3PLR – ALHAJI PRINCE FAROUNBI KAREEM V. THE FEDERAL REPUBLIC OF NIGERIA

POLICY, PRACTICE AND PUBLISHING,  LAW REPORTS – 3PLR

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ALHAJI PRINCE FAROUNBI KAREEM

V.

THE FEDERAL REPUBLIC OF NIGERIA

IN THE COURT OF APPEAL

[IBADAN DIVISION]

3PLR/2001/123  (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS:

SUNDAY AKINOLA AKINTAN, JCA (Presided)

FRANCIS FEDODE TABAI, JCA.

OLUFUNLOLA OYELOLA ADEKEYE, JCA (Delivered the leading judgment)

 

REPRESENTATION

Chief A.A. Aribisala for the appellant.

F.A. Oloruntoba, Esq., for the respondent.

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Power vested in court under section 10(5) of the Special Tribunal Miscellaneous Act 1990 to convict an accused for offence other than that charged – effect of appellant not challenging exercise of same on appeal – attitude of court there to.

PRACTICE AND PROCEDURE – COURT – Power vested in court under section 10(5) of the Special Tribunal Miscellaneous Act 1990 to convict an accused for offence other than that charged – effect of appellant not challenging exercise of same on appeal – attitude of court there to.

CRIMINAL LAW AND PROCEDURE – Confessional statement – retraction of same by accused – effect of – whether accused person would be allowed to retract same under re-examination.

CRIMINAL LAW AND PROCEDURE – Confessional statement – when sufficient to sustain a conviction.

CRIMINAL LAW AND PROCEDURE – Conviction – conviction of accused for offence other than that charged – power of court thereof – whether constitutes a breach of the constitutional provision of fair hearing.

CRIMINAL LAW AND PROCEDURE – Conviction – conviction of accused for offence other than that charged – power of court thereof under the Criminal Procedure Act and Code – circumstances when it can be exercised.

CRIMINAL LAW AND PROCEDURE – Conviction – conviction of accused for offence other than that charged – power of court thereof under section 10(5) of Special Tribunal Miscellaneous Act, 1990 (formerly Decree 20 of 1984 ) – effect of appellant not challenging same.

CRIMINAL LAW AND PROCEDURE – Criminal prosecution – proof of guilt of accused person – duty on prosecution to establish the case against the accused.

CRIMINAL LAW AND PROCEDURE – Proof of crime – duty on prosecution to call only material witnesses – whether evidence of one witness is sufficient to ground conviction.

PRACTICE AND PROCEDURE – EVIDENCE – Confessional statement – retraction of same by accused – effect of – whether accused person would be allowed to retract same under re-examination.

PRACTICE AND PROCEDURE – EVIDENCE – Proof of crime – duty on prosecution to call only material witnesses – whether evidence of one witness is sufficient to ground conviction.

 

OLUFUNLOLA OYELOLA ADEKEYE, JCA (Delivered the following judgment): The appellant Alhaji (Prince) Farounbi Kareem was charged before the Miscellaneous Offences Tribunal sitting in Lagos on the 9th day of December 1994, along with three other accused persons namely Oluwole Korede Lawal, Alhaji Atanda Mufutau Idris and Tunde Sosanya. They all pleaded not guilty initially. But as the trial progressed on the 7th of September 1995, the accused Oluwole Korede Lawal changed his plea to that of guilty-whereupon he was summarily tried, convicted and sentenced on the 19th of September 1995.

 

The third and fourth accused persons – Alhaji Atanda Mufutau Idris and Tunde Sosanya also changed their plea to guilty and they were equally convicted and sentenced on the 12th of January 1998. The appellant stood full trial before the tribunal whereupon he was arraigned on a two-count charge, which reads: –

Count One-

 

“That you Alhaji Prince Farounbi Kareem (M), Alhaji Mufutau Idris Atanda (M), Tunde Sosanya (M) on or about the 22nd day of March at No.1 Amoo Farounbi Drive Isolo, Lagos dealt in 467 grammes of heroin by selling same to one Oluwole Korede Lawal and thereby committed an offence punishable under section 10(c) of the National Drug Law Enforcement Agency Decree No.48 of 1989.”

 

Count two –

 

“That you Alhaji Prince Farounbi Kareem (M) on or about the 23rd day of March 1994 at No. 1 Amoo Farounbi Drive, Isolo, Lagos dealt in 2.5 kilogrammes of India hemp otherwise known as cannabis sativa drug similar to cocaine, LSD or Heroine without lawful authority and thereby committed an offence punishable under section 10(c) of The National Drug Law Enforcement Agency Decree No.48 0f 1989.”

