The Federal Republic Of Nigeria V. Ya’u Mohammed (2014)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division (the Lower Court) delivered on 6th December, 2012 setting aside the conviction and sentence of the respondent by the Federal High Court, Port Harcourt Division (the trial court) in its judgment delivered on 17th December 2008.
The respondent herein was arraigned before the trial court on a one-count charge of unlawful possession of 8 kilograms 0f Indian Hemp, otherwise known as cannabis sativa, On 22/10/2008 when he was first arraigned, his plea could not be taken, as he did not understand the language of the court. The case was
adjourned to enable the prosecution secure the services of an interpreter to interpret the proceedings from English to Hausa language and vice versa. On 1/12/08, an interpreter was available and his plea was taken. The learned trial Judge made the following record:
“PLEA OF THE ACCUSED
Charge read to accused person and interpreted from English to Hausa for the accused person who perfectly appeared to understand same. And pleaded guilty to the charge.”
Thereupon the prosecution summarily reviewed the facts of the case and tendered one exhibit, Exhibit A (the seized Indian Hemp). The respondent informed the court that Exhibit A did not belong to him but to his neighbor, one Dahiru Dan Mallam. The proceedings were adjourned to enable the prosecution produce the said neighbor. At the resumed hearing on 17/12/2008, no further mention was made of the neighbor. The prosecution tendered Exhibits B – F. The respondent admitted ownership of all the exhibits whereupon the prosecution called upon the court to convict the respondent. After considering the allocutus of the respondent, the court found him guilty as charged and sentenced him to 15 years imprisonment.
The respondent was dissatisfied with his conviction and sentence and appealed to the Lower Court. The Lower Court unanimously allowed the appeal and discharged and acquitted him. Dissatisfied with the discharge and acquittal of the respondent by the Lower Court, the appellant has appealed to this court vide its notice of appeal dated 5/1/2012 containing 8 grounds of appeal. It seeks the following reliefs:
(a) “An order allowing this appeal and affirming the conviction and sentence of the respondent by the trial court.
ALTERNATIVELY
(b) An order allowing this appeal and remitting this suit (sic) to the Chief Judge of the Federal High Court for reassigned to another judge of the Federal High Court, Port Harcourt Judicial Division for a retrial on the merits.”
In compliance with the rules of this court, the parties duly filed and exchanged their respective briefs of argument. At the hearing of the appeal on 19/12/2013, ANDREW IGBOEKWE ESQ., learned counsel for the appellant adopted and relied on the appellant brief filed on 30/5/2012 and urged the court to allow the appeal, set aside the judgment of the Lower Court and affirm the conviction and sentence imposed on the respondent by the trial court. TUDURU EDE ESQ., learned counsel for the respondent adopted and relied on the respondent’s brief filed on 26/6/2012 and urged the court to dismiss the appeal. The appellant formulated six issues for the determination of the appeal.
They are:
- Whether from the facts and circumstances of this case, the Court of Appeal was right in holding that, in recording the plea of the respondent in the trial court, the learned trial judge did not comply with provision of S.218 of the Criminal Procedure Act.
(Grounds 1 & 2)
- Whether the Court of Appeal was right to suo notu raise the issue of whether or not from the record, the respondent pleaded guilty to the charge against him and without requesting the parties to address it on this issue proceeded to determine same against the appellant.
(Ground 3)
- Whether the Court of Appeal was right to suo motu raise the issue of whether or not, from the record, the respondent admitted ownership of Exhibits A – F and without requesting the parties to address it on this issue proceeded to determine same against the appellant.
(Grounds 4 & 5)
- Whether from the facts and circumstances of this case, the Court of Appeal was right in holding that the proceedings at the trial court were not interpreted to the respondent contrary to S. 36 (6) (e) of the 1999 Constitution.
(Ground 6)
- Whether from the facts and circumstances of this case, the Court of Appeal was right in holding that the respondent was not given a fair hearing at the trial court.
(Ground 7)
- Whether consequent upon allowing the respondent’s appeal on account of the wrong or faulty procedure adopted by the learned trial judge, the Court of Appeal was fight to have discharged and acquitted the respondent.
(Ground 8)
The respondent formulated two issues:
- Were the learned Justice of the Court of Appeal wrong in holding that the learned trial judge did not comply with section 218 Criminal Procedure Act in convicting the respondent
(Grounds 1, 2, 3, 4 & 5)
- Whether the learned Justice of the Court of Appeal were wrong in holding that the non interpretation of the proceedings of the trial and non calling of the recorder and interpreter of the Exhibit F resulted in breach of fair hearing to respondent (Grounds 6, 7 & 8).
Having carefully examined the issues formulated by the parties, I am of the view that the issues formulated by the appellant will adequately dispose of the issues in contention in the appeal. Issues 1, 4 and 5 will be considered together, issues 2 and 3 will also be taken together while issue 6 will be considered separatelv should the need arise.
Issues 1, 4 & 5
In support of Issue 1, learned counsel for the appellant referred to Section 218 of the Criminal Procedure Act Cap. C41 Laws of the Federation of Nigeria (LFN) 2004 (hereinafter referred to as the CPA), which provides as follows:
“If the accused pleads guilty to an 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 order against him unless there shall appear sufficient cause to the contrary.” (Emphasis supplied)
He submitted that the requirement of the law is for the trial judge to record the plea of the accused person “as nearly as possible in the words used by him”. He submitted that the law does not make it mandatory for the trial judge to record the exact words used by the accused in his admission of guilt. He submitted that in the peculiar circumstances of this case, where the respondent spoke in Hausa language and his plea was interpreted to the court in English Language, the learned trial judge recorded the plea as nearly as possible in the words used by him. He noted that the interpretation section of the CPA does not define the phrase “as nearly as possible in the words used by him”. In order to interpret the phrase, he had recourse to Black’s Law Dictionary, Sixth Edition at page 1029, which defines the word “near” as:
“Proximate; close-by; about; adjacent contiguous; abetting”.
