ABIODUN v. FRN (2020)

ABIODUN v. FRN

(2020)LCN/14396(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, June 24, 2020

CA/L/416C/2018

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

OLUWASHETO ABIODUN APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE CRIMINAL OFFENCE OF EXPORTING A NARCOTIC DRUG OR PSYCHOTROPIC SUBSTANCE

Now, Section 21(1) and (2) of the NDLEA Act, provides as follows: –
“(1) A person shall be deemed to have exported a narcotic drug or psyshotropic 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 or with counseling or procuring the commission of the offence.”
These provisions are very clear, plain and unambiguous in words and language on what constitutes the offence of exporting a narcotic drug or psychotropic substances and when a person can be deemed to commit an offence under the Act. For that reason, the provisions, by established principles of law, do not require interpretation by the Court but the words are to be ascribed their plain and ordinary grammatical meanings in application to facts of a case as that would not lead to absurdity. Judicial authorities galore on this cardinal principle and include Awolowo vs. Shagari (1979) 6-9 SC, 73, Attorney General, Bendel State vs. Attorney General of the Federation (1982) 2 NCLR, 1, Okotie-Eboh vs. Manager (2004) 11-12 Sc, 184, Abubakar vs. Nasamu (2012) 17 NWLR (Pt. 1330) 407 and 523, Federal Republic of Nigeria vs. Mohammed (2014) 9 NWLR (Pt. 413) 551, Okoye vs. Commissioner of Police (2015) 17 NWLR (Pt. 1488) 276, Saraki vs. Federal Republic of Nigeria (2016) 3 NWLR (Pt. 15000) 531. PER GARBA, J.C.A.

ESSENTIAL INGREDIENTS FOR THE OFFENCE OF EXPORTING NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

The vital or essential ingredients for the offence of exporting narcotic drugs and psychotropic substances under the provisions of Section 11(b) of the NDLEA Act are:-
1. That the goods or property delivered, deposited or brought by an accused person was narcotic drugs or psychotropic substances.
2. That the narcotic drugs or psychotropic substances were delivered, deposited at or brought to any custom area, station, airport, port or other point.
3. That the drugs or substance was brought, deposited or delivered for the purpose of being transported, sent or carried to destination/s outside Nigeria, i.e. from Nigeria to another country.
4. That it was the accused person who personally brought, delivered or deposited the drugs or substance to and at the port or other point.
5. That the accused did not have, possess and show lawful authority to deposit, bring or deliver the said drugs or substances at the material time. These essential or vital elements or ingredients are to be, as required the provisions of Section 135(1) and (2) of the Evidence Act, 2011, proved beyond reasonable doubt, by the prosecution (Respondent in this appeal). PER GARBA, J.C.A.

BURDEN OF PROOF IN CRIMINAL TRIALS

The burden of proof placed on the prosecution by the Evidence law in criminal trials is predicated on the constitutional provisions in Section 36(5) that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. By this provision, an accused person who is charged with a criminal offence has no duty or burden to prove his innocence which is presumed in his favour by the foundation and fountain of all other laws in Nigeria; the Constitution. See Igbi vs. State (2000) 3 NWLR (Pt. 648) 169, Anaekwe vs. Commissioner of Police (1996) 3 NWLR (Pt. 436) 320, Ifejirika vs. State (1999) 3 NWLR (Pt. 593) 59, Bello vs. State (2007) 10 NWLR (Pt. 1043) 564, Agbo vs. State (2006) 6 NWLR (Pt. 977) 545, Oladotun vs. State (2010) 15 NWLR (Pt. 1217) 490, Ilodigwe vs. State (2012) 18 NWLR (Pt. 1331) 1, Iliyasu vs. State (2014) 15 NWLR (Pt. 1430) 245, Adeyemo vs. State (2015) 16 NWLR (Pt. 1485) Abokokuyanro vs. State (2016) (Pt. 1518) 520. PER GARBA, J.C.A.

VOLUNTARY CONFESSION OF AN ACCUSED PERSON

The law is also known that even though a voluntary confession by an accused person is alone sufficient to justify his conviction for the offences to which it relates, the Courts have always insisted that before reliance can solely be made on a confession to convict, there is the need to test the truth of such confession by examining it in the light or context of the other credible evidence adduced before the Court. See Nwaeze vs. State (1996) 2 NWLR (Pt. 428) 1, Akinmoju vs. State (2000) 4 SC (Pt. 1) 64, Solola vs. State (supra), Shalla vs. State (2007) 18 NWLR (Pt. 1066) 240, Nwachukwu vs. State (2007) 17 NWLR (Pt. 1062) 31, Akpan vs. State (1992) 7 SCNJ, 22. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant was convicted by the Federal High Court, Lagos (Lower Court) in charge No. FHC/L/66C/2017 for the offences of conspiracy and engaging, dispatch, delivery and exportation of 2.035kg of cocaine without lawful authority contrary to Sections 14(b) and 11(b) respectively, of the National Drug Law Enforcement Agency Act (NDLEA Act), Cap 30, Laws of the Federation of Nigeria, 2004. He was sentenced to five (5) years imprisonment for each of the offences with effect from the 21st January, 2017 and the terms are run concurrently.

