ADELARIN LATEEF & ORS. v. THE FEDERAL REPUBLIC OF NIGERIA
(2010)LCN/3551(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of January, 2010
CA/I/154/09
RATIO
EVIDENCE: WHO VALIDLY TENDERS DOCUMENT
It is quite settled on the authorities and it is a notorious principle of law that it is the maker of a document that should tender the document in any legal proceedings in court.
EVIDENCE: BURDEN OF PROOF IN CRIMINAL PROCEEDINGS
By virtue of Section 138(1) of the Evidence Act, the burden of proof in any criminal proceeding is on the prosecution who must prove its case beyond reasonable doubt. In order to discharge this burden, the prosecution has a duty to establish all the ingredients of the offence with which the accused is charged. Failure to establish even one of the ingredients of the offence amounts to failure to prove the guilt of the accused beyond reasonable doubt. Any doubt arising in the circumstance must be resolved in favour of the accused. See OWE VS. QUEEN (1961) 2 SCNLR 354; HASSAN VS. STATE (2001) 6 NWLR (709) 286; NWEKE VS. STATE (2001) 4 NWLR (704) 588; TANKO VS. STATE (2008) 16 NWLR (1114) 597 AT 636 D-F. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
CRIMINAL LAW: PRESUMPTION OF INNOCENCE
An accused is presumed innocent until proved guilty. See:- OPEYEMI VS. STATE (1985) 2 NWLR (PART 5) 101 AND OMOREGIE VS. THE STATE 2008 18 NWLR (PART 1119) 464. PER SIDI DAUDA BAGE, J.C.A
Justice
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
1. ADELARIN LATEEF
2. RAFIA RAIMI
3. SEGUN RAJI
4. TUNDE LATEEF
5. MONSURU ADEGBOLAAppellant(s)
AND
THE FEDERAL REPUBLIC OF NIGERIARespondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Olatoregun J. of the Federal High Court, Abeokuta Ogun State delivered on the 13th March 2008 in Charge No. FHC/AB/9C/2007 FEDERAL REPUBLIC OF NIGERIA V. ADELARIN LATEEF & 4 ORS in which the learned trial Judge convicted and sentenced the accused persons (now Appellants) on a two counts charge of conspiracy to commit felony and adulterating 77 bags of Dangote Cement with Sand with intent to sell same as genuine cement to the public. The charge at the lower court as contained at page 4 of the Record of Appeal reads as follows:
COUNT 1: That you Adelarin Lateef ‘f’, Rafia Raimi ‘f’, Segun Raji ‘m’, Tunde Lateef and Monsuru Adegbola ‘m’ on or about the 4th June 2006 at Kangudu Village Oke-Ode Obantoko Abeokuta within the jurisdiction of this Honourable Court did conspire to commit a felony to wit: adulteration of cement and thereby committed an offence contrary to section 10(6) and punishable under section 3(18)(a)(i) of the Special Tribunal (Miscellaneous Offences) Act Cap 410 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Act 1999.
COUNT II: That you Adelarin Lateef ‘f’, Rafia Raimi ‘f’, Segun Raji ‘m’, Tunde Lateef ‘m’ and Monsuru Adegbola ‘m’ on the said date, time and place within the jurisdiction of this Honourable Court adulterated seventy-seven (77) bags of Dangote Cement with sand with intent to sell same as genuine cement to the public and thereby committed an offence punishable under section 3(18)(a)(i) of the Special Tribunal (Miscellaneous Offences) Act Cap 410 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential etc) Act 1999.”
Briefly, the prosecution’s case at the Federal High Court was that the Appellants who were accused persons were arrested at Kangudu Village, Obantoko, Abeokuta by villagers who alleged that the said accused were mixing sand with cement and loading the adulterated mixture into Dangote Cement bags purporting them to be genuine with a view to selling them to unsuspecting consumers. The accused denied the charge. The case went on to be tried with the prosecution calling five witnesses while each of the accused persons gave evidence on his or her behalf. A number of exhibits were tendered and admitted in court notably exhibits ‘A-E’ which are confessional statements of the Appellants after a trial within trial by the court, exhibits ‘F-F180’ which are empty new cement bags; exhibits ‘G-G10’ which are filters; exhibits ‘H-H3’ which are funnels; exhibits ‘J’ ‘K’ and ‘L’ which are a shovel, a bucket, and a small bowl respectively etc. At the end of the trial, both counsel for the prosecution and the defence addressed court, and the learned trial Judge in a considered judgment delivered on the 13th March, 2008 convicted all the accused persons on the two count charge and accordingly sentenced them as follows as contained at page 79 of the Record of Appeal:
“On the 1st count, each accused is hereby sentenced to 5 years IHL or a fine of N750,000.00 only.
On the 2nd count, each accused is sentenced to 5 years IHL or a fine of N750,000.00 only. The fines are cumulative, sentences are consecutive.”
