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In The Supreme Court of
On Friday, the 15th day of
February 2008
Before Their Lordships
S.C. 167/2007
Between
And
Judgement of the Court
Delivered by
Niki
Tobi J.S.C
The facts of this case are
bizarre, uncouth, life threatening and outrageous, in the sense that it is
widely and wildly unexpected and unusual They show to what extent human
beings go for money and the way humanity adores or worships money To such
human beings, it is either money or nothing and they can die for money.
Fortunately, a two-year jail term is not anything near death. It is a case
of a human being, not just a human being; a Pastor, a man of God, so to say,
swallowing 118 wraps or pieces of heroine and excreting same in a toilet at
the Nnamdi Azikiwe
International Airport, Abuja, in his forced defecation between 4.05 am and
5.27 pm on 9th March. 2003. That human being and Pastor is the
appellant.
The story is most sickening
and horrifying. Although I dread it, I will tell it in the way the appellant
told it in his statement to the officers of the National Drug Law
Enforcement Agency. Appellant got his international passport in 2001 and
started travelling to the
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.
Let me reproduce the
proceedings at pages 14 and 15 of the Record;
'"Mrs.
Alhaji:
We are ready for hearing.
We have one witness in court.
Mr.
Nganjiwa
;
My client intends changing his plea.
Mrs.
Alhaji:
We apply that the charge he read to the accused again for a fresh
plea.
Charge read to accused once
again in English, he understands and pleads guilty to the charge.
Mrs.
Alhaji:
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.
Mr._Nganjiwa:
We plead for leniency
Court:
In the light of the plea of the accused person, the evidence tendered
in proof of the charge and the recovered drug, I find the accused guilty as
charged and by virtue of Section 10(b) of the Nigerian Drug Law Enforcement
Act convict him accordingly.
Mr.
Nganjiwa:
We plead the court to temper justice with mercy in passing sentence.
He is first offender, married with children. He changed his plea out of
remorse for repentance. He was lured by poverty. He is the only surviving
son of his parents. He is above 50 years and a sick man. He has undertaken
to repent. The court has discretion to give an option of fine. Section
382(1) Criminal Procedure Act.
Apamaje
v. The
State (1997) 3 NWLR (PT.493) 209.
Mrs.
Alhaji:
I urge the court to convict. He has no record of previous conviction.
Court:
In the consideration of the plea for leniency, I also find it
interesting that he is a Pastor who should lead by example. I however find
that he appears remorseful and accordingly sentence him to a term of 2 years
imprisonment taking into consideration the period he was in custody."
Dissatisfied with the
judgment, the appellant appealed to the Court of Appeal. The appeal was
dismissed Peter-Odili, JCA,
said at page 101 of the Record:
"The conclusion therefore is
that this appeal lacks merit and seeing nothing upon which the findings and
decisions of the learned trial Judge should be disturbed I dismiss this
appeal while I affirm the conviction and sentence of the Appellant with the
slightest amendment to the conviction words reading, 'I find the accused
guilty as charged and by virtue of Section 10(b) of the National Drug Law
Enforcement Agency Act Cap 253 Laws of the Federation of Nigeria 1990'."
Still dissatisfied, the
appellant has come to the Supreme Court. Briefs were filed and duly
exchanged. Appellant formulated the following three issues for
determination:
"1.
Whether the Appellant can be convicted on a non-existing law"? (This
issue was distilled from ground 1 of the grounds of appeal).
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? (This issue was
distilled from ground 2 of the grounds of appeal).
3.
Whether there exists strict compliance with section 218 of the
Criminal Procedure Act when Appellant took his plea? (This issue was
distilled from ground 3 of the grounds of appeal)."
The respondent formulated two
issues for determination.
"1.
Whether the Appellant can be convicted at all on a non-existing law?
2.
Whether notwithstanding the plea of guilt by the Appellant, the
Respondent ought not to discharge the burden of prove(sic) placed on it by
law and whether there exists strict compliance with Section 218 of the CPA
when Appellant took his plea."
