⦿ CASE SUMMARY OF:
Adeniyi Kayode (Alias Black Jesus) v. The State (2007) – CA
⦿ LITE HOLDING
The charge must be explained to the accused before he pleads guilty.
⦿AREA OF LAW
– Criminal Law (cultusm)
– Pleading to guilty.
Adeniyi Kayode (Alias Black Jesus)
Gospel Seleipre Ogona
Oluwole Oladipo Eniola
(2007) JELR 54239 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Mr. S. R. Ashaolu Esq.
* FOR THE RESPONDENT
– Mr. J. A. Mumini, Director of Public Prosecutions, Kwara State Ministry of Justice.
⦿ FACT (as relating to the issues)
The charge against the Appellants reads at the Trial Court thus:
Charge one: That you Adeniyi Kayode (a.k.a. Black Jesus), Gospel Seleipre Ogona, Oluwole Oladipo Eniola (a.k.a. Calculus) and Usman Olarenwaju Bolakale on or about 12th day of July, 2004 at the University of Ilorin (permanent site) A agreed to form an illegal association to wit form a secret cult group on campus and you thereby committed an offence punishable under section 97 of the Penal Code.
Charge two: That you Adeniyi Kayode (aka Black Jesus) Gospel Seleipre Ogona, Oluwole Oladipo Eniola (aka Calculus) and Usman Olarewaju Bolakale on or about 12th day of July, 2004 at the University of Ilorin (permanent site) were found to be members of a secret cult group to wit Black Axe, a society that is prohibited in the University and you thereby committed an offence contrary to section 7 of the Secret Cults and Secret Societies in Educational Institution (Prohibition) Law, 2004.
The charges, according to the proceedings as can be gleaned from the record of trial, were read to the accused/appellants. They were asked if they understood same and each appellant replied in the affirmative. They were further asked if they were guilty. Each of the accused/appellant replied in the affirmative. They were further asked if they were guilty. Each of the accused/appellant with the exception of the 4th accused also replied in the affirmative.
The learned trial Judge, after the plea of the appellants held as follows: “Upon the plea of the accused persons viz accused 1, 2 and 3 admitting their guilt, they are hereby convicted of the offences as charged. The trial of the 4th accused person shall commence soonest.”
Dissatisfied with the decision of the learned trial Judge, the appellants appealed to this court by filing a notice of appeal consisting of six (6) grounds.
1. Whether in the circumstance of this case the appellants pleaded guilty to the charges against them at the trial court?
2. Whether the trial court had any discretion in the sentence passed after convicting the appellants?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED, IN PART]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. I now asked; did the learned trial Judge comply with the provision of the section reproduced above? Needless to say, the answer to this question can only be found in the record of the trial court.
The learned trial Judge on the 13/2/2005 held thus: “Court: Upon the plea of the accused persons, viz accused 1, 2 and 3 admitting their guilt, they are hereby convicted of the offences as charged.”
It is my considered view that in the light of what transpired in the court the day the accused/appellants were convicted, the question I posed a while ago, must be answered in the negative. The trial court did not comply with the provision of section 161(3) of Criminal Procedure Code before convicting the appellants. I am of the firm view that the plea of “guilty” is not merely of admitting the facts of the case as canvassed by the prosecution, but the accused must intend to admit the truth of all the essential ingredients of the offence to which he has pleaded guilty. The facts of the case must establish every ingredient of the offence and if any ingredient is not affirmatively answered, the plea of “not guilty” must be recorded in favour of the accused person.
ii. My lords, the entire proceedings as compiled by the lower court to this court, particularly pages 18 – 20, there is nowhere the learned trial Judge confronted the appellants with the requisite ingredients establishing the offence and the response of the appellants to it recorded in order to test the unequivocal admission of guilt of the appellants.
iii. Again, an accused person cannot be said to have pleaded to any offence which is not disclosed by the facts in evidence. It is not a plea to the offence stated in the charge, so unless the facts stated constitute an offence, a plea of guilty is not an admission of the offence.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The above section is clear and self-explanatory. The law gives the trial Judge specific mandate to impose both the term of imprisonment and fine. I am of the considered view that the law provides ten years imprisonment and fifty thousand naira fine. And as used in the section is conjunctive and I hold that the trial court had no discretion in the sentence passed after convicting the appellants.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Abdullahi
It is instructive to note that the appellants are first offenders and not only that, they are young persons and at the time of their arrest and incarceration, they were students in our tertiary institutions. This being the case, it would not be in the interest of the larger society to send these young persons back for retrial after they have spent more than 2½ years in prison custody. I am of the considered view that having spent so much time in prison is enough and adequate punishment for the offence they were alleged to have committed. It would be oppressive to send them back for re-trial and I so hold. They ought to have learnt their lesson; I order that they should be released from prison custody forthwith.
