Guilty plea lessens burden on prosecution

This appeal is against the judgment of the Federal High Court, Lagos delivered on the 9th November, 2012 by HON. JUSTICE, R. N. OFILI – AJUMOGOBIA wherein the appellant was convicted and sentenced to 15 years of imprisonment for dealing in cannabis sativa otherwise known as marijuana. The brief facts of the case before the […]

This appeal is against the judgment of the Federal High Court, Lagos delivered on the 9th November, 2012 by HON. JUSTICE, R. N. OFILI – AJUMOGOBIA wherein the appellant was convicted and sentenced to 15 years of imprisonment for dealing in cannabis sativa otherwise known as marijuana. The brief facts of the case before the trial court were simply that the appellant was arraigned before the trial court on one count charge for dealing in cannabis sativa which read as follows:

“That you MURITALA IBRAHIM, Adult, Male on or about the 4th day of July, 2012 at Ipodo street in Ikeja Area of Lagos State within the jurisdiction of this Honourable Court without lawful authority dealt in 350 grams of cannabis sativa (otherwise known as marijuana) a narcotic drug similar to cocaine, heroin, LSD e.t.c 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.”

    The appellant pleaded guilty to the charge but the prosecution proceeded to present evidence.  One witness testified for the prosecution and tendered Exhibits Pw1 – 8 without objection.  He was not cross examined.  The trial court found the Appellant guilty, convicted and sentenced him to 15 years imprisonment with hard labour.

Dissatisfied with the conviction and sentence the Appellant filed a Notice of Appeal dated 4/12/12 and filed on the 4/12/12 setting out 3 grounds of appeal.

   The appellant in the said brief distilled a sole issue for determination thus:

 “Whether from the facts of this case, the complainant proved the guilt of the appellant beyond reasonable doubt.”

    Both sides proffered arguments in support of the sole issue formulated for determination in this appeal. The court shall adopt the sole issue distilled by the appellant in order to resolve his complaint exhaustively.

    The argument of the appellant is that the guilt of the appellant was not established by the prosecution which led the court to hold as follows:

“The prosecution has reviewed the facts before the court and shown to court that the about 350 grams of weeds were dealt with the applicant.

However, they have failed to establish the manner in which the applicant dealt in the weed which has inter tested and found to be offending during the cannabis sativa”.

    According to the appellant, his guilt was not established beyond reasonable doubt as required by law.  He cited section 11(c) of the NDLEA Act.

     The sole issue adopted for determination questions the conviction and sentence of the Appellant.  The Appellant was arraigned on a one count charge for dealing in Cannabis sativa (marijuana) without lawful authority, the charge was pursuant to section 11(c) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation. The section states thus:

“11. Any person who, without lawful authority:-

(c) sells, buys express or offers for sale or otherwise deals in or with the drugs popularly known as cocaine,  LSD heroine or any other similar drugs shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life:”

    The burden of proof in criminal cases is settled and it rests on the prosecution from start to finish in a criminal trial. It does not shift and the standard is proof beyond reasonable doubt. Proof beyond reasonable doubt has received judicial attention and the courts have held in several cases, one of which is the case of AKINLOLU V. STATE

(2015) LPELR – 25986 (SC) as follows:

“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”

It therefore does not mean proof beyond all shadow of doubt. See also OSETOLA & ANOR V. THE STATE(2012) LPELR – 9348(SC).

    The accused upon arraignment pleaded guilty to the charge and he was represented by counsel during the trial.  The charge was explained to the appellant as required by law.

  The fundamental question here is whether there was proper arraignment? Arraignment simply means charging the accused person and reading over and explaining the charge to him to the satisfaction of the court and followed by the plea.  A plea is a product of a valid arraignment.  The prosecution duly charged the appellant and the record of appeal reveals the following:

“Kalu: Have a charge dated 1st August 2012.  Apply for the charge to be read and explained to applicant and plea taken.

One count charge read and applicant pleads guilty.

Orji: We are ready to review facts of case subject to convenience of court. We have one witness.”

The charge was read, explained to the appellant and he pleaded guilty to the charge.  He was represented by counsel and no objection was raised.  The sole witness was then taken and he tendered Exhibits PW1-PW8 and they are:

a.    Certificate of test analysis – PW1

b.    Packing of substance – PW2

c.    Request for Scientific Aid – PW3

d.    Statement of accused dated 5/7/12 – PW4 and PW5 in English and pidgin English.

e.    Drug analysis Report dated 19/7/12 – PW6

f.    Bulk of substance weighing about 400grams – PW7

g.    Transparent pouches containing the Analysis of substance – PW8

The above exhibits were tendered without any objection after which the prosecution closed its case and applied to the court for the appellant to be convicted. Learned counsel for the Appellant then made the following submission as allocutus:

“1st Offender. Pleaded guilty at earliest opportunity without wasting court’s time.  Plea of guilty is not only in admission but prima facie – proof of remorse and repentance. Culprit is 22, single.  He is a user and has undergone counseling while in complainant’s custody.  He has promised to be of good behavior. Court has discretion.”

