Fedaeral Republic Of Nigeria V. Uchenna Iwuafor (2019)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal Ibadan Division or Court below or Lower Court delivered on the 5th May 2015, Coram: O. Daniel-Kalio, M. N. Oniyangi, N. Okoronkwo JJCA which upturned the decision, conviction and sentence of the appellant at the trial Federal High Court per Ofili- Ajumogobia J.
The matter at the trial High Court was handled summarily and to make the position clearer as to what transpired at that Court of first instance, I shall cite the charge and the proceedings on the day of arraignment: –
FEDERAL REPUBLIC OF NIGERIA – COMPLAINANT
(1) UCHENNA IWUAFOR (M) – ACCUSED
That you Uchenna Iwuafor (M) and Mohammed Abubakar (M) on or about the 14th day of January 2008 at Oyo town in Oyo State, within the jurisdiction of this Honourable Court without lawful authority knowingly possessed 92 kilogrammes of Cannabis sativa otherwise known as Indian hemp, a narcotic drug similar to cocaine, heroin and LSD thereby committed an offence contrary to and punishable under Section
11(d) of the NDLEA Act Cap. N.30 Laws of the Federation of Nigeria 2004.
P. E. UDOMIAYE ESQ., (Prosecuting Counsel)
For: Attorney General of the Federation.
On the 6th day of May, 2008 date of arraignment, the following transpired: –
FEDERAL REPUBLIC OF NIGERIA – COMPLAINANT
- UCHENNA IWUAFOR (M)]
2.MOHAMMED ABUBAKAR(M)] – ACCUSED PERSONS
Accused person in Court.
P. E. Udomiaye appears for the prosecution.
Udomiaye: I apply the charge be read to accused persons in order to take plea.
Charge read to both accused persons. Both accused plead guilty.
UDOMIAYE: We urge Court to convict Accused Persons based on their plea.
COURT: 1st Accused can you tell me anything about your circumstances to influence the sentence I am about to hand out to you.
1st Accused Person: My mother is dead. Have mercy on me.
2nd Accused person: I have nobody. For past 4 years, I have not visited Adamawa State my home State.
COURT: In view of their pleas of guilt for the offence of possession 92 Kilogrammes of cannabis sativa contrary to Section 11 (d) of the NDLEA Act Cap N.30 LFN
2004 I hereby sentenced the 1st and 2nd Accused persons each to 15 years imprisonment with hard labour.
HON. JUSTICE R. N. OFILI-AJUMOGOBIA
6TH MAY, 2008”.
BRIEFLY, THE FACTS:
The appellant herein was the complainant at the Federal High Court, Ibadan, Oyo State in a charge wherein the respondent was jointly charged with One Mohammed Abubakar for unlawful possession of 92 Kilogrammes of Cannabis Sativa, a narcotic drug similar to Cocaine, LSD or heroin. The respondent was convicted and sentenced as charged under Section 11 (d) of the National Drug Law Enforcement Agency (NDLEA) Act Cap No.30 Laws of the Federation of Nigeria (LFN) 2004.
Consequently, the respondent appealed to the Court of Appeal, Ibadan. Upon the hearing of the appeal, the Court allowed the appeal and set aside the conviction and sentence of the Federal High Court, Ibadan.
The appellant has now filed an appeal against the judgment of the Court of Appeal, Ibadan.
At the hearing of the appeal on the 6th day of December, 2018, learned counsel for the appellant, Segun Ololade Esq. adopted the amended appellants brief filed on
7/3/18 and deemed filed on 6/12/18 and in the brief were couched two issues for determination, viz:-
- Whether the learned Justice of the Court of Appeal erred in law when they held that the arraignment of the respondent fell far below the position of the law.
- Whether in view of the plea of guilty by the respondent, the learned Justices of the Court of Appeal were right in holding that the proof of a crime in a trial is beyond reasonable doubt.
Learned counsel for the respondent, Prince Abioye A. Oloyede – Asanike adopted the amended brief of argument filed on 30/11/2018 and deemed filed on 6/12/18. He made use of the issues as crafted by appellant.
I shall make use of the issues so crafted and together.
