Taiwo V. Frn (2022)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Lagos Division or lower Court or Court below, Coram: Nimpar, Ogakwu and Obaseki-Adejumo JJCA delivered on the 13th April, 2018 in which the appellant’s conviction and sentence by the trial Court per Ofili-Ajumogobia J. was affirmed by the Court below.
The appellant was charged on a one-count charge of dealing in 2.0 kilograms of Cannabis Sativa (otherwise know as marijuana). The appellant pleaded guilty to the charge. The prosecution tendered a confessional statement from Pidgin English language by one Oligbo Okey, an officer/agent of the NDLEA.
On this basis, the trial Court in its judgment delivered on 2nd March 2016 convicted the appellant of the Charge and sentenced him to 25 years imprisonment with hard labour.
The prosecution called no witness but its Counsel tendered some documents from the Bar which were admitted in evidence as EXHIBITS PD1-PD9. The alleged confessional statement written in the Pidgin English was admitted as EXHIBIT PD3A while the English translation of same was admitted as EXHIBIT PD3B.
Prosecution’s counsel further urged the Court to convict the appellant ” …in accordance with Section 356 (2) of the Administration of Criminal Justice Act 2015″. The trial Court then adjourned to 2nd March, 2016 for judgment and same was delivered on that day.
SUMMARY OF EVIDENCE
The appellant was alleged to have dealt in 2.0 kilogrammes of Cannabis Sative (Marijuana) The evidence upon which other exhibits rested was the alleged confessional statement of the appellant. The story therein painted a graphic picture of how the appellant sold Cannabis Sativa at Tipper Garage Ojodu Berger.
The alleged confession which was transcribed from ‘Pidgin English’ to English language showed that the appellant is an illiterate. The confession was written by one Oligbo Okey who works for the NDLEA, in the absence of the appellant’s counsel. Exhibits PDI, PD2, PD4, PD5, PD6, PD7, PD8 and PD9 which emanated from NDLEA and tried to establish the Charge against the appellant are all evidentially premised on his alleged confession.
The alleged confession further represented that he, appellant was taken to the NDLEA office where the substance allegedly recovered was found to be Cannabis Sativa. Armed with the purported confessional statement it obtained from the appellant coupled with the guilty plea of the appellant, the Prosecution urged the Court to convict him in line with Section 356 (2) of the Administration of Criminal Justice Act 2015.
In his judgment dated 2nd March 2016, the Learned Trial Judge convicted the appellant of dealing in Cannabis Sativa and sentenced him to 25 years imprisonment with hard labour- Aggrieved by the conviction and sentence, the appellant appealed to the Court below on five (5) grounds of appeal and on the 13th April, 2018, the Court below dismissed the appeal and affirmed the conviction and sentencing of the appellant to 25 years imprisonment.
Again, dissatisfied the appellant has come before the Apex Court on a five grounds of appeal.
On the 3/2/2022 date of hearing, respondent and counsel were absent though served on 31/1/2022 and the appeal was heard on appellant’s brief alone by order made on 14/1/2022.
Learned Senior Advocate, C.O.P. Emeka adopted the brief of argument of the appellant filed on 27/12/2018 in which he distilled three issues for determination, viz:
(1) Whether the Court below was right to uphold the appellant’s conviction on the strength of Exhibits PD3A and PD3B having misconceived the issue of its legal validity under Section 17(2) of the Administration of Criminal Justice Act 2015 with the issue of admissibility under the Evidence
(2) Whether the Court below was right to have affirmed the appellant’s conviction based on his plea of guilty when the mandatory provisions of the Administration of Criminal Justice Act, 2015 were not complied with?
(3) Whether the prosecution discharged the burden of proof against the Appellant beyond reasonable doubt notwithstanding his purported plea of guilty?
Learned counsel for the appellant submitted that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the alleged confessional statements. That those exhibits having been admitted much weight ought not to be laid on them in the light of Section 17 (1) (2) of the Administration of Criminal Justice Act (ACJA). He cited Madubigwe Awelle v The People of Lagos State (2016) LPELR-41395 CA; Mkpa v Mkpa (2010) 14 NWLR (pt.1214) 612 at 647 etc.
It was further contended for the appellant that the Court below wrongly affirmed the appellant’s conviction based on his purported plea of guilty when the learned trial Judge failed to comply with the mandatory provisions of the ACJA
Learned counsel for the appellant submitted that there was nothing on record to show that the charge was read and explained to the appellant in Pidgin English that he understood and so the conviction should fail. He cited State v Gwonto (1983) 1 SCNLR 142.
That the non-compliance with the statutory provisions on arraignment amounted to denying the appellant of his rights and that led to a miscarriage of justice. He cited Udofia v State (1988) 3 NWLR (pt.84) 533.
