MUSTAPHA v. STATE (2021)

MUSTAPHA v. STATE

(2021)LCN/14989(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, February 08, 2021

CA/YL/27C/20

RATIO

EVIDENCE: DEFINITION OF A CONFESSION

Section 28 of the Evidence Act, 2011 defines a confession thus:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.” PER CHIDI NWAOMA UWA, J.C.A.

CONFESSION: REQUIREMENT FOR A CONFESSION TO WARRANT A CONVICTION

Fair hearing requires that a party to a cause (or a party who ought reasonably to be a party in the suit in civil cases) must be given the opportunity to put forward his case or defence freely and fully. See KANO NATIVE AUTHORITY VS. RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SC NLR 577, EKIYOR & ANOR VS. BOMOR (1997) 9 NWLR (PT. 519) 1 at 14 and ALIOKE VS. OYE & ORS (2018) LPELR – 45153 (SC) PP. 26 – 27, PARAS. A – B. PER CHIDI NWAOMA UWA, J.C.A.

CRIMINAL LAW: EFFECT OF AN ACCUSED PLEADING GUILTY

On the other hand, where an accused person pleads guilty of having committed an offence, there would be no need to embark on a full trial, therefore the issue of fair hearing or otherwise would not arise. Where an accused person pleads guilty to an offence, the Court would convict him of the offence and pass sentence, except in capital offences where despite the plea of “guilty”, the plea on “not guilty” would be entered. See OMASAYE VS. STATE (2012) LPELR – 8025 (CA) PP. 13 – 15, PARAS. E – A; AG. FEDERATION VS. OMOMOH & ORS (2018) LPELR – 43945 (CA) PP. 13 – 14, PARAS. C – B and OKEMMIRI VS. F.R.N. (2015) (supra). PER CHIDI NWAOMA UWA, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

IBRAHIM MUSTAPHA APPELANT(S)

And

THE STATE RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The High Court of Adamawa State in its judgment, delivered on 9th December, 2019 by Nathan Musa, J. convicting and sentencing the Appellant in its summary judgment to ten (10) years cumulative term of imprisonment for the offences of forgery, conspiracy and use as genuine a forged document without option of fine did not go well with the appellant thus this appeal.

The background facts are that the appellant at the High Court of Adamawa State (hereafter referred to as the trial Court) was charged and tried for the offences of conspiracy, conspiracy to use as genuine a forged document, using as genuine a forged document, impersonating a public servant, abetment of using as genuine a forged document, being in possession of a forged document and culpable homicide punishable with death contrary to Sections 61 (1), 353, 98, 350 and 192(b) respectively of the Penal Code Law of Adamawa State, 2018, pages 5 – 16 of the printed records of appeal. At the trial, the appellant pleaded guilty.

The learned counsel to the appellant made out that the trial Court was in contravention of the practice

and procedure by of the Court finding the appellant guilty, convicting and sentencing him accordingly without reviewing the facts and the law. Also, that throughout the trial, the appellant was not accorded fair hearing. It was also made out that Exhibit ‘D’ does not fit into the meaning of a medical report and that same was not admissible in evidence as the due process of law in tendering documents of that nature was not followed, used and relied upon by the trial Court in arriving at its judgment.

On the part of the Respondent, the learned counsel made out that the Appellant (the 1st Defendant) met one Dr. Mukhtar Buba Aliyu (the 3rd Defendant) in the original charge as contained at pages 3 – 16 of the printed records of appeal and the said Dr. Aliyu gave the Appellant his credentials as a friend, the appellant met the 2nd Defendant at the trial (Ibrahim Abubakar Mohammed) with the documents to help him forge same, which was done. The Appellant was said to have used the forged documents to gain employment into the Adamawa State Hospital Service Management Board as a Medical Officer (Surgery), pages 33 – 34 of the records of

