Emmanuel Kpoobari V. The Federal Republic Of Nigeria (2016)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Port-Harcourt Division, hereinafter referred to as the lower Court, affirming the conviction and sentence of the appellant by Federal High Court, hereinafter referred to as the trial Court, sitting in Port Harcourt in charge No. FHC/PH/203C/2008. The judgment of the lower Court being appealed against in this Court on two grounds was delivered on 10th April, 2013. The brief facts that brought about the appeal are stated below.

The appellant was tried and convicted at the trial Court on two count charge of knowingly and without lawful authority being in possession of 800 grammes of Indian Hemp, otherwise known as Cannabis Sativa, and 0.6 grammes of Cocaine, both substances being narcotic drugs, in breach of Section 19 of the National Drug Law Enforcement Agency Act CAP N 30 Laws of the Federation of Nigeria 2004. The first time the charges were read to him by the trial judge, the appellant pleaded not guilty to both. In the course of the trial the appellant changed his plea to one of being guilty whereupon the trial Court adjourned the case

at the instance of the respondent to enable it “review the facts” of the case. At the subsequent hearing of the matter, appellant was represented by counsel on which date the appellant maintained his plea of guilty to the heads of charge.The prosecution relied on the facts as contained in the charges, the scientific report in respect of as well as the Indian hemp and Cocaine recovered from the appellant and in respect of which he was being tried. Appellant counsel did not object.The trial Court proceeded to convict and sentence the appellant on the two counts of charge. The instant appeal is a further appeal from the lower Court’s affirmation of the trial Court’s conviction and sentence of the appellant.

The lone issue distilled in the appellant’s brief as having arisen for the determination of the appeal reads:-

“Whether the Respondent proved the offences charged against the Appellant notwithstanding the plea of guilty by the appellant.”

The respondent adopted appellant’s foregoing issue for the determination of the appeal.

On the lone issue, it is argued in the appellant’s brief settled by Tunde Ede Esq. that appellant’s conviction and sentence for both heads

of charge that had not been proved beyond reasonable doubt offend Section 135(1) of the Evidence Act and Section 36(5) of the 1999 Constitution as amended. The lower Court, it is argued, affirmed the trial Court’s conviction of the appellant inspite of the absence of proof of the essential elements of the offences by the respondent. Before a person is convicted for the offences appellant is convicted for, the respondent must link exhibit 5, the substances allegedly recovered from the appellant and exhibit 6, the scientific report on the substances. Respondent’s failure to produce evidence of the full proof handling of the narcotic substances from the time same was recovered from the appellant to the issuance of the chemist report, it is argued, is fatal to respondent’s case. Appellant’s admission that what was found his possession were Cannabis sativa and Cocaine does not cure the defect in his conviction. Learned counsel, cites in support of his arguments inter-alia: Isichel v. Commissioner of Police (1970) Midwestern State of Nigeria (MSNLR) 251 at 253-254, Ishola v. The State (1969) 1 NWLR 259 at 261, Commissioner of Police v. Apam (1973) ECSCR (pt 1) 8 and

Uwa v. Commissioner of Police (1972) 2 ECSCR(pt 11) 727, and urges the resolution of the sole issue in appellant’s favour and the success of his appeal as well.

In response, learned counsel concedes that it is indeed the requirement of the law that the respondent proves his case beyond reasonable doubt otherwise same will be set-aside on appeal. By Section 277 of the Criminal Procedure Act however, it is argued, the trial Court is empowered to summarily try the appellant who elected to plead guilty to the heads of charge which are not capital in nature and under Section 218 of the same Act, if satisfied that he understands and intends to admit the essentials of the offences he pleads guilty to, convict him. Learned counsel submits that the trial Court has complied with both Sections and, on the authorities, the lower Court has rightly refused to up-turn the trial Court’s unassailable decision. Among the materials tendered by the respondent at the trial Court, it is submitted, is the appellant’s confessional statement admitting the fact that what was recovered from him are narcotic substances which he is not allowed by law to possess. Appellant who was

