In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
Before Their Lordships
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
MONDAY EMMANUEL –Appellant
THE FEDERAL REPUBLIC OF NIGERIA –Respondent
MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering The Leading Judgment): This is an Appeal against the Judgment of Honourable Justice A. O. Faji of the Federal High Court Holden at Ilorin delivered on the 16th day of June, 2015.
The Appellant was arrested on the 25th day of April, 2015 alongside at Aboto Village in the Asa Local Government Area of Kwara State by officers of the National Drug Law Enforcement Agency (NDLEA).
The Appellant was thereafter arraigned at the Federal High Court, Ilorin on the 12th day of May, 2015 on a lone Count Charge of dealing in 34 Kilograms of Cannabis Sativa dated the 27th of April, 2015 and filed on the 28th day of April, 2015.
On that date the charge was read and explained to the Appellant in English Language and he appeared perfectly to understand same. He therefore pleaded guilty to the charge.
The charge preferred against the Appellant read as follows:
THAT YOU MONDAY EMMANUEL, Male, Adult, 30 on or about the 25th day of April, 2015 Aboto Village in Asa Local Government Area of Kwara State, within the jurisdiction of this Honourable Court, without lawful authority dealt in 34 Kilogrammes of Cannabis sativa (otherwise known as Indian hemp) a drug similar to cocaine, Heroin, LSD etc and thereby committed an offence contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria 2004.
On the 16TH day of June 2015, the Respondent presented the facts against the Appellant and the Court having satisfied with the facts so presented convicted and sentenced the Appellant to two 2 years imprisonment starting from the 25th of April 2015.
Dissatisfied with the Judgment, the Appellant filed a Notice of Appeal containing two Grounds of Appeal on 27th of January, 2017.
Appellant’s Brief of Argument is dated 01/08/2017 and filed on 02/08/2017. It is settled by Ahmed Akanbi, Esq.
The Respondent’s Brief of Argument is Dated 31/01/2018 and filed on 22/02/2018. It is settled by Mrs. M. O. Adeleye, Assistant Director Prosecution and Legal Services NDLEA.
Learned Counsel nominated two (2) Issues for determination of the Appeal. They are:
1. Whether the trial Court rightly convicted and sentenced the Appellant upon a defective Charge contrary to the decision of the Supreme Court in BAGUDU VS. YAKI (2015) 18 NWLR (PT. 1491) Page 299, 300 and 301 (Ground One of the Notice of Appeal).
2. Whether non-compliance with Section 308 of the Administration of Criminal Justice Act, 2015 by the trial Judge vitiates the entire proceedings. (Ground Two of the Notice of Appeal.
Learned Counsel for the Respondent reframed the two Issues formulated by the Appellant for determination as follows:-
i. Whether the charge upon which the Appellant was convicted and sentenced by the trial Court was defective.
ii. Whether the Honourable trial Judge was required to comply with the Provision of Section 308 of the Administration of Criminal Justice Act 2015 in arriving at his decision to convict and sentence the Appellant.
On Issue One, learned Counsel for the Appellant submitted that the charge sheet upon which the Appellant was arraigned convicted and sentenced is defective and incompetent.
That it is evident that the charge sheet preferred against the Appellant failed to comply with the mandatory Provisions of Rule 10 (1), (2) and (3) of the Rules of Professional Conduct, 2007 as the State Counsel who prepared the charge sheet did not affix his/her Nigeria Bar Association (NBA) approved stamp and seal.
On this, he referred to the decision of the Supreme Court per Nwali Sylvester Ngwuta, JSC in the case of Senator BELLO SARAKIN YAKI (RTD) & ANOR VS. SENATOR ATIKU ABUBAKAR BAGUDU & 2 ORS. (2015) 18 NWLR (PT. 1481) 299 at 300-301.
He submitted that based on the above authority, the learned trial Judge ought not to have taken cognizance of the defective charge sheet during the course of its proceeding let alone convict and sentence the Appellant on a defective charge not properly filed and its filing not regularized.
Learned Counsel for the Respondent on the other hand submitted on Issue One that the trial Court rightly convicted and sentenced the Appellant upon the charge sheet dated 27th day of April, 2015 and filed on 28th of April 2015. That the charge upon which the Appellant was convicted and sentenced was neither defective nor incompetent.
Respondent’s Counsel submitted as a matter of fact that the mandatory affixure of seal and stamp approved by the Nigeria Bar Association have not been enforced as at 28th of April, 2015 when the charge was filed and the 12th of May, 2015 that the charge was read and explained to the Appellant.
Respondent’s Counsel noted that Rule 10 of the RPC came into effect throughout the Federal High Court in the country on the 1st of June, 2015. Consequently, the charge filed by the Respondent on the 28th of April, 2015 did not contravene the Rule 10 of the RPC 2007. (Supra).
On another wicket, learned Counsel for the Respondent submitted that the said Rule 10 (2) of the RPC 2007 does not expressly mention a charge as one of the Legal documents. He contended that the provision of RPC 2007 relating to stamp and seals is particularly applicable to Civil Proceedings and not Criminal Proceedings.
Respondent’s Counsel submitted further that in any event, it is too late for the Appellant to complain on the competence of the charge on Appeal. He referred to Section 221 of the ACJA, 2015 and the cases of:
OKEWU VS. F.R.N. (2012) 9 NWLR (PT. 1395); and
TORRI VS. NPSN (2011) 3 NWLR (1254) 365.
where the Supreme Court held that in Criminal Proceeding/trial Objection to any irregularity in a charge must be made at the trial stage, failure which it would be too late to raise on Appeal.
On Issue One, I do agree with every point that was made in answer to the Appellant by the learned Counsel for the Respondent.
In the first instance it is common knowledge that the Rule of Professional Conduct (RPC) 2007 became effective from 1st April, 2015 but became enforceable from the 1st of June, 2015. See e.g. BAGUDU VS. YAKI (2015) 18 NWLR (PT. 1491) 299 at 319.
This is because the provision of Rules 10(1), (2) and (3) RPC 2007 on the issue of stamp and seal was given an administrative effect by the circular issued by the Chief Justice of the Federation dated 12th May, 2015 with Ref. Number NJC/CIR/HOC/71 and signed by the then Chief Justice Mahmud Mohammed, GCON himself.
The charge preferred against the Appellant filed on 26th April, 2015 could not in earnest have been caught on that date which was before the implementation of the Provision of Rules 10 (1), (2) and (3) RPC 2007.
Learned Counsel for the Respondent was equally right to have distinguished the facts and circumstance of the case of BAGUDU VS. YAKI (Supra) heavily relied upon by the Appellant’s Counsel from the facts and circumstances of the present case. BAGUDU VS. YAKI (Supra) is a Civil Case and there was no indication in the case that the Supreme Court intended to extend its interpretation of the Provision of Rules 10 (2) and (3) of the RPC 2007 to cover Criminal Proceedings as in the instant case. This is more so that Rule 10 (2) expressly referred to some legal documents but deliberately omitted the word Charge in the list of documents so mentioned. Furthermore, in its interpretation of Rule 10(3) the Supreme Court considered the failure to comply with Rule 10 (3) as a curable irregularity which does not affect the competence of such document.
For purpose of clarity, Rule 10 (2) says:
For the purpose of this Rule legal documents shall include pleading, affidavit, deposition, application, instrument, agreement deed, letters, memoranda, reports, legal opinion or any similar document
Rule 10 (3)If without complying with the requirement of this Rule a lawyer signs or files any legal documents as defined in sub-rule 2 of this Rule and in any of the capacities mentioned in sub Rule (2) of this Rule, and in any of the capacities mentioned in sub Rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed
The decision of the Supreme Court in BAGUDU VS. YAKI (Supra) clearly does not envisage a charge sheet in Criminal trials as one of the documents referred to under Rule 10 (2) of the RPC 2007.
More important of all the answers provided to Appellant’s Issue One by the learned Counsel for the Respondent is that by Sections 166, 167 and 168 of the Criminal Procedure Act and Section 206 of the Criminal Procedure Code a mistake or defect in a charge which neither embarrassed nor misled an accused person in his defence is not a sufficient reason to quash conviction.
EMMANUEL OGUNSANYA ONASILE VS. DANIEL ADETAYO SAMI & ANOR (1962) ANLR 271 (FSC); and
C.O.P. VS. CHRISTIAN OKOYEN (1964) ANLR 298 (SC).
This is because where a charge is defective, for the defence to succeed on an objection to the charge as defective, the defence must show he is prejudiced by the charge. Where an accused is not embarrassed or prejudiced by the defective charge, an objection to the charge will not be sustained.
See: MANGAI VS THE STATE (1993) 3 NWLR (PT. 279) 108;
Specifically, by Section 168 of the CPA No Judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the Court nor
f. Because of any alleged defect in substance or in form between any complaint, warrant or other process relating to the charge and the evidence adduced in respect of the charge
OKEWU VS. F.R.N. (2012) 9 NWLR (PT. 1395) 327; and
TORRI VS. NPSN (2011) 13 NWLR (PT. 1254) 365.
Still on this, by Section 221 of the ACJA 2015, objections shall not be taken or entertained during proceeding or trial on the ground of an imperfect or erroneous charge
Clearly, therefore the Appellant was rightly convicted and sentenced on the charge as presented by the Respondent (Prosecution).
Issue One is resolved against the Appellant.
On Issue Two, learned Counsel for the Appellant submitted that the Judgment in this case was not in conformity with the Provision of Section 308 of the Administration of Criminal Justice Act (ACJA) 2015.He referred to the cases of:
NWANKWU VS. IBETO (2011) 2 NWLR (PT. 1231) 228;
USIOBAIFO VS. USIOBAIFO (2005) 3 NWLR (PT. 913) 665;
IBORI VS. AGBI (2004) 6 NWLR (PT. 868) 78; and
UDENGWU VS. UZUEGBU (2003) 13 NWLR (PT. 836) 136.
as having spelt out the minimum standard for every Judgment. He emphasized that in Criminal proceedings, the trial Judge is expected to evaluate the cases and evidence put before him.
He submitted that it is trite that when a trial Court fails to evaluate the evidence adduced by witness before it, it would arrive at a wrong or erroneous conclusion.
He referred on this to the cases of:
HENSHAW VS. EFFANGA (2009) 11 NWLR (PT. 1151) 71;
ATOYEBI VS. GOV. OF OYO STATE (1994) 5 NWLR (PT. 344) 290; and
KARIBO VS. GREND (1992) 3 NWLR (PT. 230) 426.
Appellant’s Counsel also complained that the learned trial Judge did not give reason(s) for his Judgment. And, that every Court whether Civil or Military must show basis of Judgment especially a verdict of guilty.
He referred to the cases of:
NIGERIAN AIR FORCE VS. AMINU KANO (2010) ALL FWLR (PT. 523) 1805;
THE STATE VS. AJIE (2000) FWLR (PT.16) 2831;
AKIBU VS. OPALEYE (1974) 11 SC 189; and
BOARD OF CUSTOMS & EXCISE VS. IBRAHIM BARAU (1982) 10 SC 48.
He urged us to hold that the trial Court did not evaluate evidence adduced before convicting the Appellant, that the Judgment of the trial Court was not in compliance with Section 308 of the ACJA, 2015 and that the Prosecution failed to prove its case against the Appellant beyond reasonable doubt.
Learned Counsel for the Respondent on the other hand submitted on the contention that the Judgment did not comply with Section 308 of the ACJA, 2015, that the Appellant is mistaken the Judgment in a full trial with that of a summary trial wherein the Appellant Defendant pleaded guilty. He submitted that the content of a Judgment in a criminal trial will be determined by the nature of trial whether regular (i.e. full trial) or summary. That a trial is regular and full when opportunity is given to the prosecution and defense to state and present evidence to support their respective cases through calling of witnesses and tendering of relevant exhibits on this, he referred to Section 356 (3), (5),(6)and Section 358 of ACJA 2015.
Respondent’s Counsel submitted that on the other hand, summary trial is the trial conducted in a summary manner. That it involves swifter procedure and down plays the procedural requirements associated with full trials.
On this, Respondent’s Counsel referred to Section 33 (2) of the Federal High Court Act Cap. 134, LFN 1990 which gives the Federal High Court jurisdiction to try criminal matter as in the instant case in a summary manner.
He also referred to the Provision of Section 350 (1) (b) of ACJA 2015.
He submitted that Section 308 of ACJA 2015 is not applicable to this case where the Appellant pleaded guilty and underwent summary trial.
That Section 308 ACJA 2015 is only applicable to cases where full trial has taken place. But, that the Provision of Section 274 (2) and Section 356 (2) of ACJA are applicable in the instant case.
He referred to the case of JOHN TIMOTHY VS. F.R.N. (2012) LPELR ??? 9346 and submitted that Part 31 of ACJA 2015 under which the Provision of Section 308 in included deals with presentation of cases of prosecution and defense in a full Criminal trial.
On the contention of the Appellant’s Counsel that the learned trial Judge did not evaluate evidence, Respondent’s Counsel submitted that with the plea of guilty of the Appellant at the trial Court, the trial Judge had only the case presented by the prosecution to look at in making his decision to convict and sentence the Appellant.
Nevertheless, said Counsel, the learned trial Judge evaluated evidence given by Prosecution before passing his verdict.
On the contention that the learned trial Judge did not also give reason(s) for the Judgment, learned Counsel for the Respondent referred us to Page 36 of the Record where the learned trial Judge based his decision to convict the Appellant on the application made by the Respondent (Prosecution) after the presentation of fact, urging the Court to convict the Appellant on his plea, facts and evidence before the Court.
He submitted that it is noteworthy that the Appellant (Defendant) who was ably represented by Counsel A. O. Salaudeen, Esq. did not object to the Respondent’s application.
He submitted that it was based on the plea of guilty of the Appellant and the fact presented by the Respondent that the trial Judge convicted the Appellant where after Appellant defendant’s Counsel pleaded his allocutus.
Sequentially, Respondent’s Counsel submitted that the trial Judge evaluated the evidence presented by the Respondent (Prosecution including Exhibit G vis–vis the allocutus to arrive at the sentence passed on the Appellant.
He concluded that with the unequivocal plea of guilty of the Appellant, he has openly and unambiguously confirmed the authenticity of the content of his confessional statement Exhibits G1 and G2. And that the plea of guilty of Appellant in Open Court is tantamount to a verbal confession in law more potent and cognizable even more than his written confession.
He urged us to resolve Issue Two against the Appellant and dismiss the Appeal as lacking in merit.
It is not difficult for me to agree with the learned Counsel for the Respondent that the Appellant’s Counsel by his Issue Two seems to mix up the procedural requirements of a full trial as for example a trial by information with that of a summary trial.
Undoubtedly, the Provision of Section 308 of the ACJA, 2015 applies only to a full trial or a trial by information and not in summary. In Section 494, the interpretation Section of the ACJA, 2015 summary trial means any trial by a Magistrate or a trial by a High Court commenced without filing an information.The procedure where as in the instant case, the accused has pleaded guilty to the charge is governed by the Provision of Section 274(1), (2) and Section 356(2) of the ACJA, 2015. By Section 274(1)
Where a Defendant pleads guilty to an offence with which he is charged the Court shall:
a) Record his plea as nearly as possible.
b) Invite the prosecution to state the fact of the case, and
c) Enquire from the defendant whether his plea of guilty is to the fact as stated by the prosecution.
(2) Where the Court is satisfied that the defendant intends to admit the truth of all the essential elements of the offence for which he has pleaded guilty, the Court shall convict and sentence him or make such order as may be necessary, unless there shall appear sufficient reason to the contrary.
Section 356 (2) of the ACJA 2015 which more specifically is under Summary Trials says:
Where the defendant pleads guilty and the Court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why sentence should not be passed, the Court shall proceed to sentence .
In the instant case, a careful study of the Record of proceedings reveals a play out of the dynamics of the Provision of Section 274 and 356 (2) of the ACJA 2015. The Appellant took his plea and pleaded guilty to the charge on Page 27 of the Record of Appeal. The case was then adjourned for presentation of facts by the prosecution. PW1 (Ahmed Akopari Suleiman) DSN and Command Exhibit Keeper of the NDLEA started given evidence on Page 32 of the Record of Appeal and from Pages 32 to 35 of the Record of Appeal settled with the preliminaries by tendering Exhibits A, B, and C.
The proceedings continued on Page 35 of the Record of Appeal and at Page 36, of the Record, the learned trial Judge recorded conviction for the Appellant/Accused.
The relevant portions of the proceedings at Pages 35 to 36 of the Record of Appeal are reproduced below:
PW1: the brown sealed envelop (sic) has the same reference number as Exhibit C. identifies brown envelop. Seeks to tender.
Salaudeen Esq.: No objection.
Court: Brown sealed envelop (sic) is admitted in evidence and marked Exhibit D.
PW1: Applies that Exhibit D be opened to ascertain its contents.
Salaudeen Esq.: No objection.
PW1: Opens exhibit D. Brings out evidence pouch. Exhibit D contains the transparent evidence pouch I took to Lagos. Seeks to tender.
Salaudeen Esq.: No objection.
Court: Transparent evidence pouch is admitted in evidence and marked Exhibit E.
PW1: The drug analysis report has the same reference number with Exhibits C, D, and E. Identifies drug analysis report. Seeks to tender.
Salaudeen Esq.: No objection.
Court: Drug analysis report is admitted in evidence and marked EXHIBIT F.
PW1: Shown document. This is the statement of the Defendant. Seeks to tender.
Salaudeen Esq.: No objection.
Court: The statement of Defendant recorded in English Language is admitted in evidence and marked Exhibit G.
PW1: Shown bags. These are the bags. They are in loose form i.e. the Cannabis. Seeks to tender 34KG of Cannabis.
Court: 4 White sacks containing 34KG of Cannabis sativa are admitted in evidence and marked Exhibits H1 to H4.
PW1: That is all.
Salaudeen Esq.: No cross examination.
Court: Witness is discharged.
Adeleye (Mrs.): Urges Court to convict as per plea, facts and evidence before the Court.
Salaudeen Esq.: No objection.
Court: The accused person is convicted as charged.
Thereafter, learned Counsel for the Appellant Accused proceeded to Allocutus on Page 37 of the Record and the learned trial Judge pronounced sentence on the Appellant on Page 38 of the Record.
Strictly speaking there is no special procedure for the evaluation of evidence in summary trials as in the instance case where the Appellant Accused pleaded guilty.
The simple reason for that is that there is in fact no evidence to evaluate.
The plea of guilty as in the instant case is the most sacrosanct form of proof in Criminal procedure followed closely and perhaps relatedly by a confessional statement of an accused person.
See: USMAN BABAGINDA VS. F.R.N. (Unreported CA/IL/C.43 of 5th of May, 2017/2016).
This is the reason why the numerous cases on the need to evaluate evidence and or give reasons for a Judgment cited by the learned Counsel for the Appellant are simply not applicable and irrelevant in the instant case which deals with plea of guilty and a summary trial procedure under the Provision of Section 274 and 356 (2) of the ACJA 2015 and not under the Provision of Section 308 of the ACJA as imagined or contemplated by the learned Counsel for the Appellant.
In conclusion on Issue Two, I agree with the learned Counsel for the Respondent that Section 308 of the ACJA, 2015 is not applicable to the Appellant’s case, hence the trial Judge was under no obligation to comply with Section 308 ACJA because the Appellant’s case at the Court below was a summary trial and he pleaded guilty to the charge.
Issue Two is resolved against the Appellant.
Having resolved the Two (2) Issues in this Appeal against the Appellant, the Appeal lacks merit and it is accordingly dismissed.
The Judgment, conviction and sentence of the Appellant in Charge No. FHC/IL/8C/2015 by Justice A. O. Faji on 16th day of June, 2015 is hereby affirmed.
CHIDI NWAOMA UWA, J.C.A.: I was privileged to read before now the draft of the judgment delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA. I agree with the reasoning and conclusion arrived at and adopt same as mine in holding that the appeal is devoid of merit. I also dismiss it and affirm the conviction and sentence of the Appellant.
HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother MOJEED ADEKUNLE OWOADE JCA. was made available to me in draft.
I wholly agree with the reasoning and conclusions reached thereby dismissing the appeal for want of merit
Ahmed Akanbi, Esq. with him,
Temitope Salami, Esq. –For Appell.ant
M. O. Adeleye, (Mrs.) Assistant Director, Prosecution and Legal Studies (PLS) of the National Drug Law Enforcement Agency (NDLEA) Kwara State Command –For Respondent