appeal, these are: (a) NYSC Discharge Certificate, (b) Bayero University, Kano Certificate (MBBS) (c) Medical and Dental Council of Nigeria Certificate of Annual Practising Licence, (d) NECO Certificate and (e) First School Leaving Certificate, pages 89 – 94 of the printed records of appeal. It was also made out that when the appellant was arraigned, all the counts against him were read and explained to him in English Language because he understood English very well, he pleaded guilty to counts 1, 2, 3, 4, 5, 6, 7, 8 and 10 but pleaded not guilty to counts 11, 12 and 13 respectively, pages 207 – 213 of the printed records. After the plea of guilty entered by the Appellant in the above-mentioned counts, the prosecution applied for a summary judgment following which the appellant was sentenced and convicted to six months imprisonment with option of fine of N20,000.00 (Twenty Thousand Naira), ten (10) years imprisonment without option of fine and three (3) years imprisonment respectively, the sentences were to run concurrently.

In the appellant’s appeal to this Court, four (4) issues were formulated for the determination of the appeal thus:

“Whether the trial Court has discharged the burden placed on it?
b. Whether the appellant was given fair trial and informed of the consequences of the steps he was led to take?
c. Whether there was any document properly placed before the Court to rely upon in order to reach her verdict?
d. Whether the charges upon which the appellant was convicted and sentenced were defective?” (issues (a), (b) and (c) are covered by grounds 1, 2 and 3 while issue (d) is covered by ground 4 of the notice of appeal)

The Respondent on its part formulated the following two (2) issues for the determination of the appeal:
(a) “The learned trial judge was right to have considered the plea of guilty made by the appellant on his own free will and granting the prosecution (sic) request for a summary judgment. (distilled from grounds 1, 2, 3, 4 and 5 of the appellant’s grounds of appeal).
(b) The trial Court was right to have convicted the appellant based on the plea of guilty entered and totality of surrounding evidence accompany (sic) the charge sheet.”

The learned counsel to the Appellant, Kabiru Adamu

Esq., in arguing the appeal, relied on the appellant’s brief of argument filed on 20/7/2020 but, deemed properly filed and served on 11/11/2020. In arguing his issue (a), it was submitted that from the records of appeal, it could be inferred and deduced that the trial Court did not discharge the burden placed on the Court, talk less of the evaluation of evidence to rule on all the pending applications, motions or objections before the final judgment which occasioned a miscarriage of justice, reference was made to the case of AMADU VS. YANTUMAKI (2012) ALL FWLR (PT. 626) PP. 503 at 506. It was argued that, where an accused person pleads guilty, to show that his plea was voluntarily made, the Court has to satisfy itself that it was free of all encumbrances, it would be recorded as such and in most cases, the Court would review the facts and adjourn the matter to a later date and on such adjourned date, the Court would read the charge afresh to the accused and explain further to the accused the consequences of any plea he may likely choose, reliance was placed on the case of OKEMMIRI VS. FRN (2015) LPELR – 24485 (CA). It was argued that the case relied

upon above is on all fours with the appellant’s case to the effect that the trial Court did not show that the appellant intended (to the satisfaction of the Court) to plead guilty to the offence and the essentials of the offence as put forward by the prosecution, pages 110 – 116 and 207 – 213 of the records of appeal.

In arguing his issues (b) and (c) together, the learned counsel to the appellant submitted that Exhibit “D” at pages 17 – 19 of the records of appeal as well as the “confessional statement” at pages 30 – 32 fall short of the recognized procedure which offended the principles of fair trial as provided in Section 36 of the Constitution of the Federal Republic of Nigeria (as amended) 2011, reliance was placed on the case of SUNDAY VS. STATE (2016) LPELR – 41325 (CA) which defined what fair trial is; which if not followed nullifies the proceedings. See also OKORO VS. STATE (2012) LPELR – 7846 (SC). It was argued that not giving the appellant a chance to examine or identify his confessional statement and an opportunity to view the report before the trial Court which emanated from

one Dr. O. Irozuru in Appendix “D” negated the appellant’s right to fair hearing. Further, that the trial was like an “Ex parte” one which rendered the proceedings null and void. We were urged to resolve issues (b) and (c) in favour of the appellant. See OKAFOR VS. ATTORNEY GENERAL OF ANAMBRA STATE (1991) 6 NWLR (PT. 200) 569.

