ABANU JOSEPH EGA v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12915(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/B/266C/2013
RATIO
COURT AND PROCEDURE: PROOF BEYOND REASONABLE DOUBT
“It is trite that in criminal trial, the prosecution is expected to prove the guilt of the accused beyond reasonable doubt. In ADUN V. OSUNDE (2003) 16 NWLR (PT. 847) 643 @ 670 PARAS C-D it was held that where an alleged crime has not been proved beyond reasonable doubt, any lingering doubt must be resolved in favour of the accused person. In the same case of ADUN V. OSUNDE @ Page 666 paras B-D it was held thus ?proof beyond reasonable doubt excludes mere possibilities?. In the instant case however, there are possibilities other than the fact that the Appellant had possession of the Indian hemp, this to mind creates a serious doubt in the case of the prosecution.
To my mind, the case of the prosecution is hinged principally on suspicion, which cannot ground a conviction. In UGHENEYOVWE V. STATE (2004) 12 NWLR (PT.888) 626 @ 649 PARAS G-H the point was admirably made thus mere suspicion, no matter how strong can never found a conviction in the absence of cogent and compelling evidence which must be strong as to leave no room for reasonable doubt.” PHILOMENA MBUA EKPE, J.C.A.
COURT AND PROCEDURE: WHERE THE ACCUSE LIES
“It is also imperative to state that the fact that an accused person lied is not proof of his guilt. It is also not evidence of commission of any offence, see UGHENEYOVWE V. STATE (SUPRA) @ 649-650 PARA G-A.”
Before Their Lordships
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
Between
ABANU JOSEPH EGAAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Hon. Justice M.B. Idris of the Federal High Court, Benin Division delivered on the 31st day of March, 2010 in Suit No. FHC/B/CS/39C/2008 wherein the learned trial judge convicted the Appellant of the offences of knowingly possessing 504 kilograms of Indian hemp without lawful authority and for unlawfully permitting his premises to be used for the storage and or concealing Indian hemp.
SUMMARY OF RELEVANT FACTS:
The Appellant was arraigned on a two count charge of unlawful possession of 504 kilograms of Indian hemp also known as Cannabis Sativa, and unlawfully permitting the use of his premises for storage, concealing or dealing in Indian hemp. The Appellant upon arraignment pleaded not guilty to the two count charge. In proof of its case, the Respondent called six witnesses and tendered twenty five exhibits. The Appellant on his part, testified in his own defence and called no other witness.
The case of the Respondent essentially was that on 20th day of November 2007, operatives of the National Drug Law Enforcement Agency raided Lagos Camp in Ilushi Village, Esan South East Local Government Area of Edo State. The operatives recovered 504 kilograms of Indian hemp and arrested Mercy, one of the wives of the Appellant and one John Emetajo.
The substance recovered from the premises tested positive for Indian hemp, otherwise known as cannabis sativa.
Thereafter, on the 8th day of April 2008, the Appellant was arrested and he volunteered a statement which was tendered and admitted in exhibit as exhibit P7. On his part, the Appellant admitted establishing Lagos camp where the Indian hemp was recovered, but stated that the substance belonged to one Aliyu, who kept the substance in the room of one Mercy and when he discovered this he was angry with Aliyu and requested him to remove the substance but before he could do so, operatives of the NDLEA had raided the camp.
The learned trial judge after evaluating the evidence of both parties, and after considering the final addresses of counsel on both sides, convicted the Appellant on both counts and sentenced him to 16 years imprisonment.
NOTICE AND GROUNDS OF APPEAL:
Being dissatisfied with his conviction, the Appellant via a Notice of Appeal filed on the 29th day of June, 2010, appealed to this Court. Sequel to an order of this Court, an Amended Notice of Appeal dated 5th October, 2014, but filed on 3rd February, 2015 was deemed as properly filed on the 9th day of May, 2017.
The Amended Notice and Grounds of Appeal shorn of its particulars is reproduced herein:
Ground One:
The learned trial judge erred in law when he convicted and sentenced the Appellant to 16 years imprisonment for knowingly possessing 504 kilograms of Indian hemp and permitting his premises to be used for storing same respectively.
Ground Two:
The learned trial judge erred in law in convicting the Appellant of the offence of unlawfully permitting his premises to be used for the storage, concealing or dealing in 504 kilograms of Indian hemp punishable under Section 12 of the NDLEA Act Cap 30 Laws of the Federation of Nigeria, 2004.