ISSUES 1 & 2:
Whether the learned Justices of the Court of Appeal erred in law when they held that the arraignment of the respondent fell far below the position of the law.
Whether in view of the plea of guilty (sic) by the respondent, the learned Justices of Court of Appeal were right in holding that the proof of crime in a trial is beyond reasonable doubt.
Learned counsel for the appellant contended that the respondent was given ample opportunity to defend himself and he opted to plead guilty and accept the facts as presented by the appellant and there being a presumption of regularity in favour of judicial acts all was as shown on the record and in compliance with Section 215 of the Criminal Procedure Act (CPA for short).
He cited Section 168 (1) of the Evidence Act 2011; Ogheneovu v Federal Republic of Nigeria (2013) All FWLR (Pt.667) 704; Nwachukwu v State (2007) 17 NWLR (Pt.1062) 31.
That the issue of expert evidence does not apply where the accused pleads guilty to the charge against him as in the present case. He referred to Omoju v FRN (2008) 7 NWLR (Pt.1085) 38; Offor v State (2012) 18 NWLR (Pt.1333) 421.
Learned counsel stated for the appellant that the Court cannot apply the provisions of the CPA to negate the summary proceedings when the jurisdictional power of the Court is so activated. He referred to Section 33 (1), (2) of the Federal High Court Act; Section 285 of CPA; FRN v Ibori (2014) 13 NWLR (Pt.1423) 168; Uwazuruike & Ors v Attorney General, Federation (2013) 10 NWLR (Pt.1361) 105 etc.
Responding, learned counsel for the respondent stated that the law is trite that in arraignment of an accused, it is necessary to state the language in which the charge was read and explained to the respondent and the language he spoke which was not done in the case at hand. He cited Kajubo v State (1988)1 NWLR(Pt.83)721; Eyorokoromo v State (1979) 6-9 SC3; Erekanure v State (1993) 5 NWLR (Pt.294) 285; Andrew Idemudia v The State (1999) 5 SCNJ 47 at 55-56.
That there was a clear non-compliance with the provisions of Section 215 CPA during the arraignment at the trial Court so much so that a conviction cannot be sustained thereby since the provisions of Sections 215 and 218 CPA are mandatory and failure to comply with any of them renders the whole proceedings a nullity. He cited Kajubo v The State (supra); Ewe v The State (1992) 6 NWLR (Pt.246) page 147 at 152-153; Rufai v The State 7 NSCQR 420 at 433 etc.
What is before this Court has to do with the arraignment of the accused/respondent and whether or not it was properly done and if it can safely be said there was compliance with the requirements of the law. In this instance, the respondent
had pleaded guilty but it has to be reiterated that the mere fact of such a plea is not an open and shut situation and the judge proceed to conviction and sentence without some conditions being in place. On pleading guilty, an accused person wholly and voluntarily gave himself up to the law and became his own accuser but then, the question that must be asked and answered is if the condition precedent leading to that plea had been fulfilled and that being whether the accused actually understood the charge as read to him. Therein lies the duty of the trial Court to ensure not only that the charge was read and explained to the accused, it must be in the language he understands, It is no use to read a charge in English language without interpretation to a stark illiterate Ibo man and when he pleads guilty for the Court to say that indeed there was compliance with the law. This is because compliance with Section 215 Criminal Procedure Act is strict and I shall quote the provisions thereof thus:-
SECTION 215 CPA:
“…The person to be tried upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise 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 which 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. (Underline mine).
Also along the same line is Section 285 (1) CPA which provides as follows:-
“…at the commencement of hearing, the Court shall state or cause to be stated to the defendant the substance of the complaint and shall ask him whether he is guilty or not guilty.”
The learned counsel for the appellant had made much of Section 33 (2) of the Federal High Court Act Cap F12 LFN, 2004 on the procedure for summary proceedings and anchoring on that, contended that what the learned trial judge did was fine and so Section 33 (2) of the Federal High Court would make it regular for what transpired at the trial Court.
