In The Court of Appeal
(Ilorin Judicial Division)
On Thursday, the 11th day of October, 2012
Suit No: CA/IL/C.17/2012
Before Their Lordships
PAUL A. GALINJE ....... Justice, Court of Appeal
ITA G. MBABA ....... Justice, Court of Appeal
OBANDE F. OGBUINYA....... Justice, Court of Appeal
IFEANYI CHIYENUM BLESSING Appellants
FEDERAL REPUBLIC OF NIGERIA Respondents
ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, in charge No FHC/IL/16c/2011, delivered by Hon. Justice A. O. Faji on 10th February 2012, in which the Appellant was convicted and sentenced to 15 years imprisonment on 20/2/2012.
Appellant was charged for unlawfully dealing in 2.4 kilogrammes of cannabis sativa and 15.3 kilograms of cocaine, heroin, LSD etc contrary to and punishable under sections 11 (c) and 19, respectively, of the National Drug Law Enforcement Agency Act, cap N30, Laws of the Federal Republic of Nigeria, 2004. She had pleaded NOT GUILTY to the charge. The prosecution called 4 witnesses and tendered 10 exhibits to prove the charge, while the Appellants testified in person and called evidence in denial.
The lower court had found as follows, in its judgment.
"I must therefore hold that the prosecution has shown beyond reasonable doubt that the substance in Exhibit 7 was indeed cannabis sativa, also known as Indian hemp. I also agree that onus of showing lawful authority lies on the accused person as it is a fact within her knowledge...I therefore find and hold, based on the accused person's confessional statement and the evidence of the prosecution witnesses, that the prosecution has proved at the elements of count two, beyond reasonable doubt, I am also of the firm view that standing alone, the confessional statement (Exhibit 8) is sufficient proof of the guilt of the accused person as regards possession, arrest with the drug and lack of lawful authority. The proof of the character of the drug to be Indian hemp has also been supplied by the certificate of test analysis and the drug analysis report which were tendered and admitted without objection and which the defence did not challenge by way of cross-examination or any other manner, whatsoever. I therefore convict the accused person on count 2, as charged...The accused person's discharged and acquitted on counts I and 3" (See page 187 of the Record of Appeal)
This appeal was filed against that conviction and sentence. Appellant had filed her Notice and grounds of Appeal on 29/3/2012, raising 7 grounds of appeal. Part of the judgment decision appealed against is "the decision to the effect that the Appellant is guilty of being in possession of 2.4 kilogrammes if (sic) Indian hemp without lawful authority"
The grounds of appeal are on Pages 193 to 198 of the Record of Appeal.
Appellant filed her Brief of argument on 7/6/2012, within time, and served same on the Respondent, who replied with a Respondent's Brief on 9/7/2012, also within time. On being served with the Respondent's Brief, the Appellant filed a Reply Brief on 23/7/2012. Appellant distilled four (4) Issues for determination, as follows:
(1) Whether the learned trial judge followed the procedure for arraigning and/or taking the plea of the Appellant as required by law and well settled judicial authorities and in line with the Appellant's constitutional right to fair hearing/trial under section 36(1) of the 1999 Constitution Nigeria.
(2) Whether the learned trial judge was right to have admitted and subsequently relied on Exhibit 4 (drug analysis report dated 18/03/2011), being an exhibit tendered through PW1 (Ahmed A. Suleiman), who was neither the maker nor could be cross-examined on the said exhibit, in convicting and subsequently sentencing the Appellant.
(3) Whether the learned trial judge was right to have admitted subsequently relied on and thereafter convicted the Appellant based on Exhibit 8 (the Appellants' confessional statement).
(4) Whether the Respondent proved its case beyond reasonable doubt against the Appellant as required by law, to justify her conviction and subsequent sentencing by the lower court."
Appellant related Issue 1 to ground 1; Issue 2 to ground 2; Issue 3 to grounds 4 and 5 and Issue 4 to ground 3, 6 and 7.
The Respondent, on its part, said that in addition to the four Issues formulated for determination by the Appellant, two (2) more issues called for determination, namely:
"(1) Whether the learned trial judge was right in convicting, the Appellant on court 2 (two) and sentencing her accordingly.
(2) Whether the learned trial judge was right in discharging and acquitting the Appellant on Count one"
The Respondent's counsel did not relate her additional two issues to any of the grounds of appeal. Of course, it was clear that by saying that the two issues were "in addition to the 4 issues formulated by the Appellant", the Respondent had adopted the four issues formulated by the Appellant and as related to the grounds of appeal by the Appellant. In the circumstance, no grounds of appeal were left to found the additional two issues by the Respondent!
However, a close look at the Respondent's additional issue one appears to reveal an abridged summation of the intent or goal of Issues 1 to 4 by the Appellant, and so, rather than see the alleged "additional Issue 1" as additional to the Appellant's issues for determination, it would be more appropriate to regard the same, (additional Issue 1) as the Respondent's coinage or formulation of issue for determination, based on the grounds of appeal.
Apparently, the Respondent's additional issue 2 for determination, that is, "Whether the learned trial judge was right in discharging and acquitting the Appellant on count one'' is a complete orphan in this appeal, as neither the Notice of Appeal nor grounds of Appeal raised any complaint against the trial judge's order discharging and acquitting the Appellant on counts, 1 and 3 of the charge. Appellant, in the Notice of Appeal, had specifically stated the part of the judgment appealed against, being his conviction under count 2 - possession of 2.4 kilogrammes of Indian hemp without lawful authority. The Respondent did not cross appeal against the judgment and so cannot raise the issue.
