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ADESINA v. FRN (2022)

ADESINA v. FRN

(2022)LCN/16050(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, May 06, 2022

CA/AK/17C/2021

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

ADEMOLA ADESINA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

THE ESSENTIAL ELEMENTS OF THE OFFENCE OF POSSESSION OF CANNABIS SATIVA

The parties in this appeal have indeed rightly stated in their respective briefs of argument the essential elements of the offence of possession of cannabis sativa contrary to and punishable under Section 19 of the NDLEA Act, with which the Appellant was charged. They are: –
1. That the substance was in the possession of the accused;
2. That it was knowingly in his possession;
3. That the substance is proved to be Indian Hemp (cannabis sativa); and
4. That the accused was in possession of the substance without lawful authority.
See in this regard the cases of OYEM V. FRN (2019) LPELR-47392(SC), BLESSING V. FRN (2015) LPELR-24689(SC) and UGWANYI V. FRN (2012) LPELR-7817(SC).
The ingredients as stated above remain sacrosanct and each must be established by the prosecution beyond reasonable doubt to sustain a conviction under the said Section 19 of the NDLEA Act. 

The prosecution can establish the guilt of an accused by (i) the voluntary confessional statement made by him; (ii) by evidence of an eye witness or (iii) by cogent circumstantial evidence. Proof of an offence by any of or a combination of the above listed methods is sufficient to establish a charge against a defendant beyond reasonable doubt. See the cases of BALOGUN V. FRN (2021) LPELR-53185(SC) and JUNAIDU V. STATE (2021) LPELR-55199(SC). PER LOKULO-SODIPE, J.C.A.

WHETHER OR NOT THE COURT CAN RELY AND CONVICT AN ACCUSED PERSON BASED ON THE PRODUCTION OF AN EXTRA JUDICIAL CONFESSIONAL STATEMENT

It is no doubt a settled position of the law that the production of an extra judicial confessional statement of an accused person before a trial Court does not automatically entitle the Court to rely on the same to convict an accused. This is so even though the position of the law is to the effect that the confessional statement of an accused person when admitted in evidence becomes part of the case of the prosecution which the trial Court is bound to ascribe appropriate probative value. See the case of NWACHUKWU V. STATE (2007) LPELR-8075(SC) amongst others. Thus, the lower Court is still expected to test the veracity of the said confessional statement to ascertain whether or not it is safe to rely on the same in convicting the Appellant. In determining whether a Court can rely solely on the confessional statement of a defendant to convict him, the Supreme Court in the case of BASSEY V. STATE (2019) LPELR-46910(SC) per Sanusi, JSC; stated as follows: –
“However, in multiplicity of judicial authorities of this Court, it has been decided that before relying solely on confessional statement to convict an accused or in the process of evaluation of same, trial Courts are desired to subject the confessional statement to the following six tests; namely
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements made on it in fact true as they can be tested?
(d) Was the accused one who had the opportunity of committing the offence?
(e) Is the confession possible; and
(f) Is it consistent with the other facts which have been ascertained and have been proved?
Once a confessional statement is subjected to these six tests, this Court has held that same can be safely relied upon to ground a conviction. See …”
See also the cases of ALAO V. STATE (2019) LPELR-47856(SC) and AKINRINLOLA V. STATE (2016) LPELR-40641(SC).
PER LOKULO-SODIPE, J.C.A.

THE POSITION OF LAW FRO A CONFESSIONAL STATEMENT TO BE ADMISSIBLE IN EVIDENCE
Similarly, the position of the law is not that for a confessional statement to be admissible, the recorder of a confessional statement made by an accused who is unable to write his statement by himself must give evidence of the specific questions asked and answers elicited from an accused person during the recording of the voluntary confessional statement in question. It is however very clear from the cases, that doing this should be restricted to matters of the name of the accused, address, occupation and other details about himself and as to his involvement in the crime he is alleged to have committed. See the case of HAMZA V. STATE (2019) LPELR- 47858(SC). PER LOKULO-SODIPE, J.C.A.

