In The Court of Appeal of Nigeria
On Tuesday, the 21st day of March, 2017
Before Their Lordships
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
WAIDI ADEBAYO –Appellant
THE FEDERAL REPUBLIC OF NIGERIA –Respondent
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.(Delivering the Leading Judgment): This appeal challenges the decision of the Federal High Court sitting in Abeokuta, delivered by Hon. Justice Ofili-Ajumogobia on the 31st day of May 2012.
The Appellant was charged with dealing in 350 grams of Indian hemp (cannabis sativa), without lawful authority.
The Appellant purportedly pleaded guilty to the charge which was read over and translated to him in Yoruba. The prosecution went on to prove its case after which the Appellant was convicted and sentenced to life imprisonment with hard labour. The Appellant being dissatisfied with the decision has appealed for the intervention of this Court to set aside the conviction and sentence.
The Appellant has raised the following issues for determination:
1. Whether the Appellant’s arraignment was not invalid and in breach of Section 215 of the Criminal Procedure Act, Cap C41, Vol.4, Laws of the Federation of Nigeria 2004 as well as Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999, as Amended. Distilled from ground 1.
2. Whether the Appellant was given fair hearing by the learned trial Court in the whole conduct of the case. Distilled from ground 2.
3. Whether the sentence of life imprisonment with hard labour for purportedly dealing in 350 grams of Indian hemp was not excessive. Distilled from ground 3.
4. Whether the offence of dealing in Indian hemp is known to or specifically provided for in the National Drug Law Enforcement Agency Act, Cap N30 LFN 2004. Distilled from ground 4.
The Respondent submitted two issues for determination thus:
1. Whether the Appellant’s arraignment and trial were in compliance with the requirement of the law.
2. Whether the offence of cannabis sativa is provided for in the NDLEA Act Cap N30 Laws of the Federation of Nigeria, 2004. And whether the Federal High Court has jurisdiction to try cannabis sativa (Indian hemp) cases.
The Appellant’s Brief is dated and filed on the 8th of February, 2016, while the Respondent’s Brief is dated the 11th of December 2016 and filed on the 17th December, 2016. The records were transmitted to this Court on the 19th July, 2013.
The issues submitted by the Respondent are more precise and is adopted for the determination of this appeal.
I will start with the issue of jurisdiction which is a threshold matter from which the validity of every judicial proceeding gets its legitimacy.
JURISDICTION & OFFENCE KNOWN TO LAW (Appellant’s issue 4 & Respondent’s issue 2)
It is also the Appellants submission that the term Indian Hemp is not specifically mentioned in Section 11 (c) of the NDLEA Act and cannot be imported into it. Also, that a criminal offence must not be subjected to vagaries of judicial interpretation. Cites MARTIN v. C.O.P. (2005) ALL FWLR pt. 278, 1075; AMUCHIENWA v. UNITY BANK(2012) ALL FWLR pt. 657, 673 @731; TAWAKALITU v. F.R.N. (2011) ALL FWLR pt 561, 1413 @1482; OKOTIE-EBOH v. MANAGER (2005) ALL FWLR pt. 241, 277 @310.
The Respondent on the other hand submits that by virtue of Section 251 (1) (m) of the Constitution, the Federal High Court had exclusive jurisdiction to treat matters on drugs. The Respondent also states that there was no error in charging the Appellant under the NDLEA Act. Cites Section 11 (c) and 52 of the NDLEA Act; Section 74 of the Evidence Act 2011; Section 7 of the Federal High Court Act; GODWIN CHUKWUMA v. F.R.N. (2001) 2 SC pt. 11,1 @84; ELIJAH AMEH OKEWU v. F.R.N. (2012) 2 SC pt. ll, 1 @29.
In this appeal, the competing legislations are the Indian Hemp Act of 1966 and the NDLEA Act of 2009. The Indian hemp and the NDLEA Acts are different legislations which seek to protect the society from dangerous drugs. It is obvious from the terms of both enactments, that giving “a right with one hand” and taking “same away by the other,” is not in contemplation in any of the two Acts of the National Assembly under consideration in this appeal.
Rather, it can be implied that the prevalence, nuisance and destructive social and adverse economic consequences of the misuse of hard drugs are the issues at stake in both the Indian Hemp and NDLEA Acts. The right and health of a nation is what is at stake. In the NDLEA Act, the Legislators seek a more vigorous and deterring law to checkmate the daring activities of drug barons. The Legislators put in place a specialized agency and arms it with aggressive investigators and prosecutors to go after hard drug dealers-against whom stiffer penalties have been put in place.
