⦿ CASE SUMMARY OF:
Henry Odeh v. Federal Republic of Nigeria (2008) – SC
⦿ LITE HOLDING
Section 16 of the Court of Appeal Act 1976 gives the Court of Appeal the power to convict the appellant of another offence other than the one he was charged, once the evidence adduced and available proves and confirms the guilt of the appellant on an alternative offence.
⦿AREA OF LAW
Federal Republic of Nigeria
(2008) JELR 55590 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
Acting on an information received by the chairman of the NDLEA, in Lagos, PW1 and PW4 along with some other officials of the NDLEA, went to the appellant’s house at 24, Imaba Street, Igando Lagos on the 24 March 1995. The information received was that the appellant was dealing in hard drugs. On arrival at the premises, the witnesses said they met the appellant, the men were led by the appellant into his room, they searched the appellant’s room but nothing incriminating was found. One of the men climbed into the roof through the ceiling of the appellant’s room, and on the roof top, recovered 46 bags of Indian hemp. They carried the appellant and the 46 bags to their office at Ikoyi Lagos.
It was in the course of interrogating the appellant that the appellant revealed that he had earlier been arrested by five policemen from Idimu Police Station on the 22 March 1995 but was later released along with the drugs seized from him after he had paid the police men some money. PW5, a commercial bus driver, stated how he was on 22 February 1995 stopped by policemen and asked to dislodge his passengers. His vehicle was used in loading and taking 46 bags from the appellant’s residence to Idimu Police Station in company of the appellant and later he was told to return the bags with the appellant to the appellant’s residence. The policemen were arrested and were arraigned with the appellant as stated above.
The appellant herein and some policemen were arraigned before the Lagos zone of the Miscellaneous Offences Tribunal. The appellant was charged with the following offences:
“That you, Henry Odeh, on or about 24 March 1995 at Imaba Compound, Igando, Lagos, dealt in to wit offering for sale 290.15kg of Indian hemp [cannabis sativa] a drug similar to heroin, cocaine or (LSD) without lawful authority and thereby committed an offence contrary to and punishable under section 10(c) National Drug Law Enforcement Agency Decree No. 48 of 1989.”
“That you, Henry Odeh, on or about 24 March 1995, at No. 24 Imaba Compound Igando, Lagos, knowingly had in your possession 290.15kg of Indian hemp [cannabis sativa] a drug similar to cocaine, heroin (LSD) without lawful authority and thereby committed an offence contrary to and punishable under section 10(h) of the National Drug Law Enforcement Agency Decree No. 15 of 1992.”
The 2nd to the 6th accused persons who stood trial with the appellant were jointly charged in the third count with aiding the appellant to “deal” in 290.15kg of Indian hemp (cannabis sativa) contrary to section 10(c) of the National Drug Law Enforcement Agency Act aforesaid and punishable under section 10(d) of the same Act. There was also a fourth charge against the 2nd-6th accused persons.
At the trial, the prosecution called five witnesses in all and the appellant and the other accused persons gave evidence but called no other witness.
The second count against the appellant was withdrawn upon an application requesting the withdrawal of the charge by the prosecution on 30 April 1998. The trial tribunal found the appellant guilty on count one and sentenced him to 10 years imprisonment.
The appellant being dissatisfied with his conviction appealed to the Court of Appeal, Ibadan, which set aside the conviction and sentence of the appellant in count one of the charge, but however convicted the appellant on a different offence of being in unlawful possession of the 290.15kg of Indian hemp under section 10(d) of the NDLEA Act, which the Court of Appeal found proved.
This led to the enhancement of the punishment of the appellant from 10 years to 15 years as provided by section 10(h) of the NDLEA Act of 1992.
It is against that decision that the appellant has appealed to this court.
1. Whether the learned Justices of the Court of Appeal were right in law when they convicted and sentenced the appellant to 15 years imprisonment after setting aside his conviction by the trial court (Tribunal) in count one of the charge.
2. Whether the learned Justices of the Court of Appeal were right in law when they relied on exhibit 7 to convict the appellant for being in possession after count two of the charge dealing with possession had been withdrawn and struck out by the trial court (tribunal).
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Where an accused person is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence regardless of the fact that he was not charged with that particular offence.
ii. It is now settled law that an appellate court such as the Supreme Court or the Court of Appeal may where an appellant has been charged and convicted for an offence and the court that tried him could on the information or charge have found him guilty of some other offence, and on the finding of the lower court, it appears to the appellate court that the lower court must have been satisfied of the fact which proved him guilty of that other offence, the appellate court may instead of allowing or dismissing the appeal, substitute for the verdict found by such court, a verdict of guilty of such other offence and pass the sentence in substitution for the sentence passed at the trial as may be warranted in law. It is also settled law that an appellate court in determining an appeal before it possesses all the powers of the court of trial. See section 16 of the Court of Appeal Act. The mere fact that an appellate court exercised its statutory power to substitute a conviction of one offence for the other under section 179 of the Criminal Procedure Act does not ipso facto breach the appellant’s right to fair hearing nor does it occasion any miscarriage of justice.