THE ROLE OF THE COURT IN A CRIMAL TRIAL

In the case of Ibeh v. State cited and relied on by the lower Court, the Supreme Court per Belgore, JSC; dwelling on the issue of contradiction in evidence stated thus: –
“The proper role of the Court in a criminal trial is to evaluate all the evidence before it and be sure that the case for prosecution has been proved beyond reasonable doubt and convicted; but if there is doubt, whether based on material contradictions or lack of sufficient evidence, the benefit of that doubt must be given to the accused person.
Once there is contradiction and it remains unexplained that will be doubt on the evidence of that witness; if the witness is for the prosecution and the contradiction happens to be material as in this case, a doubt then exists and the benefit of it must be given to the accused. The learned trial Judge devoted much of his judgment justifying the evidence of prosecution despite the contradictions and outrightly rejected the evidence of the defence.” PER LOKULO-SODIPE, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 8/7/2020 by the Federal High Court, Akure Judicial Division presided over by Hon. Justice A. Dogo (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively). The Charge dated 28/11/2014 upon which the Appellant stood trial contained on page 1 of the record of appeal (hereafter to be simply referred to as “the record”) reads thus: –
“That you Ademola Adesina, male, 37 years old, on or about the 18th day of November, 2014 at Owena Village, Idanre Local Government Area of Ondo State within the jurisdiction of this Honourable Court without lawful authority knowingly possessed 75 Kilogrammes of cannabis sativa a narcotic drug similar to cocaine, heroin and LSD and thereby committed an offence contrary to and punishable under Section 19 of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria 2004.”

In proof of the above charge, the Respondent fielded 5 witnesses to wit: PW1 – Halilu Yau, one of the Officers that arrested the Appellant. PW1 is a Chief Narcotic Agent of the National Drug Law Enforcement Agency (hereafter to be simply referred to as “the Agency”); PW2 – Dakok Richard Paul, the Exhibit keeper at the Ondo State Command of the Agency at the time of the incident on 18/11/2014; PW3 – Omoniyi Samuel, a Superintendent of the Agency serving in Akure at the time of the incident on 18/11/2014. He recorded the statement of the Appellant dated 18/11/2014 and tendered the same; PW4 – Paul Oche Ogboji the Investigating Police Officer (IPO); and PW5 – Anebi Ajilima, a forensic analyst with the Forensic Unit of the Agency.

The Exhibits tendered at the trial of the Appellant as identified in the judgment of the lower Court are: Exhibits A1, A2 and A3 – certificates of test analysis, packing of substance and request for Scientific Aid Form respectively: Exhibit B is the recovered substance contained in 6 sacks and some wraps; Exhibits C, C1 and C2 are drug analysis report; large brown envelope and copy of the request for scientific aid form respectively: Exhibit C3 is a white evidence pouch containing the remnants of the analysed substance contained in a large brown envelope; Exhibit D is the extra-judicial statement made on 18/11/2014 by the defendant (Appellant) to the Police.