An issue for determination must arise from a ground of appeal which must be founded on a valid complaint against the judgment of the lower court. See the Supreme Court decision in the case of Shethima vs Goni (2011) 18 NWLR (Pt. 1279) 413, held 19; and Management Ent. Ltd. vs. Otusanya (1987) 2 NWLR (Pt.55) 179; Oniah vs. Oniah (1989) 1 NWLR (Pt.99) 514; Adelaja vs. Fanoiki (1990) 2 NWLR (Pt. 131) 137; Tinubu vs. IMB Securities PLC (2001) 16 NWLR (Pt.670 referred to)
Of course, by the same authority, (Shethima vs Goni (Supra) held 20
"Where a respondents' issue for determination does not arise from an appellant's grounds of appeal, the issue will be discountenanced by the appellate court. However, in deciding the appeal, the appellate court would consider relevant arguments canvassed by the respondent in respect of the issue formulated by the Appellant"
That point of additional issue 2 not flowing from the grounds of appeal has also been canvassed by the Appellant in his reply Brief.
I shall therefore consider this appeal on Appellant's issues for determination, while also considering the relevant arguments of the Respondent thereto. Meanwhile, the 2nd additional Issue formulated by the Respondent is hereby struck out, for being incompent.
Arguing issue 1, learned Counsel for the Appellant Sheni Ibiwoye Esq. (with him Taiye Oniyide Esq. and UC. Ogbonna Mrs) submitted and urged us to hold that the lower court did not follow the procedure for arraigning and/or taking plea of the Appellant as required by law and well settled judicial authorities, and also in line with the dictates of section 36 (1) of the 1999 Constitution of Nigeria on the Appellants' constitutional right to fair hearing. Counsel reproduced the requirements for valid arraignment of accused person, which he said was trite, and said that the same was mandatory and must be strictly complied with in criminal trial; that failure to satisfy any of them will render the whole trial defective, null and void. He relied on the case of LUFADEYU vs. JOHNSON (2007) 8 NWLR (Pt.1037), 535 at 555; Tobby vs. State (2001) 10 NWLR (Pt.720) 23 at 31-32; Chukwu vs. State (2005) 1 NWLR (Pt. 908) 520
Counsel submitted that the Appellant was controlled and/or restricted during her arraignment at the lower court; that "The charge... was never read and explained to the Appellant to the satisfaction of the lower court let alone by the registrar or other officer of the court. He referred us to page 18 of the Record, where the plea of the Appellant was taken as follows:
"Court: Charge read and explained to the accused person in English language and she appeared perfectly to understand same."
He argued that the charge must be read over and explained to the accused person "to the satisfaction of the Court" and not merely that the accused is satisfied and understands the charge, that same was not done in this case, and that was fundamental and fatal error, and violated Appellants constitutional right to fair hearing, under section 36(1) of the 1999 Constitution.
Counsel also relied on the case of Arua Eme vs. the State (1964), ALL NLR 416; Ibori vs. FRN (2009) 3 NWLR (pt. 1127) 94; OLALOMI IND. LTD vs. NIDB LTD (2009) 16 NWLR (pt. 1167) 200, to the effect that the Court cannot act on speculation.
On issue 2 - whether the trial Judge was right to admit and rely on Exhibit 4 (Drug analysis report tendered through one who was neither the maker nor could be cross-examined on the document) to convict the Appellant and sentence him - Counsel submitted that Exhibit 4 could not be tendered and admitted through PW1, he not being the maker of the document, who could be cross-examined on it: that PW1 did not participate in the scientific analysis of the substance for which Exhibit 4 was about.
He referred us to the evidence of PW1 on page 21 to 24 of the Record, and relied on the case of Lambert vs. Nigerian Navy (2006) 7 NWLR (pt. 980) 514 at 547; AWUSE vs. ODILI (2005) 16 NWLR (pt. 952) 416 at 509 - 510.
Counsel submitted that Exhibit 4 was inadmissible, despite the fact that the Appellant did not object to its admissibility; that the court cannot admit inadmissible evidence by consent of the parties, or simply because of absence of an objection to its admission. He relied again on Lambert vs. Nigerian Navy (Supra) at 550; Usoro vs. Gov AKS (2010) 11 NWLR (pt.1205) 322. He added that failure to produce the forensic expert who did the scientific analysis that resulted in Exhibit 4, was fatal to the prosecution, pursuant to Section 149(d) of the Evidence Act; that:
"In any trial, where one party withholds the evidence which he ought to bring before the court, the presumption is that the evidence if made available would be against the person."
Counsel also relied on the case of CONT. RES (NIG.) LTD vs. UBA PLC (2011) 16 NWLR (pt 1274) 592 at 609; AKANBI vs. ALAO (1989) 3 NWLR (pt 108) 118; CHIGIKE vs. SOETAN (2000) 10 NWLR (pt.990) 179 at 218.
He relied again on UDORO vs. GOV; of Akwa Ibom State (Supra) to say that a court of Law is expected to admit and act only on evidence which is admissible in law; that there was nothing, legally speaking, before the lower court to justify the admission of Exhibit 4 in evidence, let alone placing such heavy reliance on it as cannabis sativa. He relied on the case of FRN vs. DANIEL (2012) 4 NWLR (pt.1289) 40 at 55.
On Issue 3 whether the learned trial Judge was right to have admitted and relied on Exhibit 8 (confessional statement) to convict the Appellant, Counsel submitted that the lower Court was wrong to admit and rely on the Exhibit 8 to convict and sentence the Appellant to 15 years imprisonment, considering the Appellant's evidence at the trial - within trial, against the admissibility of the said Exhibit 8. He referred us to pages 31 - 32 of the Record, to say that Exhibit 8 was not voluntarily made, and that the Court did not consider the evidence of the Appellant to show the involuntariness of the Exhibit 8 as confessional statement. He relied on the case of OMEGA BANK (NIG) PLC vs. OBC LTD (2002) 16 NWLR (pt.794) 483 at 521; KARIBO vs. GREND (1992) 3 NWLR (pt. 230) 426; UBA PLC vs. BTL IND. LTD (2006) 19 NWLR (pt.1013) 61 at 137; ADAMU vs. STATE (1991) 4 NWLR (pt. 187) 530, to the effect that a judge has a duty to put the totality of the evidence adduced by both parties on a scale and weigh them together, and then decide which is heavier.