⦿ SOME PROVISION(S)
Section 161(1) of the Criminal Procedure Code: “If the court is of opinion that the offence is one which having regard to section 160 it should try itself, the charge shall then be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make.”
Section 161(3) of the Criminal Procedure Code provides thus: “The court shall before convicting on a plea of guilty, satisfy itself that the accused has clearly understood the meaning of the charge in all its details and essentials and also the effect of his plea.”
Section 23 of the Criminal Procedure Code: “Where a court has authority under any written law to impose imprisonment for any offence and has not specific authority to impose a fine for that offence, the court may in its discretion impose a fine in lieu of imprisonment.”
Section 11(1) of the Secret Cults and Secret Societies in Educational Institutions (Prohibition) Law, 2004: “Any student or person who contravenes the provisions of sections 6(1), 7 and 9 of this Law shall be guilty of an offence and shall be liable on conviction to ten years imprisonment and to a fine of fifty thousand naira (N50,000).”
⦿ RELEVANT CASE(S)
In the case of Cameroon Airlines v. Mike Otutuizu (supra), this court, Per M.D. Muhammad, held thus: “A reply brief should be limited to answering only new points arising from the respondent’s brief and should not be used to proffer further arguments to those already made and contained in the appellant’s brief. Where it is used to proffer further argument to those in the appellant’s brief, the court will discountenance such argument”.
In the case of Daggash v. Bulama (2004) All FWLR (Pt. 212) 1666, (2004) 14 NWLR (Pt. 892) 144 at page 247, this court per Ogbuagu JCA (as he then was) held as follows: “A dissenting judgment is not the judgment of the court or tribunal and it is therefore, not binding. An appellate court may, however, make reference to it and in fact, agree about a settled principle of law or a sound reasoning and conclusion in the dissenting judgment and in fact, set aside the majority judgment.”
In the case of Abdulatif Ahmed v. Commissioner of Police (1971) NNLR 48, it was held thus: “Before convicting on plea of guilty under section 161, Criminal Procedure Code, a court must explain all the ingredients of the charge to the accused person and record his replies as nearly as possible in the words used by him. It must also explain to him the effect of his plea and must satisfy itself that he has understood the full nature of the charge and the effect of his plea.”
In the case of Sunday Adeleke Osayomi and 7 Others v. State (2006) All FWLR (Pt. 342) 1577, (2007) 1 NWLR (Pt. 1015) 352 at page 381, this court per Abdullahi JCA, held thus: “The purpose of punishment is to reform and not to destroy or ruin an offender. For if an individual is ruined, the larger society will be at the receiving end.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
I pause here to say that it is manifest from what transpired on 11/ 2/2005, that though the charge was read to the accused/appellants, same was not explained before their plea was taken contrary to the provision of section 161(1) of the Criminal Procedure Code reproduced above. It is settled by the apex court that when a law or statute has laid down a procedure of doing a thing, compliance with that procedure is a condition precedent to doing that thing. – Abdullahi JCA. Kayode v. State (2007)
In view of the menace of cultism in our tertiary institutions in recent times, which culminated in the Anti-Cult Law of Kwara State the breach for which the convicts have been arrested, arraigned and sentenced, the convicts ought to be sent back to the High Court to properly stand trial and if tried and eventually convicted, sentenced to face the music so as to serve as a deterrent to them and their ilk. This is more so because two of them are recidivists who after purportedly renouncing cultism in their respective churches, have rejoined and revived their memberships. They are reasonable persons who ought to know the danger of engaging in such unwholesome pasttimes instead of facing their studies which is the paramount motive of coming to the University of Ilorin. The above remarks notwithstanding I share the sentiments expressed by my learned brother in his lead judgment (though with mixed feelings) that since the accused/convicts are first offenders and students whose life ambitions could be ruined if subjected to the rigours of trial even after incarceration for more than two and half years and since there is the likelihood of their turning a new leaf, they ought to be discharged. I pray too that they have seen the other side of life and ought to renounce cultism forthwith once they are left off the hook. This appeal therefore succeeds in part and I abide by the orders of my learned brother that the convicts be discharged from prison custody. The judgment of the lower court is hereby set aside. – Agube JCA. Kayode v. State (2007)