represented by counsel did not object to any of the evidence tendered by the respondent which, on being admitted in evidence, enabled the Court to satisfy itself that he understood the charge and intended to plead guilty to them. The lower Court’s affirmation of the trial Court’s conviction and sentence of the appellant, learned respondent counsel contends, is beyond reproach. He relies on Kayode v. State (2008) 1 NWLR (pt 1068) 285, Nwachukwu v. State (2007) 17 NWLR (pt 1062) 31, Akpan v. State (2008) 14 NWLR (pt 1106) 72 and Kolawole v. State (2015) 8 NWLR (pt 1460) 138 and prays not only for the resolution of the lone issue against the appellant but the dismissal of the appeal as well.

The instant appeal is a rehash of appellant’s grudges at the Court below which decision, see page 95-96 of the record of appeal, inter-alia reads thus:-

“…following the proceedings as analysed above, the appellant was a self confessed criminal and the lower Court was right, as it did, to have convicted and sentenced him by virtue of Section 218 of the Criminal Procedure Act without the necessity of calling oral evidence in proof of the charge which had been admitted.

The provisions of the law was complied with… and I answer the sole issue raised in the appeal in the affirmative. The grounds of appeal therefore fail and this appeal is dismissed.”

Section 218 of the Criminal Procedure Act which the lower Court confirmed to arrive at its foregoing decision provides:-

“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 that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.”

In interpreting the above statutory provision and applying it to the facts of the instant case, the lower Court at page 94 of the record relied on the decision of this Court in Omoju v. Federal Republic of Nigeria (2008) 7 NWLR (pt. 1085) 38 and held thus:-

“It follows from the foregoing provisions that once an accused pleads guilty to a charge lodged against him and the Court is satisfied that he intends to admit the elements of the charge,

such an accused becomes a self-confessed criminal and the Court can proceed under the aforesaid Section of the law to convict and sentence him. This exercise of satisfaction is within the competence of the Court and it is subjective having regard to the facts and circumstances of the case… An appeal against a conviction on a plea of guilty can only be entertained if it appears (i) that the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it, or (ii) that upon the admitted facts he could not in law have been convicted of the offence charged.” (Underlining mine for emphasis).

By the foregoing, the lower Court’s affirmation of the trial Court’s judgment cannot indeed be faulted. The appellant’s plea of guilty to the charges he is convicted and sentenced for without any objection indicates that he understood the charges preferred against and read to him by the trial Court. Otherwise, he would have objected before giving his plea. The appropriate time for the appellant to raise the complaints he raised at the lower Court and further raises in this Court is at the time the charges were being read to him

and before his plea. These complaints are now belated. The trial Court on reading the charges to him and satisfying itself that the appellant on understanding the charges intended and has pleaded guilty to the charges is right to have convicted the appellant. See Okewu v. FRN 49 NSCOR 330 at 353.

Learned appellant counsel has argued that the respondent having not discharged the burden of proving the offences for which the appellant is convicted beyond reasonable doubt is not entitled to the concurrent findings of guilty by both Courts below. Certainly, learned counsel needs to be reminded that the law requires the discharge of that burden only in instances where the charge is denied and disputed by the accused. In the instant case, however, where there is an admission of guilt by the appellant, the question of establishing the legal burden of proof no longer arises as the burden has been discharged by appellant’s admission of guilt. Learned respondent counsels reliance on the case of Dangote v. C.S.C. Plateau State (2001) NWLR (pt. 717) 132 at 159 is apposite.

I note in conclusion that the conviction and sentence of the appellant rest squarely on the

concurrent findings of fact by the two Courts below. The appellant herein who has not shown that these findings did not either evolve from the evidence on record or have done so in violation of any principle and occasioned miscarriage of justice is not entitled to have the findings interfered with by this Court. See Iyaro v. State (1988) 1 NWLR (pt 69) 256 and U.B.A v. Tejumola (1988) 2 NWLR (pt. 79) 662. Appellant’s lone issue is resolved against him.

The appeal lacks merit and is hereby dismissed. The judgment of the trial Court is hereby further affirmed.

SC.467/2013