KELVIN v. FRN (2020)

KELVIN v. FRN

(2020)LCN/14271(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/L/1025C/2018

Before Our Lordships:

Tijjani Abubakar Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

GILBERT CHUKWUEMEKA KELVIN APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT IS ALLOWED TO FORUMUALTE ITS OWN ISSUES FOR DETERMINATION

The law allows a Court to formulate its own issues for determination; the only caveat is that the issues formulated must arise from the grounds of appeal. See Federal Housing Authority & Anor vs. Mr Kalejaiye (2010) 19 NWLR (Pt. 1226)147; Emeka vs. The State (2014) ALL FWLR (Pt. 751) 1480.
A Court has nothing to prove by trying to formulate its own issues for determination except for the reason to properly bring to the fore and proper appreciation of the grounds of appeal. In doing so, the Court should not formulate issues from grounds wherein the parties to the appeal did not formulate issues or did not make any arguments on, as such a ground will be deemed abandoned. The point I am laboring to make is that a Court cannot formulate issues for determination on a ground of appeal abandoned by the Appellant. See FRN vs. Chief Mike Umeh & Anor (2019) LPELR-46801 (SC); ACN vs. Sule Lamido & Ors (2012) LPELR-7825 (SC). PER TOBI, J.C.A.

WHETHER OR NOT THE COURT CAN CONVICT ON THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

The only requirement of the law is that before a conviction can be based on a confessional statement there must be evidence outside the confessional statement that points to the fact that the Appellant committed the offence that is to say in legal parlance that the confessional statement must pass the veracity test. The law is trite, and it is this, a Court can convict on the confessional statement of an accused but such a statement must pass the veracity test otherwise, it is advisable not to convict an accused person on the confessional statement. This makes great sense because sometimes the way confessions are gotten from accused persons by the police leaves more to be desired. To make assurance double sure, the law requires that a Court that wants to convict an accused based on a confessional statement must get evidence external or outside the confessional statement that suggests that the confession is true. This evidence must be independent of the confessional statement pointing to one fact that the confession is true and was actually made by the accused. One or two case laws on this well-established principle of law will not be out of place. In Ifeanyi vs. FRN (2018) 11 NWLR (Pt. 1632) 164, the apex Court stated the test that a confessional statement will be made to pass through before it can be relied upon to convict an accused person. The Supreme Court held:
“My Lords, it has been an established practice that an accused person(defendant) in a criminal trial can easily be convicted solely on his confessional statement if the prosecution can show that the confessional statement was made freely and voluntarily by the accused person to the satisfaction of the trial Court. Omoju v. FRN (2008) 2 SCNJ 197; Kaza v. The State (2008)2 SCNJ, 375. However, where the accused person retracts his confessional statement during trial, that alone cannot render the statement inadmissible. This is because retraction of or resiling from a confessional statement or denial by an accused person of his having made such a statement doest not IPSO FACTO render it inadmissible in evidence. See R. v. Itule (1961) All NLR 462; R. v. Sapele & Anor (1957) 2 FSC 24; Egboghonome v. The State (1983) 7 NWLR (Pt.306) 383 at p.431; Bature v. The State (1994) 1 NWLR (Pt. 320) 267; Alarape v. The State (2001) 5 NWLR (Pt.205) 79. Thus, a confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is enough to sustain a conviction. The trial Court should not, however, act on the confession without first testing the truth thereof.
See: Jafiya Kopa v. The State (1971) 1 All NLR 150; Jimoh Yesufu v. The State (1976) 6 SC 167; Obosi v. The State (1965) NMLR 119; R. v. Omokaru (1941) 7 WACA 146. But so long as the Court is satisfied with its truth a confessional statement alone is sufficient to ground and support a conviction without corroboration. R. Sykes (1913) 8 CAR 233; Obosi v. The State (supra); Yesufu v. The State (supra).PER TOBI, J.C.A.

THE TEST TO DETERMINE THE VERACITY OF A CONFESSIONAL STATEMENT

The test, however, for determining the veracity or otherwise of a confessional statement is to look for any other evidence be it slight, or circumstances which make if probable that the confession is true. In R. V. Sykes (1913) 8 CAR 233 at 236, Ridly, J, suggested the tests to be applied on an accused person’s confessional statement in the determination of its veracity to included:
1. Whether there is anything outside the confession to show that it is true,
2. Whether the statement is corroborated, no matter how slight.
3. Whether the facts contained therein, so far as can be tested, are true.

4.Whether the accused person had the opportunity of committing the offence.
5. Whether the confession was consistent with other facts which have been ascertained and proved in the matter.
6. Whether the confession of the accused person was possible.
The above tests have been accepted and consistently applied by this Court over a long period of time in a number of cases. See: Ikpasa v. Attorney General of Bendel State (1981) 9 SC 7; Onochie v. The Republic (1966) NMLR 307; Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 460.”
In Bello vs. C.O.P (2018) 2 NWLR (Pt. 1603) 267, the Apex Court in similar fashion held:
“The test for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight, of circumstances which make it probable that the confession is true. The test or determinants are: Whether there is anything outside the (a) confession to show that it is true; Whether the statement is corroborated, no (b) matter how slightly; Whether the facts contained therein, so far (c) as can be tested, are true; Whether the accused person had the (d) opportunity of committing the offence; Whether the confession of the accused (e) person was possible; Whether the confession was consistent with other facts, which have been ascertained (f) and proved in the matter. In the instant case, the trial Court did not apply or comply with any of the above tests or determinants. It was therefore, not safe to convict and sentence the appellant as done by the trial Court and affirmed by the Court of Appeal.” See Ogedengbe vs. State (2014) 12 NWLR (Pt. 1421) 338. PER TOBI, J.C.A.

