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Usaini Mohammed V. Commissioner Of Police (2017)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

This is an appeal against the decision of the Court of Appeal, Jos Division delivered on 30th June, 2014, wherein the Court below dismissed the Appellant’s appeal against the judgment of the High Court which had earlier confirmed the conviction of the Appellant by the Upper Area Court sitting in Mangu, Plateau State on the offence of dangerous and reckless driving under Section 5 of the Federal Highways Act, Cap 135 of the Laws of Federation, 1990.

The Court below found that the procedure for summary trial as provided under Sections 156 and 157(1) of the Criminal Procedure Code was duly complied with, and proceeded to affirm the conviction of the Appellant.

SUMMARY OF FACTS

The Appellant on the 4th February, 2012, was driving a stretched vehicle (a truck), along Mangu Road when he was involved in a fatal accident in which the passenger of a Motor cyclist road user was killed while the rider himself sustained injuries while driving his Motor Cycle as a result of the most unfortunate mishap. The Appellant was then tried before the Upper Area Court sitting in Mangu in

Plateau State for the offence of causing death through dangerous driving under Section 5 of the Federal Highways Act.

The First Information Report (F.I.R.) on which the Appellant was tried and convicted by the Upper Area Court, states thus:

“CAUSING DEATH BY DANGEROUS DRIVING on the 4/02/2002, at about 16:30 hours along Mangu-Jos road, at opposite INEC office, Mangu being a Federal Highway.”

“You Useini Mohammed “M’ of Anglo Jos, South LGA drove your vehicle Mercedes Benz truck with registration number AA 873 DDA in a dangerous and reckless manner and knocked down one cyclist by name Ayuba Dusah “M’ of Tul village Mangu L.G.A., on his Jincheng Motorcycle. As a result of the accident the occupant of the motorcycle by name Kilyobas Dusah ‘M’ of the same address died at the spot. While the rider sustained minor injury on his body (and) you thereby committed traffic offence contrary to Section 5 of the Federal Highway Act suggested (sic).”

Inelegance of charge was not enough to clog the hands of justice. The charges were read and the Appellant, then an Accused person, confirmed the allegation, by declaring thus:

“The allegation is true

because I drove the car dangerously and so caused the death of the motorcyclist that I knocked down. I am sorry. I was actually reckless.”

The Upper Area Court in accepting the guilty plea and the request of the Prosecuting Police Officer, held thus:

“The accused person having accepted liability or having admitted committing the offence of driving his vehicle Mercedes Benz truck with registration number AA 873 DDA in a dangerous manner under Section 5 of the Federal Highways Act, Accordingly, this Court hereby exercises the discretionary powers conferred on it by Section 157(1) of the CPC, Section 8(2) of the Federal Highway Act and the Criminal Procedure (Punishment on Summary Conviction) Order 1987 to convict the accused person and he is hereby convicted and shall be sentenced.”

Following the conviction of the accused person, now Appellant by the trial Court on the 14th May, 2012, the plea of allocutus was then taken from the Convict/Appellant. On 14th May, 2012, judgment was delivered thus:

“Plea of leniency is taken into account but the fact still remains that the outcome would have been milder if the accused was not reckless on his own

part. The convict is hereby sentenced to 6 months jail term without an option of fine. Appeal lies to the High Court of Justice within 30 days of this sentence.”

Being dissatisfied with the judgment, the Appellant filed an appeal before the Plateau State High Court on the ground, among others that the Upper Area Court erred in law when it convicted the accused person and sentenced him to a term of six (6) months imprisonment on the basis that he admitted the offence for which he was charged and pleaded guilty, and despite offering adequate explanation on the circumstances of the accident.

At the High Court, the Court, Per Hon. Justice D.D. Longji, in a judgment delivered on 18th March, 2013, dismissed the appeal on the grounds that the summary trial conducted by the trial Judge was in accordance with the provisions of Sections 156 and 157(1) of the Criminal Procedure Code (C.P.C.), and thereby affirmed the conviction of the Appellant by the Upper Area Court.