It is against this conviction and sentence that the accused have appealed to this Court. The Appellants being out of time in filing their respective Notices of appeal brought applications to do so on the 22nd January, 2009. The said applications were granted with the Appellants granted 21 days to file their Notices of Appeal. Consequent upon the said grant the Appellants within time filed their respective Notices of appeal dated 20th January 2008 and filed on the 9th February 2009. These are all contained at pages 80-104 of the Record of Appeal. The Notices of Appeal which are identical contain five Grounds of Appeal which are reproduced below:
“GROUNDS OF APPEAL
GROUND ONE:
The learned trial Judge erred in law and in fact in holding that the prosecution proved its case against the appellant as charged and therefore convicted the 1st Appellant of the offence of conspiracy to commit felony to wit adulteration of cement and adulterating 77 bags of Dangote Cement with sand with intent to sell same as genuine cement to the public and sentenced him to five years imprisonment or N750,000.00 fine on each count with sentences to run consecutively and fines to be cumulative when the evidence adduced at the trial is insufficient to ground such conviction.
PARTICULARS:
(a) Section 138 of the Evidence Act provides that all ingredients of a crime must be proved beyond all reasonable doubt by the prosecution.
(b) PW3 in his evidence stated that the Exhibits were registered i.e. the 77 adulterated Cement, the 55 Original bags, the 65 bags of sand are now at State cm as they have turned to stone. Rain touched them.
(d) PW2 and PW3 in their evidence never said they released any quantity of Cement to PW5 the Group Head Security of Dangote Group to warrant the admission of Exhibit ‘U’ through PW5.
(e) There was material contradictions in the evidence of prosecution witnesses PW3 gave evidence to the effect thus “We sent the sample of the adulterated cement to Dangote Company in Apapa with a letter. The company replied us that it was fake cement”. The prosecution throughout the trial failed to tender the company’s report indicating that the cement was adulterated, without which it is impossible to conclude that the cement was fake.
GROUND TWO:
The Learned trial judge erred in law by relying on Exhibit ‘U’ to hold that”The report of the analysis is admissible and useful to the extent of showing that the cement had been tampered with. I have no problem with placing reliance on Exhibit ‘U’.
PARTICULARS:
(a) By the provisions of the Evidence Act, Cap 112 LFN 1990 and the common law, Exhibit ‘U’ relied upon by the court are clearly inadmissible hearsay evidence, having been tendered by PW5 who is not the maker but Group Head Security of Dangote Group.
(b) There was no evidence on record by prosecution witnesses that they released any bag of cement whether adulterated or genuine to PW5 Group Head Security of Dangote Group.
(c) This Exhibit ‘U’ is clearly inadmissible both in common law and under the Evidence Act, and in the absence of this Exhibit ‘U’, the issue as to whether the (cement was adulterated or not would not be known/could not be established). The issue of 1st Appellant been guilty of adulterating cement had not been established by the prosecution.
GROUND THREE:
The learned trial Judge erred in law to admit and to rely on Exhibit A-E, M-P and I, Exhibit N, O and P in holding that “I am satisfied that the Accused person have the opportunity to commit the offence. As I have stated earlier, there are facts outside the confession which shows it to be true.
PARTICULARS:
(a) There was unchallenged evidence of the Appellant under trial within trial detailing the various act of torture she has suffered in the hand of policemen during the cause of obtaining Exhibit ‘A’ from her.
(b) By the provisions of the Evidence Act, Cap E12 LFN 1990 and the common Law, Exhibits N, C and I relied upon by the court are clearly inadmissible hearsay evidence, proper foundation not having been made before admitting it through PW3, who is not the police officer that obtained the Statement.
GROUND FOUR:
The learned trial Judge erred in law and in fact when he held the Appellant had intention of selling adulterated cement to the public.
PARTICULARS:
(a) The prosecution did not lead any evidence in proof of intent to sell adulterated cement to the public against the 1st Appellant.
GROUND FIVE:
The learned trial Judge erred in law when he sentenced the Appellants to five years imprisonment on each of the two counts charge or a fine of N750,000.00 on each of the two counts charge with sentences to run consecutively and fines cumulatively.
PARTICULARS:
i. Appellants are first offenders.
ii. The court agreed that they have learnt their lessons i.e. are remorseful.
iii. No reason was given for the sentence or fines nor for its running consecutively or fines to be cumulative.
iv. The sentence was excessive.”
From the five grounds of Appeal, the Appellants formulated in the Appellant’s Brief of Argument dated the 10th June, 2009 and filed on the 11th June 2009, the following three issues which are contained at page 3 of the said brief-
1. Whether from the totality of the evidence led at the trial the learned trial Judge was right to have convicted the Appellants on the two counts of conspiracy and adulteration of Dangote cement.
2. Whether the learned trial Judge was right in relying on exhibit ‘U’ to find adulteration and thereby using it to convict the Appellants.
3. Whether the learned trial Judge has exercised his discretion judicially and judiciously in sentencing the Appellants to 5 years imprisonment with option of fine of N750,000.00 (seven hundred and fifty thousand Naira) in view of his finding that the Appellants were first offenders who have learned their lessons.
