Emma Amanchukwu V. The Federal Republic of Nigeria (2006)
LawGlobal-Hub Lead Judgment Report
UDOM-AZOGU, J.C.A.
This is an appeal against the judgment and sentence of R. N. Donli J. delivered on 4th October, 1990 at the Miscellaneous Offences Tribunal sitting in Kano. The charge is reproduced hereunder:
“The Attorney-General of the Federation hereby charge you Emma Amanchukwu as follows:
That you Emma Amanchukwu on or about the 6th day of August, 1990 at Mallam Aminu Kano International Airport, Kano during the inward clearance of flight KL 585 imported 600 grammes of heroine by concealing same in his body without lawful authority and thereby committed offence contrary to and punishable under section 10(a) of the National Drug Law Enforcement Agency Decree No. 48 of 1989.”
Records show that on the 4th day of October, the accused was in court and opted to speak English. The Prosecution Counsel M. A. Dunion with A. O. Oduguwa were in court too. On the issue of counsel for the accused the following transpired between the accused and the tribunal.
“Tribunal: The accused has a right to engage counsel of his choice.
Accused: I understand. I have no lawyer and no money to engage one.”
The Court notes continue,
“Tribunal: Charge read and explained to the accused in all material particular details and effects. Section 10 of National Drug Law Enforcement Agency Decree No. 48 of 1989 read and explained.
Tribunal: Do you understand the charge and all its particular details and effects?
Accused: I understand the charge.
Tribunal: Are you guilty or not guilty.
Accused: I am guilty.”
Prosecution: We have received forensic report in this case and admitted same-in the proof of evidence. I intend to call a witness to tender the report.
Tribunal: Case stood down for prosecution to call a witness.
Later on the same day, the seeming drama continued thus:
Tribunal: “Have you been served with proof of evidence including the forensic report and the charge?
Accused: I have been served.
Prosecution: We apply to tender the original report from the Bar.
Tribunal: Application granted.
Accused: No objection.
Tribunal: Report admitted. Show the accused the report.
Accused: I have read the report. I accept it.
Tribunal: Do you want the Government Chemist who issued the Report to be called for you – accused?
Accused: I accept the report. I do not want him to be called.
Tribunal: Charge read in all its material particular details and effects.
Section 10(a) of National Drug Law Enforcement Agency Decree No. 48 of 1989 read.
Tribunal: Do you understand the charge?
Accused: I understand the charge.
Tribunal: We are satisfied that the accused has understood the charge in all its material particular details and effects.
Tribunal: Are you guilty or not guilty?
Accused: I am guilty.”
The tribunal then proceeded to sentence the accused under Rule 3(2) of the Miscellaneous Offences Tribunal Rules of Practice 1984 and convicted the accused under section 10(a) of National Drug Law Enforcement Agency Decree No. 48 of 1989 and sentenced him to life imprisonment that is, not less than 25 years and forfeited his passport and assets to the Federal Military Government.
It is against this judgment and sentence of life imprisonment that the appellant has appealed. In summary, on 6th August, 1990 at the Mallam Aminu Kanu International Airport, Kano, the appellant was found to have imported 600 grammes of heroine which he concealed in his body. He was arraigned before the Miscellaneous Offences Tribunal sitting in Kano on one count charge, reproduced supra, of importing 600 grammes of heroine by concealing same in his body contrary to section 10(a) of the National Drug Law Enforcement Agency Decree No. 48 of 1989. The charge was read to him in English and he said he understood it. He pleaded guilty to the charge, and was sentenced to life imprisonment.
The contentious aspect of this case is that the appellant went through this very grave case without counsel. When he was reminded that he was entitled to counsel of his choice, he said he had no money to retain Counsel. It may be necessary at this stage to reproduce the law under which the appellant was tried and convicted; that is section 10(a) of the National Drug Law Enforcement Agency Decree No. 48 of 1989. It reads thus:
“Any person who without lawful authority –
(a) imports, manufactures, produces, processes, plants or grows the drug 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 ground of appeal with particulars is reproduced hereunder:
- The learned trial Judge erred in law when he convicted and sentenced the appellant to life imprisonment without ensuring the accused understood the details of the offence or affording him the opportunity of legal representation in total disregard to the issue of fair hearing and thereby occasioned a miscarriage of justice.