Still being dissatisfied, the Appellant decided to try his luck at the Court of Appeal. On 30th June 2014, the Court of Appeal also unanimously dismissed the appeal. Despite concurrent

conviction by the Upper Area Court, High Court and Court of Appeal, the Appellant decided to explore his right of further appeal to this Court, being the last in the judicial hierarchy of this country.

ISSUE FOR DETERMINATION

The Appellant formulated two issues for determination at pages 3-4 of the Appellants Brief dated 9th October, 2014: –

“ISSUE ONE (1)

Whether the mandatory provision of Section 156 of the Criminal Procedure Code (CPC) was complied with by the Upper Area Court, Mangu before embarking on summary trial. This issue is distilled from Grounds 2 and 3 of the Appeal.”

ISSUE TWO (2)

“Whether the Court of Appeal was right when it held that the Upper Area Court complied with Sections 156 and 157(1) of the CPC to warrant the confirmation of the Appellant’s conviction. This issue is distilled from Grounds 1 and 4 of the Appeal.”

The Respondent commendably adopted the two issues formulated by the Appellant in its Respondent’s Brief of 5th May, 2016.

However, for the purpose of this appeal, I have formulated a sole issue for determination:

“Whether the mandatory provisions of Section 156 and 157 of the

Criminal Procedure Code (CPC) were complied with in convicting the Appellant who had pleaded guilty to the offence for which he was charged.”

CONSIDERATION AND RESOLUTION OF THE ISSUE:

The contention of the learned Counsel to the Appellant is essentially hinged on the fact that the provisions of Sections 156 and 157(1) were not complied with to the extent that the operative word used in both provisions is “shall”, and same was not adhered to by the trial Upper Area Court before convicting the Appellant.

The Learned Counsel to the Appellant cited the Black’s Law Dictionary, 6th Edition, at page 1375 which defines the word shall as:

“As used in statistics, contract or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command.”

The Learned Counsel for the Appellant cited the decisions of this Court in TABIK INVESTMENT LIMITED VS. GTB PLC (2011) 17 NWLR, Pt. 1276, page 240 at 259, paragraphs F-G and the case of ABUBAKAR VS. NASAMU (No. 1) (2012) 17 NWLR part 1330, PAGE 407 at 458 in arguing, vehemently, that the word “Shall”, in the

con of this matter meant a compulsory and mandatory word that ought to have been complied with by the trial Upper Area Court. He contended that since the FIR read to the Appellant did not contain the particulars of the offence of “dangerous and reckless driving”, Section 156 of the Criminal Procedure Code (C.P.C.), was not complied with. He submitted that non-compliance in this circumstance was fatal.

The learned counsel for the Appellant argued that the trial Upper Area Court misapplied the provisions of Section 157(1) of the Criminal Procedure Code (C.P.C.) and the case of HASSAN ALABI VS. THE STATE (2007) NWLR pt. 376 at 376 to the appeal at hand. Counsel contended that the lower Court failed to consider the fact that there were issues in the appeal which did not arise in HASSAN ALABI’S case and that the Lower court particularly failed to consider the fact that the trial upper Area Court did not follow due procedure while dismissing the Appellant’s appeal.

In closing, the learned counsel urged this Court to hold that the provisions of Section 156 and 157 of the Criminal Procedure Code (C.P.C.), were not followed by the Upper Area Court and that

the Lower Court ought not to have upheld the conviction of the Appellant. Counsel then urged this Court to set aside the judgment of the lower Court, quash the conviction of the Appellant and allow the appeal.

In his response, the learned Counsel for the Respondent submitted that the wordings of Sections 156 and 157 of the Criminal Procedure Code are precise and unambiguous. He cited the case of UGOCHUKWU DURU VS. FRN (2013) 2 SCNJ, page 377 at 392, paragraphs 20-13. He submitted further that summary conviction connotes trial of an accused person based on his or her admission. Counsel quoted the provisions of Section 20 of the Evidence Act.

The Respondent contended further that not only did the Appellant admit committing the offence but he affirmed guilt and further pleaded for leniency. In amplifying this position, the learned Counsel to the Respondent cited the case of JIMOH VS. THE STATE (2014) 3 SCNJ page 1 at 7, paragraph 4 on the issue of confession as well as the case of GARUBA VS OMOKHODION (2011) 6 SCNJ page 334 at 367, paragraph 25-30, which the learned Counsel relied upon in justifying the fact that parties are bound by the

record of proceedings, which, in the instant case, according to him, indicate that the Appellant had unequivocally admitted the offence for which he was convicted and pleaded for leniency.