WAYS OF ESTBALIHING CRIMINAL LIABILITY

The Supreme Court specifically recognized the three ways of establishing criminal liability in the case of Musa vs. State (2019) LPELR-46350 (SC), when it held thus:
“Both sides are right that the burden of proof of the offence with which the lower Court convicted the appellant lies on the respondent and same does not shift. See Aruna & Anor V. The State (1990) LPELR-568 (SC) and Okashetu V. State (2016) LPELR-40611 (SC). Again, counsel are right that in discharging the burden, the law places on the respondent herein to prove the case against the accused by relying on:- (a) The direct evidence of eye witnesses. (b) Circumstantial evidence and/or (c) The confessional statement of the accused. See Olabode Abirifon V. The State (2013) 13 NWLR (Pt. 1372) 587 and Freeborn Okiemute V. The State (2016) LPELR-40639 (SC).”PER TOBI, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

The burden of proof in criminal cases is clearly and squarely on the prosecution (the Respondent in this appeal) and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369; Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457; Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254; Sanmi vs. State (2019) 13 NWLR (Pt. 1690) 551 @ 577. PER TOBI, J.C.A.

THE MEANING OF PROOF BEYOND REASONABLE DOUBT

Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would have been said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs. The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held:
“Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the hilt. As was stated by Lord Denning J., in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
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 one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt. See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351 Hassan v. The State (2016) LPELR-42554 (SC).
In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the hilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.”
Similarly in Nwaturuocha vs. State (2011) 6 NWLR (Pt. 1242) 170, the apex Court held:
“Proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in the instant matter, the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.” PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The Appellant was convicted in the lower Court for an offence of unlawful exportation of 9.980 Kilogrammes of Methamphetamine, a narcotic drug similar to cocaine, Heroin, LSD contrary and punishable under Section 11 (b) of the National Drug Law Enforcement Agency Act, Cap N30, Laws of the Federation of Nigeria, 2004. He was sentenced to seven years imprisonment by Hon. Justice J.K. Dagat of the Federal High Court, Lagos Division. This is in Suit No: FHC/L/406C/2014 â Federal Republic of Nigeria vs. Gilbert Chukwuemeka Kelvin delivered on 25/4/2018. The judgment is found on pages 98-112 of the record of appeal. The Appellant dissatisfied with the judgment filed this appeal before this Court. The notice of appeal is on pages 122-130 of the record of appeal. The notice of appeal has 3 grounds of appeal. I reproduce the grounds for ease of reference:
Ground 1
The Learned trial judge erred in law when the trial Judge held that the prosecution has proved beyond reasonable doubt the guilt of the Defendant as required under Section 135 of the Evidence Act.
Ground 2
The Learned trial

Judge erred in law when the learned trial Judge convicted the Defendant for the exportation of 9.980 Kilogrammes of Methamphetamine without lawful authority where there were no overwhelming evidence that Methamphetamine was a narcotic drug similar to Cocaine, Heroine and LSD
Ground 3
The Learned trial Judge erred in law when the learned trial Judge placed evidential valve on the Statement of the Defendant, dated 8th November, 2014 ( Exhibit 9) where the said statement was obtained from the Defendant is gross violation of Section 17 (2) of the ACJA, 2015.

The Appellant is represented by Paul Kurekure Esq., in this appeal who settled the Appellant’s brief. The only brief before this Court is the Appellant brief as the Respondent did not file any brief in this matter. The legal implication of this is that the appeal will be decided on the Appellant’s brief alone. I must hasten to add that the fact that the Respondent did not file any brief in this appeal is not automatic victory or success for the Appellant as the appeal will be decided on the merit of the Appellant’s brief. See Kosoko & Anor vs. Tiamiyu (2019) LPELR-47320 (CA);

Skye Bank & Anor vs. Akinpelu (2010) LPELR-3073 (SC); Ogbu & Anor vs. State (2007) LPELR-2289 (SC); Akintola vs. Agoro (2019) LPELR-49438.

The Appellant in his brief raised 2 issues for determination and these are:
1. Whether from the facts and circumstances of this case, the Honourable trial Court was right in holding that the Respondent proved the offence charged beyond reasonable doubt.
2. Whether the Respondent placed sufficient evidence before the Honourable trial Court to establish that methamphetamine is a narcotic drug similar to cocaine, Heroin and LSD as expressly provided under Section 11 (b) of the NDLEA Act.

Learned Counsel for the Appellant adopted the Appellant’s brief and argued the two issues in the brief. This was on 2/6/2020. Learned Counsel in arguing issue one submitted, while stating the trite legal position, that the Respondent has not proved beyond reasonable doubt the guilt of the Appellant and therefore the lower Court was wrong in convicting the Appellant. Counsel referred to The People of Lagos State vs. Mohammed Umaru (2014) 7 NWLR (Pt.1407) 584 @ 606; Abigail Njoku& 2 Ors vs. The State (2013)

2 NWLR (Pt.1339) 548 @ 566. It is the firm submission of counsel that the Respondent was unable to prove by any of the three ways of proving criminal offence, namely; confessional statement, direct evidence and circumstantial evidence that the Appellant is guilty of the offence he is charged. Counsel cited Abdullahi Ibrahim vs. State (2014) 3 NWLR (Pt.1394) 305; Unity Life & Fire Insurance Company Ltd vs. International Bank of West Africa Ltd (2001) 7 NWLR (Pt.713) 610; Felicia Akinbisade vs. State (2006) 17 NWLR (Pt.1007) 184; Benson Obiakor & Anor vs. The State (2002) 10 NWLR (Pt.776) 612; Bernard Okoebor vs. Police Council & 2 Ors (2003) 12 NWLR (Pt.834) 444; N.S.I.T.F.M.B. vs.Klifco Niger Ltd (2010) 13 NWLR (Pt.1211) 307 and a host of other cases. It is counsel’s further submission on this point that the Statement of the Appellant Exhibit P9 does not amount to a confessional statement and that the failure of the Respondent to discredit the Appellant’s evidence that he was not with them in the room when they discovered the substance among his luggage will work against the Respondent’s case. All these create material doubts

which must be resolved in favour of the Appellant, counsel submitted referring to Dr S.U. Isitor vs. Mrs Margaret Fakarode (2008) 1 NWLR (Pt.1069) 602; Emmanuel Egwumi vs. The State (2013) 13 NWLR (Pt.1372) 525; Adamu Sheidu vs. The State (2014) 15 NWLR (Pt.1429) 1@ 31; Irene Nguma (Alias Irene Okoli) vs. Attorney General of Imo State (2014) 7 NWLR (Pt.1405) 119 @ 146. He finally submitted on this issue that since the Respondent has not proved its case beyond reasonable doubt, the Appellant should be discharged.

