Goke Olaolu V. Federal Republic Of Nigeria (2015)
LAWGLOBAL HUB Lead Judgment Report
OLUKAYODE ARIWOOLA, J.S.C.
This is an appeal against the considered judgment of the Court of Appeal, Lagos Division delivered on the 25th day of January, 2011.
The appellant had been arraigned before the Federal High Court, holden in Lagos, on the 5th day of February, 2008 on a one count charge of unlawfully dealing in 750 grammes of cannabis sativa, otherwise known as Indian hemp contrary to and punishable under Section 10(c) of the National Drug Law Enforcement Agency Act Cap. 253 Law of the Federation of Nigeria, 1990 (as amended).
Upon arraignment and the charge read, the accused pleaded guilty to the charge. The facts were then stated by the prosecutor and various documents were produced and tendered before the court. These included the followings:-
- Certificate of laboratory analysis of 19th of March, 2007.
- Packing of substance Form dated 19th March, 2007.
- The request for scientific aid dated 19th March, 2007
- Confessional statement of the accused dated 19th March, 2007.
- One large brown envelop (sealed) opened in court to reveal transparent evidence production with analysis substance dated 22nd March, 2007.
- Unanalysed Bulk recovered substance.
See pages 3-9 and 14 of the record.
The documents and substance were admitted and duly marked by the court as Exhibits A, B, C, D, E and F respectively. The prosecutor accordingly urged the court to convict the accused as charged having pleaded guilty.
After admitting the Exhibits, the trial Judge ruled as follows:-
“I have gone through the accused person’s statement and it is not a confessional statement. Accused is not find (sic) faulty in spite of his constitutional plea, his right to a speedy trial having been aborted by several issues and thus; He shall be discharged and let go. Bulk substance shall be destroyed by burning.
Signed
Justice Charles Etanga Archibong
Judge
5th February, 2008.”
Dissatisfied with the above decision led to an appeal by the respondent herein which appeal was allowed by the court below with a consequential order that the case be remitted to the Chief Judge of the Federal High Court, FCT, Abuja for reassignment to another Judge of the court for trial on the merits de novo.
The appellant was aggrieved by the decision of the court below in setting aside the judgment of the trial Federal High Court which had earlier discharged him. For this he filed an appeal to this court to challenge the decision pursuant to the leave of court duly sought and granted on the 5th of October, 2011.
When this appeal came up for hearing on the 5th of March, 2015, the learned counsel for the appellant introduced his brief of argument which was filed on 26/11/2012 but deemed as properly filed and served on 22/05/2014. He also referred to the appellant’s reply brief of argument which was filed on 13/8/2013 but deemed to be properly filed and served on same 22/5/2014. Learned counsel adopted both briefs of argument and relied on same to urge the court to allow the appeal and set aside the judgment of the court below.
Learned counsel to the respondent, Mr. Andrew C. Igboekwe adopted the respondent’s brief of argument he had filed on 8/7/2013 but deemed properly filed and served on 22/5/2014. He relied on same to urge the court to dismiss the appeal for being unmeritorious.
In the appellant’s brief of argument, the following sole issue was distilled for determination of the appeal:
Issue for determination:-
“Whether the Court of Appeal was right to raise suo motu the issue of the trial court not according both the prosecution and defence the opportunity to address him on the issue of lack of speedy trial without inviting counsel to address it, having regard to the right of fair hearing.”
In the same vein, the respondent in its brief of argument earlier referred to, distilled a sole issue from the grounds of appeal filed by the appellant, for determination of the appeal. It is couched as follows:-
“Whether from the facts and circumstances of this case, the Court of Appeal was right in holding that the decision of the Learned Trial Judge was outrageously irregular and therefore allowed the appeal.”
With reference to the grounds of appeal filed by the appellant in this appeal, the sole issue formulated by the appellant from the said grounds is more apposite for the determination of the appeal and I shall adopt same. It reads thus:-
“Whether the Court of Appeal was right to raise suo motu, the issue of the trial court not according both the prosecution and defence the opportunity to address him on the issue of lack of speedy trial without inviting counsel to address it having regard to the right of fair hearing.”
