John Timothy V. Federal Republic of Nigeria (2007)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A

In the Federal High Court, holden at Abuja, the Appellant was charged on one-count information as follows:

“That you JOHN TIMOTHY (male) on or about the 20th of November, 2003 at the Nnamdi Azikiwe International Airport, during the in ward clearance of KLM flight No. KL 577 from Amsterdam imported 1.5 kilogrammes of cocaine a narcotic drug, without lawful authority and thereby committed an offence contrary to and punishable under Section 10 (a) of the National Drug Law Enforcement Agency Cap 253 laws of the Federation 1990.”

The facts of this case are that, the Appellant was arraigned on the above stated charge of unlawful importation of cocaine. He initially pleaded not guilty to the charge which was read to him after admitting that he understood same. In the course of trial and after the prosecution had called one witness, at the prompting of the defence counsel, the Appellant indicated his intention to change his plea. The learned trial Judge therefore directed that his plea be taken afresh. The charge was then read to him again and he pleaded guilty to the charge. Some exhibits were tendered by the prosecution both before and after the fresh plea. Based on his plea of guilty and the exhibits in evidence, the Appellant was convicted as charged and sentenced to four years imprisonment by the trial court on 13/1/05.

The Appellant dissatisfied with the judgment of the trial court filed this appeal.

On 15/2/05, the Appellant filed a Notice of Appeal containing one ground. Both the Appellant and the Respondent filed and exchanged their briefs of argument as required by the provisions of the rules of this court.

In the Appellant’s brief, one sole issue was identified from the only ground of Appeal for determination in the appeal. This is as follows:

“Whether the learned trial Judge ought to have convicted the Appellant on his own plea of guilt (sic).”

The Respondent in his brief equally formulated one sole issue for determination in the appeal. It is as follows:

“Whether the learned trial Judge was right in convicting the Appellant based on his plea of guilty.”

At the hearing of the appeal on 6/2/07, the learned counsel for both parties adopted their respective briefs accordingly.

The sole issue formulated by the Appellant and that identified by the Respondent for determinations in the appeal are akin although couched differently. I prefer the couching of that formulated by the Respondent and I shall adopt it accordingly. See the cases of:

(1) Ikegwuoha V. Ohawuchi (1996) 3 NWLR (pt. 435) p. 146 and

(2) Aduku V. Adejoh (1994) 5 NWLR (Pt.346) p. 582.

Learned counsel for the Appellant submitted that the learned trial Judge ought not to have convicted the Appellant on his own plea of guilty. Referring to the judgment of the trial court and the provisions of Section 218 of the Criminal Procedure Act, Cap. 80, Laws of the Federation of Nigeria, 1990. (Herein after referred to as the CPA), he contended that from the record of appeal, it is crystal clear that the learned trial Judge failed to adhere strictly to the provisions of Section 218 of the CPA to the effect that an accused person ought to understand the charge preferred against him and the court must also be satisfied that the accused understood the charge.

When the plea of the Appellant was taken initially, there was compliance with the provisions of Section 218 but with respect to the second plea, there was non-compliance with those provisions of the law because the charge was not explained to the Appellant. The trial court did not ask him if he admitted all the facts alleged by the prosecution at the stage of the trial when his plea was taken the second time. He relied on the cases of:

(1) Osuji V. I.G.P. (1965) LLR p. 143 and

(2) Ahmed V. Commissioner of Police (1971) NMLR p. 409.

All the facts stated by the prosecution in respect of a charge against an accused person must have been duly admitted by the accused person in order to sustain the charge against the accused person on those admitted facts. He relied on the case of:

Idan V. Police (1964) NMLR p. 103.

The Appellant’s counsel argued further that the Appellant was charged and convicted contrary to the provisions of section 10 (a) of the National Drug Law Enforcement Agency, Cap. 253, Laws of the Federation of Nigeria, 1990, a non-existing law. On a close scrutiny, the word “Act” is missing from the law under which the Appellant was charged and convicted thereby making the conviction also a nullity. The learned trial Judge wrongly pronounced the conviction and sentence of the Appellant under Section 10 of the law and without specifying the relevant sub-section (a). This renders both the conviction of and sentence passed on the Appellant invalid.