The Appellants by their motion on Notice dated the 4th August 2009 and filed on the 6th August 2009 and brought pursuant to Order 17 Rule 11 of the Court of Appeal Rules 2007 and the inherent jurisdiction of this Court prayed this Court for an order setting down this appeal for hearing on the Appellant’s Brief of Argument alone, the Respondent having failed to file its brief of Argument in this appeal. The applications were heard and granted on the 22nd October 2009, and with this grant the appeal became ripe for hearing based on the Appellant’s Brief of Argument alone.
On the 11th January, 2010 when this appeal came up for hearing, Olusola Idowu, with him A. O. Adeleye (Miss) adopted and relied on the Appellant’s Brief of Argument earlier referred to dated the 10th June, 2009 and filed on the 11th June, 2009 and urged this court to allow the appeal and set aside the judgment of the lower court.
The Appellants have in their Brief of Argument argued issues 1 and 2 together. The said two issues are as follows:
Issue 1 – Whether from the totality of the evidence led at the trial the learned trial Judge was right to have convicted the Appellants on the two counts of conspiracy and adulteration of Dangote Cement.
Issue 2 – Whether the learned trial Judge was right in relying on Exhibit ‘U’ to find adulteration and thereby using it to convict the Appellants.
I think issue 2 can be treated under issue 1 in so far as issue 1 deals with the totality of the evidence led at the trial in the court below including the admission and use of exhibit ‘U’ by the court while issue 3 now becomes issue 2.
The issues for determination therefore will now be:
ISSUE 1- Whether from the totality of the evidence led at the trial the learned trial Judge was right to have convicted the Appellants on the two counts of conspiracy and adulteration of Dangote cement.
ISSUE 2 – Whether the learned trial Judge has exercised his discretion judicially and judiciously in sentencing the Appellants to 5 years imprisonment with the option of fine of N750,000.00 (seven hundred and fifty thousand Naira) in view of his finding that the Appellants were first offenders who have learned their lessons.
There is really no departure from the issues formulated in-the Appellant’s Brief of Argument save that arguments relating to exhibit ‘U’ with respect to adulteration of cement will now be treated as part and parcel of issue 1 while issue 3 now becomes issue 2.
On issue 1, Appellants have submitted that the said issue relates to Grounds 1, 2, 3 and 4 of the Grounds of Appeal filed by each of the Appellants and that in Criminal proceedings the burden of proving the guilt of the accused persons is on the prosecution and such proof must be beyond reasonable doubt. The ingredients of the offence under which the Appellants are charged according to Appellant’s counsel are as follows:
1. Proof that the Appellants adulterated the cement;
2. Intention to sell same as the manufactured product; and
3. Without notice to the purchaser;
4. That the Appellants knew that the adulterated goods will be sold as the manufactured product.
On the first ingredient which is the requirement of proof that the Appellants adulterated the Cement, Appellants submitted that adulteration in the con of the law means fake or counterfeit and that the prosecution must prove adulteration of the cement which is to say that the cement allegedly claimed to have been adulterated must have been scientifically tested and compared with the original product by an expert. The Appellants went on further to submit that the only evidence offered by the prosecution to prove adulteration in this charge was by PW5 whose evidence at page 46 of the Record of Appeal was as follows, ‘We took two bags of cement, one that was tampered with and the other not tampered with to the head office where I originated a letter to quality control Management’. PW5, it was submitted further gave evidence that the report of the test was sent to him. The said Report was admitted by the Court as exhibit ‘U’ and relied upon in convicting the accused/Appellants even though PW5 through whom exhibit ‘U’ was tendered was neither the maker of exhibit ‘U’ nor an expert trained in the analysis of fake or genuine products and who in his naivety on the subject of adulteration admitted under cross-examination that he did not know the components of a 50 kg bag of Dangote cement and had earlier stated in his evidence-in-chief that he was the group head of security of Dangote Company. PW5, it was submitted by the Appellants did not say anything about the contents of exhibit ‘U’ and the man who prepared exhibit ‘U’ was never produced in Court for cross-examination even though he is part of the Dangote group. Appellants went further to submit that the learned trial judge mixed up the issue of admissibility of documents in evidence and the probative value to be ascribed to such documents as these two are distinct issues. Reliance was placed on DALEK NIG. LTD. V. OMPADEC (2007) 7 NWLR PART 1033 page 402 at 441 paras. E-F. The Appellants therefore submitted that in the absence of the maker of exhibit ‘U’ in Court and the failure of the prosecution to produce him for cross-examination, the said exhibit ‘U’ has no probative or evidential value and the learned trial Judge was wrong to have placed heavy reliance on it in coming to the conclusion that the accused persons tampered with or adulterated the original cement. The court was urged by the Appellants to invoke the provisions of section 149(d) of the Evidence Act against the prosecution.
