CONSTITUTIONAL LAW – National Drug Law Enforcement Act – measures up as an existing law which the National Assembly could legislate and has co-opted as its enactment – passed as a Decree by the Federal Military Government and latter modified by the National Assembly to align it with Constitutional provisions

CRIMINAL LAW – confessional statement – can alone ground conviction of an accused person – desirable but not mandatory to produce some other evidence consistent with confession

CRIMINAL LAW – voluntary confession and/or a plea of guilt – probative value of – best evidence to rely on to convict an accused person

CRIMINAL PROCEDURE – commencement of criminal trial – strict compliance with procedure set out in Section 215 of the Criminal Procedure mandatory – procedure must be repeated over again if charge amended during trial – consequences of failure to comply with procedure – renders the trial defective no matter how well conducted and liable to be declared a nullity by an appeal court – applicable when accused person pleads guilty to a capital offence, for the reason that the court would enter a plea of not guilty for him and evidence led as if accused entered a not guilty plea – not applicable if accused person pleads guilty to a non-capital offence – mandatory that accused must plead himself

CRIMINAL PROCEDURE – defect in charge – proper time to object thereto – immediately after the charge was read over to accused – objecting on appeal futile and constitutionally violative

CRIMINAL PROCEDURE – defect in charge – raising objection thereto – must be based on adequate grounds viz. accused must be misled and prejudiced thereby as to occasion a miscarriage of justice.

LEGISLATION – Section 215 of the Criminal Procedure Act confers discretion on the judge on how to proceed when an accused person pleads guilty.

WORDS AND PHRASES – existing law – meaning of – a law that has not been repealed and has been adopted by the National Assembly as its own Act, or a House of Assembly after necessary modifications, where necessary to bring it into conformity with the provisions of the constitution.

Précis

In a summary trial after his plea of guilty the Appellant was tried, convicted and sentenced by the Federal High Court to a jail term for the offence of importing cocaine without lawful authority, contrary to and punishable under Section 10 (a) of the National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation 1990.

The appellant was apprehended at the Nnamdi Azikiwe International Airport by National Drug Law Enforcement Agency on arrival from Amsterdam’s Schiphol Airport. An initial search of his bag by NDLEA officials revealed nothing. He was then taken into the NDLEA office and directed into the toilet, where he moved his bowels and egested expertly enwrapped substances which were packaged in his presence and sent to NDLEA Drug Laboratory for analysis. A Drug Analysis Report was subsequently issued and the substance recovered from the appellant was found to be cocaine. The appellant voluntarily wrote two confessional statements confirming that the substances were cocaine.

At his arraignment, the appellant pleaded not guilty, but changed his plea to guilty on the subsequent adjourned date and was re-arraigned. In the light of his plea of guilty, the exhibit tendered, the confessional statements and the recovered drug, the trial court found the accused person guilty as charged and convicted and sentenced him to a jail term.

The appellant appealed to the court of appeal, which dismissed his appeal as lacking in merit.

The Appellant further appealed to the Supreme Court. His contention at the Supreme Court was, inter alia, that the omission of the word ‘‘Act’’ from the citation of the Law under which the appellant was charged made it non-existing law. The citation of the Law in in the charge read ‘’National Drug Law Enforcement Agency Cap 253 Laws of the Federation 1990’ when it ought to have read ‘’National Drug Law Enforcement Agency Act Cap 253 Laws of the Federation 1990.’’ It was also argued on behalf of the appellant that the trial court ought not to have convicted the appellant on his plea of guilty in the absence of an absolutely unambiguous certitude that the cocaine tendered in court by the prosecution was the same as was recovered from the appellant. He said a possibility exists that the cocaine recovered from appellant was tampered with or substituted with something else, and more so as there was a difference between the quantities of what was recovered and what was tendered. Finally, appellant’s counsel argued that the plea and trial of the appellant was a nullity by reason of non-compliance with Section 218 of the Criminal Procedure Act because, according to him, there is no record that the charge read and or explained to the accused person; and that, hence as the charge is not shown to have been understood by the appellant, a miscarriage of justice had been thereby occasioned. The Supreme Court was urged to uphold the appeal.

In answer, the respondent’s counsel observed that the trial judge under Section 10 of the NDLEA Act, which is an existing law, and that the accused was not misled by the omission of the word ‘‘Act’’ from the charge. He said that before a defect in a charge could lead to reversal of a judgment on appeal, it must be shown that the appellant was in fact mislead thereby. Respondent’s counsel also contended that appellant’s confessional statement is sufficient proof of the offence. Finally, respondent’s counsel submitted that appellant’s arraignment was in strict compliance with the law. He urged the apex court to dismiss the appeal.

The apex court affirmed the Court of Appeal’s finding on the said omission that same was an irregularity that is not fatal and did not prejudice the appellant as to occasion a miscarriage of justice to the appellant or nullify his trial and conviction.

