⦿ CASE SUMMARY OF:
Samuel Ayo Omoju v. The Federal Republic of Nigeria (2008) – SC
by NSA PaulPipAr
⦿ AREA OF LAW
– Criminal Law
– Drug trafficking
– Mixed law and fact
– Confessional statement
Samuel Ayo Omoju
The Federal Republic Of Nigeria
(2008)33 NSCQR Pt I 75;
(2008) 7 NWLR (Pt.1085) 38;
(2008)33 NSCQR Pt I 75;
⦿ LEAD JUDGEMENT DELIVERED BY:
Niki Tobi, JSC.
* FOR THE APPELLANT
– Dr. A. Amuda Kamke.
* FOR THE RESPONDENT
– Femi Oloruntoba Esq. D. PLS (NDLEA);
– Mrs O. Ahaji A. CLO (NDLEA).
⦿ FACT (as relating to the issues)
Appellant got his international passport in 2001 and started travelling to the United States on 26th January of that year. His last trip was in October, 2002 and he returned in November, 2002. Appellant arrived Abuja on 6th March, 2003 for the aborted New York trip. 9th March, 2003 was the day for the trip. He spent three days in Abuja where one Are met him and gave him the ticket for the trip. Are handed over to the appellant 118 wraps or pieces of heroine which he swallowed with water. Are took appellant to the airport where he checked in his luggage. The screening eyes of NDLEA officials, on suspicion, detained the appellant to wait for nature’s call of defecation. That call came at about 4.05am and appellant started to unload his filled stomach not with food though, but with 118 wraps or pieces of heroine. As he was unable to cheat the call, he excreted a total of 118 wraps or pieces. The trade or commercial value of appellant’s business of risk was ten thousand US dollars. His pocket could have been richer by that amount if he successfully executed the bad business. But that was not to be.
Appellant was arraigned on 22nd May, 2003 of exporting 1.1 kg of heroine. He pleaded not guilty. On 30th October, 2003, the charge was amended by substituting the word cocaine for heroin. Again he pleaded not guilty. On 29th January, 2004 the prosecution served on the appellant the proof of evidence. On 29th July, 2004 when the case was called for hearing, counsel for the appellant indicated to the court that his client intended to change his plea. Following this development, the charge was read to the appellant again and he pleaded guilty. Arithmetically, appellant had three pleas, two not guilty and one guilty. The learned trial Judge, Nyako, J. sentenced him to a term of 2 years.
The Appellant appealed to the court of appeal but his appeal was dismissed, hence a further appeal to this court.
1. That the grounds of appeal are of facts or mixed law and facts, which needed leave of court.
1. Whether the appellant can be convicted on a non-existing law?
2. Whether notwithstanding the plea of guilt by the Appellant, the respondent ought not to discharge the burden of proof placed on it by the law?
3. Whether there exists strict compliance with section 218 of the Criminal Procedure Act when Appellant took his plea?
⦿ HOLDING & RATIO DECIDENDI
**PRELIMINARY OBJECTION HOLDING
1. THE PRELIMINARY OBJECTION WAS DISCOUNTENANCED AND OVERRULED. THE SUPREME COURT IN DISMISSING THE PRELIMINARY OBJECTION STATED: There are three grounds of appeal. The first one is reference to a wrong law and that wrong law is the Nigerian Drug Law Enforcement Act. Wrong law is a matter of law. It cannot be a fact or mixed law and fact. In other words, the wrongness of a law is a matter of strict law which is based exclusively on and legalism. The second ground is on burden of proof. Burden of proof is a matter of law provided for in Part VII of the Evidence Act. And the law, as it affects this case, is proof beyond reasonable doubt. The third and final ground is non-compliance with section 218 of the Criminal Procedure Act. Again, a complaint of non-compliance with the provisions of an Act is essentially a matter of law. While I concede that non-compliance may, in some cases, have the taint of facts which may give it the colour of mixed law and facts, the two particulars in Ground 3 deal with strict law. In the unlikely event that I am wrong on Ground 3, and it turns out to be one of mixed law and facts, Grounds 1 and 2 can keep the appeal afloat. The preliminary objection therefore fails.
**MAIN ISSUES HOLDING
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. By the words “as charged”, the learned trial Judge referred to the above charge. And, the charge contains or provides for National Drug Law Enforcement Agency Act; not the Nigerian Drug Law Enforcement Act. In the circumstances, I take and regard the Nigerian Drug Law Enforcement Act as a misnomer. Although the difference between the words “Nigerian” and “National” is much more than the difference between a dozen and 12, I am of the view that the appellant has not suffered any injustice, as there was no miscarriage of justice.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Dealing with section 36(8) and (12) of the Constitution, learned counsel submitted that the appellant was denied fair hearing. How? In what way? An accused person who pleads guilty to an offence is not entitled to a hearing and so the issue of fairness or unfairness of a hearing is neither here nor there. In other words, by entering a guilty plea, hearing is foreclosed, as the next and last procedural step of the Judge is to convict and pass appropriate sentence. Learned counsel also raised the issue of a possible tampering with the substance as there was the possibility of not keeping it in proper custody. Can this be a serious submission in the light of the guilty plea? If the appellant was convinced that the substance was tampered with, why should he plead guilty? What was he pleading guilty to? If the substance was tampered with, is that not a valid defence open to the appellant? There are more questions but I think I can stop here, hoping that I have made the point.
ii. 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 documents after the appellant changed his plea. These were admitted without objection by the appellant. And so I ask: what is this burden of proof palaver?