The Appellant testified as DW2 while his wife – lyabo Adesina testified as DW1. At the end of trial, having considered the written addresses of parties, the lower Court in its judgment delivered on 8/7/2020, convicted the Appellant of the offence with which he was charged and stated thus: –
“…
I will also, for the purpose of this judgment, adopt the lone issue for determination formulated by the defendant’s counsel. Both counsel(sic) are in agreement on the essential ingredients of the offence of unlawful possession of cannabis sativa contrary to Section 19 of the NDLEA Act. I also agree with them on that. The essential ingredients are:
1. That the substance is cannabis sativa.
2. That the substance was in possession of the defendant; and
3. That the substance was in the defendant’s possession to his knowledge and without lawful authority.
See …
It is settled law that the prosecution bears the burden of proving all the above essential ingredients against the defendant beyond reasonable doubt, in order to secure a conviction against the defendant for the offence charged. I will therefore consider the evidence adduced by the prosecution vis-a-vis the above essential ingredients with the view to finding whether the prosecution has discharged the burden placed on it by law or not. I would like to start with the consideration of the second essential ingredient, which is that the defendant was in possession of the substances in question.
The PW1, who is the arresting officer, testified, with regards to the recovery of the substance(s) in question that on 18/11/14 the defendant was arrested with some wraps of dry leaves suspected to be cannabis sativa in his possession inside his room.
Immediately, thereafter, the NDLEA officers along with the defendant proceeded to another room within the neighborhood, allegedly, rented by the defendant, where they discovered large quantity of dry leaves suspected to be cannabis sativa in a black rubber container.
The learned defendant’s counsel has alleged material contradiction between the testimonies of the PWs 1 and 4 on the discovery of some wraps of dry weeds suspected to be cannabis sativa in the defendant’s room. He submitted that the PW4 said no illicit drug was found in the defendant’s room or house. The learned prosecuting counsel however argued that there was no contradiction between the testimonies of the PWs 1 and 4 as alleged by the defendant’s counsel, but did not contest the fact that the PW 4 made the statement attributed to him by the defendant’s counsel.
It is correct or true that the defendant’s counsel during cross-examination; suggested to the PW 4 that the cannabis sativa was found in the defendant’s room, where the defendant was arrested, and the PW4 answered in the negative i. e. he said no. The defendant’s counsel then asked him where the drug was found. The PW4 said the defendant was arrested and taken to where he kept the drug at a place not far away from the defendant’s house.
Now the question is, is there a material contradiction between the testimonies of the PW1 and 4? … I have carefully considered the relevant portions of the PWs 1 and 4’s testimonies which are alleged to contradict one another in the context of the whole evidence before the Court and the content of the charge against the defendant. The allegation against the defendant is that on 18/11/2014 he was, without lawful authority knowingly in possession of 75 kilogrammes of cannabis sativa contrary to Section 19 of the NDLEA Act. One of the essential elements of the offence, which the prosecution must prove and which is now been considered by this Honourable Court, is that the defendant was in possession of the drug or substance in question. While the PW 1 stated that some wraps of dry weeds suspected to be cannabis sativa were recovered from the defendant’s room and a large quantity of same or similar substance was recovered in a room, allegedly, rented by the defendant, the PW4 said no illicit drug was recovered from the defendant’s room, but the suspected cannabis sativa the defendant is accused of knowingly possessing was recovered from the room, allegedly, rented by the defendant. It is the prosecution’s case that the defendant was in possession and control of both his room where he was arrested and the room he, allegedly, rented to keep the large quantity of the suspected cannabis sativa. It is therefore, my humble, view that, it is immaterial whether the wraps and large quantity of the suspected cannabis sativa were both found in the room, allegedly, rented by the defendant or the wraps were found in his room where he was arrested while the large quantity was recovered from the room he, allegedly, rented. In my humble, view, the material issue, in this case is whether the defendant was found in possession of both the wraps and large quantity of the suspected cannabis sativa or not. I therefore hold that there is no material contraction between the evidence of the PWs 1 and 4 on the recovery or discovery of the suspected cannabis sativa in the possession of the defendant.
On this view, I derive strength from the decision of the Supreme Court in Dibie & Ors. v. State (supra) at pages 9 -13, para. E, where the Supreme Court held that it is immaterial whether the armed robbers that went to the house of the PW1 were three or four, what is important is that the appellants, were in the PW1’s house. In my humble view, the alleged contradiction is not material.
In holding the above view, I am also encouraged by the fact that the defendant, in his extra-judicial statement (albeit, he retracted it and I will come to that later in this judgment) admitted that he was in possession of both the wraps and large quantity of the suspected cannabis sativa. I therefore discountenance the contention of the learned defendant’s counsel that there is material contradiction in the evidence of the PWs 1 and 4 on the recovery or discovery of the suspected cannabis sativa.
As earlier stated above, the defendant, in his extra-judicial statement, admitted been (sic) in possession of the suspected cannabis sativa. The relevant portion of the statement reads thus:
“On the 18th day of November, 2014 at about 1.30 early morning when I was sleeping some people knocked at my door and introduced themselves as NDLEA officers (sic) they arrested me in my room and took me to another house where I used to keep my smoke in a rented room. The six sacks and the wraps of the smoke belongs to me, which was supplied to me by a soldier man normally called Oyinbo in last month of October (sic). The soldier man called Oyinbo supplied the smoke for me on credit. He newly rented the house for me at the rate of N300 per month. The Soldierman, Oyinbo claimed that he arrested the smoke at the checking point along Owo Road. The wraps I tied are the ones I am selling for now. The Soldierman, Oyinbo is working and serving at Army Barrack, Akure.”
Again, as earlier stated above, the defendant, in his evidence before the Court, retracted the above confession. He alleged that the statement was pre-written by the NDLEA officers and he was simply asked to thumb print on it without the statement been first read over to him even though he demanded that is (sic) should be read over to him. I do not believe the defendant’s claim that the statement was pre-written by the NDLEA officers and he was simply asked to thumb print on it without same been first read over to him. The statement contains a brief biography of the defendant. It contains the date and place where he was born, the primary school he attended and the fact that he dropped out in class 3. It also contains the fact that he thereafter went to learn motor mechanic work at Akure. but stopped six months to his graduation because of his mother’s death. It furthermore, contains the dates he married his first wife and second wife, after the death of his first wife, and the number of children he had or has with each of the wives. No doubt these are informations (sic) that are best known to the defendant. Under cross-examination, he admitted some of the above facts that were mentioned to him by the prosecuting counsel, to be correct. If the statement was pre-written, how did the NDLEA officers got (sic) all the above personal information about the defendant? The defendant did not claim that any of the NDLEA officers knew him before his arrest. He also did not claim that any other person that knows him gave the NDLEA officers his personal particulars. I therefore reject the defendant’s claim that he did not make the statement in question, i. e. exhibit D. I find that the statement was made by the defendant, and it was voluntary.
