ONYEKACHI OKEMMIRI v. FEDERAL REPUBLIC OF NIGERIA
(2015)LCN/7743(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of January, 2015
CA/OW/104/2010
RATIO
EVIDENCE: CONFESSION; THE DEFINITION OF CONFESSION ACCORDING TO THE EVIDENCE ACT AND WHETHER THE VOLUNTARY CONFESSION OF AN ACCUSED IS SUFFICIENT TO WARRANT A CONVICTION WITHOUT CORROBORATIVE EVIDENCE
Section 27(1) of the Evidence Act defines confession as:-
“Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime Under subsection (2) of Section 27 of the Act:
“Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only”.
The learned Counsel for the Appellant has placed reliance on the Supreme Court decisions in Edighere V. The State (1996) 8 NWLR (Pt. 464) 1 at page 10 paras B – C, Effiong V. The State (1998) 5 S.C. 136 at 142 – 143 paras. 40 – 5; Omoju V. The State (2008) 2- 3 S.C. (Pt. 1) 1 at page 19 paras. 10 – 15 (2008) 7 NWLR (Pt. 1085) 38 at 61 paras C -D.
In Edighere V. The State (1996) 8 NWLR (Pt. 464) 1 at 10 Paras. B C, the Supreme Court while relying on Jimoh Yusufu V. The State (1976) 6 S.C. 167 and Edet Obosi V. The State (1965) NMLR 119 endorsed the position of the Court as had been held in previous decisions that a free and voluntary confession of guilt made by a prisoner before any Court of trial, if direct and positively made to the extent that it is satisfactorily proved, is sufficient to warrant a conviction without corroborative evidence so long as the Court is satisfied of the truth of the confession.
However, the apex Court also added a rider as has also been laid down in cases like Paul Onochie & Ors V. The Republic (1966) NWLR 307; R. V. Kanu (1952), 14 WACA 30 and Onuoha V. The State (1987) 4 NWLR (Pt. 65) 531; that it is desirable to have outside the confession some evidence, no albeit slight, of the circumstances which make it probable that the confession is true. This point was stressed in the recent Supreme Court decisions in Dogo V. The State (2013) 221 LRCN (Pt. 1) 164 at 186 per Onnoghen, J.S.C, and Sunday Offor & Anor V. FRN (2013) MRSCJ Vol. 12 1 at 27 paras. D -H Per Ogunbiyi JSC. Again the apex Court in Omoju V. The State (2008) 2 – 3 S.C. (Pt.1) 1 at page 19 line, 10 – 15 (2008) 7 NWLR (Pt. 1085) 38 at 61 paras C -D; had held that:
“The law is elementary that if an accused pleads guilty, the burden of proof placed on the prosecution becomes light, like a feather of an Ostrich. It no longer remains the superlative and compelling burden of proof beyond reasonable to that makes doubt. After all, the guilty plea has considerably shortened the distance and brought in some proximity the offence and the mens rea or actus reus of the accused as the case may be it easier to locate causa sine qua non”.
There is no doubt as submitted by learned Counsel for the Appellant that before a Court can convict of confessional Statement there must be an independent evidence corroborating the confession no matter how slight, that a criminal act has been committed. Rabiu V. State (2005) 7 NWLR (Pt. 925) 491 at 513 paragraph F – G. (C. A); also restated the same principle that a voluntary confession of guilty which is fully consistent and probable is usually regarded as evidence of the highest and most satisfactory nature if there is an independent proof that a criminal act has in fact been committed by some body and that the accused person had the opportunity of committing the offence or that the confession was consistent with other facts which had been as ascertained and proved. Kanu & Anor V. R. (1952) 14 WACA 30 at 32; R. V. Chukwuji Obiasa (1962) WNLR 354 and R. V. Sykes (1913) CAR 233. per. IGNATIUS IGWE AGUBE, J.C.A.
CRIMINAL PROCEDURE: THE PLEA OF GUILTY; THE EFFECT OF THE PLEA OF GUILTY IN A CRIMINAL PROCEEDING
I agree that upon a perusal of the Record of proceedings one thing is clear that there was no evidence apart from the plea of guilty of the Appellant, in proof the offence. The question that is however pertinent to answer is whether the learned trial Judge erred in law in convicting the Appellant solely upon his plea of guilty without seeking corroboration from independent wittiness or the prosecution?
To answer this question we shall resort to the provision of Section 218 of the Criminal Procedure Act, CAP.C 41, Laws of the Federation of Nigeria, 2004 which governs arraignment and plea of an Accused person in Abia State and if possible also allude to Judicial authorities that interpreted that Section of the Act or Sections of Similar Criminal Procedure Laws in pari-material with the ones which have fallen for consideration and having been relied upon by the learned prosecuting/Respondent’s Counsel in urging us to hold that the learned trial Judge was right in convicting and sentencing the Appellant solely on his plea of guilty.
Section 218 of the C.P.A . with the caption “Effect of plea of guilty” stipulates inter alia 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 sentence upon or make an order against him unless there shall appear sufficient cause to the contrary”.
Commenting on the provision above reproduced, the learned Author of the “The Criminal Procedure of the Southern States of Nigeria 2nd Edition; Fidelis Nwadialo, S .A.N; at page 184 opined that. “In a plea of guilty the accused person admits that the charge is true but it is however only an admission of the offence charged and not the truth of the depositions of the witnesses in the lower Court R. V. Riley (1896) 18 Cox 185 R. V. Olagunju [1961] 1 ALL WLR 21, R. V. Wiligon [1959] 4 F. S.C. 175”. per. IGNATIUS IGWE AGUBE, J.C.A.
CRIMINAL PROCEDURE: PLEA OF GUILTY; WHEN IS A CONVICTION FOUNDED ON A PLEA OF GUILTY IS APPEALABLE
Finally, a conviction founded on a plea of guilty is appealable only where it appears that the Accused person did not appreciate the nature of the charge or did not intend to admit it or where upon the admitted facts he could not have in law been convicted. per. IGNATIUS IGWE AGUBE, J.C.A.
CRIMINAL LAW: PLEA OF GUILTY; THE EFFECT OF A PLEA OF GUILTY BY AN ACCUSED ON FAIR HEARING, WHERE ALL THE ESSENTIALS OF THE OFFENCE WERE NOT EXPLAINED TO THE ACCUSED
On the effect of a plea of guilty by an Accused on fair hearing just as in this case where all the essentials of the offence were not explained to the Appellant by stating the fact of the case as is the usual practice, the Emeritus law Lord again posited that an Accused person who pleads guilty to an offence is not entitled to a hearing and so the issue of fairness or unfairness of hearing does not arise. In his view, by entering a plea of guilty, hearing is foreclosed, as the next and last procedural step of the Judge is to convict and pass sentence. See, Omoju V. FRN (2008) 7 NWLR (pt. 1085) 38 at 60 paras. A – B; ably cited by the learned Counsel for the Appellant.
Finally on the duty of court where an Accused pleads guilty and the vexed issue of the correct interpretation of Section 218 CPA, the Emeritus Legal Icon again in the self-same Omoju V. FRN (2008) 7 NWLR (pt. 1085) at 62 paras. A – C intoned:
“I don’t see any language in Section 218 suggesting that the court must ask the Appellant if he admits all the essentials of the offence of which he pleads guilty. All that the section requires is that the court must be satisfied, that the Accused person intended to admit the truth of all the essentials of the offence in the language of the Section, the exercise within the mind of the judge to be satisfied or not, remains his subjective judgment. The moment the judge is so satisfied, he can convict and pass appropriate sentence.”
With due deference to the Emeritus legal Titan, Section 218 of the C.P.A. ought not to be read in isolation from Section 285 (1) and (2) thereof.
From the purposive construction of Section 218 and the interpretation given to it over the years and even in recent times, the Court is bound to ask the Appellant if he admits the essentials of the offence as it cannot conjure that satisfaction from nubibus except from the facts of the case as stated by the prosecution after the Appellant or Accused must have pleaded guilty to the offence. In any case, as had been decided by both English and Nigerian jurists in cases of settled antiquity as well as legal pundits and writers, the plea of guilt is only an admission of the truth of the offence for which he was charged and not the truth of the deposition of the witnesses.
Again, the Court can only satisfy itself that the Accused/Appellant intended to admit the truth of all the essentials where the facts are given by the prosecution as to the actions by the Accused upon which the charge is based and the Court asks the Accused whether he has anything to say of those facts. This is because in practical terms especially from experience, Accused persons sometimes plead guilty out of fear or with the hope that their sentences will be drastically reduced. Moreover, they sometimes plead guilty and upon the facts being presented to them they may deny the charge or change their pleas.