It is the contention of the Appellants that the evidence of PW3 at page 29 of the Records and that of PW5 at page 35 of the Records as to how the purportedly adulterated cement got to the laboratory for analysis is conflicting and contradictory and the contradiction is material enough in proof of adulteration of cement which is an essential ingredient of the crime that the accused/Appellants are charged with. These material contradictions the Appellants contended create doubts not only as to whose version should be believed as between PW3 and PW5 but as to whether the bags of cement analysed in exhibit ‘U’ were the ones that PW5 took from the police. It is the Appellant’s contention that it cannot easily be ascertained which cement was analysed in exhibit ‘U’ because of the conflict in evidence of PW3 and PW5 on how the cement went for analysis. The Appellants took a swipe at the evidence of PW1 that the Appellants were mixing, sand and cement and reloading it into Dangote Polythene bags as evidence not amounting to proof of adulteration under the law as adulteration can only be proved scientifically and not by the ipso facto evidence of PW1 who is only a football coach and not an expert in this field. Appellants have stated that apart from PW1, no other prosecution witness said he saw the accused persons commit the offence and the learned trial Judge relied on facts that some items particularly exhibits F-F180, G-G10, H-H3, J, K and L were recovered from the scene of the crime which corroborated the account in the statements of the accused persons as well as the evidence of PW1 when the Appellants in fact denied the charge and stated in their evidence in court that they were on a mission to clear the land bought by the 1st Accused/Appellant in a new area just being developed by people and it is not uncommon to find such exhibits that are listed in exhibits F-L in such an area.
On the next ingredient contained in the charge under S. 3(18)(a)(i) which is the intention by the Appellants to sell the adulterated cement as the manufactured product, Appellants submitted that PW1 did not state that he saw the Appellants offering the adulterated product for sale. PW2, PW3 and PW4 are police officers who only saw the Appellants after they had been arrested while PW5 is the Security Officer of Dangote Company. The Appellants have contended that even though adulteration of cement by them is not conceded, there is no evidence that further steps like exhibiting the bags of cement for sale to prove intent has been established against them and in the absence of proof of intent to sell adulterated cement, it was wrong for the trial Judge to have convicted them as charged.
On the ingredient of intent by the Appellants to sell the cement without notice to the purchaser, the Appellants submitted that the prosecution must prove that the Appellants offered the cement for sale without informing prospective purchasers that the cement is fake or adulterated. To prove this, the prosecution must prove where and how the Appellants offered the cement for sale arid call the prospective purchasers who in turn will have to give evidence that the Appellants offered the products to them for sale without informing them that it was fake or adulterated. As this piece of evidence was lacking in the prosecution’s case it was wrong for the learned trial Judge to have convicted the Appellants when such an important ingredient was not proved.
On the ingredient that the prosecution must prove that the Appellants knew that the adulterated cement will be sold as the manufactured product, the Appellants submitted that before the prosecution can prove this, the Appellants must have shown some overt acts to advertise or display the adulterated cement and that such evidence being lacking, the Court was wrong to have convicted the Appellants. Appellants submitted that in the absence of proof of these essential ingredients in section 3(18)(a)(i) of the Special Tribunal (Miscellaneous Offences) Act Cap 410 Laws of the Federation of Nigeria 1990, the learned trial Judge ought to have discharged and acquitted the Appellants on the two count charge. Appellants have submitted that the unreliability of exhibit ‘U’ apart, it was wrong for the trial Judge to have relied on the statement of the Appellants in convicting them when Appellants had denied that the statements were made voluntarily. While conceding that the position of the law is that an accused person can be convicted solely on his confessional statement, Appellants submitted that such confessional statements must be direct and willingly made. Reliance was placed on NWACHUKWU V. THE STATE (2007) 17 NWLR PART 1062 page 31 at 65. It was contended that the Appellants denied the voluntariness of their statements – exhibits A-E which made the learned trial Judge to order a trial within trial after which trial within trial, the lower court admitted the statements as exhibits A-E and eventually relied on the said statements to convict the Appellants. Appellants submitted that the admissions of the statements as exhibits A-E is wrong as the finding of the learned trial Judge at pages 32-33 of the Record that he had no evidence to support the issue of beating and slapping is not supported by evidence led during the trial within trial proceedings where all the Appellants at pages 23-26 of the Record of appeal gave evidence of beating, torture and duress exerted on them by the police to procure their statements. The Appellants stated that they (the Appellants) were never cross-examined by the prosecution on the evidence they (the Appellants) gave regarding torture, slapping and beating in the course of the trial within trial proceedings and the position of the law is that failure to cross-examine the Appellants by the prosecution during trial within trial is an admission of all that was said by the Appellants during the trial within trial, as the pieces of evidence emanating from the Appellants were deemed admitted by the prosecution. Reliance was placed on WAZIRI V. THE STATE (1997) 3 NWLR PART 496, page 689 at 721. Appellants submitted that if the evidence of the Appellants during the trial within trial are deemed admitted by the prosecution, the involuntariness of their statements would have been proved and exhibits A-E would have been inadmissible and it would then be wrong in law for the learned trial Judge to rely on them in convicting the Appellants. Appellants therefore submitted under this issue that the essential ingredients of the charge not having been proved or established by the prosecution and the decision of the lower court not having been supported by evidence is perverse and liable to be set aside by this Court.
