ORJI  V FRN

ORJI  V FRN


The Supreme Court 

On Friday, the 25th day of January, 2019


APPEAL NO: SC.148/2013

CITATION NO:


BEFORE THEIR LORDSHIPS

OLABODE RHODES-VIVOUR    JSC

KUMAI BAYANG AKA’AHS JSC

JOHN INYANG OKORO  JSC

CHIMA CENTUS NWEZE  JSC

EJEMBI EKO  JSC


Between

DUKE ORJI 

(Appellant)

AND

FEDERAL REPUBLIC OF NIGERIA 

(Respondent)


PRONOUNCEMENTS

A. CRIMINAL LAW

  1. Plea of Guilty– Duty of the court when an accused pleads guilty to a charge

“When an accused person is represented by counsel and the charge is read and explained to him to the satisfaction of the Court the Court can proceed to convict forthwith. There is no better evidence than a plea of guilty. It is even better than eyewitness evidence. See Akpa v State (2008) 14 NWLR (Pt.1106) p.72 Jua V State (2010) 4 NWLR (Pt 1184) p .217” Per Rhodes-Vivour JSC

  1. Plea of Guilty– Nature of a plea of guilty

“A plea of guilty in a criminal trial is made by an accused person who does not contest the charge. This arises where an accused person having committed a crime is simply saying by pleading guilty that he is responsible for the crime. A plea of guilty to a charge is conclusive evidence that the accused committed the Offence.” Per Rhodes-Vivour JSC

  1. Plea of Guilty– Whether an accused can resile from his plea of guilt on appeal

The fact that the accused person (appellant) was represented by counsel and the charge was read and explained to him in English without any protest from the accused/appellant or objection from his counsel is conclusive evidence that the accused/appellant understands English and was satisfied pleading guilty to the charge. In Nkie v FRN (2014) ALL FWLR (Pt.754) p .186  Okoro JSC correctly pointed out that: “……the appellant, having voluntarily pleaded guilty to the charge at the trial Court, he cannot now be heard to be making a different case on appeal. He should not be allowed to approbate and reprobate in the same breath…” Per Rhodes-Vivour JSC


  1. Burden of proof– When the establishment of the burden of proof by the prosecution is dispensed with

“The law is that, in criminal trial, where there is an admission of guilt, the question of establishing the legal burden of proof no longer arises, and no burden of proof rests on the accuser, the burden of proof having been discharged by the admission of the accused. See the case of Dongtoe v Plateau State (2001) 9 NWLR (pt 717) 132; U.N.T.M.B. v Nnoli (1994) 8 NWLR (pt 363) 326.” Per Okoro  JSC


  1. Plea of Guilty– Effect of a plea of guilty on an accused person

“My Lords, permit me to adopt the alluring and appetizing dictum of the Illustrious and erudite Ogbuinya, JCA, in Rabe v FRN (2013) LPELR – 20163 (CA). According to His Lordship: “There is the crying need to emphasise that the appellants plea of guilty connotes a lot of things against him. That plea of guilty is personal to him and he Is bound by it, see Torri v. NPSN (2011) 13 NWLR (pt. 1264) 355. It resupposed that he understood the charge before pleading it, see Okewu v. FRN (2012)  LPELR 7834 (SC). By that plea, his fundamental right of defence as enshrined in the Constitution, as amended, became legitimately scuttled, see Torri v. NPSN (supra) and Omoju v. FRN [2008] 7 NWLR (pt. 1085) 38.” Per Nweze JSC

  1. Plea of Guilty– On the validity of a plea of guilty

“As it is well-known, a plea of guilty is valid, if made in a very unambiguous and unequivocal way; and the same is received by a trial Court or tribunal not labouring under the misapprehension of what the law is all about, Nkie v FRN (2014) LPELR -22877 (SC) 25;E -F; Amanchukwu v, FRN [2009] 8 NWLR (pt. 1144) 475; Okewu v. FRN (2005) All FWLR (pt. 254) 858; Kpoobari v FRN (2016) LPELR -40010 (SC) 16-17.” Per Nweze JSC


B. PRACTICE AND PROCEDURE

  1. Admissibility of documents– On the best time to object to the admissibility of a document

“This Court, in all the cases where a document was tendered without objection or by consent at the trial, has held that the best time to object to the admissibility of a document is at the trial and at the time the document was being tendered for admission in evidence and not by way of appeal: IBORI V. AGBI & ORS  (2004) 6 NWLR (pt. 868) 78 at 136; FATUNBI v. OLANLOYE (2004) 12 NWLR (pt. 887) 229.” Per Eko JSC

  1. Admissibility of documents– Whether a party can resile from a document after same had been tendered

“A party who consented to a document being admitted in evidence is not permitted to resile from such agreement. He is estopped from doing so. Section 169 of the Evidence Act, 2011 is all about this estoppel by conduct. See also Uwais, CJN in IBORI v. AGBI & ORS (supra). And this is what makes this appeal a clear case of an abuse of the Court’s process.” Per Eko JSC


LEAD JUDGMENT DELIVERED BY RHODES-VIVOUR, J.S.C.