Counsel further submitted that the Appellant was not given full opportunity to be heard by the lower court, thus the decision was a nullity. He relied on the case of EDET vs. STATE (2008) 14 NWLR (pt 1106) 52 at 67.
He added that the lower court answered the six (6) questions on the test of veracity of confessional statement (as in the case of KABIRU vs. ALI OGUN STATE (2009) 5 NWLR (pt. 1134) 209 at 225-226), wrongly and that led it to wrong conclusion. The test, he submitted, are:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3)Are the relevant statements made in it of facts true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the offence?
(5) Is his confession possible? and
(6) Is it consistent with other facts which have been ascertained and have been proved?
He argued that the burden of establishing the above ingredients was on the prosecution; that the same was not discharged and that the lower court was wrong to hold otherwise.
On Issue 4 whether the Respondent had proved its case beyond reasonable doubt as required by law to justify Appellant's conviction and sentencing -Counsel answered in the negative. He argued that the gamut of the proceedings showed that the prosecution failed to prove:
1. that Appellant was arrested with drugs;
2. that she was in possession of the drugs; and
3. that the drugs (if any) recovered from the Appellant was actually narcotic drugs.
Counsel said that there was no justification for the conviction of the Appellant; that the lower Court had believed the story of the Respondent before even considering the case of the Appellant; that the standard of proof in criminal trial is proof beyond reasonable doubt, and the law presumes an accused person to be innocent, until his guilt is proved. He relied on Section 36 (5) of the 1999 Constitution and on the case of SHANDE vs. STATE (2005) 1 NWLR (pt.907) 218.
Counsel argued that the PW2 and PW3 who claimed to have been the only witnesses at the scene of crime, were officials of the Respondent; that they were under a legal duty to give credible, convincing and reliable evidence as against the contradictory evidence they both gave, representing the account of their cases at the lower Court; that the prosecution failed to prove beyond reasonable doubt that from the moment the alleged cannabis sativa was taken from the Appellant, every possibility of its being tampered with or substituted with another plant was excluded.
Counsel submitted further that the prosecution failed to prove that it, indeed; had the substance of the alleged Indian hemp (cannabis sativa) scientifically examined, to satisfy the burden of proof required by the law; that the alleged scientist/expert who conducted the scientific analysis was never called to give evidence, and that the witness through whom the scientific analysis report was tendered could not specifically answer any question on the report, neither could he be cross-examined on it. He relied again on the case of FRN vs. DANIEL (supra) at 55:
"It is indeed a trite and fundamental principle, that the prosecution has a duty to prove, beyond reasonable doubt, that once the plant is taken from the accused person's possession, every possibility whatsoever of its being tampered with, or substituted with another plant, has been excluded. See Ishola v. The State (1969) 1 NWLR (sic) 259 at 261, per Kayode Eso JCA (WRN), as he then was...
"Once the opportunity exists for this, the chain snaps and a reasonable doubt would exist as to whether the plant that was taken from the possession of the accused is the one that has been analyzed and known to be of the genus cannabis."
It must also be reiterated for the avoidance of doubt that inspite of the admission or confession of an accused person, the prosecution still has a duty to have the substance of the alleged Indian hemp (cannabis sativa) scientifically examined to satisfy the burden of proof required by law under section 138 (1), of the Evidence Act Cap E 14, Laws of the Federation, 2004 and section 36 (6) of the 1999 constitution"
Counsel urged us to hold that the Respondent did not prove the offence beyond reasonable doubt and that the prosecution had predetermined the substance allegedly found in the possession of the Appellant to be Indian hemp, before it was even purportedly scientifically examined; that the prosecution had shown their intention to persecute and not prosecute the Appellant, referring us to pages 63 - 64 of the Record (evidence of PW2); that since the scientist (Mrs. Afolabi Patricia O.) who conducted the forensic test was never called to testify, there was a serious doubt as to whether any test was conducted, at all, on the alleged substance, or even if it was conducted, whether it was conducted by the said Mrs. Afolabi Patricia O., or even if anyone exists by the name. Such failure, he submitted, was fundamental and also fatal to the case of the Respondent, as the doubt so created should be resolved in favour of the Appellant.
Counsel urged us to hold for the Appellant and allow the appeal.
I have already held that the Respondent had adopted the issues raised by the Appellant and its remaining additional issue (1) for determination is a summary of the four issues for determination by the Appellant. Counsel for the Respondent, M. O. Adeleye (Mrs.), had queried "whether the learned trial Judge was right in convicting the Appellant on count 2 (two) and sentencing her, accordingly?"
She proceeded to answer in the positive, saying that the prosecution, not only discharged the constitutional and statutory burden of proof, placed on it by law, but also brought forth credible and cogent evidence to substantiate its case, beyond reasonable doubt. To prove the charge, Counsel said the Respondent had to establish that:
1. What was found on the Appellant was actually hard drugs;
2. The Appellant was the owner of the drugs, or in control of it as at the time of her arrest and
3. The ownership or control of the drug by the Appellant was without lawful authority.
Counsel submitted that the evidence by PW1 to PW3 showed that the weed recovered from the Appellant were tested in her presence and found to be positive for cannabis sativa (Indian hemp) and the small sample of the weed sent for forensic analysis also confirmed the substance to be cannabis sativa, as per Exhibit 4; that the above evidence was never contradicted and the Appellant did not even object to the tendering of Exphits 1 and 4, which proved the actual type of drug seized from the Appellant.