In arguing this issue, learned counsel to the appellant submitted that the court below was wrong in allowing the respondent’s appeal.
He conceded that it is trite law that a court can raise issue suo motu, but that the court must invite counsel to address it on the issue particularly, the party that will be adversely affected by the issue raised suo motu. He relied on The State vs Moshood Oladimeji (2003) 14 NWLR (Pt.839) 57 at 74-75; Masu Mohammed Nasiru Vs. Adamu Chanji (1991) 1 NWLR (Pt.588) 605 at 611.
Learned counsel conceded further that the court below rightly identified the law and what is required of a court where an issue is raised suo motu by the court. That the court would be expected to invite the parties to address the court on any such issue raised suo motu by the court. He however contended that the court below was wrong in law to have allowed the appeal for that reason. Learned counsel submitted that, unfortunately, the court below fell into the same grave error by failing to see that there was no complaint in the grounds of appeal by the respondent before the court below, suggesting that the trial court suo motu reached a decision without according parties the opportunity to address him on the issue of lack of speedy trial.
Learned counsel conceded that the trial court suo motu raised the issue of lack of speedy trial of the appellant but failed to invite counsel to both parties to address the court on the point before he decided to dismiss the case and discharge the accused. But he submitted that the court below also did the same thing wrongly by raising suo motu similar issue without inviting counsel to address it, which denied the appellant fair hearing. He urged the court to resolve the issue in favour of the appellant and allow the appeal. He, in addition urged the court to set aside the decision of the court below.
On the same sole issue for determination, the learned respondent’s counsel referred to the decision of the court below along with the proceeding on the arraignment that led to the decision of the trial court on the 5th of February, 2008. He contended that the position of the law is that where an accused person pleads guilty to an offence, the court is expected to 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 had pleaded guilty, it shall convict him. See: Section 218 of the Criminal Procedure Act.
From the provisions of the Criminal Procedure Act, learned counsel contended that before a trial court can either convict or discharge an accused person who pleaded guilty before it, the court must fulfill the condition precedent of recording his plea as nearly as possible in the words used by him. He submitted that the trial court failed to do this hence its decision was not valid in law. Learned counsel contended that the use of the word “shall” in the provisions of Section 218 of the Criminal Procedure Act denotes a mandatory condition precedent that the court must adhere strictly to in the Statute. He relied on Bamaiyi Vs. Attorney General of the Federation (2001) 12 NWLR (Pt.727) 468 at 497. He submitted that the trial Judge failed to take into cognizance the provisions of Section 218 of the Criminal Procedure Act hence he did not apply same to the proceedings of 5/2/2008 where the appellant was discharged, hence the court below was right to have interfered in the decision to set it aside. Learned counsel contended further that where a law court makes a decision without considering relevant provisions of the law, such decision ought not to be allowed to see the light of the day as the appellate court should interfere and set it aside. He submitted that the decision is a nullity in law. He relied on Onwuka Vs Ononuju (2009) 11 NWLR (Pt.1151) 174 at 204. He further submitted that the appellate court is entitled to interfere with the exercise of discretion of a trial court where the appellate court is satisfied that it is in the interest of justice to do so. He cited Ceekay Traders Ltd Vs Gen. Motors Co. Ltd (1992) 2 NWLR (Pt.222) 132 at 147; Salu vs. Egeibon (1994) 6 NWLR (Pt.348) 23 at 41. He submitted that the court below rightly interfered with the exercise of the trial court’s discretion in the face of obvious misapplication of the provisions of Section 218 of the Criminal Procedure Act and Section 36(6)(a) of the 1999 Constitution by the trial court in this case.