Ground Three:
The learned trial judge erred in law when he held as follows:
I have no doubt in my mind that Exhibit P7 is what is described as a confessional statement. It is clear from the evidence before me that the statement was made voluntarily. Exhibit P7 is direct, pristine and unequivocal as far as the charges are concerned. Its exhibit is to me sufficiently informative, intelligible and pristine.?
Ground four:
The judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence.
ISSUES FOR DETERMINATION:
By a brief of Argument dated and filed on 5th of March 2018, the Appellant distilled the following issues for determination:
a. Whether the learned trial judge was right in convicting the Appellant on the two count charge of knowingly possessing 504 kilograms of Indian hemp without lawful authority and for permitting his premises to be used for storing, concealing and dealing in same when there was no credible evidence to support such a decision? (Grounds 1, 2 and 4 of the Notice of Appeal).
b. Whether Exhibit P7 amounted to or qualified as a confessional statement? (Grounds 3 of the Amended Notice of Appeal).
On its part, the Respondent in its Brief of Argument dated and filed on 25th day of April 2018, but deemed as properly filed on 23rd of January 2019, formulated a sole issue for the determination of the appeal, to wit:
Whether in the circumstances of this case, the learned trial judge was right in convicting the Appellant on both counts of the charge based on the evidence and materials before him.
Having perused the Notice of Appeal and the issues distilled therefrom by both parties, I am of the view that the lone issue as formulated by the Respondent can effectively be used to determine this appeal.
ARGUMENT:
In arguing this sole issue, learned counsel for the Appellant contended that for a person to be convicted for the offence of possession of Indian hemp, the prosecution must prove two distinct elements, to wit: that the Indian hemp was in the actual or constructive possession of the accused person; and the accused had knowledge that the Indian hemp was in his possession, ODEH V. F.R.N. (2008) 13 NWLR (PT.1103) 1 @ 33-34 PARAS H-A. Counsel cited STATE V. OLADOTUN (2011) 10 NWLR (PT.1256) 542 @ 572 PARAS F-G and OKE V. OKE (2006) 17 NWLR (PT.1008) 224 @ 242 PARAS E-F for the definition of the word ?possession?. Learned counsel referred to page 1282 of the Black?s Law Dictionary (9th Edition) where actual possession was defined as; to be in physical occupancy or control over a property, whilst constructive possession is, control or dominion over a property without actual possession or custody of it.
Learned counsel for the Appellant x-rayed the evidence of the six prosecution witnesses as contained at pages 75 – 90 of the record and submitted that there was no scintilla of credible evidence fixing the Appellant with physical or indirect control of the Indian hemp. Counsel noted that failure to call the wife of the Appellant as a witness makes the evidence of PW4 hearsay and inadmissible, counsel cited OMONGA V. STATE (2006) 14 NWLR (PT.1000) 534 @ 552, PARAS D-E on this point. Counsel submitted that the evidence of the Appellant having been consistent and not contradicted by the prosecution under cross examination, and his case having been materially supported by the evidence of PW4 and PW6, the trial Court ought to have discharged the Appellant of count 1; counsel cited ODIBA V. AZEGE (1991) 7 NWLR (PT.206) 724 for this contention.
Arguing further, counsel submitted that one Mercy (the wife of the Appellant) who was found in the premises where the Indian hemp was recovered is a vital witness and failure to call her as a witness even when she was in NDLEA custody casts very serious doubt in the prosecution?s case; counsel called in aid OPAYEMI V. THE STATE (1985) 2 NWLR (PT.5) 101 @ 103 and AL-HASSANI V. STATE (2011) 3 NWLR (PT.1234) 254 @ 277 PARAS D-E for this submission. Learned counsel added that the mere fact that the Appellant lived with his wife, Mercy, in the same house where the Indian hemp was recovered does not make the Appellant complicit as to render him criminally responsible for the unlawful possession of Indian hemp found within the premises. Counsel cited EGGAREVBA V. STATE (1986) 3 NWLR (PT.26) and submitted that even if the premises were owned or managed by the Appellant, there is a possibility that someone, other than the Appellant may have kept the Indian hemp in the premises without the knowledge of the Appellant.