Section 33 provides thus: –
“(1) Subject to the provision of this Section, Criminal Proceedings before the Court shall be conducted
substantially in accordance with the provisions of the Criminal Procedure Act and the provisions of that Act shall, with such modifications as may be necessary to bring it into conformity with the provisions of this Act, have effect in respect of all matters falling within the jurisdiction of the Court”.
Section 33 (2) then provides:
“Notwithstanding the generality of Sub-section (1) of this Section, all criminal causes or matters before the Court shall be tried summarily”.(All emphasis added).
The attempt by the appellant to seek a subordination of Section 218 of the CPA by Section 33 of the Federal High Court Act would be a futile act since the fair hearing right of the respondent accused is paramount hence the mandatory nature of the provisions of Sections 215 and 218 CPA. This is because any proceedings without the strict compliance of those provisions of Sections 215 and 218 are rendered a nullity. See Kajubo v The State (supra), Ewe v The State (1992) 6 NWLR (Pt.246) 147 at 152-153; Erekanure v The State (1993) 5 NWLR (Pt.294) 3845; Isiaka Rufai v The State 7 NSCQR 420 at 433; Eyorokoromo v The State (1979) 6-9 SC 3; State v Moshood Oladimeji 15 NSCQR 173 at 188-189.
The duty required of the trial Court is to ensure the strict compliance with those laws and there is no running away from that obligation. Taking that in context to what happened on that day of arraignment, 6th May, 2008 where the prosecutor applied for the charge to be read to the accused persons in order to take their pleas. Indeed, the charge was read but no record of the language used and the next on the record is that both accused pleaded guilty. Again, since the accused were two, the charge ought to be read to each of them and upon the understanding of what was read and explained to him, the individual accused would plead. There is nothing recorded as to any explanation of what was facing the accused and also nothing to show that the learned trial judge was satisfied that the accused knew what he was being told and understood it. What language used is a matter for conjecture and that the law rejects. The trial judge then proceeded to ask the respondent if he had anything to say, again, one guesses this to be the allocutus since the response elicited was:
“My mother is dead. Have mercy on me”.
new_annoThe learned trial judge proceeded with the sentencing since according to her:
“In view of their plea of guilty for the offence of possessing 92 kilogrammes of cannabis sativa contrary to Section 11 (d) of the NDLEA Act Cap N.30 LFN 2004, I hereby sentenced the 1st and 2nd Accused Persons each to 15 years imprisonment with hard labour”.
The appellant’s learned counsel is persuading the Court to accept that Section 168 (1) of the Evidence Act 2011 would apply to get the trial Court off the hook of whether or not compliance with Sections 215 and 218 CPA was in place.
Section 168 (1) provides thus: –
“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”.
With humility Section 168 (1) of the Evidence Act 2011 is certainly inapplicable here where what was done at the trial Court cannot be said to be substantially regular nor can the mandatory provisions of Sections 215 and 218 CPA which requires strict compliance with the processes carried out and so Evidence Act, Section 168 is out of place here and in
this I am at one with the findings and conclusion of the Court below that what transpired at the trial Court fell below the stipulations of the Criminal Procedure Act and the right of the respondent to fair hearing was compromised. When that is the case there is no justification that would save the day as the entire proceedings are null and void. That an accused pleaded guilty does not take away the rights guaranteed for him by Section 36 of the Constitution 1999 (as amended).
I would want to reiterate that the right to fair hearing is all the more in the course of a plea of guilt since by the admission he has cut short otherwise lengthy and possibly laborious process and so the Court must ensure that he knows and understands the accusation against him and with the shortened distance the burden of proof placed on the prosecution becomes light and so the need to bend a little, making sure he know what he is doing in the process. See Omoju v FRN (2008) 7 NWLR (Pt.1085) 38; Offor v State (2012) 18 NWLR (Pt.1333) 425; Ogheneovu v Federal Republic of Nigeria (2013) All FWLR (Pt.667) 704.
As I said earlier, the respondent had a raw deal at the trial Court and there is no evidence that he understood
what he was there for and why and what the plea was. The Court below cannot be faulted in the findings and conclusion which I adopt. The appeal lacks merit and I dismiss it as I affirm the decision of the Court of Appeal which acquitted and discharged the respondent.