On issue 2, relaying the law on judicial interpretation, it is the submission of counsel that there is no evidence that shows that the substance found on the Appellant is hard drugs in the family of cocaine, Heroine, and LSD. This omission is fatal to the case of the Respondent, counsel submitted relying on Barrister Orker Jev & Anor vs. Sekav Dzua Iyortyom & 2 Ors (2015) 15 NWLR (Pt.1483) 484; Buhari & Anor vs. Yusuf & Anor (2003) 14 NWLR (Pt. 841) 509. He referred to other cases. Learned counsel finally submitted that the decision of the lower Court should be set aside and the conviction quashed with the consequent order of

discharging and acquitting the Appellant of the offence he is charged with.

I had mentioned above that the Respondent filed no brief and therefore in line with the rules of this Court, the appeal will be heard on the Appellant’s brief alone as the Respondent will not be allowed to make oral argument. That on its own has no serious consequence on the appeal as the Appellant’s case must still succeed on the strength of his brief. See Skye Bank Plc & Anor vs. Akinpelu (2010) 2 FWLR (Pt. 528) 4729.

The Appellant in his brief raised 2 issues for determination however there are 3 grounds of appeal. Nothing is wrong with that as the law only frowns against proliferation of issues but not against the inability of the Appellant to argue a ground of appeal, such unargued grounds are deemed abandoned in law. See MFA & Anor vs. Inongha (2014) 1-2 S.C (Pt. 1) 43; Dr Nwankwo & Ors vs. Alhaji Yar’Adua (2010) 12 NWLR (Pt. 1209) 518; Chinyere & Anor vs. INEC &Ors (2019) LPELR-49183 (CA).
The law allows a Court to formulate its own issues for determination; the only caveat is that the issues formulated must arise from the

grounds of appeal. See Federal Housing Authority & Anor vs. Mr Kalejaiye (2010) 19 NWLR (Pt. 1226)147; Emeka vs. The State (2014) ALL FWLR (Pt. 751) 1480.
A Court has nothing to prove by trying to formulate its own issues for determination except for the reason to properly bring to the fore and proper appreciation of the grounds of appeal. In doing so, the Court should not formulate issues from grounds wherein the parties to the appeal did not formulate issues or did not make any arguments on, as such a ground will be deemed abandoned. The point I am laboring to make is that a Court cannot formulate issues for determination on a ground of appeal abandoned by the Appellant. See FRN vs. Chief Mike Umeh & Anor (2019) LPELR-46801 (SC); ACN vs. Sule Lamido & Ors (2012) LPELR-7825 (SC). I am going into this length because the Appellant only raised issues on grounds 1 & 2 without raising any issue on ground 3, which to my mind is an important ground in the determination of this appeal. Since no issue was formulated on that ground by the Appellant, the law is that the Appellant has abandoned that ground and this Court as an unbiased umpire cannot

formulate issues on it to decide same. I will however discuss it as the Appellant discussed the ground as part of his argument on ground 1. I will also treat it like that without specifically raising an issue from it. The temptation is heavy to address it separately as an issue but I decided not to fall for it as whether raised as a separate issue or not, the justice of the case will not be affected as it was argued in the Appellant’s brief. I will address ground 3 as part of issue 1 and I will not raise a separate issue on it for determination.

The only brief before this Court is the Appellant’s brief and there is, therefore, no serious challenge in adopting the issues as formulated by the Appellant. For completeness, therefore, I reproduce the Appellant’s issues for determination in this appeal which I hereby adopt but I will however make the Appellant’s issue 2 as issue 1 and the Appellant’s issue 1 as issue 2 here for proper appreciation and proper flow of the judgment;
1. Whether the Respondent placed sufficient evidence before the Honourable trial Court to establish that methamphetamine is a narcotic drug

similar to cocaine, Heroin and LSD as expressly provided under Section 11 (b) of the NDLEA Act.
2. Whether from the facts and circumstances of this case, the Honourable trial Court was right in holding that the Respondent proved the offence charged beyond reasonable doubt.

Before I address the issues, it will not be out of place to relay the facts upon which the lower Court convicted the Appellant. In proof of the case of the Respondent, seven witnesses were called. The Respondent’s case was that the Appellant was to travel to South Africa on board the South African Airways on 24/11/2014. At the checking in counter, an officer of the NDLEA, PW6 Muazu Abdurahman, Assistant Narcotic Superintendent sought to check his check-in luggage of 2 ‘Ghana Must Go’ bags. The Appellant was asked to open the bags for search. On searching the bags in the presence of the Appellant 6 cartoons of Solar Lamps were found, 3 in each bag. On suspecting that the solar lamps were tempered with as the screws were not properly tight, the cartons were opened in the presence of the Appellant. They all moved together with the Appellant to the legal seat where