A recent decision of the Supreme Court buttresses the need for the Court of trial to satisfy itself that the Accused understood and clearly admits the essentials of the offence and the effect of his plea before convicting him on a plea of guilty. That case is Sunday Offor & Another v. The State (2013) MRSCJ (Vol. XII) 1 at 22 – 24 paras D – E. There the Appellants were charged before the Kogi State High Court, Holden at Isanlu for Conspiracy to Armed robbery and doing bodily harm. The relevant law which is important to us and which is in pari materia with Sections 218 and 285(1) and (2) of the C.P.A.,is Section 187(1) and (2) and indeed Section 161(3) of the Criminal Procedure Code (C. P. C)
Even though Ogunbiyi, JSC who read the lead Judgment agreed with this Court that Section 161(3) of the Criminal Procedure code does not apply to summary trials in the High Courts of the North, the above Section is almost ipssissima Verba with Sections 218 and 285 of the C.P.A. Be that as it any, the trial High Court in that case stated the facts of the case as tendered by the prosecution after the Appellant had pleaded guilty and went to the extent of recording that:
“The facts alleged by the prosecutor as constituting the offences charged were read over and explained to the Accused person. The Counsel asked the Accused if they admitted the facts alleged by the prosecutor. They answered in the affirmative. per. IGNATIUS IGWE AGUBE, J.C.A.
CRIMINAL PROCEDURE: A PLEA OF GUILTY; WHAT THE COURT MUST LOOK AT BEFORE CONVICTING AN ACCUSED ON HIS PLEA OF GUILTY
In the resolution of this issue it is necessary to reiterate what I said earlier that by virtue of the provisions of Section 218 and 285(1) and (2) of the C.P.A, the Court below ought to have satisfied itself that the Accused” plea of guilty was with a full appreciation of the essential elements of the offence with which he was charged before he could be convicted. This point was stressed in Rabiu V. The State (2005) 7 NWLR (pt. 925) 491 at 514 paras. A – B. and H, ably cited by the learned Counsel for the Appellant where this Court held inter alia:
“A plea of guilty is not and cannot be conclusive proof of guilt in law … before conviction, the court must look for the essentials of the offence, and if they are lacking in any way, there is cause to the contrary and an order of acquittal must be entered.”
Therefore going by this authority the Court must ensure that the Accused has admitted all the facts upon which his charge was based as well as guilt in respect of same and unless he admits every and each of the constituent facts or ingredients of the offence, he cannot be convicted upon his plea of guilty.
Secondly in order to satisfy itself that the Accused/Appellant intended to admit the essential facts of the offence, the Court must ask the Appellant whether he admits all the facts as stated including the Exhibits tendered. per. IGNATIUS IGWE AGUBE, J.C.A.
CRIMINAL LAW: THE OFFENCE OF DEALING WITH INDIA HEMP; THE ESSENTIAL OF THE OFFENCE OF DEALING WITH INDIA HEMP
In Chukwudi Ugwuanyi V. F.R.N. (2012) MRSCJ Vol. 132 at 141 paragraphs E. G the Supreme Court Per Rhodes – Vivour, JSC enumerated the essentials of the offence of dealing with Indian Hemp in line with the decisions in Stephenson V. IGP (supra), Ishiola V. State (supra) and Agagaraga V. FRN (2007) 2 NWLR (pt. 1019) 586 at 605 – 607 thus:
“The Appellant was charged with being in possession of Indian Hemp punishable under Section 10H of the National Drug Law Enforcement Agency (Amendment) Act No. 15 of 1992.
To succeed, the prosecution must prove the following beyond reasonable doubt:
That the substance is Indian Hemp.
1. That the substance was in the possession of the Appellant.
2. That the substance was in the Appellant’s possession to his knowledge and without authority.”
As rightly submitted by the learned Counsel for the Appellant,the substance suspected to be Indian Hemp in which the Appellant was dealing ought to have been subjected to forensic test by an expert in the form of Government Chemist and a certificate confirming that the substance was actually Indian Hemp issued and tendered along with the facts of the case.
In the instant case a look at the Record of proceedings would reveal that the leaves suspected to be Indian Hemp for which the Appellant was standing trial and indeed pleaded guilty for dealing in them were not tendered not to talk of the Government Chemist’s Certificate or Report and as such the learned trial Judge could not have been in any position to determine whether the weeds were actually Indian Hemp. Accordingly, the conviction of the Appellant was unsafe.
I agree completely that failure to place the necessary or essential ingredients of dealing in Indian Hemp before the Court definitely robbed the below of the necessary facts with which he would have been satisfied that the Appellant intended to admit to the truth of all the essentials of the offence for which he had pleaded guilty. Agaragaraga V. FRN (supra) and Stephenson V. I.G.P. (supra) refer.
As I said earlier, and in total agreement with the learned Counsel for the Appellant, by requiring the Court to convict upon being satisfied that the Accused intended to admit the truth of all the essentials of the offence, Sections 218 of the CPA and indeed 285(1) thereof impose an onerous obligation higher than merely reading and explaining or interpreting the charge to the Appellant but upon the proper construction of Section 218 of the C.P.A following decisions of English as well as Nigerian cases both of settled antiquity, the Court was bound to ensure that the Accused was confronted with all the essentials of the offence which he had pleaded guilty to and must be satisfied that by his (Appellant’s) reactions to the confrontation, he intended to admit all the essentials.
As rightly submitted also by the learned Professor, part of the essentials of the offence may include the magnitude of the punishment for the offence and detailed nature of the ingredients of the offence which ought to have been explained to him after the facts may have been stated and questions put to him in the language he understood and if he still pleaded guilty then, the Court could proceed to convict and sentence him accordingly. per. IGNATIUS IGWE AGUBE, J.C.A.
CRIMINAL PROCEDURE: A PLEA OF GUILTY; WHETHER A PLEA OF GUILTY PUTS AN END TO THE ROUGH AND SPECULATIVE EDGES OF CRIMINAL RESPONSIBILITY IN TERMS OF THE TWIN REQUIREMENTS OF ACTUS REUS AND MEN REA
The law is settled as decided in Omoju V. F.R. N. (supra) that a plea of guilty like the one in this case tantamount to a confession which itself puts an end to the rough and speculative edges of criminal responsibility in terms of the twin requirements of actus reus and mens rea See, Dogo V. The State (2013) Vol. 221 LRCN (pt. 1) 189 Per Ariwoola, J SC, ; but under Section 218 of the CPA, the plea of guilty merely reduces the standard of proof and the prosecution would still need the slightest corroborative evidence which could be gathered from the facts of the case and Exhibits, to found the conviction of the Appellant.
Talking of summary trial the learned Counsel for the Appellant also availed us of the decision in Garba V. C.O.P. (2007) 16 NWLR (Pt. 1060) 378; which laid down the conditions to be fulfilled by a Court adopting the summary trial procedure thus:-
(a) the particulars of the offence must be stated to the Accused;
(b) the Accused shall be asked if he has any cause to show why he should not be convicted;
(c) the Accused admits that he committed the ingredients of the offence; and
(d) he shows no sufficient cause why he should not be convicted. per. IGNATIUS IGWE AGUBE, J.C.A.
CRIMINAL PROCEDURE: SUMMARY TRIALS; WHAT SUMMARY TRIALS ENTAILS AND THE DEFINITION OF SUMMARY
The Supreme Court has also given us a clue as to what summary trials entail in the recent case of Uwazuruike & Ors. V. AG. Federation (2013) 222 LRCN (pt. 2) 44 at pages 61 paragraph JJ – 62 para. A and 63 para. EE, 68 para. F and 74 paras Z – JJ per Rhodes – Vivour, Fabiyi and Peter – Odili JJSC. In his view Rhodes Vivour, JSC reasoned that:
“Section 277 of the Criminal Procedure which provides for summary trials along with Section 33(2) of the Federal High Court Act envisage that trials are fast and cases disposed in a prompt and simple manner. Attached to a charge to be tried summarily are scanty summary of evidence the prosecution would rely on and it is not all the evidence relied on by the prosecution that is made available to the Accused person before trial. His Lordship then proceeded to state that; “In a summary trial, accused persons are entitled to know the nature of the charge and not the nature of the evidence.”
On the part of Fabiyi, JSC; “summary trial entails immediate action without following the rigmarole in normal legal procedures. In some cases, it is often carried out brevi manu. It may appear unusual but where such is the law, as dictated by Section 33 of the Federal High Court Act, CAP. 133 LFN 1990, so be it.”
Peter – Odili, JSC on his part relied on the definition of “Summary” by the Oxford English Dictionary tenth Edition which means:
“a brief statement of the main points of something.
1. Not including unnecessary details.
2. (of a legal process or judgment) done or made immediately and without following the normal legal procedures.” per. IGNATIUS IGWE AGUBE, J.C.A.