On issue (d), it was submitted that counts one, two and three are duplicated as well as counts four, five, six and seven. It was submitted that there was duplicity of charges for which the appellant stood trial, reliance was placed on the case of ONAKOYA VS. STATE (2002) LPELR – 2670 (SC) at P. 51, PARAS. A – D, we were also urged to resolve issue (d) in favour of the appellant.

In response, the learned counsel to the Respondent M.A. Adamu, Senior State Counsel II, Adamawa State Ministry of Justice with N.J. Atiku, State Counsel I relied on his brief of argument filed on 11/9/2020, deemed properly filed and served on 11/11/2020 as his argument in this appeal in urging us to dismiss the appeal and affirm the judgment of the trial Court. In arguing his first issue, it was submitted that

the appellant’s plea after the charges were read to him in English Language was understood by him which entails that he knew that he was admitting and confessing to what he was charged with, reference was made to Section 28 of the Evidence Act, 2011 which defines confession, reliance was placed on EFFIONG VS. THE STATE (1998) 8 NWLR (PT. 562) 362.

It was further submitted that the appellant was fully represented by his counsel when he took his plea, page 207 of the records of appeal. It was submitted that insight to summary trial procedure was given in the case of SAMUEL AYO OMOJU VS. FRN (2008) 7 NWLR (PT. 1085) 38; also Section 135 of the Evidence Act, 2011 (as amended).

On evaluation of evidence, appellant’s issue (a), it was submitted that at the sentencing stage, the trial Court evaluated the evidence before it in respect of the forgery and impersonation made by the appellant who admitted same. It was concluded that the case of OKEMMIRI VS. FRN (supra) cited and relied upon by the appellant is in favour of the Respondent.

In arguing his second issue, while relying on the cases of OKEWU VS. FRN (2012) 4 SCM 118 (2012) 2 SC (PT. 11)

and ADEYEMI VS. THE STATE (2013) 14 NWLR (PT. 1373) 129; (2012) 4 SCNJ 120 where it was held that where an accused person pleads guilty before the trial Court, without objection, it is presumed he understands the charge preferred against him, especially where he speaks the language of the Court, in this case English. See GOKE OLAOLU VS. FRN (2015) LPELR (SC) 163. It was argued that the appellant freely pleaded guilty and cannot turn around to allege lack of fair hearing. On the effect of plea of guilty, reliance was placed on Section 275 (1) of the Adamawa State Administration of Criminal Justice Law, 2018. It was submitted that the trial Court complied with the above provision.

In respect of the appellant’s issue (c), it was submitted that all the documents in the records of appeal were before the appellant who did not object to any therefore agreeing to what transpired as contained in the charge. It was argued that the case of OKORO VS. STATE (2012) LPELR – 7846 (SC) were complied with also, Section 275 (1) (2) of the Adamawa State Administration of Criminal Justice Law, 2018.
On the appellant’s issue (d), it was submitted

that the charges were in no way defective, the duplicity alleged by the learned counsel to the appellant is speculative. We were urged not to allow the appeal, as the trial in the remaining counts 11, 12, 13 of the charge to which the appellant did not plead guilty is still ongoing, therefore allowing the appeal would have a negative impact on the pending trial. We were urged to affirm the judgment of the trial Court.

The issues raised by the appellant are encompassed in the issues raised by the Respondent.

I will resolve the appellant’s issues (a) and (b) together. When the charges were read to the appellant at the trial in English Language which he understood and knew the meaning of what was read to him. This simply means that he admitted and confessed to the charges read to him and pleaded not guilty (denied) to the ones he denied to have committed. As highlighted by the Learned Senior Counsel to the Respondent, Section 28 of the Evidence Act, 2011 defines a confession thus:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”

