Henry Odeh Vs Federal Republic Of Nigeria (2008)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

The appellant herein and some policemen were arraigned before the Lagos Zone of the Miscellaneous Offences Tribunal. The appellant was charged with the following offences:-

Count One

“That you HENRY ODEH on or about the 24th day of March, 1995 at Imaba Compound, Igando, Lagos, dealt in to wit offering for sale 290.15 kg of Indian Hemp [Cannabis sativa] a drug similar to heroin cocaine or (LSD) without lawful authority and thereby committed an offence contrary to and punishable under section 10(H) National Drug Law Enforcement Agency Decree No. 48 of 1989.”

Count Two

“That you, HENRY ODEH, on or about the 24th day of March, 1995, at No. 24 Imaba Compound Igando, Lagos knowingly had in your possession 290. I5 kg of Indian Hemp [Cannabis sativa] a drug similar to Cocaine, Heroin [LSD] without lawful authority and thereby committed an offence contrary to and punishable under section 10(H) of the National Drug Law Enforcement Agency Decree No 15 of 1992.”

The 2nd to the 6th accused that stood trial with the appellant were jointly charged in the 3rd count with aiding the appellant to “deal” 290.15 kg of Indian Hemp [cannabis sativa] contrary to section 10(c) of the National Drug Law Enforcement Agency Act aforesaid and punishable under section 10 (d) of the same Act. There was also a fourth charge against the 2nd-6th accused” persons. At the trial the prosecution called five witnesses in all and the appellant and the other accused persons gave evidence but called no other witness. The second count against the appellant was withdrawn upon an application requesting the withdrawal of the charge by the prosecution on the 30th day of April 1998. The trial tribunal found the appellant guilty on count one and sentenced him to 10 years imprisonment. The appellant being dissatisfied with his conviction appealed to the Court of Appeal, Ibadan, which set aside the conviction and sentence of the appellant in count one of the charge but however convicted the appellant on a different offence of being in unlawful possession of the 290.15 kg of Indian Hemp under section 10 (d) of the NDLEA Act, which the Court of Appeal found proved. This led to the enhancement of the punishment of the appellant from 10 years to 15 years as provided by section 10(H) of the NDLEA Act of 1992. It is against that decision that the appellant has appealed to this court. The Notice of Appeal contains three grounds of appeal which read thus:-

“Ground One”

“1. The Honourable Court of Appeal erred in law in holding that exhibit 7 was a confessional statement and thereby convicted the appellant for possession of 290:1 5 kg Indian Hemp [cannabis sativa] and thereby occasioning a miscarriage of justice.

Particulars of Error:

(a) The appellant had explained the circumstance, under which exhibit 7 was obtained and yet the court attached so weight to exhibit 7 even in the absence of other corroborative evidence

(b) Exhibit 7 was not a confessional statement as to the commission of the offence for which the appellant was charged and in view of section 27 (c) of the Evidence Act cap 112 Laws of the Federation 1990, the learned justices of the Court of Appeal ought to have discountenanced or disregarded it.

(c) Exhibit 7 is in respect of previous arrest of the appellant by some unnamed police officers and does not relate to the charge preferred against the appellant.

(d) Exhibit 7 was not consistent with other facts that were proved in the course of the proceedings.

(e) The learned justices of Court of Appeal did not properly evaluate the whole evidence that was before the tribunal while considering Exhibit 7.

(f) It is trite that an extra judicial statement [whether confessional or otherwise] made by an accused person and admitted in evidence as an exhibit with or without objection whether made voluntarily or not is not a statement of truth of all that happened. ”

Ground Two

The Honourable Court of Appeal erred in law and on the fact when it held the appellant guilty of the offence of possession of Indian Hemp.

Particulars of Error:

(a) The prosecution failed to prove the essential ingredients of the offence of possession of Indian Hemp under section 10 (H) of the NDLEA Decree No. 15 of 1992. To wit knowingly had in your possession 290.15 kg of Indian Hemp (cannabis sativa) without lawful authority.