I think that a good starting point in the consideration of this issue is to examine the offence under which the Appellants were charged. The Appellants were charged with the offence of conspiracy to commit a Felony and adulterating 77 bags of Dangote cement with sand with intent to sell same as genuine cement to the public which is an offence punishable under section 3(18)(a)(i) of the Special Tribunal (Miscellaneous Offences) Act Cap 410 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Act 1999. Section 3(18)(a)(i) of the Act states as follows:
“Any person who adulterates any petroleum, petroleum product, good, drink, drug, medical preparation or any manufactured or processed product whatsoever so as to effect or change materially the quality, substance, nature of efficacy of such petroleum, petroleum product, good, drink, drug, medical preparation or manufactured or processed product, intending to sell same as petroleum, petroleum product, good, drink, drug, medical preparation or manufactured or processed product as the case may be without notice to the purchaser or knowing that the same will be sold as petroleum product, good, drink, drug, medical preparation or manufactured or processed product shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding 14 years without option of fine.”
Undoubtedly the phrase ‘or any manufactured or processed product whatsoever’ fits the adulteration of cement for which the Appellants are charged. I have very carefully examined the breakdown of the ingredients of section 3(18)(1)(i) itemized in paragraphs 4.03 page 4, 4.11 and 4.12 page 9 and paragraph 4.13 page 10 of the Appellant’s Brief of Argument and already stated in this write-up and find no reason to disagree that they are in essence the proper ingredients of the offence under which the Appellants are charged and no more. Issue 1 covers the first four of the five Grounds of Appeal contained in each of the notices of Appeal and is being treated constantly bearing in mind the ingredients of the offence for which the Appellants are charged, all the pieces of evidence adduced which are considered relevant including the exhibits and the judgment of the lower court being appealed against.
It is pertinent at this juncture to state that the first count is for conspiracy to commit a felony, to wit adulteration of cement bags. The second count is for the actual adulteration of Dangote bags of cement.
From the evidence adduced by the prosecution in this case in the court below, the count of conspiracy is based on the same facts or set of facts as those of the substantive offence of adulteration and where that is the case courts are enjoined to deal with the substantive charge first. This is just as well because should the substantive charge be unproven, there would indeed be no conspiracy to commit the substantive offence.
Section 138(1) of the Evidence Act provides as follows:
(1)’If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt’
(2) ‘The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of section 141 of this Act, on the person who asserts it, whether the commission of such is or is not directly in issue in the action’.
The interpretation to be given to these two subsections of section 138 of the Evidence Act is that the burden of proving the commission of the offence under which the Appellants are charged is on the prosecution and such proof must be beyond reasonable doubt.
The first and I must say crucial and vital ingredient of the substantive offence under section 3(18)(a)(i) is the question of adulteration of the Dangote Cement by the Appellants and the burden of proof rests squarely on the shoulders of the prosecution and proof of such adulteration must be by some scientific method acceptable to law as for example by an expert versed in that field who has compared the result of the test of the allegedly adulterated cement with the original and genuine cement. Any other evidence adduced as to adulteration in the absence of such scientific-test will not suffice. Such a test or analysis appears to have been carried out as borne out by the records. PW5, Joshua Madami who is the Group head security of Dangote Company said at page 46 of the Records, ”We took two bags of cement, one that was tampered with and the other not tampered with to the head office where I originated a letter to Quality Control Management”. He went on to say that he collected the result of the cement analysis from the laboratory and gave it to the police. J. G. Popogbe prosecuting sought to tender the result of the laboratory test or analysis through PW5 Joshua Madami. O. A. Bankole counsel for the Appellants objected on the ground that the document embodying the cement analysis was not made by the witness and no foundation was laid for its admissibility. The learned trial Judge overruled counsel and admitted the document as exhibit ‘U’ on the ground that the witness had originated the test and was in a position to tender the document. Under cross-examination by O. A. Bankole, PW5 Joshua Madami said he did not know the components of a 50 kg Dangote bag of cement. See pages 46 and 47 of the Record of Appeal. It is necessary at this stage to pause and ask the question whether the learned trial Judge properly admitted exhibit ‘U’. It is quite settled on the authorities and it is a notorious principle of law that it is the maker of a document that should tender the document in any legal proceedings in court. Is PW5 Joshua Madami the maker of exhibit ‘U’? The evidence of PW5 Joshua Madami at page 46 of the Records is that he ‘originated a letter to quality management’. He did not say that he was the maker of exhibit ‘U’. Of course, he could not have been the maker as a security man and he exhibited his naivety over this specialized field of study when under cross-examination at page 47 of the Record she admitted that he did not know the components of a 50 kg bag of Dangote cement. Apart from tendering Exhibit ‘U. PW5 gave no evidence of the contents of the said Exhibit ‘U’ which is just as well because he was clearly not the maker of that document. The learned trial Judge was clearly in error in admitting exhibit ‘U’ in that regard. There is no iota of doubt that Exhibit ‘U’ is critical to the determination of the question as to adulteration. Why was the analyst who carried out the tests on the cement and who wrote the report now wrongly admitted by the lower court as Exhibit ‘U’ not produced to tender the said report? Even more intriguing is his non-production in Court to throw more light on the report he had prepared even though he is of Dangote Company. This is a very serious lapse on the part of the prosecution. PW1 Olalekan Moses is a football coach with the police. The Records do not say whether he is a policeman. His evidence at page 11 of the Record of Appeal is that he saw the Appellants ‘mixing sand with cement and reloading it into Dangote Polythene bag’. He appears to be the only eyewitness on record on what transpired on the day of the incident. His evidence is not very useful to the prosecution’s case as it does not take the place of a proper laboratory analysis of the purportedly adulterated cement and the original unadulterated cement. The learned trial Judge had alluded to the fact that 77 bags of already adulterated and rebagged cement were recovered at the scene along with other items notably:
1. 181 Empty New Cement Bags
2. 11 Filters
3. 4 Funnels
4. 1 Shovel
5. 1 Bucket
6. 1 Small bowl
7. 55 bags of original Dangote cement
8. 65 bags of sand.
