Emmanuel Kpoobari V. The Federal Republic Of Nigeria (2016)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Port-Harcourt Division, hereinafter referred to as the lower Court, affirming the conviction and sentence of the appellant by Federal High Court, hereinafter referred to as the trial Court, sitting in Port Harcourt in charge No. FHC/PH/203C/2008. The judgment of the lower Court being appealed against in this Court on two grounds was delivered on 10th April, 2013. The brief facts that brought about the appeal are stated below.

The appellant was tried and convicted at the trial Court on two count charge of knowingly and without lawful authority being in possession of 800 grammes of Indian Hemp, otherwise known as Cannabis Sativa, and 0.6 grammes of Cocaine, both substances being narcotic drugs, in breach of Section 19 of the National Drug Law Enforcement Agency Act CAP N 30 Laws of the Federation of Nigeria 2004. The first time the charges were read to him by the trial judge, the appellant pleaded not guilty to both. In the course of the trial the appellant changed his plea to one of being guilty whereupon the trial Court adjourned the case

at the instance of the respondent to enable it “review the facts” of the case. At the subsequent hearing of the matter, appellant was represented by counsel on which date the appellant maintained his plea of guilty to the heads of charge.The prosecution relied on the facts as contained in the charges, the scientific report in respect of as well as the Indian hemp and Cocaine recovered from the appellant and in respect of which he was being tried. Appellant counsel did not object.The trial Court proceeded to convict and sentence the appellant on the two counts of charge. The instant appeal is a further appeal from the lower Court’s affirmation of the trial Court’s conviction and sentence of the appellant.

The lone issue distilled in the appellant’s brief as having arisen for the determination of the appeal reads:-

“Whether the Respondent proved the offences charged against the Appellant notwithstanding the plea of guilty by the appellant.”

The respondent adopted appellant’s foregoing issue for the determination of the appeal.

On the lone issue, it is argued in the appellant’s brief settled by Tunde Ede Esq. that appellant’s conviction and sentence for both heads

of charge that had not been proved beyond reasonable doubt offend Section 135(1) of the Evidence Act and Section 36(5) of the 1999 Constitution as amended. The lower Court, it is argued, affirmed the trial Court’s conviction of the appellant inspite of the absence of proof of the essential elements of the offences by the respondent. Before a person is convicted for the offences appellant is convicted for, the respondent must link exhibit 5, the substances allegedly recovered from the appellant and exhibit 6, the scientific report on the substances. Respondent’s failure to produce evidence of the full proof handling of the narcotic substances from the time same was recovered from the appellant to the issuance of the chemist report, it is argued, is fatal to respondent’s case. Appellant’s admission that what was found his possession were Cannabis sativa and Cocaine does not cure the defect in his conviction. Learned counsel, cites in support of his arguments inter-alia: Isichel v. Commissioner of Police (1970) Midwestern State of Nigeria (MSNLR) 251 at 253-254, Ishola v. The State (1969) 1 NWLR 259 at 261, Commissioner of Police v. Apam (1973) ECSCR (pt 1) 8 and

Uwa v. Commissioner of Police (1972) 2 ECSCR(pt 11) 727, and urges the resolution of the sole issue in appellant’s favour and the success of his appeal as well.

In response, learned counsel concedes that it is indeed the requirement of the law that the respondent proves his case beyond reasonable doubt otherwise same will be set-aside on appeal. By Section 277 of the Criminal Procedure Act however, it is argued, the trial Court is empowered to summarily try the appellant who elected to plead guilty to the heads of charge which are not capital in nature and under Section 218 of the same Act, if satisfied that he understands and intends to admit the essentials of the offences he pleads guilty to, convict him. Learned counsel submits that the trial Court has complied with both Sections and, on the authorities, the lower Court has rightly refused to up-turn the trial Court’s unassailable decision. Among the materials tendered by the respondent at the trial Court, it is submitted, is the appellant’s confessional statement admitting the fact that what was recovered from him are narcotic substances which he is not allowed by law to possess. Appellant who was

represented by counsel did not object to any of the evidence tendered by the respondent which, on being admitted in evidence, enabled the Court to satisfy itself that he understood the charge and intended to plead guilty to them. The lower Court’s affirmation of the trial Court’s conviction and sentence of the appellant, learned respondent counsel contends, is beyond reproach. He relies on Kayode v. State (2008) 1 NWLR (pt 1068) 285, Nwachukwu v. State (2007) 17 NWLR (pt 1062) 31, Akpan v. State (2008) 14 NWLR (pt 1106) 72 and Kolawole v. State (2015) 8 NWLR (pt 1460) 138 and prays not only for the resolution of the lone issue against the appellant but the dismissal of the appeal as well.

The instant appeal is a rehash of appellant’s grudges at the Court below which decision, see page 95-96 of the record of appeal, inter-alia reads thus:-

“…following the proceedings as analysed above, the appellant was a self confessed criminal and the lower Court was right, as it did, to have convicted and sentenced him by virtue of Section 218 of the Criminal Procedure Act without the necessity of calling oral evidence in proof of the charge which had been admitted.