Learned counsel for the Appellant contended that the learned trial Judge was wrong to have convicted the Appellant on the Appellant’s plea of guilty, the prosecution having failed to prove that the alleged drug, Exhibit “C” which was used in evidence against the Appellant was kept in safe custody before it was sent for scientific analysis. There existed therefore a very strong probability that Exhibit “C” had been tampered with. He relied on the cases of:

(1) Ishola V. The State (1969) NMLR p. 259 and

(2) Ashake V. The State (1968) 2 All NLR p. 198.

He also relied for purposes of persuasion on the Book, Criminal Procedure in Nigeria Law and Practice by Oluwatoyin Doherty, 1999 Edition, in paragraph 2 at page 555. The contention was based on the fact that the Appellant was arrested on 20/11/03. Exhibit “C” was sent to the laboratory for analysis on 17/12/03 about one month after the arrest of the Appellant and it was analysed on 15/1/04, eighteen days after it was sent for the analysis. In the absence of absolute certainty that it was the actual cocaine drug that was recovered from the Appellant that was tendered in evidence against him, the evidence of PW1, and the expert in that regard cannot properly in law ground the conviction of the Appellant?

Replying, learned counsel for the Respondent submitted that there was compliance with the provisions of Section 218 of the CPA by the trial court. The pertinent consideration where an accused pleads guilty as in the instant case is that, the court must satisfy itself that such an accused intended to admit the truth of all the essentials of the offence with which he was charged before he was convicted. It is settled law that where an accused person from the records of the case is seen to understand English Language as in the instant case, then it is not necessary though it will be good practice to record the fact that the charge was read and explained to him. However, failure to record the fact that the charge was read and explained to the accused will not amount to a miscarriage of justice. He relied on these principles of law on the cases of:

(1) Durwode V. The State (2000) 4 NSCQR p. 33 at pgs. 42- 43 and

(2) Adeniji V. The State (2001) 6 NSCQR p. 656 at pgs. 662 – 664.

It is also a settled principle of law that an appeal against conviction where an accused pleaded guilty to a charge will only succeed if it is shown that the accused did not understand the charge or intended to plead not guilty or that upon the admitted facts the accused could not in law be convicted. He relied on the case of:

Duah V. C.O.P (1950) 13 WACA p. 85.

Where an accused was represented and there is no objection by a counsel on the procedure of taking his plea, there is a presumption of regularity that all that must be done to let the accused know the charge against him has been done. He relied on the case of:

Okeke V. State (2003) 2 SCNJ p. 199 at p. 211.

Continuing, learned counsel for the Respondent canvassed that the conviction of the Appellant by the trial court was neither based on any irregularity nor did it occasion any miscarriage of justice so as to warrant its nullification in view of the fact that, the Appellant was represented by counsel during the trial and on the occasions his pleas were taken. The Appellant spoke English Language at all times during his trial. The change of plea was equally initiated by him and he understood the full implication of his action. What is more, it was the charge which was read and explained to him at the commencement of the trial when he initially pleaded not guilty that was read to him again when he subsequently decided to change his plea and pleaded guilty. His plea of guilty was also consistent with the facts of the case particularly his traveling documents and confessional statements. The trial court being fully satisfied that the Appellant intended to admit the truth of the charge of unlawful importation of 1.5. Kilograms of Cocaine was right in convicting him on the basis of the subsequent plea of guilty.

Furthermore, the Respondent’s counsel contended that the charge against the Appellant fully disclosed the particulars of the offence as well as the existing law under which he was charged. The mere omission of the word ‘Act’ in the charge was not in any way fatal to it because the chapter and indeed the other details of the enactment were cited. The Appellant was therefore charged under a known law. Learned counsel referred to the provisions of Section 74(a) & (b) of the Evidence Act which require courts to take judicial notice of Laws, Legislations and Acts of National Assembly. The charge as framed did not mislead the Appellant in any way. If there was any irregularity in the charge, this did not prejudice the Appellant as to occasion a miscarriage of justice. He relied on the cases of:

(1) Bankole V. The State (1980) 1 NCR p. 334;

(2) Inajo & Ors V. The State (1980) 1 NCR p. 170 and

(3) Olowosale V. Customs & Excise Board (1981) 2 NCR p. 401.

The irregularity complained of cannot then invalidate the charge, trial and conviction of the Appellant who knew the nature of the offence with which he was charged and tried.

