Legalpedia Citation: (2023-07) Legalpedia 14489 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Fri Jul 14, 2023

Suit Number: CA/ABJ/CR/24/2022

CORAM

Ugochukwu Anthony Ogakwu JCA

Mohammed Mustapha JCA

James Gambo Abundaga JCA

PARTIES

OLUFON DAODU

APPELLANTS

FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

The facts of the matter are that officers of the National Drug Law Enforcement Agency (NDLEA), acting on a tip-off that substances suspected to be cannabis sativa was being transported in a vehicle into Niger State, stormed the Kosa Kosa Guest Inn, Lambata, in Gurara Local Government Area of Niger State where they apprehended the Appellant and his co-defendants with the said cannabis sativa in a Mercedes Benz Car. They were later arraigned before the lower Court (Federal High Court, Minna Division) on a two-count Charge for possession and transportation of indian hemp. The Appellant was the 3^rd accused at trial.

At the end of the trial, the lower Court convicted the accused persons for the offences charged and imposed a punishment of ten (10) years imprisonment with no option of fine on Count One, and eight (8) years imprisonment with no option of fine on Count Two. The Appellant was dissatisfied with the judgment of the lower Court hence the instant appeal.

HELD

 

Appeal dismissed

ISSUES

Ø Whether the trial court was right when it convicted the appellant as charged, having regards to the evidence led?

RATIONES DECIDENDI

BURDEN OF PROOF – BURDEN OF PROOF IN OUR ADVERSARIAL CRIMINAL JUSTICE SYSTEM – MEANING OF PROOF BEYOND REASONABLE DOUBT

Under our adversarial criminal justice system, the Prosecution has the onus of proving the commission of the offences charged. By Section 135 of the Evidence Act, 2011 the standard of proof in a criminal case is proof beyond reasonable doubt. Proof beyond reasonable doubt does not mean that the Prosecution must prove the case with mathematical exactitude: ADEOYE vs. THE STATE (2011) LPELR (9091) 1. It does not mean proof beyond all shadow of doubt; so, where the evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt. In the words of Oputa, JSC (of most blessed memory) in BAKARE vs. THE STATE (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12-13:

“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: –

‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.”

Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. See TAJUDEEN vs. FRN (2022) LPELR (57741) 1 at 45-46. – Per U. A. Ogakwu, JCA

 

PROOF – WAYS BY WHICH THE PROSECUTION MAY PROVE THE GUILT OF AN ACCUSED

There are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are:

1. By reliance on a confessional statement of an accused person voluntarily made;

2. By circumstantial evidence; and

3. By the evidence of eyewitnesses.

See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and EZE vs. FRN (2017) 15 NWLR (PT 1589) 433 at 490. – Per U. A. Ogakwu, JCA

EVIDENCE – THE POSITION OF DIRECT EYE-WITNESS EVIDENCE

It is rudimentary law that the direct evidence of an eyewitness is the best reliable evidence to establish a fact videUDO vs. THE STATE (2018) LPELR (43707) 1 at 22, AKINLOLU vs. THE STATE (2015) LPELR (25986) 1 at 41-42 and TAJUDEEN vs. FRN (supra) at 25-26. – Per U. A. Ogakwu, JCA

 

POSSESSION OF INDIAN HEMP – INGREDIENTS OF THE OFFENCE OF POSSESSION OF INDIAN HEMP

In BLESSING vs. FRN (2015) LPELR (24689) 1 at 25-26, the apex Court held as follows:

“In order to secure a conviction for unlawful possession of Indian Hemp, otherwise known as cannabis sativa … the prosecution must establish the following beyond reasonable doubt …

1. That the substance was in possession of the accused;

2. That it was knowingly in his possession;

3. That the substance is proved to be Indian Hemp (cannabis sativa); and

4. That the accused person was in possession of the substance without lawful authority.”

See also OKEWU vs. FRN (2012) 9 NWLR (PT 1305) 327 at 358, OYEM vs. FRN (2019) LPELR (47392) 1 at 10 and 23, BALOGUN vs. FRN (2021) LPELR (53185) 1 at 15-16 and ADAMU vs. FRN (2019) LPELR (48775) 1 at 5. – Per U. A. Ogakwu, JCA

 

MOTOR VEHICLE AND TRANSPORTATION – MEANING OF MOTOR VEHICLE AND TRANSPORTATION

In CIVIL DESIGN CONSTRUCTION NIG LTD vs. SCOA (NIG) LTD (2007) LPELR (870) 1 at 17-18, the apex Court held that a motor vehicle is a machine that has the capacity of being driven along public roads in transit or for purposes of carrying materials from one site to another. Equally, in TAJUDEEN vs. FRN (supra) at 36, this Court, relying on the Black’s Law Dictionary, 8th Edition, held that transportation is the movement of goods and persons from one place to another. – Per U. A. Ogakwu, JCA

 

 

TO POSSESS – WHAT IT MEANS TO POSSESS

In UGWANYI vs. FRN (2012) LPELR (7817) 1 at 16, it was held by the Supreme Court (per Rhodes-Vivour, JSC):

“To have or to own is to possess. A thing is in possession of a person if it is found on him.”