???Possession of a wrap or two of Indian hemp is not expected to attract the same punishment with the possession of large volumes or the cultivation of the drug in a farm-large or small.
The NDLEA Act came into existence to checkmate the daring and ravenous activities of drug dealers and peddlers in order to salvage our nation from the activities of these unpatriotic and merciless drug masquerades. The NDLEA Act is an all-encompassing legislation which coexists with earlier enactment to allow for a comprehensive assault on drug related offences. In my humble opinion, the Federal High Court is conferred with jurisdiction in powers to try some criminal matters and causes conjunctively and not exclusively with the Courts of general jurisdiction like the Magistrates and High Courts. The legislature is therefore at liberty as the need arises, to confer upon the Federal High Court, such additional jurisdiction as it deems necessary. The NDLEA Act is one of such enactment which confers additional jurisdiction on the Federal High Court. Section 52 of the NDLEA Act defines “cannabis plant” to mean “any plant of the genus of Cannabis”. In other words, anywhere the term “Cannabis” appears, any plant of the genus of cannabis is being referred to. The Indian Hemp Act by its Section 1 defines Indian hemp to mean “any plant or part of a plant of the genus cannabis”.
This clearly shows that Indian hemp is adequately covered by the NDLEA Act and the drafters of the Act intended it to be applicable to Indian hemp.
It is the NDLEA Act which confers exclusive jurisdiction on the Federal High Court in respect of drug-related criminal matters, not the Constitution of Federal Republic of Nigeria 1999 as amended. It is the Constitutionhowever, which permits this co-mingling of the special jurisdiction of the Federal High Court with any other Courts (Sect 251 (1) (S). it must always be borne in mind that it is the Federal High Court that has limited jurisdiction, being by its creation a specialized Court.
Consequential upon this provision, the NDLEA Act which is a later provision than the Indian Hemp Act, shares jurisdiction with the Indian Hemp Act to the extent that the prosecutors of the NDLEA Agent of Government are not the only body exclusively charged with the prosecution of offences pertaining to Indian Hemp being of the ‘genus cannabis’ also known as “Cannabis Sativa.”
I find no good reason to strike down the Indian Hemp Act as inconsistent with the provision of the Constitution.
FAIR HEARING (Appellant’s issue 2)
Proper arraignment is an indicator to the nature of the proceedings before the Court. It is the submission of the learned Counsel for the Appellant that the Appellant was denied fair hearing because he did not understand English language and did not have legal representation. He was therefore entitled by law to an interpreter. Counsel cites a plethora of cases in support of this point which include UDOSEN v. THE STATE (2007) All FWLR pt. 356, 669@703-705;ONYIA v. THE STATE (2009) All FWLR pt.450, 625 @649.
The Respondent however insists that there is a presumption of regularity until the contrary is proved. He relies on SECTION 168 (1) of the EVIDENCE ACT 2011; OGUNYE v. THE STATE (1999) 4 SCNJ 33; SECTION 33 (2) of the FEDERAL HIGH COURT ACT Cap F12 laws of the Federation of Nigeria 2004.
SECTION 36(6) CFRN 1999 as amended states that:
Every person who is charged with a criminal offence shall be entitled to:
(a) Be informed promptly in a language that he understands and in detail of the nature of the offence ….
(c) defend himself in person or by legal practitioners of his choice.
The effect of the above section is that the Appellant ought to have been cautioned on the effect of not having a counsel and choosing to defend himself in a criminal matter.
The cases cited and heavily relied on by the learned Counsel are not applicable to the instant appeal. While the fact of the satisfaction of the Judge is subjective as rightly so declared in the case ofOgunye Vs. State per Iguh J.S.C my humble opinion is that the act of compliance is objective. Compliance should be obvious from the proceedings. A criminal proceedings which records the prosecutor verbatim while the accused person was silent all through and whose alleged participation in his own trial was only reported by the narration of the learned trial Judge is not reflective of compliance with Sections 36 (6) (a) and 28 respectively of the Constitution and the CPA. Such a proceeding cannot be held to have been in compliance with the law.