Counsel relied on section 55 of the Evidence Act to say that the PW1 was qualified to tender Exhibit 4 and the court was right to admit same through the PW1, as the law requires any party to the proceeding to produce such certificate and the production of any such certificate may be taken as sufficient evidence of the fact stated in it."
Counsel added that the identity of the drug found on the Appellant was never in dispute at the trial and that Exhibit 4 was admitted without objection by the Appellant.
Counsel submitted that the evidence of pw2 - Tunde Daniel, showed how the Appellant was arrested with the Bagco bag (Exhibit 7) containing the drug (found to be cannabis sativa) and that evidence was corroborated and confirmed by PW3; that the said evidence was never contradicted. She relied on section 19 of the NDLEA Act, Caps N30, Laws of the Federation 2004, to say that possession of Indian hemp is against the law and ignorance of that law by the Appellant is not a defence.
On the arraignment of the Appellant, the Respondents counsel submitted that the necessary procedure had been complied with, and relied on the Supreme Court case of Torri vs. National Park Service of Nigeria (2011) 13 BWLR (pt. 1264) 365 which relied on Section 215 of the Criminal Procedure Act as follows:
''(a) The Accused person shall be brought before the Court unfettered unless the trial Judge otherwise directs, for example, if the accused person becomes violent, the trial Judge may order that he be brought before the Court fettered.
(b) The charge shall be read and explained to the Accused person in the language he understands.
(c) The Accused person shall then be ealled upon to plead instantly to the charge."
Counsel submitted that the above provisions were satisfied at the trial at the lower Court and relied on page 18 of the Record of Appeal. Counsel also relied on the case of OKEWU vs. FRN (2012) 9 NWLR (pt. 1035) (sic) 327. She added that by the recording of the court on page 18 of the Record, the trial Judge was satisfied that the charge had been read and explained to the Accused person, to its satisfaction. Counsel submitted that there was no way that Appellant's right to fair hearing under Section 36 (1) of the 1999 Constitution was infringed by the arraignment of the Appellant. She relied on the case of FRN vs. Nwabueze (2010) NWLR (part 1223) 525, on what fair hearing means - incorporates a trial done in accordance with the rule of natural justice. She asserted that the Appellant had fair trial, from the arraignment to the conclusion of the trial, fully represented by counsel of her choice. She added that the Appellant understood English language very well and demonstrated it during the trial - within - trial, when she presented her case.
On the admissibility of Exhibit 8, Counsel submitted that the test for admissibility of confessional statement is its voluntariness; that when admissibility of confessional statement is challenged, on the ground that it was not voluntary, it is incumbent on the judge to conduct a trial - within - trial to determine the question, and when the court is satisfied that the confessional statement was voluntary, the same is admitted. He relied on the case of EKE vs. STATE (2011) 3 NWLR (pt. 1235) 589 and OLAYINKA vs. STATE (2007) 4 FWLR (pt. 387) 6957.
Counsel submitted that the lower Court had followed the laid down procedures before admitting the Exhibit 8. She referred us to pages 71 - 78 of the Record. Thus, she submitted that the confessional statement had passed, the test of voluntariness before it was admitted as exhibit. She relied on sections 28 and 29 (2) of the Evidence Act cap E 14, 2011. Counsel also relied on the case of Omoju vs. FRN (2008) 2 MJSC 156 to say that once a confessional statement is direct, positive and unequivocal (as in this case) the trial Court can rely on it to convict the accused person. She added that the Appellant, at the trial within - trial, did not substantiate her claim that the confessional statement was induced; that it is not enough for an accused person to say that she was tortured or beaten to make a confessional statement, but must bring concrete evidence to prove it. On the issue of not allowing the Appellant to strip in the open Court to reveal the side of her body that was allegedly injured in the process of making Exhibit 8, the Respondent's Counsel submitted that the lower Court was right, as it would have been obscene for a lady of 22 years to strip in the Court to reveal her body before men, including the trial Judge; that if the Appellant was serious, should would have come with a picture of herself showing the alleged injury.
Counsel submitted that the trial court had considered all the defences and submissions of the Appellant before admitting the Exhibit 8 in evidence, and coming to this conclusion in the case, convicting the Appellant. She submitted that the case cited by the Appellant were not apposite to the situation. She referred us to the testimonies of the prosecution witness in the trial - within - trial, vis-a-vis the statement of the Appellant and her testimony in Court and said that the Appellant, under cross-examination agreed totally with the information that are substantial in her confessional statement; that she only tried to deny in Court, the part that had to do with her involvement in Indian hemp.
Counsel urged us to hold, that the trial Judge was right in his findings and holding, asserting that the prerogative to believe or disbelieve any witness is that of the trial Judge, who had the opportunity of hearing and watching the witness testify to note their demeanour. She relied on the case of CPC vs. INEC (2012)29 WRN 1; Mogaji vs. Odofin (1978) 3-4 SC 91 that such finding cannot be faulted, except proved to be perverse.
Counsel submitted on issue 4, that the prosecution had proved the case beyond reasonable doubt, as per Section 135 of the Evidence Act; that the prosecution witnesses were credible and Exhibits (except Exhibit 8) were tendered and admitted without objection, which showed that the Appellant was in possession of the drug, without lawful authority.
She urged us to resolve the issues against the Appellant and dismiss the Appeal.
RESOLUTION OF ISSUES
I have already adopted the issues by the Appellant for the consideration of this appeal, but in doing that I shall take issues 2 and 3 together, since they all touch on admissibility of documents Exhibits 4 and 8.
On issue one - whether the lower Court followed the procedure for arraigning and/or taking plea of the Appellant as required by law and well settled judicial authorities and in line with the Appellant's constitutional right to fair hearing/trial under Section 36 (1) of the 1999 Constitution -
Appellant submitted that even though the Record of Appeal (page 18) showed that the charge ''was read and explained to the accused person in English Language and she appeared perfectly to understand same", that that was not proper arraignment.