    This appeal is grounded on what the trial judge said in the judgment, it is brief and I shall reproduce it here:

“The prosecution has reviewed the facts before the court and shown to court that about 350grams of weed were dealt with by the applicant.

However they failed to establish the manner in which the applicant dealt in the weed which was inter tested and found to be the offending during of cannabis saliva (sic).  Although the accused person has pleaded guilty to the charge brought along him under Section 11 as a whole.  I believe that the weed was found on the applicant and the purpose for which it was found in his possession has not been satisfactorily established the before the court.  The accused applicants counsel on other hand has done absolutely nothing to make the applicants position clearer.  I therefore find the applicant guilty under S.11 of the NDLEA Act and sentence him to a term of 15 years’ imprisonment with no option of fine and with hard labour. Dated 9th November, 2012.”

    The appellant challenged all of the above contending that the charge was not proved beyond reasonable doubt.  Proof beyond reasonable simply means when the proof offered to establish the charge by the prosecution drowns the presumption of innocence of the accused, the court will find that the charge has been proved beyond reasonable

doubt.  It is when the case of the accused is untenable and he is pinned down to the commission of the offence that the offence is said to be proved.  It is not proof beyond all shadow of doubt because that will expose the community and do injustice to the public, see AKINLOLU V. STATE (SUPRA).

    Upon the guilty plea and especially when the arraignment is not vitiated, the burden on the prosecution has been discharged.

 The trial court did not say that it was not satisfied that the appellant intended to admit the truth of the charge.  That is the only condition the court cannot convict on a plea of guilty.

Assuming the position was not so, can the evidence before the court justify the conviction and sentence?  The prosecution went ahead after the guilty plea to present 8 exhibits listed above and these includes the statements of the appellant and the result of analysis of the weed which confirmed it to be cannabis sativa commonly called Indian hemp or marijuana. This was attested by the allocutus of learned counsel to the appellant in seeking mitigation of sentence. The comment by the court that the prosecution failed to prove how the appellant dealt with the weed, I must say, is unnecessary because the plea of guilty has lessened the burden on the prosecution and in any case, Exhibit 4 clearly stated how the appellant dealt with the weeds.  Exhibit 4 is

the confessional statement of the appellant and all of the exhibits were admitted without objection by either the appellant or his counsel.  In the confessional statement, the appellant admitted to selling weeds which is the essential element under Section 11 (c) of the NDLEA Act.  No further proof is therefore required.

 

In other words, the observations of the trial judge cannot be basis for setting aside the conviction which was based on the plea of the accused voluntarily made, more so, in the face of the additional evidence presented by the prosecution, the accused was rightly convicted.  The burden of proof never shifted but the appellant by his plea of guilty discharged the prosecution from going the whole way in proving the offence as if the plea were that of not guilty.  The trial judge made those remarks without considering the fact that the accused person’s plea of guilty was a plea accepting his guilt and the need for evidence did not arise. 

 

Furthermore, the need to go beyond the guilty plea on the aspects highlighted by the appellant is not the law.  The trial court can only decline to convict on a plea of guilty

when there are sufficient reasons disclosed to show that the plea was not in fact a plea of guilty.  The court did not say so here.  There is therefore no burden on the prosecution to prove beyond reasonable doubt when the appellant pleaded guilty.

From the records before the court, it is clear that the accused was convicted under a summary trial.  If there was full trial why did the learned counsel for the Appellant not address the court? Besides, there was no objection to the tendering of the 8 exhibits and the appellant counsel also admitted the appellant was a user of cannabis

sativa who has gone through counseling, so the contention in this appeal is uncalled for. The charge has been sustained against the accused and I find that the offence was proved as allowed by law.

    This appeal lacks merit and is hereby dismissed.  The judgment of the trial court delivered on the 9th November, 2012 by HON. JUSTICE R. N. OFILI – AJUMOGOBIA convicting the Appellant and sentencing him to 15 years imprisonment with hard labour is hereby affirmed.

    No order as cost.

Counsel:

Oreofe Ogunleye for appellant.

Augustine Nwagu for respondent.