CRIMINAL PROCEDURE: TAKING OF THE PLEA OF AN ACCUSED; WHETHER THE PLEA OF ACCUSED PERSON UPON ARRAIGNMENT IS A MATTER OF PROCEDURE LAW, NOT SUBSTANTIVE LAW
I derive great inspiration from the dictum of my noble Law Lord, Onnoghen, JSC; who upon being confronted with a similar Scenario in the case of Ganiyu V. The State (2013) 222 LRCN (pt. 1) 20 at 29 paras F, U – JJ and A page 30; held thus:
“It must be pointed out that the taking of the plea of an accused person upon arraignment is a matter of procedural Law, not substantive law, the defect on which renders the proceedings a nullity. Such a defect which goes to the jurisdiction of the Court.”
See also the case of Edibo V. The State (2007) ALL FWLR (Pt.384) 192 at 211 where the Supreme Court had earlier emphasized that the arraignment and taking of plea of an accused person is the very commencement (call it the threshold) of Criminal trial, it being the stage where the Accused appears in/at the Court, the charge read and explained to his understanding and he pleads thereto in person and not even through his Counsel.
“it is a very fundamental aspect of Criminal proceedings and that underscores the need for the strict and mandatory compliance in matters relating thereto. Thus in any criminal trial, no matter how well conducted, without the plea of the accused person first and properly taken is a nullity”. See Ezeze V. The State (2004) 14 NWLR (Pt.894) 491; Okeke V. The State (2003) 15 NWLR (Pt. 842) 25; Paul Onyia V. The State (2008) 18 NWLR (Pt.1118) 142, Dibie V. The State (2007) ALL FWLR (Pt.363) 83, Idumelia V. The State (1999) NWLR (Pt. 610) 202. See also Sabina Madu V. The State (2014) 1 FCLR (Pt. 1) 263 at 305; Lufadeju V. Johnson (2007) ALL FWLR (Pt.371) 1532, Solola V. State (2005) ALL FWLR (Pt .269) 1751, Amala V. The State (2004 )12 NWLR (Pt.888) 520. per. IGNATIUS IGWE AGUBE, J.C.A.
COURT: RETRIAL; THE PRINCIPLES GUIDING THE COURT IN A SITUATION WHERE A COURT HAS TO CONSIDER THE ISSUE AS TO WHETHER OR NOT TO ORDER A RETRIAL OF CHARGE
We shall invite the learned Lord Justice of the Supreme Court, Onnoghen, J.S.C once more to proffer an answer through his dictum in the said Ganiyu V. The State case (supra) inter alia:
“The question that follows is what are the principles guiding the Courts in a Situation where a Court has to consider the issue as to whether or not to order a retrial of charge? The answer can be found in very many cases including Abodunde V. The Queen 4 FSC 70 at 71, Kajubo V. The State (1988) 1 NWLR (Pt. 73) 721 at 727 etc.
The principles include the following:-
(i) That leaving aside the error or irregularity in the proceeding, the evidence taken as a whole disclose a substantial case against the Appellant;
(ii) That there are no such special circumstances as would render it oppressive to the Appellant on trial a second time;
(iii) That the offences of which the Appellant was convicted or the consequences to the Appellant or any other person of the conviction or acquittal of the Appellant are not merely trivial;
(iv) That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it;
(v) The reason for declaring the trial a nullity and over all interest of justice are also relevant”. per. IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
ONYEKACHI OKEMMIRI Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A.(Delivering the Leading Judgment): Before the Honurable Justice E. A. Obile of the Federal High Court, then sitting at the Umuahia Judicial Division, the Appellant was arraigned on the 4th day of February, 2010 upon a single count charge which averred thus:-
“The Charge”
That you Onyekachi Okemmiri (M) on or about the 17th day of October, 2009 at Isiukwuato Local Government Area of Abia State within the jurisdiction of the Federal High Court Umuahia without lawful authority dealt in 500 gms of Indian Hemp and thereby committed an offence contrary to Section 11 CC) of the National Drug Law Enforcement Agency Act, CAP. N 30,Laws of the Federation of Nigeria, 2004.
Dated this 3rd day of November,2009
Emeka. P. Ihechu
Prosecuting Counsel
For: Attorney General of the Federation of Nigeria”.
As the charge was about to be interpreted and to him from English to Igbo Language and vice versa, the Appellant (then as Accused) remarked that he had no lawyer. Then Iheukwu Esq for the prosecution informed the Court that they had a charge dated 3/11/2009 which he applied to be read to the Accused. Thereupon, the learned trial Judge asked the Accused whether he understood the Charge to which the Accused replied that he did understand same as interpreted to him.
Accused then pleaded guilty to the charge.
Having pleaded guilty, the Court below recorded thus at pages 2 to 3 of the Records thus:
“Court: The accused person is convicted under Section 11CC of the National Drug Law Enforcement Agency Act for dealing in Indian Hemp.
“Court: Accused do you have anything to say before you are sentenced.
“Accused: I am asking for forgiveness.
Ozigbu Esq:-The Accused person told me that he is an orphan and is first
Offender. He is married with a wife and 5 children. He is the bread winner of the family” (Page 2 of the Records)”.
At page 3, the said Ozigbu Esq, continued in his allocutus as follows:
“He was arrested on 10/10/2009, since then he had been in the custody of the NDLEA. I urge that maximum sentence of life imprisonment be reduced for the convict.
Urge the Court to temper justice with mercy”
Following the passionate plea of the learned Counsel on behalf of the Accused, the learned Trial Judge then remarked thus:
“Court: I have listened to the plea of allocutus made on behalf of the convict and a look at the convict shows that he is not sound in health. However, justice must still take its course. Accordingly, the convict is sentenced to 10 years imprisonment without an option of fine”
It is against this conviction and sentence that the Accused who shall herein after be addressed as Appellant has appealed to this Honourable by a Notice of Appeal with Original Four (4) Grounds dated the 19th of February, 2010 but filed on the 25th day of February, 2010. With the leave of Court granted on the 22nd day of October, 2014, the Appellant’s Amended Notice of Appeal still with Four Grounds dated 22nd May, 2013 but filed on the 7th of June, 2013, was deemed filed on the said 22nd day of October, 2014.
Hereunder reproduced are the Amended Grounds of Appeal and their respective particulars.
“GROUNDS OF APPEAL.
“ERROR OF LAW: The learned trial Judge erred in Law when he convicted the Appellant/Accused and sentenced him to 10 years imprisonment upon his plea of Guilty without hearing the facts alleged by the prosecution as constituting the offence he was charged with.
PARTICULARS OF ERROR:
1. The learned trial Judge failed to appreciate that where an accused be convicted let alone being sentenced without the Court hearing the facts alleged by the prosecution as constituting the offence charged.
“2. ERROR OF LAW
The learned trial Judge erred in law when he convicted the Appellant/Accused and sentenced him to 10 years imprisonment upon his plea of guilty without asking whether he committed all the facts alleged by the Prosecutor as constituting the offence he was charged with .
PARTICULARS OF ERROR:
The learned trial Judge failed to appreciate that if an accused pleads guilty to a charge that he cannot be convicted and sentenced in respect of the charge unless the Court asked him whether he admits all the facts alleged by the prosecution and he in response admits the facts.
“3. ERROR OF LAW:
The learned trial Judge erred in law when he convicted and sentenced the Appellant/Accused to 10 years imprisonment upon his plea of guilty without seeing the Indian Hemp which the Appellant/Accused was alleged to have unlawful possession of non see any export evidence in form of a Government Chemist report Certifying the plant as Indian Hemp.
PARTICULARS OF ERROR:
1. The Appellants/Accused was charged with unlawful possession of 500 gms of Indian Hemp under Section 11(C) of the National Drug Law Enforcement CAP. N30, Laws of the Federation, 2014.
2. No Indian Hemp let alone 500gms of Indian Hemp was tendered in evidence and none was seen by the Court before convicting and sentencing the Appellant/Accused to 10 years imprisonment.
3. There was no expert evidence in the form of a Government Chemist’s report certifying the plants as Indian Hemp.
“4. ERROR OF LAW
The learned trial Judge erred in law in convicting and sentencing the Appellant upon his plea of guilty without the prosecution proving its case against him.
1. The learned trial Judge failed to appreciate that a plea of guilty does not displace the burden of proof on the prosecution but rather makes it light.
2. The learned trial Judge failed to appreciate that apart from a plea of guilty there must be evidence placed before the trial Court before it can convict upon such plea.
“RELIEF SOUGHT: To set aside the Judgment and the conviction and set aside the sentence”.