(b) There was evidence before the lower court which was not controverted that No. 24 Imaba Street Igando, Lagos is accessible to other tenants living at that premises with or without the appellant’s consent. There is therefore no conclusive proof that the 46 bags were deposited by the appellant at the rooftop.

(c) The prosecution failed to call material witness one Mr. Christopher who allegedly recovered the 46 bags and who would have resolved the issue of ownership or possession one way or the other.

(d) The evidence of P.W 1 and P.W. 4 in respect of the ownership of the 46 bags is of no probative value since they were not the persons that recovered the substance and therefore their evidence is hearsay evidence which is not admissible on this point.

(e) Exhibit 7, the alleged confessional statement which the Honourable Court below heavily relied on in convicting the appellant of possession is not conclusive on this point and the circumstances under which the said Exhibit was obtained had been satisfactorily explained by the appellant.

(f) Exhibit 7 was not corroborated.”

Ground Three

The Honourable Court of Appeal erred in law convicting the appellant for knowingly being in possession of 290.15 kg of Indian Hemp the charge having been withdrawn by the prosecution itself and was accordingly struck out by the tribunal.

Particulars of Error:

(a) The prosecution did not substitute, at any time during trial the said charge withdrawn by it and struck out by the Honourable Tribunal.

(b) The offence knowingly being in possession of Indian Hemp is not a lesser offence to that of offering for sale Indian Hemp without lawful authority.

(c) The withdrawal of the said charge without any substitution, is an admission by the prosecution that it could not sustain or prove the charge.

(d) The prosecution did not file any cross appeal on the said charge struck out in the Honourable Tribunal.”

In his brief of argument for the appellant, the learned counsel has identified formulated and submitted three issues for the determination of the appeal. The issues read as follows:-

“I. Whether the learned Justices of the Court of Appeal were right in law when they convicted and sentenced the appellant to 15 years imprisonment after setting aside his conviction by the trial Court (Tribunal) in Count One of the charge

2. Whether the learned Justices of the Court of Appeal were right in law when they relied on exhibit 7 to convict the appellant for being in possession after count two of the charge dealing with possession had been withdrawn and struck out by the trial court (Tribunal).
3. Whether section 17 (6) of the NDLEA Act Cap 253 Laws of the Federal Republic of Nigeria 1990, is inconsistent with the provision of section 6 (6) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 and therefore null and void to the extent of its inconsistency.” At the hearing of this appeal before this Court, the learned counsel for the appellant conceded that the third issue for determination recited above is not covered by any of the grounds of appeal. At page 2 paragraph 1.04 of the appellant’s brief, the appellant indicated his desire to seek leave to argue an additional ground of appeal. The appellant had not sought for the leave to argue any additional ground of appeal. It is now settled law which does not require any authority, that issues for determination cannot be formulated outside the grounds of appeal. Issues for determination formulated must be related to the grounds of appeal.

Every issue for determination must be formulated from and related to or distilled from a competent ground of appeal. In other words, an issue not distilled from any of the grounds of appeal, is incompetent and must be discountenanced together with the argument or arguments advanced there under. I accordingly strike out the third issue and all the arguments canvassed by the appellant on it.

The learned counsel for the respondent adopted more or less the remaining two issues. Before discussing the issues for the determination of the appeal, I think it is desirable at this juncture to recount briefly the facts of the case.