 

At the trial against the appellant, the prosecution called six witnesses, and the appellant called two. The statements of Korede Lawal who gave the names of other co-accused persons as accomplices in the crime were tendered as exhibits 30-32. The house of the appellant was searched and photocopies of the traveling documents of Korede Lawal were found in the house of the appellant – these were tendered as exhibits 29-31. Other passports marked exhibits 34-36, cheque booklets and nine passbook marked exhibits 37-41 were also recovered in his house. At the conclusion of trial, in a judgment delivered by the tribunal on 9/12/98 the appellant was convicted for dealing in 400 grammes of heroine which he gave to Korede Lawal to carry to America, an offence contrary to and punishable under section 10(c) of NDLEA Decree No.48 of 1989. He was sentenced to six years imprisonment. The appellant was discharged and acquitted on count 2 as the prosecution failed to prove the charge against him.

 

Being dissatisfied with his conviction and sentence the appellant filed an appeal to this court. He filed his notice of appeal with four grounds of appeal on 17/10/2000. Parties settled records and exchanged briefs. When the appeal was argued, the appellant relied and adopted the brief filed on 17/10/2001, in which he formulated three issues as follows: –

 

Issue one

 

Whether the trial court was right in law in holding that the appellant dealt in 400 grammes of heroin even though the prosecution failed to discharge the onus placed upon them to prove the guilt of the appellant beyond reasonable doubt.

 

Issue two

 

Whether exhibit 52 was properly evaluated as a confessional statement by the learned trial Judge in view of its retraction at the trial by the appellant.

 

Issue three

 

Whether the learned trial Judge was right in law in convicting the appellant under section 10(c) NDLEA Decree No.20 of 1984 amended by Decree No. 22 of 1986 even when the said legislation was inconsistent with the section 33 of the 1979 Constitution and thereby denied the appellant the right of fair hearing. The foregoing issues flow from the ground is of appeal filed by the appellant.

 

The respondent in the brief filed on 26/4/2001 though relied on the three issues identified by the appellant – but argued against them.

 

Issue No.1

 

The appellant in his argument referred to section 138(1) of the Evidence Act, Cap.112, Laws of the Federation, 1990, which placed the burden of proving the guilt of the appellant beyond reasonable doubt on the respondent. That this could only be attained if the prosecution had proved all the essential elements of the offence in the charge. The court has to look for those ingredients so as to ascertain whether the acts of the accused come within the particulars of the offence charged. The charge before the court was that of dealing in 467 grammes of heroin by selling same to Oluwole Korede Lawal contrary to section 10(c) of the National Drug Law Enforcement Agency Decree No.48 of 1989. The conclusion of the trial Judge was that the prosecution did not prove its case as per the count charged but he found for the prosecution that the accused, Segun and Alhaji Atanda have dealt in 400 grammes of heroin by receiving money from Segun and buying some quantity of drugs which he gave Korede Lawal to carry to the United States of America an offence punishable under section 10(c) NDLEA Decree No.48 of 1989. The prosecution failed to satisfy the essential ingredients of section 10(c) on the first count on the charge.

 

From the testimony of PW6, DW1 and PW2 it was the appellant or Mr. Johnny Nwankwo that dealt with drugs, and the only witness whose evidence would have settled the issue one way or the other was Lawal Korede. He was not called by the prosecution; this was fatal to the prosecution’s case, and so the prosecution has failed to discharge the burden on it by section 138 of the Evidence Act to prove his case beyond reasonable doubt. The case was left unsettled as to whether it was the appellant or DW1 and Johnny Nwankwo that dealt in drugs. He cited the cases of State v. Nnolim (1994) 5 NWLR (Pt.345) 394; Ogunsi v. State (1994) 1 NWLR (Pt.322) 583 at 592 F-G. Failure to call Oluwole Korede Lawal also raised the presumption embodied in section 149 (d) of the Evidence Act, Cap.112, 1990. Exhibit 49 and the evidence of DW1 show that it was him and Johnny Nwankwo that sold 400 grammes of heroin to Lawal Korede and the prosecution failed to rebut this by evidence. The appellant is entitled to an acquittal on this issue.

 

By way of reply the respondent referred to the two count charge preferred against the appellant, the evidence led before the tribunal and conviction for 400 grammes of heroin as opposed to the 467 grammes of heroin on the charge. The complaint of the appellant is that although the charge against the appellant was that he dealt in 467 grammes of heroin by selling same to Korede Lawal, he was convicted by the learned trial Judge for dealing in 400 grammes of heroin by transacting business in same.

 

The appellant made an extra judicial statement on 23rd March 1994, after his arrest when the matter was still fresh in his memory exhibit 52 before the court. In determining whether the prosecution has proved its case beyond reasonable doubt the totality of the evidence before the court including that of the accused is usually taken into consideration.