the Solar lamps were opened in the presence of the Appellant. When the Solar lamps were opened, wraps of a substance believed to be hard drugs were discovered in each of the Solar lamps. There and then in the presence of the Appellant, the substance was tested by PW3, Bashir AdamuMoh’d which turned out to be substance known as methamphetamine weighing 9.980 kilograms. The Appellant signed the packing substance form (Exhibit P7); Certificate of Test Analysis (Exhibit P8) and the seizure receipt wherein the Appellant signed that the substance was seized from him (Exhibit P10). The said substance as shown in the above exhibits is hard drugs. The Appellant admitted that much in the said exhibits by signing them. It is worthy of note that the Appellant in the lower Court did not challenge the fact that methamphetamine is not a hard drug in the class of cocaine, heroin, or LSD. The Appellant did not raise any such argument even in the address at the lower Court. It is in my opinion too late to raise that as an issue as it was not part of what was raised or challenged at the lower Court. It is more of an afterthought. The only defence the Appellant put forward

seems to be that he did not know the content of the bag apart from that the bags contained solar lamps. It is his defence further that he was given the bags containing the solar lamps by one Mr. Igwe whose address he gave and upon follow up, the staff of NDLEA could not see the said Mr. Igwe who had run away. The Appellant on the other hand testified that when the Solar lamps were opened to determine what was wrapped therein, he was not in the office but was seated outside. He did not deny that the Solar lamps were found with him among the luggage to be checked in. The lower Court reviewed the evidence and came to the conclusion that the Respondent has proved its case beyond reasonable doubt. This is the finding and decision of the lower Court found on pages 118-119 of the records of appeal (pages 20-21 of the judgment):
“I am satisfied that the prosecution has proved beyond reasonable doubt the guilt of the Defendant as required under the provision of Section 135 of the Evidence Act, 2011. On the other hand, the Defendant has failed to show reasonable doubt as to his culpability in this case……
In the circumstance, I hereby find

you GILBERT CHUKWUEMEKA KELVIN, male, Adult as charged of exporting without lawful authority 9.980 Kilogrammes of Methamphetamine and I hereby convict you under the provisions of Section 11 (b) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria 2004.”

The above is the evidence upon which the lower Court convicted the Appellant. The law on interference with the finding of the lower Court is clear beyond dispute and it is that an Appellate Court cannot interfere with the finding of facts of the lower Court which had the opportunity of observing the witnesses who testified before it except if such finding is perverse and occasions a miscarriage of justice, that is to say, the finding does not correspond with the evidence before the Court. See Okoye & Anor vs. Obiaso & Ors (2010) 3 S.C (Pt. 11) 69; Oguanuhu & Ors vs. Dr. Chiegboka (2013) 6 NWLR (Pt. 1351) 588.

On the background of the above, I will now address the issues raised for determination in this appeal. The first issue is whether there is enough evidence before the lower Court to show that methamphetamine is a narcotic drug similar to

cocaine, heroin, and LSD. The argument of the Appellant is that the Respondent has the duty to so prove and that failure to do that is fatal to the case of the Respondent. In the first place as mentioned above, the Appellant did not make it an issue before the lower Court either by cross-examining on it or raising an argument on it. Since it did not come up as an issue in the lower Court, the lower Court could not have made a finding on it and as such no ground of appeal will be competent before this Court as the ground of appeal does not arise from the judgment. This means a ground of appeal that is not based on the judgment will be incompetent and such ground of appeal is to be struck out. See Agbaka & Ors vs. Amadi & Anor (1998) 11 NWLR (Pt. 572) 16; Aigbobahi & Ors vs. Aifuwa & Ors (2006) 2 S.C (Pt. 1) 82. I have read the 23 pages of the judgment found on pages 98-121, there is nowhere the lower Court made a finding or decided on that which informed the ground of appeal. An issue raised from an incompetent ground of appeal is incompetent and striking out the ground of appeal automatically means striking out the issue. See Mato vs. Hember & Ors

(2017) LPELR-42765 (SC); Umanah vs. NDIC (2016) LPELR-42556 (SC).

Assuming I am wrong here, there is yet another reason why I cannot resolve this issue in favour of the Appellant. The Respondent is obligated to prove that the substance found with the Appellant is a narcotic substance in the class of cocaine, heroin, and LSD or drugs within that class. These classes of drugs in general parlance are referred to as hard drugs. The Respondent at the lower Court, therefore, needed to prove that the substance found on the Appellant qualifies as hard drugs. This burden does not shift but once the Respondent has led evidence to that effect, then the burden shifts to the Appellant to show that it is not hard drugs. This is the position of the law. See Karimu vs. State (1989) 1 S.C 93; Njokwu vs. The State (2013) 9 NWLR (Pt. 1360) 47; Okoye & Ors vs. Nwankwo (2014) ALL FWLR (Pt. 756) 471.The Respondent in the lower Court can establish this ingredient even by the evidence of one direct witness, circumstantial evidence, or by confessional statement or admission by the Appellant. The Respondent in the lower Court by the evidence of the seven witnesses

called has established that test was carried out on the substance found inside the Solar lamp and was found to be methamphetamine, which is suspected to be a hard drug. PW2, Emmanuel Christopher, a staff of the Respondent at the Drug Analyst testified that a whitish crystallize substance was brought to him for analysis. He said on 19/10/2016 in the proceeding found on page 46 of the record thus:
“I carried out the analyses and the result indicated that the substance in the evidence pouch contained methamphetamine.”