Acting on information received by the chairman of the NDLEA, in Lagos, P.W.1 and P.W.4 along with some other officials of the NDLEA, went to the appellant’s house at 24, Imaba Street, Igando Lagos on the 24/3/1995. The information received was that the appellant was dealing in hard drugs. On arrival at the premises, the witnesses said they met the appellant, the men were led by the appellant into his room, they searched the appellant’s room but nothing incriminating was found. One of the men climbed into the roof through the ceiling of the appellant’s room and on the roof top recovered 46, bags of Indian Hemp. They carried the appellant and the 46 bags to their office at Ikoyi Lagos. It was in the course of interrogating the appellant that the appellant revealed that he had earlier been arrested by five policemen from Idimu police station on the 22/3/1995 but was later released along with the drugs seized from him after he had paid the police men some money. P.W. 5 a commercial bus driver stated how he was on 22/2/95 stopped by policemen and asked to dislodge his passengers. His vehicle was used in loading and taking 46 bags from the appellant’s residence to ldimu police station in company of the appellant and later he was told to return the bags with the appellant to the appellant’s residence. The policemen were arrested and were arraigned with the appellant as stated above.

The appellant made a statement to the NDLEA shortly after his arrest. The statement was admitted in evidence without any objection as Exhibit 7. In Exhibit 7, the appellant stated:- “xxxxxxxxxx I joined carpentry work in 1984 and that is the work I am doing right now. I am a carpenter but that does not help me fetch much money; that is why I entered drug business. I started drug business in 1989 when I married my wife Comfort. Unfortunately on 22/3/1995, police officers from Idimu in Lagos came to my house and arrested my wife when I was out for my business, when I came back, I was told by a friend of mine that police came and look for me but I was not in and they have arrested my wife. So I went to the police station and we discussed settlement with them at N30, 000.00 of which I have given them N21, 000.00 and remain a balance of N9, 000.00. I paid the sum of NI, 500 for the vehicle they hired in conveying the drugs back to my house. They said they are retaining 4 bags since I have not brought the remaining balance of N9, 000.00.

On 24/3/1995 some officers came to my house again and introduced themselves that they are from NDLEA and they reached my house and found some bags of drugs which I hid on top of ceiling and packed everything and also took me to their office.”

In his evidence before the tribunal, the appellant denied telling the NDLEA that he had anything to do with the bags of Indian Hemp and that he did not know any of the policemen who stood trial with him. He also stated that exhibit 7, his statement to NDLEA was not made voluntarily by him and that it was dictated to him by the NDLEA. The tribunal found the appellant guilty of Count one. As mentioned above, the appellant appealed to the Court of Appeal where the conviction in Count one was set aside and in its place, the appellant was convicted for the offence of possession punishable under section 10 (d) of the NDLEA Act. I shall now deal with the remaining two issues submitted to this Court for the determination of the appeal.

ISSUE NO.1

It is submitted by the learned counsel for the appellant that the justices of the lower court acted in error when they convicted and sentenced the appellant for 15 years imprisonment after setting aside his conviction and sentence by the tribunal on the only count of the charge. The Court of Appeal also acted in error after holding that the charge in Count 2 against the appellant which was for knowingly being in unlawful possession of the drugs was withdrawn by the prosecution and struck out by the tribunal. It is submitted that the lower court was in error to resurrect the charge in Count two and convict the appellant on it, when the prosecution had withdrawn and the trial tribunal had struck out the charge. It is again submitted that the Court below erroneously invoked the provision of section 179(1) of the Criminal Procedure Act to “convict the appellant of a lesser offence and thereby sentenced him to 15 years as against 10 years given by the trial tribunal.” It is further stressed that having withdrawn the charge which was struck out by the tribunal, the Court of Appeal was in error to convict the appellant on the same count that was withdrawn. Learned counsel referred to and relied on the case of Okeke v. The State [1999] 2 NWLR (Pt. 590). Ahmed v. The State [1999] 7 NWLR (Pt. 612). It is further argued that the Court of Appeal relied on speculation rather than on the legal evidence adduced by the prosecution to convict the appellant for the offence of unlawful possession of Indian Hemp. It is submitted again, that the prosecution failed to adduce evidence beyond reasonable doubt that the appellant committed the offence for which he was found guilty. Learned counsel referred to and relied on the case of State Vs. Aibangbee (1988) 3 NWLR (Pt. 84) 549.