Following the transmission of the Record of Appeal hereto and the entry of the Appeal the learned Counsel for both the Appellant and Respondent exchanged their respective Briefs of Argument. In the Appellant’s Amended Brief dated the 22nd day of October, 2013 but filed on the 24th October, 2013 and settled by Professor Joseph N. M. Mbadugha,Two Issues couched as follows were distilled from the Four Grounds of Amended Notice of Appeal:
“1. Whether the learned trial Judge was right in convicting and sentencing the Appellant upon his plea of not guilty without the prosecution proving its case against him?
“2. Whether the learned trial Judge was right in convicting and sentencing the Appellant upon his plea of guilty without hearing/seeing the facts alleged by the persecution as constituting the offence and the Appellant admitting the alleged facts?
On his part, Emeka. P. Iheche Esq, the prosecuting Counsel who on behalf of the Attorney-General of the Federation of Nigeria, settled the Respondent’s Brief of Argument dated 25th day of November, 2010, filed on the 29th of November, 2012 but deemed duly filed and served by leave of this Honourable Court on 9th of May, 2013; adopted the two Issues as formulated by the learned Counsel for the Appellant.
ARGUMENT AND RESOLUTION OF ISSUES:
ISSUE NUMBER 1 (ONE): WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN CONVICTING AND SENTENCING THE APPELLANT UPON HIS PLEA OF GUILTY WITHOUT THE PROSECUTION PROVING ITS CASE? (GROUND 4 OF THE AMENDED GROUNDS OF APPEAL)
Arguing this issue the learned Counsel for the Appellant submitted that by virtue of Section 27 of the Evidence Act, a plea of guilty is a confession to a crime the Accused is being charged with and if voluntary, such a confession is deemed to be relevant fact against the maker. Relying on Edhigere V. The State (1996) 8 NWLR (Pt. 464); Effiong V. The State (1998) 5 S. C.136 and Omoju V. The State (2008) 2 -3 S. C. (Pt.1) 1; he further submitted that it is desirable to have outside the confession some evidence no matter how slight of the circumstances which makes it probable that the confession is true.
Placing reliance again on the case of Rabiu V. The State (2005) 7 NWLR (Pt.925) 491 at 513 paras. F – G. C. A. it was further argued that from the dicta of their Lordships of the Supreme Court in the cases above enumerated on subject of confession, it follows that before a Court can convict on a plea of guilty, there must be an independent evidence corroborating the plea and that a criminal act has infact been committed.
In the instant case, the learned Counsel for the Appellant asserted, there was nothing on the record showing that the prosecution led any evidence no matter how slight either in corroboration of the Appellant’s guilt or in proof of the offence charged. Accordingly, he concluded on this issue that the learned trial Judge erred in convicting and sentencing the Appellant upon his plea of guilty without any proof of the offence by the prosecution.
ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT:
Responding to the above argument of the learned Counsel for the Appellant, Mr. Ihechu for the Respondent countered that the learned trial Judge of the Federal High Court was right in convicting and sentencing the Appellant to ten (10) years imprisonment upon his plea of guilty by virtue of Section 218 of the Criminal Procedure Act CAP. C.41, Laws of the Federation of Nigeria, 2004 which provision he reproduced. It was therefore contended that the Appellant who perfectly understood the charge read and interpreted to him in Igbo Language intended his plea of guilty without any iota of doubt. He rounded up his submission on this first Issue with the assertion that the trial Judge having asked the Appellant if he understood the charge read and explained to him and whether he admitted the facts stated by the Prosecution of which he answered in the affirmative, was right in convicting and sentencing the Appellant upon his plea of guilty.
RESOLUTION OF ISSUE NUMBER ONE (1).
In the resolution of this Issue, I must agree with the position of the law as stated by the learned Counsel for the Appellant firstly that by reason of Section 27 of the Evidence Act, CAP 62, Laws of the Federation of Nigeria, 2004.; a plea of guilty as done by the Appellant on the 4th day of February, 2010 amounted to a confession to the offence of dealing in Indian Hemp Contrary to Section 11(C) of the National Drug Law Enforcement Agency Act, CAP. N30, Laws of the Federation of Nigeria, 2004.
Section 27(1) of the Evidence Act defines confession as:-
“Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime Under subsection (2) of Section 27 of the Act:
“Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only”.
The learned Counsel for the Appellant has placed reliance on the Supreme Court decisions in Edighere V. The State (1996) 8 NWLR (Pt. 464) 1 at page 10 paras B – C, Effiong V. The State (1998) 5 S.C. 136 at 142 – 143 paras. 40 – 5; Omoju V. The State (2008) 2- 3 S.C. (Pt. 1) 1 at page 19 paras. 10 – 15 (2008) 7 NWLR (Pt. 1085) 38 at 61 paras C -D.
In Edighere V. The State (1996) 8 NWLR (Pt. 464) 1 at 10 Paras. B C, the Supreme Court while relying on Jimoh Yusufu V. The State (1976) 6 S.C. 167 and Edet Obosi V. The State (1965) NMLR 119 endorsed the position of the Court as had been held in previous decisions that a free and voluntary confession of guilt made by a prisoner before any Court of trial, if direct and positively made to the extent that it is satisfactorily proved, is sufficient to warrant a conviction without corroborative evidence so long as the Court is satisfied of the truth of the confession.
However, the apex Court also added a rider as has also been laid down in cases like Paul Onochie & Ors V. The Republic (1966) NWLR 307; R. V. Kanu (1952), 14 WACA 30 and Onuoha V. The State (1987) 4 NWLR (Pt. 65) 531; that it is desirable to have outside the confession some evidence, no albeit slight, of the circumstances which make it probable that the confession is true. This point was stressed in the recent Supreme Court decisions in Dogo V. The State (2013) 221 LRCN (Pt. 1) 164 at 186 per Onnoghen, J.S.C, and Sunday Offor & Anor V. FRN (2013) MRSCJ Vol. 12 1 at 27 paras. D -H Per Ogunbiyi JSC.
Again the apex Court in Omoju V. The State (2008) 2 – 3 S.C. (Pt.1) 1 at page 19 line, 10 – 15 (2008) 7 NWLR (Pt. 1085) 38 at 61 paras C -D; had held that:
“The law is elementary that if an accused pleads guilty, the burden of proof placed on the prosecution becomes light, like a feather of an Ostrich. It no longer remains the superlative and compelling burden of proof beyond reasonable to that makes doubt. After all, the guilty plea has considerably shortened the distance and brought in some proximity the offence and the mens rea or actus reus of the accused as the case may be it easier to locate causa sine qua non”.
There is no doubt as submitted by learned Counsel for the Appellant that before a Court can convict of confessional Statement there must be an independent evidence corroborating the confession no matter how slight, that a criminal act has been committed. Rabiu V. State (2005) 7 NWLR (Pt. 925) 491 at 513 paragraph F – G. (C. A); also restated the same principle that a voluntary confession of guilty which is fully consistent and probable is usually regarded as evidence of the highest and most satisfactory nature if there is an independent proof that a criminal act has in fact been committed by some body and that the accused person had the opportunity of committing the offence or that the confession was consistent with other facts which had been as ascertained and proved. Kanu & Anor V. R. (1952) 14 WACA 30 at 32; R. V. Chukwuji Obiasa (1962) WNLR 354 and R. V. Sykes (1913) CAR 233.
I agree that upon a perusal of the Record of proceedings one thing is clear that there was no evidence apart from the plea of guilty of the Appellant, in proof the offence. The question that is however pertinent to answer is whether the learned trial Judge erred in law in convicting the Appellant solely upon his plea of guilty without seeking corroboration from independent wittiness or the prosecution?
To answer this question we shall resort to the provision of Section 218 of the Criminal Procedure Act, CAP.C 41, Laws of the Federation of Nigeria, 2004 which governs arraignment and plea of an Accused person in Abia State and if possible also allude to Judicial authorities that interpreted that Section of the Act or Sections of Similar Criminal Procedure Laws in pari-material with the ones which have fallen for consideration and having been relied upon by the learned prosecuting/Respondent’s Counsel in urging us to hold that the learned trial Judge was right in convicting and sentencing the Appellant solely on his plea of guilty.
Section 218 of the C.P.A . with the caption “Effect of plea of guilty” stipulates inter alia 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 sentence upon or make an order against him unless there shall appear sufficient cause to the contrary”.
Commenting on the provision above reproduced, the learned Author of the “The Criminal Procedure of the Southern States of Nigeria 2nd Edition; Fidelis Nwadialo, S .A.N; at page 184 opined that. “In a plea of guilty the accused person admits that the charge is true but it is however only an admission of the offence charged and not the truth of the depositions of the witnesses in the lower Court R. V. Riley (1896) 18 Cox 185 R. V. Olagunju [1961] 1 ALL WLR 21, R. V. Wiligon [1959] 4 F. S.C. 175”.