Learned counsel for the Respondent further enumerated the Exhibits that were tendered at trial and the evidence of Pw1. It was his view that there was a nexus which clearly established a chain of the custody of the drugs recovered from the point of recovery through the time of analysis and up to the time the drugs were tendered in evidence in the trial court. The traveling documents confirmed that the Appellant was returning from Surinam via Amsterdam when he was arrested at the Nnamdi Azikiwe International Airport, Abuja. All these pieces of evidence were further corroborated by the confessional statements of the Appellant that upon arrest he was taken to the NDLEA office where he excreted the drugs earlier on ingested by him. Upon the excretion of the substance, it was immediately tested, packed and sealed in his presence before they were sent out for further analysis. There is a presumption of regularity of the procedure in that the Appellant who was duly represented by a counsel failed to challenge the production of the evidence. It is trite law that unchallenged evidence is deemed to be conclusive proof of the facts to which they relate. He relied on the cases of:

(1) Okeke V. State Supra;

(2) Provost LACOED V. Edun (2004) All F.W.L.R. (Pt. 201) p. 1628 at pgs. 1642 -1643 and

(3) Aigbadion V. The State (2001) 2 ACLR p. 48 at p. 63.

The trial court was therefore right in finding the Appellant guilty of the offence of importation of cocaine without lawful authority as the facts of the case established the offence and are in tandem with his plea of guilty.

From the above enumerated submissions of learned counsel for both parties it is evident that the gravamen of the Appellant’s compliant is that his plea was not taken in accordance with the procedural law, that is, Section 215 of the CPA as regards his second plea of guilty. The law on the procedure on arraignment of an accused person and the taking of his plea is established. Section 215 provides as follows:

“215. Pleading to information or charge

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 of 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 been duly served therewith.”

For there to be a proper and valid arraignment of an accused person and the taking of his plea in accordance with Section 215 of the CPA, the following guidelines must be adhered to, that is:

(a) that the accused person to be tried shall be placed before the trial court unfettered; and

(b) the charge shall be read and explained to him in the language he understands to the satisfaction of the trial court by the registrar of the court or other officer of the court; and

(c) the accused person shall then be called upon to plead instantly to the charge; and

(d) The plea of the accused shall also be instantly recorded.

The requirements of Section 215 are mandatory and not directory as they are preceded by the word “shall” and failure to comply with any of them in a criminal trial will render the whole proceedings a nullity. Where therefore the plea of an accused person was defectively taken, this will amount to a violation of the statutory provisions of Section 215. The whole trial, conviction and sentence passed on the accused person based on such a defective plea will equally amount to a nullity. See the cases of:

(1) Eyorokoromo V. State (1979) 6 – 9 SC p. 3;

(2) Kajubo V. State (1988) 1 NWLR (Pt. 75) p. 721;

(3) Tobby V. State (2001) 10 NWLR (pt. 720) p. 23;

(4) Rural V. State (2001) 13 NWLR (pt. 731) p, 718;

(5) Amala V. State (2004) 12 NWLR (Pt. 888) p. 520 and

(6) Solola V. State (2005)11 NWLR (Pt. 937) p. 460.

Section 33(6) (a) of the Constitution of the Federal Republic of Nigeria, 1979, which states that every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail the nature of the criminal offence with which he is being charged. Although this requirement of law concerns the first stage at which time an accused is charged, it is also a reinforcement of Section 215 of the CPA in order to guarantee fair hearing and trial of an the accused. See the cases of:

(1) Amala V. State supra and

(2) Solola V. State supra.

The Appellant’s initial plea as accused in the trial court was taken. The record shows that he spoke English Language. His confessional statement was written by himself in English Language, as in pages 4 and 4a of the Supplementary record. The charge was read to him in English Language in the first instance-see page 1 of the record. He is not complaining about his initial plea but about the taking of his second plea of guilty. I cannot find anywhere on the face of the record showing that when the Appellant on his own volition changed his plea from that of ‘not guilty’ to ‘guilty’, the charge read to him was different from the one read to him when his plea was first taken. It was the same charge, not an altered or amended charge that was read to him on the second occasion. The charge was also read to him in the same English Language on that second occasion-see line 7 at page 12 of the record.

The Appellant has complained that the charge was not explained to him with respect to his second plea of guilty and the learned trial Judge was not satisfied that he understood the charge because the learned trial Judge did not ask him if he admitted the evidence adduced thus far by the prosecution before he was convicted based on his plea of guilty pursuant to the provisions of Section 218 of the CPA. The Section provides that:

“218. Effect of plea of not guilty

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 truth of all the essentials of the offence of which he has pleaded guilty, the court shall convict him of the offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.”