There are two principal players/actors/parties in every criminal trial; they are the
Prosecutor and the Accused. Each must be fully heard and be seen to have been invited to be heard and must be shown to have properly and fully participated in the proceedings leading up to either the conviction or acquittal of the accused person.” (The relevant portions of the proceedings are hereby reproduced)
“IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABEOKUTA, OGUN STATE
ON FRIDAY THE 20TH DAY OF JANUARY, 2012
BEFORE THE HON. JUSTICE R. N. OFILI-AJUMOGOBIA
CHARGE NO: FHC/ AB/18C/2011
FEDERAL REPUBLIC OF NIGERIA COMPLAINANT
WAIDI ADEBAYO ACCUSED PERSON
P.Gamde appears for the prosecution.
Accused person in Court and not represented.
GAMDE: I apply that charge be read to the accused person and his plea taken,
(charge read and interpreted in) Yoruba language).
Accused person understands charge and pleads guilty.
GAMDE: I want to prove my case.
Plaintiff witness 1 sworn on Holy bible,
I am Olowo Banji Desmond work with NDLEA Ogun State Command as Supt of Narcotics. I know the accused person. He is a suspect I arrested with dry weeds suspected to be cannabis sativa on the 21/01/2011 at Ijebu-Igbo. After arrest he was brought down to our office at Oke Olowo to Exhibit officer’s office for testing of the substances. Result of prelim test by testing officer Chuwang Bulus Ester positive. I witnessed the procedure. It also weighed 350 gramms and same were filled in NDLEA forms by witnessing officers, and accused persons, certificate of Test analysis packing of substance form, request for scientific aid all signed on 21/02/3022.
GAMDE: Applies to tender all the documents
COURT:Admitted and marked ExhibitsPDI-PD3.
PW1: I made a statement as arresting officer and Accused person made statement after being cautioned which was recorded in the Yoruba language and interpreted into English.
GAMDE: Applies to tend above documents.
Accused persons statements recorded in Yoruba and English languages dated 21/01/2011 admitted are marked Exhibit (PD 4a and 4b.
Resulting statement of PW1 in respect of 1 arrest of the accused person is admitted marked Exhibit P05.
GAMOE: Seeks to tender dried weeds (350 gramms)
COURT: 350 grams of dried weeds are in a black polythene admitted and marked Exhibit PS1.
Chuwang Bulus Dung -ASN 1 of NDLEA. Duties – Exhibits officer receives and keeps exhibits. Liases with forensic laboratory.
On 21/01/2011 accused was brought before me along with some dried weeds. I tested the weeds and all forms were endorsed. I sent a small portion of Exhibits to Forensic laboratory in Lagos. Result was sent from Lagos.
Drug analysis report dated 9/02/2011 is hereby admitted and marked exhibit PD6.
5 grams of weed endorsed in a transparent pouch admitted and marked exhibit PS2.
GAMDE: We pray that accused be convicted based on his charge.
COURT: This case is adjourned to 02/02/2012 for judgment.
The curious feature of the record is that it reflects rather an interaction between the Prosecutor and the Court. (See pages 4-6 of the records for this appeal).
If the accused person was actually in the Court, he was a mere spectator standing aloof instead of being an active participant in the proceedings!
Contrary to the submission of the learned Counsel for the Prosecution on the summary trial, the records clearly show that the Prosecutor proceeded with the prosecution of the case after the alleged admission of guilt by the Appellant. There is no law which fetters the right of the accused in a summary trial; the accused person should be the last to address the Court by way of an allocutus; if placed unfettered before the Court. In the peculiar procedure adopted in the instant appeal, the Court proceeded to convict and pronounce sentence on the accused without giving the accused person a chance to make or decline to make an allocutus. Indeed, it would be very presumptuous in the circumstance, to assume the presence of the accused person at such a forum.
A summary trial is not meant to exclude an accused person! In fact, a summary trial occurs when an accused person, having been placed before the Court unfettered, elects in clear unequivocal words to admit to and confesses to the commission of the offence with which he stands
charged. Such admission is usually followed by a plea for leniency/forgiveness. These are the clear indicators that the accused person fully understands the offence and implication of his admission or confession before the Court.
The Appellant challenges his arraignment on the grounds that there is nothing in the records showing that the charge was read over and explained to the accused in a language that he understood and to the satisfaction of the Court, more so because his plea was recorded in the third person and the person who purportedly read and explained the charge to him is not on record. Cites among others Section 215 and 218 of the Criminal Procedure Act; LUFADEJU v. JOHNSON (2007) ALL FWLR pt. 371, 1532 @1552-1553; KAJUBO v. THE STATE (1988) 3 SC (reprint) 109 @114.