iii. The offence of being in unlawful possession is clearly a lesser offence and carries less sentence. It is of no moment when the trial tribunal mistakenly sentenced the appellant for dealing in the Indian hemp to merely 10 years imprisonment. The Court of Appeal would have the power to pass appropriate sentence permitted by law. See Nworie v. C.O.P. (1960) 5 FSC 124; Ogidi v. C.O.P (1960) 5 FSC 251; Nwobu v. C.O.P (1962) All NLR 382. An appeal court may, where the ends of justice may be properly met, reduce or increase the sentence imposed by the trial court. See also Ekpenyong v. State (1967) All NLR 285; Gano v. State (1965) 1 All NLR 352; Mohammadu v. C.O.P (1969) 1 All NLR 465; Ekpo v. State (1982) 6 SC 22.
iv. On the issue of proof of unlawful possession, the evidence tendered by the prosecution is overwhelming. The evidence of PW1, PW4 and PW5 stood unchallenged and uncontradicted by the appellant, and furthermore the appellant categorically admitted in exhibit 7 of being in unlawful possession of the bags of Indian hemp. In my view, considering all the circumstances of this case, there is no irregularity in the approach by the Court of Appeal occasioning any miscarriage of justice.
v. I agree with the respondent’s submission that there has been no miscarriage of justice by the Court of Appeal in this case for the following reasons: – The trial Tribunal as well as the Court of Appeal had the power and jurisdiction under section 179(1) of the Criminal Procedure Act to convict the appellant for possession of 290.15 kilogrammes of Indian hemp whether the appellant was charged with the offence or not. What the Court of Appeal required in exercising its jurisdiction under section 179(1) of the Criminal Procedure Act, is not whether the Appellant was charged or not with possession of the drug but whether the offence of possession was a lesser offence, and if there was evidence before the court to prove the offence. The fact that the appellant was charged with possession and the charge was withdrawn on 30 April 1998 did not derogate from the power of the trial Tribunal and the Court of Appeal, more so that the charge withdrawn against the Appellant was under section 10(h) of the NDLEA Act while the appellant was convicted by the Court of Appeal under section 10(d) of the NDLEA Act.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Suffice it for me to say that the conviction for the appellant was not based on the count two which was withdrawn. Count two which was withdrawn and struck out was punishable under section 10(H) of the NDLEA Act as amended, while the appellant was convicted under section 10(d) of the Act by the Court of Appeal. This clearly shows that there is no connection between the withdrawn charge and the offence for which the appellant was convicted. In any event, when the Court of Appeal was seised with the matter by the provisions of section 179(1) and (2) of the Criminal Procedure Act, the court can substitute a conviction for a lesser whenever it is appropriate to do so.
ii. The law is fairly settled that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction, and generally without any need of other corroborative evidence so long as the court is satisfied with its truth. A cursory glance at exhibit 7 shows that it is a direct, positive, voluntary and an unambiguous admission by the appellant that the bags of Indian hemp were found in his possession. The evidence of the other witnesses clearly established the truth of the statement of the appellant in exhibit 7. I accordingly also resolve the second issue against the appellant.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
Section 179(1) and (2) of the Criminal Procedure Act.
⦿ SOME PROVISION(S)
Section 179(1) of the Criminal Procedure Act applicable to these proceedings provides: “In addition to the provisions herein before specifically made, whenever a person is charged with an offence consisting of several particulars a combination of some of which constitute a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.”
⦿ RELEVANT CASE(S)
In such cases as Oladipupo v. State (1993) 6 NWLR (Pt. 298) 131 at 147, where Ogwuegbu JSC, held that: “Where an offence is charged and facts are proved which reduce it to a lesser offence, the accused may be convicted of the lesser offence although he was not charged with it.”
In Nwangbomu v. State (2000) 2 ACLR 9 at page 14, this court held that: “Where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, in as much as such a u-turn does not necessarily make the confession inadmissible.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It is now settled law which does not require any authority, that issues for determination cannot be formulated outside the grounds of appeal. Issues for determination formulated must be related to the grounds of appeal. Every issue for determination must be formulated from and related to or distilled from a competent ground of appeal. In other words, an issue not distilled from any of the grounds of appeal, is incompetent and must be discountenanced together with the argument or arguments advanced there under. I accordingly strike out the third issue and all the argument canvassed by the appellant on it. – Musdapher JSC. Odeh v. FRN (2008)
It is the law that an appellate court can convict and impose a sentence on an appellant for a lesser offence than that for which he was convicted by the trial court, if from the circumstances of the case, the latter conviction should have been the proper one. See Akwule v. Queen (1963) 1 All NLR 193. Bande v. State (1972) 10 SC 79; Adebayo v. Republic (1967) NMLR 391. – Musdapher JSC. Odeh v. FRN (2008)