Emma Amanchukwu V. The Federal Republic Of Nigeria (2009)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, J.S.C

The appellant was arraigned before the Miscellaneous Offences Tribunal, Kano on a charge of importing 600 grammes of heroin by concealing same in his body without lawful authority contrary to section 10 (a) of the National Drug Law Enforcement Agency Decree No.48 of 1989.

The appellant pleaded guilty to the charge. In his plea of leniency, the appellant said:

“It was poverty that made me to commit the offence. My shop was burnt down. I am pleading for leniency.”

In answer to a question by the Tribunal whether he wanted the government chemist who issued the forensic expert Report to be called, appellant answered in the negative as follows:

“I accept the report. I do not want him to be called”

The Tribunal sentenced him to imprisonment for 15 years. He appealed to the Court of Appeal. The court dismissed the appeal. He has come to this court. Briefs were filed and exchanged. Appellant formulated the following issue for determination:

“Whether learned Justices of the Court of Appeal gave adequate consideration to the appellants right to fair hearing as enshrined in section 33 (b) and (c) of the 1979 Constitution before affirming his conviction and sentence.”

The respondent formulated the following issue for determination:

“Whether the lower court was right in affirming the conviction of the appellant”

I do not think I will deal with any of the issues above. The only issue I will consider here is whether an appeal is still available to the appellant having served the sentence of 15 years imprisonment. See page 58 of the Record. Both counsel agree that the appellant has served out his term of imprisonment. Why then this appeal, I ask. It is the submission of his counsel that the appeal is to retrieve his good name. This is quite a unique one. The appeal is essentially academic and courts of law do not deal with academic matters. In the circumstances, the appeal fails and it is dismissed. As the appellant has served out his term of imprisonment, I will not sentence him to another term, as that will be against the principle of double jeopardy.

G. A. OGUNTADE, J.S.C: The appellant had been arraigned before the Miscellaneous Offences Tribunal, Kano on an offence of importation of 600 grams of heroin contrary to Section 10(a) of the National Drug Law Enforcement Agency Decree No. 48 of 1989. There is no doubt that it is a very serious offence and punishable with life imprisonment. When he was first brought before the tribunal on 4-10-90, the tribunal in recognition of the serious nature of the offence remarked:

“The accused has a right to engage counsel of his choice.”

The appellant reacted by saying:

“I understand. I have no lawyer and no money to engage one.”

It seems to me that the trial tribunal ought to have at that stage initiated efforts to have counsel assigned to the appellant to defend him. But this was not done. The appellant subsequently pleaded guilty. Just before he was sentenced, the appellant stated that he understood the charges as read to him by the court clerk and in mitigation of the punishment added:

“It was poverty that made me to commit the offence. My shop was burnt down. I plead for leniency.” In sentencing the appellant, the trial tribunal observed:

“We have taken into consideration the plea for leniency and the fact that the convict is a first offender.

We have also taken into account the quantity of drug the convict had in his person on the date in question. This type of offence is now rampant in Kano as not less than VI cases of this kind had been filed before us for this session. That must be taken into account.

We have watched the demeanour of the convict and think he looked sorry for what he has done. However the convict must be punished to deter others from committing similar offence. The punishment for this offence is life imprisonment, that is to say not less than 25 years. We sentence him to life imprisonment.

We however recommend that the sentence be remitted to 15 years imprisonment and sentences are subject to an appeal within 14 days and confirmation by the Armed Forces Ruling Council- AFRC. The exhibit shall be destroyed at the expiration of the confirmation.”

The appellant brought an appeal before the Court of Appeal, Ibadan (hereinafter referred to as the court below). In the main, his appeal was anchored on the denial to him of his right to fair hearing by being sentenced to life imprisonment without being afforded the right to legal representation at his trial. The court below on 25-05-06 affirmed his conviction and the sentence imposed. He has come on a final appeal before this Court on a solitary issue which reads:

“Whether the learned Justices of the Court of Appeal gave adequate consideration to the appellant’s right to fair hearing as enshrined in Section 36(6)(c) of the 1999 Constitution before affirming his conviction and sentence.”

In his attempt to convince me that the appellant’s right to fair hearing was indeed breached, counsel referred to the observation of this Court in Isiaku Mohammed v. Kano Native Authority [1968] All NLR 411 at 413 where we said per Ademola C.J.N. that the right to fair hearing was to be determined by: “the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.”

It seems to me that in an ideal situation, the trial tribunal ought to have directed that arrangements be made to assign counsel to the appellant for his defence since he explained that his impecuniosity prevented him from retaining counsel.

Section 36(6)( c) of the 1999 Constitution provides:

“6. every person who is charged with a criminal offence shall be entitled to –

(a) ………………………….

(b) ………………………….

(c) defend himself in person or by legal practitioner of his own choice”

I do not think that the appellant was denied his right to fair hearing in the strict sense. I am also not able to say that a reasonable person would form the impression that justice was not done to the appellant as he had materially admitted the offence and explained that impecuniosity drove him into committing it.

The circumstances of this appeal are rather constraining. The appellant was sentenced in 1990 and would appear to have exhausted the sentence in prison. It is not prudent to ask him to now face a new trial where he would be afforded the right to legal representation. I am also unable to set him free given the fact that he himself, an adult, admitted that he committed the offence and offered a most untenable reason for doing so. Were the circumstances different, I would have given consideration to a retrial.

In the circumstances, it seems to me prudent to dismiss this appeal. I accordingly dismiss it and affirm the judgments of the two courts below.

SC.237/2006