The Respondent on the other hand maintains that the Appellant’s arraignment was in line with provisions of the law as per Section 215 of the CPA and Section 36 (6) (a) of the 1999 Constitution and that same is assumed until the contrary is proved. Also cites Section 168 (1) of the Evidence Act, 2011.
Section 215 CPA provides that:
“The person to be tried upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court, and such person shall be called upon to plead instantly thereto unless where the person is entitle to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith.”
Section 218 CPA provides that:
“If the accused pleads guilty, to an 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 truth of all the essentials of the offence of which he has pleaded guilty, the Court shall convict him of that offence pass sentence upon and make an order against him unless there shall appear sufficient cause to the contrary.”
In IDEMUDIA v. THE STATE 5 SC pt. II, 110 the Apex Court per KATSINA-ALU stated that:
” …. There is no doubt that an Appellate Court can only proceed on what is apparent on the record. This is so where the records can ex-facie disclose compliance as required by law.”
The record at page 4 which shows the proceedings of the Court dated 20th January 2012 clearly states that the Appellant was not represented by counsel, neither was he cautioned on the implication of self-representation. In fact, there is no record of specific words uttered by the Appellant in the proceedings of the day of the said arraignment. This creates the impression that the Appellant was not physically present at his own arraignment.
A criminal trial is a solemn judicial exercise involving the liberty and sometimes even the life of a citizen, therefore compliance with all requisite procedure set out by the law and rules is imperative.
What constitutes a proper arraignment of an accused person in a trial for an alleged criminal conduct has been deliberated upon and pronounced on severally by the Apex Court and also by this Court. (Refer: Ararume v. The State (1964) All NLR p416, Josiah v The State (1985) NWLR (Pt 1) p125 also reported in (1985) 1 SC 406 @416 and in (1985) 1 NSCC132 @136).
In Chukwu vs The State (2005) NWLR pt 908 p250 @542 my lord Fabiyi (JCA) (as he then was), had graphically restated the principle as laid down by the Supreme Court in these words:-
“The Supreme Court pronounced unequivocally that the combined effect of the two provisions is that an arraignment consist of charging the accused who is present before the Court and reading over and explaining the charge to him in the language he understands to the satisfaction of the Court; followed by taking his plea. The explanation of the charge to the accused in the language he understands should acquaint with the essential ingredients of the offence charged and the factual situation resulting in and giving rise to the offence charged. A trial judge has a burden duty to secure compliance must be shown in his record.”
This principle was further emphasized by Muhammed JSC in Olabode vs State (2009} 11 NWLR (pt 1152) P 254 @ 275. In a pragmatic demonstration of what proper arraignment entails, my lord declared that:-
“From a community reading of the constitutional provision and the statutory requirements by the Criminal Procedure Act, it is clear that where a person is charged with a criminal offence and he is to appear before a Court of law for an arraignment, the following requirement should be satisfied:
(a) That the person shall be informed promptly in the language he understands and in detail of the nature of the offence he is alleged to have committed.
(b) That the person to be tried shall be placed before the Court unfettered.
(c) That the charge or information shall be read and explained to him by the registrar or other officers of the Court, to the satisfaction of the Court.
(d) That such person shall be called upon to plead instantly thereto.
Also in EWE v. STATE 7 SCNJ 15, it was stated per NNAEMEKA-AGU JSC that:
“It is important also that the record of proceedings should ex facie show that the requirements of the law have been fully complied with.”
No such feature is reflected in the record of proceedings by which the Appellant was convicted and sentenced.
From the foregoing, it is obvious that there was no proper arraignment of the Appellant before the trial Court.
The Appellant submits that the sentence of life imprisonment with hard labour was excessive.
The Respondent citing Section 377 of the Criminal Procedure Act submits that imprisonment shall be with hard labour unless otherwise stated or expressly excluded by Statute.
The Appellant was charged and convicted under Section 11Â (c) of the NDLEA Act which clearly states that:
“Any person who, without lawful authority- Sells, buys, exposes or offers for sale or otherwise deals in or with the drugs popularly known as cocaine, LSD, heroine or any other similar drugs shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life.”
The NDLEA Act under which the Appellant was convicted made no reference to hard labour. It was therefore an unnecessary addition made by the trial Court. It is irrelevant that hard labour is implied in every life sentence. The life sentence in itself is hard labour. Further, with the provision of Section 377 of the CPA such a pronouncement is excessive and is hereby set aside.