According to the Appellant's submission "the charge made against the Appellant was never read and, explained to the Appellant to the satisfaction of the lower Court, let alone by the registrar or other officer of the Court." As rightly submitted by the Appellant, the requirements of a valid arraignment are that:
(i) The accused person must be placed before the Court unfettered, unless the Court shall see cause to order otherwise, like where the Accused person shows elements of violence (Torri vs. National park service of Nigeria (2011) 13 NWLR (pt.1264) 365);
(ii) the accused person must be called upon to plead to the charge unless there exists any valid reason to do otherwise, such as where there is objection as to want of service. See Section 187 (1) of the Criminal Procedure Code.
Of course, those requirements are still observed and enforced in the course of trial, where there is any amendment to the original charge, as the accused person is expected to take fresh plea to the amended (new) charge. See Yusuf vs. State (2011) 18 NWLR (PT. 1279) 853, held 4, 5, 6 and 7; Yahaya vs State (2002) 3 NWLR (PT.373) 507; Madu vs. State (1997) 1 NWLR (pt. 482) 386.
Appellant's argument on this point rather sounds strange; after she had reproduced the Court's recording on page 18 of the Record of Appeal, showing that the "Charge (was) read and explained to the accused person in English language and she appeared perfectly to understand same", before she pleaded NOT GUILTY.
On what basis then did the Appellant argue and claim that the charge was not read over and explained to the Appellant to the satisfaction of the Court? Appellant appears to be holding brief for the lower court, complaining that the reading and explanation of the charge to the Appellant was not to the satisfaction of the Court! In other word, Appellant is not complaining that she did not understand the charge read and explained to her, but that it was not done to the satisfaction of the Court! That is quite an absurd reasoning when the Court is not complaining! Or did the trial Court complain to her that it was not satisfied with the reading and explanation of the charge to the Appellant?. After all the Court had ruled thus:
"COURT: charge read and explained, to accused person in English language and she appeared perfectly to understand same"
It can be seen that the Appellant had no valid point of complaint on this issue, after the court had ruled, on being satisfied that the charge was read and explained to the Appellant in the manner that she appeared to understand it, perfectly, before taking her plea. All the cases cited by the Appellant in support of proper procedure for arraignment were good laws and rather went in support of the manner of arraignment of the Appellant at the lower Court.
I believe the intendment of the law, as per section 187 (1) of the criminal Procedure Law (or section 215 of the criminal procedure Act) was to protect an accused person's right of fair hearing as stipulated in Section 36 (6) of the 1999 Constitution that:
"Every person who is charged with a criminal offence shall be entitled to
(a) To he informed promptly in the language that he understands and in detail of the nature of the offence
(b)To be given adequate time and facilities for the preparation of his defence
(c)To defend himself in person or by a legal practitioner of his own choice
(e) Have, without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence"
In the case of Yusuf vs. State (supra) held 4, the Supreme Court said:
"At the commencement of a criminal trial, the accused will be arraigned by the Court, that is the charge preferred against the accused will be read over to him, and he will be asked if he understands the charge and whether he pleads guilty or not. Thus is a fundamental procedure in criminal trial, and failure to adhere to the procedure renders the trial defective, null and void. It is as though nothing took place. (Yahaya vs. State (2002) 3 NWLR (pt.754) 289; Effiom vs. State (1995) 1 NWLR (PT.373) 507; Madu vs. State (1997) 1 NWLR (PT.482) 386 referred to)"
See also the case of Chukwu v. State (2005) 1 NWLR (pt.908) 520 at 540 - 541; Tobby vs. State (2001) 10 NWLR (pt.720) 23; Lufadeju vs Johnson (2007) 8 NWLR (pt.1037) 535, all cited and relied upon by the Appellant on the legal requirement to read and explain the charge to the understanding of the Accused person, to the satisfaction of the court. Appellant has not complained of or shown any breach of the above provisions in this appeal and so the issue 1 can not be a valid complaint against the judgment of lower Court.
By law, an issue for determination must flow from a ground(s) of appeal which must in turn attack or complain about the ratio in the judgment appealed against. See Shettima vs. Goni (2011) 18 NWLR (PT. 1279) 413 AT 440 - 441.
I therefore resolve Issue 1 against the Appellant.
Issues 2 and 3 complained against the admission of Exhibit 4 (drug analysis report dated 18/03/2011) for being tendered by PW1 who was neither the maker of the document or could be examined on it, and Exhibit 8 (the Appellant's confessional statement), for not having been voluntarily made.
Appellant's main contention against the admission of Exhibit 4 was that PW1 (Ahmed A. Suleiman); who tendered it, was not the maker of the document and could not answer questions on it. PW1 who tendered the Exhibit 4 was an officer of National Drug Law-Enforcement Agency (NDLEA), Kwara State Command. From the Recording on page 21 of the Record of Appeal, PW1 was the Exhibit officer, and his schedule included field testing of seized drugs, with UN (United Nation) testing kits, packing, dividing and sealing of such drugs, weighing of drugs seized, issuing out forms - all relevant forms such as packing of substance form, certificate for test analysis, request for scientific aid form. He also kept custody of bulk of the exhibits, drug exhibits, asset exhibits and other related documents. It was also his duty to take sample of drug exhibits for forensic analysis, and all other duties that could be assigned to him.