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The law is that where a confession is free and voluntarily made of guilt by an accused person, if it is direct (as in his plea in this case), positive and satisfactorily proved, it is enough to warrant a conviction without any corroborating evidence as long as the Court is satisfied of the truth of the confession. See MUHAMMAD VS. STATE (2017) LPELR – 42098 (SC) P. 16, PARAS. A – C, CHIOKWE VS. STATE (2004) LPELR – 7387 (CA) PP. 15 – 16, PARAS. E – F.
The learned counsel to the Appellant had alleged lack of fair trial but, he was represented by his counsel who was present on the day of his arraignment and was fully aware of the appellant’s intention to plead guilty to counts 1, 2, 3, 4, 5, 6, 7, 8 and 10 of the charge knowing the implication and considering all the surrounding circumstances of his particular case, that there would be no way out but pleaded not guilty to counts 11, 12 and 13. Fair hearing requires that a party to a cause (or a party who ought reasonably to be a party in the suit in civil cases) must be given the opportunity to put forward his case or defence freely and fully. See

KANO NATIVE AUTHORITY VS. RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SC NLR 577, EKIYOR & ANOR VS. BOMOR (1997) 9 NWLR (PT. 519) 1 at 14 and ALIOKE VS. OYE & ORS (2018) LPELR – 45153 (SC) PP. 26 – 27, PARAS. A – B. The appellant was given the opportunity to put up his defence but, he chose the path of confessing to have committed the offences in which he pleaded guilty to, in the presence of his counsel. See ADIGUN VS. ATTORNEY GENERAL OF OYO STATE (1987) NWLR (PT. 53), PAGE 709, PARAGRAPH G. I hold that there was no violation of appellant’s right to fair hearing.
On the other hand, where an accused person pleads guilty of having committed an offence, there would be no need to embark on a full trial, therefore the issue of fair hearing or otherwise would not arise. Where an accused person pleads guilty to an offence, the Court would convict him of the offence and pass sentence, except in capital offences where despite the plea of “guilty”, the plea on “not guilty” would be entered. See OMASAYE VS. STATE (2012) LPELR – 8025 (CA) PP. 13 – 15, PARAS. E – A; AG. FEDERATION VS. OMOMOH & ORS

(2018) LPELR – 43945 (CA) PP. 13 – 14, PARAS. C – B and OKEMMIRI VS. F.R.N. (2015) (supra). The learned counsel to the appellant erroneously argued that where an accused person pleads guilty to an offence, the matter should be adjourned after the plea is recorded, on the later date, the charge(s) should be read to the accused again and explained to him to confirm if he really intends to admit the offence with which he is charged. I have not seen anywhere in the available legal authorities where this procedure was laid down to be followed, I discountenance same.
The case of OKEMMIRI VS. F.R.N. (supra) cited and relied upon by the learned State Counsel if anything supports the Respondent’s case. In the above case, interpretation and explanation of the plea of guilty would only be necessary where the accused person does not understand the charge, if he does not, he would say so, because an accused person would not be expected to plea to a charge he does not understand. That is not the case here, in the above case while relying on the case of OKEKE VS. THE STATE (2003) 5 MJ.S.C.M 44 at 98 PARAS. E – F, it was held that since the

charge was read to the Appellant in English Language and the appellant being literate, there was no need to explain the charge in the absence of any objection from the Appellant that he did not understand the technical details of the charge. In the present case, the Appellant impersonated, worked and functioned as a medical doctor in various hospitals in the State and cannot in any way make out that he did not understand the charges he pleaded guilty, read out to him in English Language as argued by the learned counsel to the appellant. The important thing is that the trial Court was satisfied that the accused person understood the charge and admitted the offences (for which he was convicted and sentenced) and the effect of his plea of guilty. In AMANCHUKWU VS. FRN 2009 LPELR – 455 (SC) PP. 14 – 15, PARAS. G – B his Lordship Ogbuagu, J.S.C. on the validity of plea of guilty by an accused person held thus:
“It is now settled that a plea of guilty, is valid if made (as in the instant case leading to this appeal) in very unambiguous and unequivocal way and the same is received by a trial Court/Tribunal not labouring under the

