questions have been raised in the respondent’s brief of arguments. Accordingly, where it is necessary, it should be limited to answering new points arising from the Respondent’s Brief. See Mini Lodge Ltd v. Ngei (2009) 18 NWLR (pt. 1173) p. 254; Longe v. F.B.N. Plc (2010) 6 NWLR (Pt. 1189) p. 1; Ojiogu v. Ojiogu (2010) 9 NWLR (Pt. 1189) p. 1 and Akayepe v. Akayepe (2009) 11 NWLR (Pt. 1152) p. 217. Where a reply brief is filed in breach of such rules, it becomes otiose and accordingly discountenanced. See B. M. Ltd v. Woermann-Line (2009) 13 NWLR (Pt. 1157) p. 149; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) p. 81 and Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) p. 460 at 469. I therefore discountenance the Appellant’s Reply Brief filed on the 24/6/2013.

Now, the facts on record show that the Appellant was tried along with others on several counts of conspiracy to steal, stealing, forgery and uttering forged documents, which are offences punishable under Sections 516, 467 (3), 390 and 468 of the Criminal Code Law; Cap. 29, Laws of Ogun State of Nigeria, 1978. On the 20th day of December, 2006, when the Appellant was arraigned with his co-accused persons, he pleaded not guilty on all the counts involving him. That was before Hon. Justice Ayobode Lokulo-Sodipe; J (as he then was). Specifically, the Appellant was involved in counts 1, 2, 3, 11 and 14 of the charge. However, the matter was re-assigned to Hon. Justice N. I. Saula and the matter began denovo. On the 6th day of December, 2011 all the accused persons including the Appellant were arraigned whereof they again pleaded not guilty to the charges against them. The prosecution then opened their case by calling four (4) witnesses who testified as PW1, PW2, PW3 and PW4. All the witnesses were cross-examined by the defence. When the PW4 concluded his testimony on the 05/3/2012, learned counsel for the prosecution sought for an adjournment to enable him call his remaining two (2) witnesses, and the matter was adjourned to the 20/3/2012. However, on the 20/3/2012, Mr. Abibu of learned counsel for the Appellant told the court thus:-
“We intend to change our plea in this case so that we may not need further hearing. Unfortunately I was only able to meet just two of the accused persons after the last date. I will be praying the court for an adjournment to enable me meet the other accused persons.”

Learned prosecuting counsel also informed the court that, learned defence counsel had discussed the matter with him, and that he was not opposed to it, as it would save the time of the court and all concerned. The Appellant was recorded as being present in court on that date. The matter was accordingly adjourned to the 2nd of April, 2012. On the 2nd of April, 2012 the Appellant and his co-accused persons were all in court. On that day, Mr. Abibu of learned counsel for the Appellant told the court that the accused persons are changing their plea. For the purpose of this appeal, I shall take the trouble of reproducing what transpired in court on the 2/4/2012 as affects the Appellant. Below is what transpired:-
COURT:- Registrar, please read the charge to the accused persons.
Charge read and explained to the accused in Yoruba language which they said is the langurage they understand.
1st Count read in Yoruba language.
COURT: Gbenga Adekoya did you understand what was read to you?
Gbenga Adekoya – I understand.
COURT: Are you guilty or not guilty? :
Gbenga Adekoya – I am guilty
2nd Count read and interpreted in Yoruba language to them.
COURT: Gbenga Adekoya did you understand what was read to you?
Gbenga Adekoya – I understand.
COURT: Are you guilty or not guilty?
Gbenga Adekoya – I am guilty.
3rd Count read and interpreted in Yoruba Language to them.
COURT: Gbenga Adekoya did you understand what was read to you?
Gbenga Adekoya – I understand.
COURT: Are you guilty or not guilty?
Gbenga Adekoya – I am guilty
11th count read and interpreted to the 1st and 3rd accused persons.
COURT: Gbenga Adekoya did you understand what was read to you?
Gbenga Adekoya – I understand
COURT: Are you guilty or not guilty?
Gbenga Adekoya – I am guilty
14th count read and interpreted to the 3rd accused persons.
COURT: Gbenga Adekoya did you understand what was read to you?
Gbenga Adekoya – I understand.
COURT: Are you guilty or not guilty?
Gbenga Adekoya – I am guilty
COURT: Mathew Ayoola, Abbas Tijani, Gbenga Adekoya and Adelani
Olaniya, you all understood all that was read to you?
All Accused Persons – Yes.
COURT: And you all intended to plead guilty to all that were read to you?
Accused Persons:- Yes.