Eight (8) witnesses testified for the prosecution while the Appellant testified in self defence as the sole witness and dissatisfied with the conviction, he brought this appeal, vide the Notice of Appeal dated and filed on the 7th March, 2018 on four (4) grounds.

A sole issue was distilled from the grounds of appeal for decision by the Court in the Appellant Brief filed on 18th May, 2018, which was adopted in the Respondent’s brief filed on the 4th July, 2018. It is as follows: –
“Whether from the evidence placed before the trial

Court, the Respondent proved the offences charged against the Appellant beyond reasonable doubt and whether the trial Court made a proper evaluation of the evidence led by the parties to justify the Appellant’s conviction?”

In reaction to the Appellant Brief, an Appellant’s Reply Brief was filed on the 6th November, 2018.

The case presented by the Appellant’s counsel in the Appellant Brief is that the Respondent did not prove the offences against the Appellant as required by law; beyond reasonable doubt on the ground that there was no credible evidence to show that the Appellant knew that there were drugs in the bags of semolina he presented for export to Kenya or Uganda at the Murtala Mohammed International Airport (MMIA) Lagos, on the 21st January, 2017 or establish that he conspired with his friend in Uganda to export the cocaine found in the semolina bags. It is submitted that the unchallenged evidence before the Lower Court was that the bags of semolina were given to the Appellant by one “Alhaji” on the instruction of his friend in Uganda to be sent by the Appellant to him. According to counsel, since the

semolina bags did not originate from the Appellant, he did not know that there were drugs in them and so did not intend to export them, thereby showing absence of mens rea. Heavy reliance was placed on the case of Onyebuchi vs. Federal Republic of Nigeria (2016) LPELR-40577 (CA) on the ingredients for the offence of importation of drugs into Nigeria and it is argued that the facts and principle therein, are the same and applicable to the Appellant’s case. In addition, the following cases were cited: –
(1) Durosaro vs. Ayinde (2005) 8 NWLR (Pt. 927) 407 @ 427 on the law that a Court has no alternative but accept and act on unchallenged and un-contradicted admissible and credible evidence;
(2) Onagoruwa vs. State (1993) 7 NWLR (Pt. 303) 49 @ 82 and Uguru vs. State (2002) 8 NWLR (Pt. 769) 367 @ 394 on the law that a Court has no business searching or scouting for evidence that is nowhere to be found and to shore up the prosecution’s case in the absence of evidence linking an accused person with the statutory elements or ingredients of an offence he was charged with;
(3) Friday vs. State (2016) 16 NWLR (Pt. 1538) 242 @ 259 on the

meeting of minds of conspirators as the gist of the offence of conspiracy;
(4) Adie vs. The State (1980) 1-2 AC, 73 @ 803 (sic) on the application of circumstantial evidence for the conviction of an accused person for any offence he is charged with;
(5) Orji vs. The State (2008) 10 NWLR (Pt. 1094) 31 @ 47 on the law that suspicion no matter how strong, cannot ground criminal responsibility;
(6)Sogbamu vs. Odunaiya (sic) (2013) ALLFWLR (Pt. 700) 1247 @ 1307 and Akpagher vs. Gbunju (2015) 1 NWLR (Pt. 1440) 209 @ 238 on when the decision of a Court is perverse.

Section 167(d) of the Evidence Act, 2011 was also referred to on failure by the Respondent to tender the two (2) Mobile telephones the Appellant was arrested with, in evidence and to call Fatimo and Fali, as witnesses as at the trial.

It is maintained that the conviction of the Appellant is not supported by the evidence adduced by the Respondent since it did not show that he knew of the drugs in the semolina bags or that he was a party to the exportation and it is perverse.

The Court is prayed to allow the appeal, discharge and acquit the Appellant of the offences he was

convicted for in the judgment of the Lower Court.

From the arguments in the Respondent’s brief, the case presented is that the offence the Appellant was charged with, were proved beyond reasonable doubt by the credible evidence, including confession by the Appellant, placed before the Lower Court and so it was right in law to have convicted the Appellant. The cases of Miller vs. Minister of Pensions (1947) ALLER, 372, Nwaturuocha vs. The State (2011) SCNJ, 148 and Lori vs. The State (1980) 8 â 11, SC, 81 are referred to on the definition of proof beyond reasonable doubt and Sections 11(b) and 21(1) of the NDLEA Act were set out in support of the argument that the Appellant has admitted committing the offences he was convicted for by taking the semolina bags in which the drugs were found to the Export shed for the purpose of exporting them out of Nigeria. Awopejo vs. The State (2002) 2 SCNJ, 54, Baalo vs. Federal Republic of Nigeria (2016) LPELR-40500 (SC), Ajibade vs. The State (2012) LPELR-15531 (SC), Amala vs. The State (2004) 6 SCM, 55 @ 67 and Dim vs. African Newspaper of Nigeria Limited (no citation provided) are cited on the effect of

