Legalpedia Citation: (2022-04) Legalpedia 66795 (SC)

In the Supreme Court of Nigeria

Holden At Abuja

Fri Apr 8, 2022

Suit Number: SC.980C/2018

CORAM

MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

JOHN INYANG OKORO

ABDU ABOKI

IBRAHIM MOHAMMED MUSA SAULAWA

PARTIES

OKUNOLA TAIWO

APPELLANTS

FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS

AREA(S) OF LAW

APPEAL, ACTION, EVIDENCE, CRIMINAL LAW AND PROCEDURE

SUMMARY OF FACTS

The appellant was charged on a one-count charge of dealing in 2.0 kilograms of Cannabis Sativa (otherwise known as marijuana). The appellant pleaded guilty to the charge. The prosecution called no witness but its Counsel tendered some documents from the Bar which were admitted in evidence as EXHIBITS PD1-PD9; among the exhibits tendered is a confessional statement from Pidgin English language by one Oligbo Okey, an officer/agent of the NDLEA, admitted as EXHIBIT PD3A while the English translation of same was admitted as EXHIBIT PD3B. Prosecution’s Counsel further urged the Court to convict the appellant “… in accordance with Section 356 (2) of the Administration of Criminal Justice Act 2015”.

On this basis, the trial Court then adjourned for judgment, and in its judgment delivered on 2nd March 2016 the appellant was convicted of the Charge and sentenced to 25 years imprisonment with hard labour. Aggrieved by the conviction and sentence, the appellant appealed to the Court below on five (5) grounds of appeal and on 13th April, 2018, the Court below dismissed the appeal and affirmed the conviction and sentencing of the appellant to 25 years imprisonment.

Again, dissatisfied the appellant has come before the Apex Court on a five grounds of appeal.

HELD

Appeal dismissed

ISSUES

(1)Whether the Court below was right to uphold the appellant’s conviction on the strength of Exhibits PD3A and PD3B having misconceived the issue of its legal validity under Section 17(2) of the Administration of Criminal Justice Act 2015 with the issue of admissibility under the Evidence

(2)Whether the Court below was right to have affirmed the appellant’s conviction based on his plea of guilty when the mandatory provisions of the Administration of Criminal Justice Act, 2015 were not complied with?

(3)Whether the prosecution discharged the burden of proof against the Appellant beyond reasonable doubt notwithstanding his purported plea of guilty?

RATIONES DECIDENDI

“MAY” – WHETHER THE WORD “MAY” AS USED IN SECTION 17(2) OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015 IS PERMISSIVE OR MANDATORY

“Section 17(2) of the Administration of Criminal Justice Act 2015 states thus:

“Such statement may be taken in the presence of a legal practitioner of his choice; or where he has no legal practitioner of his choice, in the presence of an officer of a Civil Society Organisation or justice of the peace or any other person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a Legal Practitioner.”

​The appellant contended that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the confessional statements.

That Court had stated thus:

“This furthermore makes the word ‘way’ a permissive word and not a mandatory word as used in the section. Admissibility of a confessional statement is not dependent on the presence of counsel or relation at the time of making the confession, Section 29 (1) of the Evidence Act must be satisfied. The said Section 17 (2) of the ACJCA cannot override the clear provision of the Evidence Act”.

In a statute, when ‘may’ is used it is generally accepted that it is permissive but exceptions exist when ‘may’ could be mandatory. I shall refer to the case of EDEWOR V UWEGBA & ORS (1987) LPELR-1009 (SC) where the apex Court gave this explanation, it said:

“Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression. In Messy v Council of the Municipality of Yass (1922) 22 S.R.N.S.W 494 per Cullen, CJ at pp 497, 498 it held that the use of the word ‘may’ prima facie conveys that the authority which has the power to do such an act has an option either to or not to do it. See also Cotton, L.I. in Re Daker, Michell v Baker (1800) 44 CH.D 282 But it has been conceded that the word may acquires mandatory meaning from the context in which it is used. See Johnson’s Tyre Foundary Pty Ltd v. Shire of Maffra (1949) A.L.R, 8& The word may also acquires a mandatory meaning from the circumstances in which it is used, Most of the cases in which the word ‘may’ has a mandatory meaning relate to cases in which they are used in penal statutes conferring powers to Courts. In Baker (supra) Cotton L.I. said think great misconception is caused by saying that in some cases “may” means must, It can never mean (must) so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases where a Judge has a power given him by ‘may’, it becomes his duty to exercise it”. In Over v Felton (1966) A.LR. 1088 Jenkyn J, said that “it lies upon those who contend that an obligation exists to exercise that power to show in the circumstances of the case something which according to the above principles, creates that obligation.” Per NNAMANI, JSC.