His evidence shows that the Appellant was taken to PW1's office on being arrested by two officers of the NDLEA on 15/3/2011. She was taken there with the dried weeds inside a Bagco sack, in wrapped form in Appellant's possession; she owned up ownership of the sack, which PW1 said he field-tested the drugs, with UN testing kit and it proved positive for cannabis sativa; he weighed it in the presence of the Accused person and others and it weighed 2.4 kilograrnmes. He then took a small quantity out of the lot and put in a transparent evidence pouch, sealed it in Appellant's presence and of the other witnesses, issued out forms - certificate for test analysis, which confirmed that the exhibit was tested in Appellant's presence, and the same was endorsed by the Appellant and the other two witnesses. PW1 then packaged the small quantity of the exhibit in appropriate form for scientific analysis, took it to Lagos. After the analysis by the forensic expert the same was finally handed over to him in a brown envelop, with the result of the test analysis. That was the test result he tendered as Exhibit 4, and the same was admitted without objection, along with Exhibits 1 and 1A (2 certificates of test analysis), Exhibits 2 and 2A (2 packing of substance forms), Exhibits 3 and 3A (2 request for scientific aid forms) and Exhibit 5 (one brown sealed envelop), which were all tendered in successions by the PW1 and admitted without objection (See pages 21 to 24 of the Record).
I have taken time to reproduce, in extenso, the office, schedule and actions of the PW1 in the events that culminated in the application for scientific analysis and the issuance and tendering of same by the PW1, to show whether or not he was qualified to tender the said document and whether the trial judge was right in admitting the same as exhibit; put differently, whether the said document was admissible through the PW1 as exhibit.
It can be seen that the PW1 was actively involved in the entire process that brought about Exhibit 4, as an officer of NDLEA, who was in charge of exhibits - seizing, testing, custodying the same and preparing sample portions for scientific analysis and collecting the result therefrom for keeps and tendering in Court. The PW1's legal power and authority to tender the report of the scientific analysis, which was issued to him, following his earlier request therefor, can therefore not be questioned by the Appellant, on appeal, especially as she did not raise any objection to the tendering of the document by the prosecution. See the case of KANO vs GALEON (2012) ALL FWLR (Pt.613) 1968 at 1983 B-D; IBORI V. AGBI (2004) 6 NWLR (Pt.868) 78.
It was also not necessary for the forensic expert, who analysed the drugs and issued the report (Exhibit 4), to come to Court, in person, to tender the document for it to be admitted. What governs admissibility is relevance and the fact that the document had been pleaded and is properly tendered in the form and by the person it should be produced.
The non-calling of the scientist who wrote Exhibit 4 cannot be presumed, under Section 149 (d) of the Evidence Act, against the Respondent, as what the said expert was to come and say in court was duly represented by her written report (Exhibit 4). If the expert's testimony was still material to the Appellant, for questioning, nothing stopped the Appellant from inviting or subpoenaing the said expert to come to Court as a witness for questioning. She cannot blame the Respondent for the none physical presence of the expert in Court as the Respondent only needed the expert's report (Exhibit 4) not her person.
By section 55 (1) (2) and (3) of the Evidence Act, 2011;
(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 title in the service of the state 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 appropriate authority may be taken as sufficient evidence of facts stated in it"
(3)Notwithstanding subsections (1) and (2) of this section, the court shall have the power, on the application of either party or of its own motion, to direct that any such officer as is referred to in the subsections shall be summoned to give evidence before the court, if it is of the opinion, that, either for the purpose of Cross-examination or for any other reason, the interests of justice so requires"
The above is very explicit as the Exhibit 4 (certificate or result of forensic analysis of the drug sample sent for analysis by the PW1) is adequately covered under subsections 1 and 2 of section 55 of the Evidence Act. Appellants' right to call the said expert for cross-examination (as she now complains) was available under subsection 3 of that section, but un-utilized. She can therefore not complain. The decision in the case of Lambert vs. Nigerian Navy (supra) is therefore not available to the Appellant, especially as Appellant never faulted the process that led to the production of the Exhibit 4.
Exhibit 8 (the confessional statement of the Appellant), was admitted after properly conducted trial-within-trial Appellant complained about the admission and strong reliance about the admission and strong reliance by the court on the said confessional statement to convict her. The ground of appeal which touched on the admission and reliance on Exhibit 8 to convict the Appellant was ground 4, which stated as follows:
The learned Trial Judge erred in law and thereby breached the Appellant's constitutional right to fair hearing when he admitted and subsequently placed heavy, reliance of Exhibit 8 (the Appellant's confessional statement), which error occasioned a great miscarriage of justice.
PARTICULARS OF ERROR
(1) Exhibit 8 (the Appellant's confessional statement) was not voluntarily made.
(2)The Appellant informed the lower court during her trial within trial that she was wounded by the agents/representatives of the Respondent in order to ensure that she makes (sic) Exhibit 8 as desired by the Respondent.
(3)The Appellant also indicated her willingness to uncover her right side the flesh of which was covered by her dress in open court to prove that she was wounded by the Respondent's agents thus forced to make Exhibit 8
(4)The Trial Judge on his own volition prevented the Appellant from uncovering her right side the flesh of which was covered by her dress, as prove (sic) of the injury she sustained white making Exhibit 8.
(5)There is nothing before the lower court to show that the Appellant was not wounded on the sight side of her flesh which was covered by her dress by the Respondent's agents in their bid to ensure that she, makes (sic) Exhibit 8.
(6)The lower court ought not to have admitted Exhibit 8 in evidence let alone attaching probative value to it.
(7)The lower court exercised his (sic) discretion to admit Exhibit 8 in evidence wrongly and also wrongly attached probative value to it.
(8)All the above occasioned a miscarried of justice on the Appellant."
As earlier noted, the ruling on the trial-within-trial was given on 17/5/11 and thereafter, the Appellant took part in the trial to conclusion and called her defence.