The learned counsel for respondent on the other hand submitted that the Court of Appeal was right in finding the appellant guilty of the offence he was convicted by it even though it discharged him of the count of dealing in the drug of Indian Hemp. It is argued that the ingredients of the offence of possession under section 10(c) of the NDLEA Act were proved by evidence and the court was justified in convicting the appellant and punishing him under section 10(d). It is submitted further that the Court of Appeal properly evaluated the evidence led before the tribunal and correctly came to the conclusion that the offence was undoubtedly committed. The offence of knowingly being in possession of the drugs is subsumed in the offence of dealing with the substance.

It is further argued that the Court of Appeal properly guided itself by section 179(1) of the Criminal Procedure Act. It is submitted that there was no miscarriage of justice in convicting the appellant for possession under the overwhelming evidence. The jurisdiction of the court to consider for a lesser offence when determining the guilt of accused person has been settled in many cases. The learned counsel referred to the cases of Oladipupo v. State [1993] 6 NWLR (Pt. 298) 131, Udoh v. State [1993] 5 NWLR 295.

On the issue of proof beyond reasonable doubt as raised by the appellant in his brief, the learned counsel for the respondent submitted that the argument is misplaced. The prosecution adduced overwhelming evidence which placed the appellant in actual or constructive possession of the drugs and that the appellant had knowledge that the drugs were in his possession unlawfully. There was the evidence of P.W.1, P.W. 4 and also the confession of the appellant in Exhibit 7. The Court of Appeal in its judgment upheld the findings of fact by the tribunal that Indian hemp was found on the roof top of the appellant and that in Exhibit 7, the appellant admitted the possession of the drugs. It is further argued that an accused person can be convicted on his confessional statement alone. See Ikemson v. State [1989] 1 ACLR 80. It is further argued that the onus of proving irregularity and miscarriage of justice is entirely on the appellant and the appellant in the instant case has failed to do so. See Cyril Udeh v. The State [2001] 2 ACLR 356.

It is further argued that even if some technical flaws exist, they cannot avail the appellant as justice dispensation on the basis of technicalities is no longer fashionable. See Effiom v State [2003] 3 ACLR, 192.

Now, there is no doubt that the Court of Appeal discharged the appellant against the offence of “dealing in” with drugs a more serious offence which clearly carries a life imprisonment under section 10 (c) as amended with an offence punishable under section 10 (d) which carries a sentence of imprisonment for a term of not less than 15 years. It is the law that an appellate court can convict and impose a sentence on an appellant for lesser offence than that for which he was convicted by the trial court if from the circumstances of the case; the latter conviction should have been the proper one. See Akwule v. The Queen [1963]1 ALL NLR 193. Bande v. The State [1972] 10 SC 79. Adebayo v. The Republic [1967] NMLR 391. Where an accused person is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence regardless of the fact that he was not charged with that particular offence. See Onogwu v. The State [1995] 6 NWLR (Pt.401) 276. In the case of Ogu v The Queen [1963] NSCC 191 at 192 this court substituted a conviction of the appellant for culpable homicide punishable with death contrary to section 22I of the Penal Code law with that of screening an offender punishable under section 167 of the same Penal Code law. It is now settled law that an appellate court such as the Supreme Court or the Court of Appeal may where an appellant has been charged and convicted for an offence and the court that tried could on the information or charge have found him guilty of some other offence, and on the finding of the lower court, it appears to the appellate court that the lower court must have been satisfied of the fact which proved him guilty of that other offence, the appellate court may instead of allowing or dismissing the appeal, substitute for the verdict found by such court, a verdict of guilty of such other offence and pass the sentence in substitution for the offence passed at the trial as may be warranted in law. It is also settled law that an appellate court in determining an appeal before it possesses all the powers of the Court of trial. See section 16 of the Court of Appeal Act. The mere fact that an appellate court exercised its statutory power to substitute a conviction of one offence for the other under section 179 of the Criminal Procedure Act does not ipso facto breach the appellant’s rights to fair hearing nor does it occasion any miscarriage of justice.