The Respondent’s Counsel submitted that the trial Court complied fully with the provisions of Sections 156 and 157 of the Criminal Procedure Code (C.P.C.) and that the Appellant was rightly convicted of the offence of dangerous driving pursuant to Section 5 of the Federal Highways Act. This is because, according to the learned Counsel to the Respondent, the Appellant did not complain of any error in the First Information Report (F.I.R.) filed against him on the basis of which he was convicted on his own admission. Counsel cited the provisions of Section 222 of the Criminal Procedure Code (C.P.C.) which states thus:

“No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.”

Counsel contended further that, the

Court can only set aside the conviction if it has occasioned a miscarriage of justice by the provisions of Sections 288 and 382 of the Criminal Procedure Code CPC, which state respectively thus:

SECTION 288 OF THE CPC

“A Court exercising appellate jurisdiction shall not in exercise of such jurisdiction interfere with the finding or sentence or other order of the lower Court on the ground that only that evidence has been wrongly admitted or that there has been a technical irregularity in procedure, unless it is satisfied that a failure of justice has been occasioned by such admission or irregularity.”

SECTION 382 OF THE CPC:

“Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or reviewed on account of any error, omission or irregularity in the appeal or reviewed on account of any error, omission or irregularity in the complaint, summons, warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Criminal Procedure Code unless the appeal Court or

reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.”

In his concluding arguments, the learned Counsel to the Respondent further argued that the Appellant’s allocutus for leniency further reinforces his plea of guilt and has failed to show that concurrent findings by Upper Area Court, High Court and Court of Appeal down the stairs of our judicial structure are or was perverse. On concurrent findings, the learned Counsel cited the case of MAJOR NICKSON STANLEY DONG & ORS VS A.G ADAMAWA STATE & ORS (2014) 2 SCNJ, page 557 at 580.

On the whole, the learned Counsel to the Respondent urged this Court to affirm the decision of the Court below by holding that the provisions of Sections 156 and 157 of the Criminal Procedure Code (C.P.C.) were duly complied with in the Appellant’s conviction.

I now turn to answer the sole issue in this appeal, that is:

“Whether the mandatory provisions of Section 156 and 157(1) of the Criminal Procedure Code (CPC) were complied with in convicting the Appellant who had pleaded guilty to the offence for which he was charged.

In this regard, I will proceed to set-out the exact provisions

of Sections 156 and 157 are the issues in this appeal. Section 156 of the Criminal Procedure Code (C.P.C.) provides thus:

“When an accused person is brought before the Court, the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause to show why he should not be convicted.”

Similarly, Section 157(1) is to the effect that:

“If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him and if he shows no sufficient cause why he should not be convicted, the Court may convict him accordingly, and in that case it shall not be necessary to frame a formal charges.”

In the instant case, as shown on page 27 of the Record of Proceedings, the Appellant in clear and unambiguous language affirmed and acknowledged his guilt. There is no better way of crystallising the provisions of Sections 156 and 157 of the Criminal Procedure Code (C.P.C.). The Appellant clearly understood the offence which he wholly admitted in specific and definite words. His

plea for leniency (allocutus) was also neither ambivalent nor unguided as contained in page 97 of the record of appeal.

The effect of the above is that, as rightly held by the Court below, recourse was had to the forthrightness of the Appellant in admitting his guilt which earned him gross and remarkable diminution from what would have been a 7 year sentence to mere six (6) months imprisonment. To the extent that the provisions of Sections 156 and 157(1) of the Criminal Procedure Code (C.P.C.) are clear and unambiguous, they must be so declared and affirmed by this Court. This stems from the fact that the duty of Court, is to interpret the statute in accordance with the intention of the law makers. In UGWU VS ARARUME (2007) 12 NWLR (pt. 1048) 367 at 498 this Court stated thus: –

“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature.”

Courts generally have deliberately

shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the course of substantial justice. See MAKERI SMELTING CO. LTD. VS. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 447 at 476-477.