Learned counsel for the
appellant, Dr. Amuda-Kannike, submitted on Issue
No 1 that the appellant cannot be convicted at all on a non-existing
law contrary to what the learned trial Judge decided and as affirmed by the
Court of Appeal. He argued that the issue of the Constitution is much more
important than laws in statute books and the Constitution does not give room
for issue of mistake especially as it concerns the fundamental right of an
accused such as the appellant to fair hearing. Counsel cited section 36(8)
and (12) of the 1999 Constitution vis-a-vis
section 10(b) of the National Drug Law Enforcement Agency Act and
pointed out that section 10(b) of the Nigerian Drug Law Enforcement Act is
not in existence; as what is in existence is section 10(b) of the National
Drug Law Enforcement Agency Act Cap.253, Laws of the Federation of Nigeria
1990.
Learned counsel submitted on
Issue No 2 that the appellant cannot be convicted at all and ought
not to have been convicted when it is clearly apparent on the face of the
record before the court that the respondent has failed to discharge the
burden of proof placed on it by law, notwithstanding the fact that the
appellant pleaded guilty to the charge against him. He contended that a plea
of guilty by an accused person, such as the appellant, does not amount to a
conclusive proof of guilt. The prosecution still has the burden to prove the
guilt of the appellant and they have not done so in this case. He cited
Rabiu
v. State (2005) 7 NWLR (Pt. 925) 491 at 498. In order for the
prosecution to prove the ingredients of the offence of exporting heroin
against the appellant notwithstanding his plea of guilt it must be shown
that,
(i)
the heroin has left the shores of Nigeria
and that it is no longer in the country;
(ii)
the heroin has been sent abroad to another
country,
(iii)
the heroin is for commercial sale.
He submitted that the
appellant has not exported any hard drug or heroin by whatever name called
because he was arrested at the Nnamdi
Azikiwe International Airport, Abuja. At best,
what has so far taken place is attempt to export or better, attempted
exportation of heroin. He cited Dictionary of Law by L. B. Curzon, 4th
edition, page 105 and Oxford Mini Reference Dictionary by Joyce M. Hawkins,
page 141 on the definition of "export".
On whether the heroine was
kept in proper custody, learned counsel argued that the prosecution did not
discharge the burden placed on it that the substance was kept in proper
custody and not tampered with before it was sent for scientific analysis. He
cited Ishola
v. The State (1969) 1
NMLR 259 and 261. He brought to the notice of the court
the possibility of the substance not in safe custody before being sent for
analysis.
On Issue No 3, learned
counsel submitted that there exists no strict compliance with the law when
the appellant took his plea before the learned trial Judge and the Court of
Appeal ought to have set aside the conviction of the appellant on that basis
also. Citing
Osuji v. Inspector General
of Police (1965) LLR 143, learned counsel submitted that as the trial
Judge failed to ask if the appellant admitted the stated facts by the
prosecution, the conviction of the appellant ought to be set aside. He also
cited Ahmed v. Commissioner of Police
(1971) NMLR 409. He urged the court to allow the appeal.
Learned counsel for the
respondent, Mr. Femi Oloruntoba, raised a
preliminary objection that the appellant cannot argue issues of facts or
mixed law and facts having not filed an application for leave to file and
argue issues of facts or mixed law and facts before this court. He also
contended that all issues of facts or mixed law and facts argued in the
appellant's brief of argument particularly at pages 10 to 17 of the brief go
to no issue and urged the court that those parts of the brief be expunged or
be discountenanced. He argued that the appellant cannot argue grounds of
facts or mixed law and facts without leave of the court.
On Issue No 1, Mr. Femi
Oloruntoba, contended that the position taken by
the Court of Appeal on section 10(b) of the National Drug Law Enforcement
Agency Act, Cap 253 of the Laws of the Federation 1990 is correct, and since
no miscarriage of justice occurred, the error of the trial Judge should
stand. He gave four reasons in paragraph 4.04, page 6 of his brief why this
court should not go along with the submission of counsel for the appellant.
Arguing that it is not every error or mistake in a judgment that will lead
to a reversal of the judgment on appeal, learned counsel called in aid
Solola
v. The State (2005) 11
NWLR (Pt. 937) 460 at 485 and Emedo v.
The State (2002) FWLR
(Pt. 130) 1645 at 1648.