Particulars of Error
(i) The principles of fair hearing which provides that the appellant should be given an opportunity to defend himself in person or by a counsel of his choice were breached.
(ii) The provisions of section 36 of the 1999 Constitution of the Federal Republic of Nigeria 1999 were breached by the trial court.
(iii) The failure of the tribunal to rule either way on the application or desire of the appellant to engage a counsel but for lack of money for such a serious charge.
(iv) The learned trial Judge was not convinced or satisfied that the appellant understood the charge and or the gravity of the offence read out to him which he pleaded guilty and so re-read the charge.
(v) The seriousness of the offence and the gravity of the sentence make it mandatory for the trial Judge to allow and/or provide the appellant with legal representation.”
Learned counsel for the appellant Oladipo Okpeyesi Esq. of Chief Ajibola Aribisala SAN Chambers articulated one issue for determination thus:
“Whether the appellant’s right to fair hearing was not breached when the learned trial Judge convicted and sentenced the appellant to life imprisonment without affording him the opportunity of legal representation.”
He argued that the rules of natural justice were not observed. He submitted that the trial Judge was in error when he convicted and sentenced the appellant to life imprisonment without ensuring that he, understood the details of the offence and or affording the appellant an opportunity of engaging a counsel to defend him and thereby breached the appellant’s right to fair hearing. He argued that when the Tribunal asked the accused whether he understood the charge and all its particular details and effects and he answered, “I understand the charge”, the interpretation was that he understood only the “charge” and not “all its particular details and effects.” He argued that that being the case, the learned trial Judge ought to have cleared the issue having regard to section 215 of the Criminal Procedure Act and section 36(1) and (2) of the 1999 Constitution. He ought to have entered a plea of “not guilty” despite the fact that the appellant pleaded guilty to the charge. In order to determine whether or not the right of fair hearing of the accused has been breached, reference to section 36(1) of the 1999 Constitution and 215 of the Procedure Rules is imperative. Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria provides:
“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.”
Section 215 of the Criminal Procedure Act provides:
‘The person to be tried upon any charge or information shall be placed before the court unfettered and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or officer of the court and such person shall be called upon to plead instantly thereto, unless where a person is entitled to 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.”
By the combined effect of section 33(6)(a) of the 1979 Constitution which is pari materia with section 36(1) of the 1999 Constitution and section 215 of the Criminal Procedure Law, a valid and proper arraignment has been given judicial interpretation in the case of Idemudia v. State (1999) 7 NWLR (Pt.610) 202 at 204-5. In that case it was held that a valid and proper arraignment must satisfy the following requirements:
“(a) the accused person must be placed before the court unfettered, unless the court has cause to otherwise order;
(b) the charge or information must be read over and explained to the accused in the language he understands to the satisfaction of the court by the registrar or other officer of the court; and
(c) the accused person must then be called upon to plead instantly thereto.
The three requirements must co-exist and failure to comply with any of them will render the whole trial a nullity.”
See also Kajubo v. State (1988) 1 NWLR (Pt.73) 721 where the charge was read and the appellant pleaded thereto. In the instant case, where accused was asked by the Tribunal whether he understood the charge and he said he understood and asked whether he was guilty or not guilty and he said without hesitation that he was guilty, one is at a loss to fathom the argument of appellant’s counsel that the question, do you understand the “charge” does not include “all its particular details and effect.”