For the appellant, it was submitted that the prosecution failed to prove the essential elements of the charge beyond reasonable doubt. He cited Udosen v Sate (2007) 4 NWLR (pt.1023) 125 at 161 etc.
The appellant was represented by counsel at the stage of arraignment and after the reading and explanation of the charge to the accused/appellant by the Court. The appellant pleaded guilty to the one count charge and the prosecution tendered the substance and other relevant materials as exhibits among which was the confessional statement made by the appellant.
The stance taken by the appellant is that Section 17 (2) of the Administration of Criminal Justice Act, 2015 was not complied with and so the conviction a nullity. To fully appreciate the statutory provision I shall quote the stipulation thus:-
Section 17(2) of the Administration of Criminal Justice Act 2015 states thus:
“Such statement may be taken in the presence of a legal practitioner of his choice; or where he has no legal practitioner of his choice, in the presence of an officer of a Civil Society Organisation or justice of the peace or any other person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a Legal Practitioner.”
The appellant contended that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the confessional statements.
That Court had stated thus:
“This furthermore makes the word ‘way’ a permissive word and not a mandatory word as used in the section. Admissibility of a confessional statement is not dependent on the presence of counsel or relation at the time of making the confession, Section 29 (1) of the Evidence Act must be satisfied. The said Section 17 (2) of the ACJCA cannot override the clear provision of the Evidence Act”.
In a statute, when ‘may’ is used it is generally accepted that it is permissive but exceptions exist when ‘may’ could be mandatory. I shall refer to the case of EDEWOR V UWEGBA & ORS (1987) LPELR-1009 (SC) where the apex Court gave this explanation, it said:
“Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression. In Messy v Council of the Municipality of Yass (1922) 22 S.R.N.S.W 494 per Cullen, CJ at pp 497, 498 it held that the use of the word ‘may’ prima facie conveys that the authority which has the power to do such an act has an option either to or not to do it. See also Cotton, L.I. in Re Daker, Michell v Baker (1800) 44 CH.D 282 But it has been conceded that the word may acquires mandatory meaning from the context in which it is used. See Johnson’s Tyre Foundary Pty Ltd v Shire of Maffra (1949) A.L.R, 8& The word may also acquires a mandatory meaning from the circumstances in which it is used, Most of the cases in which the word ‘may’ has a mandatory meaning relate to cases in which they are used in penal statutes conferring powers to Courts. In Baker (supra) Cotton L.I. said think great misconception is caused by saying that in some cases “may” means must, It can never mean (must) so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases where a Judge has a power given him by ‘may’, it becomes his duty to exercise it”. In Over v Felton (1966) A.LR. 1088 Jenkyn J, said that “it lies upon those who contend that an obligation exists to exercise that power to show in the circumstances of the case something which according to the above principles, creates that obligation. ” Per NNAMANI, JSC.
The Court below stated the several options in implementation of Section 17 (2) ACJA and stated that the word ‘may’ used therein cannot by any stretch of the imagination be interpreted to mean mandatoriness, ‘May’ can be interpreted as compulsory in penal provisions and not otherwise, particularly in criminal procedure legislations.
Indeed, the said Section 17(2) of the ACJA is not a penalty section and in any event the issue of evidence is under a substantive law of Evidence and the Evidence Act provides for how to test the voluntariness of a confessional statement. The question may now arise as to whether the Administration of Criminal Justice Act being a Procedural Law can take precedence over the Evidence Act. It is a procedural breach which in most cases would not vitiate the trial. See Emedo v The State (2002) 15 NWLR (pt.789) 196 wherein the Supreme Court held that an irregularity is not a factor that would justify the setting aside of a verdict or decision unless a miscarriage of justice is established as propelling that decision of the Court.
The question of whether an extra statement is confessional or not depends on the facts surrounding a given case since the test of voluntariness of a confession must be carried out before its admissibility. That is what informs the necessity of a trial within trial once the voluntariness of the statement is challenged by the accused that makes the word ‘may’ in Section 17(2) of the ACJA permission and not a mandatory word.
With respect to the posture of the learned counsel for the appellant that the appellant did not understand the language used in the Court. This point seems to be of no moment since in the realm of criminal justice, it is a cardinal principle of our criminal jurisprudence that the accused or his counsel is duty bound to bring to the notice of the Court the fact that he does not understand the language in which the trial is being conducted, failure to do so will bring about the presumption that he has no cause for complaint. To buttress the point, is that the fact that the accused does not understand the language in which the trial is being conducted is within the knowledge of the accused and it is for him or his counsel to take the initiative to cry out and bring to the notice of the Court at the earliest opportunity or so soon as the situation has arisen. If he lets go of that claim of his right to complain at the appropriate time, he loses the right to complain thereafter. See Francis Durwode v The State (2000) LPELR-972; Ibrahim v The State (2013) LPELR-21883 (SC); Madu v The State (1997) 1 NWLR (pt.482) 386.