 

By virtue of the Special Tribunal Miscellaneous Offence Act, Cap.410, Laws of the Federation, 1990, section 10(5) the court has statutory power to convict an accused person for an offence which the evidence before the court established even though the accused was not charged with same.

 

Section 10(5) reads: –

 

“Where a person is charged with an offence under this Act but the evidence establishes the commission of another offence under this Act – the offender shall not be entitled to acquittal but may be convicted as provided under this Act.”

 

The learned trial Judge invoked the foregoing section and was supported by evidence that the appellant dealt in 400 grammes of heroin. The onus on the prosecution was to prove essential ingredients of an offence and not to call a particular witness or number of witnesses to prove its case. The court can act on the evidence of one single witness to ground a conviction given all the surrounding circumstances. The respondent cited the case of Ugwumba v. State (1993) 5 NWLR (Pt.296) 660-674. The issue of who gave the drugs to Korede Lawal was crystal clear from exhibit 52 the extra judicial statement of the appellant tendered at the trial without objection from the appellant. It was the responsibility of the appellant to prove to the court that what he said in exhibit 52 could not be correct. The case as related to Johnny Nwankwo was raised in respect of the 2.5 kilogrammes of India hemp, which was found in the premises of the appellant. The evidence of DW1 Alhaji Atanda besides being that of a co-accused the evidence given by him contradicted his statement tendered as exhibit 17 at the trial.

The court is to find this issue in favour of the respondent. He cited the cases of Babalola v. The State (1989) 4 NWLR (Pt. 115) at 264, Onwumere v. The State (1991) 4 NWLR (Pt. 186) 428; (1991) LRCN 984 at 987. It is agreed that in all criminal cases the prosecution has the heavy responsibility to prove the offence preferred against the accused beyond reasonable doubt Okpulor v. The State (1990) 7 NWLR (Pt. 164) 581 at 593; Oduneye v. State (2001) 2 NWLR (Pt. 697) 311; (2001) 83 LRCN 1. The appellant laid emphasis on the failure to call Oluwole Korede Lawal on the issue of who sold the 467 grammes of heroin to him. He was regarded as a material witness and that failure to call him was fatal to the case of the prosecution in the instant appeal.

 

In determining whether the prosecution has established a case beyond reasonable doubt the evidence adduced to establish the ingredients of an offence must be taken together. Equally it is now settled that the prosecution has no duty to call and field all known material witnesses so long as they call and field all material witnesses that they may consider necessary for proof of their case beyond reasonable doubt. Unless where the law prescribes otherwise, there can be a conviction based on the evidence of a sole witness. The number of witnesses called is the prerogative and that at the discretion of the prosecution. The prosecution in order to secure a conviction must obviously call material witnesses in proof of their case – it is immaterial that the testimony of such witness is favourable to or against the prosecution. Korede Lawal is not a vital witness as the issue of who gave the drugs to him was settled by the evidence of PW4 and PW6 and exhibit 52. The evidence of Johnny Nwankwo was relevant in respect of count 2 on which the appellant was discharged and acquitted. The bone of contention of the appellant is that although the charge against appellant was that he dealt in 467 grammes of heroin by selling same to Korede Lawal he was convicted by the Judge for dealing in 400 grammes of heroin by transacting business in same without establishing the ingredients of the latter offence – by going through the length of trial in support before making findings on the guilt and subsequent conviction of the appellant.

 

By this submission the appellant appeared to have lost track of this case, and his argument would have been tenable if the appellant had appealed against the conviction and sentence based on the charge preferred against him on count 1, which was selling 467 grammes of heroin to Oluwole Korede Lawal. There was already evidence before the court that the substance the subject-matter of the charge tested positive to heroin – prohibited drug. The appellant was discharged, as this statement exhibit 51 was not an admission that he sold 467 grammes of heroin to Korede Lawal he was discharged technically on that ground.

In the resume of the steps leading to the conviction and sentence of the appellant as from page 97 line 16 to the end of the page and pages 98-104, the learned trial Judge obviously invoked section 10(5) of Decree No.20 of the Special Tribunal Miscellaneous Act, 1984 as amended by Decree 22 of 1986 now section 10(5) of Cap. 410, Laws of the Federation of Nigeria 1990, which empowered him to convict an accused person if the evidence adduced by the prosecution has disclosed the commission of another offence.

 

The tribunal acted in accordance with the statutory power vested in it having found sufficient evidence in support that the appellant dealt in 400 grammes of heroin vide pages 101-104 of the records. The appellant did not challenge the exercise of this power as being misconceived, arbitrary, malafide or that such had occasioned a miscarriage of justice whereupon this court would be duty bound to disturb the findings, conviction and sentence of the tribunal. This issue is resolved in favour of the respondent.