It must be noted that the law is that the charge must be read and explained to the accused in all its particular details and effect. Section 10(a) of the Drug Law Enforcement Decree reproduced supra, clearly states the particulars of the offence and the resultant effect of breaching thereof i.e. life imprisonment. I had earlier reproduced what transpired in court. When the accused was asked whether he understood the charge, he said he did. When the forensic report was tendered from the bar, which one would have thought would have given the accused an opportunity of cross-examining the Government Chemist who analyzed it, “lo and behold”, he pointedly and without equivocation said he did not want the Government Chemist to be produced. He said he had read the report and understood it. The learned trial Judge went out of his way to ask the accused whether he understood the charge in all its particulars and details and in addition read the relevant law – Section 10(a) of the Law Enforcement Agency Decree of 1989 to his hearing. When the court put the question, “are you guilty or not guilty”? Again without hesitation he replied “I am guilty.” It is my view that after all that transpired in the court room, it would have been perverse if the Judge had entered a plea of “not guilty.”
The Law also requires that the charge in all its material, particulars should be read to the satisfaction of the court. The court was satisfied as stated on the records. Besides, it is trite that an accused person who does not know or understand the nature of the offence with which he is charged and who was subsequently convicted, cannot be said to have had a fair trial. See Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385 at 393. That is not so in the instant case.
On the issue of counsel of accused choice, it is on record that the trial Judge reminded the accused that he is entitled to counsel of his choice, but where he is denied bail and access to counsel of his choice, therefore making it difficult for him to prepare for his defence, it constitutes a complete violation of his right of fair hearing as enshrined in section 36 of the 1999 Constitution of the Federal Republic of Nigeria. See Yakubu v. Chief of Naval Staff (2004) 1 NWLR (Pt. 853) 94.
Learned counsel for the appellant further submitted that the trial court ought to have exercised its discretion by adjourning the matter to enable the appellant make effort to secure the services of a counsel. In the alternative the learned trial Judge ought to have directed the State to liaise with the Legal Aid Council to avail the appellant of the services of Legal Officer in view of the gravity of the offence. He contended that if the appellant knew that he would be sentenced to life imprisonment and have all his assets forfeited, which was not what was read to him, the situation would have been different. All I can say is that after reading Section 10(a) of NDLEA and the accused did not appreciate the consequences of the offence, then telling him that his assets would be forfeited would not have had any impact on him.
The most intriguing aspect of the appellant’s brief reads: “The appellant pleaded guilty with the hope, belief and assumption that he would be given a lesser term of imprisonment and therefore decided not to explore to the fullest the legal option available to him. Learned prosecution counsel interpreted it as follows:
“(a) It shows the appellant actually understood the charge before he pleaded thereto but only hoped, believed and assumed that the presiding Judge would use his discretion to impose a lesser sentence on him.
(b) It also shows at the appellant though aware of the legal options available to him including engaging a counsel of his choice decided not to explore those options.”
I agree with the respondent’s counsel that that statement in appellant’s brief is a clear admission of the prosecution’s contention that the trial was conducted as required by law. Indeed it is a clear admission that the complaint of the appellant is nothing other than hypocritical. It amounts to blowing hot and cold and approbating and reprobating. How on earth can the appellant assume that the trial Judge would exercise his discretion to mete out a lesser sentence? As Shakespeare said, “there is no art to read the mind’s construction in the face”. The conduct of the appellant amounts to taking a huge risk. He is estopped from complaining. In the case of Total (Nig.) Plc. v Victoria Island & Ikoyi Residents Association (VIIRA) (2004) 7 NWLR (Pt. 873) 446 the nature of right to fair hearing and the need for strict adherence was explained.
Fair hearing was described as demanding inter alia, that all parties to a suit be given adequate opportunity to be heard on any matter in dispute between them. It is a fundamental concept which is enshrined in S. 36 of the 1999 Constitution and must be strictly adhered to. Where a person who has a right enuring to his benefit intentionally gives up his right he would be deemed to have waived his right and cannot therefore complain that he was not permitted the exercise of his rights. In Total Nig. Plc. supra, an appellant’s counsel who had 48 hours under the court Rules to react but decided to go on with the matter without taking advantage of the 48 hours, was deemed to have waived the appellant’s right. See Ariori v. Elemo (1983) 1 SCNLR 1.