It is obvious that the defendant in the said statement clearly admitted been in possession of both the wraps and six sacks of cannabis sativa. He confessed that it was recovered from his possession.
The learned defendant’s counsel has submitted that since the defendant has retracted his confession there is the need for corroborative evidence before the Court can safely act on the confession. I hold the view that the fact of the recovered substance been found in possession of the defendant has been amply corroborated by the testimony of the PW1 both in chief and under cross examination, and the PW4 under cross-examination. In fact, the PW 1 stated under cross-examination that the NDLEA officers where led by the defendant to the house were (sic) the large quantity of cannabis sativa was recovered. I am also satisfied that the defendant’s confession is positive, direct and unequivocal.
The learned defendant’s counsel has also submitted that exhibit D is not admissible because it is a product of a question and answer session between the defendant and the PW3. He cited the case of Namsoh v. State (supra) in support of his contention. I have read the authority cited by the learned defendant’s counsel. I am of the view that the case cited is not in (sic) all fours with the instant case on the recording of the statement of the defendant. In Namsoh’s case the appellant had earlier (sic) written his statement by himself. Subsequently he made or was made to make another statement whereby the recorder of the statement was asking him questions which were written down and given to him by his superior and at the same time writing the answers to the questions as given by the appellant. The Supreme Court held that the procedure adopted in the recording of the second statement of the appellant was wrong and makes the statement inadmissible in law. The foregoing is not the case, in the instant case. Although, the PW3 admitted under cross-examination that during the recording of the statement he asked the defendant questions and the defendant answered the questions, I am of the view that the questions were the basic questions, such as the name and address of the defendant, his date of birth, etc, and probably also asking him what happened on the faithful day. I hold this view because the content of exhibit D does not portray it as a product of pre-written or predesigned questions intended to nail the defendant, but as a vivid account of events that happened in connection with the case against the defendant and his brief biography. I therefore do not agree with the contention of the learned defendant’s counsel that exhibit D is a product of a question and answer session, and therefore not admissible. I hold that exhibit D is admissible, and it was rightly admitted in evidence by this Honourable Court, without any objection from the defendant’s counsel.
The learned defendant’s counsel has also contended that exhibit D is not reliable because the PW3 admitted under cross-examination that some of the facts contained in exhibit D were sourced from the exhibit keeper and some of the PW3’s colleagues. He also argued that the exhibit keeper was in Akure while the statement was recorded in Ondo Town before the defendant was transferred to Akure, as such it was not possible for the PW3 to have gotten information from the exhibit keeper.
The informations (sic) the learned defendant’s counsel is referring to are, as disclosed in the cross-examination of the PW3, informations (sic) regarding the number of sacks/bags recovered from the possession of the defendant, the total weight of the substance recovered from the defendant and the names of the forms issued by the exhibit keeper.
It is true that the PW3 admitted under cross-examination that he got some information which are contained in the statement from the exhibit officer or the exhibit forms. It is also true, based on the evidence before the Court, that the statement was taken on 18/11/14 at the Ondo Area office of the NDLEA. while the field testing, weighing and packaging of the recovered substance as well as the issuance of the exhibit forms, i. e. exhibits A1, A2 and A3, were done on the same date, but at the Akure office of the NDLEA. It is also true that the PW3 admitted under cross-examination that he did not go to Akure on 18/11/14 when the defendant was transferred to Akure. It is therefore obvious that the PW3 could not have gotten the information about the weight of the recovered substance and the facts of the issuance of the exhibit forms and their names from the exhibit officer. It is also probable that the facts of the weighing filed (sic) testing and packaging of the recovered substance, as well as the issuance of the exhibit forms were recorded prior to the occurrence of those events. I therefore find that it is probable that the facts of weighing, testing and packing of the recovered substance, as well as the facts of the weight of the recovered substance and the issuance of the exhibit forms, did not come or flow from the defendant. It is probable, going by the PW3’s admission, that the PW3 imported them into the statement of the defendant.
Now the question is, can the said insertion make the statement unreliable particularly, the incriminating aspect of the statement? My answer is in the negative. It is apparent that the insertion occurred outside the incriminating portion or portion of the statement that constitutes the defendant’s confession of the commission of the offence he is accused with. I am humbly of the view that this Honourable Court can accept the incriminating portion of the statement which is devoid of any insertion and discountenance with the portion of the statement dealing with the testing weighing and packing of the recovered substance and other related matters, which is affected by the importation by the PW3. On this view, I rely, by way of analogy, on the cases of Garba v. State (1997) LPELR-1308 (SC) P.14, paras. B-D, PP. 27-28, paras. D-A and Salami v. State (2013) LPELR-21112 (CA) PP. 23-24, paras. D-B, where it was, in both cases, held that the Court in certain circumstance, can accept a portion of the confessional statement of a defendant which incriminates him and reject the other aspect which exculpates him.
I am satisfied that the defendant made the statement from the beginning of the statement, which began with where and the date the defendant was born, up to the narration of how he came in possession of the recovered substance in this case. I am of the view that the interest of justice demands that this Honourable Court should not close its eyes to the clear confession of the commission of the offence by the defendant simply because of the over zealousness of the PW3 in inserting what is not necessary in the statement. I am convinced based on the evidence before the Court that the defendant voluntarily made the confession contained in exhibit D. I therefore discountenance the submission of the learned defendant’s counsel that exhibit D is not reliable.
Based on the foregoing findings and holdings, I hold that the prosecution has proved beyond reasonable doubt that the defendant was in possession of the 75kg of cannabis sativa as alleged in the charge brought against him. In other words, I hold that the second essential ingredient, identified above, has been proved by the prosecution beyond reasonable doubt.
