Samuel Ayo Omoju V. The Federal Republic of Nigeria (2007)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
This is an Appeal against the judgment of the Federal High Court, Abuja Judicial Division, presided over by His Lordship, Hon. Justice B.F.M. Nyako. The Judgment was with respect to the conviction the Appellant on his own plea of guilt with respect to charge No, FHC/ABJ/CR/36/2003 wherein the Appellant was charged importing 1.1 kilogrammas of Heroin drug, without lawful authority punishable under Section 10(b) of the National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation 1990.
The Appellant was arraigned before the court on a one court charge and he pleaded not guilty initially before changing his plea to guilty after. He was accordingly convicted under Section 10(b) of the Nigerian Drug Law Enforcement Act and not the National Drug Law Enforcement Agency Act, Cap 253 Laws of the Federation of Nigeria.
FACTS
On the 22nd May 2003 the Appellant was arraigned on a one court charge as follows:-
“That you Samuel Ayo Omoju, Pastor, male, adult on or about the 9th day of March 2003 at Nnamdi Azikiwe International Airport, Abuja exported 1.1. Kilogramme of Heroin without lawful authority and thereby committed an offence contrary to and punishable under Section 10(b) of the National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation of Nigeria 1990”.
The Appellant pleaded not guilty to this charge and hearing was adjourned in the case after he was granted bail based on the application of his counsel Mr. Nganjiwa.
On 30th October 2003, the word cocaine was substituted for Heroin and based on the application of the prosecution the charge was read over to the Appellant who pleaded “not guilty” to the charge as amended.
There were several adjournments of the case on record but it is significant to note that on 29th of January 2004, the prosecution served the accused person through his counsel with the proof of evidence in this case and the matter was adjourned till 9th March 2004 for hearing.
On 29th July 2004, seven months after the proof of evidence was served on the appellant herein, Mr. Nganjiwa his counsel informed the court when the case was called for hearing that “my client intends changing his plea”.
At this stage, the prosecution applied that the charge be read to the accused again for a fresh plea. The charge was then read in English language to the Appellant as accused in the lower court and he pleaded guilty to the charge. The prosecution thereafter presented the facts of the case and Mr. Nganjiwa informed the court that he has no objection to the facts and the exhibits tendered. It was after all these that the trial court convicted the Appellant as charged and sentenced him to 2 years imprisonment after allocutus was made on his behalf. It is against these proceedings that the appellant has appealed complaining that the Appellant ought not to be convicted as the prosecution did not prove its case beyond reasonable doubt and that the Appellant was convicted on a non – existing law since the trial judge purportedly convicted the Appellant under Section 10(b) of Nigerian Drug Law Enforcement Act instead of Section 10(b) of National Drug Law Enforcement Agency Act under which he was charged.
The Appellant filed a Brief on 26/1/06 and raised one sale Issue for determination which is:-
Whether the learned trial Judge ought to have convicted the Appellant on his own plea of guilt.
The Respondent in their Brief of Argument filed on 18/9/06 raised two issues which are as follows:-
- Whether the learned trail Judge ought to have convicted the Appellant on his own plea of guilt.
- Whether the Appellant was convicted on a non-existing law.
The issues as raised by the Respondent being more apt I would use them for a fuller picture of what is at stake.
ISSUE NO. ONE
Dr. Amuda-Kannike learned counsel for the Appellant slated that the learned trial Judge ought not to have convicted the Appellant on his own plea of guilty. That the Section of the law dealing with how an accused person can enter his plea of guilty and what the court should do is as slated under Section 218 of the Criminal Procedure Act (CPA) Cap 80 Laws of the Federation of Nigeria, 1990.
Learned counsel for the Appellant further contended that the learned trial Judge failed to adhere strictly to Section 218 CPA, the aspect dealing with the fact that an accused ought to understand the charge against him and the court must be satisfied that he intends to admit all the essentials of the offence which he pleaded guilty to. He cited Osuji v. IGP (1965) LLR 143; Ahmed v. COP (1971) NMLR 409; Idam v. Police (1964) NMLR 103.
In response learned counsel for the Respondent submitted that what happened on the 29th July 2004 was in perfect agreement with the provisions of Section 215 of the Criminal Procedure Act. He cited Solola v. The State (2005) 2 NMLR (Pt.937) 460 at 382; Amala v. The State (2004) 12 NWLR (Pt.888) 520 at 559.
He further stated that the Appellant was availed of all the requirements and procedures as can be seen from the record of proceedings. That it should be noted that the Appellant was pleading to the charge the third time which suggests that Appellant knew the charge he was pleading to. That it was Appellant’s lead counsel who informed the court of the decision of the Appellant to change his plea which suggests that the Appellant had discussed same with his counsel. That after the plea the learned trial Judge acted in accordance with Section 218 of the CPA to convict the Appellant as charged.