On section 36(8) of the 1999
Constitution, learned counsel argued that the issue raised by counsel for
the appellant is grossly misconceived, as at the time the appellant
committed the offence, section 10(b) of the National Drug Law Enforcement
Agency Act was an existing law within the meaning of section 315 of the 1999
Constitution, the Act having come into effect since 1989 when it was
promulgated as a Decree. Counsel therefore contended that the appellant was
not denied fair hearing.
Still on Issue No 1,
learned counsel submitted that justice is no longer anchored on
technicalities, as counsel for the appellant canvassed before this court.
The practice of this court is to approach justice from the substance of each
case. He cited
Osarumhense v.
Agboro (2005) 16 NWLR
(Pt. 951) 204.
On Issue No. 2, learned
counsel submitted that the confessional statement of the appellant
constitutes sufficient proof of the offence against him He cited
Ikemson
v. State (1998) 1 ACLR 80 at 85 and section 27 of the Evidence Act. On
the procedure adopted by the learned trial Judge, counsel relied on section
218 of the Criminal Procedure Act
and submitted that the correct procedure was followed. Counsel finally
submitted that the prosecution discharged the onus of proof placed on it and
that the case against the appellant was proved beyond reasonable doubt, and
there was strict compliance with section 218 of the Criminal Procedure Act.
He urged the court to dismiss the appeal.
In his Reply Brief, learned
counsel for the appellant submitted on the preliminary objection that the
grounds are of law and not mixed law and facts that needed leave of court He
pointed out that the issue of burden of proof is one of law and not one of
facts or mixed law and facts. He cited
Codex Ltd, v. NAB Ltd.
(1997) 49 LRCN 815 at 818-819 and submitted that the appellant complied with
the provision of section 233(1) and (2) (a) of the 1999 Constitution.
Let me take the preliminary
objection. It is that the grounds of appeal are of facts or mixed law and
facts, which needed leave of court. 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 arid legalism. The Part VII of the
Evidence Act second ground is on burden of proof. Burden of proof is a
matter of law provided for in 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.
The first issue is on the
error or mistake of the learned trial Judge. Finding the appellant guilty on
his plea of guilty, the learned trial Judge said at pages 14 and 15 of the
Record:
"In the light of the plea of
the accused person, the evidence tendered in proof of the charge and the
recovered drug, I find the accused guilty as charged and by virtue of
Section 10(b) of the Nigerian Drug Law Enforcement Act convict him
accordingly."
As the appellant was convicted
as charged there is
need to take the charge here.
It reads:
"That you Samuel Ayo
Omoju, Pastor, male Adult, on or about the 9th
day of March, 2003 at the Nnamdi
Azikiwe International Airport, Abuja exported
1.1kg of heroin without lawful authority and thereby committed an offence
contrary to and punishable under S.10(b) of the National Drug Law
Enforcement Agency Act Cap 253, Laws of the Federation of Nigeria 1990."
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.
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.
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 See
generally State v.
Gwato (1983) 1 SCNLR
142; Union Bank of Nigeria
Pic v. Ikwem
(2000) 3 NWLR (Pt. 648) 223,
Sha
v. Kwan (2000) 8 NWLR (Pt. 670) 685;
Adebayo
v. Okonkwo
(2002) 8 NWLR (Pt. 768) 1;
Asims
(Nig) Limited v. Lower Benue River Basin (2002) 8 NWLR (Pt. 769) 349;
Afro-Continental (Nigeria) Ltd, v
Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt. 815)
303
In determining the correct
nomenclature of a statute, an appellate court should have a very close look
at the mistaken statute and see whether from the totality of the statute, it
could mean and stand for the correct statute. In this appeal, the correct
statute is the National Drug Law Enforcement Agency Act. The learned trial
Judge mistakenly cited it as the Nigerian Drug Law Enforcement Act. There
are two mistakes. The first one is "Nigerian". The second one is the
omission of "Agency". Will it be wrong for an appellate court to come to the
conclusion that the Nigerian Drug Law Enforcement Act is the same thing in
the eyes of the learned trial Judge, as the National Drug Law Enforcement
Agency Act? I do not find any difficulty on my part to come to that
conclusion.
I am of the firm view that the
appellant did not suffer any miscarriage of justice, as the mistake did not
influence or affect the perception of the learned trial Judge of the case,
and a'fortiori the sentence passed
on him. If anything, the learned trial Judge was very much influenced by the
plea of his counsel for leniency.