I will now proceed to the consideration of the first essential ingredient identified above; which is that the recovered substance is cannabis sativa.
The learned defendant’s counsel has submitted that there is doubt regarding the substance analysed by the PW2, during field testing, and PW5, during drug analysis. He argued that it is not clear from the testimonies of the PW2 and 5 whether the analysed substance was taken from the wraps or large quantity/sacks of dry weeds suspected to be cannabis sativa.
I hold the view that the learned counsel’s submission is misconceived. It is premised on the testimony of the PW1 who said some wraps of dry leaves were found in the room of the defendant and a large quantity was found in another room rented by the defendant. In view of the finding of the count above, that both the wraps and large quantity/sacks of dry weeds were in possession of the defendant it is immaterial whether the analysed substance was taken from the wraps or large quantity/sacks of dry weeds found in the possession of the defendant. This is because it is certain that the analysed substance must have been taken from either the wraps or large quantity/sacks of dry weeds suspected to be cannabis which were both found in possession of the defendant. I am of the view that proving that either the wraps or large quantity/sacks of the dry weeds found in possession of the defendant is cannabis sativa will suffice to prove the charge against the defendant. In other words, even if it is less quantity of the 75kg of cannabis sativa stated in the charge that is proved to be cannabis sativa, it will suffice to establish the charge against the defendant.
I drive (sic) strength in the above view from the case of xxx I hold the view that the above quoted ration (sic) decidendi in Abegunde’s case (supra) applies to this case mutatis mutandis. I therefore hold that proving that either the wraps or large quantity/sacks of dry weeds, both found in possession of the defendant, is cannabis sativa will suffice to sustain the charge against him.
Alternatively, and most importantly, I am of the view that going by the evidence of the PW4, under cross examination, and exhibit D. the confessional statement of the defendant, both the wraps and large quantity/sacks of dry weeds were discovered in the room rented by the defendant. I believe that the wraps of dry weeds was (sic) not discovered in the defendant’s room from where he was arrested as stated by the PW1. I believe the PW1 erred in making the said statement.
The defendant, in his confessional statement. Exhibit D said, in respect of the wraps and large quantity/sacks of dry weeds, thus:
“On the 18th day of November, 2014 at about 1:30 early morning when I was sleeping some people knocked at my door and introduced themselves as NDLEA officers (sic) they arrested me in my room and took me to another house where I used to keep my smoke in a rented room The six sacks and wraps of the smoke belongs to me which was supplied to me by a soldierman normally called Oyinbo in last month of October— …. The wraps I tied are the ones I am selling for now. …” (underlining mine for emphasis).
I hold the view that it is apparent from the above quoted portion of the defendant’s confessional statement, exhibit D, that both the wraps and large quantity/sacks of the dry weeds were kept by the defendant in the room he rented or was rented for him by the soldierman. It is also apparent that the wraps were taken by the defendant from the large quantity/sacks of the dry weeds. This is deducible from his statement that “The wraps I tied are the ones I am selling for now.”
I therefore find that the wraps and large quantity/sacks of the dry weeds were discovered and recovered from the same place. I also hold that the wraps were part of the larger quantity of the dry weeds contained in the sacks. The defendant took some of the dry weeds from the sacks of the dry weeds and wrapped it for the purpose of selling it in small quantity. I therefore find that the wraps of the dry seeds are not different from the large quantity/sacks of the dry weeds. They are both from the same source. I hold that there is no doubt as to the substance analysed. The substance analysed is the substance recovered from the defendant’s possession.
What is left now is to resolve the confusion that may arise from the fact that it will appear from the foregoing, that I believed part of the testimony of the PW1 and disbelieve another part. Yes, it appears so. I believe I am entitled to so do, in the circumstance of this case. See … where, in all the cases cited, it was held that, in certain circumstance, a trial Judge is entitled to accept part and reject part of a witness’ testimony.
Both exhibit A1, the certificate of Test Analysis, and exhibit C, the Drug Analysis Report, stated that the analysed substance is cannabis sativa. The PW2, the exhibit keeper, who did the field test, and PW5, the Forensic Analyst (sic), who did the forensic analysis of the substance in question also both stated that the result of their respective analysis shows that the substance in question is cannabis sativa. These pieces of evidence are unchallenged and also credible. They have not been impeached in anyway by the defendant’s Counsel, apart from his contention that there is doubt as to the substance analysed, which has been resolved by this Honourable Court against the defendant. I therefore find that the substance recovered from the defendant’s possession is cannabis sativa. Accordingly, I hold that the first ingredient of the offence, identified above has also been proved by the prosecution beyond reasonable doubt.
I will now consider the last but not the least ingredient of the offence, which is that the defendant was in possession of the substance to his knowledge and without lawful authority.
I hold the view that the last ingredient of the offence has also been proved beyond reasonable doubt. The PW1 had testified that the defendant led the NDLEA officers to a room which he rented in another house where they discovered a large quantity of suspected cannabis sativa. The defendant in his confessional statement, exhibit D, also stated that he was arrested by NDLEA officers and taken to where he kept his smoke, meaning cannabis sativa. He also said, in the confessional statement, that “the six sacks and wraps of the smoke belongs to me.”
I therefore hold that the defendant was in possession of the 75kg of cannabis sativa to his knowledge and fully conscious of the fact that it was cannabis sativa. The defendant has not shown or prove, or even claim that he has lawful authority to have in his possession the 75kg of cannabis sativa. I hold that the onus is on the defendant to prove that he has lawful authority to have in his possession the 75kg of cannabis sativa. He has failed to discharge same.
In the case of Abdullhi vs. FRN (2016) LPELR-40101 (SC) at page 19, paras. A • C, the Supreme Court opined thus:
“……Once it was confirmed that the substance was indeed a narcotic drug, the essential ingredient of being in possession of the substance without lawful authority is established and the burden shifted to the appellant to show that his possession of the drug was legal.”
See also the case of … I therefore find that the defendant was in possession of the 75kg of cannabis sativa to his knowledge and without lawful authority. Accordingly, the third essential ingredient of the offence has also been proved by the prosecution beyond reasonable doubt.
In conclusion, I hold that the charge has been proved by the prosecution against the defendant beyond reasonable doubt. I therefore find the defendant guilty of the offence of unlawful possession of cannabis sativa contrary to Section 19 of the NDLEA Act and accordingly convict him of the offence as charged.
That is the judgment of the Court.”
(Underline provided by me).

