Samuel Ayo Omoju V. The Federal Republic of Nigeria (2007)

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MARY U. PETER-ODILI, J.C.A.

This is an Appeal against the judgment of the Federal High Court, Abuja Judicial Division, presided over by His Lordship, Hon. Justice B.F.M. Nyako. The Judgment was with respect to the conviction the Appellant on his own plea of guilt with respect to charge No, FHC/ABJ/CR/36/2003 wherein the Appellant was charged importing 1.1 kilogrammas of Heroin drug, without lawful authority punishable under Section 10(b) of the National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation 1990.

The Appellant was arraigned before the court on a one court charge and he pleaded not guilty initially before changing his plea to guilty after. He was accordingly convicted under Section 10(b) of the Nigerian Drug Law Enforcement Act and not the National Drug Law Enforcement Agency Act, Cap 253 Laws of the Federation of Nigeria.

FACTS

On the 22nd May 2003 the Appellant was arraigned on a one court charge as follows:-

“That you Samuel Ayo Omoju, Pastor, male, adult on or about the 9th day of March 2003 at Nnamdi Azikiwe International Airport, Abuja exported 1.1. Kilogramme of Heroin without lawful authority and thereby committed an offence contrary to and punishable under Section 10(b) of the National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation of Nigeria 1990”.

The Appellant pleaded not guilty to this charge and hearing was adjourned in the case after he was granted bail based on the application of his counsel Mr. Nganjiwa.

On 30th October 2003, the word cocaine was substituted for Heroin and based on the application of the prosecution the charge was read over to the Appellant who pleaded “not guilty” to the charge as amended.

There were several adjournments of the case on record but it is significant to note that on 29th of January 2004, the prosecution served the accused person through his counsel with the proof of evidence in this case and the matter was adjourned till 9th March 2004 for hearing.

On 29th July 2004, seven months after the proof of evidence was served on the appellant herein, Mr. Nganjiwa his counsel informed the court when the case was called for hearing that “my client intends changing his plea”.

At this stage, the prosecution applied that the charge be read to the accused again for a fresh plea. The charge was then read in English language to the Appellant as accused in the lower court and he pleaded guilty to the charge. The prosecution thereafter presented the facts of the case and Mr. Nganjiwa informed the court that he has no objection to the facts and the exhibits tendered. It was after all these that the trial court convicted the Appellant as charged and sentenced him to 2 years imprisonment after allocutus was made on his behalf. It is against these proceedings that the appellant has appealed complaining that the Appellant ought not to be convicted as the prosecution did not prove its case beyond reasonable doubt and that the Appellant was convicted on a non – existing law since the trial judge purportedly convicted the Appellant under Section 10(b) of Nigerian Drug Law Enforcement Act instead of Section 10(b) of National Drug Law Enforcement Agency Act under which he was charged.

The Appellant filed a Brief on 26/1/06 and raised one sale Issue for determination which is:-

Whether the learned trial Judge ought to have convicted the Appellant on his own plea of guilt.

The Respondent in their Brief of Argument filed on 18/9/06 raised two issues which are as follows:-