admission of the commission of an offence. Section 123 of the Evidence Act was also referred to. In further argument, it is submitted that material confessions are contained in the Appellant’s statement which show that no one but he was responsible for the offences he was convicted for and reliance was placed onUluebeka vs. The State (2001) 2 ALL NLR, 783 @ 201 (sic) and Nwachukwu vs. The State (2002) 7 SC (Pt. 1) 124 @ 140 – 2 for the law that confession alone, if direct, positive and properly established, can ground a conviction. It is also the case of the Respondent that the offences the Appellant was convicted for, are by the provisions of Section 11(b) and 21(1) of the NDLEA Act, strict liability offences which do not require knowledge or intention to commit them on the part of an accused before he could be found guilty.

On the offence of conspiracy, Section 14(b) of the NDLEA Act, Balogun vs. Attorney General, Ogun State (2002) FWLR (Pt. 100) 1287) @ 1306, Egunjobi vs. Federal Republic of Nigeria (Pt. 105) 896 @ 927-9, Daboh vs. The State (1977) ALLNLR, 146, Madu vs. Federal Republic of Nigeria (2016) LPELR-40315 (CA) and Oyediran vs. The Republic

(1967) NMLR, 122 @ 127 and 8 are cited in support of the argument that the evidence before the Lower Court proved the offence against the Appellant beyond reasonable doubt as he was shown to have agreed with his friend in Uganda; Fatai Oluwatosin Adebiyi, to export the drugs he was arrested with. The case of Onyebuchi vs. Federal Republic of Nigeria (supra) cited by the Appellant’s counsel is said to be disguisable from the facts of the Appellant’s case since in that case, it was only a waybill that was given to the Appellant to clear goods imported into Nigeria, while in the Appellant’s case, evidence shows that he participated in the purchase of the goods and presented them for export. It is also submitted that the provisions of Section 167(d) of the Evidence Act, 2011 do not apply to failure call Fali and Fatima who did not have anything to do with the semolina bags which the Appellant presented for export.

In conclusion, the Court is urged to dismiss the appeal for lacking in merit and affirm the decision of the Lower Court convicting the Appellant for the offences he was tried for.

The Appellant’s Reply brief

substantially contains a repetition and further arguments already made in the Appellant Brief as it was used to react to all the arguments and submissions in the Respondent’s brief, contrary to the provisions of Order 19, Rule 5(1) of the Court of Appeal, Rule 216 which provide for the filing of such brief. The provisions are as follows: –
“5(1) The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.” (underline provided)
These provisions are precise and simple and as can easily be noted, a reply brief to be filed by an Appellant after receipt of a Respondent’s brief in an appeal, “shall deal with all new points arising from the Respondent’s brief” only and Not All points raised or arising from the Respondent’s brief. An Appellant’s Reply Brief which, in complete disregard of and total non-compliance with the provisions of Order 19, Rule 5(1), just like the Appellant’s Reply brief in this

appeal, embarks on response, reaction or answer to all or every points argued and arising in the Respondent’s brief which is a response or answer to the points canvassed in the Appellant brief would be one not provided for by the Rules of the Court and so an aberration that is incompetent for not being within the contemplation or purview of the Rules. To be valid and worthy of consideration by this Court in the determination of an appeal, an Appellant’s Reply Brief must be confined to dealing with only new issues/points arising from the Respondent’s brief and where no new points/issues are raised and argued in the Respondent’s brief, an Appellant Reply Brief becomes unnecessary, otiose and non-sequitur in an appeal.
Maren vs. State (2010) 3 NWLR (Pt. 1181) 254, Ojiogu vs. Ojiogu (2010) 9 NWLR (Pt. 1198) 1, Akande vs. Adisa (2012) 15 NWLR (Pt. 1324) 538, Alawiye vs. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570, Eze vs. State (2013) 16 NWLR (Pt. 1380) 392, Danladi vs. Dangiri (2015) 2 NWLR (Pt. 1442) 124, Ezeuko vs. State (2016) 6 NWLR (Pt. 1509) 529.
In this appeal, it is because of the non-compliance with the Rules of the

Court that the Appellant Reply Brief runs into the same number of pages as the Appellant Brief.

The only point argued in the Appellant Reply Brief which deals with a new issue arising from the Respondent’s brief is on arguments offering reasons for the conviction of the Appellant different from those given by the Lower Court in the judgement appealed against without a Respondent’s Notice urging the Court to affirm the judgement on other grounds. Ozigbo vs. P.D.P (2010) 9 NWLR (Pt. 1200) 601 @ 681-2 and CBN vs. Dinneh (2010) 17 NWLR (Pt. 1221) 125 @ 147 are cited for the submission that it is not the place of the Respondent to offer other reasons for the conviction of the Appellant by the Lower Court not set out in the judgement appealed against in the absence of a Respondent’s Notice.