With that, Mr. Olaotan of learned counsel for the prosecution commended to the court the evidence already given by PW1, PW2, PW3 and PW4 for a just decision. Mr. Abibu of learned counsel for the accused persons, including the Appellant reiterated to the trial court that they have changed their plea in remorse of what they have done. The learned trial judge accordingly acted on the plea of guilty made by the Appellant and convicted him thereon.

Section 218 of the Criminal Procedure Law of Ogun State (supra) provides that:-
“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 truth of all the essentials of the offence of which he has pleaded guilty, the court shall convict him of that offence and pass the sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.”
By the above stated provision therefore, a valid plea of guilty made by an accused person, in unambiguous and unequivocal and which plea is accepted by the trial court not labouring under the misapprehension of what the law is, is sufficient to secure a conviction for an offence not punishable with death.

By entering a plea of guilty it presupposes that the accused person has admitted the truth of the facts constituting the offence. It also means that he has lost his right to defend, as in that circumstance, there is nothing to defend.

Accordingly, where a plea of guilty is made, all the law requires of the trial judge is to satisfy himself that the accused person understood the allegation against him and is therefore admitting the truth of the facts garnered against him. The trial judge satisfies himself that the accused intends to plead guilty by putting questions to him, so as to ensure that the accused knows what he is doing. After satisfying himself that the accused person intends to plead guilty, from the nature of answers he gives to the questions put to him, he may proceed to convict. See Amanchukwu v. F.R.N. (2009) 8 (Pt. 1144) p. 475 at 488 paragraphs C – D; Torri v. National Park Services of Nigeria (2011) 3 NWLR (Pt. 1264) p. 365 at 387 paragraphs C – H. Thus, all that Section 218 of the Criminal Procedure Law (supra) requires is for the trial judge to satisfy himself that the accused person intended to admit the truth of all the essentials of the offence. Whether or not the judge is satisfied is a subjective judgment, as the moment he is satisfied, he can convict thereon. See Omoju v. F.R.N. (2008) 7 NWLR (Pt. 1085) p. 38 at 62.
It would be seen therefore that, Section 218 of the Criminal Law of Ogun State requires that where an accused person pleads guilty, all the trial judge is enjoined to do is to:
(a) Record the plea of the accused person as nearly as possible in the words used by him;
(b) Be satisfied that the accused person intended to admit the truth of all the essentials of the offence of which he has pleaded guilty.
From the foregoing, it means that the plea of guilty should not be merely that of admitting the facts of the case as canvassed by the prosecution, but it must be shown that the accused person intends to admit the truth of all the essential ingredients or elements of the offence for which he has pleaded guilty. The facts of the case must therefore establish every element of the offence charged, and if from the facts admitted by the accused person, any ingredient is not positively and unequivocally answered, the trial judge is enjoined to enter or record a plea of not guilty, and call upon the prosecution to prove its case. This is so because, unless the facts stated constitute the offence the accused is called upon to plead, the accused cannot be said to have admitted committing the crime charged, because, an accused person cannot be said to have pleaded to an offence which is not disclosed by the facts before the court. See Kayode v. State (2008) 1 NWLR (Pt. 1068) p. 281

What I have laboured to show is that, it is the accepted law that, after a plea of guilty by an accused person in non-capital offences, the court is at liberty to formally proceed to convict upon such plea without calling upon the prosecution to prove the commission of the offence by discharging the burden of proof cast upon it by law. This is because, a satisfactory plea of guilty will have the effect of satisfying the required burden and standard of proof on the prosecution. My Lord, the Hon. Justice Ogunbiyi, JSC put the position succinctly in the case of Sunday Offor & Anor v. The State (2012) LPELR – 19658 (S.C) at p. 12 thereof, when he stated that:
“From the entire trial and procedure of the proceedings conducted at the trial court and which was proved by the Lower Court, it is apparent that the nature of such is governed by the principles of admissibility. In other words, with the Appellants having pleaded guilty, they are in law, deemed to have admitted the offences with which they have been charged. The law is settled that facts admitted need no further proof. The offences for which Appellants were charged are not punishable with death.”

