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law report ‘SC doesn’t disturb concurrent findings of fact by lower courts except’ In the Supreme Court of Nigeria Holden at Abuja Friday, March 18,…

law report

‘SC doesn’t disturb concurrent findings of fact by lower courts except’

In the Supreme Court of Nigeria

Holden at Abuja

Friday, March 18, 2016

Suit number: SC 288/2012

Between

MANNIR ABDULLAHI … Appellant

and

FEDERAL REPUBLIC OF NIGERIA .. Respondent

WALTER SAMUEL NKANU ONNOGHEN, (JSC); CLARA BATA GUNBIYI, (JSC);

KUMAI BAYANG AKA’AHS, (JSC); KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, (JSC); CHIMA CENTUS NWEZE, (JSC);

Judgement

(Delivered by Walter Samuel Nkanu Onnoghen JSC)

This is an appeal against the judgment of the Court of Appeal in appeal No. CA/197C/2011 delivered on the 19th day of June 2012 dismissing the appeal of appellant against the conviction and sentence of two years’ imprisonment for dealing in 1.050 kilogrammes of Indian hemp, aka, cannabis sativa.

On the 11th day of March 2010 appellant was arraigned before the Federal High Court, Abuja on a single count charge, which reads as follows;

“CHARGE

That you MANNIR ABDULLAHI (M) on or about the 20th August, 2009 at Nwara Estate Side Abuja FCT, Abuja within the jurisdiction of this honourable court, knowingly dealt in 1.050 kilogrammes of Indian hemp otherwise known as cannabis sativa a narcotic drug without lawful authority and thereby committed an offence, contrary to and punishable under Section 11C of the National Drug Law Enforcement Agency Act, Cap N30 Laws of the Federation of Nigeria, 2004.”

On arraignment, and after the above charge was read over to the appellant, to which he said he understood, appellant pleaded guilty thereto. The matter was: however, adjourned to the 3rd day of May, 2010 for hearing. There is no record of what took place on 3rd May, 2010 but on 30th June, 2010 the charge was heard de novo when same was again read over to the understanding of appellant who, again pleaded guilty to same. The judge was B.G. ASHIGARJ. Again, the prosecution asked for a date for review of facts as a result of which the case was adjourned to 3rd July, 2010 and appellant remanded in prison custody.

Following some further adjournments as a result of the forensic report not being ready, the review of the facts was eventually conducted on the 23rd day of July, 2010 and the matter adjourned to 2nd August, 2010 for judgment. The court proceeded to convict appellant for the offence charged and admitted and sentenced him to a term of two years imprisonment without option of fine, with effect from the date of his arrest -i.e 20th August, 2009.

Appellant was dissatisfied with the judgment and appealed against same to the lower court, which appeal, as stated earlier in this judgment, was dismissed for lack of merit. The instant appeal is, therefore, a further appeal by appellant, the issues for the determination of which have been identified by learned counsel for appellant, DR. J.Y. MUSA in the appellant brief filed on the 26th day of July, 2012 as follows:-

i. Whether there was enough admissible evidence before the learned justices of the Court of Appeal upon which they affirmed the conviction of the appellant (Ground 1)

ii. Whether the learned justices of the Court of Appeal were right in holding that Exhibits P1 – P7 which were tendered by the prosecution from the bar were properly tendered and admitted (Grounds 2 & 4)

iii. Whether the learned justices of the Court of Appeal were right when they held that the appellant admitted in his confessional statement that he sells Indian hemp as an occupation and that the confession was an admission that he knew what he was charged with and had committed the offence as alleged. (Ground 3).

The above three issues were adopted by learned counsel for respondent, CHIEF E.K. ASHIEKAA in the respondent brief filed on the 23rd day of August, 2012.

It is not in dispute that appellant was charged with the offence stated supra and that he pleaded guilty to the charge upon arraignment; that following his arrest, appellant made a confessional statement in which he confessed to the offence, which statement was tendered and admitted at the trial without objection; that appellant was not represented at the trial; that the prosecution tendered, from the bar, the following items:

(a) Certificate of Test Analysis;

(b) Parking of Substance Form

(c) Request for Scientific Aid Form

(d) Drug Analysis Report;

(e) A large brown envelope with reference number NDLEA/FCTC/2041/2009 and NDLEA/CO/2009938:

(f) An Army green bag, and

(g) The statement of the accused/appellant.