He submitted that from the above definition, in recording the respondent’s plea “as nearly as possible in the words used by him” the court is not required to record the exact words used by the respondent. He observed that in interpreting the provisions of S.218 of the CPA, the Lower Court omitted the words ”as nearly as possible” and interpreted the section to mean that the trial judge shall record the plea of the accused “in the words used by him”. He referred to pages 91 – 92 and 100 of the printed record. He submitted that a court of law is duty bound to interpret a statute in accordance with the words used therein and must not substitute the statutory words with its own words. He referred to: Tukur Vs Government of Gongola State (1988) 1 NWLR (Pt.68) 39 @ 51 G – H per Oputa JSC; Media Techniques Nigeria Limited vs Adesina (2005) 1 NWLR (Pt.908) 461. Learned counsel contended that the error of the Lower Court, which led to the conclusion that the respondent did not plead guilty to the charge, occasioned a miscarriage of justice. He submitted that the plea as recorded by the trial court satisfies the requirement of the law, having regard to the fact that the plea could not have been recorded in the respondent’s exact words since he spoke Hausa language, which was interpreted to the court through an interpreter. He submitted that it is trite law, as laid down by this court in a plethora of cases, that the impossibility of doing a thing is a lawful justification for not doing that thing, He referred to: Ohuka Vs State (1988) Vol. 19 NSCC 288 @ 295 9 – 12 per Oputa, JSC.
Learned counsel also referred to the finding of the Lower Court that the plea of guilt by the respondent was not apparent on the face of the record. He submitted that the court based this finding on the fact that in recording the respondent’s plea, the trial court used the expression, who perfectly appeared to understand sane.’, He submitted that a court is not permitted to speculate but must decide a case based on the evidence or record before it. He submitted further that a court is not permitted to substitute what is on the record before it with its own personal views. He referred to; Orhue Vs N.E.P.A. (1988) 7 NWLR (Pt.557) 187 @ 200 C – D. He contended that the error of the Lower Court in substituting its own views for what is contained in the record, inevitably led it to the wrong conclusion that the appellant did not plead guilty. He argued that this error has occasioned a miscarriage of justice,
In respect of Issue 4, learned counsel submitted that the Lower Court was wrong when it held that the proceedings were not interpreted to the respondent in breach of Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as the 1999 Constitution). He referred to the proceedings of 1/12/2008 and submitted that the constitutional provision was duly complied with when one Isa Tanko was sworn in as an interpreter to interpret the proceedings of the court to the respondent. He argued that even though there is no record by the learned trial judge that an interpreter was present and interpreted the court’s proceedings to the respondent on subsequent days, it does not mean that an interpreter was not present on those days or that the proceedings were not interpreted to the respondent in the language that he understands. He submitted that in the absence of any evidence to the contrary by the respondent/ the presumption is that the interpreter was indeed present on the trial date subsequent to the arraignment and interpreted the proceedings to him in the language he understands. He submitted further that in law, as long as there was an interpreter who interpreted the proceedings to the respondent in the language he understands on the day of his arraignment, the learned trial judge was not duty bound to record the presence of the interpreter on the subsequent days of proceedings in the matter. For this proposition he relied on; Anyanwu Vs. The State (2002) 13 NWLR
(Pt.783) 107, where this court sitting as a full court, considered and determined the constitutional force and effect of S.36 (6) (e) of the 1999 Constitution. In addition to Anyanwu’s case (supra), he called in aid Section 150 (1) of the Evidence Act Cap, E14 LFN 2004 (now Section 168 (1) of the Evidence Act, 2011 (as amended)) on the presumption of regularity in favour of official acts. He submitted that in the circumstances of the instant case, it must be presumed that the interpreter was present and interpreted the proceedings to the appellant, who fully understood and followed the proceedings to the end. He referred to: Akpan Vs, State (2002) 12 NWLR (Pt.780) 189 @ 202 C – H; Akujinwa Vs. Nwaonuma (1998) 13 NWLR (Pt.583) 632 @ 646 B-C; Udeh Vs. The State (1999) 7 NWLR (Pt.609) 1 @ 23 B-D, He noted further that the presumption of regularity ought to apply in this case having regard to the fact that the respondent fully participated in the proceedings of 17/12/2008. He referred to pages 15 – 16 of the printed record. He submitted that the Lower Court’s observation that being a member of staff of the National Drug Law Enforcement Agency (NDLEA), the interpreter was presumed to have been at his duty post (at NDLEA), the interpreter was presumed to have been at his duty post (at NDLEA) at all times and could therefore not have been in court on the subsequent adjourned dates after 1/12/2008, is not borne out by the record. He urged the court apply the maxim, omnia prasumuntur rite esse acta, in accordance with the decision of this court in Anyanwu v. The State (supra); Akpan v. State (supra) and Akujinwa v. Nwaonuma (supra) and to hold that, from the facts and circumstances of this case, the respondent was not denied his right to interpretation of the proceedings in the language he understands.
With regard to Issue 5, learned counsel for the appellant submitted that the lower could erred when it held that the respondent was not given a fair hearing at the trial court. He reviewed the proceedings before the trial court and submitted that the appellant was accorded his constitutional right to fair hearing. On what amounts to fair hearing, he referred to Pam vs. Mohammed (2008) 16 NWLR (Pt.1112) 1 @ 68 D – F. He submitted, referring to page 13 of the record, that not only did the respondent plead guilty to the charge but he also admitted voluntarily making Exhibit F, his statement to the NDLEA after his arrest, wherein he admitted being in possession of Indian hemp. He contended that the calling of witnesses or the leading of evidence by the prosecution after the respondent’s plea of guilty was superfluous, as the respondent, immediately after his plea of guilt, was liable to be convicted and sentenced accordingly by the court. He submitted that this procedure is in accordance with S.218 of the CPA. He also referred to: Omoju v. FRN (2008) 7 NWLR (Pt.1085) 38 @ 62 A-C.