On a plea of guilty, he points out, if the Court is satisfied that the accused intends to admit the essentials of the offence in question, it shall convict him of that offence and sentence him accordingly. See also Section 285 of the Criminal Procedure Act which states in line with what the learned Author has explained thus:
“285(1) At the commencement of the hearing, the Court shall state or cause to be stated to the defendant the substance of the complaint, and shall ask him whether he is guilty or not guilty.
(2) If the defendant says that he is guilty and the Court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why sentence should not be passed the Court shall proceed to sentence”.
Relying on the cases, of Onuoha V. Police (1956) N. N. L. R. 96 and also Grakida & Anor. V. Commissioner of Police (1964) NWLR 103; the learned Author also posited that where the plea is made, the Court should ask necessary questions to ensure that the Accused intends to admit the offence. Also if facts are given by the prosecution as to the actions by the Accused upon which the charge is based, the Accused must be asked whether he has anything to say to those facts.
If he says he does not admit the facts given by the prosecution, then a plea of “Not guilty”; should at the stage be recorded, but if he accepts the facts, record of his acceptance should be made before the Court proceeds to conviction and sentence. See, Osuji V. IGP (1965) LLR 143.
Where an allocutus after the plea obviously negates the plea of guilty, the trial Court should satisfy itself of the admission by the Accused person of the offence, otherwise it should allow him to withdraw the plea. IGP. V. Adedeji (1957) W. R. N. L R. 178.
Finally, a conviction founded on a plea of guilty is appealable only where it appears that the Accused person did not appreciate the nature of the charge or did not intend to admit it or where upon the admitted facts he could not have in law been convicted.
The above highlighted steps as enunciated by the learned senior advocate are the normal and practical procedures in Summary trials either in the Magistrate’s or High Court. In the instant case, I have gone through the Record of proceedings and there is no indication that the facts of the case were stated to either the Court or the Appellant and there could not have been any evidence with which the Court would satisfy itself that the Appellant intended to admit the truth of all the essentials of the offence of which he had pleaded.
Irrespective of the fact that the Appellant claimed to have perfectly understood the charge, upon being explained to him, he could not have been seised of all the essentials of the offence and in my humble view and based on the authorities I had earlier alluded to contrary to the submission of the learned Counsel for the Respondent, even after the charge was read and interpreted from English to Igbo and vice versa, the facts of the case ought to be related to him so as to be able to appreciate the magnitude of the offence he allegedly committed as well as the sentence. His statement to the police was not tendered neither were the investigation police officers Report as well as the 500 gms of Indian Hemp recovered from him.
To me, the entire proceedings leading to his conviction was most irregular and this Issue out to be resolved in favour of the Appellant.
The above notwithstanding, in the course of this Judgment, I came across the dicta of Tobi, JSC. first in Okeke V. The State (2003) 5 MJSCN 44 at 98 paras. E – F where he expressed the view that taking aplea by an Accused person presupposes that he understands the charge because according to the learned Emeritus Law Lord, if an Accused person does not understand the above charge, he will say so. To him, this is natural as he did not expect an Accused person to plead to a charge he does not understand. Since the charge was read to the Appellant in English Language and Appellant was literate in that case there was no need to explain the charge in the absence of objection from the Appellant that he did not understand the technical details of the charge, His Lordship added.
On the effect of a plea of guilty by an Accused on fair hearing just as in this case where all the essentials of the offence were not explained to the Appellant by stating the fact of the case as is the usual practice, the Emeritus law Lord again posited that an Accused person who pleads guilty to an offence is not entitled to a hearing and so the issue of fairness or unfairness of hearing does not arise. In his view, by entering a plea of guilty, hearing is foreclosed, as the next and last procedural step of the Judge is to convict and pass sentence. See, Omoju V. FRN (2008) 7 NWLR (pt. 1085) 38 at 60 paras. A – B; ably cited by the learned Counsel for the Appellant.
Finally on the duty of court where an Accused pleads guilty and the vexed issue of the correct interpretation of Section 218 CPA, the Emeritus Legal Icon again in the self-same Omoju V. FRN (2008) 7 NWLR (pt. 1085) at 62 paras. A – C intoned:
“I don’t see any language in Section 218 suggesting that the court must ask the Appellant if he admits all the essentials of the offence of which he pleads guilty. All that the section requires is that the court must be satisfied, that the Accused person intended to admit the truth of all the essentials of the offence in the language of the Section, the exercise within the mind of the judge to be satisfied or not, remains his subjective judgment. The moment the judge is so satisfied, he can convict and pass appropriate sentence.”
With due deference to the Emeritus legal Titan, Section 218 of the C.P.A. ought not to be read in isolation from Section 285 (1) and (2) thereof.
From the purposive construction of Section 218 and the interpretation given to it over the years and even in recent times, the Court is bound to ask the Appellant if he admits the essentials of the offence as it cannot conjure that satisfaction from nubibus except from the facts of the case as stated by the prosecution after the Appellant or Accused must have pleaded guilty to the offence. In any case, as had been decided by both English and Nigerian jurists in cases of settled antiquity as well as legal pundits and writers, the plea of guilt is only an admission of the truth of the offence for which he was charged and not the truth of the deposition of the witnesses.
Again, the Court can only satisfy itself that the Accused/Appellant intended to admit the truth of all the essentials where the facts are given by the prosecution as to the actions by the Accused upon which the charge is based and the Court asks the Accused whether he has anything to say of those facts. This is because in practical terms especially from experience, Accused persons sometimes plead guilty out of fear or with the hope that their sentences will be drastically reduced. Moreover, they sometimes plead guilty and upon the facts being presented to them they may deny the charge or change their pleas.
A recent decision of the Supreme Court buttresses the need for the Court of trial to satisfy itself that the Accused understood and clearly admits the essentials of the offence and the effect of his plea before convicting him on a plea of guilty. That case is Sunday Offor & Another v. The State (2013) MRSCJ (Vol. XII) 1 at 22 – 24 paras D – E. There the Appellants were charged before the Kogi State High Court, Holden at Isanlu for Conspiracy to Armed robbery and doing bodily harm. The relevant law which is important to us and which is in pari materia with Sections 218 and 285(1) and (2) of the C.P.A.,is Section 187(1) and (2) and indeed Section 161(3) of the Criminal Procedure Code (C. P. C)
Even though Ogunbiyi, JSC who read the lead Judgment agreed with this Court that Section 161(3) of the Criminal Procedure code does not apply to summary trials in the High Courts of the North, the above Section is almost ipssissima Verba with Sections 218 and 285 of the C.P.A. Be that as it any, the trial High Court in that case stated the facts of the case as tendered by the prosecution after the Appellant had pleaded guilty and went to the extent of recording that:
“The facts alleged by the prosecutor as constituting the offences charged were read over and explained to the Accused person. The Counsel asked the Accused if they admitted the facts alleged by the prosecutor. They answered in the affirmative.
I am satisfied that each of the Accused persons clearly understood the meaning of the three heads of charge in all the details and essentials and also the effect of their plea. The charges were read and explained to the understanding of the Accused persons, the Accused persons admitted all the facts which sustained the charges against them.”
It was upon the above basis that the learned trial Judge convicted and sentenced the Appellants and the Court of Appeal and Supreme Court affirmed his decision.
Where a trial Judge gave a detailed account of what transpired at the arraignment and followed the procedures laid down by the law assiduously, no sane Judge on Appeal would set aside such a Judgment, unlike the case at hand which is bereft of the facts and essentials of the offence so as to have satisfied the learned trial Judge that the Appellant intended or did admit to the essentials of the offence.
For the above reason and the fact that the learned trial Judge deviated from the principles laid down in the cases earlier cited, I shall resolve the issue in favour of the Appellant and hold that the learned trial Judge erred in convicting the Appellant upon his plea of guilty without proof of the offence by the prosecution.
ISSUE NUMBER 2 (TWO)
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT CONVICTING AND SENTENCING THE APPELLANT UPON THE PLEA OF GUILTY WITHOUT HEARING/SEEING THE FACTS ALLEGED BY THE PROSECUTION AS CONSTITUTING THE OFFENCE AND THE APPELLANT ADMITTING THE ALLEGED FACTS: (GROUNDS 1, 2 & 3).
On this issue the learned Counsel for the Appellant relied on Rabiu V. The State (2005) 7 NWLR (pt. 925) 491 at 513 – 514 paragraphs H – A; in submitting first that the plea of guilty is not and cannot be conclusive proof of guilt, in law as there must be evidence placed before the trial Court apart from the plea, before such conviction can be grounded otherwise it is unsafe to so convict the Accused solely on such a plea of guilty.