The appellant as the accused person before a Federal High Court, (Ilorin Division) pleaded Guilty to a one count charge which reads:

That you Duke Orji, Male, Adult on or about 14 June 2011 at Ogun-edu Village near Kambi town in Moro Local Government Area of Kwara State, within the jurisdiction of this Honourable Court, without lawful authority, dealt in 3.4. Kilogrammes of Cannabis Sativa (otherwise known as Indian hemp) a drug similar to Cocaine, Heroin, LSD etc and thereby committed an offence contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria 2004.

I shall now reproduce the entire proceedings of the trial Court on 13 July, 2011, the day proceedings commenced and came to an end.

“Charge Called.

Accused person in the Dock.

I.J. Igwubor for the prosecution.

M.A. Lawal with O. Akinfolarin (Miss) for the defence

Igwubor : Applies for charge dated and filed 30/6/11 to be read to the accused person for plea.

Lawal: No objection.

Court: Please read and explain the charge to the accused person and take his plea. Charge read and explained to the accused person in English language and he appeared perfectly to understand same.

Plea:    Guilty

Igwuhor: Tenders; Statement of accused person, Packing of substance Form, Certificate of test analysis, Request for scientific and FORM, Brown sealed envelope.

Applies to Open

Lawal:    No objection

Court:    Granted

Igwubor: Opens envelop Tenders Evidence pouch with sample of analysed drug. Drug analysis report. Bulk of exhibit.

Lawal:    No objection

Court: The items and documents are admitted in evidence and marked exhibit A to H.

Igwubor: Urges Court to convict as charged.

Lawal: No objection

Court: The accused person is convicted as charged.

ALLOCUTUS

Lawal: 27 years of age.

Court: The accused person is 27 years old. He lost his father whilst in SSII and was recruited to work on an Indian hemp farm. After harvest, he stopped that job and worked as a bricklayer when he met a person who introduced him to the Indian hemp trade as a sales boy and was arrested cautioned and released. He went back to his Indian hemp sales buy business and later started his own business still in Indian hemp trade. He was arrested and escaped from lawful custody and still went back to the business. He was again arrested and this time he is in Court and he pleaded guilty. I am not sure this accused person deserves any mercy as he has been brazen and had taken the law for a ride for too long. He was caught with 3.4K6 of Indian hemp and some seeds probably to start his own Indian hemp business and employ sales boys as he once was.

The substance is in wraps.

There are no mitigating circumstances whatsoever. 27 is not a young age and the accused person clearly know what he was doing and he knew it is wrong. He probably knows the effect of Indian hemp and that explains why he said in his statement that he does not consume the product he sells.

In the circumstances, I hereby sentence you Duke Orji to a term of 3 years imprisonment, with hard labour starting from today.”

On 2 July 2012, about a year after the appellant was convicted, he filed an appeal. The appeal was heard by the Court of Appeal, Ilorin Division and in a judgment delivered on 22 November 2012, affirmed the judgment of the trial Court in these words:

the strongest evidence of guilt on the part of accused stronger than the evidence of an eyewitness, because the evidence, borrowing the claim axiom, comes out from the mouth of the horse who is the accused personI hold that there is no merit in this appeal as I resolve the issue against the appellant.

The appeal is accordingly dismissed and the judgment of the learned trial judge affirmed.

This appeal is against that judgment. Briefs of argument were filed and exchanged by counsel. The appellant’s brief was filed on 30 May 2013, but duly filed and served on 14 May 2014, while the respondent brief was filed on 20 October 2018, but duly filed and served on 1 November, 2018.

Learned counsel for the appellant, T. Kupolati Esq, formulated two issues for determination. They are:

  1. Whether the Court of Appeal was right when it held that there was no evidence in the printed record of appeal to suppose that the appellant was illiterate notwithstanding that exhibit A discloses sufficient evidence of the appellants illiterate status.
  2. Whether the Court of Appeal was right to have affirmed the conviction of the appellant notwithstanding the several legal errors and defects inherent in exhibit A, the confessional statement which ought to have made the said exhibit A inadmissible, ab initio.

Learned counsel for the respondent, F.A Oloruntoba adopted the issues formulated by the appellant. There would thus be no need reproducing them again.

At the hearing of appeal on 1 November 2018 learned counsel for the Appellant T. Kupolati Esq. adopted the Appellant’s brief filed on 30 May 2013 but deemed filed and served on 14 May 2014. He urged the Court to allow the appeal.

