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Chukwudi Oyem V. Federal Republic Of Nigeria (2019)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

The Appellant was arraigned as 2nd Accused person with one Faith Osama before the Federal High Court, Abuja, by officers of the National Drug Law Enforcement Agency (NDLEA) on a 1 count charge of transporting 103.1 kilograms of Indian Hemp (cannabis sativa) in an army green 307 Peugeot vehicle with fake Ministry of Defence Plate Number without lawful authority contrary to Section 14 (b) of the NDLEA Act, 2004, contained in the Charge dated 30/12/2011 at page 3 of the record as follows:

That you FAITH OSAMA (F) and CHUKWUDI OYEM (M) on or about 30th November 2011 along Abaji-Abuja express Road within the jurisdiction of this honourable Court, knowingly transported 103.1 kilograms of Indian hemp otherwise known as cannabis sativa, a narcotic drug in an Army green 307 Peugeot vehicle with fake ministry of Defence number plate FG 78 A06 without lawful authority and thereby committed an offence contrary to and punishable under Section 14(b) of the NDLEA Act. Cap N30 Laws of the Federation of Nigeria, 2004.

At the trial, 2 witnesses testified (PW1 and PW2) as having received and

kept in custody the dried weeds. After the trial in the Federal High Court, the Appellant, in the judgment of the trial Court on 5/3/2012, was convicted and sentenced to 5 years imprisonment without option of fine because of his plea of guilty with the confessional statement. The said judgment was affirmed by the lower Court, hence the instant appeal.

By a Notice of Appeal dated 4/7/2013, the Appellant formulated 4 Grounds of appeal with their particulars for the determination of this appeal as contained at pages 118-121 of the record. In arguing the appeal, the Appellant filed an Appellant’s Brief on 19/7/2013, settled by Aliyu Saiki, Esq, wherein at page 2 of the Brief, he formulated a lone issue for the determination of the appeal thus:

Whether in satisfaction of the legal requirement of proof beyond reasonable doubt, the Respondent was not required to establish by way of cogent and compelling evidence that the dried weeds recovered from the Appellant were actually Indian hemp, in order to sustain the conviction as envisaged by the Law under which he was charged, even in the face of the alleged plea of guilty and purported confessional statement

of the Appellant (Grounds one, Two and Three).

On the other hand, the Respondent filed a Brief of Argument on 13/10/2017 settled by Yakubu Maikasuwa’ Esq’ wherein he also formulated at page 5 of the Brief, one issue for the determination of the appeal as follows:

Having regard to the entire circumstances of the case, was the Court of Appeal right when it confirmed the conviction and sentence of the Appellant

On 24/1/2019 when the appeal came up for hearing, the parties adopted their respective Briefs and asked this Honourable Court for judgment in their favour.

Having gone through the records and the evidence therein, this appeal shall be considered on the issue formulated by the learned Counsel to the Appellant.

ISSUE:

statement of the Appellant (Grounds One, Two and Three)

The learned Counsel to the Appellant submitted that by the charge framed against the Appellant, it ought to be under Section 11 (b) and not Section 14(b) of the NDLEA Act. That it is on the Respondent to prove the ingredients of the offence as decided in OKOROJI V. STATE (2001) FWLR (PT.77) AT 894 PARAS G-E, but it failed to prove that the substance allegedly transported by the Appellant was actually Indian hemp otherwise known as cannabis sativa. That since the PW1 was only a custody keeper, the preliminary test could not have proved that the substance was actually Indian hemp since the laboratory test result in Lagos was not available. He submitted that by the case of JOHN TIMOTHY V. FRN (2013) 4 NWLR (PT.1344) AT 222, an accused person can be convicted on his confessional statement alone though it is desirable but not mandatory that some other evidence consistent with the confession is produced. Thus, that the prosecution must prove every ingredient of the offence as held in ONYIA V. STATE (2006) 11 NWLR (PT.991) AT 293/4 and failure is to have the accused acquitted. He relied on RASAKI V. STATE

(2011) 16 NWLR (PT.1273) AT 251. He maintained that reliance on Exh. PW1A by the trial Court, being the preliminary test result was erroneous since PW1 was only an Exhibit keeper. He contended that by the confessional statement, the Respondent is not yet relieved of its burden of proof. He cited in support SHURUMO V. STATE (2010) 19 NWLR (PT.1226) AT 108, ABOKOKUYANRO V STATE (2012) 2 NWLR (P1.1285) AT 552, ISAH V. STATE (2010) 16 NWLR (PT.1218) AT 164. Thus, that where the trial Court wrongly convicts an accused person, the appellate Court can quash such conviction as decided in SHURUMO V. STATE (SUPRA) AT 110. He therefore asked this Court to resolve this issue in favour of the Appellant, set aside the conviction and sentence of the Appellant and substitute it with a verdict of discharge and acquittal.