Resolution:
By the Amended charge dated the 17th March, 2017, the two (2) counts offences the Appellant was tried for are as follows: –
“COUNT 1
That you OLUWASHETO ABIODUN, Male, 39 years, on or about the 21st day of January, 2017, at about 1030 hours, during the outward clearance of Kenyan Airline consignments at the NAHCO

AVIANCE EXPORT Seat warehouse, through Air Rwanda, at the Murtala Mohammed International Airport, Lagos, within the jurisdiction of this Honourable Court, without lawful authority did engage in the brokerage, dispatch, deliver, and EXPORTATION OF 2.035 KILLOGRAMMES of Cocaine, a Narcotic drug concealed inside 10 kilogrammes bags of Mama gold Semolina, thereby committing an offence contrary to and punishable under Section 11(b) of the National Drug Law Enforcement Agency Act Cap N30 Laws of The Federation of Nigeria, 2004.
COUNT 11
That you OLWASHETO ABIODUN, Male, 39 years, on or about the 21st day of January, 2017, at about 1030 hours, during the outward clearance of Kenya Airline consignments at the NAHCO AVIANCE EXPORT Seat warehouse, through Air Rwanda, at the Murtala Mohammed International Airport, Lagos, within the jurisdiction of this Honourable Court, without lawful authority did CONSPIRE with in FATAI OLUWATOSIN ADEBIYI (now at large) to engage in the brokerage, dispatch, delivery and EXPORTATION OF 2.035 KILOGRAMMES of Cocaine, a Narcotic drug concealed inside 10 kilogrammes bags of Mama Gold Semolina, thereby committing an offence contrary

to and punishable under Section 14(b) of the National Drug Law Enforcement Agency Act Cap N30 Laws of The Federation of Nigeria, 2004.”

Section 11(b) and 14(b) of the NDLEA Act contrary to which of these offences are said to be provide that: -“Any person who without lawful authority, 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.
(1) “a person is deemed to have exported a narcotic drug or psychotropic substances 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 port or any other Customs point generally.
(2) A person shall be deemed to commit an offence under this Act if; He actually does the act which constitutes the offence or He does or omits to do any act for the purpose of enabling or aiding another person to commit the offence or he aids another person in committing the offence or he counsel or procures any other person to commit the

offence in which case, he may himself be charged with committing the offence or with counseling or procuring the commission of the offence.
14(b) of the National Drug Law Enforcement Agency Act provides that any person who; “Conspires with, aids, abets, Counsel, attempts to commit or is an accessory to any to act to offence referred to in this Act, shall be guilty of an offence under the Act and liable on conviction to be sentenced to imprisonment for a terms of not less than fifteen years (15 years) and not exceeding twenty-five years (25 years).”
The undisputed facts, as contained in the briefs of both learned Counsel for the Appellant and the Respondent that gave rise to the arraignment of the Appellant before the Lower Court for the above offences are straight forward. They are that on the 21st January, 2017, the Appellant presented, among others items, three (3) bags of semolina at the NAHCO Export shed of the Murtala Muhammed International Airport, Ikeja, Lagos, for export to Kenya. During outward clearance by officers of the NDLEA, 2.035kgs of cocaine was found concealed in the bags of semolina in the presence of the Appellant who

was consequently arrested and eventually charged before the Lower Court for the aforenamed offences.
The evidence of the eight (8) witnesses who testified for the Respondent in proof of the offences against the Appellant was in line with the above facts and included the statement of the Appellant admitted as Exhibit P8 and Report of the analysis of the substances found in the semolina bags in question which was admitted as Exhibit P3.
Now, Section 21(1) and (2) of the NDLEA Act, provides as follows: –
“(1) A person shall be deemed to have exported a narcotic drug or psyshotropic 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 or with counseling or procuring the commission of the offence.”
These provisions are very clear, plain and unambiguous in words and language on what constitutes the offence of exporting a narcotic drug or psychotropic substances and when a person can be deemed to commit an offence under the Act. For that reason, the provisions, by established principles of law, do not require interpretation by the Court but the words are to be ascribed their plain and ordinary grammatical meanings in application to facts of a case as that would not lead to absurdity. Judicial authorities galore on this cardinal principle and include Awolowo vs. Shagari (1979) 6-9 SC, 73, Attorney General, Bendel State vs. Attorney General of the Federation (1982) 2 NCLR, 1, Okotie-Eboh vs. Manager (2004) 11-12 Sc, 184, Abubakar vs. Nasamu (2012) 17 NWLR (Pt. 1330) 407 and 523, Federal Republic of Nigeria vs. Mohammed (2014) 9 NWLR (Pt. 413) 551, Okoye vs. Commissioner of Police (2015) 17