In a further argument, counsel stated that as regards count 2 of the charge, by the provisions of Section 12 of the NDLEA Act, to be convicted it must be shown that an accused is not just a mere occupier or manager of the premises but that he also unlawfully permitted the premises to be used for storing, concealing and dealing in prohibited drugs. Counsel cited OGUNLEYE V. ONI (1990) 2 NWLR (PT.135) 745 @ 783 PARA G for the definition of the word ?occupier?. Counsel x-rayed the evidence of the prosecution witnesses and contended that the evidence of PW3 that he saw the Appellant in the premises on the day of the raid, when viewed against the backdrop of the evidence of other prosecution witnesses is at best mere suspicion which cannot substitute proof beyond reasonable doubt; counsel cited IDOWU V. STATE (1998) 11 NWLR (PT.574) 354 & ABRU V. STATE (2011) 17 NWLR (PT.1275) 1 for this contention. Counsel also noted that none of the prosecution witnesses connected the Appellant with occupation, residence or management of the said premises.
Again, counsel contended that the prosecution failed to tender documents showing traces or acts of occupation of the house by the Appellant and the fact that the Appellant authorized Mercy or someone else to use the premises for storing or concealing Indian hemp. Counsel submitted that in the absence of evidence that the Appellant occupied the premises or that he permitted the premises to be used for concealing Indian hemp, the trial Court ought to have discharged the Appellant. Counsel urged that the issue be resolved in favour of the Appellant.
Issue Two:
Learned counsel for the Appellant further submitted that the trial judge was wrong to have relied on Exhibit P7 as a confessional statement. Counsel contended that Exhibit P7 does not qualify and should not have been relied on as a confessional statement. Counsel cited ISAH V. STATE (2010) 16 NWLR (PT.1218) 132 @ 157-158 PARAS G-A for a definition of confessional statement. Counsel quoted excerpts from Exhibit P7 and contended that the Appellant neither admitted committing the offences nor provided a basis to draw inferences in that regard. Counsel stated that the Appellant pointedly denied the offences with which he was charged and convicted. Learned counsel noted that exhibit P7 was consistent with the Appellant?s testimony in Court and it was therefore wrong for the trial judge to have held exhibit P7 as a confessional statement. Counsel cited STATE V. ENABOSI (1966) 2 ALL NLR 116 on the point that a statement where the accused merely narrated the facts of the incident but made no unequivocal admission of the offence does not amount to a confession. Counsel concluded argument on this issue by submitting that the finding of the Court contained at pages 154-157 of the records to the effect that Exhibit P7 was a confessional statement is misconceived and should be set aside.
In reply, learned counsel for the Respondent submitted that the Respondent discharged the burden placed upon it by law and proved its case beyond reasonable doubt. Counsel cited SUNDAY ANI & ANOR. V. THE STATE (2009) 16 NWLR (PT. 1168) 443 @ 458 for the definition of the expression ?beyond reasonable doubt?. Counsel cited ODEH V. FRN (SUPRA) on the ingredients of the offences with which the Appellant was charged. Learned counsel x-rayed the evidence of prosecution witnesses especially PW1 and PW2 and stated that their evidence as to the testing and results of their tests as well as procedures adopted were not in any way either challenged or discredited. In the same token, counsel contended that the evidence of PWs 3, 4, and 6 as to the recovery of the drugs which the Appellant?s wife identified as belonging to the Appellant, and the arrest of the Appellant?s wife from the Appellant?s house at Lagos Camp, were unchallenged. Counsel called in aid OMOTOLA V. THE STATE (2009) ALL FWLR (PT.464) 1462 @ 1490, and BROADLINE ENTERPRISES LTD. V. MONTEREY MARITIME CORPORATION & ANOR. (1995) 9 NWLR (PT.417) 1 @27 to buttress the point that failure to cross examine and challenge evidence by prosecution witnesses was fatal to the case of the Appellant.
Arguing further, learned counsel for the Respondents contended that Exhibit P7 (confessional statement) was tendered without objection. Counsel stated that the implication is that the Appellant accepted that the statement was actually and voluntarily made and the contents of Exhibit P7, as tendered, were accurate. Counsel cited AKPAN V. THE STATE (2001) 7 NSCQR 235 @ 250 on the point that a confessional statement when admitted in evidence forms part of the case of the prosecution and the Court is bound to act on it. Counsel stressed that by the contents of Exhibit P7, the evidence of PWs 3, 4 and 6 it is without doubt that the drugs were recovered from the house of the Appellant and he was in actual/constructive possession of the recovered 504 kilograms of Indian hemp.
