FEDERAL REPUBLIC OF NIGERIA
IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 19TH DAY OF FEBRUARY, 2016
BEFORE THEIR LORDSHIPS
SIDI DAUDA BAGE, J.C.A
JOSEPH SHAGBAOR IKYEGH, J.C.A
YARGATA BYENCHIT NIMPAR, J.C.A
MURITALA IBRAHIM Appellant(s)
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
OREOFE OGUNLEYE For Appellant
AUGUSTINE NWAGU For Respondent
Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Federal High Court Lagos delivered on the 9th November, 2012 by HON. JUSTICE, R. N. OFILI - AJUMOGOBIA wherein the Appellant was convicted and sentenced to 15 years of imprisonment for dealing in cannabis sativa otherwise known as Marijuana. The brief facts of the case before the trial Court were simply that the Appellant was arraigned before the trial Court on one count charge for dealing in Cannabis sativa which read as follows:
"That you MURITALA IBRAHIM, Adult, Male on or about the 4th day of July, 2012 at Ipodo street in lkeja Area of Lagos State within the jurisdiction of this Honorable Court without lawful authority dealt in 350 grams of cannabis sativa (otherwise known as marijuana) a narcotic drug similar to Cocaine, Heroine, LSD e.t.c and thereby committed an offence contrary to and punishable under Section 11 (c) of the National Drug Law Enforcement Agency Act, CAP N30 Laws of the Federation of Nigeria 2004."
The Appellant pleaded guilty to the charge but the prosecution proceeded to present evidence. One witness testified for the prosecution and tendered Exhibits PW1-8 without objection. He was not cross examined. The trial Court found the Appellant guilty, convicted and sentenced him to 15 years imprisonment with hard labour. Dissatisfied with the conviction and sentence, the Appellant filed a Notice of Appeal dated 4/12/12 and filed on the 4/12/12 setting out 3 grounds of appeal.
The Appellant filed his Appellant's brief dated 9th day of January 2013 and filed on the same day. The Respondent's brief was filed on the 1st of August 2013 and it is dated 29th,Ã½July 2013. Both briefs were adopted at the hearing of this appeal. The Appellant in the said brief distilled a sole issue for determination thus:
"Whether from the facts of this case, the complainant proved the guilt of the Appellant beyond reasonable doubt."
The Respondent on its part reframed the sole issue put forward by the Appellant in the following way:
"Whether the conviction and sentence of the Appellant was proper and justifiable in law having regards to what transpired at the trial and as reflected in the record of proceedings."
Both sides proffered arguments in support of the sole issue formulated for determination in this appeal. The Court shall adopt the sole issue distilled by the Appellant in order to resolve his complaint exhaustively.
The argument of the Appellant is that the guilt of the Appellant was not established by the prosecution which led the Court to hold as follows:
"The prosecution has reviewed the facts before the Court and shown to Court that the about 350 grams of weeds were dealt with the applicant. However, they have failed to establish the manner in which the applicant dealt in the weed which has inter tested (sic) and found to be offending during the cannabis sativa (sic)".
According to the Appellant, his guilt was not established beyond reasonable doubt as required by law. He cited Section 11(c) of the NDLEA Act. The Appellant submitted that the purpose for which the weed was in the possession of the Appellant was not proved as the trial Court in its judgment said thus:
"I believe that the weed was found on the Applicant and the purpose for which it was in his passion has not been satisfactorily established before the Court."
That from the above it shows that the prosecution failed, citing CHUKWU V STATE (2007) 13 NWLR (Pt. 1025)430 at 456; UDOSEN V STATE (2007) 4 NWLR (Pt. 1023) 125 at 150 to argue further that there was a doubt which should have been resolved in favour of the Appellant, relying on LATEEF v FEDERAL REPUBLIC OF NIGERIAÃ½(2010) ALL FWLR (Pt. 539)1171 at 1193 and DIBIE V STATE (2009) 9 NWLR (Pt. 1038) 30 on the burden of proof and any doubt to inure to the favour of the Appellant.
On the Appellant's guilty plea, the Appellant contended that the Court found that the Appellant did not understand the intricacies of the said Section 11(c) of the NDLEA Act as a whole. That the observation of the trial Judge is clear and distinguishable from the case of OMOJU V FEDERAL REPUBLIC OF NIGERIA (2008) 33 NSCQR (pt.1) 75 in which the trial judge was not in doubt of the guilt of the accused and therefore the Court should discountenance the said authority. Appellant urged the Court finally to allow the appeal, set aside the conviction and sentence and discharge and acquit the appellant.