NWLR (Pt. 1488) 276, Saraki vs. Federal Republic of Nigeria (2016) 3 NWLR (Pt. 15000) 531.
The express and clear provisions in Section 21(1) stipulate that the offence of exporting a narcotic drug or psychotropic substance under the Act is deemed to have been committed by a person when and if he takes or brings to or deposit such drug or substance at any custom airport or any port or point generally, for the purpose of exporting same to destination outside Nigeria. At page 619 of the 9th Edition of Black’s Law Dictionary, the words “Export” and “Exportation” are defined as follows: –
“Export: 1. To send or carry goods abroad.
2. To send, take, or carry (a good or commodity) out of the Country; to transport (merchandise) from one Country to another in the course of trade.”
Exportation: The act of sending or carrying goods and merchandise from one Country to another.”
Within the context of the provisions of Section 21(1) above, a person who takes to, presents, delivers or deposits any drug or substance at any customs airport, any port or point in Nigeria for the purpose of sending or

carrying same to another country, is deemed to have exported the drug or substance in question and if he does not have and possess the requisite lawful authority, to have committed an offence punishable under the provisions of Section 11(b) of the NDLEA Act.
The provisions, by the statutory presumption therein, create a strictly liability offence under Section 11(b) once a person who takes, presents, delivers or deposits the drugs or substance in question at the airport, port or any point, does not have, possess and show lawful authority permitting, allowing or mandating him to do so at the point or time of the presentation or delivery. In Odunlami vs. Nigerian Navy (2013) 12 NWLR (Pt. 1367) 20, Rhodes Vivour, JSC, dealing with Section 68(1)(a) of the Armed Forces Act, stated, inter alia, that:-
“Section 68 (1) (a) of the Armed Forces Act creates a strict liability offence. That is to say a crime that does not require proof of mens rea.”
See also Yakubu vs. Federal Republic of Nigeria (2009) 14 NWLR (Pt. 1160) 151 and page 934 of the Black’s Law Dictionary, 9th Edition, where strict liability is described as liability which

does not depend on actual negligence or intent to harm but based on breach of an absolute duty.
The vital or essential ingredients for the offence of exporting narcotic drugs and psychotropic substances under the provisions of Section 11(b) of the NDLEA Act are:-
1. That the goods or property delivered, deposited or brought by an accused person was narcotic drugs or psychotropic substances.
2. That the narcotic drugs or psychotropic substances were delivered, deposited at or brought to any custom area, station, airport, port or other point.
3. That the drugs or substance was brought, deposited or delivered for the purpose of being transported, sent or carried to destination/s outside Nigeria, i.e. from Nigeria to another country.
4. That it was the accused person who personally brought, delivered or deposited the drugs or substance to and at the port or other point.
5. That the accused did not have, possess and show lawful authority to deposit, bring or deliver the said drugs or substances at the material time.

These essential or vital elements or ingredients are to be, as required the provisions of Section 135(1) and (2) of the Evidence Act, 2011,

proved beyond reasonable doubt, by the prosecution (Respondent in this appeal). The burden of proof on the prosecution, in criminal trials remains static on it until the evidence adduced by it in proof of all the essential elements or ingredients of the offence/s an accused person was charged for, meets the standard of the proof beyond reasonable doubt, which in simple terms, means producing cogent and credible evidence to show compellingly and convincingly that it was the accused person who in fact, committed the offence he was being tried for and no other person.
The burden of proof placed on the prosecution by the Evidence law in criminal trials is predicated on the constitutional provisions in Section 36(5) that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. By this provision, an accused person who is charged with a criminal offence has no duty or burden to prove his innocence which is presumed in his favour by the foundation and fountain of all other laws in Nigeria; the Constitution. See Igbi vs. State (2000) 3 NWLR (Pt. 648) 169, Anaekwe vs. Commissioner of Police

(1996) 3 NWLR (Pt. 436) 320, Ifejirika vs. State (1999) 3 NWLR (Pt. 593) 59, Bello vs. State (2007) 10 NWLR (Pt. 1043) 564, Agbo vs. State (2006) 6 NWLR (Pt. 977) 545, Oladotun vs. State (2010) 15 NWLR (Pt. 1217) 490, Ilodigwe vs. State (2012) 18 NWLR (Pt. 1331) 1, Iliyasu vs. State (2014) 15 NWLR (Pt. 1430) 245, Adeyemo vs. State (2015) 16 NWLR (Pt. 1485) Abokokuyanro vs. State (2016) (Pt. 1518) 520.