Exhibit P5, the Drug Analysis Report shows that the substance found is Methamphetamine. There was nothing under cross-examination to discredit that evidence. The evidence of PW3 corroborates PW2 evidence. On page 48 of the records, PW3 said that after explaining the procedure of the test of the substance found in the Solar lamp the Appellant wanted to travel with to the Appellant, the substance was tested in the presence of the Appellant using UN Testing kit which turned out to be positive for methamphetamine. He weighed it, which turned out to be 9.980kg Exhibits P7 & P8 were packages of substance and certificate of test

analysis respectively. These documents show that what was packaged were suspected hard drugs. These were packaged in the presence of the Appellant. The Appellant signed those Exhibits confirming the content of the document. The simple implication is that the Appellant by signing Exhibit P7 & P8 agreed that the substance found on him and was packaged are hard drugs. The Appellant did not deny his signature in those documents. Even if he did, it cannot fly because it is the same signature in those documents that reflected in Exhibit P9 which he admitted as his statement. The Appellant in Exhibits P7, P8 & P10 has admitted that the substance is suspected to be hard drugs. The evidence of PW1, PW2, PW3 clearly showed that the substance falls within the substance that is prohibited, that is methamphetamine. PW4 and PW6 clearly showed that the substance is in the category of hard drugs. Exhibit P5 is the Drug Analysis Report which showed that the substance is a drug within the meaning of NDLEA Act. The Appellant’s admission of the fact that the suspected hard Drugs were found on him as in Exhibit P7, P8, and P10 takes the obligation away from the

Respondent to prove that methamphetamine is a hard drug in the class of cocaine, heroin, LSD and other drugs in the class. In the light of the above, the burden shift to the Appellant to show that the substance he admitted was found on him is not hard drugs. The Appellant did not say he was forced or induced to sign those exhibits and when tendered they were not objected to. The Appellant cannot now bring that up. I have no difficulty in the circumstance to resolve issue 1 against the Appellant.

Issue 2 in summary is; whether the lower Court in the circumstance of the facts before it was right in convicting the Appellant for the offence he is charged for. The Appellant vehemently submitted that the lower Court should not have convicted the Appellant as the Respondent did not prove beyond reasonable doubt using the three ways of proving criminal liability, that is, confessional statement, direct evidence, and circumstantial evidence. The Supreme Court specifically recognized the three ways of establishing criminal liability in the case of Musa vs. State (2019) LPELR-46350 (SC), when it held thus:
“Both sides are right that the burden of proof of the

offence with which the lower Court convicted the appellant lies on the respondent and same does not shift. See Aruna & Anor V. The State (1990) LPELR-568 (SC) and Okashetu V. State (2016) LPELR-40611 (SC). Again, counsel are right that in discharging the burden, the law places on the respondent herein to prove the case against the accused by relying on:- (a) The direct evidence of eye witnesses. (b) Circumstantial evidence and/or (c) The confessional statement of the accused. See Olabode Abirifon V. The State (2013) 13 NWLR (Pt. 1372) 587 and Freeborn Okiemute V. The State (2016) LPELR-40639 (SC).”

Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all

reasonable doubt but rather proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would have been said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs. The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held:
“Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond

reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the hilt. As was stated by Lord Denning J., in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
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 one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt. See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State

(2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351 Hassan v. The State (2016) LPELR-42554 (SC).
In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the hilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.”
Similarly in Nwaturuocha vs. State (2011) 6 NWLR (Pt. 1242) 170, the apex Court held:
“Proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in the instant matter, the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.”

To sustain the appeal, it must be clear that the Respondent did not prove beyond reasonable doubt that the hard drugs were found with the Appellant which he intended to export within the provision of Section 21 of NDLEA Act without lawful authority. By the provision of Section 21, the fact that he was at the airport at the check-in counter or undergoing check-in procedure with the substance, the requirement of export has been satisfied. It will not be out of place to produce Section 21 of NDLEA Act. The Section provides thus:
“(1) A person shall be deemed to have exported a narcotic drug or psychotropic substance under this Act, if he brings to or deposits the narcotic drug or psychotropic substance concerned at any time at any customs area, customs station, customs airport, customs port or any other customs point generally.
(2) A person shall be deemed to commit an offence under this Act if –
(a) he actually does the act which constitutes the offence; or
(b) he does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; or
(c) he aids another person in committing the offence; or

(d) he counsels or procures any other person in committing the offence; or
(e) he counsels or procures any other person to commit the offence in which case he may himself be charged with committing the offence.
This may just be the appropriate place to reproduce the section under which the Appellant was charged, that is, Section 11 (b) of NDLEA Act. The section provides thus:
“Any person who, without lawful authority-
(b) exports, transports or otherwise traffics in 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 lower Court in coming to the conclusion to convict the Appellant relied on the confessional statement and the evidence of the Respondent’s witnesses. The Appellant, though, in ground 3 raised the issue of the evidential burden on the confessional statement (Exhibit P9) but raised no specific issue for determination based on ground 3. The Appellant counsel addressed the issue of the confessional statement of the Appellant. Without going into a tutorial class on confessional

statements, it will be appropriate in addressing whether Exhibit P9 should be given evidential value by looking at the law as it relates to confessional statements. Generally, a Court can convict on a confessional statement if such statement is cogent, compelling, and credible. See State vs. Yahaya (2019) 13 NWLR (Pt. 1690) 397 @ 417. However, the law is settled that the confessional statement must pass through a veracity test. Philip vs. State (2019) 13 NWLR (Pt. 1690) 509. Similarly, a Court can also convict on a retracted statement provided it is credible. See Philip vs. State (supra). To start with, the Appellant submitted that Exhibit P9 is not a confessional statement. What then is a confessional statement? A confessional statement is a statement made by an accused or a Defendant admitting that he committed the offence or inferring that he committed the offence. See Section 29 of the Evidence Act, 2011. In FRN vs. Iweka (2011) LPELR-9350 (SC) where the apex Court per Muhammad JSC (P. 45, paras. B-F) defined a confessional statement thus:
“The conglomerate definitions assigned to the words/phrases, “confessional” or