The Respondent opposing the appeal highlighted the fact that the trial was a summary trial in the Federal High Court and that the Appellant pleaded guilty after which the Respondent presented evidence to enable the requirement of law be satisfied even though the burden of proof had been whittled down. He cited Section 33(2) of the Federal High Court Act, Cap F12 Laws of the Federation of Nigeria 2004 which provides for Summary trials and Section 218 of Criminal Procedure Act. It relied on OMOJU V FEDERAL REPUBLIC OF NIGERIA (2008) ALL FWLR (Pt. 415) 1656 at 1674.
Respondent submitted that the Court rightly convicted the Appellant because the plea of guilty amounts to an admission of the offence and the Court can convict upon an admission without more, relied on DIM v AFRICAN NEWSPAPERS LTD (1990) 3 NWLR (pt. 139) 396 and NWIZUK V ENEYOK 14 WACA 354. That the contention that the Respondent did not prove the offence in the manner in which the Appellant dealt with the drug in question by showing acts of buying and selling as required by the Act is unnecessary when the Appellant pleaded guilty. It argued further that when an accused person pleads guilty the burden of proof on the prosecution becomes light. That under Section 218 of the Criminal Procedure Act, the only reason the Court may not pass sentence on a plea of guilty is when there appears to be sufficient cause to the contrary but that the trial Court in finding the Appellant guilty stated thus:
"I therefore find the Appellant guilty under Section 11 of the NDLEA Act and sentence him to a term of 15 years imprisonment with no option of fine and with hard labour."
Furthermore, the Respondent contended that the Appellant was represented by counsel and no objection was taken to the plea nor the application by the Respondent that the Appellant be convicted on his guilty plea and the additional evidence presented by the prosecution. That all the authorities cited by the Appellant are situations where those cases went through full trial and the legal requirement then is for proof beyond reasonable doubt, while here, it was summary trial as provided by the law in this appeal. The Respondent submitted that the plea of guilty justifies the conviction and sentence pronounced by the trial Court. The Respondent finally urged the Court to dismiss the appeal for lack of merit.
The sole issue adopted for determination questions the conviction and sentence of the Appellant. The Appellant was arraigned on a one count charge for dealing in Cannabis sativa (Marijuana) without lawful authority. The charge was pursuant to Section 11(c) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation. The Section states thus:
"11. Any person who, without lawful authority:-
(c) sells, buys express or offers for sale or otherwise deals in or with the drugs popularly known as cocaine, LSD heroine or any other similar drugs shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life:"
The burden of proof in criminal cases is settled and it rests on the prosecution from start to finish in a criminal trial. It does not shift and the standard is proof beyond reasonable doubt.
Proof beyond reasonable doubt has received judicial attention and the Courts have held in several cases, one of which is the case of AKINLOLU v. STATE (2015) LPELR - 25986 (SC) as follows:
"Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability".
It therefore does not mean proof beyond all shadow of doubt. See also OSETOLA & ANOR v. THE STATE (2012) LPELR - 9348(SC).
The accused upon arraignment pleaded guilty to the charge and he was represented by counsel during the trial. The charge was explained to the Appellant as required by law. The Appellant pleaded guilty to the charge. upon that plea, Section 33(2) of the Federal High Court was activated and it states as follows:
"Notwithstanding the generality of Subsection (1) of this section, all criminal causes and matters before the Court shall be tried summarily."
The procedure is provided under Section 218 of the Criminal Procedure Act and it reads:
"If an Accused pleads guilty to any offence with which he was charged, the Court shall record his plea as nearly as possible in the words used by him and if satisfied that he intends 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."
Section 218 of the Criminal Procedure Act was considered by the Supreme Court in the case of JOSEPH DANIEL V FEDERAL REPUBLIC OF NIGERIA (2015) LPELR -24733 (SC) in the following words;
"There is no doubt, what the sole issue for determination of this appeal bothers on is the interpretation and application of Section 218 of the Criminal Procedure Act, What then does the law say on the effect of the plea of guilty by a person charged with that criminal 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 that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary."
The law therefore provides for conviction upon a guilty plea without any further formality. A plea of guilty can earn a conviction when certain conditions are evident as held in the case of SUMANYA ISSAH TORRI V THE NATIONAL PARK SERVICE OF NIGERIA (2008) LPELR- 8475 (CA) where the Court held:
"The requirement of the law before there could be a conviction on a plea of guilty are that:
i. The Court must be satisfied that the accused understands the charge against him;
ii. The Court must be seized of the facts alleged by the prosecution as constituting the offence charged;
iii. The Court must ask the accused if he admits all the facts alleged by the prosecution;
iv. The Court must be satisfied that the accused intends to admit the commission of the offence charged;
v. The facts stated by the prosecution and admitted by the accused must be able to sustain the charge against the accused."