The evidence adduced by the Respondent before the Lower Court as stated earlier, included the statement by the Appellant admitted in evidence as Exhibit P8 through the PW6, without objection. It is expedient to see what the Appellant said in the statement and here it is: –
“I, Oluwasheto Abiodun was born on 11th January, 1978 in the family of Mr. and Mrs. Fela Oluwasheto of Yaba in Ondo State. I attended Ijero Primary School in Lagos and Ebute-metta in Lagos and I cannot remember the year I finished. I then went to Government College ….. in Lagos and completed in 1995. I then want started learning how to do electrical wiring of building from one David here in Lagos for four years after the four years. I then graduated and

started working on my own. Till date that is what am doing. I am presently not married but I have a child. I have a childhood friend by name Fatai who we were in from Nigeria together before he left the country for Uganda he told me that he was schooling in Uganda. He normally sends me money to by him thing in Nigeria and sends to him in Uganda so on the 19th January, 2017 my friend Fatai called me again from Uganda with his usual number +256 to 2460000 and told me that he will send me him …… to buy him perfumes, glass and shirts and send to one man from Kenya with Mobil numbers 0714421632. He then sent the money the following as immediately I promised so I went to lagos Island to buy the goods as I was buying the goods he now called me again that he will send another number to me and I will call the person who is a male that he will give me same goods and I will add to the one I will send to Kenya. He did not tell me the persons name but the number be sent to me is 08036730748. I now called the person with the number he send to me and person brought, three =3= bags of 10kg semolina and three shoes and handed them over to me at Lagos Island with

N70,000 that I should use it in sending the goods to Kenya. So on this day 21st January, 2017 at about 10.30 hours I now collected one Olukunle Michael who I know that does taxi business to convince and carry me to NAHCO I told him I will give him N3,000 and we agreed and he brought me to NAHCO together with the goods to come and send them to Kenya so as I went the agent who will help me send it he then called on an NDLEA officer to come and examine the goods in the process of the examination he now opened the three (of) bags at 10kg semolina that was given to me by Fatai friend and he saw some white substances that were further concealed in transparent leather, he now took me along with the goods and Olukunle Micheal the taxi driver to NDLEA office in NAHCO and a test was conducted in my presence on the white substance that were on transparent leather. Two of the white substances proved positive to cocaine and rest five tested negative. The two that tested was then weighed in my presence again and it weighed 2.035kg. They were then put in two transparent leather which I signed and thumb printed on them and the other officers signed also. I was then given

three forms again which I signed and thumb printed on them and the other officers signed on them too.”

The Appellant also testified in self defence and the evidence given by him was materially and substantially to the same effect as his statement in Exhibit P8 and a positive affirmation and confirmation of the evidence of the Respondent on the facts leading to the arrest, investigation, charge and arraignment of the Appellant before the Lower Court for the offences he was convicted for.
Looking at both the Exhibit P8 and evidence of the Appellant at the trial, it is beyond argument that he indeed, admitted the following:
(a) That he, on 21st January, 2017 at about 10:30 am, took, brought, deposited or delivered, among other goods/items, to and at the NAHCO Export shed at the MMIA, three (3) bags of semolina for the purpose of sending same to Kenya; a destination and country outside Nigeria;
(b) That the same substances were found concealed in small bags inside the semolina bags;
(c) That substances found in the semolina bags were removed, tested and found to be cocaine in his presence;
(d) That he did not have or possess the

lawful authority to take, bring, deposit or deliver the cocaine for the purpose of its transportation, being sent or carried to Kenya a country outside Nigeria.
These facts constitute the essential or vital elements or ingredients of the offence of exportation of narcotic drugs and psychotropic substances for which the Appellant was charged and convicted by the Lower Court.
Section 20 of the Evidence Act, 2011 defines an admission “in the following terms: –
“An admission is a statement, oral or documentary, or conduct which suggest the inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, mentioned in this Act.”
For the purposes of criminal proceedings, Section 28 of the Act provides for a confession by a person charged with a crime, as follows: –
“A confession is an admission made at any time by a person charge with a crime, stating or suggesting that he committed that crime.”
As can easily be discerned from both Exhibit P8 and the evidence of the Appellant before the Lower Court, there is an unequivocal admission by the Appellant that

he personally committed the offence of exportation of cocaine found in the semolina bags he took, deposited or delivered to the NAHCO Export shed for the purpose of transportation, being sent or carried to Kenya; a country outside Nigeria without lawful authority. As stated earlier, the offence as defined under Section 21(1) of the NDLEA Act, is presumed completed and committed by a person when he takes, delivers or deposits the narcotic drugs or substances at the custom airport area or point for the purpose of its sent, transported or carried to a destination outside Nigeria, without lawful authority. In judicial practice, it is said that there is no evidence stronger than a person’s own admission or confession of the commission of a criminal offence, in proof of such an offence and so if properly proved, is alone, sufficient to ground or warrant his conviction for the offence. See Nwaebonyi vs. State (1994) 5 NWLR (Pt. 343) 30, Edhigere vs. State (1996) 8 NWLR (Pt. 464), Uluebeka vs. State(2000) 4 SC (Pt. 1) 23, Idowu vs. State (2000) 7 SC (Pt. II) 50, Alarape. vs State (2001) 14 WRN, 1, Solola vs. State (2005) 11 NWLR (Pt. 937) 460, Olabode vs. State