“confessional statement” by the Evidence Act and the case law, refer to an admission made at any time by a person charged with a crime suggesting or stating that he committed the crime. See SAIDU VS. THE STATE [1982] 4 SC 41 AT 56 57; IKEMSON & ORS VS.THE STATE [1989] 3 NWLR [part 110] at 476; AKPAN VS. THE STATE [1990] 7 NWLR [part 160] 101 at 109; NWAEBONYI VS THE STATE [1994] 5 NWLR [part 343] 138 at 149; EDHIGERE VS. THE STATE [1994] 5 NWLR [part 344] 312 at 312 at 321; KASA VS. THE STATE (1994) 75 NWLR [part 344] 269 at 284 – 288…”
For such a confession to be accepted and admissible, the confession must be voluntary and it must have passed the veracity test. See Eke vs. State (2011) 2 SCNJ 57. The Appellant cannot challenge the admissibility of Exhibit F9 at this point on ground of involuntariness of the statement. It is too late in the day as the Appellant admitted that the statement was his and this is more so that he did not challenge the admissibility of the statement when it was tendered. The statement will be deemed to be voluntarily made. The Supreme Court made this clear in Shuaibu Isa vs. Kano State (2016)

1 S.C (Pt. III) 94 where Ogunbiyi, JSC held:
“If an accused person does not object when his confessional statement is being tendered, the only reasonable conclusion is that it was made voluntarily. See Bello Shurumo V. the State (2010) 19 NWLR (Pt. 1226) 73 wherein it was held that the failure to object the two confessional statements when they were tendered and admitted as exhibits was held as conclusive evidence that they were both made voluntarily. This is more so when a counsel stands by and allows exhibits to sail smoothly through without any objection.”
It is the submission of learned counsel to the Appellant that even though Exhibit P9 was admitted without objection, the circumstance in which it was made should have made the Court not to have placed much weight on it or given it probative and evidential value. This is not a solid argument as Exhibit P9 can be relied upon as a relevant piece of evidence for the Court to rely on. See Dauda Mohammed vs. The State (2015) LPELR-25694 (CA); Sule Musa vs. The State (2018) 13 NWLR (Pt. 1636) 307. The Appellant challenged the fact that it was not made in compliance with the ACJA specifically

Section 17 (2) and also that it is not a confessional statement. I have stated the law on what makes a statement a confessional statement which is an admission by a person that he committed the offence for which he is charged.
Looking at Exhibit P9, it is clear that it amounts to Confessional statement since in the statement the Appellant admitted that the Solar lamps were in the bag he wanted to check-in. It is also admitted in the statement by the Appellant that the drugs found in the Solar lamps he was to check-in were tested and confirmed to be methamphetamine. These are facts in the statement and by the legal position, these are admissions by the Appellant. I have no difficulty in holding that Exhibit P9 for all intent and purposes is a confessional statement. The argument by the Appellant that Exhibit P9 is not a confessional statement cannot hold water. It certainly is. The defence that the Appellant seems to raise is the fact that he did not know that the solar lamps had substance wrapped up therein. That does not mean that the confessional statement is not a confession.
The record of appeal showed that when the confessional statement that is

Exhibit P9 was tendered, it was not objected to by the Appellant represented by counsel. Its admissibility is not really what is challenged in this argument before by the Appellant but rather that the lower Court should not have placed probative or evidential value on Exhibit P9. The Appellant is challenging the probative value of Exhibit P9 mostly on the ground that the circumstance surrounding how the statement was taken was such that the Court should not have attached any probative value to it. The Appellant in his evidence in Court did not deny making the statement. He did not raise any objection when it was tendered as to the voluntariness of the statement. In the circumstance, the Appellant cannot at this stage challenge the statement on grounds of voluntariness. He can however retract the statement which I do not see him doing in the evidence at the lower Court found on pages 63-71 of the records of appeal. The Appellant made the statement without the presence of his counsel. He testified that he was denied access to his counsel and he signed the statement in chains and during fatigue. Under cross-examination, he admitted that Exhibit P9 was his

statement. The admission of the Appellant as to the fact that Exhibit P9 was his statement fortified the evidence of PW4, Lawan Olalekan Tajudeen who testified that the Defendant made the statement by himself and that he is literate. The evidence of PW4 shows that the Respondent followed the proper procedure in taking the statement of the Appellant. There was no evidence under cross-examination challenging the evidence of PW4. In the circumstance, Exhibit P9 cannot on that ground be termed inadmissible. The Appellant has not challenged the evidence that the PW4 who took the statement followed due process in taking the statement. Indeed, PW4 who took the statement of the Appellant was clear and explicate to the effect that he followed the proper procedure in taking the evidence of the Appellant. On page 52 of the record of appeal, the PW4 said the Appellant made the statement by himself after the cautionary words. This evidence was not discredited under cross-examination. It is difficult for me to fault the lower Court in relying on Exhibit P9.
A major area of the challenge of Exhibit P9 is that the Appellant’s counsel submitted that the statement

was taken without due compliance with Section 17 (2) of ACJA. What then is the provision of Section 17 (2) of ACJA. I reproduce it as follows:
“Such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a Civil Society Organization or a Justice of the Peace or any other person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner.”
The Appellant’s case here is that he was made to make the statement without the presence of his counsel despite the request he made for his counsel to be present. The main issue here is whether, the fact that the statement was taken without the presence of a lawyer for the Appellant makes such a statement inadmissible particularly when the statement was made voluntarily? In other words, does that affect the weight to be attached to the statement? The ACJA under Section 17

requires that the statement made by the Appellant in this appeal ‘may’ be made before a legal practitioner of the choice of the Appellant. It is clear that the statement was not made in the presence of his legal practitioner. What is the effect of such a statement? There is no specific provision that makes such statement inadmissible or denies such statement probative value. The point I am laboring to make is that a statement which ordinarily is admissible which has probative value will not suddenly and necessarily be inadmissible because it was not made in the presence of the legal practitioner representing the Appellant. A statement which was voluntarily made will not be inadmissible in law simply because it was not made in the presence of counsel. The provision under reference used the word ‘may’ which in legal parlance does not carry the mandatory obligation as the word ‘may’ therefore means that it is not compulsory that counsel should be present while the Appellant was making the statement in order to make the statement admissible. The word ‘may’ indicate possibility or probability. It means free to or