The learned Counsel for the Appellant on that authority then alluded to the procedure and the position of the law as laid down by the above cited Rabiu V. The State (Supra) at pages 514 para. D and 515 paras. A – B. On the conditions to be fulfilled before an Accused can be convicted on a plea of guilty by a trial Court. In the instant case it was argued that there was no evidence placed before the trial Court by the prosecution in proof of the offence apart from the trial Court not hearing any of the facts alleged by the prosecution as constituting the offence charged neither did the Court review the facts nor ask the Appellant whether he admitted any of those facts as allegedly constituting the offence charged.
Placing reliance again on Ishola V. The State (1969) 1 NMLR 257 (C.A), Stephenson V. I.G.P. (1966) 2 ALL NLR 261 at 264 para 4 lines 7 – 12 and page 265 Paragraph 3; it was the learned Counsel for the Appellant’s contention that the law is trite that where an Accused is charged with unlawful possession of Indian Hemp, the trial Judge cannot convict him on a plea of not guilty without seeing the alleged Indian Hemp in question and an expert evidence in the form of Government Chemist’s Report Certifying the alleged Indian Hemp as genuine.
Herein, the learned Counsel for the Appellant insisted, the prosecution neither tendered in evidence the alleged 500 grams of Indian Hemp or the evidence of the Expert in the form of Government Chemist’s Report Certifying the alleged Indian Hemp as genuine. Accordingly, the learned Counsel rounded up his submissions on this issue by contending that the learned trial Judge strayed in convicting and sentencing the Appellant upon his plea of guilty without hearing any of the facts alleged by the prosecution as constituting the offence charged nor asking the Appellant whether he understood and admitted those facts and without seeing the alleged 500 gms of Indian Hemp.
We were therefore urged to allow the Appeal set aside the conviction and sentence of the Appellant and discharge/acquit him.
ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT
Reacting to the foregoing arguments of the learned Counsel for the Appellant, the learned Counsel to the Respondent tersely submitted that by virtue of Section 277 of the Criminal Procedure Act CAP. C.41, Laws of the Federation of Nigeria 2004, which provides inter alia that all trials in the High Court other than information shall be by way of summary trial, the learned trial Judge was right in convicting and sentencing the Appellant upon his plea. We were therefore urged to affirm the decision of the trial Court and dismiss the Appeal for lacking in merit.
It would be recalled that the learned Counsel for the Appellant upon receipt of the Respondents Brief of Argument, filed the Appellant’s Reply Brief on the 22nd January, 2013 and same was deemed filed on the 9th of May, 2013 by order of Court. In the said Reply Brief which for the most part was a rehash of the arguments in the main Brief, the learned Counsel for the Appellant cited in addition to Rabiu V. The State (Supra), Stephenson V. I.G.P (supra), Ishola V. The State (supra), the case of Ajagaraja V. FRN (2007) 2 NWLR (pt. 1019) 586 at 605 606 paras. H- A and 606 – 607 paras. B – A on the need for the Court below to have looked for the essentials of the offence of dealing in 500 gms of Indian Hemp the failure of which according to him placed the trial Court in great jeopardy and robbed it of the facts with which it would have satisfied itself that the Appellant intended to admit the truth of all the essentials of the offence for which he had pleaded guilty.
He further submitted on the essence of Section 218 of the C.P.A. requiring the Court to be satisfied that the Accused intended to admit the truth of all the essentials of the offence and what was expected of the Court as I had said earlier on Issue Number One, on the proper construction of the said Section 218 C.P.A; adding that part of the essentials of the offence the truth that an Accused person may be said to have intended to admit by his plea of guilty is the punishment prescribed for the offence, as I had said earlier on Issue Number One.
On the need for the prosecution to lead evidence irrespective of Section 218 C.P.A, he maintained that it does not absolve the Prosecution as the plea of guilty merely reduces the standard of proof required by law. Samuel Ayo Omoju V. FRN (2008) 7 NWLR (pt. 1085) 35 at 61 paras. C – D refers.
Replying specifically to the contention of the learned Counsel for the Respondent and the reliance placed on Section 277 of the C.PA; the learned Counsel for the Appellant cited Garba V. COP (2007) 16 NWLR (pt. 1060) 378, to submit that the fact of a Court adopting the summary trial approach is not a license for the Court to abandon all known laid down Rules. He then asserted that there is nothing on Record to show that the Court below complied with the principles laid down in the above Garba V. COP (supra) in view of what transpired in the Court and therefore in his (learned Counsel’s view) the Appellant could not have been said to have properly understood the charge and/or admitted to have committed the offence.
On the whole he was of the final view that the summary trial envisaged by Section 277 of the C.P.A is just for speedy disposal of matters but not a yardstick for flouting or failing to comply with the rule of law nor does it amount to discharging the light burden of proof placed on the prosecution after the plea of guilty. Sections 285(1) and (2) of the C.P.A which provides for the procedure to be followed under summary trial and Section 277 of the C.P.A which is the statutory authority for summary trial were referred to us in finally urging us to discountenance the Respondent’s submission and allow the Appeal.
RESOLUTION: – In the resolution of this issue it is necessary to reiterate what I said earlier that by virtue of the provisions of Section 218 and 285(1) and (2) of the C.P.A, the Court below ought to have satisfied itself that the Accused” plea of guilty was with a full appreciation of the essential elements of the offence with which he was charged before he could be convicted. This point was stressed in Rabiu V. The State (2005) 7 NWLR (pt. 925) 491 at 514 paras. A – B. and H, ably cited by the learned Counsel for the Appellant where this Court held inter alia:
“A plea of guilty is not and cannot be conclusive proof of guilt in law … before conviction, the court must look for the essentials of the offence, and if they are lacking in any way, there is cause to the contrary and an order of acquittal must be entered.”
Therefore going by this authority the Court must ensure that the Accused has admitted all the facts upon which his charge was based as well as guilt in respect of same and unless he admits every and each of the constituent facts or ingredients of the offence, he cannot be convicted upon his plea of guilty.
Secondly in order to satisfy itself that the Accused/Appellant intended to admit the essential facts of the offence, the Court must ask the Appellant whether he admits all the facts as stated including the Exhibits tendered.
In Chukwudi Ugwuanyi V. F.R.N. (2012) MRSCJ Vol. 132 at 141 paragraphs E. G the Supreme Court Per Rhodes – Vivour, JSC enumerated the essentials of the offence of dealing with Indian Hemp in line with the decisions in Stephenson V. IGP (supra), Ishiola V. State (supra) and Agagaraga V. FRN (2007) 2 NWLR (pt. 1019) 586 at 605 – 607 thus:
“The Appellant was charged with being in possession of Indian Hemp punishable under Section 10H of the National Drug Law Enforcement Agency (Amendment) Act No. 15 of 1992.
To succeed, the prosecution must prove the following beyond reasonable doubt:
That the substance is Indian Hemp.
1. That the substance was in the possession of the Appellant.
2. That the substance was in the Appellant’s possession to his knowledge and without authority.”
As rightly submitted by the learned Counsel for the Appellant,the substance suspected to be Indian Hemp in which the Appellant was dealing ought to have been subjected to forensic test by an expert in the form of Government Chemist and a certificate confirming that the substance was actually Indian Hemp issued and tendered along with the facts of the case.
In the instant case a look at the Record of proceedings would reveal that the leaves suspected to be Indian Hemp for which the Appellant was standing trial and indeed pleaded guilty for dealing in them were not tendered not to talk of the Government Chemist’s Certificate or Report and as such the learned trial Judge could not have been in any position to determine whether the weeds were actually Indian Hemp. Accordingly, the conviction of the Appellant was unsafe.
I agree completely that failure to place the necessary or essential ingredients of dealing in Indian Hemp before the Court definitely robbed the below of the necessary facts with which he would have been satisfied that the Appellant intended to admit to the truth of all the essentials of the offence for which he had pleaded guilty. Agaragaraga V. FRN (supra) and Stephenson V. I.G.P. (supra) refer.
As I said earlier, and in total agreement with the learned Counsel for the Appellant, by requiring the Court to convict upon being satisfied that the Accused intended to admit the truth of all the essentials of the offence, Sections 218 of the CPA and indeed 285(1) thereof impose an onerous obligation higher than merely reading and explaining or interpreting the charge to the Appellant but upon the proper construction of Section 218 of the C.P.A following decisions of English as well as Nigerian cases both of settled antiquity, the Court was bound to ensure that the Accused was confronted with all the essentials of the offence which he had pleaded guilty to and must be satisfied that by his (Appellant’s) reactions to the confrontation, he intended to admit all the essentials.