Learned counsel further submitted that the court below was right in holding that the decision of the learned trial Judge was outrageously irregular and consequently allowed the appeal. He contended that in any event, the appellant has not indeed suffered any miscarriage of justice, as all that the court did was to remit the case to the Federal High Court for a trial de novo on the merits. He submitted that the consequential order of the court below for a retrial meets with the justice of the case as the respondent is ready, willing and able to prove the guilt of the appellant upon a fresh trial. He relied on Abodundu Vs Queen (1959) Vol.1 NSCC 56 at 60; FRN Vs Akubueze (2010) 17 NWLR (Pt.1223) 525 at 540. He urged the court to resolve the issue against the appellant but in favour of the respondent and dismiss the appeal.
Further arguing on the sole issue, learned counsel for the respondent referred to the portion of the judgment of the court below being appealed against and contended that the portion did not in any way whatsoever affect the judgment or occasion any miscarriage of justice against the appellant.
On whether or not the court below also fell into same error as submitted by the appellant, that breached his right to fair hearing, learned counsel submitted that the court below did not fall into any error. But that even assuming without conceding that the court indeed made any error in law, he submitted that it is not every error of mistake committed by a court that will lead to a reversal of the judgment on appeal. For any such error to lead to a reversal of the judgment, on appeal, the appellant must show that such error is substantial or material in that it has affected the merit of the case one way or the other or has occasioned a miscarriage of justice to the appellant. He relied on Akayepe Vs Akayepe (2009) 11 NWLR (Pt.1152) 217 at 237, Grasven or Casinos Ltd Vs. Halaoui (2009) 10 NWLR (Pt.1149) 309 at 352.
Learned counsel urged the court to note that the court below did not, after allowing the appeal, substitute the verdict of discharge with a verdict of conviction as sought by the respondent as appellant before the court below, instead, the court allowed the appeal and ordered that the case be remitted to the trial court for trial de novo on merit before another judge. This, the learned counsel contended was essentially predicated on the fact that the arraignment of the appellant before the trial court on 5/2/2008 was fundamentally flawed for non compliance with the provisions of Section 218 of the Criminal Procedure Act, Section 10(c) of National Drug Law Enforcement Agency Act, Cap. N30, Laws of Federation of Nigeria, 2004 and section 36(6) of the 1999 Constitution. Hence, the proceedings were a nullity in law and could not therefore be the basis for either a discharge or a conviction order.
Learned counsel referred to the findings of the court below which led to the order for remittance of the case for trial de novo on merit by yet another trial Judge and contended that the appellant has not shown how that order has caused him a miscarriage of justice. He submitted that the retrial order will only ensure that he is properly arraigned and tried in accordance with the law, such that if he repeats his plea of guilty then he will be convicted and sentenced in accordance with the law. He finally submitted that the appellant has not suffered any miscarriage of justice or any injustice to warrant a reversal of the judgment of the court below. He urged the court to so hold, dismiss the appeal and affirm the decision of the court below.
As I earlier stated, the sole issue distilled by the appellant is more apposite for determination of this appeal. Yet, I desire to reproduce the sole Ground of Appeal from which the appellant purportedly formulated his said sole issue, for a clearer picture of what is on ground. The said ground of Appeal without the particulars reads thus:
“The learned justices of the Court of Appeal erred in law when in their considered judgment they held:
“without much ado, I hold that the above decision of the learned trial Judge is most outrageously irregular, to say the least. Before reaching that decision, suo motu, the learned trial Judge ought to have accorded both the prosecution and defence the opportunity to address him on the issue of lack of speedy trial of the respondent. Most regrettably, that was not done in the instant case.”
It is interesting to note that in the above Notice and Ground of Appeal filed, on the records the appellant had indicated that he would file more grounds of appeal upon receipt of the Record of proceedings but none was filed thereafter.
The appellant had been arraigned on February 5, 2009 before the trial Federal High Court on a one count charge of unlawfully dealing in 750 grammes of cannabis sativa, otherwise called Indian hemp, contrary to and punishable under Section 10(c) of the National Drug Law Enforcement Agency Act Cap. 253, Laws of Federation of Nigeria 1990 (as amended).
In a short ruling, upon admission of the Exhibits tendered by the prosecution, the trial court had stated that the accused before him was not found faulty inspite of his constitutional plea of guilty, and for not having been given speedy trial he was discharged and ordered “let go”.