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I do not see any language in section 218 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, he can convict and pass the appropriate sentence. Appellant was represented by counsel on the day he changed his plea to one of “guilty”. As a matter of fact, it was his counsel who informed the court that the appellant wanted to change his plea. I produced earlier in this judgment the proceedings which followed the change of plea and, like the Court of Appeal, I do not see any noncompliance with section 218. I also agree with the Court of Appeal that the two cases cited by counsel are inapposite.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In Kanu v. The King (1952) 14 WACA 30, the West African Court of Appeal held that where a confession is free and voluntary and in itself fully consistent and probable, and the inculpating statements are corroborated by several facts, the entire evidence is admissible. It is however desirable to have, outside the confession, some evidence, be it slight, of circumstances which make it probable that the confession is true.
In Effiong v. The State (1998) 8 NWLR (pt. 562) 362, this court held that a free and voluntary confession of guilt by a person, whether under examination before a magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant conviction without any corroborative evidence as long as the court is satisfied of the truth of the confession. It is however desirable to have outside the confession to the police, some evidence no matter how slight of the circumstances which make it probable that the confession was true.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
A confession is the strongest evidence against an accused person as it determines his guilt in most cases. A voluntary confession made by an accused person is relevant and admissible against him at the trial. Where no objection is raised to the admissibility of a confessional statement and the statement is admitted in evidence, it is for the trial Judge to determine, at the end of the hearing, whether the contents of the statement are true, as part of his determination of the truth or otherwise of the whole case presented by the prosecution. As a matter of law, an accused person may be convicted on his confessional statement alone if, (a) the confession is free and voluntary; (b) there are facts in the evidence for the prosecution which show that the confession is true. – Niki Tobi, JSC. Omoju v. FRN (2008)
Although a free and voluntary confession can warrant a conviction without corroboration, it is desirable to have outside the confession some evidence no matter how slight that the confession is true. – Niki Tobi, JSC. Omoju v. FRN (2008)
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. That makes it easier to locate causation or causa sine qua non. – Niki Tobi, JSC. Omoju v. FRN (2008)
Judges are human beings and like all human beings, are bound to make mistakes and they make mistakes. The appellate system is there to correct mistakes of trial judges. Where a mistake of a trial judge does not affect the live issues, props or fundamentals of the matter, an appellate court will not allow an appeal. It sounds too technical and abstract for my liking to submit that because the learned trial Judge used the word “Nigerian” instead of “National”, the Act, as cited by the Judge, does not exist. I am not at all ready for that type of technicality. Let us leave it for the game of chess which players win by technicalities and craftiness. Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice, in reality, is not justice but a caricature of it. It is justice in inverted comas and not justice synonymous with the principles of equity and fair play. Caricatures are not the best presentations or representations. – Niki Tobi, JSC. Omoju v. FRN (2008)
Substantial justice, which is actual and concrete justice, is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law. It pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law, the life blood of democracy. – Niki Tobi, JSC. Omoju v. FRN (2008)
Learned counsel also raised some weather in respect of whether the drugs were exported from Nigeria. Apart from the fact that the issue was never raised in the High Court and the Court of Appeal, it is not available to the appellant in the light of his guilty plea and the subsequent documents tendered by the prosecution after the guilty plea. And what is more, the documents were not objected to and were admitted as Exhibits A-H. The argument that the appellant should have been charged with attempt to export the drugs is, with respect to counsel, mere play of words or mere rhetorics which pretentiously did not consider the realities of the matter. – Niki Tobi, JSC. Omoju v. FRN (2008)
I have to state from the onset that this is a most worthless appeal by a person who describes himself as a Pastor or Man of God but is morally bankrupt; a man that is supposed to lead the people to God who turns out to be the devil in disguise, a shameless man who ought to have hidden his face from the public glare following the serious crime he has committed but rather chooses to parade himself from the Court of Appeal to the Supreme Court in search of’ justice’; a man who deserved to be made an example of what a Pastor ought not to be, but was treated kindly by the Trial Judge who sentenced him to only two (2) years imprisonment taking into consideration the period he was in custody!!. The appellant must really thank his stars that he did not appeal against his sentence. – Onnoghen, JSC. Omoju v. FRN (2008)
Gone are the days when adherence to technicalities would help a counsel succeed on a bad or indefensible case. We must always subscribe to doing substantial justice as against technical justice. – I.T Muhammad, JSC. Omoju v. FRN (2008)