Ifeanyi Chiyenum Blessing V Federal Republic Of Nigeria (2015)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

On 21/3/2011 the appellant was arraigned before the Federal High Court, Ilorin on a three-count amended charge dated 16/3/2011 for unlawfully dealing with 2.4 and 15.3 kilograms respectively of Indian Hemp, and unlawful possession of Indian Hemp contrary to Sections 11(c) and 19 of the National Drug Law Enforcement Agency (NDLEA) Act Cap, N30, Laws of the Federation of Nigeria (LFN), 2004. She pleaded not guilty to each count.

In proof of the charge, the prosecution called four witnesses and tendered several exhibits. In her defence, the appellant called one witness and testified on her own behalf. In the course of trial, she objected to the admissibility of her statement to the NDLEA officers on the ground that it was involuntarily made. A trial within trial was conducted. The court held that the statement was voluntary and admitted it in evidence as Exhibit 8. In a well considered Judgment delivered on 10/2/2012, the court discharged and acquitted the appellant on counts 1 and 3 (unlawfully dealing in Indian Hemp) but found her guilty as charged on count 2 for unlawful possession of the substance. She was sentenced to a term of fifteen years imprisonment.

Being dissatisfied with the decision, she appealed to the Court of Appeal, Ilorin Division, which on 11/10/2012 unanimously affirmed her conviction and sentence. Still dissatisfied she has further appealed to this court by a notice of appeal filed on 8/11/2012 containing four grounds of appeal.

In the appellant’s brief settled by ISIAKA ABIOLA OLAGUNJU ESQ. on 25/1/2013, four issues were distilled for the determination of the appeal. At the hearing of the appeal on 26/2/2015, Mr. Olagunju abandoned Issue 4. The three remaining issues are:

1. Whether the Court of Appeal was right when it held that the plea of the appellant was properly taken by the trial court.
2. Whether the Court of Appeal was right when it held that Exhibit 8 was properly admitted by the trial court and thereby relied on same to affirm the conviction and sentence of the appellant.
3. Whether the Court of Appeal was right when it affirmed the conviction and sentence of the appellant placing heavy reliance on Exhibit 4.

The respondent’s brief was settled by SENI ADIO, ESQ. It was deemed filed on 8/10/2014. Therein the following issues were formulated for the determination of the appeal:

1. Whether Exhibits 4 and 8 were properly admitted in evidence, and rightly acted and relied upon by the Trial Court and the Court of Appeal as part of the grounds for convicting the Appellant of the offences charged;
2. Whether the Court of Appeal rightly held that the plea of the Appellant was properly taken by the Trial Court; and
3. Whether from the totality of evidence adduced at the trial, the prosecution proved beyond reasonable doubt the offences as charged against the Appellant to warrant her conviction.

Having carefully examined the issues formulated by both parties, I am of the view that this appeal can be conveniently determined on the appellant’s issue 1 and the respondent’s issue 3. The respondent’s issue 3 encompasses the appellant’s complaints in issues 2 and 3. The appeal will therefore be determined on the following two issues:

1. Whether the Court of Appeal was right when it held that the plea of the appellant was properly taken by the trial court.
2. Whether from the totality of evidence adduced at the trial, the prosecution proved beyond reasonable doubt the offences as charged against the Appellant to warrant her conviction.

Issue 1

Whether the Court of Appeal was right when it held that the plea of the appellant was properly taken by the trial court.

In support of this issue, it is contended on behalf of the appellant that her plea was not taken in accordance with the constitutional requirement and the law. The appellant’s complaint is with regard to the requirement of Section 36 of the 1999 Constitution (as amended) and Section 215 of the Criminal Procedure Act (CPA), Laws of the Federation of Nigeria 2004. Section 215 of the CPA provides:

“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”

Learned counsel contends that the appellant is illiterate and that this fact was not taken into account when her plea was taken. He submitted that there is nothing on the record to show that the trial court explained the nature of the offence and the punishment therefore to the appellant so as to establish the source of its satisfaction that the appellant fully comprehended the offence to which she pleaded. He argued that compliance with the requirement is even more important where, as in this case, the drug, Indian Hemp also known as cannabis sativa, for which the appellant was charged is not listed under Section 10(c) of the NDLEA Act as one of the substances to which the law is expressly applicable. He referred to: Agagaraga v. FRN (2007) 2 NWLR (Pt.1019) 586 @ 601-603 E-B.

He argued that it is not enough to merely read the charge to the appellant without more, given the character of the offence, and the fact that the appellant is illiterate. He submitted further that the record does not indicate who read the charge to the appellant, or whether it was explained to her in a language she understands. He submitted that failure to comply strictly with the provisions of Section 215 of the CPA and Section 36(1) and (6) of the 1999 Constitution renders the trial a nullity. He referred to: Kajubo v. The State (1988) 1 NWLR (Pt.73) 721 @ 732 E-F; Eyorokoromo v. The State (1979) 6-9 SC 3; Josiah v. The State (1985) 1 SC 406 @ 416.

He referred to the proceedings of the trial court at page 18 of the record, which reads: