In The Court of Appeal of Nigeria
On Friday, the 31st day of March, 2017
Before Their Lordships
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
1. IBRAHIM ADAMU
2. DONALD DALAMI –Appellants
THE FEDERAL REPUBLIC OF NIGERIA –Respondent
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Federal High Court Abuja, Coram Hon. Justice O. E. Abang, delivered on the 8th day March, 2016.
The appellants herein were convicted for the offences of transportation of 42 kilograms of cannabis sativa, a narcotic drug similar to cocaine, heroin and LSD see page three of record of appeal. After a plea of guilty to the one count charge the prosecution reviewed the facts of the case in line with the charge, as a consequence Exhibits A, B, C, D, E1, E2, F and G1-G7 were tendered; see pages 9-10 of the record of appeal. Contrary to Section 14(b) of NDLEA Act CAP N30 LFN 2004 and were sentenced to 15 years imprisonment.
Dissatisfied the appellants who were not represented by counsel at the trial Court, now filed a Notice of Appeal dated 31st day of May, 2016 but filed on the 15th day of June 2016; on the following grounds shorn of their particulars:
The trial Court erred in law when it convicted the appellants without first according them fair hearing.
The learned trial Court erred in law when it convicted the appellants without first availing them the opportunity to get a counsel of their choice or providing one for them when they cannot afford in a capital offence.
The learned trial Court erred in law when it relied on Exhibit E1, E2 and evidence adduced by prosecution witness which was not subjected to cross-examination to convict the appellants.
The learned trial Court erred and thereby came to a wrong conclusion when the Court held “if indeed that the 1st Defendant did not know that he was carrying India Hemp a drug similar to cocaine, he ought to have stopped for National Drug Enforcement Agency Officials to conduct their stop and search exercise but because he knew what he was carrying, he thought he will escape by refusing to stop for search”.
The learned trial Court erred in law when it held the Court finds and holds that the prosecution has proved its case beyond reasonable doubt.
From these grounds the following issues were formulated for determination in the appellants’ brief dated and filed 19th day of July 2016; settled by Fredricks E. Itula, Esq., of counsel to the appellants:
1. Whether the hearing that led to the conviction of the appellants can be said to be fair where any of the parties is refused or denied the opportunity of being heard.
(Distilled from grounds 1, 2, and 3).
2. Whether the prosecution proved the guilt of the appellants as contained in the charge against them beyond reasonable doubt as required by law. (Distilled from grounds 4 and 5)
The respondent did not file any brief in response; the appeal was heard on the appellant’s brief alone; because on the 17th of January, 2017 this Court granted the appellants application to hear the appeal on the appellant’s brief alone, after the respondent was served with the application as well as the order of Court, to which it neglected to respond.
Whether the hearing that led to the conviction of the appellants can be said to be fair, as they were denied the opportunity of being heard.
It is submitted for the appellants that the right to fair hearing as guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) cannot be waived; as such the Court ought to hear both sides on all material issues before arriving at a decision; learned counsel referred this Court to MBANEFO V MOTOKWU (2014) part 724 page 1665.
That the appellants were not given the opportunity of being heard, as a result of which the trial cannot be said to be fair.
Learned counsel further submitted that the appellants were arraigned on the 8th of march, 2016 and convicted and sentenced the same day, without having the opportunity of preparing for their defense or examining the witnesses called; learned counsel referred the Court toIDRIS RABIU V STATE ICC (2005) 1 NSCC 578, CEEKY TRACLERS V GENERAL MOTORS (1992) 23 NSCC 188
That also the accused were not given the opportunity of obtaining the services of counsel, and none was made available to them; learned counsel referred the Court to Section 36 (6) (d), Section 276 (2) of the ACJA, AWOLOWO V USMAN SARKI (1962) LLR page 177 and GODWIN JOSHIAH V STATE (1985) 1 NWLR part 1 page 125.
Resolution of Issue one:
The right to fair hearing is a fundamental constitutional right guaranteed by the 1999 Constitution of the Federal Republic of Nigeria (as amended), and any breach of the provisions, particularly in trials, naturally, vitiates such proceedings and renders the same null and void, see OYEYEMI V. COM. FOR LOCAL GOVT. KWARA STATE (1992) 2 NWLR part 226 at page 661.
The right to fair hearing entails not only hearing a party on any issue which could be resolved to his prejudice, but also ensuring, in the interest of justice, that the hearing is fair and in accordance with the twin pillars of justice, namely audi alteram partem and nemo judex in causa sua; see MOHAMMED v. OLAWUNMI (1990) 2 NWLR (Pt.133) 458 at 485, OGUNDOYIN v. ADEYEMI (2001) 13 NWLR (Pt.730) 403 at 421 and SALEH v. MONGUNO(2003) 1 NWLR (Pt.801) 221 at 246.
It is important at this juncture to have recourse to the relevant provisions of the 1999 Constitution of the Federation (as amended), in this regard particularly as it relates to the case at the trial Court.
“in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(6) every person who is charged with a criminal offence shall be entitled to-
(b) be given adequate time and facility for preparation of his defense;
(c) defend himself in person or by legal practitioner of his own choice.
It is the contention of learned counsel to the appellants that the accused persons at the trial were not given adequate time to prepare. Be that as it may, it is important not to lose sight of the fact that adequate time is relative, because there is no specific number of days or time provided to suffice as adequate time. For that reason, adequate time depends to a large extent on the circumstances of each case.
By learned counsel to the appellants’ own admission and indeed the record of appeal, the appellants pleaded guilty to the charge, when it was read out to them, and they appeared to have perfectly understood it before they pleaded guilty.
At page 7 to 8 of the record of appeal the charge was read and explained to the accused persons by the registrar of the Court, Miss Doyin, in English, a language they understood, and they both pleaded guilty.
At page 11 of the record of appeal the 1st defendant stated:
“I plead with the Court to please forgive me. I will not do it again…”
The 2nd defendant thus:
“I have already committed the offence; I plead with the Court to forgive me. The Court should tamper justice with mercy. I will not engage in it again…”
One therefore fails to see what more time learned counsel for the appellants expects the Court to give the accused persons, after they had already pleaded guilty to the charge?
The fact that the trial was concluded in a day, simply means there was no reason to delay the matter, after all that was needed to be done had been done. The trial Court cannot be expected to ask the accused persons to go and prepare further, because there was no need for that any more.
There is nothing on the record, to show that the appellants were not in Court, or were not heard; they were in Court and heard. A Court’s duty is to create the environment for a fair hearing of a case. It is not the business of the Court to make sure that a party takes advantage of the environment or atmosphere by involving himself in the fair hearing of the case. A party who refuses or neglects to take advantage of the atmosphere of fair hearing process cannot turn around to accuse the Court of denying him fair hearing. This is not fair to the Court; see OKANLAWON V STATE (2015) LPELR-24838-SC.
The appellants were not denied the right to have a counsel of their choice, there is nothing to suggest that they were denied such rights. Where a charge is read to an accused person and he pleads guilty to that charge the Court cannot be expected to adjourn the case and ask the accused person to go get a counsel especially where he appeared to have perfectly understood the charge before pleading. It is absolutely up to the accused person to engage a counsel of his choice, there is no compulsion one way or the other. The important thing to bear in mind is that he was not denied access to a counsel.
An accused person is entitled to representation by counsel of his choice or defend himself as provided by Section 36(4) (c); and where he chooses to defend himself the Court cannot be expected to compel him to get a counsel. That choice is his prerogative.
All said and done, the true test of fair hearing is the impression of a reasonable person who was present in Court at the trial, whether from his observations justice was done in the case: see IJEOMA Vs STATE (1990) 6 NWLR (part 158) 507 at 580- 581; BABA Vs N.C.A.T.C. (1991) 5 NWLR (part 192) 388 at 430, CHUNGOM Vs STATE (1992) 4 NWLR (part 233) 17 at 37 OKAFOR Vs A-G ANAMBRA STATE (1991) 6 NWLR (part 200) 659 at 678, MOHAMMED vs KANO N.A. (1968) 1 ALL NLR 424.
It is obvious from the record of appeal that the appellants were not denied fair hearing by the trial Court. They pleaded guilty to the charge and were convicted of the offence charge without much ado. The trial Court ought to be commended for speedy trial, not condemned.
This issue is accordingly resolved in favour of the respondent, and against the appellant.
Whether the prosecution proved the guilt of the appellants as contained in the charge against them beyond reasonable doubt.
It is submitted for the appellants on this head that the prosecution which bore the burden of proof failed to prove the offense charged beyond reasonable doubt aside from the confessional statement; learned counsel referred this Court to UTUORUME V. STATE (2001) All FWLR part 560 page 1265.
That the appellants were convicted solely on their plea of guilty and Exhibits E1 and E2 the confessional statement without subjecting it to test; learned counsel referred the Court to NWAEBONYI V THE STATE (1994) 5 NWLR part 138, ONUOHA V POLICE (1956) NNLR 96.
Resolution of Issue Two:
In addition to the appellants confessing to the crime, they also pleaded guilty to the charge. The question is: what is the legal consequences of a guilty plea by an accused person?
Sections 218 and 285(1) and (2) of the Criminal Procedure Act provide as follows:
218. “If the accused pleads guilty to any offence with which he is charged the Court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to admit the thrust of all the essentials of the offence of which he has pleaded guilty, the Court shall convict him of that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.”
285 (1): At the commencement of the hearing, the Court shall state or cause to be stated to the defendant the substance of the complaint and shall ask him whether he is guilty or not guilty.
(2) If the defendant says he is guilty and the Court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why the sentence should not be passed the Court shall proceed to sentence.”
From the above provisions, it is very clear that a guilty plea by an accused person to a non capital charge shortens the proceedings in that trial as the Court is empowered to proceed summarily to deal with the matter by convicting and sentencing the accused persons accordingly; it converts an otherwise full trial to a summary one. Where an accused person not only pleaded guilty to the charge but made confessional statement which is admitted in evidence without objection, as in the instant case the burden of proof legally imposed on the prosecution to prove the charge beyond reasonable doubt is made very light indeed; see NKIE V FRN (2014) LPELR-22877-SC.
The issue of proof beyond reasonable doubt does not arise after the accused/appellants had not only confessed but pleaded guilty. All that needs to be established has been established at this point; it is a foregone conclusion. It is trite that where an accused person pleads guilty to the offence against him, the onus placed on the prosecution by law is lifted and the Court can safely convict on the plea, see OMOJI v. FEDERAL REPUBLIC OF NIGERIA (2008) ALL FWLR (Pt.415) 1656.
After a plea of guilty by an accused person the Court has a duty to proceed to convict the accused without necessarily calling on the prosecution to prove the commission of the offence by establishing the burden of proof ordinarily required by law. The reason is that the admission of guilt on the part of the accused would have satisfied the required burden of proof. Where however, as in this case the prosecution goes ahead to adduce evidence by tendering documents as exhibits, this is an added strength to the case of the prosecution which also obliterates any doubt whatsoever on the mind of the trial judge to convict the accused. See NKIE V FRN supra.Thus, the Appellant, having voluntarily pleaded guilty to the charge at the trial Court, cannot now be heard to be making a different case on appeal. He should not be allowed to approbate and reprobate in the
same breath; seeOMOJU V FRN (2008) All FWLR part 415 page 1656, RAYMONDS DONGTOE V CIVIL SERVICE COMM PLATEAU STATE (2001) 4 SC part 11 43 and R. v WILSON (1959) SC NLR 462.
This issue too is accordingly resolved in favour of the respondent, and against the appellants.
Having resolved both issues for determination against the appellant, the appeal now fails for lack of merit, and it is accordingly dismissed. The judgment of the trial Court is affirmed.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, Mustapha, JCA. I am in agreement with the reasoning and conclusion and orders reached therein.
TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading the lead judgment just delivered by my learned brother, Mohammed Mustapha, JCA.
I agree with the reasoning affirming the judgment of the trial Court.
F.E. Itula, Esq. with him, E.M. Odukaye (Miss) –For Appellant
Respondent served but not represented –For Respondent