Having convicted the Appellant on 8/7/2020, the lower Court deferred the sentencing of the Appellant; and the said Court in sentencing the Appellant on 16/7/2020, stated thus: –
“…The convict is therefore sentenced to five years imprisonment for the offence of unlawful possession of Cannabis sativa contrary to Section 19 of the NDLEA Act, with effect from the 8/7/2020 being the date he was convicted by the Court and remanded in custody of the NDLEA. …”

Aggrieved by the decision of the lower Court, the Appellant initiated this appeal by lodging at the registry of the said Court on 13/10/2020, a notice of appeal bearing the same date. The 3 grounds of appeal contained in the said notice shorn of their respective particulars read thus: –
“GROUND ONE
The learned trial Court erred in law when it held thus;
“Based on the foregoing findings and holdings, I hold that the prosecution has proved beyond reasonable doubt that the defendant was in possession of the 75kg of Cannabis Sativa as alleged in the charge brought against him. In other words, I hold that the second essential ingredient identified above, has been proved by the prosecution beyond reasonable doubt”.
GROUND TWO
The learned trial Court erred in law when it held as follows;
“I am satisfied that the defendant made the statement from the beginning of the statement which began with where and the date the defendant was born, up to the narration of how he came in possession of the recovered substance in this case. I am of the view that the interest of justice demands that this Honourable Court should not close its eyes to the clear confession of the commission of the offence by the defendant simply because of the over zealousness of the PW3 in inserting what is not necessary in the statement. I am convinced based on the evidence before the Court that the defendant voluntarily made the confession contained in exhibit D. I therefore discountenance the submission of the learned defendant’s counsel that exhibit D is not reliable.”
GROUND THREE
The learned trial Court erred in law when it held thus;
“In conclusion, I hold that the charge has been proved by the prosecution against the defendant beyond reasonable doubt. I therefore find the defendant guilty of the offence of unlawful possession of cannabis sativa contrary to Section 19 of the NDLEA Act and accordingly convict him of the offence as charged. That is the judgment of the Court.”

