Francis Nkie V. Federal Republic Of Nigeria (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS, J.C.A (Delivering the Leading Judgment)

This appeal is against the decision of E. S. Chukwu, (J) of the Federal High Court Port Harcourt, delivered on 17th December 2008, in which the appellant was convicted and sentenced to 18th months imprisonment for the offence of being in unlawful possession of 0. 4 grams of cocaine, contrary to section 19 of the National Drug Law Enforcement Agency, cap N30 Laws of Nigeria, 2004.

As can be gathered from the record of appeal in the instant, the brief fact of the case is that, the appellant was confronted on the High way at Zaakpin Road Junction, in Kaanan Local Government Area of Rivers State and he was asked to bring out any thing in his pocket. The appellant complied and he brought out a 0.4 grams of cocaine. He was there and then arrested and he was cautioned that he was not obliged to say anything unless he wished to do so. There and then appellant made a direct confession of not only having cocaine but also fond of selling cocaine to other users.

Based on his confessional statement, the substance was packed in his presence and he was subsequently arraigned before the afore said Federal High Court. The charge was explained to him, but he pleaded guilty to the offence, and the prosecution presented to the trial court the essential facts of the case and tendered exhibits which were dully admitted in evidence as Exhibits A. B. C. D. E. and F, without any objection by the appellant. The appellant was then found guilty and then convicted and sentenced to 18 months imprisonment after the usual allocutus.

Despite appellant’s plea of guilty, he filed a notice of appeal on 17th March, 2009 containing a single ground of appeal. By leave of this court, appellant filed 10 additional grounds of appeal and urged the court to allow him to argue the totality of the original and additional grounds of appeal which was granted.

From the 11 grounds, the appellant has raised two issues for determination and they read as follows:

“a.) Whether the respondent proved the offence charged against the appellant notwithstanding the plea of guilty by the appellant – grounds 2, 5, 6, 7, 8 and 9.

(b) Whether the none service of Exhibits on the appellant prior to their being tendered in court coupled with the reliance by the court on the review of fact by the prosecutor in the absence of witnesses was not unfair to and resulted in a miscarriage of justice to the appellant. Grounds 3, 4, and 10.”

From the appellants’ issues one and two from which the nine grounds of appeal were distilled, it is now clear that the appellant has abandoned the original ground 1 and the additional ground 11. The two grounds of appeal are therefore struck out.

The respondents’ brief of argument is dated 18th May, 2010, from which appellants’ similar issues are raised for determination. I feel that there is no need to re-produce the identical issues.

The appellants’ main contention is that the offence charged against him for whom he was convicted and sentenced was not proved against him, despite the fact that he had clearly pleaded guilty. Learned counsel for the appellant relied on section 138 (1) of the Evidence Act where it is provided that if the commission of a crime by a party to any proceeding is in issue, it must be proved beyond reasonable doubt.

The appellant has argued that the offence charged against him was for the offence of cannabis sativa, which should have been proved beyond reasonable doubt. In my considered finding, the appellant’s issue on cannabis sativa is fallacious because there is a word of clear difference between cocaine substance and cannabis sativa. Cocaine is defined as an addictive drug obtained from the leaves of the coca plant, which is sometimes used medically as local anesthetics but more commonly used as an illegal stimulant. On the other hand, cannabis sativa is defined as a narcotic drug, prepared from the leaves and flowers of the hemp plant, that produces euphoria or hallucinations when smoked or swallowed, and the use of which is prohibited in Nigeria and many other nations. See Chambers 21st Century Dictionary pages 264 and 206. All that I am saying is that, the appellant goofed completely on the offence on which he was charged and convicted. More over, his extra judicial confessions as can be found on pages 2-4 of the record is very clear as there was no pressure on appellant. The confessional statement is hereby reproduced as follows:

“The police stopped us they asked us to search ourselves. I put my hand in my pockets and brought out my wallet handkerchief and my cocaine. The Police later allowed the bike man and Mr. Iommadari to go and arrested me then took me to their office at Bori. Today Monday August 25th 2008 at about 12.00 noon, the police handed me over to some officers whom I later known to be NDLEA officers with my cocaine. The cocaine was the one I bought from one keke Unkiev of Gbodo village about four days before my arrest. I bought it at the rate of N250 per pinch. The eight pinches costing N2000. I collected the cocaine on credit, ho one kobo was give to keke Unkiev the day I received the cocaine. I only told him that I would give him the only as soon as I see it. The drug re cocaine(sic) was my first time of collecting from keke. I have never sold it before. I intended to market it to any body that asks of it. I told keke that I would return it back to him if I could not market it. In NDLEA office, my cocaine was counted to give eight =8= pinches, tested and shows colours for cocaine and weighed 0.4 grams in my presence. The officers issued some forms on which I signed and thumb printed. I plead with this office to pardon me; I will not sell it again. This is all”.

Since the appellant’s counsel can not make the essential elements of the offence of cocaine on which the prosecution charged and proved beyond reasonable doubt, which was voluntarily confessed and knowingly pleaded guilty when the offence of possession of cocaine was fully explained, the requirement of section 138 (1) of the Evidence Act was properly established.