Relying on Sections 218 and 285 (1) & (2) of the CPA, learned counsel submitted that in the instant case the trial court was right in entering a plea of guilty for the respondent based on his plea of guilty in open court and in convicting him on the plea accordingly. He submitted that the respondent, did not also object to the tendering of his statement to NDLEA and other exhibits in evidence. He submitted that where there is unchallenged and uncontradicted evidence, the court is duty bound to act on it, He referred to:
Magaji v. Nigerian Army (2008) 8 NWLR (Pt.1089) 338 @ 393 D.
In conclusion he submitted that the respondent’s right to fair hearing was never breached in the circumstances of this case, and that the Lower Court therefore erred in holding otherwise, He urged the court to resolve these issues in the appellant’s favour.
In response to the above submissions, learned counsel for the respondent submitted, with regard to Issue 1 that there are two essential requirements under section 218 of the CPA, namely,
(a) Record the plea of the accused as nearly as possible; and
(b) In the words used by him.
The crux of his response is found in paragraph 4.4 at page 6 of his brief wherein he contended that in the instant case:
(a) “The plea of the respondent to the charge in the words used by him was never recorded by the learned trial judge.
(b) The respondent was never shown to have understood the charge in all its ramifications.
(c) The comment at page 13 of the record “And pleaded guilty to the charge” is a comment or record of the judge and not that of the respondent.”
Relying on the case of: State v. Duke (2003) 5 NWLR (Pt.813) 394 @ 425 he submitted that the learned justice of the Lower Court were right to have held that the learned trial judge failed to comply with the mandatory provisions of Section 218 of the CPA. In support of his contention that the Lower Court was right to hold that there was no evidence to show that the respondent understood the essentials of the charge he cited several authorities: Umuolo v. State (2003) 3 NWLR (Pt.808) 493; Okeke v. State (2003) 15 NWLR (Pt.842) 25; (2003) FWLR (Pt.159) 1381 @ 1420 – 1421. He agreed with the Lower Court that the words “…accused.. perfectly appeared to understand same” used by the learned trial judge convey a degree or measure of uncertainty, doubt and ambivalence in the mind of the learned trial judge as to whether or not the respondent understood the charge against him. He contended that the uncertainty goes to the root of whether the respondent admitted the essentials of the charge “in the language he understands” within the con of the decision in Okeke v. State (supra) and Section 36(6) of the 1999 Constitution. He submitted that the non-compliance with Section 218 of the CPA is also evidence from the lack of any record to show that the basic ingredients constituting the charge under Section 19 of the National Drug Law Enforcement Agency (NDLEA) Act, CAP N30 LFN 2004 were explained to the respondent to enable him to have pleaded guilty thereto or to have admitted same: He referred to: Kayode & 2 Ors Vs. State (2008) All FWLR (Pt.402) 1014 @ 1041 wherein it was held that even where an accused person, pleads guilty, there ought to be a question and answer session, day recorded, to ensure that he fully understands the full meaning and implications of a guilty plea. He referred to: Solola Vs. State (2005) All FWLR (Pt.269) 1751 and Okoro Vs. State (1988) 12 SCNJ 19, which followed the decision in Kayode Vs The State (supra).
Learned counsel submitted further that another error committed by the trial court was the failure of the learned trial Judge to ask and record whether or not the respondent admitted the facts alleged by the prosecution. He referred to Section 213 of the Administration of Criminal Justice Law No. 10 of 2007, which provides inter alia, that upon a plea of guilty by an accused person the court shall “… invite the prosecution to state the facts of the case and enquire from the defendant whether his plea of guilty is to the fads as stated by the prosecution.” He urged this court to be persuaded by the decisions of the Lower Courts in: Osuji Vs. Inspector General of Police (1965) L.L.R. 143; Ahmed Vs. Commissioner of Police (1971) NWLR 409; Kayode Vs. State (supra).
He submitted that the Lower Court was also right in its view that the guilty plea by the respondent was not unequivocal having regard to the following facts: (i) that he had mentioned one Dahiru Dan Mallam as being the owner of the cannabis sativa; (ii) that the trial court ordered the said Dahiru Dan Mallam’s arrest and production in court at the next hearing date of 17/12/08, which order was never carried out; (iii) that the said order was never set aside. On this premise he submitted that the last limb of Section 218 of the CPA, which provides that upon a plea of guilty the accused shall be convicted “… unless there shall appear sufficient cause to the contrary” was not complied with. On the implications of an equivocal plea he cited the following Aremu Vs. Commissioner of police (1990) 2 NCR 315; Inspector General of Police v. Adedeji (1957) WRNLR 178; Onuoha v. Inspector General of Police (1956) NRNLR 96; Iko v. State (2002) 7 SC (Pt.II) 115; Kayode v. The State (2008) 1 NWLR (Pt.1068) 281 @ 302; Ogunye v. State (1999) 5 NWLR (Pt.604) 548; Adeniji v. State (2001) 13 NWLR (Pt.730) 375. He submitted that notwithstanding a plea of guilty, upon a community reading of the provisions of Sections 218 and 285 (1) and (2) of the CPA, Section 213 of the Administration of Criminal Justice Law No.10 of 2007 and Section 36 (6) (a) of the 1999 Constitution (as amended) full compliance with the statutory provisions is mandatory.
