Danjuma Rabe V. Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The Appellant was arrested on 21st March, 2012 for being in possession of dried weeds suspected to be Indian Hemp (Cannabis Sativa). The weeds weighed 4.4 kg in total. After preliminary investigations and laboratory analysis of the substance, which established the weeds to be Indian Hemp (Cannabis Sativa), the Appellant was arraigned before the Federal High Court, Ilorin on a count charge alleging that he, “without lawful authority trafficked in 4.4 kilogrammes of cannabis sativa (otherwise known as Indian Hemp) a drug similar to cocaine, Heroin, LSD, etc. (and) there committing an offence contrary to, and punishable under Section 11 (b) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria 2004.”
The charge, together with the Proof of Evidence containing his two extra-judicial statements, all recorded as having been made by the Appellant himself on 21st March, 2017 voluntarily, were served on him prior to his arraignment at the trial Court on 22nd May, 2012. The proof of Evidence at page
1
2 thereof has the following notices given to the Appellant: -IN ACCORDANCE WITH SECTION 36(6)(b) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AND SECTION 43 OF THE EVIDENCE ACT CAP E45, LAWS OF THE FEDERATION OF NIGERIA 2004″. That is:
1.00 TAKE NOTICE that the prosecution will at the trial of this case tender the following as exhibits
1.01 4.4 Kilogrammes of Cannabis Sativa otherwise known as Indian Hemp recovered and seized from the accused person
1.02 Certificate of Test Analysis
1.03 Packing of Substance Form
1.04 Request for Scientific Aid Form
1.05 Confessional statements of the accused person under caution in Hausa and the translation into English Language
1.06 Drug Analysis Report
1.07 Brown Envelope
2.00 TAKE NOTICE that the prosecution in proof of its case shall call the following as witnesses
2.01 PW.I Suleiman A. Ahmed (ASN 1) Is the exhibit officer
2.02 PW.II Usman Kubrange (DSN) to testify on how they arrested the accused person
2.03 PW.III Mohammed Tanimu (CNA) Witnessing Officer
2
2.04 PW.IV Forensic Expect To testify on how he analysed the recovered substance.
The Notices, though given inter alia pursuant to Section 36 (6) (b) of the 1999 Constitution, were, apparently, also given in fulfilment of the dictates of Section 36 (6) (a) of the Constitution that the Appellant having been “charged with a criminal offence shall be entitled to be informed in detail of the nature of the offence”; that is, the allegation against him. On the day (that is 22nd May, 2012), the Appellant was arraigned before the Federal High Court he was represented by a Counsel M. A. Lawal (Mrs.), Legal Aid Counsel. The Constitution, Section 36 (6) (c) & (d) thereof guarantees him the rights “to defend himself in person or by a legal practitioner of his own choice”, and to examine or cross-examine whoever the prosecution may call as witness(es) against him. The minutes of the proceedings of the said 22nd May, 2012 suggest that one Issa Turei Abdul-Kadir was engaged by the Court to interpret to or from him “from English to Hausa and vice versa”. Upon “the charge read,
3
interpreted and explained to (the Appellant) from English to Hausa and vice versa”, and the Appellant, “appearing” to the Court “perfectly to understand” same, pleaded guilty to the lone charge.
The Appellant was not summarily convicted on his plea of guilt. The prosecution, notwithstanding that the Appellant had pleaded guilty to the lone charge, elected to call Ahmed Akopari Suleiman as a witness. The said Ahmed A, Suleiman testified on oath as follows
Adeleye: Calls PW.1 for prosecution of facts
Lawal: No objection
PW.1: Affirms. Speaks English Cautioned under Section 206 Evidence Act 2011
PW.1: My names are Ahmed Akopari Suleiman. NDLEA Kwara State Command Ilorin is my address. I am ASN by rank. I am the Kwara State Command Exhibit Officer. I know the accused person.
On 21/3/12, he was brought to my office with one black polythene bag. In his presence and the presence of the 2 officers that brought him, I opened the black polythene bag and it contained some dried weeds which I tested and it proved positive for cannabis sativa weighing 4.4kg. In his presence, I issue out some forms which were filed and signed by the suspect and
4
the two officers. I also took small sample of the suspected dried weeds and put in a transparent evidence pouch and I sealed it in his presence. I kept the bulk of the exhibit. I attach the request for scientific aid form to the evidence pouch and took it to the forensic expert in Lagos. I brought back a brown sealed envelope and drug analysis report. In the course of my schedule of duty, the case file passed through me and I was able to go through the statement. I can identify the forms by my name and handwriting.