I find the Appeal as meritorious and it is allowed.
The conviction and sentence of the Appellant is hereby quashed.
The Appellant is discharged and acquitted and shall be released forthwith from prison custody.
MODUPE FASANMI, J.C.A.: I had the privilege of having read before now the draft of the judgment just delivered by my Lord Dongban-Mensem, JCA.
The facts of the case at the Court below which gave rise to this appeal have been succinctly stated in the judgment of my Lord and I entirely agree with the reasons and conclusions lucidly stated therein.
I abide by the orders contained in the lead judgment accordingly.
CHINWE EUGENIA IYIZOBA J.C.A.: I read before now the judgment just delivered by my learned brother, MONICA B. DONGBAN-MENSEM JCA. The provisions of the law relating to arraignment of an accused person are very important and must be strictly complied with especially where the accused is not represented by counsel. I wrote the lead judgment in the case of CHINEDU EZE VS THE STATE (2015) LPELR-24556(CA) where a similar issue was dealt with. Permit me to reproduce the relevant portion of the judgment:
“Section 215 of the CPL provides:
“The person to be tried upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith.”
From the above, a valid and proper arraignment of an accused person must satisfy the following conditions:
1. He must be placed before the Court unfettered unless the Court shall see cause to otherwise order;
2. The charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court; and
3. He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in Section 100 of the Criminal Procedure Law).
In the case of Ewe v. The State (1992) 6 NWLR (pt. 246) 147, the recording merely said “Accused in Court, pleads not guilty to charge”. Although the appellant pleaded “not guilty” there was nothing on the printed record to show that the charge was read and explained to him as required by Section 215 of the CPA. The Supreme Court which suo motu took up the issue but invited addresses from counsel on the point held that strict compliance with the mandatory provision of Section 215 of the Criminal Procedure Act is a prerequisite of a valid trial and where a trial Court proceeds to try an accused person without strictly complying with the provision of the Section, the trial will be declared null and void. See also Eyorokoromo v The State (1979) 6-9 SC 3; Kajubo v The State (1988) 1 NWLR (pt. 73) 721; Effiom v The State (1995) 1 NWLR (pt. 373) 507; Ogunye vs. State (1999) 5 NWLR (Pt 604) 548; Tobby v. The State (2001) 10 NWLR (pt. 720) 23; Adeniji v The State (2001) 13 NWLR (pt. 730) 375; Debie v State (2007) 9 NWLR (pt. 1038) 30; Okolie v The State (2012)l NWLR (part 1281) 385.
In this appeal, the learned trial judge at page 48 of the record of appeal recorded the plea of the Appellant as follows:
“1st Accused Person: Charge read to him in English language, he said he understood the charge to the satisfaction of the Court, he pleaded ‘Not Guilty’ to the charge.
2nd Accused Person said he understood the charge read to him in English language to the satisfaction of Court. He pleaded ‘Not Guilty’ to the charge”
The second condition in the arraignment procedure is that the charge or information shall be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court. From the above while the charge was read to the accused in English, there is no indication that it was explained to him or that the explanation was to the satisfaction of the Court. The recording here is that the accused said he understood the charge read to him to the satisfaction of the Court. It is not for the accused to say so. It is for the Court itself to be satisfied that the explanation was in order. Mr. Obiagwu had referred us to the case of OKOLIE VS. STATE (unreported CA/L/385/2007 judgment delivered 8th February 2011) now reported in  1 NWLR (Pt. 1281) 385 and argued that the arraignment there followed the same mode as in this case. There, the plea taking as in the present case was a mere paraphrase of the proceedings and recorded thus:
The charge was read to the accused in English Language. The accused says he understands the charge and pleads not guilty to the one count charge”
Mukhtar JCA who delivered the lead judgment observed:
“Although the lower Court might be satisfied that the charge was read over to the appellant and he understood it, his plea ought to have been recorded in the words used by him. The appellant’s plea is so important that it cannot be reduced to mere storytelling. The plea must be recorded exactly in the accused’s own words after reading and explaining the charge to him.