It is note worthy that what was before the court below on appeal was whether having regard to the plea of the accused, whereby he had admitted to be guilty, the trial court was justified in law in discharging him on the ground that he was not speedily tried.
The court below after referring to the relevant provisions of the applicable law and procedure had found, inter alia, as follows:-
“In the instant case, the record does not show that the substance or essentials of the charge and the law under which the offence was punishable were read and expantiated to the best understanding of the accused person, as required under the law. The procedure adopted by the learned trial judge regarding the arraignment of the respondent, as depicted in the record, was characterized by gross irregularity……….
It’s rather obvious that the learned trial Judge was undoubtedly in a grave error in law when he sou motu, went out of the way to discharge the respondent on the misguided belief that “his right to speedy trial having been aborted by several issues.”
Upon the above findings, the court below had adjudged the appeal meritorious and allowed same by setting aside the judgment of the trial court which discharged the appellant.
It is also worthy of note that the appellant herein did not contest or argue that the trial court was in error in raising suo motu and applying same, the issue of speedy trial of the appellant, thereby causing a miscarriage of justice to the respondent who was affected by the decision of the trial court. Indeed, he had conceded that the trial court actually raised suo motu, the issue of lack of speedy trial of the appellant but failed to invite the parties to address the court on the point before he reached a decision to dismiss the charge and discharge the appellant. But amazingly his grouse is that the court below also fell into the same error by raising the issue suo motu without an invitation to the parties to address the court on it. This is a misconception, to say the least, and I shall come back to this anon.
Now to the law, pursuant to which the appellant was charged and arraigned before the trial court. Section 10(c) of the National Drug Law Enforcement Agency Act Cap.253, Laws of Federation of Nigeria, 1990 states thus:
“Any person who, without lawful authority, sells, buys, exposes or offers for sale or otherwise deals in or with 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.”
Upon arraignment as clearly shown on the record of proceedings, the charge was read to the accused and he was recorded to have pleaded guilty to the charge. It is however note worthy that, even though the accused was not represented by counsel, there is nothing on the record to show that the court was not satisfied with the understanding of the charge by the accused. Indeed, it is trite law that, the taking of plea of an accused completes an arraignment and the next step, ordinarily after the plea has been taken, should be for the court to proceed with the hearing of the matter. See: Uwafor Okegbu Vs The State (1979) 11 SC 1. In other words, the law is that once an accused person standing trial pleads to a charge before the trial court, without any objection, it is presumed that he understands the charge preferred against him, moreso, if he speaks the language of the court, which here in Nigeria is English language. See: Okewu Vs FRN (2012) 4 SCM 118; (2012) 2 SC (Pt.11) 1; Adeyemi Vs The State (2013) 8 SCM 37; (2013) 14 NWLR (Pt.1373) 129, (2012) 4 SCNJ 120.
What is more, the procedural law in relation to the instant case are Sections 218 and 285(1) & (2) of the Criminal Procedure Act. The said law states thus:
“Section 218 – Effect of plea of 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 had 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.”
On the manner of hearing – Section 285 inter alia states thus:
“1. At the commencement of the hearing, the court shall state or cause to be stated to the defendant the substance of the complaint, and shall ask him whether he is guilty or not guilty.
- If the defendant says that he is guilty and the court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why sentence should not be passed the court shall proceed to sentence.”
There is nothing on record to show that the trial Judge was not satisfied with the understanding of the charge by the accused, otherwise the accused would not have been recorded as having pleaded guilty. I must therefore say, with the greatest respect, that it does not seem that the learned trial Judge actually understood what he was doing, to say the least. I cannot agree more with the court below when on page 50 of the record, it found as follows:-
“From the proceeding of the trial court, copiously reproduced there above, it has become rather obvious that the learned Judge has exhibited very little, if any, comprehension of the well set out provisions of the Criminal Procedure Act, Cap. C38 Laws of the Federation of Nigeria, 1990.”