In reaction to the appellant’s reliance on Anyanwu Vs The State (supra) to the effect that the failure to record the presence of the interpreter on subsequent hearing dates after the initial arraignment was not fatal to the trial, learned counsel submitted that Anyanwu’s case is distinguishable from the instant case because the interpreter in that case was a clerk of the court while in the instant case the interpreter was an officer of the NDLEA, whose duty post is not the court. He argued that the fact that the interpreter had a relationship with the prosecutor/appellant also renders the cases cited inapplicable, He submitted that the interpreter should nor have any relationship with the parties: He relied on: R. Vs. Ogucha (1959) 4 FSC 64. He submitted further that in so far as the proceedings were stalled several times due to the absence of an interpreter, as held in the case of: Udeh Vs. State (1999) 7 NWLR (Pt.609) 1 @ 23 “…. the contrary is proved…” He submitted that these are the factors that make the decisions in Anyanwu v. The State (supra); Akpan v. State (2002) 12 NWLR (Pt.780) 189 @ 202; Udeh v. State (1999) 7 NWLR (Pt.609) 1 @ 23 inapplicable.
He maintained that having regard to the breach of Sections 218 and 285 (1) and (2) of the CPA, Section 213 of the Administration of Criminal Justice Law No.10 of 2007 and Section 36 (6) (a) of the 1999 Constitution (as amended) by the trial court, the Lower Court rightly held that the respondent right to fair hearing was breached. With regard to the evidence proffered by the prosecution and the exhibits tendered, he submitted that the person who recorded Exhibit F (the respondent’s statement) was never called and there was no record to indicate that it was interpreted to him before being admitted in evidence, He therefore urged the court to resolve these issues against the appellant and in the respondents favour.
It is appropriate at this stage to set out the relevant statutory provisions that govern a situation such as in the instant case where the accused person pleads guilty to a non-capital offence. They are Sections 218 and 285 (1) and (2) of the CPA, and Section 36 (6) (e) of the 1999 Constitution (as amended).
S. 218: If the accused pleads guilty to an 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 pass sentence upon or make order against him unless there shall appear sufficient cause to the contrary.
S.285 (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.
(2) 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.
(Emphasis supplied)
S.36 (6) (e) of the 1999 Constitution (as amended):
S.36 (6) Every person who is charged with a criminal offence shall be entitled to –
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
The charge against the respondent reads thus:
“That you, YA’U MOHAMMED, male, on or about the 8th day of May, 2008 at Yam-Zone, Aba, Port Harcourt Expressway, Oyigbo in of (sic) Rivers State within the jurisdiction of this Honourable Court, without lawful authority did knowingly possess 8 Kilogrammes of Indian Hemp (otherwise known as Cannabis Sativa) a Narcotic Drug similar to Cocaine, Heroin and LSD and thereby committed an offence contrary to and punishable under Section 19 of the National Drug Law Enforcement Agency Cap. N30 Laws of the Federation of Nigeria 2004.”
The record of the trial court of the proceedings of 1st December 2008 at page 13 of the record reads inter alia:
“…The Court directed the prosecution to produce an Hausa interpreter so that the accused can have the benefit of his fundamental rights. Applies that the plea of the accused person be taken. The interpreter is sworn on the Bible and states in English.
My name is Isa Tanko. I work with NDLEA. I am Jukun by tribe.
We speak Hausa.
PLEA OF ACCUSED
Charge read to accused person and interpreted from English to Hausa far the accused person who perfectly, appeared to understand same. And pleaded guilty to the charge.”
Now the requirement of the law, as clearly stated in Section 218 of the CPA reproduced above is that where the accused pleads guilty to the charge his plea shall be recorded “as nearly as possible in the words used by him”. The language of the court is English Language. See: Madu Vs The State (1997) 1 NWLR (Pt.482) 386 @ 403 B; Nwali Vs The State (1991) 5 SCNJ 14; Damina Vs The State (1995) 8 NWLR (Pt.415) 513. It follows therefore that where the accused person does not understand the language of the court and he makes his plea through an interpreter, the court can only record what is interpreted to it and not the exact words used by the accused.
The guiding principle in the interpretation of statutes is that where the words used are precise and unambiguous they must be given their ordinary and natural grammatical meaning. See: Ibrahim Vs Barde (1996) 9 NWLR (Pt.474) 513 at 577 B-C; Ahmed v. Kassim (1958) SCNLR 58; Ojokolobo Vs Alamu (1987) 3 NWLR (Pt.61) 377 at 402 F-H.
What is specifically provided for in Section 218 of the CPA is that the plea be recorded “as nearly as possible” in the words used by the accused person. Anyone reading the record should be able to conclude that the accused person understood what was interpreted to him before pleading guilty thereto. The words “as nearly as possible in the words used by him” must be read together and not disjunctively, as urged upon the court by learned counsel for the respondent. At pages 90 – 91 of the record the Lower Court reproduced Section 218 of the CPA and held as follows:
”The provisions of S.218 of the CPA reproduced herein above, imposes an obligation on the court before which an accused person pleads guilty, to record such plea in the words used by the said accused person.” (Emphasis supplied)
The learned Justices then referred to the case of State Vs Duke (2003) 5 NWLR (Pt.813) 394 per Olagunju, JCA in support of the above proposition. With due respect to their Lordships, the portion of the decision in Duke’s case relied upon, does not in fact support the position taken by the court. His Lordship Olagunju, JCA, clearly stated that the duty imposed upon the trial judge where an accused person pleads guilty is to “record his plea as nearly as possible in the words used him.” There is no legal requirement that the exact words used by the accused person must be recorded. The courts must always be wary of reading into a statute what it does not contain. See: A.G. Federation Vs Guardian Newspapers Ltd. (1999) 9 NWLR (Pt.918) 187 @ 264. In the circumstances of this case, the proceedings at page 13 of the record showed sufficient compliance with Section 218 of the CPA.