With the above stated principles at the back of my mind, let me reprise, even at the risk of repetition the events that led to the plea of guilty by the Appellant. It would be seen beginning from pages 29 of the record when the case was started afresh before Justice N. I. Saula to page 47 (48) when a fresh plea of the appellant and his co-accused persons was taken, there were several adjournments at the instance of the defence with a view to exploring their possibility of entering a plea bargain. It was when that option failed that the accused persons, including the Appellant had to take their plea. The Appellant took his plea on the 6/12/2011 wherein he pleaded not guilty to all the charges preferred against him. The prosecution therefore called four (4) witnesses who testified as PW1, PW2, PW3 and PW4 respectively, and those witnesses were duly cross-examined by learned defence counsel. Several exhibits were also tendered by the prosecution in proof of their case. Perhaps sensing, from the abundance of evidence led by the prosecution against them, the Appellant chose the option of ending further evidence in the matter, by informing the trial court through their counsel that they intended to admit the allegations against them by pleading guilty.

Learned Counsel for the Appellant has unfairly criticized the conduct of Mr. Abibu of learned counsel for the Appellant at the court below. Learned Appellant’s counsel has contended therefore that the Appellant did not intend to plead guilty but was persuaded by Mr. Abibu of Counsel to change his plea from not guilty to that of guilty. It is trite that counsel are ministers in the temple of justice and as officers of the court, they have a duty to assist the court in doing justice rather than misleading it. Counsel also has the bounden duty to conduct his client’s case to the best of his ability, and where blunder is committed by such counsel, the client cannot be heard to complain. So long as counsel acts within the context of his brief or apparent or even ostensible authority, the client is bound by the outcome. Thus, Aderemi, JCA (as he then was) in the case of N.N.P.C. v. Trinity Mills Ins. Brokers (2003) 9 NWLR (Pt. 825) p. 384; (2002) LPELR-7142 (CA) at pp. 10 – 12 paragraphs D – F stated that:
“I should start by saying that the nature of the advocate’s office makes it clear that in the performance of his duty, he must not suffer any inhibition; he must be independent such that he can act according to his own discretion and judgment in the conduct of the case of his client. His legal right is to conduct the case without any regard to the wishes of the client, provided that his mandate has not been recalled. What he does in the circumstances I have just described, if it is done bonafide will bind his client and will not expose him (advocate or legal practitioner) to any action for what he has done even if his client’s interests are thereby prejudiced.”
His lordship further postulated in the same case cited above that:
“Though the advocate is the master of the law, the client, at the point he engages the services of a counsel, is only a master of the facts, no matter his station in life. However, for an advocate to be seen to be lawfully and properly performing his duties to his client, the mandate of his client to him must always remain intact and in the exercise of his apparent authority, he must demonstrate that the best interest of his client is always uppermost in his mind.”

In the instant case, it is apparent that Mr. Abibu of learned counsel for the Appellant was obviously not on the wrong side of the law when he advised the Appellant on the course of action to take, considering the evidence led against him at the trial. This I believe, he did in the discharge of his onerous duty to the court and his client, and the administration of justice. He had in mind his duty and allegiance to the cause of justice and truth. In any case, if the Appellant had any objections or other misgivings on the conduct of his counsel, he was in a good position to raise such issue before the trial court. He was in court when the learned counsel muted the idea of the Appellant changing his plea to that of guilty. He was equally in court when his plea was taken and he pleaded guilty to all the charges against him. In both instances, he did not raise a voice objecting to the course his counsel was leading him into, Even when the trial court asked again whether he indeed intended to plead guilty, he answered in the affirmative. If he had no intention of pleading guilty, he had the opportunity of saying so before the trial judge. There is also nothing on the record indicating that the Appellant did not understand what was going on or the charges against him, which were read to him in the Yoruba language, which is the language he said he understood. He cannot now on appeal disown his plea of guilty, which was unequivocally made at the trial court.