The Notice and grounds of Appeal in this case, filed on 29/3/12, was against the final judgment of 10/2/12, of which sentence was made on 20/2/12. Of course, the complaint against admission of the confessional statement (Exhibit 8) became a live issue in this appeal upon the Exhibit being considered in the final judgment appealed against. See the case of Mr Ibiwoye Anyu Ayodeyi & Senator Simeon Sure Ajibola 8 ors, an unreported decision of this court in EPT/CA/IL/SEN/9/2011, delivered on 14/12/2011, page 12; PDP v. Chief Rochas Okorocha & Ors, an unreported decision of this Court in CA/OW/EPT/52/2011, delivered on 24/1/2012 at page 14 thereof.
Appellant can not succeed to fault the admission of and reliance on the document, on the allegation that the trial judge did not consider the case of the Appellant during the trial-within-trial, as there is sufficient proof, in the record and Ruling of the trial judge on the trial-within-trial, to show that the judge properly considered the evidence on both sides, before reaching his decision. See pages 72, 73 and 74 of the Record, where the judge reproduced the arguments/evidence of the Appellant at the trial-within-trial and ruled as follows on page 78:
"The accused person however contended that she was slapped by someone named Tunde - an official of the NDLEA and was wounded and received treatment in the Prison Clinic. She did not however tender any medical certificate or even a hospital card to show that she attended such a facility. Furthermore, even though the said Tunde is an operative of the NDLEA, the accused person did not deem it necessary to subpoena him, at least for the purpose of identification. She was however categorical that neither PW1 nor PW2 exerted any force on her. The testimony of the accused person would also seem to be contradictory as she set out by saying she was never asked any question by the NDLEA, only to change her story as cross-examination progressed to reveal details of what was contained on her statement, which no one in NDLEA, could have known without same being supplied by the accused person."
Appellant had also alleged that she was given an already written statement which she was forced to thumb-print, only to change that and say that PW1 asked her some questions, the answers to which he wrote down!
The trial judge further observed:
"She gave those answers, according to her, after being slapped by Tunde in PW1's office, whereas she earlier said that when she was slapped and made to thumb-print the statement, she was alone with Tunde! I therefore find it incredible that the accused person could apparently speak from both sides of the mouth and that so confidently and assertive." (See page 79 of the Record).
Those findings have not been assailed by the Appellant, as she never appealed against the finding. The authorities of the Apex Court is replete on confessional statement. In the case of State v. Salawu (2011) 18 NWLR (Pt.1279) 883 at 909 the Supreme Court said:
(pt.1279) 883 at 909 the Supreme Court said:
"An alleged confessional statement made by an accused person to the police only becomes objectionable and inadmissible in evidence in a criminal proceeding, if the making of the confession is proved to have been prompted by any inducement, threat, or promise by the police and sufficient to give the accused person the impression that by making it, he would gain an advantage or avoid an evil. That is the purport of the provisions of Section 28 of the Evidence Act, Cap E14, Laws of the Federation, 2004... It is not the rule of criminal Procedure law and law of evidence that where, in the course of recording the Statement of an accused person, a police officer asks questions and records the answers by the accused therein, the statement automatically becomes involuntary and thus inadmissible in law. In the instant case the mere assertion by PW1 that in the course of recording the statements of the Respondent, he asked him questions and recorded the answers did not ipso facto render the statements involuntary."
That, I think, should rest the complaint of the Appellant, on this point, having not faulted the findings of the trial judge on the ruling trial-within-trial, and the confessional statement (Exhibit 8) not being assailable for involuntariness.
I therefore resolve Issues 2 and 3 against the Appellant.
The fourth and last issue was whether the Respondent had proved its case beyond reasonable doubt against the Appellant, as required by law, to justify her conviction and sentence. This, Appellant proceeded to answer in the negative. Appellant's counsel submitted that the Respondent failed to prove that:
(1)Appellant was arrested with the drugs;
(2)Appellant was in possession of the drug and
(3)The drugs (if any) recovered from the Appellant were actually narcotic drugs.
In the cause of arguing this issue, Learned counsel for the Appellant appeared to concede that the drug, cannabis sativa, was recovered from the Appellant and shifted his grounds to say that "The prosecution failed to prove beyond reasonable doubt that from the moment the alleged cannabis sativa was taken from the Appellant, every possibility of its being tampered with or substituted with another plant was excluded." Appellant submit further that "the prosecution also failed to prove that it indeed had the substance of the alleged Indian hemp (cannabis sativa) scientifically examined to satisfy the burden of proof required by law...'' (see paragraph 5.4.5 of the Appellants' Brief).
Such reasoning and argument tend to fly in the face of the following findings of the trial judge:
"PW1 also gave sincere evidence of the steps he took and even asked the, accused person if she owned the exhibits and she confirmed ownership. PW2 and PW3 also corroborated this evidence..." (Page 176 of the Record)
Exhibit 4 (the report of scientific analysis of the drug found on the Appellant) also defeats every doubt as to the type of drug recovered from the Appellant, and the handling of it before the analysis. Before the Exhibit 4 was issue, Appellant had signed (thumb-printed) Exhibits 1 and 1A (certificates of test analysis) (See pages 23 and 24 (PW1's evidence) and pages 199 and 200 (the Exhibits). Appellant also admitted thumb-printing many forms brought to her to sign (page 98 - her evidence in Court).
Under cross-examination the Appellant had said:
"When my Counsel asked me questions, I answered, Some of the responses were what I said in the statement. I was arrested, because they said I was the owner of the Indian hemp... I was arrested on that day because of the Indian hemp. I was not the only person at Ojagboro, when I was arrested..." (page 102 of the Record).
That too appears to dispel any doubt that Appellant was arrested for possession of the drugs and that she made the statement (Exhibit 4) voluntarily.