The reliefs sought by the Appellant from this Court in this appeal are to: (i) allow the appeal (ii) set aside the judgment of the lower Court in Charge No: FHC/AK/57C/14 and sentence of 16/7/2020; (iii) quash the conviction of the Appellant; and (iv) set aside the sentence pronounced by the lower Court.

The appeal was entertained on 10/2/2022 and K. Kokowei, learned counsel for the Appellant adopting and relying on the Appellant’s brief of argument dated 5/8/2021 and filed on the same date, urged the Court to allow the appeal. In the same vein, N.A. Ekanem (Asst. State Commander, NDLEA, Ondo State) adopting and relying on the Respondent’s brief of argument dated 26/8/2021 and filed on the same date, urged the Court to dismiss the appeal.

The Appellant formulated a lone issue for the determination of this appeal. It reads thus: –
“Whether the prosecution proved beyond reasonable doubt the offence for which the Appellant was charged at the lower Court warranting his conviction and sentencing.”

The Respondent formulated two issues from the three grounds of appeal. They read thus:
“1. Whether from the facts and circumstances of this case the learned trial Judge properly admitted the confessional statement of the Appellant herein. This issue is distilled from GROUND 2 of the Notice of Appeal.
2. Whether from the facts and circumstances of this case, the prosecution proved its case beyond reasonable doubt to establish the guilt of the Appellant as required by law. This issue is distilled from Ground 1 & 3 of the Notice of Appeal.”