Counsel further submitted by quoting excerpts from Exhibit P7 and referred to the evidence of the Appellant as DW1 and contended that the Appellant had knowledge that the 504 kilograms of Indian hemp were kept in his house from where they were recovered. Counsel noted that the defence of the Appellant that the drugs belonged to one Aliyu did not exonerate him from the charge and the trial Court rightly convicted him of the offence of unlawful possession of the Indian hemp.
While proffering argument on the second count charge, counsel reproduced the charge as well as Section 12 of the National Drug Law Enforcement (NDLEA) Act, Cap. N30 LFN, 2004 and submitted that the ingredients of the offence are: (a) the accused is the occupier or concerned with the management of a premises; and (b) unlawfully permits or cause the premises to be used for any of the purposes of storing, concealing, processing or dealing in drugs. Counsel submitted that contrary to the submission of the Appellant that failure of the Respondent to adduce documentary evidence to establish the connection of the Appellant with the house/premises where the drugs were recovered was fatal to its case, the criminal liability established by Section 12 of NDLEA Act is that of occupier as opposed to ownership. Counsel contended that the use of title documents to show connection with the property and establish liability is unnecessary. Counsel cited SALAMI V. LAWAL (2008) ALL FWLR (PT. 438) 200 and quoted excerpts from Exhibit P7 and submitted that the concept of the occupier liability as encapsulated in Section 12 of the NDLEA Act, would render the Appellant liable as a person ?concerned in the management? of a premises, were drugs to be found in any location in Lagos Camp even if it were not his house. Counsel urged that in view of the unchallenged and uncontroverted evidence of the Respondent, the conviction and sentence of the Appellant should be upheld.
OPINION:
I have painstakingly gone through the evidence of the prosecution witnesses, the evidence of the Appellant and exhibit Pw7.
It is trite that in criminal trial, the prosecution is expected to prove the guilt of the accused beyond reasonable doubt. In ADUN V. OSUNDE (2003) 16 NWLR (PT. 847) 643 @ 670 PARAS C-D it was held that where an alleged crime has not been proved beyond reasonable doubt, any lingering doubt must be resolved in favour of the accused person. In the same case of ADUN V. OSUNDE @ Page 666 paras B-D it was held thus ?proof beyond reasonable doubt excludes mere possibilities?. In the instant case however, there are possibilities other than the fact that the Appellant had possession of the Indian hemp, this to mind creates a serious doubt in the case of the prosecution.
To my mind, the case of the prosecution is hinged principally on suspicion, which cannot ground a conviction. In UGHENEYOVWE V. STATE (2004) 12 NWLR (PT.888) 626 @ 649 PARAS G-H the point was admirably made thus mere suspicion, no matter how strong can never found a conviction in the absence of cogent and compelling evidence which must be strong as to leave no room for reasonable doubt.
In the instant case, even though 504 kilograms of Indian hemp was recovered, I cannot find any cogent and compelling evidence pinning the Appellant to possession of the said substance.
It is also imperative to state that the fact that an accused person lied is not proof of his guilt. It is also not evidence of commission of any offence, see UGHENEYOVWE V. STATE (SUPRA) @ 649-650 PARA G-A. I hold the firm but humble view that even though the prosecution proved the actus reus of the offence, there is no corresponding proof of the mens rea to crystallize the offence. To my mind, this doubt ought to be resolved in favour of the Appellant.
With regard to Exhibit P7, I have taken pains to go over the said statement a number of times and I have not been able to pin a ?confessional statement? tag to it. For purposes of clarity, let me rehash Exhibit 7, the purported confessional statement so styled by the learned trial Judge.
It reads thus:
My name is Abamu Joseph age, 37 years born to the family of Abamu Ogbuyan ?Chief of Ukwo village in Illushi town, Esan South East Local Government Council of Edo State. My father married 2 wives of which my mother is the 2nd and is by name Ogoh. I am the 5th child of my father. My father had 9 of us of whom 5 are boys and 4 are girls but we lost 2 to illness.