The law is trite that where the accused understands the language of the court, which is English, it becomes unnecessary to record that fact. It is only where the accused obviously does not understand the language of the court that the law places a burden on the court to put on record the language spoken by the accused and the fact that the charge was read over and explained to him in that language. It is however good practice to ask the accused the question whether he understood the charge as read and explained and to record his answer. Although the omission to expressly do so would not constitute non-compliance with the constitutional and procedural requirements. It is sufficient as a whole if it could be gathered that the accused understood the nature of the charge and that he intended to plead either guilty or not guilty to the charge. See the case of:

Adetunji V. State (2001) 13 NWLR (Pt.730) p. 375.

Where it is contended on appeal that a charge was not read and explained to an accused person to the satisfaction of the trial court, then it must be shown that the Judge in whose presence a charge was read and explained to the accused person in the language of the court common to all the parties in court did not understand the charge as read and explained to the accused person. This is because by virtue of the provisions of Section 150(1) of the Evidence Act, when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. Moreover, by the legal maxim “omnia praesumuntur rite et Solemniter esse acta donee probetur in contrarium” there is a legal presumption that judicial and official acts have been rightly and regularly done until the contrary is proved. In the instant case, the Appellant understood English language and this is evident on the record. He wrote his confessional statements in English and when the charge was read to him in the first instance, he said he understood it and made his plea in English. The same charge was read to him again in English when he decided to change his plea. The trial proceeded after his first plea of not guilty was taken in his presence whereby the prosecution adduced cogent evidence against him. On his own motion and application, he changed his plea to that of guilty. The omission by the trial court to again state that the charge was explained to him and that it was satisfied that the Appellant understood the charge is absolutely of no moment. There is nothing in Section 215 or section 218 of the CPA or any other enactment which says that the trial Judge must put on record his thought that he was so satisfied. Such requirement will amount to absurdity. It is a matter of common sense.

This requirement is one of the Judge’s procedural rules. Noncompliance with it is not fatal to trial and conviction. The law is settled that, it is sufficient for the record of the court to show that the charge was read over and explained to the accused and the accused pleaded to it before the case proceeded to trial. In which case it is to be presumed that everything was regularly done and that the Judge was satisfied. Of course, the Judge being in the position of a reasonable man is expected to be satisfied that the accused understood not only the charge against him but also the procedure at his trial as required by law.

In the instant case, the arraignment and the trial of the Appellant before the trial court was not only judicial and an official act, it was ‘ex facie’ and carried out in a manner which was substantially regular. The Appellant has failed to rebut this presumption by showing that the trial Judge did not actually understand the charge as read to him or that he, the Appellant did not comprehend the procedure employed at his trial. What is more, the Appellant was represented by a counsel on the two occasions his pleas were taken and throughout his trial. Neither himself nor his counsel objected to non-compliance with or demanded for such interpretation. An accused person who acquiesced to an irregular procedure at his trial cannot turn round to complain about the irregularity on appeal, especially if the alleged irregular procedure did not lead to a miscarriage of justice. The Appellant has therefore not shown that a reasonable person who was present at the trial might have supposed that the procedure at his trial was defective to such an extent as to deny him a fair trial or occasioned a miscarriage of justice to him. See the cases of:

(1) Uwaekweghinya V. State (2005) 9 NWLR (Pt. 930) p.227;

(2) Udo V. State (2005) 8 NWLR (Pt. 928) p. 521 and

(3) Adeniji V. State (2001) 13 NWLR (Pt. 730) p.375.

The system of criminal justice in Nigeria requires that the contents of a charge should not be subject of speculation and inference; rather, the essential ingredients of the offence must be disclosed in the charge. This is an inalienable right of an accused person-see Section 36(6) of the 1999 Constitution.

