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Kareem v. Federal Republic of Nigeria.

ALHAJI PRINCE FAROUNBI KAREEM

V

THE FEDERAL REPUBLIC OF NIGERIA

COURT OF APPEAL

( IBADAN DIVISION )

SUNDAY AKINOLA AKINTAN, JCA ( Presided )

FRANCIS FEDODE TABAI, JCA

OLUFUNLOLA OYELOLA ADEKEYE, JCA ( Read the Lead Judgment )

CA/I/191/2000

THURSDAY, 28TH JUNE, 2001

CRIMINAL AND PROCEDURE - Confessional statement - Duty of court to test veracity of before acting thereupon

CRIMINAL LAW AND PROCEDURE - Charge of accused for a grave

offence - Conviction for a lesser offence - When permissible

CRIMINAL LAW AND PROCEDURE - Confessional statement - Meaning of

CRIMINAL LAW AND PROCEDURE - Confessional statement - Retraction of - Whether renders it ipso facto inadmissible

CRIMINAL LAW AND PROCEDURE - Confessional statement - When will sustain a conviction

CRIMINAL LAW AND PROCEDURE - Conviction of an accused for an offence other than that of which he was charged - When allowed

CRIMINAL LAW AND PROCEDURE - Evidence of accused - When may be dispensed with

CRIMINAL LAW AND PROCEDURE - Prosecution witness - Calling of -

Scope and exercise of duty of prosecution in calling witnesses

CRIMINAL LAW AND PROCEDURE - Special Tribunal Miscellaneous Offences Act, section 10(5) - Provisions empowering the court to convict an accused of an offence other than that for which he was charged - Purpose of vis-a-vis principle of fair hearing - Whether right to fair hearing thereby necessarily abridged

EVIDENCE  - Confessional statement - Retraction of - Whether confessional statement becomes ipso facto inadmissible

EVIDENCE - Evidence of accused - When may be dispensed with

STATUTE - Special Tribunal Miscellaneous Offences Act, section 10(5) Provisions empowering the court to convict an accused of an offence other than that for which he was charged - Purpose of vis-a-vis principle of fair hearing -Whether right to fair hearing thereby necessarily abridged

WORDS AND PHRASES - ‘Confessional statement’ - Meaning of

Issues:

1.            Whether the trial court was right in law in holding that the appellant dealt in 400 grammes of Heroin even though the prosecution failed to discharge the onus placed upon them to prove the guilt of the appellant beyond reasonable doubt.

2.            Whether exhibit 52 was properly evaluated as a confessional statement by the learned trial Judge in view of its retraction at the trial by the appellant.

3.            Whether the learned trial Judge was right in law in convicting the appellant under section 10(c) NDLEA Decree No. 20 of 1984  amended by Decree No. 22 of the 1986 even when the said legislation was inconsistent with section 33 of the 1979 constitution and thereby denied the appellant the right of fair hearing.

Facts:

The appellant was charged before the Miscellaneous Offences Tribunal sitting in Lagos with three other accused persons. Initially, the three accused persons all pleaded not guilty, but as the trial progressed on the 7th of September 1995, three of the four accused persons, Oluwole Korede Lawal, Alhaji Atanda Mufutau and Tunde Sosanya changed their plea to that of guilty and were consequently tried summarily, convicted and sentenced. The appellant however, stood trial. At the conclusion of trial, the Tribunal convicted the appellant for dealing in 400 grammes of heroin, contrary to and punishable under section 10(c) of NDLEA Decree No. 48 of 1989 and thereby sentenced him to six years imprisonment.

Being dissatisfied with his conviction and sentence the appellant filed this appeal challenging the said judgment of the tribunal.

The court considered section 10(5) of the Special Tribunal Miscellaneous Offence) Act, Cap 410, Laws of the Federation which provides:

“Where a person is charged with an offence under this act but the evidence establishes the commission of another offence under this Act - the offender shall not be entitled to acquittal but may be convicted as provided under this Act.”