These were all admitted as exhibits F-F180, G-G10, H-H3, J, K, L etc. Mere possession of these recovered items by the Appellants is not enough to incriminate them except there is proof by the prosecution beyond reasonable doubt that they were being used to perpetrate an unlawful act. As has already been decided earlier in this write-up, the bags of cement sent to the laboratory for analysis as to determine whether the ones allegedly adulterated were indeed so adulterated failed the test of admissibility when the report of the analysis carried out was tendered through PW5 who was not the maker of the document and the actual maker was not brought for cross-examination. I find this intriguing and the Appellants have urged this Court to invoke the provisions of section 149 of the Evidence Act to presume the existence of any fact which it thinks likely to have happened. Section 149(d) of the Evidence Act provides that:
”The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events and human conduct and public and private business in their relation to the facts of the particular case and in particular the Court may presume that evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it”.
The evidence of PW5 is that he originated a letter to Quality Control Management of the Dangote Company. Why was the author of exhibit ‘U’ who prepared the analysis and who could easily be reached not produced in Court to tender the report of his analysis and throw more light on the job he had been called upon to do? Would the Court be wrong to infer that his piece of evidence would have been unfavourable to the prosecution? While the Court is desirous to refrain from this conclusion the bottom line is that Exhibit ‘U’ which would have settled the issue of adulteration of cement once and for all has been rejected not having been tendered by its maker. I will say a bit more about the items recovered at the scene. They include 181 empty new cement bags, 11 filters, 4 funnels, 1 shovel, 1 bucket, 1 small bowl, 55 bags of original Dangote cement, 65 bags of sand etc, which were tendered and admitted as exhibits ‘F-F180’, ‘G-G10’, ‘H-H3’, ‘J’, ‘K’, ‘L’ etc. I had said earlier that the presence of the said items by themselves do not show any criminal intent. PW1 had testified that the entire area is a new area that is presently being developed by people. Just about any material used for building purposes could be found in such places without raising eye brows except perhaps the allegedly adulterated bags of cement which however lack proof of adulteration for reasons which I have said for the umpteenth time.
I will now turn my attention to the other ingredients of the offence under section 3(18)(a)(i). They have been already itemized into four and need no reproduction. Suffice it to say that the prosecution appears to have completely shut its eyes on these other ingredients preferring to concern itself with the question of adulteration of cement only. Little or no evidence was adduced by the prosecution as to whether the Appellants intended to sell the allegedly adulterated bags of Dangote cement as the manufactured product and without notice to the purchaser and whether the Appellants knew that the allegedly adulterated cement will be sold as the manufactured product. These are all ingredients of the offence under section 3(18)(a)(i) and the submissions of counsel for the Appellants which have been highlighted in this write-up are sound and unassailable.
I will now concern myself with the statements made by the Appellants. The Appellants denied the voluntariness of Exhibits A-E which made the learned trial Judge to order a trial within trial and the said statements were thereafter admitted as exhibits A-E and relied upon by the learned trial Judge. What is a trial within trial? It does happen sometimes that an accused person facing a criminal trial in court protests to the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been voluntarily made by him having been obtained under duress or some threat of whatever nature or intimidation or actual physical torture to his person.