 

Issue No.2

 

Whether exhibit 52 was properly evaluated as a confessional statement by the learned trial Judge in view of its retraction at the trial by the appellant. The appellant argued in support of this issue that the learned trial Judge relied on his statement to conclude that he confessed to dealing in hard drugs by buying same and giving the 400 grammes of heroin to Korede Lawal to carry to the United States of America an offence punishable under section 10(c) of the NDLEA Decree No.48 of 1989. The appellant under re-examination denied making exhibit 52. The appellant thereupon submitted that since the appellant has retracted or resiled from making exhibit 52, it was incumbent on the learned trial Judge to seek other corroborative evidence to corroborate the confessional statement before it attaches any weight to it. Cases cited in support were Nwangbomu v. State (1994) 2 NWLR (Pt.327) 380 at 397 C-D; Ogoala v. State (1991) 2 NWLR (Pt.175) 509 at 531.

 

The learned trial Judge should have taken into consideration the testimony of PW6, DW1 and exhibit 49- where there were other facts that were inconsistent with the statement in exhibit 52. The tribunal was wrong in law to have accepted exhibits 29-33 as sufficient to corroborate exhibit 52. Exhibits 29-33 were photocopies of the traveling documents of Korede Lawal found in the house of the appellant. The court is to resolve this issue in favour of the appellant. The respondent submitted that the appellant tendered two statements during the course of this trial without any objection and they were admitted in evidence as exhibits 51 and 52. While giving evidence in court under re-examination the appellant denied making exhibit 52. The respondent thereupon contended that the mere fact that exhibit B was retracted at the trial does not affect its admissibility. The court can act on it. The respondent buttressed this with the case of Edamiro v. The State (1996) 3 NWLR (Pt.438) 530 at 541. In the case of Onwumere v. The State (1991) 4 NWLR (Pt. 186) 428; (1991) LRCN 984 at 987 Akpata, JSC as he then was said at page 999 that –

 

“If the accused person resiles from his confessional statement it is his function to explain to the court as part of his defence the reasons for the inconsistency.”

 

The retraction of exhibit 52 goes to no issue while denial of exhibit 52 under re-examination does not amount to retraction in law. When the learned trial Judge concluded that exhibit 52 was a confessional statement, he proceeded to subject it to the usual test before placing reliance on it. He referred to the case of Akpan v. State (1990) 7 NWLR (Pt. 160) 101 at 160 where it was held that; –

 

“It is settled law that if a person makes a free and voluntary confession which is direct and positive and if properly proved, he may be convicted on the confession alone without further evidence.”

 

It was held further that –

 

“a confession of an accused person should be tested as to its truth by examining it in the light of other evidence to determine its veracity.”

 

Corroboration was found in the fact that based on the address given by Korede Lawal, the house of the appellant’s was traced and searched while photocopies of the traveling documents of Korede Lawal were found in the appellant’s house.

 

Exhibit 49 and the oral testimony of PW6 and DW1 were related to the issue of 2.5 kilogrammes of indian hemp the subject-matter of the charge in count 2. The respondent urged the court to resolve issue No.2 in favour of the respondent. It is not disputed that exhibits 51 and 52 were made by the appellant – and tendered in evidence with his consent and without opposition by the respondent’s counsel. Having made the respondent to believe that they were the statements made by him at the time they were admitted in evidence he would now be estopped from turning round to deny making exhibit 52 under re-examination. Hence I agree with the respondent that there was no valid and proper retraction of the statement exhibit 52 by the appellant. At page 101 lines 24-28 the learned trial Judge found that by the statement the accused person confessed to dealing in the hard drugs by buying same and giving same to Korede Lawal to carry to the United States of America – an offence punishable under section 10(c) of the NDLEA Decree No.48 of 1989. The learned trial Judge did not stop there he subjected the confessional statement to the under mentioned questions:

 

(1)     Is there anything outside the confession to show that it is true?

 

(2)     Is it corroborated?

 

(3)     Are the relevant statements made in it of facts true as far as they can be tested?

 

(4)     Was the prisoner one who had the opportunity of committing the offence?

 

(5)     Is his confession possible?

 

(6)     Is it consistent with other facts, which have been ascertained and have been proved?

 

Akpan v. A.-G., Bendel State (1981) 9 S.C 7.

Onochie v. The State (1992) 6 NMLR 307

Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 460.

 

I agree with the submission of the respondent that what the learned trial Judge relied upon were

 

1. The information given by Korede Lawal when he was arrested at Murtala International Airport on the 22nd March 1994 about those who procured the drugs for him.