Similarly learned counsel for the Respondent F.A. Oloruntoba Esq, adopted the Respondent’s brief filed on 26 October 2015 but deemed filed and served on 1 November 2018. He urged the Court to dismiss the appeal.

I have examined the issues filed by the appellant, which were adopted by the respondent and found that none of the issues address the disastrous consequences of entering a plea of guilty by the appellant.

I shall take both issues together. In issue No.1 learned counsel for the appellant made lengthy submissions that the appellant is illiterate, contending that exhibit A, his statement, indicates that he is in fact an illiterate. In issue No.2 he pointed out that the confessional statement of the appellant is inadmissible since the Police Officer who recorded the statement was not called as a witness.

Learned counsel opposed these submissions, observing that the appellant after pleading guilty cannot be allowed to approbate and reprobate.

Both counsel, especially learned counsel for the appellant appears to have been oblivious of the significance of a plea of guilty to a criminal charge. I earlier on in this judgment reproduced the proceedings on the day trial commenced and ended. It is clear that on that day the accused/appellant was represented by M. A Lawal and Mrs O. Akinfolarin. The charge was read to him and he pleaded GUILTY.

A plea of guilty in a criminal trial is made by an accused person who does not contest the charge. This arises where an accused person having committed a crime is simply saying by pleading guilty that he is responsible for the crime.

A plea of guilty to a charge is conclusive evidence that the accused committed the Offence. When an accused person is represented by counsel and the charge is read and explained to him to the satisfaction of the Court the Court can proceed to convict forthwith. There is no better evidence than a plea of guilty. It is even better than eyewitness evidence. See Akpa v State (2008) 14 NWLR (Pt.1106) p.72 Jua V State (2010) 4 NWLR (Pt 1184) p .217

The appellant was convicted on his plea of guilty. Thereafter any exhibits tendered are surplusage as the plea of guilty is conclusive proof that the accused person (the appellant) committed the offence.

The proceeding in which the appellant pleaded guilty, which I reproduced shows the active participation of his counsel. The fact that the accused person (appellant) was represented by counsel and the charge was read and explained to him in English without any protest from the accused/appellant or objection from his counsel is conclusive evidence that the accused/appellant understands English and was satisfied pleading guilty to the charge.

In Nkie v FRN (2014) ALL FWLR (Pt.754) p .186  Okoro JSC correctly pointed out that:

“……the appellant, having voluntarily pleaded guilty to the charge at the trial Court, he cannot now be heard to be making a different case on appeal. He should not be allowed to approbate and reprobate in the same breath…”

The above sums up the plight of the appellant. After pleading guilty while being represented by counsel his case comes to an end. All that is left is for the judge to convict and sentence, and that is exactly what the learned trial Judge did.

Coming on appeal complaining about inadmissible evidence or that he is an illiterate is a waste of precious judicial time. This is best addressed in the trial Court, and not on appeal. There is no merit in this appeal. It is accordingly dismissed.


 AKA’AHS, J.S.C.

I read in draft the judgement of my learned brother, Rhodes-Vivour JSC dismissing the appeal as lacking in merit. I entirely agree.

The appellant pleaded to the charge which was well laid out and explained to him. Aside admitting the offence, the prosecution meticulously adduced evidence to show that the substance recovered from the appellant was packed in his presence and sent for forensic analysis. The certificate of the test analysis was also tendered which proved to be Cannabis Sativa, a prohibited drug. His complaint that he was an illiterate cannot be taken seriously since he was represented by counsel who raised no objection when the charge was being read and explained to him in English. Learned counsel had nothing to urge in his favour in mitigation of sentence during allocutus. In consequence the appeal lacks merit and it is dismissed.


OKORO, J.S.C.

My learned brother, Olabode Rhodes-Vivour, JSC, obliged me a copy of the lead judgment he has just delivered and I entirely agree with him that there is no merit in this appeal and ought to be dismissed by this Court. The Law Lord has taken time to reproduce the proceeding of the trial Court on 13th July, 2011 wherein the Appellant (as accused) was convicted and I shall not repeat the exercise. I shall make a few comments in support of the judgment.

I am of the opinion that the main issue in this appeal is whether the Appellant having voluntarily pleaded guilty to the charge at the trial Court, can be heard to making a different case on appeal.

The law is that, in criminal trial, where there is an admission of guilt, the question of establishing the legal burden of proof no longer arises, and no burden of proof rests on the accuser, the burden of proof having been discharged by the admission of the accused. See the case of Dongtoe v Plateau State (2001) 9 NWLR (pt 717) 132; U.N.T.M.B. v Nnoli (1994) 8 NWLR (pt 363) 326.