Now, section 179 (1) of the Criminal Procedure Act applicable to these proceedings provides:-

“In addition to the provisions herein before specifically made, whenever a person is charged with an offence consisting of several particulars a combination of some of which constitute a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved, he may be “convicted of such lesser offence or may plead guilty thereto although he was not charged with it.”

The Court of Appeal found that there was no evidence “properly adduced to prove that the appellant was selling or “dealing in” the drugs, but beyond any dispute that the appellant was knowingly in unlawful possession of the Indian Hemp. The offence for which he was charged was more grievous, the prosecution must prove (1) he was knowingly in unlawful possession and (2) he was dealing with the substance such as selling it. The offence of being in unlawful possession is clearly a lesser offence and carries less sentence. It is of no moment when the trial tribunal mistakenly sentenced the appellant for dealing in the Indian Hemp to merely 10 years imprisonment. The Court of Appeal would have the power to pass appropriate sentence permitted by law. See Nworie v. C.O.P. [1960] 5 FSC 124. Ogidi v. C.O.P [1960] 5 FSC 251, Nwobu v. C.O.P. 11962) ALL NLR 382. An appeal court may, where the ends of justice may be properly met, reduce or increase the sentence imposed by the trial Court. See also Ekpenyong v. The State (1967) ALL NLR 285. Gano v. The State [1965] 1 ALL NLR 352, Mohammadu v. C.O.P 11969) 1 ALL NLR 465. Ekpo v. The State (1982)6 SC 22.

In my view, it is immaterial that the prosecution withdrew the charge on the 2nd count. As mentioned above the charge in the second count was clearly subsumed in the first count. There must be unlawful possession of the drugs before one could “deal with it or sell it.” In Adebayo v. The Republic supra, it was held that where there are charges against an accused person and one charge includes the other, the two charges should be treated as if they are in the alternative. The main purpose of a charge is to give the accused person notice of the case against him. See Faro v. Ige (1964) 1 ALL NLR 6.

On the issue of proof of unlawful possession, the evidence tendered by the prosecution is overwhelming. The evidence of P.W 1, PA and P.W. 5 stood unchallenged and uncontradicted by the appellant and further more the appellant categorically admitted in Exhibit 7 of being in unlawful possession of the bags of Indian Hemp. In my view considering all the circumstances of this case, there is no irregularity in the approach by the Court of Appeal occasioning any miscarriage of justice.

A trial court and an appeal court both have power under section 179 (I) of the Criminal Procedure Act to substitute a conviction for a lesser offence on a charge for an offence containing several particulars where only such particulars as made up of the lesser offence were proved. See Queen v. Nwaugogwu [1962]1 ALL NLR 294, Shoshimo v. State 1974 10 SC 91, Onasile v. Sami [1962] 1 ALL NLR 272. Wilson v. Queen [1959] 4 FSC 175.

In the instant case, the appellant clearly confessed to the unlawful possession of bags of Indian Hemp. In my view he was rightly convicted by the Court of Appeal by invoking the provisions of section 179 (I) of Criminal Procedure Act.

I accordingly find no merit in this issue and I resolve it against the appellant.Issue 2

The second issue submitted by the appellant is whether the conviction of the appellant for possession by the Court of Appeal based on exhibit 7 can be sustained. It is submitted that the Court of Appeal was in error to have found the appellant guilty of the offence of possession and to sentence him to 15 years imprisonment. It is further submitted that the withdrawal of the charge on count 2 before the tribunal completely brought the case against the appellate to an end. Learned counsel referred to the case of James v. Nigeria AirForce (2001 13 NWLR (Pt. 684) 406 at 410.