Learned Counsel for the appellant contended that appellant’s right to fair hearing was breached and this vitiates the entire proceedings. He finally submitted that denial of legal representation for the appellant as enshrined in section 36(6)(a), (b) and (c) of the 1999 Constitution greatly hampered his defence as he virtually agreed and admitted whatever the prosecution tendered and could not have adequately prepared for his defence. When placed along side his earlier submission that the appellant pleaded guilty with the hope, belief and assumption that he would be given a lesser term of imprisonment and therefore decided not to explore to the fullest the legal options available to him, it makes nonsense of the complaint of non-representation. Does this not square up with the Shakespearean expression – “The fault dear Brutus is not in ourselves but in our stars.?” It certainly does. His predicament is certainly of his own making.
On his part, the respondent adopted appellant’s issue for determination and submitted that before the charge was read over to the appellant the trial Judge duly informed him of his right to engage a counsel of his “choice” but the appellant opted to defend himself in person. He emphasized section 36 (6)(c) where it is provided that the accused can defend himself in person or by a legal practitioner of his own choice. It is apparent from the answers to the questions put to the appellant by the Tribunal that he decided to defend himself. That is the provision of the Constitution. There is nothing wrong with an accused person defending himself if he so wishes. He submitted that the court is not enjoined to speculate on the possibility of an accused person requiring the services of a legal practitioner when he has not so indicated. He cited Aiguoreghian v. State (2004) 17 NSCQR 442; (2004) 3 NWLR (Pt.860) 367; where the Supreme Court held “a court of law is not permitted to speculate whether in civil or criminal proceedings”. See also Ihemegunam Onyegbu v. State (1998) 1 ACLR 386 at 392-393; (1995) 4 NWLR (Pt.391) 510.
Where an accused person consented to the procedure adopted against him (as in the instant case) and he in fact suffers no injustice, he is estopped from complaining on appeal. He submitted that the onus is on the appellant to prove that his plea to the charge would have been different if he had been represented by counselor that he was denied fair hearing or that there was a miscarriage of justice.
See section 142 of the Evidence Act.
This, is in view of the fact that the plea of guilty is in line with his confessional statement where he admitted his guilt.
The respondent finally submitted that from the totality of the transaction during the trial of the appellant, as contained in the record of proceedings it is apparent that all the requirements of the rules of natural justice had been complied with. There were no procedural defects in the proceedings which would result in miscarriage of justice resulting in nullification of the proceedings. See Total (Nig.) Ltd. & Anor v. Wilfred Nwako & Anor. (1978) 5 SC 1 at 14 and State v. Godfrey Ajie (2000) 3 NSCQR 53 at 55; (2000) 11 NWLR (Pt.678) pg. 434. The true test of a fair hearing as stated in Mohammed v. Kano Native Authority (1968) 1 All NLR 424 is, “the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case”. Fair hearing in the con of section 36 of the 1999 Constitution therefore encompasses fair hearing in the narrow technical sense of the twin pillars of justice, that is, audi alteram parterm and nemo judex in causa sua, as well as in the broad sense of what is not only right and fair for all concerned but also seems to be so. See Etim v. Registered Trustee P.C.N (2004) 11 NWLR (Pt.883) 79.
In the final result, it is my view that the judgment of the learned trial Judge cannot be faulted. The appeal lacks merit and is hereby dismissed. However the court cannot lose sight of the fact that this offence was charged and tried under a Draconian Decree during the military regime whereas we are now in a democracy. We cannot lose sight of the trial Judge’s comments while sentencing the accused:-
“We have taken into account the plea of leniency and the fact that the convict is a first offender. We have watched the demeanor of the convict and think he looked sorry for what he has done.”
We also note the recommendation of the trial Judge that the sentence be remitted to 15 years imprisonment. Since the accused has served over 15 years, we recommend very strongly that his case be referred to the Attorney-General of the Federation who will bring it to the notice of the President of the Federal Republic of Nigeria for reprieve under the prerogative of mercy pursuant to section 175(1) of the Constitution of the Federal Republic of Nigeria 1999.
Other Citations: (2006)LCN/1986(CA)