 

2. The appellant was traced to his house and arrested based on this information.

 

3. A search of the house was conducted where photocopies of the traveling documents of Korede Lawal exhibits 29 – 33 were recovered in the appellant’s house.

 

The learned trial Judge relied upon the foregoing to establish that: –

 

1. There is something outside the confession to show that it is true.

 

2. They have corroborated the confession.

 

3. The relevant statements made in it are of facts true as far as they can be tested.

 

4. That the accused had the opportunity of committing the offence.

 

5. The confession is possible

 

6. The confession is consistent with other facts which have been ascertained and proved.

 

A confession by virtue of section 27(1) of the Evidence Act, Cap. 112, Laws of the Federation, 1990, is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. It is an extra-judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of the offence for which he stands accused. Once an accused person makes a statement under caution saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. Gira v. The State (1996) 6 NWLR (Pt. 443) 375 at 387, Liya v. The State (1998) 2 NWLR (Pt.538) 397 at 408. A confessional statement so long as it is free and voluntary and it is direct, positive and properly proved is enough to sustain a conviction. Edet Obosi v. The State (1965) NMLR 119. Egboghonome v. State (1993) 7 NWLR (Pt.306) 383. Bature v.State (1994) 1 NWLR (Pt.320) 267. Jimoh v. Yesufu (1976) 6 S.C 167.

 

The court should not act on the confession without first testing the truth thereof by seeking any other evidence be it slight, of circumstance which make it probable that the confession is true.

 

Tafiya Kopa v. The State (1971)1 All NLR 150. Jimoh yesufu v. The State (1976) 6 SC 167. Edet Obosi v. The State (1965) NMLR 119.

 

The learned trial Judge rightly subjected the statement of the appellant exhibit 52 to all these tests before he convicted him based on his confessional statement. Finally, retraction or resiling from a confessional statement or denial by an accused person of his having made such a statement does not ipso facto render it inadmissible in evidence.

 

462. v. Itule (1961) All NLR 462. R. v. Sapele and Anor (1957) 2 FSC 24. Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383 at 481.

 

Retraction or resiling from exhibit 52 or even denial under re-examination does not render it unreliable for the purpose of convicting the appellant. I hold that the learned trial Judge properly evaluated the existing evidence and particularly exhibit 52 before proceeding to convict the appellant. Issue No.2 is resolved in favour of the respondent.

 

Issue No.3

 

Relate to whether the learned trial Judge was right in law in convicting the appellant under section 10(c) of NDLEA Decree No.20 of 1984 as amended Decree No.22 of 1986 even when the said legislation was inconsistent with section 33 of the 1979 Constitution and thereby denied the appellant the right to fair hearing.

 

The appellant quoted the relevant portion of the judgment of the learned trial Judge as follows: –

 

“I have to state that this is not the end of the matter. Section 10(5) of Decree No.20 of the NDLEA 1984 as amended by Decree No.22 of 1986. The Decree empowers me to convict an accused person if the evidence adduced by the prosecution has disclosed the commission of another offence though the accused person is not charged with that offence.”

 

The tribunal proceeded to convict the appellant for dealing in 400 kilogrammes of heroin after he was discharged and acquitted in respect of count 1 where the appellant was charged for dealing in 467 kilogrammes of heroin. The steps taken by the tribunal did not take cognizance of section 33(1) and 6(a) of the 1979 Constitution – “which guarantees the right to fair hearing to the appellant and that every person charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.” These provisions were breached in respect of the appellant, as he was not told the nature and content of the case against him before convicting him of dealing with 400 grammes of heroin. The charge on count 1 was before the tribunal, and the appellant was discharged and acquitted of the count, as the prosecution failed to prove this charge.

 

The charge on which the tribunal convicted and sentenced the appellant was not before the tribunal. The decision of the learned trial Judge was in the circumstance of the case perverse – as the nature and content of the offence for which he was convicted was not disclosed to him. The decree which empowered the learned trial Judge to convict the appellant was inconsistent with section 151 of the Criminal Procedure Act and section 33(1) and 33(6) of the 1979 Constitution. The decision of the learned trial Judge was an affront to the doctrine of supremacy of the Constitution. The Constitution safeguards the interest of those arraigned before the court by requiring strict compliance with its provision. The steps taken by the tribunal failed to follow the provision of the Constitution – it is therefore unconstitutional. The entire trial court was a nullity – This court is therefore in the circumstance to order an acquittal of the appellant. The prosecution’s case was at best speculative, fraught with inconsistencies, material doubt and procedural irregularities, while the finding of the learned trial Judge was perverse, and same deserves to be set aside. The appellant referred to the cases of Erekanure v. The State (1993) 5 NWLR (Pt.294) 385 at 393; The State v. Emine (1992) 7 NWLR (Pt. 256) 658 paragraphs C-D.