“The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”

See also AJAKAIYE VS. IDEHIA (1994) 8 NWLR (Pt. 364) 504, ARTRA IND LTD. VS NBC 1 (1997) 1 NWLR (PT. 483) 574, DAKAT VS. DASHE (1997) 12 NWLR (pt. 531) 46, BENSON VS. NIGERIA AGIP CO. LTD (1982) 5 S.C 1.

The fact of this appeal is such that leaves us with no alternatives than to affirm that which the Upper Area Court, High Court of Plateau State, and the Court of Appeal sitting in Jos have severally and consistently upheld. The law is that the Supreme Court will not interfere with

concurrent findings of facts made by the trial Court and the Court of Appeal unless such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong application of evidence; or as a result of a wrong application of any principle of substantive law or procedure.” SEE ARABAMBI vs. ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (PT.959) 1 per Onnoghen, J.S.C. (pt. 46, C-E). See Also OCHIBA VS. STATE (2011) 12 SC (Pt. IV) P.79″ Per Rhodes-Vivour, J.S.C. (pp. 51-52, paras. F-B). See also CAMEROON AIRLINES VS. OTUTUIZU 2011 12 SC (pt. III) p.200; OLOWU vs. NIG. NAVY (2011) 12 SC (Pt. II) P. 1; AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt. II) P.98.

The above finding also becomes inevitable given the provisions of Section 222 of the CPC to the effect that:

Also compelling are the provisions of 288 and 382 of the Criminal Procedure Code (C.P.C.), which state respectively (repeated for emphasis):

SECTION 288 OF THE CPC

SECTION 382 OF THE CPC:

that a failure of justice has in fact been occasioned by such error, omission or irregularity.”

The admission and confession made by the Appellant simply just made the job of the trial Court easier. He should be commended for this, and I honestly think he had been duly compensated by gross reduction of what would have amounted to 7 years imprisonment to 6 months imprisonment. This is because, by virtue of the provisions of Section 28 of the Evidence Act, confessional statement is tenable and admissible. The section describes a confessional statement thus:

“A confession is an admission made at any time by a person, charged with a crime tending to show or suggest the inference that he committed the crime.”

Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement of the Appellant that was free and voluntary led to the crystallisation of the procedure stipulated under Section 156 and 157 of the CPC, which

were duly applied as held above. A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice. See for example PATRICK IKEMSON & 2 ORS VS. THE STATE (1989) 3 NWLR (Pt. 110) 455 at 476 para D; JOSEPH IDOWU VS. THE STATE (2000) 7 SC 50 at 62; (2000) 12 NWLR (Pt. 680), at 48, NKWUDA EDAMINE VS. THE STATE (1996) 3 NWLR (pt. 438) 530 at 537 para D-E; SAMUEL THEOPHILUS VS. THE STATE (1996) 1 NWLR (Pt. 423) page 139 at 155 para A-B; AND AWOPEJU VS. THE STATE (2002) 3 MJSC 141 AT 151.

This Court, per the Learned Onnoghen JSC (as he then was; now CJN) in PETER ILIYA AZABADA VS. THE STATE (2014) ALL FWLR (PART 751) 1620, PARA B has made it abundantly clear in the following words:

“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved.”

Confession in criminal procedure is the strongest evidence of guilt on the art of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof. Therefore where an accused person confesses to a crime in the absence of an eye witness to the killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. In otherwords, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved, is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the confession.”

In view of the foregoing, it is our considered view that the judgment of the trial Court cannot be faulted at all and the lower Court was right in affirming and endorsing it. The Appellant has failed to convince us that this is a situation in which this Court should interfere.” See also MINI LODGE LTD VS NGEI (2009) 18 NWLR (Pt. 1173) 254 Per Musdapher, J.S.C. (as he then was) (P.33, Paras. B-D).

It is in view of the foregoing that I hold that this appeal lacks merit and is accordingly dismissed. The conviction and sentences of the Appellant by the Court below are hereby reconfirmed.

SC.625/2014

Usaini Mohammed V. Commissioner Of Police (2017) LLJR-SC

Usaini Mohammed V. Commissioner Of Police (2017)

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