The trial judge made the following findings of fact –

“I have examined exhibits P1 – P7. Totality of the exhibits shown beyond reasonable doubt that the weed was recovered from the accused which was tested forensically and found to be cannabis sativa – an illicit drug within the contemplation of section 11 under which the accused was charged

I have no reason to doubt the process by which these facts were produced. The accused himself also confessed in his statement to the National Drug Law Enforcement Agency operatives which was read in open court and was accepted as being his statement that he has been smoking hemp for about five years and that he also sells same to one Sunday as sales boy.”

Upon review of the facts of the case, the lower court, affirmed same in the following words:

“To my mind, the confession and the plea go hand in hand to show that the appellant committed the offence alleged and consciously admitted that he knew what he was charged with and had committed the offence as alleged. The confessional statement as tendered before the court is direct and positive as to the commission of the offence and there is nothing in the record to show that it was not voluntarily made, it is in my view sufficient to sustain the conviction.”

The above are concurrent findings of fact by the lower courts. Learned counsel for appellant is not, in fact, disputing the findings of facts neither is he contending that they are perverse. It is however, settled law that this court, the Supreme Court of Nigeria, does not make a practice of setting aside concurrent findings of fact by the lower courts except in exceptional circumstances, such as where the findings are demonstrated to the satisfaction of the court to be perverse, contrary to substantive law or procedure etc, etc, none of which has been demonstrated to apply to this case.

On the issue of tendering and admission of exhibits P1 – P7 from the bar following a plea of guilty by appellant, I wish to point out that a similar situation existed in the case of Omoju vs FRN (2008) 7 NWLR (pt. 1085) 38, though in that case, appellant was represented by Counsel , this Court reproduced proceedings of the record of

that case, as follows:-

Let me reproduce the proceedings;

Mrs Albaji: We are ready for hearing. We have one witness in court.

Mr. Nganpwa: My client intends changing his plea

Mrs Albaji: We apply that the charge be read to the accused again for a fresh plea

Charge read to the accused once again in English, he understands and pleads guilty to the charge.

Mrs. Albaji: The facts are as contained in the charge in support we tender the drug analysis report, ranking of substance form and certificate of test analysis and the recovered exhibits, an analysis containing the analysed substance, the statement of the accused and his travelling documents. We urge the court to convict the accused as charged.

Mr. Nganjiwa: No objection.

Court: Admitted and marked exhibit A- H.”

It is clear from the above that exhibits A – H, like exhibits P1 – P7 in the instant case were tendered, from the bar and admitted without objection. At page 61 of the report, this court held, inter alia:

“It is in evidence that the prosecution tendered (a) forensic or drug analysis report, (b) packing of substance form, (c) certificate of test analysis (d) recovered drugs, (e) the statement of the appellant; and (f) travelling document after the appellant changed his plea.

These were admitted without objection by the appellant. And so ask: what is this burden of proof palaver?

The law is elementary that if an accused person pleads guilty, the burden of proof placed on the prosecution becomes light, like a feather of an ostrich, it no longer remains the superlative and compelling burden of proof beyond reasonable doubt. After all, the guilty plea has considerably shortened the distance and brought in some proximity the offence and the mens rea or actus reus of the accused as the case may be.”

It is clear that the contention of learned counsel for appellant that where an accused pleads guilty to a charge involving drugs the forensic reports cannot be tendered from the bar without calling the maker of the reports or persons related to the making of same is argument on technicalities which this court frowns upon. Appellant was caught with the substance and he pleaded guilty after confessing to the offence. He has not changed his plea neither has he withdrawn his confession. The suspected substances were duly forensically tested and reports of the tests tendered and admitted in evidence without objection from appellant.

Looking at the totality of the evidence on record and the applicable law thereto, it is clear and I hold the considered view that the lower court was right in affirming the conviction and sentence of appellant and that the prosecution discharged the burden of proof having regards to exhibits P1 -P7 and the confessional statement of appellant who pleaded guilty to the charge-In conclusion, I find no merit whatsoever in the appeal which is accordingly dismissed by me.

Appeal dismissed.

Counsel

DR. J. Y MUSA for appellant with him are Messrs M. O. ONYILOKWU; EKO ESEMBi EKO, J O MUSA and I.W. ZOM

P.M. OGBOLE ESQ for respondent with him are Messrs A. A. MALIK; VICTOR IORSHENGE, IMOBIGHE OMOADOMI, L. A, IKHUORIAH and N.I. NTA