 

In his reply the respondent referred to the two counts on the charge preferred against the appellant and two others on count I, and against the appellant on count II. He reviewed the evidence before the tribunal particularly exhibit 52 – the extra judicial statement made by the appellant on which he was properly convicted under section 10(5) of the Decree No.20 of 1984 as amended by Decree No.22 of 1986 – now section 10 (5) of the Special Tribunal (Miscellaneous Offences) Act, Cap.410, Laws of the Federation, 1990. Besides the statutory power – judicial authorities favour what the learned trial Judge did. Babalola v. The State (1989) 4 NWLR (Pt.115) 264 at 268 – where it was held that –

 

“Where the evidence adduced by the prosecution failed to support a conviction for that charge but duly establishes the commission by the accused of another offence it is in the interest of the public and putting an end to litigation that the courts are empowered to convict an accused person of an offence other than the one with which he is expressly indicted on the charge.

 

The thrust of the argument of the appellant was that he was not charged for the offence for which he was convicted. The charge against the appellant on count 1 was that he dealt in 467 grammes of heroin by selling same to Korede Lawal – but he was convicted for dealing in 400 grammes of heroin by receiving the sum of =N=190,000.00 with which he bought the 400 grammes of the heroin which he gave to Korede Lawal – and further that the constitutional right of the appellant to fair hearing had been breached. The respondent submitted that quantity is not an essential ingredient of the offence charged. The appellant was not denied fair hearing – as he was charged with dealing in heroin 400 grammes . The appellant had adequate knowledge of the charge preferred against him. The established fact was that a quantity of heroin got to Korede Lawal from the appellant – which act constitutes an offence under section 10(c) of NDLEA Act, Cap. 253, Laws of the Federation, 1990 (Decree No. 48 of 1989).

 

The respondent concluded that section 10(5) of Decree No.20 of 1984 as amended was not inconsistent with section 33 of the 1979 Constitution thereby leading to a denial of the constitutional right to fair hearing guaranteed the appellant by the Constitution. The offence for which the appellant was convicted was not materially different from the one with which he was charged and as such he had notice of the offence for which he was convicted. The respondent concluded that this appeal is frivolous and lacking in merit.

 

Besides agreeing with the foregoing submission of the respondent the court has to determine whether the steps taken by the learned trial Judge in convicting the appellant by invoking the power vested in him by section 10(5) of the Special Tribunal Miscellaneous Offences Act, Cap. 410, Laws of the Federation, 1990 which was Decree 20 of 1984 amended by Decree 22 of 1989.

 

The subsection reads as follows –

 

“and shall repeat the contents again at this point in this appeal for the sake of emphasis and clarity.

 

Subsection (5) says –

 

Where a person is charged with an offence under this Act, but the evidence establishes the commission of another offence under this Act, the offender shall not be entitled to acquittal but he may be convicted of that other offence and punished as provided under the Act.”

 

It is however fundamental that before invoking the foregoing section by the learned trial Judge the act of the appellant must have constituted an offence under section 10(c) of the NDLEA Act, Cap. 253, Laws of the Federation, 1990. All the essential ingredients of the offence must have been established though the appellant was not originally charged with same. It is a statutory power vested In the Courts amply supported by judicial authorities. Such power is not constituted or designed as an affront to the provisions of fair hearing – or that an accused shall promptly be informed of the charge preferred against him – in section 33 of the constitution – but to aid the administration of criminal justice – in the interest of the public and so as to put finality to incessant litigation. (Interest rei publicae ut sit finis litium) Babalola v. The State (1989) 4 NWLR (Pt.115) 264 page 285. The Criminal Procedure Act and Code made adequate provisions for such powers to be invoked by the courts in the administration of criminal justice whereupon the court may reach the decision that the accused committed another offence, other than that for which he was expressly arraigned before the court. In the criminal process an accused person can only be found guilty in respect of the offence for which he is charged and an offence to which he had pleaded guilty. There are circumstances where the evidence adduced by the prosecution in support of the charge against the accused had failed to support a conviction for that charge, but fully establishes the commission by the accused of a kindred offence. There must be provisions in the principal enactment, which permit the court to convict for the kindred offence for which the accused was not arraigned before the court. The evidence adduced at the trial must show that the accused committed an offence other than the offence charged. Instances of such to mention a few are: –

 

1. Where an accused is charged with an offence, and there is a doubt as to which particular offence was committed by the accused, he may be convicted of any offence, other than the offence with which he was charged, if it appears from the evidence that he committed that offence section 217 of the Criminal Procedure Code.