The next issue to be considered is whether it could be said that the proceedings were interpreted to the respondent having regard to the fact that the record only shows the presence of an interpreter on 1/12/08 when his plea was taken. It is pertinent to note that right from the outset, the learned trial judge was conscious of the respondent’s fundamental rights and took the necessary steps to ensure that Section 36 (6) (e) of the 1999 Constitution was complied with. This is why his plea could not be taken on 22/10/08 when he first appeared in court until 1/12/08 when the prosecution was able to secure the services of a staff of NDLEA to act as interpreter. See page 13 of the printed record. Now, on the date of arraignment, after pleading guilty to the charge, the prosecution reviewed the facts of the case and tendered Exhibit A, the Indian Hemp seized from the respondent. He interjected at this stage and stated that the exhibit did not belong to him but to his neighbour. The record of the court at page 14 continues thus:
“When further asked accused says that the owner of the 8 kilogramnes of Indian Hemp has been granted bail. The accused person says that the owner of the Indian Henp is Dahiru Dan Mallam who lives at Obigbo Rivers State. Accused says I can identify him.”
It was after this exchange that the learned trial judge ordered the prosecution to take the respondent to identity and arrest the said Dahiru Dan Mallam and to produce him in court “to explain who owns the said Indian Hemp”. The case was then adjourned to 17/12/08 for hearing. There is no doubt that the respondent fully understood the proceedings of that day after same had been interpreted to him. His responses were also interpreted to the court and duly recorded.
It is not in dispute, as observed by learned counsel for the respondent that the record does not indicate the presence of the interpreter on 17/12/08. What transpired on that day was that in further review of the case, the prosecution tendered Exhibits B, C, D, E and F. Exhibit B is the certificate of test analysis showing that the substance recovered from the respondent tested positive for Cannabis Sativa; Exhibit C is the “packing of substance” form; Exhibit D is the request for scientific aid form; Exhibit E is the receipt for the 8 kilograms of Indian Hemp seized from the respondent while Exhibit F is his statement to the NDLEA. After the documents were tendered the court made the following record:
“The accused admits being the owner of all the exhibits and making the statement to NDLEA.”
Since it is on record that the respondent did not understand the language of the court, and that the proceedings could not proceed in the past due to the absence of an interpreter, it must be presumed that the proceedings of 17/12/08 were conducted through an interpreter. A full panel of this court in the case of Anyanwu vs The State (2002) 13 NWLR (Pt.783) 107; also found in (2002) 6 SC (Pt.II) 173 @ 182 lines 25 – 40, cited by learned counsel for the appellant held thus:
Per Ogundare, JSC at page 182 lines 25 – 41:
“In my respectful view, where an interpreter is provided at the commencement of the trial and a record of this is made, it is desirable and indeed a constitutional duty of the trial judge to record this fact also on subsequent days of the trial when use is made of the interpreter. Where however, the trial judge fails to make a record of the use of the interpreter in subsequent days, the trial is not per se, there [by] vitiated. Where it is shown that the interpreter was not provided where it should have been provided, as where the accused person does not understand the language in which the proceedings are being conducted, different considerations will arise as this raises the question whether such an accused person ever had a fair hearing. In effect, what I am saying is that a breach of Section 33(7) of the 1979 Constitution per se will not necessarily vitiate a trial. A breach of section 33(6)(a) & (e) is, however fatal to a criminal trial as it raises the question whether an accused person had a fair hearing.” (Emphasis supplied)
Per Katsina-Alu, JSC (as he then was) at page 191 lines 1- 14
“In the present case the record shows that the interpreter in English into Ibo and vice versa was affirmed on the first day of the trial. This would presuppose that the appellant did not understand the English Language. Thereafter the record is silent on the presence of the interpreter on the subsequent days of the trial. Was there an interpreter on the subsequent days or not The answer would depend on first whether the accused could affirmatively show that an interpreter was absent and that led to his inability to follow the proceedings. Secondly if it is evident on the record that the accused person followed the proceedings to end, then the presumption of regularity must apply. I do not understand the law as saying that the court must record the presence of the interpreter on every subsequent day of the trial see Peter Locknan & Anor v. The State (1972) All NLR 498.”
This Court in Peter Locknan & Anor v. The State (supra) held at page 501 per Lewis, JSC:
“Now whilst we must of course agree with Mr. Brown-Peterside that the record does not specifically that the interpreter in English into Hausa and vice versa was present on the four days in question when the 5th, 6th, 8th and 9th prosecution witnesses gave evidence, we do not think that once the learned trial Judge had recorded the interpreter as being affirmed on the first day of the trial it was absolutely necessary for him to show on the record that the interpreter was present on every subsequent day, The presumption of regularity must apply and though, if he had noted his presence on each subsequent day, it would have put objections such as this out of the scope of counsel’s argument, we do not think there was an absolute requirement for him to do so” (Emphasis supplied)
Section 33 (7) of the 1979 Constitution referred to in Anyanwu’s case (supra) is in pari materia with Section 36 (7) of the 1999 Constitution (as amended), which provides:
“36 (7) When any person is tried for any criminal offence, the court or tribunal shall keep a record of the proceedings and the accused person or any person authorized by him shall be entitled to obtain copies of the judgment in the case within seven days of the conclusion of the case.”
In the cases referred to above, this court emphasized the fact that the failure to record the presence of an interpreter on subsequent trial dates, after making such record at the commencement of the trial, would not be sufficient to vitiate a trial unless there is evidence showing specifically that there was no interpreter present and that the accused person was unable to follow the proceedings. In other words, the mere absence of a record of the presence of an interpreter does not amount to proof that there was none or that the accused present right to fair hearing was breached. The presumption of regularity as provided for in Section 150 (1) of the Evidence Act (now Section 168 (1) of the Evidence Act 2011, as amended) will apply in the absence of any evidence to the contrary. See: Akujinwa Vs Nwaonuma (1998) 13 NWLR (Pt.583) 632 @ 646 B – C; (1998) 11 – 12 SC 112 @ 115; Akpan v. The State (2002) 12 NWLR (Pt.780) 189 @ 202 C; (2002) 5 SC (Pt.II) 110 @ 114.