(2009) 11 NWLR (Pt. 1152) 254, Musa vs. State (2013) 9 NWLR (Pt. 1359) 214.
The law is also known that even though a voluntary confession by an accused person is alone sufficient to justify his conviction for the offences to which it relates, the Courts have always insisted that before reliance can solely be made on a confession to convict, there is the need to test the truth of such confession by examining it in the light or context of the other credible evidence adduced before the Court. See Nwaeze vs. State (1996) 2 NWLR (Pt. 428) 1, Akinmoju vs. State (2000) 4 SC (Pt. 1) 64, Solola vs. State (supra), Shalla vs. State (2007) 18 NWLR (Pt. 1066) 240, Nwachukwu vs. State (2007) 17 NWLR (Pt. 1062) 31, Akpan vs. State (1992) 7 SCNJ, 22.
The voluntary confession by the Appellant in both Exhibit P8 and in his oral evidence before the Lower Court is direct, positive, cogent, unequivocal and compellingly probable on its own to prove the offence of exportation of the cocaine found in the semolina bags he took to and deposited for the purpose of its being sent or carried to Kenya, beyond reasonable doubt and so in law, does not require corroborative

evidence. See R V Omokaro 7 WACA, 146, Obosi vs. The State (1965) NWLR, 119 Yesufu vs. The State (1976) 6 SC, 167, Uluebeka vs. State (supra), Udofia vs. State (1984) LPELR-3306-(SC), Bassey vs. The State (2012) 12 NWLR (Pt. 1314) 209, Rabiu vs. State (2005) 7 NWLR (Pt. 125) 491.
However, the credible and unchallenged testimonies of the officers of the NDLEA who arrested the Appellant, investigated the offence and professionally confirmed the substance found in the semolina bags the Appellant took to the airport for export to Kenya to be cocaine, remove any reasonable doubt from the truth of the confession for the offence under Section 11(b) of the NDLEA Act.
As pointed out earlier, the offence is one of strict liability and the issue or question of mens rea on the part of the Appellant is not required in law in proof thereof.
In this regard, the facts of the case of Onyebuchi vs. FRN (supra) relied on by the counsel for the Appellant are different with the Appellant’s case. The Appellant in that case did not admit and confess to the offence of importation he was charged with and was only given a waybill to clear goods the description of

which was not cocaine.

Learned counsel for the Respondent is right in that regard and I agree with him that whether the Appellant knew the contents of the semolina bags he took and deposited for export to Kenya or that he intended to export the cocaine found therein were all presumed by the law and so the burden was on the Appellant to have rebutted it with credible evidence. He failed to adduce any such evidence, howsoever, before the Lower Court.

In addition, the evidence from the Appellant shows and establishes clearly that he knew what was contained in the semolina bags which he intended to send and export to Kenya instead of Uganda, where he claimed the person who directed him to buy and receive the goods or items, resided as a student. The Lower Court was right in its judgement when it found that from the evidence and conduct of the Appellant before it, he only wanted to take refuge under mens rea, as an afterthought which did not avail him.

On the charge of conspiracy, the offence is committed when two (2) or more people agree to do an unlawful act or a lawful act, by unlawful means and it is separate and a distinct offence, which is

independent of the actual commission of the unlawful act to which it is related.
The ingredients or elements of the offence of conspiracy, generally, include (a) an agreement between two (2) or more persons to do or cause to be done, some illegal or unlawful act or a law act, by illegal or unlawful means and (b) that each of the persons actually and individually participated in the agreement.
See: Balogun vs. Attorney General, Ogun State (2002) 2 SCNJ, 196; Sule vs. State (2009) 8 SCM, 177; Upahar vs. State (2003) 6 NWLR (Pt. 630) 239; State vs. Oladimeji (2003) FWLR (Pt. 175) 395; Oduneye vs. State (2001) 1 SC (Pt. I) 1; Jimoh vs. State (2011) LPELR-4357 (CA); Obiakor vs. State (2002) 10 NWLR (Pt. 776) 612, (2002) 6 SC (Pt. II) 33; Chianugo vs. State (2002) 2 NWLR (Pt. 750) 225, Sule vs. State (2009) 6 MJSC (Pt. II) 70. The proof of the offence of conspiracy is very rarely by direct evidence of the agreement between the conspirators, usually through one or some of them giving evidence thereof, but most often, by inference from facts, evidence, conduct of the conspirators and the over-all circumstances of a case.
This is because Courts have for