 

2. Where an accused is charged with a grave offence, he may be convicted of a lesser offence, where the offence charged consists of several particulars, where the lesser offence is proved by the evidence adduced and the remaining particulars are not proved – section 179 (1) Criminal Procedure Act, and section 218 (1) of the Criminal Procedure Code. Maja v. State 1980 1 NLR 212.

 

3. Where an accused is charged with an offence and facts are proved which reduces it to a lesser offence he may be convicted of the lesser offence even though he was not expressly charged. Section 179 (2) Criminal Procedure Act and section 218 (1) Criminal Procedure Code.

 

In invoking the provisions to convict an accused for an offence with which he is not expressly charged, the court is not required to hear evidence from the accused on the other offence with which he is to be convicted.

 

In the case of Nwachukwu v. The state (1986) 2 NWLR (Pt.25) 765; (1986) 4 S.C 378 – the accused was convicted of aggravated robbery. Evidence at the trial show that he robbed while armed with a toy gun. A conviction for the lesser offence of simple robbery was substituted at the Court of Appeal. On further appeal to the Supreme Court, the counsel for the appellant contended that the Court of Appeal erred in substituting a conviction for a lesser offence without giving the accused an opportunity of being heard on the offence of simple robbery. The counsel further argued that it was a breach of the constitutional provision of fair hearing. The Supreme Court rejected the counsel’s contention, and held that the Court of Appeal acted under the provision of section 179 of the Criminal Procedure Act in substituting a lesser offence of simple robbery for a graver offence of aggravated robbery. The Supreme Court conclude that since the greater offence includes the lesser offence the accused is deemed to have notice of the lesser offence on being charged with the greater offence and he was not required to be heard on the lesser offence.

 

In the case of Okobi v. The State (1984) 7 S.C 47 it was held that the lesser offence stated in section 179 (1) of the Criminal Procedure Law refers to a lesser offence under the Law or Act under which the main or the principal offence was charged.

 

In translating the foregoing to the facts of this case: – The charge against the appellant was under section 10 (c) of the National Drug Law Enforcement Agency Act Decree 48 of 1989 – which is same as Cap.253, Laws of the Federation of Nigeria, 1990. In that charge he was charged with dealing in 467 grammes of heroin by selling same to Oluwole Korede Lawal. He was discharged and acquitted of the offence as the prosecution did not establish that the appellant sold to the accused – Korede Lawal. The tribunal however found that the appellant dealt in 400 grammes of heroin, having transacted the business of receiving the sum of =N=190,000 with which the money he bought the said 400 grammes of heroin which he gave to Korede Lawal to carry to America which amounts to an offence under section 10(c) of the National Drug Law Enforcement Agency Act Decree No. 48 of 1989. He was convicted and sentenced for this latter offence. The learned trial Judge invoked the relevants sections of the law which empowers him to convict the appellants where the evidence adduced by the prosecution disclosed the commission of another offence though the appellant was not charged with that offence. The offence disclosed by the act of the appellant in procuring 400 grammes of heroin to Korede Lawal to carry to America is still covered by the same section 10(c) of the NDLEA Decree No.48 of 1989 – Cap. 253 of the NDLEA Act 1990. The enabling statute for the steps taken by the learned trial Judge is section 10(5) of Decree No. 20 of the NDLEA Law 1984 – as amended by Decree No.22 of 1986 – which same provision is now reflected in the Special Tribunal Miscellaneous Offences Act Cap. 410, Laws of the Federation of Nigeria, 1990. The appellant in the kindred offence now being charged with dealing in 400 grammes of heroin as opposed to selling 467 grammes directly to another is deemed to have adequate notice of the new charge – and he would not be expected to be heard or lead evidence on this new charge.

 

The evidence already adduced by the prosecution before the tribunal now supports the new charge – which still amounts to an offence under the same law. There is provision in the Special Tribunal Miscellaneous Offences Act, Cap. 410, Laws of the Federation of Nigeria 1990 section 10(5), now incorporating Decree No.20 of 1984, and Decree No.22 of 1986, which is a principal enactment, which permits the tribunal to convict the appellant for an offence for which he was not arraigned before the tribunal. The Supreme Court held that this was not a breach of the constitutional provision of fair hearing.

 

Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765; (1986) 4 S.C 378. Judicial decision had confirmed that this is necessary in the administration of criminal justice – on grounds of public policy to curb litigation. I hold that the steps taken by the learned trial Judge was in order. I resolve issue No.3 in favour of the respondent.