On the whole therefore, I am of the view that the learned trial judge duly complied with Section 218 of the Criminal Procedure Law of Ogun State (supra) when he convicted the Appellant based on his plea of guilty. All the four counts upon which he was convicted were read to him by the court Registrar in the Yoruba language, which is the language he said he understood. He unequivocal stated that he understood the charges read to him and he in unambiguous words pleaded guilty on all the counts. Thus my Lord Galadima, JSC stated in the case of Elijah Ameh Okewu v. The Federal Republic of Nigeria (2012) LPELR-7834 (S.C) at p. 40 paragraphs A-C that:
“It has been settled in a number of cases of this court that once an accused person pleads to a charge before the court without any objection, it presupposes that he understands the charges as read to him. If he does not understand the charge preferred and read to him, it is at this point he can raise an objection to that effect: See Adeniji v. The State (2001) 13 NWLR (pt. 730) p. 375. Here there is nothing to suggest that the Appellant did not understand the charge when it, was read to him. No objection is raised herein, before he pleaded guilty.”
In similar words Ariwoola, JSC in the same case cited above stated at page 21 paragraphs E – G state as follows:-
“In plethora of cases from this court, it has been held that once an accused person pleads to a charge before the court without any objection it presupposes that he understands the charge preferred and read against him. Otherwise, he would have been ordinarily expected to object and say that he does not understand the technical details of the charge. See Ogunye v. The State (1999) 5, FWLR (Pt. 604) p. 545; Adeniji v. The State (2001) 13 NWLR (Pt. 730) 375; (2001) 7 SCM 1; Gozie Okeke v. The State (2003) 5 SCM 131 at 185 – 186; Monsuru Solola & Anor v. The State (2005) 6 SCM 137 at 147.”
It is clear therefore that once an accused person pleads to a charge it is deemed that he understood the charge as read to him. The mere fact of pleading: whether “guilty” or “not guilty” is sufficient to impute on him knowledge that he understood the charge read against him.In the instant case, it is apparent that the appellant understood what he was pleading to or pleaded to and unequivocally pleaded guilty thereto. The learned trial judge assured and thus satisfied himself that the appellant understood the essentials of the charges read against him. The learned trial judge showed on the record of appeal, that he clearly understood what the law required of him in the circumstances, before he proceeded to convict the Appellant. There is nothing on the record to show that the learned trial judge labored under any misapprehension of the law applicable in the circumstance. It is therefore my view, which I firmly hold that the learned trial judge dutifully and rightly convicted the Appellant upon his plea of guilty on all the four charges of conspiracy, forgery, stealing and uttering preferred against him.

It is also obvious and apparent from the evidence led by the prosecution at the trial through PW1, PW2, PW3 and PW4, before the Appellant changed his plea to that of guilty that, all the offences upon which the Appellant pleaded guilty had been proved. In other words from the testimony of those witnesses, which learned counsel commended to the court as further guide in the case based on the plea of the Appellant and the documentary evidence tendered, that the facts adduced at the trial further supported the plea of the Appellant. Having pleaded guilty upon the facts already adduced at the trial, the learned trial judge was eminently and clearly right when he convicted the Appellant thereon.

The Appellant would appear to complain against the maximum sentences meted against him on all the five counts alleged against him. His contention is that, the learned trial judge was biased against him by imposing maximum terms of imprisonment on him. Though the Appellant raised the issue as his ground 3 on the Notice of Appeal, no argument was proffered thereon in the entire Appellant’s Brief of Arguments. It is the Respondent who took it upon itself to argue extensively on the issue. My understanding of the entire issue the Appellant intended to raise is on the sentences meted on him. This so as he had urged us to ‘graciously’ reduce those terms of imprisonment to the barest minimum as the Appellant is a first offender.

The crux of the Respondent’s contention is that, in sentencing, the law is that a trial judge has a discretion which must be exercised judiciously and judicially. That in the exercise of that discretion, the trial court must be conscious of the bounds within which he is kept by the law and which he must not exceed. That the trial court may impose the exact or lesser sentence stipulated by the law, but must not exceed the maximum prescribed by the Law. He cited the case of Stephen v. State (2009) All FWLR (pt. 491) p. 962 at 977 paragraphs E – F to submit that it is, desirable that in exercising his discretion, the trial judge should state in his judgment the factors that influenced his decision.

Learned Counsel for the Respondent further contended that, there is no law or rule that prevents a trial judge from imposing maximum sentence in a criminal matter. That what the law forbids is for the court to impose a sentence in excess of that provided by the law that creates the offence. The case of Apamid v. State (1997) 3 NWLR (pt. 493) p. 289 was cited in support. That the learned trial judge did not exceed the maximum punishment for the offences for which the Appellant was convicted. It was accordingly submitted that, the learned trial judge properly exercised his discretion judicially and judiciously, having had the opportunity of seeing and watching the demeanour of the Appellant during the trial. We were then
urged to affirm the judgment of the trial court and to uphold the sentences passed on the Appellant.