In the instant case, there was no specific evidence placed before the court to show that there was no interpreter present or that the respondent was unable to follow the proceedings. The presumption therefore is that an interpreter was present and that the respondent fully understood the proceedings.
Another contention by the respondent is that by stating that the accused person “perfectly appeared to understand” the charge, the learned trial Judge had exhibited a degree of uncertainty or doubt as to whether he understood the charge against him or not. It was further argued that in the absence of a question and answer session, duly recorded by the court, there was nothing to show that the respondent fully understood the essential ingredients of the offence with which he was charged.
In the course of this judgment, I reproduced part of the proceedings of 1/12/08 when the respondent pleaded guilty to the charge. It was evident that he understood what was interpreted to him because he informed the court that what was recovered from him belonged to someone else. He did not deny being in possession of the substance. Black’s Law Dictionary 8th edition at page 838 defines “interpreter” as “a person who translates, esp. orally from one language to another.”
The Chambers 20th Century Dictionary New Edition, 1983 at page 1373 defines “translate” inter-alia as “to render into another language; to express in another artistic medium; put in plainer terns, explain.” It follows from these definitions that interpretation necessarily involves some measure of explanation. As noted earlier, from the responses given by the respondent, it was evident that he understood the charge against him and was able to follow the proceedings. With due respect to learned counsel for the respondent, there was no uncertainty implied when the trial court held that the respondent appeared “perfectly” to understand the change against him before pleading thereto. The case of Umuolo v. The State (2003) 3 NWLR (Pt.808) 493, a decision of the Court of Appeal relied upon by learned counsel for the respondent, is distinguishable from the facts of this case because in that case it was clear from the record that the court did not record the language understood by the accused person and though he was represented by counsel, his counsel failed to inform the court that his client did not understand the language in which the trial was conducted. In Okeke Vs The State (2003) 15 (Pt.842) 25, also relied upon by learned counsel for the respondent, the accused person spoke English Language throughout the proceedings in the two Lower Courts where he was also represented by counsel. Although this court set out the requirements of a valid arraignment, which includes a record that the accused person understood the charge, it concluded at the end of the day that the appellant fully understood the charge against him and sensibly pleaded not guilty thereto. The court also noted that at no time did the appellant complain about his arraignment throughout the trial and at the Court of Appeal. The authorities therefore do not advance the respondent’s case. Rather, they support the appellant’s contention that the respondent understood the charge and was able to follow the proceedings through an interpreter. See: Akpan Vs The State (supra) at 114 – 115.
This leads us to Issue 5 wherein the appellant contends that the Lower Court was in error when it held that the respondent was not afforded a fair hearing. The basis of the finding of the Lower Court can be found at page 96 of the record where the Lower Court held:
“In my resolution of the first issue in this appeal, I came to the conclusion that there is nowhere in the record of appeal where the appellant is recorded in his own words to have admitted the ingredients of the offence as reflected in the charge against him. I emphatically stated that the provision of S.218 of the CPC was not followed. In a criminal trial where a plea of guilty by the accused is not so certain and clear, the trial judge is at liberty to order for a full trial. In the instant case the learned trial judge in his wisdom decided to listen to the prosecutor. At page 16 of the record of this appeal, after recording the appearance of the accused and learned counsel for the respondent herein, the court went on to enumerate the items that were admitted as exhibits at the last adjourned date. …I have read through the proceedings and there is nowhere where the appellant admitted ownership of all the exhibits. … Neither the prosecutor nor any independent witness was recorded as having tendered the exhibits in evidence. Nobody was recorded as having interpreted in proceedings at pages 15 and 16 of the printed record of appeal…”
The Lower Court went on to consider the exhibits tendered and was of the view that they ought to have been tendered through witnesses and that evidence ought to have been led to show that the respondent statement was interpreted to him and the person who interpreted the statement called to testify, it was for these reasons that it concluded that the respondent’s right to fair hearing had been breached. Section 285 (1) and (2) of the CPA has been reproduced earlier in this judgment. For the purpose of emphasis, sub-section (2) is reproduced again hereunder. It provides:
“S.285 (2) 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 the passed me court shall proceed to sentence.”
The above provision shows that once it is clear that the accused person understands the charge and intends to admit the offence and in the absence of any cause shown to the contrary, the court shall proceed to convict and sentence him accordingly. This court, in Omoju Vs Fed. Republic Of Nig. (2008) 2- 3 SC (Pt.1) 1 @ 20 per Tobi, JSC held thus:
“I do not see any language in Section 218 [of the CPA] suggesting that the court must ask the appellant if he admits all the essentials of the offence of which he pleads guilty. All that the section requires is that the court must be satisfied that the accused person intended to admit the truth of all the essentials of the offence. In the language of the section, the exercise is within the mind of the judge and does not go out to meet the accused. Whether the Judge is satisfied or not, remains his subjective judgment. The moment the Judge is so satisfied, the can convict and pass the appropriate sentence.”
In a non-capital offence, where the accused person pleads guilty to the charge, the court is at liberty to adopt a summary trial procedure and convict and sentence the accused person based on the facts presented by the prosecution. The law does not require a full trial in the circumstance. On the other hand, in the case of a capital offence, even where the accused pleads guilty to the charge, by convention, the court would enter a plea of not guilty, whereupon a full trial would be conducted, See: Tobby Vs The State (2001) 4 SC (Pt.II) 160 @ 168.