As rightly submitted also by the learned Professor, part of the essentials of the offence may include the magnitude of the punishment for the offence and detailed nature of the ingredients of the offence which ought to have been explained to him after the facts may have been stated and questions put to him in the language he understood and if he still pleaded guilty then, the Court could proceed to convict and sentence him accordingly.
For purposes of emphasis what transpired at the trial Court was a caricature of the provisions of the Criminal Procedure Act on arraignment and plea. In the first place, the Appellant had at the earliest opportunity intimated the Court that he had no lawyer and although Mrs. Gift Okonkwo had been affirmed as an interpreter, there is nowhere that it is recorded that the charge was actually read to the Accused and interpreted to him in English Language and he appeared perfectly to have understood and he voluntarily pleaded ‘Guilty.’
Rather it was the learned trial Judge who prompted the Appellant thus:
“Court: Accused do you understand the Charge read and interpreted to you.
“Accused: I understand the charge.
“Court: Accused, you plead guilty to charge.
“Accused: I plead guilty to the charge.
The last Statement of the Court can be interpreted in various ways one of which is that the Court ordered the Appellant to plead guilty. Assuming however without conceding that the procedure adopted by the learned trial Judge was regular, the facts of the case were not read to the Court nor were the Indian Hemp or Certificate from the Government Chemist tendered. Even the extrajudicial Statement of the Appellant was not tendered so that after reading through same and the Court putting questions to the Appellant on the facts or essentials of the offence, the learned trial Judge would have satisfied himself that the Appellant had the intention of pleading guilty to the charge.
I reiterate that the procedure adopted by the learned trial Judge in proceeding to convict the Appellant without hearing the facts and seeing the Exhibits fell short of the requirements of Section 218 of the C.P.A and indeed Section 285(1) and (2) thereof.
Finally, on the reliance placed on Section 277 of the Criminal Procedure Act, by the learned prosecuting Counsel, that Section provides for summary trial in the High Court’s inter alia:
“277. The provisions of this part shall apply to offences triable summarily that is to say: –
(a) to all trials in the High Court other than on information; and
(b) to all trials in the High Court in respect of offences for which it is proved that a trial can be had in the High Court otherwise than on information and for which no special procedure is provide; and
(c) to all trials in any Magistrate’s Court to the extent of the jurisdiction of the Magistrate adjudicating, and
(d) for all offences declared by any written law to be triable summarily or on summary conviction or in a summary manner or by a magistrate”.
However, the fact that the Court below adopted summary trial procedure did not absolve the Judge from following laid down procedures in matters of this sort. The law is settled as decided in Omoju V. F.R. N. (supra) that a plea of guilty like the one in this case tantamount to a confession which itself puts an end to the rough and speculative edges of criminal responsibility in terms of the twin requirements of actus reus and mens rea See, Dogo V. The State (2013) Vol. 221 LRCN (pt. 1) 189 Per Ariwoola, J SC, ; but under Section 218 of the CPA, the plea of guilty merely reduces the standard of proof and the prosecution would still need the slightest corroborative evidence which could be gathered from the facts of the case and Exhibits, to found the conviction of the Appellant.
Talking of summary trial the learned Counsel for the Appellant also availed us of the decision in Garba V. C.O.P. (2007) 16 NWLR (Pt. 1060) 378; which laid down the conditions to be fulfilled by a Court adopting the summary trial procedure thus:-
(a) the particulars of the offence must be stated to the Accused;
(b) the Accused shall be asked if he has any cause to show why he should not be convicted;
(c) the Accused admits that he committed the ingredients of the offence; and
(d) he shows no sufficient cause why he should not be convicted.
I agree as I had stated earlier that there is nothing on the Record to show that the learned trial Judge complied with the aforestated principles as the Appellant was not confronted with the facts of the case and accordingly could not have properly understood and/or admitted the charge so as to warrant his conviction and sentence to 10 years imprisonment for the offence with which he was charged.
The Supreme Court has also given us a clue as to what summary trials entail in the recent case of Uwazuruike & Ors. V. AG. Federation (2013) 222 LRCN (pt. 2) 44 at pages 61 paragraph JJ – 62 para. A and 63 para. EE, 68 para. F and 74 paras Z – JJ per Rhodes – Vivour, Fabiyi and Peter – Odili JJSC. In his view Rhodes Vivour, JSC reasoned that:
“Section 277 of the Criminal Procedure which provides for summary trials along with Section 33(2) of the Federal High Court Act envisage that trials are fast and cases disposed in a prompt and simple manner. Attached to a charge to be tried summarily are scanty summary of evidence the prosecution would rely on and it is not all the evidence relied on by the prosecution that is made available to the Accused person before trial. His Lordship then proceeded to state that; “In a summary trial, accused persons are entitled to know the nature of the charge and not the nature of the evidence.”
On the part of Fabiyi, JSC; “summary trial entails immediate action without following the rigmarole in normal legal procedures. In some cases, it is often carried out brevi manu. It may appear unusual but where such is the law, as dictated by Section 33 of the Federal High Court Act, CAP. 133 LFN 1990, so be it.”
Peter – Odili, JSC on his part relied on the definition of “Summary” by the Oxford English Dictionary tenth Edition which means:
“a brief statement of the main points of something.
1. Not including unnecessary details.
2. (of a legal process or judgment) done or made immediately and without following the normal legal procedures.”
In the above case their Lordships of the Apex Court were unanimous that the substance of the complaint against the Appellants by way of summary of the evidence against them were made available to them before the Appellants filed their Appeal and accordingly their trial was not vitiated.
In our instant case, having held that the learned trial Judge did not adhere strictly to the procedure laid down in Sections 218 and 285 (1) and (2) of the Criminal Procedure Act on arraignment but erroneously proceeded to convict the Appellant without availing him of the facts so as to determine whether he intended to plead guilty to the truth of the offence or not; I am of the candid view that the entire proceedings was/is a nullity.
I derive great inspiration from the dictum of my noble Law Lord, Onnoghen, JSC; who upon being confronted with a similar Scenario in the case of Ganiyu V. The State (2013) 222 LRCN (pt. 1) 20 at 29 paras F, U – JJ and A page 30; held thus:
“It must be pointed out that the taking of the plea of an accused person upon arraignment is a matter of procedural Law, not substantive law, the defect on which renders the proceedings a nullity. Such a defect which goes to the jurisdiction of the Court.”
See also the case of Edibo V. The State (2007) ALL FWLR (Pt.384) 192 at 211 where the Supreme Court had earlier emphasized that the arraignment and taking of plea of an accused person is the very commencement (call it the threshold) of Criminal trial, it being the stage where the Accused appears in/at the Court, the charge read and explained to his understanding and he pleads thereto in person and not even through his Counsel.
“it is a very fundamental aspect of Criminal proceedings and that underscores the need for the strict and mandatory compliance in matters relating thereto. Thus in any criminal trial, no matter how well conducted, without the plea of the accused person first and properly taken is a nullity”. See Ezeze V. The State (2004) 14 NWLR (Pt.894) 491; Okeke V. The State (2003) 15 NWLR (Pt. 842) 25; Paul Onyia V. The State (2008) 18 NWLR (Pt.1118) 142, Dibie V. The State (2007) ALL FWLR (Pt.363) 83, Idumelia V. The State (1999) NWLR (Pt. 610) 202. See also Sabina Madu V. The State (2014) 1 FCLR (Pt. 1) 263 at 305; Lufadeju V. Johnson (2007) ALL FWLR (Pt.371) 1532, Solola V. State (2005) ALL FWLR (Pt .269) 1751, Amala V. The State (2004 )12 NWLR (Pt.888) 520.
As said earlier, in our instant case, there is no indication that the charge was read to the Appellant’s understanding but it was rather the learned trial Judge who prodded the Appellant into pleading guilty. Apart from not availing the Appellant of the facts of the case; the Statement made to the police and the Certificate of the Government Chemist/Forensic Report on the genuineness of the Indian Hemp he purportedly dealt in before his being sentenced to 10 years imprisonment without option of fine, were not availed either the Court below or the Appellant.
Having found out that the trial of the Appellant was a nullity, what should be the appropriate order to make in the circumstance.
We shall invite the learned Lord Justice of the Supreme Court, Onnoghen, J.S.C once more to proffer an answer through his dictum in the said Ganiyu V. The State case (supra) inter alia:
“The question that follows is what are the principles guiding the Courts in a Situation where a Court has to consider the issue as to whether or not to order a retrial of charge? The answer can be found in very many cases including Abodunde V. The Queen 4 FSC 70 at 71, Kajubo V. The State (1988) 1 NWLR (Pt. 73) 721 at 727 etc.