misapprehension of what the law is”
See also NKIE VS. FRN (2014) (SC) LPELR – 22877 (SC) P. 25, PARAS. D – F, DANIEL VS. FRN (2015) LPELR – 24733 (SC) PP. 30 – 31, PARAS. E – A and SUNDAY OFFOR & ANOR. VS. THE STATE (supra); (2012) LPELR – 19658 (SC) PP. 28 – 29, PARAS. D – A. Once a plea of guilty is entered, full hearing is foreclosed as rightly submitted by the learned Senior State Counsel, the Court would normally admit any evidence tendered by the prosecution if any, the Court would then proceed to convict and sentence the accused person. There is no gain saying that an accused person who has pleaded guilty has admitted his guilt, and accepted to disclose same.
Further, on fair trial, the case of SUNDAY VS. STATE (2016) (supra) cited and relied upon by the learned counsel to the Appellant is not applicable here where there was no full trial in respect of the charges to which the Appellant pleaded guilty. The effect of a plea of guilty was given in Section 275 (1) of the Adamawa State Administration of Criminal Justice Law, (2018) which the trial Court complied with. I resolve the

appellant’s issues (a) and (b) against him.

The Appellant’s issue (c) is whether there was any document properly placed before the Court to rely upon in order to reach her verdict? The learned counsel to the appellant alleged that “Appendix D” at pages 17 – 19 of the printed records of appeal and the appellant’s confessional statement at pages 30 – 32 of the printed records of appeal fell short of the recognized procedure and offended the principles of fair hearing in that the appellant was not given a second chance to view his confessional statement in order to identify same and the report by Dr. Frozuru (Appendix “D”) which was likened to a trial “ex parte”. As rightly submitted by the learned Senior State Counsel, the documents were before the Appellant and his counsel before he took his plea of guilty in the presence of his counsel who did not object, therefore the allegation of lack of fair hearing cannot stand. I hold that the conditions for a criminal trial were met where an accused person pleaded guilty. The Appellant knew and understood the contents of Appendix “D” and his

confessional statement, both document did not need a second look by the appellant on a later date as erroneously argued by the learned counsel to the Appellant. Issue (c) fails and is resolved against the Appellant.

Under issue (d), it was alleged that the charge under which the Appellant was convicted and sentenced were defective. It is noteworthy that the Appellant pleaded to the charges as they were. The law is that the Appellant and his counsel should have raised their objection to the charge immediately after it was read to him, before he entered his plea, he failed to. He understood the charge and pleaded guilty, he is presumed to have understood the charge fully and did not fault same before his plea of guilty, therefore waived his right to raise objection to the charge or fault same at this stage after participating fully in the trial at the lower Court. The position of the law was simply stated in MUMINI VS. F.R.N. (2018) LPELR – 43904 (SC) PP. 11 – 12, PARAS. F – A, where his Lordship, Eko J.S.C. held thus:
“The appropriate time to complain or object to a charge as drawn up is at the time it is being read and before

the plea: OKEWU VS. FRN (SUPRA) at PAGE 353 per Ariwoola, J.S.C.”
See FRED OHAI ABOKHAI VS. COMMISSIONER OF POLICE (2018) LPELR – 44561 (CA) PP. 20 – 23, PARAS. D – C. In the present case, the appellant did not object to duplicity in the charges, now labeled defective. I hold that the challenge of the charges should have been raised at the trial Court which had the power to have taken a stand on it, not this Court. Issue (d) is resolved against the Appellant.

In sum, I hold that the appeal fails and it is hereby dismissed. The judgment of the trial Court is hereby affirmed.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother, CHIDI NWAOMA UWA, J.C.A. and I agree that the appeal has no merit and should be dismissed.

Learned counsel for the Appellant complained bitterly that the Court below ought to have adjourned after the Appellant pleaded guilty to a later date and no such a date to confirm if the Appellant really meant to plead guilty.

I am in agreement with my learned counsel brother, Uwa, JCA that the procedure is not only unknown but quite strange.

For the reasons contained in the lead judgment which I adopt as mine, I too dismiss the appeal and affirm the decision of the Court below.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Kabiru Adamu, Esq. For Appellant(s)

A. Adamu Senior State Counsel II, Adamawa State Ministry of Justice with him,N. J. Atiku, State Counsel I For Respondent(s)