I started my primary education with Okporokporo Primary School in Illushi from 1979 to 1981. I dropped out from primary 3 because my father could not sponsor me. I later joined my father in farming. That is what I am doing till date. I plant yam, cassava and sweet potatoes. In the year 2001 I founded Lagos Camp in Illushi and those who stay in the camp to farm pay royalty to me as the camp founder at the end of the year after harvest. Each person gives to me 40 seed yam and N5,000, for the community of Illushi. If there is any problem in the camp I am the one that use to settle them. I am the owner of the camp and have camp agents who help me monitor everything that goes on within the camp. I moved to stay in the camp in the year 2006 when trouble was too much for me. I stay in Lagos Camp with one of my wife by name Mercy Abanu. I was arrested in the year 2006 by N.D.L.E.A Benin on a charge of killing some NDLEA operatives in 1999. I was handed over to the state police C.I.D where I was charged to Court at Ubiaja High Court and granted bail in 2006. My two wives stay apart. One, that is Mercy lives with me in Lagos camp while Glory stays in Illushi, I use to shuffle my stay with them. In 2007 Mercy was arrested by NDLEA after 504 kg weight of Indian Hemp was recovered from her apartment in November, 2007. She was arrested with one John alias Akpuruka. The two of them live in a room and parlour opposite my own apartment which is a small hut. The exhibit, that is the Indian hemp bags that was arrested with my wife belongs to one Aliu whom I met in the Lagos camp in the year 2006. John is not my relative, we met in the camp. He was helping my brother Pius to brush his farm which he pays him N400 daily. I was in my friends place by name Jude when my wife was arrested in November 24, 2007 and charged to Court and who given bail January 2008. When Aliu packed the Indian hemp in my wife?s room I knew and got angry with him and he said he was going to get vehicle to move the Indian hemp out. It was during the time he left that N.D.L.E.A. came and arrested my wife. John aka Akporuka is still in prison custody in Benin. Today being the 8th of April, 2008.
I come for Court case which I was alleged to have caused the death of 4 N.D.L.E.A. officers when I saw Komo with some N.D.L.E.A. officers in a vehicle along Ubiaja/Udakpa road who stopped me on my motor bike while going back to the camp and arrested me and brought me to the N.D.L.E.A. office in Benin City. At the station I volunteered my statement.
Sign Sign
8/4/2008 JOSEPH EGA
8/4/2008?
In general legal parlance, a confessional statement is the best evidence in criminal law, where the accused person admits that he committed the offence for which he is charged. For this purpose, the accused is the figurative horse?s mouth, confessing and admitting the offence charged. See ADEBAYO V AG. OF OGUN STATE (2008) 7 NWLR (Pt. 1055) 201.
Also in the case of ODEH V FRN (2008) 13 NWLR (Pt. 1103) 1. The learned jurists of the Apex Court per Ogbuagu JSC clearly stated thus:
A confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.
In the instant case, the Appellant without mincing words denied the allegation ascribed to him in the said Exhibit P7. The statement did not in any way indicate that the accused person i.e. the Appellant committed the offence; neither can any inference of the commission of the offence be drawn therefrom.
From the totality of all of the above, I am of the ardent view that the trial Court was wrong in convicting and sentencing the Appellant to 16 years imprisonment out of which he has already served about 10 years since his incarceration in 2008.
In sum, this appeal to my mind has merit and ought to be allowed. Accordingly, the judgment of the trial Court delivered on the 31st day of March, 2010 in Suit No. FHC/B/CS/39C/2008 by M.B. Idris J. of the Federal High Court is hereby set aside. The Accused/Appellant presently in prison custody is to be discharged and acquitted forthwith.
Appeal Allowed.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother PHILOMENA MBUA EKPE, JCA and I am in complete agreement with His Lordships decision that the Appeal has merit and should be allowed. For a confessional statement like Exhibit P7 to be admissible to convict an accused person, it must be a direct and positive confession of guilt. It must be an unequivocal admission of the elements that constitute the offence.
I have read the record and also Exhibit P7 and it cannot be considered or evaluated or expanded into a direct and unequivocal admission of guilt in the circumstances of this case. What is more, there is no other extraneous evidence linking the Appellant to the offence. Mere suspicion cannot constitute proof of the commission of an offence. More importantly, the drugs were not found in his possession but in the possession of persons known to him. The prosecution witnesses did not give evidence that the Appellant facilitated the acquisition of the drugs or the commission of the offence. I agree that the prosecution did not prove the case against the Appellant. I also allow the Appeal. Appeal Allowed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the judgment just delivered by my learned brother P.M EKPE, JCA.
I agree with the reasoning and conclusion contained therein. I hold that the appeal is meritorious and it is hereby allowed. The Accused/Appellant is discharged and acquitted.
Appearances:
S. M. Ilegieuno, Esq.For Appellant(s)
F.A. Oloruntoba, Esq. with him, N. A. Ekanem, Esq.For Respondent(s)