The Judge said at page 15 of
the Record and I repeat it at the expense of prolixity:
"I however find that he
appears remorseful and accordingly sentence him to a term of 2 years
imprisonment taking into consideration the period he was in custody."
Issue No. 1 accordingly fails.
I take Issue No 2. It
is in respect of the burden of proof in this matter. It is the submission of
learned counsel for the appellant that a plea of guilty does not amount to a
conclusive proof of guilt and that the prosecution still has the burden to
prove the guilt of the accused. Let me reproduce here the confession of the
appellant to the commission of the offence. In his confessional statement,
appellant said inter alia at pages 52 and 53 of the Record:
"I was in the Hotel until
Sunday when Are came with 118 wraps of something inside shinning leather
which I swallowed all with water Around 9.00 pm he came to the Hotel and
brought me to the Airport and I checked in one luggage and I climbed
upstairs for the final screening and went down, After the screening. I was
taken downstairs to their office. In the office, I was told that I am being
suspected and I will be under observation until I go to toilet to determine
if I am carrying drugs, in their office, I went to toilet about 4.05 am and
excreted forty-three 43 pieces of hard drug substance. All in all the total
is 118 pieces of hard drug cocaine were excreted by me. The drugs were given
to me by Mr. Are at Dreamland Hotel."
The above is clearly a
confessional statement by the appellant in respect of his commission of the
offence. And so the question arises as to the evidential or probative value
of a confessional statement which is voluntarily made by an accused person.
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.
I should also consider section
36(8) and (12) of the Constitution. The two subsections provide:
"(8)
No person shall be held to be guilty of a criminal offence on account
of any act or omission that did not, at the time it took place, constitute
such an offence, and no penalty shall be imposed for any criminal offence
heavier than the penalty in force at the time the offence was committed.
...................................................................
(12)
Subject to as otherwise provided by this Constitution, a person shall
not be convicted of a criminal offence unless that offence is defined and
the penalty therefore is prescribed in a written law and in this subsection,
a written law refers to an Act of the National Assembly or a Law of a State,
any subsidiary legislation or instrument under the provisions of a law."
With respect to learned
counsel, I do not see the relevance of the above subsections in this appeal.
The subsections provide against retroactivity in legislation and punishing
accused person for offences not provided by Statute. In other words, while
subsection (8) provides against retroactive legislation, under subsection
(12), a person cannot be punished for an offence in customary law, which is
not written. And that reminds one of the decision in
Aoko
v. Fagbemi (1961) 1 All NLR 400, a case
decided on similar provision of the Independence Constitution of 1960.
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.
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. See also
Uluebeka
v. The State (2000) 7
NWLR (Pt 665) 404; Idowu v.
The State (2000) 12
NWLR (Pt 680) 48.
The above is the position of
the law. 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. This principle of
law can easily be applied to this appeal. Apart from the appellant's
confession that he swallowed 118 wraps or pieces of cocaine, there is the
additional evidence outside that confession that he excreted the 118 wraps
or pieces of the drugs. Can there be more concrete evidence that the
appellant had on him the 118 wraps or pieces of the drugs?
Learned counsel for the
appellant cited the case of
Rabiu
v. The State (supra) in
support of the principle of law in respect of procuring evidence outside the
confession of the appellant. I think I have answered him
above and it is the excretion of the drugs, which confirmed the swallowing.
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?
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
Learned counsel also raised
some weather in respect of whether the drugs were exported from
I now take the third and final
issue. It is in respect of section 218 of the Criminal Procedure Act. To
learned counsel for the appellant, the learned trial Judge did not comply
with the section. The section reads:
"If the accused person pleads
guilty to any offence with which he is charged the court shall record the
plea as nearly as possible in the words used by him and if satisfied that he
intended to admit the truth of all the essentials of the offence of which he
has pleaded guilty, the court shall convict him of that offence and pass
sentence upon or make an order against him unless there shall appear
sufficient cause to the contrary."
1 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
non-compliance with section 218. I also agree with the Court of Appeal that
the two cases cited by counsel are inapposite. And so Issue No. 3
fails also.