The learned Counsel to the Respondent on the other hand has submitted that the Respondent has proved the 2 ingredients of the offence that the Appellant (1) Knowingly transported 103.1 kg of Indian hemp known as cannabis sativa, a narcotic drug, (2) That the substance transported was actually Indian hemp otherwise known as cannabis sativa. He argued that

the Respondent proved its case through the evidence of PW1 and PW2, Exhibits PW1E (car), PW1 F1-F12 and PW2A. He maintained that by the facts and circumstances in this case, the Prosecution had no burden to prove that which was admitted. That the Appellant pleaded guilty and stood by it, Exhibits PW1A, B and C, PW1E (car), PW1 F1-F12 and were all tendered without objection. Even his confessional statement was admitted without objection. He submitted that the confession and admission of the Appellant enjoy the same equivalence because a confession is the best evidence as decided in MUSA V. STATE (2013) 9 NWLR (PT.1359) 214, HASSAN V. STATE (2017) ALL FWLR (PT.890) 778. That with the plea of guilty, the evidence of PW1 & PW2 and the confessional statement of the Appellant, any finding by the trial Court would have been perverse since proof beyond reasonable doubt is not beyond all shadow of doubt as held in ABOKOKUYANRO V. STATE (2012)2 NWLR (PT.1285) 530. He urged this Court therefore to resolve this issue in his favour and dismiss the appeal.

The Appellant learned Counsel weakly stated that the Appellant was wrongly charged under Section 14 (b) of the

NDLEA Act instead of Section 11(b). I think he is fully aware of the law that is why he did not make any issue or argument out of it nor is he asking this Honourable Court to tamper with the lower Court’s judgment because of it. Nevertheless, without the risk of superfluity, the law is settled that it does not matter under which section of the law, the definition or the penal section, an Appellant is charged and convicted. The conviction endures on appeal once it is shown that the facts for which the Appellant is convicted constitute an offence known to law. It does not matter if the conviction is under the wrong section of or even an entirely wrong law, once the facts leading to the conviction constitute an infraction provided for by a written law, the appellate Court may not interfere with the conviction. It is late at that stage for the Court to interfere with the conviction notwithstanding such defect in the charge that could have, on account of any objection after the charge was read over to the Appellant or in the course of the trial, been rectified by the trial Court. See Per MUHAMMAD, J.S.C in OKPA V. STATE (2017) LPELR-42205(SC).

For clarity and comprehensiveness of this case, may I re-narrate the facts below: The Appellant sometime on 30th November 2011 along Abaji-Abuja express Road was arraigned as 2nd Accused person with one Faith Osama before the Federal High Court, Abuja, by officers of the National Drug Law Enforcement Agency(NDLEA) on a 1 count charge of transporting 103.1 kilograms of Indian Hemp (cannabis sativa) in an army green 307 Peugeot vehicle with fake Ministry of Defence Plate Number FG 78 A06 without lawful authority contrary to Section 14 (b) of the NDLEA Act, 2004, contained in the Charge dated 30/12/2011 at page 3 of the record. At the trial, the charge was read to the Appellant who pleaded ‘guilty’ to it. Two (2) witnesses testified (PW1 and PW2) as having received and kept in custody the dried weeds. After the trial in the Federal High Court, the Appellant in the judgment of the Court on 5/3/2012 was convicted and sentenced to 5 years imprisonment without option of fine as a result of his plea of guilty and the confessional statement. The said judgment was affirmed by the lower Court, hence this appeal.

At page 18 of the record, the Appellant took his plea thus; “I

understand the charge read and explained to me. I plead guilty to the charge”. On 16/2/2012 at page 21 when the matter came up for hearing, the Appellant again was asked by the Court as follows:

Court- Asks 2nd accused whether he still stands by his plea of guilty which he enters on 27/1/12.

2nd accused- I plead guilty. I still stand by my earlier plea of guilty.

Furthermore, during the trial from pages 21-26 of the record, Exhibits PW1A, B, C, PW1E, PW1 F1-12, especially exhibits F1-F12, being the 12 bags of dried weeds (Indian hemp), were tendered and admitted in evidence against the Appellant without any objections from him or his learned Counsel. Similarly, after the trial, at page 26 of the record, the trial Court asked the Appellant thus: “Is there any reason why the Court should not convict the 2nd accused as applied by the prosecution” The Appellant answered “I have no cause to show why I should not be convicted”. Nevertheless, the appeal before this Court now is “Whether in satisfaction of the legal requirement of proof beyond reasonable doubt, the Respondent was not required to establish by way of cogent and compelling evidence that

the dried weeds recovered from the Appellant were actually Indian hemp, in order to sustain the conviction as envisaged by the Law under which he was charged, even in the face of the alleged plea of guilty and purported confessional statement of the Appellant”

It is the law that in order to secure a conviction for unlawful possession of Indian Hemp, otherwise known as cannabis sativa, the prosecution must establish the following beyond reasonable doubt as required by Section 135 of the Evidence Act, 2011: 1. That the substance was in the possession of the accused; 2. That it was knowingly in his possession; 3. That the substance is proved to be Indian Hemp (cannabis sativa); and 4. That the accused was in possession of the substance without lawful authority. See Per KEKERE-EKUN, J.S.C in BLESSING V. FRN (2015) LPELR- 24689 (SC).