a long time now recognized the fact that the offence of conspiracy is in most cases hatched and shrouded in most secrecy by the conspirators and it is not easy to get direct and distinct evidence of the overt agreement reached between them. It is in that regard that the proof of the offence usually becomes a matter of inference/s to be drawn from the peculiar facts and circumstances of a case and the acts or conduct of the conspirators which clearly show the existence of an agreement between them which constitute the offence.
Egunjobi vs. Federal Republic of Nigeria (2002) FWLR (Pt. 105) 896; Ogba vs. State (2007) ALLFWLR (Pt. 361) 1651) 1657, Nwosu vs. State (2004) ALLFWLR (Pt. 218) 916; Balogun vs. Attorney General, Ogun State (2001) FWLR (Pt. 78) 1144; Oduneye vs. State (supra) also reportd in (2001) FWLR (Pt. 38 1203; Adejobi vs. State (2011) LPELR-97(SC); Alarape vs. State (supra); Posu vs. State (2011) 2 NWLR (Pt. 1234) 393, Omotola vs. State (2009) 7 NWLR (Pt. 113) 148.

In the present appeal, the evidence from the Appellant himself in both Exhibit P8 and his evidence before the Lower Court is that he and his friend in Uganda; Fatai and one

“Alhaji” agreed, intended and actually participated in the sending or carrying the concealed cocaine in the semolina bags by the friend directing the Appellant to collect the bags and collecting them and depositing same at the airport for export to Kenya for fees which he received. The evidence of the communication and agreement between the Appellant, Fatai and “Alhaji” on the exportation of the cocaine to Kenya without lawful authority was direct as stated by the Appellant.

The offence of conspiracy is committed and established once evidence shows unequivocally that there was an agreement that is criminal and common to all and between the conspirator, and proof of how they are communicated with each other or among themselves is not necessary. As a matter of fact, the conspirators need not know each other for the purpose of proof of the offence. Aje vs. State (2006) 8 NWLR (Pt. 982) 349,; Nwosu vs. State (supra); Aituma vs. State (2006) ALLFWLR (Pt. 318) 671; Shurumo vs. State (2010) 19 NWLR (Pt. 1226) 73; Obiakor vs. State (supra); Thomas vs. State (2014) LPELR-22989 (CA); Njovens vs. State (1973) 5 SC, 12 (1973) ALL NLR, 371,

Adejobi vs. State (supra). I am in complete agreement with the Lower Court when held at pages 214-5 of the Record of Appeal, that: –
“This Court believe the Defendant knew what he was carrying, if he did not know, his conduct throughout showed he must know and is not just the most careless person on earth. He knew the substance he carried was powdery and it will be subjected to examination at the Airport.”

The story of the Appellant that his alleged friend Fatai, a student in Uganda would call him to receive the semolina bags from an unknown and unidentified “Alhaji” and then send them to another person in Kenya, without questions from him, is such an incredible one that is patently not plausible to believe by an reasonably discerning person. His denial of knowledge of the contents of the semolina bags including the cocaine concealed therein when he was caught up by the law is spurious and only a subterfuge to beguile the Lower Court from his apparent participation in the agreement to export the cocaine to Kenya without lawful authority. The evidence before the Lower Court shows circumstances from which inferences could and

can be drawn that in fact, there was a meeting of the minds or agreement between the Appellant, his alleged friend; Fatai and ”Alhaji” to export the cocaine found in the semolina bags from Nigeria to Kenya without lawful authority and in furtherance of the agreement, the Appellant knowingly and intentionally, took and deposited the bags at Airport for the purpose of sending or carrying them to Kenya, as agreed by the three (3) of them.

The Lower Court for the above reasons is right to have convicted the Appellant for the offence of conspiracy as stated in count II of the charge against him.
In the final result, this appeal is lacking and bereft of merit and it is dismissed.

Consequently, the judgment of the Lower Court delivered on the 7th of December, 2017 in the two (2) counts charge NO. FHC/L/66C/2017 convicting the Appellants of the offences charged is hereby affirmed.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in the draft form, the lead judgment just delivered by my learned brother, the Honourable Justice M.L GARBA, JCA wherein he found the instant appeal as

lacking in merit, and consequently dismissed it.

I agree with the analysis and resolution of the sole issue set down for determination, and I really do not have anything useful to add as the lead judgment has covered and dealt with the issue which the Appellant had raised in his appeal which I also dismissed as it lacks merit.

Appeal is dismissed by me too and I affirm the conviction and sentence passed by the Lower Court on 7th December, 2017.

BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother Mohammed Lawal Garba, JCA that has just been delivered. His Lordship has adequately dealt with the lone issue that arose for determination in this appeal. Having also perused the record of appeal, the vexed judgment and the respective briefs of the parties, I am in total agreement with the reasoning and conclusion reached by His Lordship in resolving the said issue against the Appellant. I find no merit in this appeal and I dismiss it.

I affirm the judgment of the trial Court delivered on the 7th December, 2017 in respect of the Charge NO: FHC/L/66C/2017, by which the Appellant was convicted.

Appeal dismissed.

Appearances:

Bamidele Ibironke Esq. For Appellant(s)

I.J. Igwubori Esq.-ACLO, NDLEA For Respondent(s)