 

This court cannot hold that the case of the prosecution was speculative, fraught with inconsistencies, material doubt and procedural irregularities – where the appellant had failed to pin-point the areas or the evidence to rely upon to establish these flaws. The appellant failed to highlight the conclusion or findings, the conviction and sentence of the learned trial Judge in his judgment particularly from pages 100-104 of the records which can be said to be perverse – in the sense that it was speculative or not borne out by evidence.

 

In as much as the appellant did not challenge the exercise of the power vested in the learned trial Judge under section 10(5) of the Special Tribunal Miscellaneous Offences Act Cap. 410 of the Laws of the Federation 1990- as being arbitrary, malafide, not being judiciously or judicially exercised or that the power was exercised in the way that a miscarriage of justice was occasioned – this court cannot disturb the verdict and sentence of the tribunal. This appeal is dismissed as it lacks merit. The conviction and sentence of the lower court is affirmed.

 

SUNDAY AKINOLA AKINTAN, JCA: I had the privilege of reading the draft of the leading judgment just delivered by my learned brother, Adekeye, JCA. All the issues raised in the appeal are fully set and extensively considered in the said leading judgment. The main issue raised in the appeal is whether the prosecution proved all the essential ingredients of the charge preferred against the appellant. I believe that the evidence led in support of the prosecution is quite sufficient to support the conclusion reached at the tribunal.

 

In the result, I agree with the conclusion reached in the leading judgment that the appeal must fail. I therefore hold that the appellant has failed to satisfactorily show any justification why this court should tamper with any of the findings of fact made at the tribunal or the final conclusion reached by the tribunal. I therefore hold that there is no merit in the appeal. I accordingly dismiss the appeal and affirm the conviction and sentence passed on the appellant.

 

FRANCIS FEDODE TABAI, JCA: I had a preview of the leading judgment prepared by my learned brother Adekeye, JCA. and I agree with the reasoning and conclusion. It is my conclusion also that the appeal lacks merit and is accordingly dismissed.

 

Cases referred to in the Judgment:

Akpan v. A-G., Bendel State (1981) 9 S.C 7

Akpan v. State (1990) 7 NWLR (Pt. 160) 101.

Akpan v. State (1992) 6 NWLR (Pt. 248) 439.

Babalola v. State (1991) LRCN 984.

Babalola v. State (1989) 4 NWLR (Pt.115) 264.

Bature v. State (1994) 1 NWLR (Pt. 320) 267.

Edamine v. State (1996) 3 NWLR (Pt. 438) 530.

Egbogbonome v. State (1993) 7 NWLR (Pt. 306) 383.

Erekanure v. State (1993) 5 NWLR (Pt. 294) 385.

Gira v. State (1996) 6 NWLR (Pt. 443) 375.

Jimoh v. Yesufu (1976) 6 S.C 167.

Kopa v. State (1971)1 All NLR 150.

Liya v. State (1998) 2 NWLR (Pt. 538) 397.

Maja v. State (1980) 1 NCR 212.

Nwachukwu v. State (1986) 2 NWLR (Pt. 25) 765; (1986) 4 S.C 378.

Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380.

Obosi v. State (1965) NMLR 119.

Oduneye v. State (2001) 13 WRN 88; (2001) 2 NWLR (Pt. 697) 311; (2001) 83 LRCN 1.

Ogoala v. State (1991) 2 NWLR (Pt.175) 509.

Ogunsi v. State 1 NWLR (1994) 1 NWLR (Pt. 32) 583.

Okobi v. State (1984) 7 S.C 47.

Okpulor v. State (1990) 7 NWLR (Pt. 164) 581.

Onwumere v. State (1991) 4 NWLR (Pt. 186) 428; (1991) LRCN 984.

462. v. Itule (1961) All NLR 462.
463. v. Sapele (1957) 2 FSC 24.

State v. Emine (1992) 7 NWLR (Pt. 256) 658.

State v. Nnolim (1994) 5 NWLR (Pt. 345) 394.

Ugwumba v. State (1993) 5 NWLR (Pt. 296) 660.

Yesufu v. State (1976) 6 S.C 167.

Statutes referred to in the judgment

Constitution of the Federal Republic of Nigeria, 1979 s. 33(1), (6)

Criminal Procedure Act Cap. 80, Laws of the Federation of Nigeria, 1990 Ss. 151, 179 & 217

Criminal Procedure Code s. 218

Evidence Act, Cap. 112, Laws of Federation of Nigeria, 1990 Ss. 27(1), 138(1) & 149(d)

National Drug Law Enforcement Agency Act, Cap.253, Laws of the Federation of Nigeria, 1990 s. 10(c).

Special Tribunal Miscellaneous Offence Act, Cap. 410, Laws of the Federation of Nigeria 1990 s. 10(5).