​The Court below stated the several options in implementation of Section 17 (2) ACJA and stated that the word ‘may’ used therein cannot by any stretch of the imagination be interpreted to mean mandatoriness, ‘May’ can be interpreted as compulsory in penal provisions and not otherwise, particularly in criminal procedure legislations.

Indeed, the said Section 17(2) of the ACJA is not a penalty section and in any event the issue of evidence is under a substantive law of Evidence and the Evidence Act provides for how to test the voluntariness of a confessional statement. The question may now arise as to whether the Administration of Criminal Justice Act being a Procedural Law can take precedence over the Evidence Act. It is a procedural breach which in most cases would not vitiate the trial. See Emedo v The State (2002) 15 NWLR (pt. 789) 196 wherein the Supreme Court held that an irregularity is not a factor that would justify the setting aside of a verdict or decision unless a miscarriage of justice is established as propelling that decision of the Court.

​The question of whether an extra statement is confessional or not depends on the facts surrounding a given case since the test of voluntariness of a confession must be carried out before its admissibility. That is what informs the necessity of a trial within trial once the voluntariness of the statement is challenged by the accused that makes the word ‘may’ in Section 17(2) of the ACJA permission and not a mandatory word.” – Per PETER-ODILI, JSC

CRIMINAL TRIALS – DUTY OF A COUNSEL OR ACCUSED PERSON TO INFORM THE COURT THAT THE ACCUSED PERSON DOES NOT UNDERSTAND THE LANGUAGE OF THE COURT – EFFECT OF FAILURE TO SO INFORM THE COURT

​“With respect to the posture of the learned counsel for the appellant that the appellant did not understand the language used in the Court. This point seems to be of no moment since in the realm of criminal justice, it is a cardinal principle of our criminal jurisprudence that the accused or his counsel is duty bound to bring to the notice of the Court the fact that he does not understand the language in which the trial is being conducted, failure to do so will bring about the presumption that he has no cause for complaint. To buttress the point, is that the fact that the accused does not understand the language in which the trial is being conducted is within the knowledge of the accused and it is for him or his counsel to take the initiative to cry out and bring to the notice of the Court at the earliest opportunity or so soon as the situation has arisen. If he lets go of that claim of his right to complain at the appropriate time, he loses the right to complain thereafter. See Francis Durwode v The State (2000) LPELR-972; Ibrahim v The State (2013) LPELR-21883 (SC); Madu v The State (1997) 1 NWLR (Pt. 482) 386.” – Per PETER-ODILI, JSC

CONFESSIONAL STATEMENT – EFFECT OF A CONFESSIONAL STATEMENT ADMITTED WITHOUT OBJECTION

“Another area needing be brought into the fray is the fact that the confessional statement was tendered and admitted without objection. The follow-up result of all these presentations is that it is too late in the day to challenge the document tendered without objection at the trial but now a matter to be brought in as a challenging factor on appeal. I refer to the case of Nwachukwu v The State (2002) 12 NWLR 508 at 542.” – Per PETER-ODILI, JSC

CONFESSIONAL STATEMENT – EFFECT OF A CONFESSIONAL STATEMENT ADMITTED WITHOUT OBJECTION

“Another area needing be brought into the fray is the fact that the confessional statement was tendered and admitted without objection. The follow-up result of all these presentations is that it is too late in the day to challenge the document tendered without objection at the trial but now a matter to be brought in as a challenging factor on appeal. I refer to the case of Nwachukwu v The State (2002) 12 NWLR 508 at 542.” – Per PETER-ODILI, JSC

PLEA OF GUILT – POSITION OF THE LAW WHERE AN ACCUSED PLEADS GUILTY

The circumstances which prevailed at the trial Court belie the posture of the appellant as accused person pleaded guilty to the charge on arraignment, the burden on the prosecution to prove the offence beyond reasonable doubt is lifted. Therefore, the practice of tendering the items recovered during investigation upon that plea of guilt is in fulfilment of the abundance of caution to support the plea of guilty and adds nothing to the requirement upon arraignment and plea of guilty. When there was no objection on any part of the proceedings at that point it is too late to do so later. See Adeleke v State (2013) LPELR-20971 SC.

It is now trite law that when an accused person pleads guilty he can be convicted solely on the plea of guilty as long as the offence is not punishable with death. See Nwachukwu v FRN (2007) 6 NWLR (pt. 1029) 1; Nkie v FRN (2014) LPELR-22877.

​In reiteration, there is no duty on the prosecution to prove beyond reasonable doubt when the accused person pleads guilty. Therefore, a plea of guilty is valid if it made in an unambiguous and unequivocal way and the same is received by the trial Court not disturbing itself under the misapprehension of what the law is. See Emma Amanchukwu v FRN (2009) 2 SCM, (2009) 8 NWLR (pt. 144) 475; Adeyemi v The state (2013) 14 NWLR (pt. 1373) 129.