Identifies forms, seeks to tender.
Lawal: No objection
Court: The Forms are admitted in evidence as follows: Certificate of test analysis as EXHIBIT A.
Packing of substance form as EXHIBIT B.
Request for scientific aid form as EXHIBT C.
PW.1: I can identify the brown envelope. Identifies brown envelop. Seeks to tender.
Lawal: No objection.
Court: Brown envelope is admitted in evidence and marked EXHIBIT D.
Pw.1: I can identify the drug analysis report. Witness identifies report. Seeks to tender.
Lawal: No objection.
Court: The drug analysis report is admitted in evidence and marked. EXHIBIT E.
5
Pw.1: Applies for brown envelope to be opened to ascertain its contents.
Lawal: No objection. Court: Granted.
PW.1: opens envelope. The evidence pouch I took to Lagos is in the envelope. Seeks to tender.
Lawal: no objection
Court: Evidence pouch is admitted in evidence as EXHIBIT F.
PW.1: I can identify the bulk exhibit. Witness identifies bulk Exhibit. Seeks to tender.
Lawal: No objection.
Court: The bulk exhibit is admitted in evidence and marked EXHIBIT G.
PW.1: Identifies Hausa and English version of accused person’s statement, seeks to tender.
Lawal: No objection.
Court: The Hausa and English version of the accused person’s statement are admitted in evidence and marked EXHIBIT H AND H1.
PW.1: That is all.
Lawal: No cross-examination
At the close of PW.1’s evidence neither the Appellant nor his counsel cross-examined the witness. Thus, facts not denied, disputed or challenged are in law, as well as common sense, taken as admitted and of course established. This Court had stated so previously in a number of cases, including ODULAJA v. HADDAD (1973) 11 SC 35; OKUPE v. IFEMEMBI (1974) 3 SC 97; OMEREGBE v. LAWANI
6
(1980) 3 4 SC 10; DUROSARO v. AYORINDE (2005) 8 NWLR (pt. 927) 407; AJAGBE v. IDOWU (2011) LPELR 279 (SC). The credibility or probative value of the PW.1’s evidence is not an issue in this appeal.
It was on the strength of the evidence of PW.1, coupled with his earlier plea of guilt to the charge read, explained and interpreted to him, that the prosecutor at page 12 of the Record urged the trial Court “to convict the (Appellant) based on the evidence”. The defence counsel acquiesced in that prayer in the presence of the Appellant.
The trial Court, when it convicted the Appellant “as charged”, did so not entirely on the plea of guilt but on the unchallenged evidence of the PW.1 which includes the 9 exhibits tendered in evidence through him.
The Appellant’s appeal to the Court of Appeal was dismissed. This further appeal on a lone ground of appeal complains that
The Lower Court erred in law when it held that the plea of guilt entered by the appellant had obviated the necessity of the trial Court going into full-blown trial, without giving any considerations or any legal effect to the corresponding duty imposed on the trial
7
Court by Section 218 of the Criminal Procedure Act, Laws of the Federation of Nigeria, 2004.
The Appellant’s counsel, in formulating this ground, seems to me to have created a hole himself, like a gnawing mouse in the kitchen, in the proceedings of the trial Court of 22nd May, 2012 in order to find loopholes in the case for his attack against the decision of the Lower Court. The Appellant was not convicted on his plea of guilt. The prosecutor, notwithstanding that plea, still went ahead to call evidence of the PW.1 through whom some exhibits, including the Appellant’s extra-judicial confessions, were put into the evidence against the Appellant. I agree, as Ogbuinya, JCA had put it in the lead judgment of the Lower Court particularly at page 111 of the Record that
By the Appellant’s plea of guilty, an oral confession which is accommodated in law, he not only surrendered himself to the waiting arms of the law, but became, paradoxically, his own accuser. By his own volition of plea of guilty, the appellant destroyed and extinguished the presumption of innocence that accrues to him by the dint of the inviolable provisions
8
of Section 36 (5) of the Constitution, as amended, and made himself the undoubted owner of the required mens rea and acteus reus vis-a-vis that charge preferred against him.