The apex Court on the consequences of a guilty plea held thus:
"It is established law that after a plea of guilty by the accused before the Court exercising jurisdiction in respect of criminal offences, the Court must formally proceed to conviction without calling on the accuser to prove the commission of the offence by establishing the burden of proof by law". See DONGTOE V CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 4 S. C (Pt II) 43. See also NKIE V. FRN (2014) LPELR - 22877 (SC).
Generally, a plea of guilty that is unequivocal and a conscious act of the accused who has understood the charge explained can qualify for conviction without more.
The fundamental question here is whether there was proper arraignment? Arraignment simply means charging the accused person and reading over and explaining the charge to him to the satisfaction of the Court and followed by the plea. A plea is a product of a valid arraignment. The prosecution duly charged the Appellant and the record of appeal at page 12 reveals the following:
"Kalu: Have a charge dated 1st August 2012. Apply for the charge to be read and explained to Applicant and plea taken.
One count charge read and Applicant pleads guilty.
Orji: We are ready to review facts of case subject to convenience of Court.
We have one witness."
The charge was read, explained to the Appellant and he pleaded guilty to the charge. He was represented by counsel and no objection was raised. The sole witness was then taken and he tendered Exhibits PW1-- PW8 and they are:
a. Certificate of test analysis - PW1
b. Packing of substance - PW2
c. Request for Scientific Aid - PW3
d. Statement of accused dated 5/7/12 - PW4 and PW5 in English and pidgin English.
e. Drug analysis Report dated 19/7/12 - PW6
f. Bulk of substance weighing about 400grams - PW7
g. Transparent pouches containing the Analysis of substance - PW8
The above exhibits were tendered without any objection after which the prosecution closed its case and applied to the Court for the Appellant to be convicted. Learned counsel for the
Appellant then made the following submission as allocutus::
"1st Offender.Ã½Pleaded guilty at earliest opportunity without wasting Courts time. Plea of guilty is not only in admission but prima facie - proof of remorse and repentance. Culprit is 22, single. He is a user and has undergone counseling while in complainants custody. He has promised to be of good behavior. Court has discretion."
This appeal is grounded on what the trial judge said in the judgment, it is brief and I shall reproduce it here:
"The prosecution has reviewed the facts before the Court and shown to Court that about 350 grams of weed were dealt with by the applicant. However they failed to establish the manner in which the applicant dealt in the weed which was inter tested and found to be the offending during of cannabis saliva (sic). Although the accused person has pleaded guilty to the charge brought along him under Section 11 as a whole. I believe that the weed was found on the applicant and the purpose for which it was found in his possession has not been satisfactorily established the before the Court. The accused Applicants counsel on other hand has done absolutely nothing to make the applicants position clearer. I therefore find the Applicant guilty under S.11 of the NDLEA Act and sentence him to a term of 15 years imprisonment with no option of fine and with hard labour. Dated 9th November, 2012."
The Appellant challenged all of the above contending that the charge was not proved beyond reasonable doubt. Proof beyond reasonable simply means when the proof offered to establish the charge by the prosecution drowns the presumption of innocence of the accused, the Court will find that the charge has been proved beyond reasonable doubt. It is when the case of the accused is untenable and he is pinned down to the commission of the offence that the offence is said to be proved. It is not proof beyond all shadow of doubt because that will expose the community and do injustice to the public, see AKINLOLU V. STATE (SUPRA).
Upon the guilty plea and especially when the arraignment is not vitiated, the burden on the prosecution has been discharged, see the case of TORRI V THE NATIONAL PARK SERVICE OF NIGERIA (2008) LPELR - 8475 (CA) where the Court held as follows:
"The law however is that, after a plea of guilty by an accused person in non capital offence cases, the Court must formally proceed to the conviction of an accused without calling upon the prosecution to prove the commission of the offence by establishing the burden of proof ordinarily required by law. This is because the admission of guilt on the part of the accused would have satisfied the required burden of proof, In the instant case, the Appellant's plea of guilty having been properly taken thereby making his arraignment a valid one, the learned trial Judge was right to proceed to convict and sentence the Appellant as he did. It became an absolutely unnecessary exercise for the trial Court to call for evidence to be adduced in the pursuit of establishing that the Appellant committed the offences with which he was charged."