It is important to note that on the day trial commenced and ended, the accused/appellant was represented by counsel. The Charge was read to him without any objection from his counsel. He pleaded guilty after which he was convicted. His counsel proceeded to plead for leniency before he was sentenced. He cannot now be heard to be making a different case on appeal. See Nkie v Federal Republic of Nigeria (2014) All FWLR (pt 754) page 186. In the case of Dongtoe v Plateau State (supra) Karibi White, JSC (as he then was) stated at page 159 that It cannot be disputed that where there is an admission of the commission of the criminal offences alleged, the question of establishing the burden on the accuser to establish the commission of the offence does not arise.

In the instant case, the trial Court correctly acted on the plea of the accused, which conviction was affirmed by the Court below. I do not see any reason to disturb the concurrent findings of the Courts below same being correct and in accordance with the law.

I therefore hold that this appeal is lacking in merit and is hereby dismissed by me.

Appeal Dismissed.


NWEZE, J.S.C.

My Lord, Rhodes-Vivour, JSC, obliged me with the draft of the leading judgment delivered now. I agree with His Lordship that this appeal is devoid of merit.

The appellant, as accused person, at the trial Court was represented by counsel. Without any protest or objection, upon the charge being read and explained to him, he pleaded guilty. His complaint on appeal, in my view, is an after-thought. As it is well-known, a plea of guilty is valid, if made in a very unambiguous and unequivocal way; and the same is received by a trial Court or tribunal not labouring under the misapprehension of what the law is all about, Nkie v FRN (2014) LPELR -22877 (SC) 25;E -F; Amanchukwu v, FRN [2009] 8 NWLR (pt. 1144) 475; Okewu v. FRN (2005) All FWLR (pt. 254) 858; Kpoobari v FRN (2016) LPELR -40010 (SC) 16-17.

My Lords, permit me to adopt the alluring and appetizing dictum of the Illustrious and erudite Ogbuinya, JCA, in Rabe v FRN (2013) LPELR – 20163 (CA). According to His Lordship

“There is the crying need to emphasise that the appellants plea of guilty connotes a lot of things against him. That plea of guilty is personal to him and he Is bound by it, see Torri v. NPSN (2011) 13 NWLR (pt. 1264) 355. It resupposed that he understood the charge before pleading it, see Okewu v. FRN (2012)  LPELR 7834 (SC). By that plea, his fundamental right of defence as enshrined in the Constitution, as amended, became legitimately scuttled, see Torri v. NPSN (supra) and Omoju v. FRN [2008] 7 NWLR (pt. 1085) 38.

It is for these, and the more elaborate, reasons advanced in the leading judgement that I, too, shall enter an order dismissing this appeal. Appeal dismissed.


EKO, J.S.C.

I had the privilege of reading in draft the judgment just delivered by my learned brother, OLABODE RHODES-VIVOUR, J.S.C. It accords with my views and opinion of the appeal. I hereby endorse it.

The facts of the case completely prove a lie of what appears to be Mr. Kupolati’s “testimony” from the Bar. Exhibit A is the voluntary statement the Appellant made extra-judicially to the investigating officer of the National Drug Law Enforcement Agency (NDLEA) wherein the Appellant averred that he had primary school education, that he been educated, also, up to Senior Secondary School (SSS) and that he dropped out of school in his year 2 of the SSS. These facts not only squarely rebut the vociferous assertion of Mr. Kupolati, of Appellant’s Counsel, it also affirms my earlier statement that Mr. Kupolati used the occasion of brief writing, unfortunately, to bear false testimony”, as it were, that the Appellant is an illiterate to whom Illiterates (Protection) Law applies. I say no more.

Exhibit A was admitted into the proceedings unopposed. The Appellant was present and was represented by Counsel at the time the statement was tendered and admitted. Neither the Appellant nor his Counsel raised the issue of the involuntary making of the statement. The fact that Exhibit A was tendered and admitted in evidence without objection or by consent is evidence that the defence was satisfied that there was nothing in law on which they could rely on to oppose its admissibility. This Court, in all the cases where a document was tendered without objection or by consent at the trial, has held that the best time to object to the admissibility of a document is at the trial and at the time the document was being tendered for admission in evidence and not by way of appeal: IBORI V. AGBI & ORS  (2004) 6 NWLR (pt. 868) 78 at 136; FATUNBI v. OLANLOYE (2004) 12 NWLR (pt. 887) 229. A party who consented to a document being admitted in evidence is not permitted to resile from such agreement. He is estopped from doing so. Section 169 of the Evidence Act, 2011 is all about this estoppel by conduct. See also Uwais, CJN in IBORI v. AGBI & ORS (supra). And this is what makes this appeal a clear case of an abuse of the Court’s process.

This appeal, in my firm view, is frivolous and vexatious. Accordingly I join my brother in the order dismissing it in its entirety.


Appearances:

Kupoolati, Esq. with him, T. Ajiboye, Esq. For Appellant(s)

Y.S. Msheltia Esq. with him, W.I Audu, Esq. and M. Haruna, Esq. For  Respondent(s)