Upon his pleading guilty to the charge there was no further necessity for the prosecutor to call evidence to establish the guilt of the Appellant beyond reasonable doubt. The prosecutor, however, went extra mile. He called evidence to further establish the guilt of the Appellant on the lone charge. The evidence not cross-examined or interrogated remains unchallenged and undiscredited. The prosecutor had thus made the assurance of the Appellant’s guilt on the information he had preferred against him doubly sure.
Having read the records of this appeal and the briefs exchanged I have no doubt that the Appellant was grossly in error, in whatever belief he labours under, that he was convicted upon his pleading guilty to the lone charge of trafficking in 4.4 kg of Cannabis Sativa (Indian Hemp). He was not convicted under Section 218 of the Criminal Procedure Act (CPA). Rather, he was convicted on the
9
evidence of the PW.1 and other pieces of evidence brought in through the PW.1 that were neither challenged nor discredited and on which, through his own counsel, he submitted to the prayer of the prosecutor that he be convicted on.
The counsel’s authority to compromise the Appellant’s defence to the allegation, the subject of the charge and trial has not been challenged. Courts assume, when a counsel announces his appearance for the accused person, that he has the authority of his client, the accused person, for the full conduct of the client case: FRN v. ADEWUNMI (2007) 4 SC (pt. 111) 30; (2007) 10 NWLR (pt. 1042) 399. This general or apparent authority includes counsel entering into a compromise for damage control or any other tactical reasons: NNSC v. SABAWA (1988) NWLR (pt. 74) 23; OYEGUN v. NZERIBE (2010) 16 NWLR (pt. 1220) 568. This Court, per Karibi-Whyte, JSC, citing with approval Halsbury’s Laws of England, stated the scope of the authority of a counsel acting on behalf of his client thus in AFEGBAI v. A.G, EDO State (2001) 14 NWLR (pt. 733) 425
10
“The scope and the amplitude of the authority of counsel acting on behalf of his client is stated in paragraph 1181 Halsbury’s Law of England 4th Edition; to include —the action and all matters incidental to it and to the conduct of the trial, such as withdrawing the record, challenging the juror, calling or not calling witnesses, cross-examining or not cross-examining witnesses, consenting to a reference to arbitration, a compromise, or verdict, … The client’s consent is not needed for a matter which in within the ordinary authority of counsel. Thus if in Court, in the absence of the client, a compromise or settlement is entered into by counsel where authority has not been expressly limited, the client is bound.”
It is erroneous, as suggested by the Appellant’s sole ground of appeal that the Appellant was summarily convicted on his guilty plea and in the circumstance the trial Court ought to have proceeded under Section 218 of the CPA. The Appellant was convicted on the evidence including the viva voce evidence of the PW.1 and other pieces of evidence put in through the PW.1, and upon the defence counsel consenting to the verdict on those available evidence.
11
Section 218 CPA does not contemplate a conviction upon evidence or full trial, howbeit short. It provides 218. 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 unless there shall appear sufficient cause to the contrary.
It has been averred in the Appellant’s Brief, as part of the sole issue formulated for the determination of the appeal, that “there is no finding on the record of proceedings to suggest/establish that the accused/Appellant intended to admit the offence charged”. The brief of argument never once points out any facts on the record suggesting that the Appellant did not intend to plead guilty and/or admit the charge. On the contrary, Page 9 of the record clearly has the evidence that the Appellant at arraignment and in the presence of his counsel pleaded guilty to the charge read and explained. The presumption is that he was
12
properly advised before he embarked on that course, and that he intended to plead guilty.
Appellant’s counsel submits further at page 5, paragraph 4.09 of the Appellant’s Brief that “at page 12 (of the Record) the Appellant was not called upon at all by the trial Court to admit or not to admit the evidence led against him by the prosecution”, and that “the lower Court fell into error when it affirmed the decision of the trial Court without giving consideration into the proper interpretation and application of Section 218 and 285 (2)” of CPA. The submission rests on the Appellant’s Counsel’s erroneous appreciation of the proceedings contained at pages 9 -12 of the Record. When an accused is represented by counsel the Court does not arrogate to itself the functions of the defence counsel, who at all times should be at alert to protect the interest of his client to the best of his professional abilities or responsibilities. The failure of counsel, or a tactical approach on his part, to discharge his function cannot and should not be visited on the Court, which at all times material remains an impartial umpire.
13
This appeal, without much further ado, is devoid of any substance. Accordingly, it is hereby dismissed in its entirety. I have not seen anything that warrants my interfering with decision appealed in the appeal No. CA/IL/C45/2012.
Appeal dismissed.
SC.147/2013