The difference in procedure comes in when capital offences are at play whereat an accused person shall not be convicted on a guilty plea. In such a case a “not guilty” plea is stipulated by law to be entered for the accused person.

In the instance, where the accused is not represented by counsel, the Court is expected to inquire more and be assured that the accused knows what he is doing. If he is represented by counsel, that indulgence is not granted. I rely on Omokuwajo v FRN (2013) LPELR-20184 (SC).

In further clarification, I shall cite and quote some guidelines prescribed by the Appellate and Supreme Courts thus:-

See Ibrahim v FRN (2016) LPELR-40059 (CA) as follows:-

“The law therefore provides for conviction upon a guilty plea without any further formality. A plea of guilty can earn a conviction when certain conditions are evident as held in the case of SUMANYA ISSAH TORRI V THE NATIONAL PARK SERVICE OF NIGERIA (2008) LPELR-8475 (CA) where the Court held:

“The requirement of the law before there could be a conviction on a plea of guilty are that:

i.The Court must be satisfied that the accused understands the charge against him;

ii.The Court must be seized of the facts alleged by the prosecution as constituting the offence charged;

iii.The Court must ask the accused if he admits all the facts alleged by the prosecution;

iv.The Court must be satisfied that the accused intends to admit the commission of the offence charged;

v.The facts stated by the prosecution and admitted by the accused must be able to sustain the charge against the accused.

The apex Court on the consequences of a guilty plea held thus:

“It is established law that after a plea of guilty by the accused before the Court exercising jurisdiction in respect of criminal offences, the Court must formally proceed to conviction without calling on the accuser to prove the commission of the offence by establishing the burden of proof by law.”

see DONGTOE V CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 4 S.C. (Pt. II) 43. See also NKIE V. FRN (2014) LPELR-22877 (SC).

​Generally, a plea of guilty that is unequivocal and a conscious act of the accused who has understood the charge explained can qualify for conviction without more.

Clearly, the Court of trial convicted the appellant properly upon the guilty plea and the other factors mentioned were surplusage and cannot be used as foundation to set aside the judgment. With the trial Judge being satisfied that the plea of guilty was done consciously, the Judge being satisfied, was right to proceed to conviction. The matter of his satisfaction, not being so recorded would not detract from the fact of the appropriateness of the procedure and that is not open to challenge the issue of satisfaction. Therefore, the burden of proof having been obviated by the plea of guilty as the Court below found and stated, there was no burden on the prosecution to prove the allegation. The case of Ochiba v State (2011) 17 NWLR (pt. 1277) 663 at 694 does not apply to the case in hand, the scenario existing thereby distinct from the one currently under discourse.” – Per PETER-ODILI, JSC

CHARGE(S) – DUTY OF AN ACCUSED OR HIS COUNSEL TO INFORM THE COURT THAT THE ACCUSED DOES NOT UNDERSTAND THE CHARGE

“As observed earlier, the appellant was represented by counsel. There is nothing on the record to show that he did not understand the charge read to him, Indeed, he stated clearly, “I understand the charge.” As rightly observed by the Court below, if the appellant did not understand the charge, it was his duty or the duty of his counsel to so inform the Court. See: Akeem Vs The State (2017) LPELR-42465 (SC) @ 27-30 D-A; 33 C- F; Dibie vs The State (2007) LPELR-941 (SC) @ 7-8 C-A.” – Per PETER-ODILI, JSC

LANGUAGE OF THE COURT – WHETHER A PERSON WHO SPEAKS PIDGIN ENGLISH IS DEEMED TO UNDERSTAND ‘PROPER’ ENGLISH

“In any event, the Court is entitled to take judicial notice of the fact that Pidgin English is a specie of “proper” English freely and commonly used in Nigeria. A person who speaks Pidgin English usually understands “proper” English although he may not be able to communicate effectively in “proper” English, In a recent decision of this Court in Olanipekun vs The State (2016) LPELR-40440 (SC), the statement of the appellant was challenged on the ground that it was recorded in Pidgin English and the prosecution failed to tender the English translation. His Lordship Akaahs, JSC at pages 8-9 D-A (Supra) stated thus:

“It is erroneous for anyone to assume that people who communicate in Pidgin English do not understand proper or Queen’s English, especially in Nigeria. The use of Pidgin English allows for free expression without minding the grammar which is usually employed in the proper English.

Consequently, a statement that was said to have been recorded in Pidgin does not require translation into proper English and any statement made in Pidgin English can be recorded in proper English.” – Per PETER-ODILI, JSC

CASES CITED

Not Available

STATUTES REFERRED TO

Administration of Criminal Justice Act, 2015

Evidence Act, 2011

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