Mrs. Ahaji of counsel for Respondent said it was unnecessary to ask the Appellant in person while his counsel was there if he admitted the essentials of the offence to which he pleaded. That there is a distinction between cases where accused person are represented by counsel and cases where there are no counsel when considering issues relating to arraignments of accused persons before the courts. He referred to Adaka v. Ikot Abasi T.R.C. (1991) 6 NWLR (pt.198) 490 at 491 – 492; Dibie v. The State (2004) 14 NWLR (p. 893) 257 at 262.
I would recant the relevant laws on arraignment, plea etc in order to see if the appropriate provisions of the law tally with the facts on ground.
Section 215 Criminal Procedure Act provides:-
“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see course otherwise to order and the charge or 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 by a copy of the information he objects to want of such service and the court finds that he has not been duly served therewith.”
That provision of Section 215 of the CPA was explained by Edozie JSC in Solola v. The State (2005) 2 NWLR (pt.931) 460 at 482 to be:-
“The requirement of this provision or identical provision has been judicially considered in a plethora of decisions of this court. These requirement are to the effect that the charge must be read over to the accused in the language he understands and the charge must be explained to the accused in the language he understands to the satisfaction of the court before he is called upon to plead to the charge”.
Similar views were expressed by Iguh JSC in Amala v. The State (2004) 12 NWLR (pt. 888) 520 at 559.
A follow up on Section 215 CPA is Section 218 of the same CPA and it provides:-
Section 215 CPA- “If the accused pleads guilty to any offence with which he was charged the court shall record his plea as neatly as possible in the words used by him and if satisfied that he intends to admit the trust 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 Dibie v. State (2004) 14 NWLR (pt.893) 257 it was held:-For a valid arraignment of an accused, the underlisted requirements must co-exist and must be satisfied because they are mandatory, failing which any subsequent trial and conviction of him will be a nullity. The requirements are:-
(a) the accused person must be present in court unfettered unless there is a compelling reason to the contrary;
(b) the charge must be read over to the accused in the language he understands;
(c) the charge should be explained to the accused to the satisfaction of the court;
(d) in the course of the explanation, technical language must be avoided;
(e) after satisfying the above requirements, the accused will then be called upon to plead instantly to the charge.
All the requirements must co-exist and must be satisfied by cause they are mandatory. Erekanure v. State (1993) 5 NWLR (pt.294) 385; Kaubo v. State (1988) 1 NWLR (pt. 73) 721; Effiom v. State (1995) 1 NWLR (pt.373).
An appellate court is entitled to assume that the correct procedure was adopted by the trial court on the issue of explaining the charge to the accused person until the contrary is proved. That is to say, the presumption of regularity applies. See Dibie v. State (2004) 14 NWLR (pt. 893) 257 at 278; lockman v. State (1972) 5 SC 22; Ogunye v. Stale (1999) 5 NWLR (Pt.604) 548.
The proceedings of the said date of plea and conviction are as follows:-
“BETWEEN:
THE FEDERAL REPUBLIC OF NIGERIA
AND
SAMUEL AYO OMOJU
Parties: Accused in court
Counsel: Mrs. O. Ahaji for the prosecution
H. A. Nganjiwa with K Olowookere, R. Okotie Eboh (Miss) and M. A. Kola for the accused,
Mrs. Alhaji: We are ready for hearing, We have one witness in court.
Mr, Nganjiwa: My client inlend changing of his plea. Charge read to accused once again in English, he understands and pleads guilty to the charge.
Mrs. Ahaji: The facts are as contained in the charge in support we lender the drug analysis report, ranking of substance form and certificate of test and analysis and the recovered Exhibits, an analysis containing the analysed substance, the statement of the accused and his traveling documents. We urge the court to convict the accused as charged.
Mr. Nganjiwa: No objection.
Court: Admitted and marked Exhibit A – H
Mr. Nganjiwa: We plead for leniency.
Court: In the light of the plea of the accused person, The evidence tendered in proof of the charge and the recovered drug, I find the accused guilty as charged and by virtue of Section 10(b) of the Nigerian Drug Law Enforcement Act convict him accordingly.
Mr. Nganjiwa: We plead the court to temper justice with mercy in paring sentence. He is first offender, married with children. He changed his plea out of remorse for repentance. He was lured by poverty. He is the only surviving son of his parents. He is above 50 years and a sick man. He has undertaken to repent. The court has discretion to give an option of five Section 382(1) Criminal Procedure Act. Apamaje v. The State (1997) 3 NWLR (pt. 493) 209 at 293. He has been in custody for 9 months.
Mrs. Alhaji: I urge the court to convict. He has no record of previous conviction.
Court: In consideration of the plea for leniency, I also find it interesting that he is a Pastor who should lead by example. I however find that he appears remorseful and accordingly sentence him to a term of 2 years imprisonment taking into consideration the period he has been (sic) ill custody.
Sgd: B.F.M. Nyako
Judge
29/7/04”.