The contention of the Appellant however is that there was no proof that the dried weeds recovered from the Appellant were Indian hemp. It must be noted that the Appellant admitted and confessed that he committed the crime, pleaded that he was guilty and had no cause why he should not be convicted. Besides, PW1 stated at page

22 from line 9 and page 23 from line 3 of the record as follows:

“I conducted a preliminary test on the weed in the presence of the accused and other witnessing officers. The test proved positive for cannabis sativa, a Narcotic Drug… The sample of the drugs along with the transparent evidence pouch I took for testing to Lagos laboratory.”

Again, when Exhibits PW1 F1-12, being the 12 bags of dried weeds (Indian Hemp) were tendered in evidence against the Appellant, he raised no objection to their admissibility. The lack of objection to the tendering of Exhibits PW1 F1-12 means that he accepted and understood very well that the dried weeds were Indian hemp, otherwise called cannabis sativa. Per CLARA BATA OGUNBIYI, J.S.C in BLESSING V. FRN (2015) LPELR-24689 (SC) demonstrated this thus:

The mere fact that the appellant admitted Exhibit 4 in evidence without objection has rendered the document admissible evidence and therefore unchallenged. It can be acted upon. It follows in the result that the procedure of admission even if irregular, has been waived and cannot now be made subject of complaint. See Obisi v. Chief of Naval Staff (2004) 11 NWLR

(Pt. 885) P.482 where this Court held and said: ‘A person who acquiesced in an improper procedure without protesting is not permitted to complain on appeal.

Again, the confessional statement of the Appellant (PW2A) was tendered at page 25 of the record without objection. This implies and means that the substance confessed by him was well understood to be Indian hemp and nothing else, otherwise one cannot confess and admit what is not true. It has been contended by his Counsel that the Court ought not to convict solely on his confessional statement since the test result of the substance was yet to come out. This is foul and does not have a place in our criminal jurisprudence. It is only advised that it is desirable and not mandatory. In fact, the law is trite on this that an accused can be convicted solely on his confessional statement. “A Court can convict on a Confessional Statement alone without corroboration once it is satisfied of the truth of the confession.” See Per CLARA BATA OGUNBIYI, J.S.C in BLESSING V. FRN (2015) LPELR-24689(SC).

I must strongly warn and state here that when a confession is made, you are hook, line and sinker admitting all

the ingredients of the crime and revealing even other things which the world or the prosecution may not know about the crime and all its ingredients especially where such a confession is unequivocally clear and voluntary without any taint of interference. Thus, it follows that a confessional statement is the best, most direct and potent weapon in the hand of the prosecution against the accused person and can be a panacea to every criminal mystery and puzzle in the criminal justice system and jurisprudence.

In the instant appeal, the Appellant at his plea and even during the trial pleaded ‘guilty’ and maintained the plea of ‘guilty’. It is trite law, that to give a plea is for an accused person to formally respond to a criminal charge, either of “guilty”, “not guilty” or ”no contest.” See Black’s Law Dictionary, 9th Edition, page 1268. Therefore, it is now settled that a plea of guilty, is valid if made in a very unambiguous and unequivocal way and the same is received by a trial Court/tribunal not labouring under the misapprehension of what the law is. See Per OLUKAYODE ARIWOOLA, J.S.C in OKEWU V. FRN (2012) LPELR-7834(SC).

In a charge of possession of and dealing in Indian hemp, the prosecution is only required to prove that the substance found in possession of the accused is Indian hemp, the meas rea required to establish it is comprised in the words “unlawful possession or being in possession without lawful authority” as against unknowingly possessing Indian hemp. Once the substance is proved to be Indian hemp, the burden shifts to the accused to establish that he has lawful authority to be in possession or to deal in the substance. See Per Galadima, JSC in OKEWU V. FRN (2012) 9 NWLR (PT. 1305) 327, 358 C-D. If the Appellant knew that what he was carrying were not bags of dried weeds and prohibited by the law, he would not have confessed to the crime or offence. He has in fact, taken down the burden of proof placed upon the prosecution to prove that it was a narcotic drug or Indian hemp.

This appeal is only adding salt to wounds as I perceive nothing appealable in the Appellant’s case and still wonder why he had to waste precious time and resources to burden the Courts with such seemingly incontestable appeal rather than live with the seal of conviction since his 5-year prison term must have expired now.

The issue is resolved against the Appellant and the concurrent judgments of both the trial and lower courts are hereby affirmed.

SC.344/2013

Chukwudi Oyem V. Federal Republic Of Nigeria (2019) LLJR-SC

Chukwudi Oyem V. Federal Republic Of Nigeria (2019)

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