It becomes at this stage necessary for the Court to temporarily halt the main trial upon which the accused person is facing trial and conducts a mini trial within the con of the main trial to try to determine the veracity of the account of the accused person as to whether his statement to the police was voluntarily made or not. It takes the form of a normal trial as witnesses are called to give evidence and are subject to cross-examination by the other side. The Court proceeds to write a ruling either admitting the statement of the accused or rejecting same after which the normal trial temporarily suspended continues. Appellants have submitted that the finding of the trial Judge admitting Exhibits A-E was wrong having not been supported by evidence led during the trial within trial. The learned trial Judge according to the Appellants had said at pages 32-33 of the Records as follows: “I do not have any evidence to support the issue of beating and slapping and that the room was filled with policemen with each contributing to the beating”. Appellants contended that each accused/Appellant gave evidence of the beating, torture and duress exerted on them by the police to procure their statements. They submitted that they were never cross-examined by the prosecution on the evidence of torture, slapping and beating. Counsel for the Appellants has submitted that the law is very clear and it is that failure to cross-examine the accused persons by the prosecution during trial within trial is an admission of all that was said by the accused persons during the trial within trial and that the pieces of evidence coming from the accused/Appellants on this issue were deemed admitted by the prosecution. Reliance was placed on WAZIRI V. STATE (1997) 3 NWLR PART 496 page 689 at page 721.
I have gone through the proceedings of the 2nd July, 2007 which are contained at pages 23-26 of the record of Appeal. At the trial within trial on that day, the following evidence was adduced by the Appellants-
“1st Accused Adelarin Lateef-
On the day I made my statement I was brought out at 12 midnight. One policeman gave me a slap and asked me what happened. I told him I did not know anything about the offence alleged. He also used a stick to beat me. It was the policeman and the other beating me with stick and belt. He then wrote. I did not know what he wrote.
Cross-examination – Nil
Re-examination – Nil
2nd Accused
Rafia Raimi – When we were taken to the Police Station it was late at night. I had menstrual pain and they told me I was not speaking out, I was given a dirty slap. They then started to beat me. I denied knowing anything about the case.
Cross-examination – Nil
Re-examination – Nil
3rd Accused
Segun Raji – I told them I was in the place to clear the land. They tortured me. I did not read what they wrote. They read it to me and I told them that was not what I told them to write. I raised the objection; they slapped me. Each person who came in slapped me. There were so many policemen in the room. I was not taken before any superior officer.
Cross-examination – Nil
Re-examination – Nil
4th Accused.
Tunde Lateef – They were so many in the room and the room is big. I denied the charge. They used stick to beat me to confess. I told them I did not know anything about the offence. The statement was not read to me. There were so many policemen in the room and they all beat me.
Cross-examination – Nil
Re-examination – Nil
5th Accused person
Monsuru Adegbola – They told me I was involved in the cement business. At that stage, they started to beat me. They hit my head on the floor. They used belt on me. They beat me recklessly. The statement was not read to me. I did not also read the statement.
Cross-examination – Nil
Re-examination – Nil”
From the records at pages 23-26, the learned trial Judge could not have been right when he said at pages 32-33 as follows:
“I do not have any evidence to support the issue of beating and slapping and that the room was filled with policemen with each contributing to the beating. I am satisfied that there was no duress and Exhibits A-E were not made as a result of such duress. I find each statement admissible. Accordingly the statements are hereby admitted and marked Exhibits A-E”.
From the records, it is clear that each accused person gave evidence of beating, torture and duress meted out to them in obtaining their statements. It is also clear that there was no cross-examination of any of the accused/Appellants after they had given their evidence in the trial within trial proceedings. In WAZIRI V. THE STATE (1997) 3 NWLR PART 496 page 689 at page 721 the position of the law as to failure to cross-examine a witness in a proceeding was stated as follows:
“It is an established principle of law that where an adversary or a witness called by him testified on a material fact in controversy in a case, the other party should if he does not accept the witness’ testimony as true, cross-examine him on that fact or at least show that he does not accept the evidence as true. Where as in this case, he fails to do either, a Court can take his silence as an acceptance that the party does not dispute the fact. After all one of the main purposes of cross-examination is to test the veracity of a witness”.
It is very surprising that there was no cross-examination of the – Appellant’s testimony of beating, slapping and other unwholesome acts perpetrated on them while obtaining their statements during the trial within trial proceedings. The learned trial Judge was again clearly in error to have admitted Exhibits A-E which is the statements of the Accused/Appellants after the trial within trial proceedings. The Appellant’s statements exhibits ‘A-E’ were not voluntarily made and it was wrong for the trial Judge to have attached so much weight on them. Count 2 which deals with the substantive offence of adulteration therefore fails. That being the case, Count 1 which deals with conspiracy to commit the substantive offence of adulteration of cement cannot stands. Counts 1 and 2 being part and parcel of the argument in issue 1, issue 1 is therefore resolved in favour of the Appellants.
Issue 2, which is as to whether the learned trial Judge has exercised his discretion judicially and judiciously in sentencing the Appellants to 5 years imprisonment with option of fine of N750,000.00 (Seven hundred and fifty thousand Naira) in view of his finding that the Appellants were first offenders who have learnt their lessons is now no longer tenable and of mere academic interest if the Appeal had failed.