It is again stressed that the charge of possession against the appellant came to an end on the 30th day of April, 1998 and the Court of Appeal acted without jurisdiction when it convicted the appellant and sentenced him to 15 years imprisonment for being in possession of Indian hemp on the 12/7/2001. It is again argued that Exhibit 7 was predicated on Count No. two and having struck out count No. two Exhibit 7 cannot stand alone there was therefore no premise or pedestal to predicate or base Exhibit 7 on. It is further argued that Exhibit 7 is not conclusive on the point of possession by the appellant of the Indian Hemp. Learned counsel relied on the case of Nasiru v. the State [1999] 2 NWLR. (Pt.569) 87 at 97.

The learned counsel for the respondent on the other hand argued that the Court of Appeal was right when it convicted and sentenced the appellant for the offence of unlawful possession of the bags of Indian Hemp even though count 2 of the charge was withdrawn by the prosecution and struck out by the tribunal. It is submitted that the conviction of the appellant by the Court of Appeal was premised in the power granted the court by section 179(2) of Criminal Procedure Act.

It is argued that the charge withdrawn against the appellant was one contrary to section 10 H, while the Court of Appeal found the appellant guilty under section 10 D. It is further stressed that the Court of Appeal after finding that the appellant was not guilty of the offence of “selling” or “dealing” with Indian hemp found him guilty of a lesser offence by invoking its powers pursuant to section 179 (1) and (2) of the Criminal Procedure Act. It is again argued that the conviction of the appellant to the lesser offence by the Court of Appeal was not done in pursuance of Count Two but on the bona fide exercise of the powers granted under section 179 of the Criminal Procedure Act. It is further argued that a criminal court can convict an accused person on the voluntary confession alone. Learned counsel referred to the cases of Ihuebeka v. The State [2000] NSCQR Vol 2 part 1 1286 at 189; Akinoji v. The State [2000] NSCQR Vol. 2 pt 1 90 at 93.

It is submitted that Exhibit 7 the voluntary statement of the appellant was tendered at the trial without any objection, if the appellant wanted to object to the admissibility of the statement he should have objected to it when it was tendered in evidence. It was too late in the day for the appellant to object to its admissibility. It is an after thought to claim now that it was “dictated to me.”

See NWANGBOMO Vs. STATE (2000) ACLR 9 at 14. I have discussed all the points raised by both the appellant and the respondent in Issue two in some detail while considering the first issue. Suffice it for me to say that the conviction for the appellant was not based on the Count Two which was withdrawn. Count two which was withdrawn and struck out was punishable under section 10 H of the NDLEA Act as amended, while the appellant was convicted under section 10 (d) of the Act by the Court of Appeal. This clearly shows that there is no connection between the withdrawn charge and the offence for which the appellant was convicted. In any event when the Court of Appeal was seized with the matter by the provisions of section 179 (1) and (2) of the Criminal Procedure Act, the Court can substitute a conviction for a lesser whenever it is appropriate to do so. See Queen v. Nwaugogwu (supra), Onasile v. Sami (supra).

The other point is whether a court can convict on the basis of confession alone. I have alluded above that the evidence of P.W.1, P.W. 4 and P.W. 5 go to show that the voluntary statement of the appellant in Exhibit 7 was true. The Court of Appeal was clearly justified to act on it. In the Uluebeka case supra this court stated:-

“In the case of Silas Ikpo v. The State (1995) 33 LRCN 587 at 587, a free and voluntary confession of guilt whether judicial, or extra judicial if it is direct and positive and properly established is sufficient proof of guilt and enough to sustain a conviction so long as the court is satisfied with the truth of such confession.”

The law is fairly settled that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction and generally without any need of other corroborative evidence so long as the court is satisfied with its truth. A cursory glance at exhibit 7 shows that it is a direct, positive, voluntary and an unambiguous admission by the appellant that the bags of Indian Hemp were found in his possession. The evidence of the other witnesses clearly established the truth of the statement of the appellant in Exhibit 7. I accordingly also resolve the second issue against the appellant.

In the result, this appeal fails and I dismiss it. I affirm the decision of the Court of Appeal.

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SC.334/2001