In sum, the appeal lacks merit
and it is hereby dismissed. Appellant is quite lucky to go in for only two
years sentence. But that is not all. As a Pastor; he should know that he has
to settle with God to make heaven. I say no more.
Judgment Delivered by
Sunday
Akinola
Akintan,
J.S.C
The appellant was arrested at
the airport in
At the trial, the appellant
pleaded guilty to the charge and he was accordingly convicted by the learned
trial Judge. He was sentenced to two years imprisonment. He later appealed
to the Court of Appeal. His appeal was against his conviction. His main
complaint on appeal was not that he was not caught with the prohibited drug
which he was carrying abroad, but that there was a mis-description
of the law under which he was charged and convicted by the trial court. The
Court of Appeal dismissed his appeal but corrected the error relating to the
mis-description of the law under which he was
charged and convicted. The present appeal is from the said judgment of the
Court of Appeal.
The main complaint in the
appeal centered on the statement of the law
under which the appellant was charged as "section 10(b) of the Nigerian Drug
Law Enforcement Agency" instead of "section 10(b) of the National Drug Law
Enforcement Agency Act."
As I have stated earlier
above, the Court of Appeal dismissed the appellant's appeal and corrected
the error relating to the mis-statement of the
Act. This brings into fore the power of the Court to
effect such a mistake. It is settled law that a mere irregularity
which does not render the proceedings a nullity can be corrected on appeal:
See Skenconsult (Nig) Ltd. v.
Ukey
(1981) 1 SC. 6; and
VictorRossek & Ors v. African
Continental Bank Ltd. & Ors. (1993) 8 NWLR (Pt. 312)
382. There is, however, no power in the Supreme
Court to review its own judgment. It may however for compelling reason,
depart from a principle of law which it has previously laid down. But such a
departure will not and cannot affect the efficacy of the previous judgment:
See Obioha v.
Ibero (1994) 1 NWLR (Pt. 322)503.
In fact the mistake in this
case is one which even the trial court could correct upon an application
made to it. This is because it falls within one which may be classified as
"accidental slips and mistakes in judgment” which a court has the power to
correct. Lord Denning, M.R;
in Pearlman (Veneers) S. A. (Pt) Ltd v. Bartels (1954) I WLR 1457; 3
All ER 659, explained the position as follows:
"When the substantive judgment
is not being altered but only the title of the action, it is to my mind
quite plain that this court has ample jurisdiction to correct any misnomer
or mis-description at any time whether before or
after judgment"
Applying the law as declared
above to the facts of the instant case, there is no doubt that the
mis-description or misstatement of the name of
the Act under which the appellant was charged on the charge sheet is no
doubt a mere irregularity which, I believe, does not and could not render
the proceedings a nullity. This is because the facts of the case against the
appellant were not in dispute. The appellant pleaded guilty to the charge
when it was read to him and it has not been shown that he was in any way
misled by the error in stating the correct name of the Act. I therefore
agree with the stand taken by the Court of Appeal in correcting the error
and dismissing the appeal. For the above reasons and the fuller reasons
given in the lead judgment written by my learned brother,
Niki Tobi,
JSC which I also adopt, I also dismiss the
appeal.
Judgment Delivered by
Walter Samuel Nkanu
Onnoghen
J.S.C
This is an appeal against the
judgment of the Court of Appeal, Holden at Abuja in appeal No.CAIA/31C/2005
in which the court dismissed the appeal of the appellant against the
judgment of the Federal High Court, Holden at Abuja in charge No.FHC/ABJ/CR/36/2003
delivered on the 29th day of July, 2004 in which the court
convicted the appellant upon his plea of guilty and sentenced him to a term
of two years (2years) imprisonment taking into consideration the period he
remain in custody. The charge against the appellant was:-
"That you Samuel Ayo
Omoju, Pastor, Male, Adult, on or about
the 9th day of March, 2003 at the Nnamdi
Azikiwe International Airport,
Abuja exported
1.1kg of Heroin without
lawful authority and thereby committed an offence contrary to and punishable
under Section 10(b) of the National Drug Law Enforcement Agency Act, CAP
253, Laws of the Federation of Nigeria, 1990.”