The appeal succeeds and is allowed and the judgment of Olatoregun J. of the Federal High Court, Abeokuta, Ogun State in Charge No. FHC/AB/9C/2007 FEDERAL REPUBLIC OF NIGERIA V. ADELARIN LATEEF & 4 ORS delivered on the 13th March, 2008 is hereby set aside. In its place, I enter a judgment of not guilty of the offence charged and I hereby discharge and acquit all the accused persons.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the privilege of reading in draft the judgment of my learned brother, Alagoa, JCA just delivered. I agree with his reasoning and conclusion that there is merit in the appeal and it should be allowed.
By virtue of Section 138(1) of the Evidence Act, the burden of proof in any criminal proceeding is on the prosecution who must prove its case beyond reasonable doubt. In order to discharge this burden, the prosecution has a duty to establish all the ingredients of the offence with which the accused is charged. Failure to establish even one of the ingredients of the offence amounts to failure to prove the guilt of the accused beyond reasonable doubt. Any doubt arising in the circumstance must be resolved in favour of the accused. See OWE VS. QUEEN (1961) 2 SCNLR 354; HASSAN VS. STATE (2001) 6 NWLR (709) 286; NWEKE VS. STATE (2001) 4 NWLR (704) 588; TANKO VS. STATE (2008) 16 NWLR (1114) 597 AT 636 D-F.
In the instant case, the appellants were charged under section 3 (18) (a) (i) of the Special Tribunal (Miscellaneous) Offences Act Cap 410 LFN 1990 with conspiracy to commit a felony to wit: adulteration of cement and adulteration of 77 bags of ‘Dangote’ cement. Section 3(18)(a) (i) of the Act provides:-
“(18) (a) Any person who- (i) adulterates any petroleum, petroleum product, food, drink, drug, medical preparation or any manufactured or processed product whatsoever so as to effect or change materially the quality, substance, nature or efficacy of such petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product, intending to sell same as petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product, as the case may be, without notice to the purchaser or knowing that the same will be sold as petroleum product, food, drink, drug, medical preparation or manufactured or processed product, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding 14 years without option of fine”
The prosecution was therefore under a duty to establish the following facts.
1. That the accused persons adulterated the product.
2. The intention to sell same as the manufactured product.
3. without notice to the purchaser and/or
4. That the accused persons knew that the adulterated goods would be sold as the manufactured product.
A careful examination of the evidence of all the prosecution witnesses, particularly PW1 and PW5, shows that the prosecution only led evidence to establish the first ingredient of the offence to wit: adulteration of 77 bags of Dangote cement. Thus, even if they were able to prove this ingredient, which they failed to do in the instant case, the evidence led fell far short of the standard required to secure a conviction, having failed to establish the other ingredients of the offence. On this ground alone, the appellants were entitled to an acquittal.
Furthermore, a vital piece of evidence in this case was Exhibit ‘U’ tendered by PW5. At page 46 of the record he testified thus:
“On 16/6/06 the management of Dangote informed me that some people in Abeokuta were arrested in Abeokuta by the Police for adulterating Dangote cement. I came to Abeokuta with one Taiwo, one of my staff. We were shown the empty bags recovered and some bags of cement and some bags of sand and the equipment used to adulterate the cement. I asked my staff to make statement. We took two bags of cement, one that was tampered with and the other not tampered with to head office where I originated a letter to quality control management. The report of the test was sent to me. I collected the result from the laboratory and I gave it to the police.”
The report was admitted in evidence as Exhibit U. Under cross-examination at page 47 of the record he stated inter alia:
“I am a security expert. I do not know the components of 50kg Dangote cement”.
PW5 was clearly not an expert in adulterated cement. He was also not the maker of Exhibit U. The maker of Exhibit U was not called to testify. It was therefore not possible to subject the findings contained in Exhibits U to any kind of test. The maker of Exhibit U was a vital witness in the circumstances of this case. The failure of the prosecution to call him to testify certainly raised some doubt in the case. The doubt ought to have been resolved in favour of the Appellants.
For these and the more detailed reasons contained in the lead judgment, I also allow the appeal. I abide by all the consequential orders as contained in the lead judgment.
SIDI DAUDA BAGE, J.C.A: I have read in advance the judgment delivered by my learned brother, STANLEY SHENKO ALAGOA, JCA.
I agree with his reasoning and decision in allowing the appeal and setting aside the judgment of the trial Court.
An accused is presumed innocent until proved guilty. See:- OPEYEMI VS. STATE (1985) 2 NWLR (PART 5) 101 AND OMOREGIE VS. THE STATE 2008 18 NWLR (PART 1119) 464. The trial Court ought to have considered the defence of the Appellants.
I also discharge and acquit the Appellants. I abide by the consequential order in the lead judgment.
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Appearances
Olusola Idowu Esq. [with him O. A. Adeleye (Miss)]For Appellant
AND
No Counsel for the Respondent.For Respondent