– Per U. A. Ogakwu, JCA

EXPERT – WHEN AN EXPERT IS NOT CALLED AS A WITNESS

Even though the forensic analyst was not called as a witness, the forensic report was rightly admitted in evidence and acted upon by the lower Court by virtue of the provisions of Section 55 (1) and (2) of the Evidence Act which provides as follows:

“(1) Either party to the proceeding in any criminal case may produce a certificate signed by the Government Pharmacist, the Deputy Government Pharmacist, an Assistant Government Pharmacist, a Government Pathologist or Entomologist or the Accountant-General, or any other Pharmacist so specified by the Government Pharmacist of the Federation or of a State, any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State, or any accountant specified by the Accountant-General of the Federation or of a State (whether any such officer is by that or any other title in the service of the State or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated in it.

(2) Notwithstanding Subsection (1) of this Section, any certificate issued and produced by any officer in charge of any laboratory established by the appropriate authority may be taken as a sufficient evidence of facts stated in it.”

​See the cases of ABDULLAHI vs. FRN (2016) LPELR (40101) 1 at 17-19, ABIODUN vs. FRN (2016) LPELR (40535) 1 at 40-42 and 61-64, EKUM vs. THE STATE (2022) LPELR (57683) 1 at 12-14, MU’AZU vs. THE STATE (2022) LPELR (57534) 1 at 10, ALI vs. THE STATE (2020) LPELR (53409) 1 at 33-35, WOWEM vs. THE STATE (2021) LPELR (53384) 1 at 50-51 and ENEH vs. FRN (2020) LPELR (50627) 1 at 11-13. On the settled state of the law, the evidence afforded by Exhibit E comprehensively proved that the substance was cannabis sativa. – Per U. A. Ogakwu, JCA

 

DRUG CASES – PROCEDURE LAID DOWN FOR THE INVESTIGATION OF DRUG CASES AND RELATED OFFENCES – WHERE THE PROCEDURE IS NOT COMPLIED WITH

The Appellant relied on the case of UGWANYI vs. FRN (supra) to contend that the procedure laid down for the investigation of drug cases and related offences was not followed. In the said case at pages 13-14, Rhodes-Vivour, JSC held thus:

“Before addressing the issues in this appeal, I shall make some observations on the procedure for arrest and prosecution of a drug suspect. Put briefly.

1. The suspect is arrested on reasonable suspicion of being in possession of drugs.

2. The authorities take possession of the substance suspected to be drugs in the presence of the suspect and weigh it.

3. A preliminary test may or may not be done depending on the circumstances, but if done it is desirable it is done in the presence of the suspect.

4. Relevant papers, to wit: Certificate of test analysis (if preliminary test is done) packing of substance/drugs forms are filled by the arresting authorities and signed by the suspect.

5. All the substance recovered, or a reasonable quantity is sent to the laboratory for expert analysis.

6. The laboratory issues a report which may be positive or negative. It is that report that the prosecution acts on to prove its case against the suspect or allow him to go home if the report is negative for drugs.

7. An expert from the laboratory that conducted the test testifies, in Court, and in his evidence in chief he should state his qualification and experience before he proceeds to give evidence on his report. Depending on the circumstances of the case, failure to comply with this laid down procedure may not lead to miscarriage of justice or vitiate the conviction of the suspect, but it is desirable that there is compliance.”

​It is instructive that the learned law Lord stated that failure to comply with the procedure may not vitiate a conviction. – Per U. A. Ogakwu, JCA

EVIDENCE – WHEN THERE ARE TRIVIAL INCONSISTENCIES AND CONTRADICTIONS IN EVIDENCE

It is hornbook law that it is not every trivial inconsistency or contradiction in the evidence of the Prosecution that is fatal to its case. It is only when such inconsistency or contradiction is substantial and fundamental to the main issues in question before the Court and is therefore capable of creating some doubt that the accused person is entitled to take the benefit of the doubt arising from such contradiction or inconsistency. See SELE vs. THE STATE (1993) 1 NSCC 47 at 53, AFOLALU vs. THE STATE (2009) 3 NWLR (PT 1127) 160 at 183, ISIBOR vs. THE STATE (2002) LPELR (1553) 1 at 8-9, THEOPHILUS vs. THE STATE (1996) 3 NWLR (PT 423) 139 and AKINDIPE vs. THE STATE (2012) 16 NWLR (PT 1325) 94 at 133.  – Per U. A. Ogakwu, JCA