It is not contended in this appeal that the learned trial judge exceeded the sentences prescribed by the Criminal Code Law (Cap. 29), Laws of Ogun State, for the offences for which the Appellant was convicted. It therefore means that Appellant has not shown or even contended that the learned trial judge breached any Law or Rule of law or of court in imposing the maximum sentences prescribed for the offences for which he pleaded guilty to, and was consequently convicted. I have leafed through the entire provisions of the Criminal Procedure Law (Cap. 30) Laws of Ogun State, 2006, but I am unable to find any provision which mandates the trial court to impose a lesser sentence on an accused person who pleads guilty to a criminal charge. Section 218 of the Criminal Code Law (supra) only permits the trial court to proceed to convict if satisfied upon the plea of guilt by an accused person.
It is trite law that, this court cannot interfere with the sentence passed by a trial court unless there is an appeal against sentence. When there is an appeal against sentence, an appeal court would bear in mind that the ‘sentence to be imposed upon conviction is at the discretion of the trial court, who saw and heard the Appellant during the trial; provided such discretion is not exercised arbitrarily or whimsically, in the sense that a sentence is imposed in excess of that prescribed by the Law creating the offence for which the Appellant was convicted. The general principle of law guiding an Appellate Court in deciding whether or not to interfere with the sentence passed by the Lower Court are that:
1. An appeal Court should not interfere with a sentence on appeal, merely because the justices would have passed a different sentence had they tried the case at first instance.
2. The facts of the particular case should be considered.
3. The justices of the Court of Appeal should review the sentence only which is shown to be manifestly excessive or inadequate or based on wrong principles.
See Blessing Toyin Omokuwajo v. Federal Republic of Nigeria (2013) LPELR – 20184 (S.C)

In challenging the sentence imposed on him, the Appellant had a duty to demonstrate before us that the sentence imposed on him was excessive and proceed to show why it was excessive or based on wrong principle(s). In the instant case, the trial court was not shown to have exceeded the sentences prescribed for those offences against which the Appellant was convicted. Apart from the bare assertion or allegation of bias against the learned trial judge which was never supported by any valid argument or facts as disclosed on the record, the learned counsel for the Appellant utterly and woefully failed to make a case as would persuade us to interfere with the sentences passed on the Appellant. Indeed, there is no iota of evidence of bias on the part of the learned trial judge. He had imposed the sentences to be served concurrently and to commence less the time the Appellant had spent in custody, which effectively reduced the maximum terms imposed on him. I am therefore of the view that the learned trial judge effectively, judicially and judiciously exercised his discretion in sentencing the Appellant.
On that score, I decline to interfere with the sentences imposed on the Appellant by the trial court. This issue is accordingly also resolved against the Appellant.

On the whole therefore, the two issues formulated by me are hereby resolved against the Appellant. Thus, having resolved the issues against the Appellant, this appeal obviously lacks merit. On that score, I. hereby dismiss this appeal for being unmeritorious. Accordingly, I hereby affirm the judgment of the Ogun State High Court delivered by N. I. Saula, J in Suit No: AB/11C/2006, on the 17th day of April, 2012. The sentences imposed on the Appellant are also affirmed.

CHIDI NWAOMA UWA, J.C.A.: I read before now the Judgment of my learned brother Haruna Simon Tsammani, JCA, in holding that the appeal is unmeritorious. I endorse same and also affirm the Judgment of the trial Court conviction and sentence of the appellant.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my Lord Haruna Simon Tsammani J.C.A. I agree with my lord’s judgment.

Here is a case in which the Appellant changed his plea of “not guilty” to “guilty“, knowing full well what he was doing after the translation of the charge to him from English to Yoruba and proper explanation of same. He changed his plea to the knowledge of his counsel and with the support of the said counsel. Based on his plea, the trial judge convicted him, handing down the maximum sentenced prescribed for the offence. He then appears on a number of grounds including that he was given the maximum sentence. What was he thinking? Did he think that there was a quid pro quo here? – A plea of ‘guilty’ in exchange for a slap on the wrist? What follows after a plea of “guilty” was succinctly stated in the case of Dangtoe vs. Civil Service Commission Plateau State by the Supreme Court per Karibi-Whyte JSC thus:
“It is established law that after a plea of guilty by the accused before the court exercising jurisdiction in respect of criminal offences, the court must formally proceed to conviction without calling upon the accuser to prove the commission of the offence by establishing the burden of proof required by law”.

The Appellant pleaded guilty and the trial court was right in imposing the sentence that it did. I see no merit in the appeal. The judgment of the trial court is hereby affirmed.

Appearances

P. O. Alamu; Esq with E. C. Abednego Esq. For Appellant

AND

O. T. Olaotan; Esq., (D.L.D; M.O.J, Ogun State) with Ayo St. Emmanuel; Esq., (State Counsel) For Respondent