The question to ask always is: did an accused person understand the compliant against him? In the instant case, the Appellant in my opinion throughout the proceedings clearly understood and knew the compliant against him. If it were not so, he ought to have protested vide his counsel at the earliest opportunity and at the time he was being tried in the lower Court. Indeed, it is my firm view that the fact of his clear understanding of the charge and the evidence adduced by the prosecution informed his change of mind to withdraw his earlier plea of not guilty. Thereafter, he pleaded guilty as he deemed appropriate. The omission of the word “Act” from the citation of the law under which the Appellant was charged is an irregularity, it is however not fatal so as to void his trial and conviction. I agree with the submission of learned counsel for the Respondent that the irregularity in the charge did not prejudice the Appellant as to occasion a miscarriage of justice to him. Nobody, certainly not the Appellant or his counsel was misled by the words used in the charge. What is more, the offence with which the Appellant was charged is known to law and understood by him. The irregularity is equally curable in law by virtue of the provisions of Section 166 of the CPA which state that:

“166. No error in stating 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 infact misled by such error or omission.

See the case of: F.R.N V. Ifegwu Supra.

The Appellant complained also that the drug, cocaine, Exhibit C allegedly recovered from him was not established by the prosecution to have been kept in safe custody before it was sent for scientific analysis. That there was the possibility that it was tampered with or substituted with another substance. That his conviction on the evidence of the expert, Pw1 in this regard and his plea of guilty was improper and therefore a nullity.

Upon a perusal of the record, it is very patent that the Appellant did not object to the tendering in evidence of the drug recovered from him that is, Exhibit C, he also did not object to the tendering in evidence of the vital documents relating to the analysis carried out on the substance. The drug was packed in his presence, sent for analysis and it was shown to him before and after the analysis. He endorsed all the relevant documents in that regard. See lines 2, 6 and 9 at page 9 of the record. This is buttressed by his confession at pages 4 – 4a of the supplementary record. The complaint of the Appellant in this regard is purely an afterthought. He should not and can not be allowed to approbate and reprobate at the same time. Having voluntarily pleaded guilty to the charge at trial, he cannot now make a different case on appeal.

The trial court was alleged to have failed to call upon the Appellant to ask if he admitted all the evidence adduced by the prosecution before his plea of guilty was taken and that this is a contravention of the provisions of Section 218 of the CPA. The law however is that after a plea of guilty by an accused in non-capital offences cases, the court must formally proceed to conviction without calling upon the prosecution to prove the commission of the offence by establishing the burden of proof ordinarily required by law. This is because the admission of guilt on the part of the accused has satisfied the required burden of proof. In the instant case, the Appellant’s plea of guilty was properly taken thereby making his arraignment a valid one. The learned trial Judge was therefore right in proceeding to convict and sentence the Appellant as he did. It became an absolutely unnecessary exercise proceeding further with the evaluation of the evidence already adduced, neither was it needful for the prosecution to continue to adduce further evidence in the pursuit of establishing that the Appellant committed the offence with which he was charged. See the cases of:

(1) Dangtoe V. C.S.C Plateau State (2001) 9NWLR (Pt. 717) p. 132 and

(2) R. V. Wilson (1959) SCNLR p. 462.

Nowadays, the courts have shifted away from the orthodox method of narrow technical approach to justice. The weight of judicial opinion is now predominantly in favour of the court doing substantial justice rather than undue adherence to rules of court and technicalities. It is therefore only where there was a substantial error which has occasioned a miscarriage of justice that the appeal court will interfere. See the cases of:

(1) Osalumhense V. Agboro (2005) 16 NWLR (Pt. 951) p. 204 and

(2) Ejeka V. State (2003) 7 NWLR (Pt. 819) p. 408.

I have not found in the printed record any appearance of or sufficient cause to contradict the decision of the trial court convicting and sentencing the Appellant as charged.

Consequent upon the foregoing process of deduction, I hold that the omission of the trial court to have on its record that the charge was read over, explained to the Appellant to its satisfaction and the omission of the word “Act” in the citation of the statute stipulating the offence with which he was charged were not fatal to the charge, trial, conviction, sentencing of the Appellant. No miscarriage of justice was thereby occasioned to the Appellant. He was not misled in anyway by the words of the charge and the procedure at his trial. He was duly represented by counsel throughout his trial and acquiesced to the complaints now being raised by him in this appeal. To allow this appeal on these complaints will amount to leaning more on the side of technicality.

After a thorough consideration of the sole issue involved in this appeal, I resolve it in favour of the Respondent. I find no just reason to interfere with the decision of the trial court. The appeal therefore lacks merit and it is dismissed accordingly. The judgment of the trial Court is hereby affirmed. I also affirm the conviction and sentence of the Appellant.

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Other Citations: (2007)LCN/2376(CA)