The principles include the following:-
(i) That leaving aside the error or irregularity in the proceeding, the evidence taken as a whole disclose a substantial case against the Appellant;
(ii) That there are no such special circumstances as would render it oppressive to the Appellant on trial a second time;
(iii) That the offences of which the Appellant was convicted or the consequences to the Appellant or any other person of the conviction or acquittal of the Appellant are not merely trivial;
(iv) That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it;
(v) The reason for declaring the trial a nullity and over all interest of justice are also relevant”.
Having gone through the scanty Record of proceedings in the present Appeal, there is nothing like the evidence of the witnesses to the case as even the Statement of the Appellant and the Indian Hemp he allegedly dealt in as well as the Forensic Report of the Government Chemist or Forensic Expert in that respect were not tendered so as to find out whether the evidence taken as a whole discloses a substantial case against the Appellant.
On the second condition, there are special circumstances as would render it oppressive to the Appellant to be tried a second time in that he was sentenced to ten years imprisonment in February,2010 and by the time the Judgment is delivered then in this Appeal, Appellant would have served half of the term of his imprisonment.
Thirdly, although the offence for which the Appellant was convicted and the consequences of his acquittal ought not have been trivial, having completed half of the service of his jail term, , to order retrial would occasion greater miscarriage of justice than to acquit him.
We had already given the reason for declaring the trial a nullity which is the non compliance with the strict and mandatory requirements of the provisions of the Criminal Procedure Act by the Court below when it proceeded to convict the Appellant solely on his plea of guilty, during his arraignment on the 4th of February, 2010).
The Supreme Court was also confronted with the situation we have found ourselves and their Lordships supported the view I had expressed above when Per Mohammed and Rhodes -Vivour, JJSC held in the case of Abdulahi Mohammed V. The State (2013) 218 LRCN (Pt. 2) 48 at 59 para KZ firstly on whether it would be oppressive to put the Appellant in that case on trial a second time, per Mohammed, JSC. thus:
“Looking at the case of the Appellant under condition (C) earlier quoted in the case of Abodundu V. The Queen (1959) 1 NSCC 56, the Appellant having spent 14 years in custody as at the date when his Appeal was heard by this Court, I have no hesitation in saying that it would certainly be oppressive to put the Appellant on trial a second time as ordered by the Court below. it is therefore my view that in the circumstances of the present case, it would definitely occasion greater miscarriage of justice if the order of retrial made by the Court below is upheld and affirmed by this Court.
See:(i) Okoduwa V. The State (1988) 2 NWLR (Pt. 76) 333;
(ii) Okegbu V. The State (1979) 11 S.C.1
(iii) Barmo V. The State (2000) 1 NWLR (Pt.641) 424;
(iv) Okere V. The State (2001) 2 NWLR (Pt. 697) 397;
(v) Samaila Umaru V. The State (2009) 8 NWLR (Pt. 1174) 134 at 145 – 147; (2009) 169 LRCN 1, where Musdapher, JSC (as he then was) in similar Situation as in the present case refused to uphold any order of retrial by the Court of Appeal”.
For Rhodes-Vivour, JSC; “The well settled position of the law is that when a trial is declared a nullity a retrial is ordered if and only if the interest of justice so requires. See, Queen V. Edache (1962) 1 ALL NLR P.22; Kajubo V. State (1988) 1 NWLR (Pt.73) 721 – that is to say a retrial would be ordered if the interest of justice requires that the accused person, Appellant should properly be tried”.
The case of Mohammed V. The State was a capital offence which carried a death sentence or at least life imprisonment if they were mitigating circumstances, yet the Supreme Court was minded to discharge him after being in detention for 14 years before the order of retrial. In the instant case, although dealing in Indian Hemp carries a life sentence which had been reduced to ten years, having served five of those years including his detention from 10th of October, 2009 and in view of his State of health and the fact of his being the only bread winner of his family of six, it would tantamount to oppression and miscarriage of justice to subject him to a second trial.
Relying on the Supreme Court cases earlier cited, and having found that the proceeding of the lower Court is a nullity, this Appeal succeeds and the Judgment of Hon. Justice E. A. Obile of the Federal High Court, Umuahia Judicial Division delivered on the 4th day of February, 2010 where of he sentenced the Appellant to 10 (Ten) years imprisonment without option of fine, is hereby set aside and Appellant discharged forthwith.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment by my learned brother, I. I. Agube JCA, and I agree with his reasoning and conclusions.
It is, however, correct to say that conviction can lie on a confessional statement or plea of guilt by the Appellant to the satisfaction of the trial judge, and the judge adjudge him (Appellant) to have, perfectly, understood the charged and elected to plead guilty to charge. See Sections 215 and 218 of the Criminal Procedure Act (CPA); Omoju v. The State (2008) 2 – 3 SC (Pt.1) 1 at 19.
On course, this applies where the charge is read and explained to him and he understood the same and was allowed opportunity to make his plea, without undue influence or harassment. See the case of Blessing vs. FRN (2012) (2013) 12 WRN 36 (2012) LPELR – 9835 (CA) where it was held on the requirement of valid arraignment, thus:
“…(1) The accused must be placed before the Court unfettered, unless the Court shall see cause to order otherwise…
(2) The accused person must be called upon to plead to the charge, unless there exists any valid reason to do otherwise, such as where there is objection as to want of service… See also Yasfu vs. State (2011) 18 NWLR (Pt.1279) 853; Edet v. State (2008) LPELR – 4016 CA; Olabode vs. State (2009) 11 NWLR (Pt.1152) 254.
In the case of Agaragara vs. FRN (2007) 2 NWLR (Pt.586) at 603, this Court held:
“Where an accused person cannot be said to have been informed of the charge against him in the language he understands and in detail the nature of the offence to which he is to plead as required by Section 36(6) of the 1999 Constitution and Section 217 and 218 and 288 of the Criminal Procedure Act. It does not amount to proper arraignment in a criminal trial.” See also Obed v. State (2014) LPELR
I think this caution is necessary, because a confessional statement or plea of guilt, is the best evidence of guilt, is the best evidence of guilt, as it is a direct admission of the offence by the accused person, which tends to locked every door of defence against himself, as it amounts to a surrender to the law and self imprisonment. See the case of Ikechukwu vs. AG. Imo State (2014) LPELR-23776 (CA), Adeniyi vs. FRN (2011) LPELR – 2766 (CA) See also Obasi v. State (2014) LPELR 24013 (CA):
“It has been stated, several times, that a confessional statement is the best and strongest evidence of guilt, as by it the Accused person surrenders himself and closes every door of defence against himself.” Salahudeen vs. The State (2013) LPELR – 21851 (CA); Akpa v. State (2008) All FWLR (Pt.420) 644.
As earlier stated, the effect of plea of guilt or confessional statement must be predicated upon valid and proper arraignment of the Appellant, wherein the charge was read and properly explained to the accused. See Okeke v. State (2003) 15 NWLR (Pt.842) 25 Gwarzo vs. C.O.P. (2014) LPELR –
“…Without a valid arraignment of the accused person, no trial in law would have commenced, and no matter the strength or cogency of evidence adduced, the trial and subsequent judgment would be rendered totally and invariably defective and consequently declared null and void.”
The records of what transpired in Court on the day of arraignment of the Appellant in this case is very scanty and failed to show that due process was followed. See pages 210-213 of the Records of Appeal.
Though the trial judge reported that the charge was read to the accused and he (judge) asked whether the accused understood the charge to which he (accused) answered in the affirmative, the process of doing these were not state. It is instructive to note that it was the trial judge that appeared to prompt the Accused person to plead, guilty, when he said:
“Court: Accused, you plead guilty to charge”
(There is nothing to show that was a question, seeking to know the plead of the Accused person).
Of course, as if the Accused person took the hint from the Court, he is reported to have said:
“I plead guilty to charge”
Thereupon, the Court went on to convict and sentence him, without a call for the facts to be adduced, as to what happened- how the offence was committed and when the Appellant was apprehended, the statement made by him and by the witnesses (if any) and the substance of the drug with which he was apprehended and the forensic analysis of the same, in line with his alleged earlier plea of guilt, whether it was, infact, Indian Hemp.
I think such fundamental breach of arraignment procedure went to the root of the trial.
I too allow the appeal and abide by the consequential orders in the lead judgment.
FREDERICK O. OHO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, I. Igwe Agube, JCA. I am in complete agreement with him and have nothing more to add. I will also allow the Appeal, set aside the judgment of E. A. Obile, J. of the Federal High Court, Umuahia Judicial Division delivered on the 4/2/2010 where he sentenced the Applicant to ten (10) years imprisonment without an option of fine.
Appearances
Prof. J. N. M Mbadiugha Esq.For Appellant
AND
Bashir Ibrahim (S.W) Esq.For Respondent