The appellant pleaded not
guilty to the charge, which charge was latter amended by substituting the
word "Cocaine" for
"Heroin". After the
amendment, the charge was again read over to the appellant, who again
pleased not guilty on the 30th day of October, 2003. However on
the 29th day of July, 2004 the appellant changed his plea of not
guilty to guilty after the charge was again read over to him upon the
application of his counsel. The facts of the case were then presented to the
court and exhibits tendered, which were never objected to before the court
convicted and sentenced the appellant as earlier stated. However, in
convicting and sentencing the appellant, the Learned Trial Judge made a
mistake by convicting him under
"Section 10(b) of the Nigeria Drug Law Enforcement Act"
instead of "Section 10(b) of the
National Drug Law Enforcement Agency Act", as charged. This
made the appellant to appeal to the Court of Appeal which dismissed the
appeal and effected the necessary amendment to the conviction resulting in
his further appeal to this court.
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 hut 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
he, 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.
This is a man who confessed to
the crime in the following words:
"I,
Samuel Ayo
Omoju having been duly cautioned in English Language
volunteers to make this statement in my own handwriting...
"Today being 10-03-2003 at about.
4.05am I went to the toilet and excreted forty-three (43) pieces of hard
drug substance or cocaine ".
Again;
"Today being 10-03-2003 at about 4.48am I went to toilet and excreted
twenty-eight (28) pieces of hard drug substance or cocaine which is another
one... "
Yet again;
"Today being 10-03-2003 at about 7.35am I went to toilet and excreted
another twenty-three (23) pieces of hard drug substance or cocaine.”
And again;
"Today being 10-03-2003 at about 10.27am I went to the toilet and excreted
another nine (9) pieces of hard drug or cocaine... "
And finally: "Today being
10-03-2003 at about 5.27pm I went to the toilet and excreted another fifteen
(15) pieces of hard drug substance or cocaine ".
These confessional statements
were tendered and admitted without objection after which he was convicted
and sentenced accordingly. I wonder what other proof beyond reasonable doubt
Learned Counsel for the appellant is talking about as lacking in the trial
and conviction of the appellant. It is obvious that Learned Counsel for the
appellant has only succeeded in wasting the precious time of this very busy
court with the most frivolous appeal I have ever come across.
To make matters worse, Learned
Counsel for the appellant has not been able to demonstrate to the
satisfaction of this court that the amendment of the Act under which the
appellant was charged and convicted by the lower court resulted in any
miscarriage of justice so as to justify the interference of this court.
I therefore agree with the
reasoning and conclusion of my learned brother
Tobi,
JSC that the appeal is without
merit and ought to be dismissed. I order accordingly.
Judgment Delivered by
Ibrahim Tanko Muhammad J.S.C
I have had the advantage of reading in draft, the
judgment of my learned brother, Tobi, JSC, just delivered, in agreeing with
my learned brother, lei me first say that the preliminary objection raised
by the respondent lacks merit and it is hereby dismissed.
On the appeal itself, my brother, Tobi, JSC has done
full justice to it by thoroughly treating all the issues raised by the
parties. Let me add that a judge is not a super natural being. He is a human
being and is not infallible. Where a judge makes mistakes which, from the
record of his proceedings, were not intentional or deliberate and which,
more importantly, in this case, did not cause any miscarriage of justice to
the other party, that omission must not be anchored on technicalities to
defeat the justice of the case. I am surprised that the learned counsel for
the appellant was making heavy whether out of such subconscious mistake in
writing the word "Nigeria" for "National". There was complete flow or
coherence from the 1st day of the arraignment to the day of
judgment that the intention of the learned trial judge in all references to
the law under which the appellant was charged was a clear reference to the
law as provided by Section 10 (b) of the National Drug Law Enforcement
Agency Act, Cap. 253 LFN, 1990. 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.
For the fuller reasons given by my learned brother,
Tobi, JSC I too dismiss this appeal as lacking in merit.
I affirm the decisions of the two courts below.
Judgment
Delivered by
Christopher Mitchell
Chukwuma-Eneh J.S.C
I
have had the advantage
of reading in advance the judgment just delivered by my Lord
Tobi JSC with which
I agree. I find no merit in the
appeal. I also dismiss it.
Counsel
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