permissive. This means where the word may is used, there is no compulsion or obligation on the part of the Respondent to ensure that the counsel of the Appellant was around when the statement was taken. If the law intended that the presence of the counsel of the Appellant cannot be dispensed with, the law should have used the word ‘shall’. The use of the word ‘may’ implies that depending on the circumstance, the presence of the counsel of the Appellant can be dispensed with. The point I am making is that since the Appellant did not object to the admissibility of Exhibit P9 on the ground of voluntariness, it is admissible and it is too late now to object on the ground. This objection as to the fact that the statement should be inadmissible or lack probative value should have been made at the time of tendering the document. The purpose of the presence of a lawyer is to ensure that the Appellant is not compelled to make a statement he did not intend to make. The legal practitioner is not to interfere with the making of the statement, however, his presence is supposed to give the Appellant confidence. The best time the statement should have

been objected to should have been at the point of tendering same. For the Appellant to say that the statement was his without challenging the voluntariness of it at the trial where he is represented by counsel is a great disservice to the Appellant. I can go on to even say, the absence of the Appellant’s counsel at the point of making the statement would not affect the probative value of the statement. However as it is stated above, such confessional statement must be direct, positive, and unequivocal pointing to the fact that the Appellant committed the offence. I cannot therefore agree with the Appellant counsel that Exhibit P9 should not be given evidential value. I disagree with such a submission as it does not represent the legal position.
Having held that Exhibit P9 is admissible and has probative or evidential value, it remains to say that the lower Court can convict on the strength of a confessional or retracted statement provided the statement or the confession properly so-called is direct, positive and unequivocal. The only requirement of the law is that before a conviction can be based on a confessional statement there must be evidence

outside the confessional statement that points to the fact that the Appellant committed the offence that is to say in legal parlance that the confessional statement must pass the veracity test. The law is trite, and it is this, a Court can convict on the confessional statement of an accused but such a statement must pass the veracity test otherwise, it is advisable not to convict an accused person on the confessional statement. This makes great sense because sometimes the way confessions are gotten from accused persons by the police leaves more to be desired. To make assurance double sure, the law requires that a Court that wants to convict an accused based on a confessional statement must get evidence external or outside the confessional statement that suggests that the confession is true. This evidence must be independent of the confessional statement pointing to one fact that the confession is true and was actually made by the accused. One or two case laws on this well-established principle of law will not be out of place. In Ifeanyi vs. FRN (2018) 11 NWLR (Pt. 1632) 164, the apex Court stated the test that a confessional statement will be made to pass

through before it can be relied upon to convict an accused person. The Supreme Court held:
“My Lords, it has been an established practice that an accused person(defendant) in a criminal trial can easily be convicted solely on his confessional statement if the prosecution can show that the confessional statement was made freely and voluntarily by the accused person to the satisfaction of the trial Court. Omoju v. FRN (2008) 2 SCNJ 197; Kaza v. The State (2008)2 SCNJ, 375. However, where the accused person retracts his confessional statement during trial, that alone cannot render the statement inadmissible. This is because retraction of or resiling from a confessional statement or denial by an accused person of his having made such a statement doest not IPSO FACTO render it inadmissible in evidence. See R. v. Itule (1961) All NLR 462; R. v. Sapele & Anor (1957) 2 FSC 24; Egboghonome v. The State (1983) 7 NWLR (Pt.306) 383 at p.431; Bature v. The State (1994) 1 NWLR (Pt. 320) 267; Alarape v. The State (2001) 5 NWLR (Pt.205) 79. Thus, a confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is

enough to sustain a conviction. The trial Court should not, however, act on the confession without first testing the truth thereof.
See: Jafiya Kopa v. The State (1971) 1 All NLR 150; Jimoh Yesufu v. The State (1976) 6 SC 167; Obosi v. The State (1965) NMLR 119; R. v. Omokaru (1941) 7 WACA 146. But so long as the Court is satisfied with its truth a confessional statement alone is sufficient to ground and support a conviction without corroboration. R. Sykes (1913) 8 CAR 233; Obosi v. The State (supra); Yesufu v. The State (supra). The test, however, for determining the veracity or otherwise of a confessional statement is to look for any other evidence be it slight, or circumstances which make if probable that the confession is true. In R. V. Sykes (1913) 8 CAR 233 at 236, Ridly, J, suggested the tests to be applied on an accused person’s confessional statement in the determination of its veracity to included:
1. Whether there is anything outside the confession to show that it is true,
2. Whether the statement is corroborated, no matter how slight.
3. Whether the facts contained therein, so far as can be tested, are true.

Whether the accused person had the opportunity of committing the offence.
5. Whether the confession was consistent with other facts which have been ascertained and proved in the matter.
6. Whether the confession of the accused person was possible.
The above tests have been accepted and consistently applied by this Court over a long period of time in a number of cases. See: Ikpasa v. Attorney General of Bendel State (1981) 9 SC 7; Onochie v. The Republic (1966) NMLR 307; Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 460.”
In Bello vs. C.O.P (2018) 2 NWLR (Pt. 1603) 267, the Apex Court in similar fashion held:
“The test for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight, of circumstances which make it probable that the confession is true. The test or determinants are: Whether there is anything outside the (a) confession to show that it is true; Whether the statement is corroborated, no (b) matter how slightly; Whether the facts contained therein, so far (c) as can be tested, are true; Whether the accused person had the (d) opportunity of committing the

offence; Whether the confession of the accused (e) person was possible; Whether the confession was consistent with other facts, which have been ascertained (f) and proved in the matter. In the instant case, the trial Court did not apply or comply with any of the above tests or determinants. It was therefore, not safe to convict and sentence the appellant as done by the trial Court and affirmed by the Court of Appeal.”
See Ogedengbe vs. State (2014) 12 NWLR (Pt. 1421) 338.
I can go on and on as this principle of law has been greeted with a lot of judicial pronouncement. I will just refer to one more case of this Court. That is the case of Danladi vs. State (2019) 16 NWLR (Pt. 1698) 342, this Court per Omoleye, JCA held:
“The trial Court is enjoined to look outside the confessional statement of an accused person before it and not into it in order to determine its truth. In doing so, the trial Court will examine other evidence to see if those other evidence corroborate the confessional statement. The Court must ask itself and resolve a number of questions which are:
(a) Is there anything outside the confession to show that it is true?