ISSUES [as formulated by the Appellant and adopted by the Supreme Court]

1. Whether the charge against the appellant was based on an existing law and whether he can be convicted on such.

2. Whether it can be said that the exhibit tendered in court (cocaine) has been proved to be the same that was recovered from the appellant

3. Whether there exists strict compliance with the law when the appellant took his plea to the charge.

HELD, dismissing the appeal,

1. An existing law is a law that has not been repealed and has been adopted by the National Assembly as its own Act, or a House of Assembly after necessary modifications, where necessary, to bring it into conformity with the provisions of the constitution.

2. The National Drug Law Enforcement Act was made by the Federal Military Government as a Decree. It came into force on the 29th day of December 1989. It has been modified by the National Assembly for the purpose of bringing it into conformity with the provisions of the Constitution. It is a law which the National Assembly could make, and it has been accepted by the National as its Act. It is existing law.

3. The time to object to the omission of ‘‘Act’’ in the charge was on 17/12/03 immediately after the charge was read to him and that is if he was misled by the omission. An objection on appeal is a waste of time, and contrary to the clear provisions of Section 167 of the Criminal Procedure Act. The omission of ‘‘Act’’ in the charge did not prejudice the appellant as to occasion a miscarriage of justice.

4. The charge against the appellant was based on an existing law, and the conviction was very much in order, since he was convicted under Section 10 of the NDLEA Act.

5. To succeed on the charge, the respondent must prove beyond reasonable doubt:

i. That the substance was cocaine

ii. That the substance was in the possession of the appellant

iii. That the substance (cocaine) was in the appellant’s possession to his knowledge and without lawful authority

6. Both statements are confessional statements and the well laid down position of the law is that an accused person can be convicted on his confessional statement alone, though it is desirable but not mandatory that some other evidence consistent with the confession is produced. See: R. v. Kanu (1952) WACA PG. 30; Aremu v. State (1991) 7 NWLR (pt. 201) pg.1

7. The confession by the appellant that he ingested well wrapped cocaine and thereafter secreted it was free and voluntary and in itself fully consistent and probable. The inculpating statements were corroborated by exhibits A, B, C, D and the testimony of the forensic expert. The end result is that the confessions were indeed true. There is a rebuttable that the exhibits (cocaine) were kept in safe custody before they were sent for analysis. Failure of the appellant to prove the contrary makes the presumption irrebuttable. The suggestion by the appellant that the exhibits might have been tampered with remains in the realm of speculation which is very unreliable evidence.

8. 5 grams of a substance was sent for analysis and 5 grams was examined and found to be cocaine. It is clear to my mind that the substance sent for analysis was not tampered with. The drug sent for analysis was the same that was recovered from the appellant.

9. A voluntary confession and/or a plea of guilt are the best evidence to rely on to convict an accused person. The appellant made two voluntary confessions and pleaded guilty to being in possession of cocaine which he excreted. On such facts the appeal is devoid of merit.

10. At the commencement of a criminal trial there must be strict compliance with the provisions of Section 215 of the Criminal Procedure. That is to say:

(a) The accused person must be placed before the court unfettered unless the court otherwise directs, e.g. he may be fettered if the judge is satisfied that the accused shows signs of being violent.

(b) must be read over and explained to the accused person in the language he understands by the Registrar of court or other officer of the court

(c) the accused person must be called upon to plead to the charge.

The above requirements are mandatory and must be strictly followed. If the charge is amended during trial the procedure must again be complied with. The procedure under Section 215 of the Criminal Procedure Act guarantees fair trial of the accused person. Failure to satisfy any of the above (a) to (c) would render the trial no matter how well conducted defective and declared a nullity by an appeal court. See: Josiah v. State (1985) 1 NWLR (pt. 1) pg. 125; Eyorokorome & Anor v. State (1979) Vol. 2 NSCC pg. 6; Kajubo v. State (1988) 1 NSCC Vol. 19, pg. 475; Effiom v. State (1995) 1 NWLR (pt. 373) pg. 507

11. Section 215 of the Criminal Procedure Act confers discretion on the judge on how to proceed when an accused person pleads guilty. If the accused person pleads guilty to murder, a plea of not guilty should be recorded on his behalf. [See: R. v. K. Mansu (1947) 12 WACA pg. 113] Evidence would then be led as if he entered a not guilty plea. If on the other hand the accused person pleads guilty to an offence that does not carry the death sentence, the mandatory requirements of Section 215 of the Criminal Procedure Act no longer apply. What is required is that the accused person must plead himself. If he pleads trough his counsel or through some other person the trial is a nullity. See: R. v. Boyle (1954) 2 QB pg. 292; R. v. Ellis (1973) 57 Cr App R pg. 57

12. After a plea of guilty the trial judge may proceed to convict and sentence the accused person based on the plea of guilty and the evidence before the court.

13. To my mind the 2nd plea taken by the appellant where he pleaded guilty after the charge was read to him was in strict compliance with section 218 of the Criminal Procedure Act. There was no need for the charge to be read over and explained to him as this was done when he took his first plea. The mandatory requirements of Section 215 of the Criminal Procedure Act are no longer applicable after the 2nd plea of guilty was made.

 

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