But in the Supreme Court case of Idemudia v State  7 NWLR (Pt 610) 202 (where the record of arraignment read thus: “The accused present in Court. Esowe (Mrs) for the State. Charge read to the accused. On the 1st count the accused pleads as follows: I am not guilty. Accused says his counsel is not in Court.”) Karibi-Whyte JSC at page 222 A – F observed:
“There appears to be a fairly rigid and inflexible approach to the question of non-compliance with the enabling provisions for arraignment. It is conceded that the conditions have been designed and formulated for the protection of the accused and preservation of the constitutional rights of the citizen. Equally, the Courts should not ignore the nature of the rights protected and the preservation of the Courts in their solemn and sacred duty to do justice. There is clearly observable the distinction between a matter of procedure that affects the substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of the trial of the case. In the latter case, it will not affect the trial. It would seem to me that the mandatory provision of Section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with if there is evidence on the record to show that the accused understood the charge and was in no way misled by the absence of explanation ex facie. It is conceded that the subsequent validity of the procedure rests on the validity of the plea on arraignment. However, where there is counsel in the case defending an accused person, the taking of the plea by the Court it ought to be presumed in favour of regularity, namely that even if it was not stated on the record, the charge had been read and explained to the accused on arraignment before the plea was taken. Omnia praesumuntur rite es solemniter esse acta. Accordingly in the absence of proof to the contrary the presumption prevails. See also Section 150(1) Evidence Act.
It does not seem to me that the requirement that the judge should be satisfied that the charge has been read and explained to the accused is one which need to appear in the record and the non-appearance of which affects the justice of the case. It is good practice to so indicate. It is sufficient on the record as a whole if it could be gathered that the accused understood the nature of the charge..
It seems therefore that each case must be considered based on the peculiarities of the particular case. For example in the case of Okolie v The State (Supra) instead of immediately taking the plea of the appellant, the Court embarked on a protracted argument about bail and other issues, before taking the plea. Further, the proceedings of the day where the plea was taken were not signed by the trial Judge rendering it null and void. It was therefore inevitable that the trial be declared a nullity. In the appeal before us, while one may not worry overly about the fact that it was not recorded that the charge was explained to the accused since it was recorded that he said he understood the charge to the satisfaction of the Court. The recording as is may be construed as substantial compliance, given that the accused was represented by counsel. There is also nothing on record to show that the accused did not understand the nature of the charge. On the contrary, it can be gathered from the records that he did understand the nature of the charge.”
The situation in this appeal is much more profound. The Appellant was not represented by counsel. It is very clear from the proceedings of the Court that the Appellant did not appreciate the nature of the charge read to him. Further Section 218 of the Criminal Procedure Act requires the trial judge to record verbatim the exact words used by the accused in pleading guilty to the charge. The learned trial judge simply recorded “Accused person understands the charge and pleads guilty.” In the case of TORRI V. THE NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR- 8142(SC) Rhodes Vivour JSC observed:
“Where an accused person pleads guilty to an offence that does not carry the death penalty, it is desirable but not mandatory that the trial judge satisfies himself that the accused person understands and is admitting the charge and intends to plead guilty. This is done by the trial judge asking questions to ensure that the accused knows what he is doing. After a plea of guilty the Court proceeds to conviction.
This admonition is I believe mandatory where the accused is not represented by counsel. There was nothing on the record to show that the accused knew what he pleaded guilty to. To confound the situation, the learned trial judge, after the plea of guilty allowed the prosecution to call evidence in proof of its case. Two witnesses were called and there was no indication that the accused was given the opportunity of cross-examining the witnesses. I suppose the learned trial judge felt that since he had pleaded guilty, it was unnecessary to give him the opportunity to cross-examine. That should have raised the question in his mind as to the propriety of the procedure adopted. See also DONGTOE V. CIVIL SERVICE COMMISSION PLATEAU STATE (2001) LPELR- 959(SC) Karibi Whyte JSC observed:
“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 upon the accuser to prove the commission of the offence by establishing the burden of proof required by law. – See S. 218 of the Criminal Procedure Act. See also R. v. Wilson (1959) SCNLR 462; (1959) 4 FSC 175. This is because the admission of guilt on the part of the accused had satisfied the required burden of proof.
The procedure adopted by the learned trial judge was wrong. The entire proceedings culminating in the conviction of the Appellant is null and void. For this reason and the more detailed reasons adumbrated in the lead judgment, I also agree that the appeal is meritorious. I also quash the conviction and sentence of the Appellant.
S. Ali Musa with him, Fatiullah Tiamiyu –For Appellant
R.J Hinmikaiye (Assistant Director of Legal Services, NDLEA) –For Respondent