The point has to be brought out that the appellant was represented by counsel who did not raise the issue of the appellant not understanding the English language which is the language of the Court. Again to be said is that appellant gave his answers on arraignment in English language and so the current grouse of the appellant’s counsel is strange in the conflicting instance of an accused/appellant answering questions in English language and now turning around to claim a lack of understanding of the Court proceedings.
Another area needing be brought into the fray is the fact that the confessional statement was tendered and admitted without objection. The follow-up result of all these presentations is that it is too late in the day to challenge the document tendered without objection at the trial but now a matter to be brought in as a challenging factor on appeal. I refer to the case of Nwachukwu v The State (2002) 12 NWLR 508 at 542.
The circumstances which prevailed at the trial Court belie the posture of the appellant as accused person pleaded guilty to the charge on arraignment, the burden on the prosecution to prove the offence beyond reasonable doubt is lifted. Therefore, the practice of tendering the items recovered during investigation upon that plea of guilt is in fulfilment of the abundance of caution to support the plea of guilty and adds nothing to the requirement upon arraignment and plea of guilty. When there was no objection on any part of the proceedings at that point it is too late to do so later. See Adeleke v State (2013) LPELR-20971 SC.
It is now trite law that when an accused person pleads guilty he can be convicted solely on the plea of guilty as long as the offence is not punishable with death. See Nwachukwu v FRN (2007) 6 NWLR (pt.1029) 1; Nkie v FRN (2014) LPELR-22877.
In reiteration, there is no duty on the prosecution to prove beyond reasonable doubt when the accused person pleads guilty. Therefore, a plea of guilty is valid if it made in an unambiguous and unequivocal way and the same is received by the trial Court not disturbing itself under the misapprehension of what the law is. See Emma Amanchukwu v FRN (2009) 2 SCM, (2009) 8 NWLR (pt.144) 475; Adeyemi v The state (2013) 14 NWLR (pt.1373) 129.
The difference in procedure comes in when capital offences are at play whereat an accused person shall not be convicted on a guilty plea. In such a case a “not guilty” plea is stipulated by law to be entered for the accused person.
In the instance, where the accused is not represented by counsel, the Court is expected to inquire more and be assured that the accused knows what he is doing. If he is represented by counsel, that indulgence is not granted. I rely on Omokuwajo v FRN (2013) LPELR-20184 (SC).
In further clarification, I shall cite and quote some guidelines prescribed by the Appellate and Supreme Courts thus:-
See Ibrahim v FRN (2016) LPELR-40059 (CA) as follows:-
“The law therefore provides for conviction upon a guilty plea without any further formality. A plea of guilty can earn a conviction when certain conditions are evident as held in the case of SUMANYA ISSAH TORRI V THE NATIONAL PARK SERVICE OF NIGERIA (2008) LPELR-8475 (CA) where the Court held:
“The requirement of the law before there could be a conviction on a plea of guilty are that: i. The Court must be satisfied that the accused understands the charge against him; ii. The Court must be seized of the facts alleged by the prosecution as constituting the offence charged; iii. The Court must ask the accused if he admits all the facts alleged by the prosecution; iv. The Court must be satisfied that the accused intends to admit the commission of the offence charged; v. The facts stated by the prosecution and admitted by the accused must be able to sustain the charge against the accused.
The apex Court on the consequences of a guilty plea held thus:
“It is established law that after a plea of guilty by the accused before the Court exercising jurisdiction in respect of criminal offences, the Court must formally proceed to conviction without calling on the accuser to prove the commission of the offence by establishing the burden of proof by law.” see DONGTOE V CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 4 S.C. (Pt.II) 43. See also NKIE V. FRN (2014) LPELR-22877 (SC).
Generally, a plea of guilty that is unequivocal and a conscious act of the accused who has understood the charge explained can qualify for conviction without more.
Clearly, the Court of trial convicted the appellant properly upon the guilty plea and the other factors mentioned were surplusage and cannot be used as foundation to set aside the judgment. With the trial Judge being satisfied that the plea of guilty was done consciously, the Judge being satisfied, was right to proceed to conviction. The matter of his satisfaction, not being so recorded would not detract from the fact of the appropriateness of the procedure and that is not open to challenge the issue of satisfaction. Therefore, the burden of proof having been obviated by the plea of guilty as the Court below found and stated, there was no burden on the prosecution to prove the allegation. The case of Ochiba v State (2011) 17 NWLR (pta1277) 663 at 694 does not apply to the case in hand, the scenario existing thereby distinct from the one currently under discourse.
In conclusion and the foregoing, this appeal definitely lacks merit and I do not hesitate in dismissing it. I affirm the decision of the Court of Appeal which in turn affirmed the judgment, conviction and sentence of the trial Court.