It has been stated often and it is worth repeating, that the legal requirement of proving commission of crime beyond reasonable doubt is not meant to imply the elimination of every shadow of doubt, cast by accused person's ingenious (and sometime foolish) denials, employed to escape justice, but is meant to protect and shield innocent person from being punished on the basis of mere suspicion, however strong. It applies to give an accused person the benefit of doubt, adjudged reasonable, in the circumstances of the entire case presented by the prosecution. See the case of Okoro vs. State (1988) 5 NWLR (PT.94) 255; Onafowokan vs. State (1987) 3 NWLR (pt.61) 538 Garba vs. State (2011) 14 NWLR (pt.1266) 98.
The Supreme Court in the case of State Vs. Salawu (supra) at page 619 held as follows on what proof beyond reasonable doubt entails:
"Proof of a case beyond reasonable doubt does not mean proof beyond iota or shadow of doubt. The burden of such proof, which lies on the prosecution, never shifts. If at the conclusion of trial and on the entire evidence the court is left with no doubt that the offence was committed by the accused, that burden is discharged" (See Bello vs. State (2007) 10 NWLR (pt.1043) 564; Aruna vs. State (1999) 6 NWLR (pt.155) 125; Nwachukwu vs. State (1985) 3 NWLR (pt.11) 218)
I am afraid, the Appellant has not established her complaint in issue 4, as the prosecution, from the evidence, had proved the charge in Count II beyond reasonable doubt, to the satisfaction of the trial Court. See the case of Babatunde v. State (2012) 29 WRN 98, held 15
I therefore resolve the issue against the Appellant.
On the whole, this Appeal, therefore, fails and is accordingly dismissed, as I affirm the judgment and sentence by the trial Court in the Suit No.FHC/IL/16C/2011, delivered on 20/2/11, respectively.
Parties to bear their respective costs.
PAUL ADAMU GALINJE, J.C.A.: I have had the priviledge of reading in draft, the judgment just delivered by my learned brother Mbaba JCA, and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
The Appellants quarrel in this appeal is against the method of his arraignment before the lower court and the admission in evidence the confessional statement credited to him. I have seen nothing wrong with the way the Appellant was arraigned before the lower court as the particulars of the offence were clearly explained to her. The question of admission of the confessional statement has to do with the evidence at the trial within trial. Clearly appraisal of oral evidence and ascription of probative value to such evidence is an area that is open to the trial court that had the opportunity to observe the demeanor of the Appellant and the witnesses that appeared before it. Since it is narrowly opened to the court of appeal to comment on the demeanor of accused and the witnesses, this court will not interfere unless it is so manifest that the Appellant has suffered miscarriage of justice. In the instant appeal, I have seen no area of intervention.
For the brief reason and the more detailed reason expounded in the lead judgment, I too find the appeal unmeritorious and same is hereby dismissed.
OBANDE OGBUINYA, J.C.A.: I have had the opportunity of reading, in advance, the well-informed judgment delivered by my learned brother Mbaba, JCA. I agree with him, without reservations, that the appeal is devoid of any merit.
It is on record that the appellant did not object to the admissibility of exhibit 4, drug analysis report dated 18/03/2011, in the lower court. There is no scintilla of evidence placed before the lower court, by the aggrieved appellant, that the exhibit 4 was/is an inherently inadmissible piece of documentary evidence. The law permits the appellant to attack the admission of exhibit 4 before this court only when it is established that it is a piece of evidence that is at all times inherently inadmissible in law since the law compels courts not to act on such evidence even on appeal, see Abubakar vs. Joseph (2008) 13 NWLR (pt. 1104) 307. Conversely, once a piece of documentary evidence is legally admissible and its admission was not opposed by a party, such a party is not allowed to object to it on appeal, see Oseni vs. State (2012) 5 NWLR (pt.1193) 351. Having regard to this cardinal principle of law, the appellant is foreclosed by law from quarreling with the propriety or otherwise of the admission of the exhibit. This court cannot twist the law in favour of the appellant on the admission of exhibit 4. In the result, I resolve issue two against the appellant.
The exhibit 8 is the appellant's extra-Judicial confessional statement. The law recognizes three ways of proving guilt of an accused person in any criminal proceeding. They are: (a) Confessional statement (b) Evidence of eye witness. (c) Circumstantial evidence, see Haruna vs. A-G, Fed. (2012) 9 NWLR (Pt.1306) 419; Adekoya vs. State (2012) 9 NWLR (Pt.1306) 539. Out of these three legally approved methods, confession, the equivalent of admission in civil proceedings, is the most potent and reliable mode of establishing crime, see Akpa vs. State (2009) 39 WRN 27/(2008) 34 NSCQR 1249(2008) 14 NWLR (Pt.1106) 72; Oseni vs. State (supra)/(2012) 5 NWLR (pt.12930) 357. The reason is obvious. By a confession, entrenched in section 27(1) of the Evidence Act, 2004 (now section 28 of the Evidence Act, 2011), an accused person himself admits and concedes to committing the offence in question. In other words, the accused person gives himself up to the law and becomes his own accuser. The appellant's confessional statement, exhibit 8, on admission, metamorphoses into the case of the prosecution, the respondent herein, see Bassey vs. State (2012) 12 NWLR (Pt.1314) 209.
It follows that by exhibit 8, the respondent proved beyond reasonable doubt that the appellant committed the ravaging and foul crime based on his own words. The exhibit 8 drowns her innocence regarding the charge. It goes further to establish, beyond reasonable doubt, that the appellant, by her own showing and volition, is the undoubted owner of the mens rea and actus reus vis-a-vis the offence. This court cannot help the appellant out in that the law gives the lower court the nod to convict her on her confessional statement alone. Consequently, I resolve issue three against the appellant.
In the light of these reasons, added to fuller ones advanced in the leading judgment, I, too, dismiss the appeal.
Sheri Ibiwoye Esq, with him Taiye Oniyide Esq. and U. C. Ogbonna (Miss) For the Appelants
M. O. Adeleye (Mrs.) (O.P.S.O. NDLEA) For the Respondents