(b) Is it corroborated?
(c) Are the relevant statements made in it of facts true as far as they can be tested?
(d) Did the accused person have the opportunity of committing the offence charged?
(e) Is the confession possible?
(f) Is the confession consistent with other facts which have been ascertained and have been proved?
The trial Court in resolving these questions need to fallback to the evidence of other witnesses in the case and such other documents or exhibits, if any, admitted in the matter to find if they support the statement. The Court must state in its judgment how it arrived at its conclusion regarding the truth or falsity of the statement. The test of veracity involves the examination of other or outside evidence by comparing those evidence with the confessional statement before the trial Court, to determine whether the confessional statement is credible or true. The examination also entails the consideration of other outside evidence as would lend credence to the confessional statement which is in contention. Unless the test is properly carried out, an accused cannot be convicted and sentenced based on such confessional statement.”

The implication of this in this case is whether using the veracity test, can the conviction of the Appellant be upheld? That is to say, are there other pieces of evidence before the lower Court which it can rely on to authenticate the statement as true? This is what in legal parlance is called the veracity test. The statement will be taken through the veracity test. It is when the statement has passed this test that it can be used as the bases for the conviction of any person charged for a criminal offence if the bases of the conviction is a confessional statement. For completeness, though sounding repetitive and verbose but for emphasis sake, the evidence of the Respondent through PW1-PW7 and Exhibits P5,P7, P8 & P10 supplied enough evidence to satisfy the veracity test. The Appellant was convicted for exportation of 9.980 Kilogramme of Methamphetamine described as a narcotic drug similar to Cocaine, Heroin, and LSD. The Respondent has the responsibility to show outside the confessional statement that the Appellant is liable for the offence he is charged with under Section 11 (b) of the NDLEA Act, that what was found

in the bag of the Appellant was Methamphetamine which is hard drugs classified in the category of Cocaine, Heroin and LSD or drugs in that class.
The evidence before the lower Court is clear and not disputed. The substance which is found and concealed in the solar light of the bag the Appellant was trying to check-in is Methamphetamine which turned out to be hard drugs. The Appellant did not deny that he was arrested at the airport at the check-in point of the South African Airways with 2 Ghana Must Go bags. He also did not deny that the bag contained 6 solar lamp cartons. The PW6 who arrested the Appellant testified that each of the solar lamps contained substances which were hard drugs. On page 57-58 of the records, PW6 testified as follows:
”I know the Defendant. On 8/11/2014 at about 20.40 hours during the outward clearance of South African Airways to Johanesburg, I and Ibrahim Ube Kazaure (Superintendent Narcotic) were at the checking in counter when the Defendant came with 2 multi colour Ghana –must-go bags to check in as intending passengers. I asked him to raise the bags and put them on the top of the checking table for examination

and I asked him to open it for search. 3 cartons of facility solar lamp were in each of the Ghana-must-go making a total of 6. In his presence and in the presence of Ibrahim Ube Kazaure, the cartons were opened and I suspected there were signs of tampering on the screws. I suspected that someone was hidden something. Myself, the suspect, Ibraham Kazure and the 2 Ghana-must-go moved to the legal seat. We then opened it and we discovered in the presence of the Defendant that each contain a parcel of substance suspected to be hard drugs. The Exhibit Officer Bashir Adamu Moh’d (PW3) in our presence and in the presence of the Defendant field tested the substance and proved positive for methamphetamine weighing 9.980 Kilogramme. The Exhibit Officer provided evidence pouches where he packed and sealed the suspected substances and also provided the following forms:
1. Request for Scientific Aid Form
2. Packing of substance Form
3. Certificate of Test Analysis
The Defendant signed and thumb printed all the forms including the evidence pouches while Ibrahim Ube Kazaure and I countersigned. He claimed the ownership of the suspected substance

found in his possession and I issued him NDLEA seizure Receipt and he acknowledged receipt of the Original.”
In Exhibit 10, the Appellant admitted ownership of the drugs when he signed the receipt. The Appellant in Exhibit P10 endorsed thus;
“The original copy of the receipt of ownership in respect of 9.980kg of methamphetamine was sized from me and collected by me.
The Appellant did not object to the admission of Exhibit P10. He did not deny signing Exhibit P10. Taking a look at the Appellant’s defence and his statement, he did not deny signing Exhibit P7, P8, P9& P10. These documents along with the evidence of the Respondent witnesses particularly PW3-PW6 are evidence outside the confessional statement that established beyond reasonable doubt that the Appellant committed the offence.
The lower Court on page 114 of the records (page 17 of the judgment) held that the confessional statement, that is Exhibit P9 is sufficient proof beyond reasonable doubt. Apart from the confessional statement, the evidence of all the prosecution witnesses and Exhibits P5,P7,P8,P9 & P10 are sufficient evidence to corroborate

the confessional statement. I have no reason whatsoever to disagree with the finding of the lower Court.

In the circumstance, this appeal lacks merit and it is hereby dismissed. The judgment of Hon. Justice J.K. Dagat of the Federal High Court, Lagos Division in Suit No: FHC/L/406C/2014 is hereby affirmed and upheld.

TIJJANI ABUBAKAR, J.C.A.: I read the leading Judgment prepared and rendered in this appeal by my learned brother Ebiowel Tobi JCA. I am in agreement and have nothing extra to add. I adopt the Judgment as my own.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead just delivered by my learned brother EBIOWEI TOBI JCA. I adopt the judgment as mine with nothing useful to add.

Appearances:

…For Appellant(s)

…For Respondent(s)