I have held in the course of this judgment that the charge was interpreted to the respondent in the language he understands; he pleaded guilty thereto; the facts of the case were reviewed by the prosecution and exhibits tendered. To buttress his understanding of the charge, he informed the court that the substance found in his possession did not belong to him. However, he was charged under Section 19 of the NDLEA Act Cap, N30 LFN 2004, which provides as follows:
“S.19. Any person who, without lawful authority, knowingly possesses the drugs popularly known as cocaine, LSD, heroin or any other similar drugs shall be guilty of an offence under this Act and liable to be sentenced to imprisonment for a term not less than fifteen years and not exceeding 25 years.”
The offence lies in the unlawful possession of the substance and not ownership thereof. In other words a person found in unlawful possessing of cocaine, LSD, heroin or any other similar drug such as Indian hemp in this case, need not be the owner. The respondent did not deny being in possession of the substance. The court was therefore satisfied that he intended to admit the offence. When the exhibits were tendered, the record of the court shows that he admitted being the owner of the exhibits and being the maker of Exhibit F. Clearly, some question must have been put to him to elicit that response. Having pleaded guilty to the charge there was no need to call any witnesses to testify. He was therefore rightly convicted on his admission of guilt. There was no breach of his right to fair hearing in the circumstance.
In light of the various findings above, issues 1, 4 and 5 are hereby resolved in favour of the appellant
Issues 2 & 3
The appellant contends that the Lower Court raised the following issues suo motu and resolved them against it without calling upon the parties to address the court in respect thereof:
a. Whether or not from the record the respondent pleaded guilty to the charge against him; and
b. Whether the respondent admitted ownership of Exhibits A – F.
Learned counsel for the appellant submitted that none of the 14 grounds of appeal in the amended notice of appeal dated 18/1/2011 filed at the Lower Court challenged the recording of the respondent’s plea of guilty. He submitted that this was so because it was common ground between the parties that he pleaded guilty to the charge and that the court properly recorded his plea. He referred to the finding of the Lower Court at page 100 of the record where the court held that there was no evidence that the respondent pleaded guilty and submitted that the court was in error to have raised the issue suo motu, and that having so raised it, it committed a further error by failing to invite the parties to address the court on ii. He submitted that it is the notice and grounds of appeal of the appellant that defines and determines the boundaries of the contest between the parties and that it is settled law that neither the court nor the parties may extend the boundaries of the contest in an appeal beyond the issues properly arising from the notice and grounds of appeal. He referred to: Ojoh Vs Kamalu (2005) 18 NWLR (Pt.958) 523 @ 568 B – C. In support of his contention that there was no dispute as to the fact that the respondent pleaded guilty to the charge, he referred to several portions of the appellant’s (respondent herein) brief of argument at the court below at pages 47, 55 and 57 of the record wherein learned counsel’s argument were premised on the fact that the respondent pleaded guilty to the charge. He submitted that the Lower Court was therefore not entitled to make a different case from the one made by the parties. He relied on: Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt.1079) 172 @ 223 C – D; Union Bank Of Nigeria PLC Vs Emole (2001) 18 NWLR (Pt.745) 501 @ 518; Adejugbe v. Ologunja (2004) 6 NWLR (Pt.868) 46 @ 70 C – D & 76 C – D. He submitted that by raising the issue suo motu giving the appellant an opportunity to address the court on the issue, its constitutional right to fair hearing was breached, thereby rendering the Lower Court’s judgment a nullity. He referred to: Leader and Company Ltd v. Bamaiyi (2010) 18 NWLR (Pt.1225) 329 @ 338 D – G; Katto v. C.B.N. (1999) 6 NWLR (Pt.607) 390 @ 411 E – G.
Learned counsel submitted that the Lower Court’s conclusion that the respondent did not plead guilty to the charge against him weighed heavily on its mind throughout its judgment, ultimately resulting in his discharge and acquittal.
With respect to the second issue as to whether or not the respondent admitted ownership of Exhibits A – F, learned counsel submitted that there was no ground of appeal challenging the recording by the learned trial judge of the respondent admission of ownership of Exhibits A – F. He therefore maintained that the court was wrong to have raised and resolved the issue suo motu without inviting the parties to address the court. On the effect of the breach of the appellant’s right to fair hearing he referred to: University of Calabar v. Essien (1996) 10 NWLR (Pt.477) 225 @ 248 F; Ejezie v. Anuwu (2008) 12 NWLR (Pt.1101) 446 @ 474 – 475 H – C. He urged the court to resolve these issues in the appellant favour.
In response to the foregoing submissions, learned counsel for the respondent argued that the issues were not raised suo motu but fully borne out of the record in the court below. On the issue as to whether the record showed that the respondent pleaded guilty to the charge, he submitted that learned counsel for the appellant failed to avert his mind to grounds 2, 3, 6, 11, 12 and 13 of the amended notice of appeal at pages 36 – 44 of the record; issue (a) argued at pages 48 – 53 of the record by learned counsel for the respondent (then appellant) at the Lower Court issue 1 argued at pages 67 – 71 of the record by learned counsel for the appellant (then respondent), which was formulated from grounds 2, 5, 6, 7,8, 9 and 14 of the amended notice of appeal, He also referred to paragraphs 4.04 and 4.06 of the appellant’s (respondent’s) brief. He submitted that the Lower Court made findings and applied the law only in respect of issues validly canvassed and argued by the parties, He submitted that the appellant cannot approbate and reprobate and that it is bound by the record of appeal. He relied on Akaninwo Vs. Nsirim (2008) All FWLR (Pt.410) 610, 663 C-D.
As to whether or not, from the record of appeal, the respondent admitted ownership of Exhibits A – F, he referred to grounds 1, 3, 4, 5, 6, 7 and 8 of the amended notice of appeal at pages 36 – 43 of the record; issue (a) argued at pages 48 – 53 of the record and issue 2 argued by the appellant (respondent therein) at pages 71 – 73 of the record of appeal and urged the court to hold that the issue was also borne out of the record and grounds of appeal and arguments canvassed by the parties at the Lower Court.