The trial Court did not say that it was not satisfied that the Appellant intended to admit the truth of the charge. That is the only condition the Court cannot convict on a plea of guilty.
Assuming the position was not so, can the evidence before the Court justify the conviction and sentence? The prosecution went ahead after the guilty plea to present 8 exhibits listed above and these includes the statements of the Appellant and the result of analysis of the weed which confirmed it to be Cannabis sativa commonly called Indian hemp or Marijuana. This was attested by the allocutus of learned counsel to the Appellant in seeking mitigation of sentence. The comment by the Court that the prosecution failed to prove how the Appellant dealt with the weed, I must say, is unnecessary because the plea of guilty has lessened the burden on the prosecution and in any case, Exhibit 4 clearly stated how the appellant dealt with the weeds. Exhibit 4 is the confessional statement of the Appellant and all of the exhibits were admitted without objection by either the Appellant or his counsel. In the confessional statement, the Appellant admitted to selling weeds which is the essential element under Section 11 (c) of the NDLEA Act. No further proof is therefore required.
In other words, the observations of the trial judge cannot be basis for setting aside the conviction which was based on the plea of the accused voluntarily made, more so, in the face of the additional evidence presented by the prosecution, the accused was rightly convicted. The burden of proof never shifted but the Appellant by his plea of guilty discharged the prosecution from going the whole way in proving the offence as if the plea were that of not guilty. The trial judge made those remarks without considering the fact that the accused person's plea of guilty was a plea accepting his guilt and the need for evidence did not arise. Furthermore, the need to go beyond the guilty plea on the aspects highlighted by the Appellant is not the law. The trial Court can only decline to convict on a plea of guilty when there are sufficient reasons disclosed to show that the plea was not in fact a plea of guilty. The Court did not say so here. There is therefore no burden on the prosecution to prove beyond reasonable doubt when the Appellant pleaded guilty, see JOHN TIMOTHY V THE FEDERAL REPUBLIC OF NIGERIA (2012) LPELR - 9346 (SC) where RHODES - VIVOUR, J.S.C held thus:
"A voluntary confession or/and a plea of guilt is the best evidence to rely on to convict an accused person."
The contention of the Appellant is for a trial where the accused pleads not guilty. All the cases cited are therefore not relevant in this case, where the Appellant pleads guilty.
On the issue of the summary nature of the trial, Section 33(2) of the Federal High Court Act provides that all criminal causes or matters before the Court shall be tried summarily. In the case of RALPH UWAZURUIKE & ORS V. THE ATTORNEY - GENERAL OF THE FEDERATION(2013) LPELR - 20392(SC), the Court held as follows:
"Summary trial entails immediate action without following the rigmarole in normal legal procedures. In some cases, it is often carried out brevimanu. 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."
In the case of KALU V. FEDERAL REPUBLIC OF NIGERIA & ORS(2012) LPELR - 9287(CA), the Court held:
"In the summary trial procedure the charge and the proofs of evidence verifying the charge, would have been previously served on the accused person and the trial Court is invited to proceed to trial of the accused on the proofs of evidence. Court is invited to proceed to trial of the accused on the proofs of evidence."
From the records before the Court, it is clear that the accused was convicted under a summary trial. If there was full trial why did the learned counsel for the Appellant not address the Court?
Besides, there was no objection to the tendering of the 8 exhibits and the Appellant counsel also admitted the Appellant was a user of Cannabis Sativa who has gone through counseling, so the contention in this appeal is uncalled for. The charge has been sustained against the accused and I find that the offence was proved as allowed by law.
This appeal lacks merit and is hereby dismissed. The judgment of the trial Court delivered on the 9th November, 2012 by HON. JUSTICE R. N. OFILI - AIUMOGOBIA convicting the appellant and sentencing him to 15 years imprisonment with hard labour is hereby affirmed.
No order as cost.
SIDI DAUDA BAGE, J.C.A. :
I concur with the reasoning and conclusion reached in the judgment prepared and just delivered by His Lordship, Y B. NIMPAR, JCA, to the effect that the instant appeal lacks merit. Hence, the appeal is equally dismissed by me.
Consequently, I affirm the judgment of the trial Court delivered on the 9th November, 2012 by Hon. Justice R. N. Ofili-Ajumogobia convicting the Appellant and sentencing him to 15 years imprisonment with hard labour.
No order as cost.
JOSEPH SHAGBAOR IKYEGH. J.C.A.:
I had the honour of reading in print the succinct judgment prepared by my learned brother, Yargata Byenchit Nimpar, J.C.A., with which I agree with nothing extra to add.