After reviewing the proceedings of the trial court, the Court below had, inter alia, on page 54 of the record come to the following conclusion:-
“…the learned trial judge had in the instant case woefully failed to comply with the fundamental requirements, eloquently set out in Section 10(c) of the National Drug Law Enforcement Agency Act (Supra). Even for that singular reason alone, the decision of the trial court ought not be allowed to see the light of the day. This court has a duty under the law to interfere with and abort and set aside the decision in question.”
It was after the above that the court below went on to consider yet another point in the brief decision of the trial court which was the alleged failure to give the case speedy trial. The court below had noted that this issue was wrongly taken up by the trial court suo motu without having invited the parties to address it. As I stated earlier, the appellant agreed that this is true and it was wrong and improper, but that the court below was equally in error to have raised similar issue without resort to the parties.
However, the learned appellant had submitted in conclusion that allowing the appeal of the respondent by the court below on the ground that the trial Judge was in grave error when he suo motu went out of the way to discharge the appellant on the misguided belief that “his right to speedy trial having been aborted by several issues “is wrong in law.” This as I said earlier is a misconception of the law, to say the least.
It is clear from the record of the trial court that after taking the plea of the accused which concluded arraignment and the court proceeded to admit the documents and substance produced and tendered by the prosecutor, without more, went to give his judgment. In the said judgment, he had held that the accused was not found faulty notwithstanding that he had pleaded guilty to the charge. Hence, he concluded that for failure to have given the case speedy trial he discharged the accused and ordered that the bulk substance be destroyed by burning.
There is no doubt, the issue of speedy trial of a criminal charge is a constitutional requirement. Section 36(6) of the 1999 Constitution (as amended) provides as follows:-
“Section 36(6) Every person who is charged with a criminal offence shall be entitled to –
(a) be informed promptly in the language that he understands and in details of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioner of his own choice:
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution;
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
From the record, the trial Judge rightly recorded that the accused as of right was entitled to a speedy trial but that this was “aborted by several issues”. Unfortunately, the record does not contain what the issues were and who caused the delay in the required speedy trial of the accused. The issue was therefore clearly taken suo motu by the trial judge.
It is trite law that when an issue is not placed before a court, it ordinarily has no business whatsoever in dealing with it. And on no account should a court of law raise a point suo motu no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties, in particular, the party that may be affected adversely, as a result of the point so raised, if the court does so, it will be in breach of the party’s right to fair hearing. See: Yekini Abass & Ors Vs. Mogaji & Ors (2001) 11 SCM 1; Hon. E. O. Araka Vs Ambrose N. Ejeagwu (2001) 1 SCM 50, Bola Tinubu vs. I.M.B. Securities Plc (2001) 12 SCM 73; Victino Fixed Odds Ltd Vs. J. Ojo & Ors (2010) 4 SCM 127.
In the instant case, the point or issue of speedy trial of the appellant was not raised by either party to the proceeding. It was raised by the trial court suo motu, who proceeded to determine the case on the point by dismissing the charge and discharged the accused, without giving the prosecution the opportunity to comment on the point. This, to say the least, is in breach of the right to fair hearing of the respondent, who was affected by the decision.
I am therefore not in the slightest doubt that the appellant misconceived the point when he contended that the court below also suo motu took the issue of the trial court not according both the prosecution and defence the opportunity to address him on the issue of lack of speedy trial without inviting counsel to address on it. Indeed, the appeal was not decided upon that issue. And of course, as the saying goes, two wrongs do not make a right.
In the circumstance, and without any further ado, the sole issue for determination of this appeal shall be and is hereby resolved against the appellant. The appeal is adjudged lacking in merit. Indeed, it is frivolous and vexatious. Accordingly, it is dismissed. The judgment of the court below is affirmed. The case No.FHC/L/233/2007, The Federal Republic of Nigeria Vs. Goke Olaolu is remitted to the Chief Judge of the Federal High Court for reassignment to another Judge of the court for trial of the case on the merits de novo.
SC.163/2011