The law is quite settled that grounds of appeal must arise from the decision appealed against and the complaint must be against the ratio of the decision. See: Ikweki Vs Ebele (2005) 11 NWLR (Pt.936) 397 @ 424 – 425 A – G; 434 C – H; Egbe Vs Alhaji (1990) 1 NWLR (pr.128) 546 @ 590. Similarity, issues for determination must arise from and be limited to the grounds of appeal. See: Egbe Vs Alhaji (supra), Leedo presidential Hotel Ltd. Vs B.O.N. Ltd, (1993) 1 NWLR (Pt.269) 334; Agbaisi Vs Ebikorefe (1997) 4 NWLR (pt.502) 630.
A careful perusal of the amended grounds of appeal referred to by learned counsel for the respondent reveal the following complaints:
a. That the trial court erred it convicting the respondent on his plea of guilt when
i. The appellant was unrepresented by counsel and not requested to react to the facts presented by the prosecution; (Ground 1)
ii. there was no evidence that the alleged substance was cannabis sativa; (Ground 2)
iii. the exhibits tendered were not disclosed to the respondent prior to the trial; (Grounds 3 & 4)
iv. Exhibit F was not tendered through the recorder; (Ground 11)
v. The proceedings were not interpreted to the respondent; (Grounds 12 & 13)
b. That the trial court erred when it failed to hold that mere plea of guilty and prosecutor’s presentation of facts/exhibits does not prove the offence charged, prosecution having called no witnesses. (Grounds 5, 6, 7, 8 & 9).
c. That the trial court erred in convicting and sentencing the respondent to 15 years imprisonment in the absence of any record of previous conviction.
It is quite evident from the above complaints that they are all premised upon the fact that the respondent pleaded guilty to the charge. There is no complaint against the actual plea. The challenge is with regard to the procedure adopted by the trial court based on the guilty plea. Issue (a) of the respondent’s brief of argument (as appellant at the Lower Court), which learned counsel for the appellant contends was distilled from grounds 2, 5, 6, 7, 8, 9 and14 of the additional grounds of appeal is as follows:
“Whether the conviction and sentence of the appellant on the lone court charged (sic) against him was not null and void, the prosecution having failed to prove the charge beyond reasonable doubt” (See paragraph 4.1 at page 46 of the record).
In paragraph 4.2 of the respondent’s (appellant’s) brief also at page 48 of the record, learned counsel submitted:
“Appellant’s main contention is that the count of offence charged against him, for which he was convicted and sentenced to 15 years imprisonment was not proved at all. Further, that the plea of guilt which he made to the said court was immaterial and could not sustain any conviction, let alone the sentence of 15 years based on it.” (Emphasis supplied)
It is thus evident that there is no complaint in any of the grounds of appeal that the respondent did not plead guilty to the charge.
I have also carefully perused the grounds of appeal to determine whether there is any ground alleging that the respondent did not admit ownership of the exhibits tendered. The thrust of the grounds of appeal in relation to Exhibits A – F is that the prosecution ought to have called specific witnesses to prove their authenticity or veracity. The Lower Court made the following findings at pages 92 – 93 and 97 of the record:
“… I am of the firm view that there is no evidence that the appellant admitted or intended to admit the offence for which he was charge (sic). This being so the Lower Court should have ordered for a full trial… The Lower Court was therefore in error when it convicted the appellant on a plea of guilt that is not apparent on the face of the record.
…I have read through the proceedings and there is nowhere where the appellant admitted ownership of all the exhibits. The proceedings in which some items were admitted as exhibits A – F is at page 14. Neither the prosecutor nor any independent witness was recorded as having tendered the exhibits in evidence and accused was called upon to react to the application to tender those items in evidence,”
From my review of the complaints as contained in the grounds of appeal, I am in agreement with learned counsel for the appellant that the findings of the Lower Court were based on issues raised by it suo motu and without affording the parties an opportunity to address the court in respect thereof. The printed record clearly does not support the views expressed by the court. The court is bound to confine itself to the case presented and the issues raised by the parties. It has no business considering an issue not properly brought before it. See: A.D.H. Ltd. Vs Amalgamated Trustees Ltd. (2007) ALL FWLR (Pt.392) 1781 @ 1807 E – F; Akinfolarin Vs Akinnola (1994) 3 NWLR (Pt.335) 659 @ 680 – 681 H – A; Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt.1079) 172 @ 223 C – D; Ojoh Vs Kamalu (2005) 18 NWLR (Pt.958) 523 @ 568 B – C.
The parties are also bound by the case they have made out on their pleadings, or in this case on the grounds of appeal. Even if the issues were raised by way of submissions in their briefs of argument, they go to no issue, as there are no grounds of appeal to support them, In effect, issues 2 & 3 are answered in the negative and are hereby resolved in the appellant’s favour.
Having resolved issues 1, 4 & 5 in the appellant’s favour, a consideration of issue 6 becomes academic. The appeal therefore succeeds and is hereby allowed. The judgment of the Lower Court delivered on 6/12/2011 overturning the conviction and sentence of the appellant by the trial court is hereby set aside. The judgment of the Federal High Court, Port Harcourt Division, delivered on 17/12/2008 convicting the appellant and sentencing him to 15 years imprisonment for unlawful possession of Indian Hemp otherwise known as cannabis sativa, is hereby affirmed.
In the event that the appellant has been released from prison custody he shall be re-arrested forthwith to complete the 15-year term of imprisonment imposed by the trial court which began to run from the date of his arrest as stated in the charge sheet i.e. 8th May 2008. The remaining period of the sentence shall be calculated from the date of his re-arrest until the term of 15 years is completed.
SC.128/2012