 

BURDEN OF PROOF – BURDEN OF PROOF IN CRIMINAL TRIALS – WHEN THE BURDEN SHIFTS TO THE ACCUSED

Let me iterate that in a criminal trial, the burden is always on the Prosecution to prove the guilt of the accused person beyond reasonable doubt. There is no duty on the accused person to prove his innocence. However, where the evidence adduced by the Prosecution is tested, scrutinised, and accepted by a trial Court and it conclusively points to the accused person as the perpetrator of the crime charged, the evidential burden is then on the accused person to rebut the presumption that he committed the crime and at least cast a reasonable doubt on the Prosecution’s case by preponderance of probabilities. See AKINMOJU vs. THE STATE (2000) 6 NWLR (PT 352) 608 at 629, IGABELE vs. THE STATE (2006) 6 NWLR (PT 975) 100 at 136-137 and KEKONG vs. THE STATE (2017) LPELR (42343) 1 at 28.

It is abecedarian law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court which has the unparalleled advantage of hearing, seeing, and watching the witnesses testify and observing their demeanour. See KIM vs. THE STATE (1992) 4 NWLR (PT 233) 17, OKOH vs. NIGERIAN ARMY (2018) 6 NWLR (PT 1614) 176 at 187 and MOSHOOD vs. THE STATE (2021) LPELR (55591) 1 at 22-24. InEZEANI vs. FRN (2019) LPELR (46800) 1 at 17, evaluation was defined by the apex Court (per Okoro, JSC) as follows:

“Evaluation of evidence which is in the province of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the findings of facts.”

See also AINA vs. THE STATE (2021) LPELR (54417) 1 at 17.

What the Appellant perceives and complains to be that the lower Court shifted the burden of proof to him is the process of evaluation of evidence by the lower Court to see if the Appellant had adduced any evidence that cast a reasonable doubt on the Prosecution’s case by preponderance of probabilities: AKINMOJU vs. THE STATE (supra), IGABELE vs. THE STATE (supra) and KEKONG vs. THE STATE (supra). – Per U. A. Ogakwu, JCA

COURTS – DUTY OF THE LOWER COURT TO PROPERLY EVALUATE EVIDENCE

It is in the discharge of this its primary duty that the lower Court considered the fact that the Appellant did not call any evidence from any of his colleagues who he alleged that he was on special duty with, and further gave appraisal to the evidence that the Police authorities conducted an orderly room trial and dismissed the Appellant; in ascribing probative value to the evidence in order to ascertain if any reasonable doubt was cast on the Prosecution’s case.

There is nothing esoteric in the aphorism that the Prosecution has the burden in criminal trials to prove the offence charged beyond reasonable doubt. Absolute certainty is impossible in any human adventure, so the Prosecution need not prove the case beyond all shadow of doubt: THE STATE vs. GWANGWAN (2015) 13 NWLR (PT 1977) 600 at 621, THE STATE vs. SADIQ (2021) LPELR (56660) 1 at 12 and JUA vs. THE STATE (2010) LPELR (1637) 1 at 20-21. The lower Court properly evaluated the evidence and ascribed probative value in finding that the offences charged were proved beyond reasonable doubt. The proof drowned the presumption of innocence which enured in favour of the Appellant and entitled the lower Court to convict, as the proof obliterated the presumption of innocence and pinned the Appellant as the culprit in the offences charged: DIBIE vs. THE STATE (2007) LPELR (941) 1 at 26, AJAYI vs. THE STATE (2013) LPELR (19941) 1 at 43, ABEKE vs. THE STATE (2007) ALL FWLR (PT 366) 644 at 659 and UCHE vs. THE STATE (2015) LPELR (24693) 1 at 25-26. – Per U. A. Ogakwu, JCA

 

CROSS APPEAL – WHERE THE NEED TO FILE A CROSS-APPEAL ARISES

The Respondent did not file any cross-appeal and the Appellant did not proffer any argument on the severity vel non of the punishment imposed. If the Respondent felt strongly that the lower Court erred in the punishment it imposed, then it should have filed a cross-appeal to properly invoke the jurisdiction of the Court to revisit the sentence imposed. See NAFIU RABIU vs. THE STATE (1990) 11 SC 130 at 177, LUCKY vs. THE STATE (2016) LPELR (40541) 1 at 41-42 and AWOSIKA vs. THE STATE (2018) LPELR (44351) 1 at 44. – Per U. A. Ogakwu, JCA

 

CASES CITED

STATUTES REFERRED TO

1Constitution of the Federal Republic of Nigeria 1999 (as amended)

2 NDLEA Act, Cap N 30 Laws of the Federation of Nigeria, 2004

3. Evidence Act, 2011

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