From the proceedings above stated there is nothing shady or cloudy in what transpired. The learned counsel for the defence knew what to do at every given point and in command of his side in the line of battle. Counsel by the nature of his professional training and experience is expected to be relied upon by his client and the opponent in all matters in the judicial process, including undertakings. He is link between the Court and the litigant. The law therefore expects so much from the counsel in the performance of his professional duties. A counsel’s authority at the trial of a case extends to the action and all matters which are incidental to the action see Adaka v. Ikot Abasi T.R.C. (1991) 6 NWLR (pt.198) 40.
In the light of what happened in the court on the date in question and it was even counsel for the Appellant who said the Appellant wanted to change his plea having earlier pleaded not guilty. It can be seen that the Appellant was well aware what the issues on his arraignment were and his counsel directing effectively the defence. Therefore it is safe for me to presume that the correct procedure had been adopted by the trial court on the issue of explaining the charge to the accused person until the contrary is proved. In this instance there is no proof that there was a irregular procedure that was brought in. The cases Osuji v Inspector General of Police (1965) LLR 143; Ahmed v. Commissioner of Police (1971) NWLR pt. 409 do not apply. What is applicable is Dibie v. The State (2004) 14 NWLR (pt.893) 257 at 262.
I resolve this issue in favour of the Respondent and I say the Appellant was rightly convicted and sentenced.
ISSUE NO TWO
Learned counsel for the Appellant submitted that the charge against Appellant and the Section of the law under which the said charge was brought is quite different and is at variance with the Section of the law under which the Appellant was convicted. That there does not exist any law known as Nigerian Drug Law Enforcement Act, under which the Appellant was charged. That what exist is National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation of Nigeria 1990. Therefore the conviction of the Appellant was under a non- existing law and is contrary to the provision of the Commission of the Federal Republic of Nigeria, Section 36(12).
Learned counsel for the Respondent contended that it is not every error in judgment that will lead to a reversal on Appeal. He cited Monsuru Solola v. State (2005) 11 NWLR (pt.937) 460 at 485; Emedo & ors v. State (2002) FWLR (pt. 130) 1645 at 1648.
Learned counsel for the Respondent went on to say that there is no miscarriage of justice since it was at the judgment stage that the learned trial Judge made the slip when he referred to Section 10(b) of 14 the Nigerian Drug Law Enforcement Act as the Act and Section under which he was effecting the conviction.
In this issue the line of battle is drawn along whether or not the conviction and sentence can stand since in convicting the learned trial Judge made a slip by holding:
“I find the accused guilty as charged and by virtue of Section 10(b) of the Nigerian Drug Law Enforcement Act convict him accordingly”.
The appropriate law under which accused was charged is Section 10(b) of the National Drug Law Enforcement Agency Act, Cap 253 Laws of the Federation of Nigeria 1990. While Appellant posits that the slip should vitiate the trial in its entirety, the Respondent said since no miscarriage of justice had occurred because of that error of the trial Judge the trial should stand.
It is provided in Section 36(12) of the 1999 Constitution as follows:-
“Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an act of the National Assembly or a law of a state, any Subsidiary Legislation or instrument under the provisions of a law.”
The implication of the above provision in my humble view is that even if accused/appellant had been charged under a Section of law other than what he was charged with or even a different law, so long as the offence he committed is covered in any of the laws in the Statute Book he stands properly charged and if the facts so present he would be rightly convicted, All that would happen is that error in framing would be stated and the conviction would be stated to be under the proper law.
Furthermore it is not every error or misdirection in a judgment that warrants a reversal of the judgment on appeal. The only instance a decision can be reversed is where it is prejudicial to the aggrieved party or it occasioned a miscarriage of justice to the effect that if the error had not occurred, the judgment would have been different. See Anka v. Lokoja (2001) 4 NWLR (pt.702) 178.
It is not every slip in a judgment that will result in an appeal being allowed; the practice is to run a blue pencil across the erroneous statement and consider whether it affects the decision. If it does not, then the consideration of whether the substantial issues raised in the appeal have merit comes in. See Adejumo v. Ayanlegbe (1989) 3 NWLR (pt.110) 417; Balewa v. Doherty (1963) 1 WLR 949; Adeyemi v. A-G Oyo State (1984) 1 SCNLR 225.
It is from the foregoing that it is evident that the slip by the learned trial Judge would not vitiate the trial, conviction and sentence as it cannot be said that the Appellant was convicted under a nonexistent law. This issue is also resolved in favour of the Respondent.
The conclusion therefore is that this appeal lacks merit and seeing nothing upon which the findings and decisions of the learned trial Judge should be disturbed I dismiss this appeal while I affirm the conviction and sentence of the Appellant with the slight amendment to the conviction words reading. “I find the accused guilty as charged and by virtue of Section 10(b) of the National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation of Nigeria 1990”.
Other Citations: (2007)LCN/2405(CA)