Dwelling on the lone issue formulated for the resolution of the appeal, the Appellant submitted to the effect that the lower Court erred in convicting and sentencing him upon the evidence adduced by the prosecution. Appellant submitted that the onus laid on the prosecution to prove the ingredients of the offence in Section 19 of the NDLEA Act, beyond reasonable doubt. Appellant argued that there were material contradictions in the evidence of PW1 and PW4 as to whether the cannabis sativa he was charged of possessing (hereafter to be simply referred to as “the substance”) was found in his house or the house he was alleged to have rented. That the contradiction created doubt as to where Exhibit B was recovered. That the evidence given by PW2 and PW5 was not clear as to where the analysed substance was recovered and consequently, the source of the substance which was sent for testing leading to the preparation of Exhibit C cannot be ascertained. Appellant posited that having retracted Exhibit D, the lower Court could only convict upon corroborating evidence other than the said Exhibit D. That Exhibit D was a product of a question-and-answer session and the same was not made by him (Appellant) alone and that the lower Court wrongly admitted Exhibit D in evidence and also wrongly relied on the said Exhibit to convict him. Appellant argued that Exhibit D is not his statement but that of PW3. It is the stance of the Appellant that the lower Court was in error in accepting a portion of the said Exhibit and rejecting the other. The Appellant further submitted that there was no evidence linking him to Exhibit B. That the prosecution failed to properly investigate the case relating to the charge against him as none of the occupants of the house where the recovered substance was found, was called as a witness. Concluding submissions on his lone issue, the Appellant submitted that the judgment of the lower Court was biased and ought to be set aside.

It is the Respondent’s submission on the 1st issue raised for determination in its brief of argument, that there were no facts militating against the admissibility of Exhibit D; and the reliance on the same by the lower Court. Respondent referred to Section 29 of the Evidence Act, 2011, in this regard and submitted that the Appellant did not oppose the admissibility of the said Exhibit D but merely retracted the same. Respondent further posited that the lower Court was right to have relied on Exhibit D given the corroboration of the facts stated therein by the evidence of PW1 and PW3. That the test for the admissibility of a confessional statement is its voluntariness.

On its issue 2, which relates to the Appellant’s issue 1, the Respondent submitted to the effect that the prosecution led credible evidence by way of confession, eye witness account and circumstantial evidence, to discharge the onus on it to prove the charge against the Appellant beyond reasonable doubt. It is the stance of the Respondent that any contradiction in the evidence of PW1 and PW4 as to whether any substance was recovered in the Appellant’s house were immaterial and the same did not go to the root of the charge. That it was the Appellant that led the officers of the Agency to the house where the substance was recovered and confessed in Exhibit D that he owned the said substance. It was further submitted that Exhibit D though retracted at trial was corroborated by the evidence of PW1 and PW4 and that there was no doubt as to which of the substances were analyzed.

Having considered the grounds of appeal, the judgment of the lower Court and the submissions of parties on the issues they have nominated for the determination of this appeal, I consider it more expedient to adopt the sole issue nominated by the Appellant which reads thus: –
“Whether the prosecution proved beyond reasonable doubt the offence for which the Appellant was charged at the lower Court warranting his conviction and sentencing.”

This is more so as the Respondent by formulating more issues for the determination of the appeal than the Appellant did, would appear not to be aware of the admonition of the Supreme Court in the case of ANYANWU V. EZE (2019) LPELR-48740(SC). In the case under reference the Supreme Court stated thus: –
“… By formulating three issues each, the 1st and 2nd Respondents seem to be crying more than the bereaved. The Appellant, who is aggrieved by the decision of the lower Court issued only two issues for determination of this appeal. Although the Respondents are entitled to either adopt the issues formulated by the Appellant, give the issues a slant in favour of his own side of his case or formulate his own issues derivable from the grounds of appeal, it is always desirable that the Respondent should not formulate more issues than the Appellant. See Kajawa v. State (2018) LPELR-43911 (SC), …”

The parties in this appeal have indeed rightly stated in their respective briefs of argument the essential elements of the offence of possession of cannabis sativa contrary to and punishable under Section 19 of the NDLEA Act, with which the Appellant was charged. They are: –
1. That the substance was in the possession of the accused;
2. That it was knowingly in his possession;
3. That the substance is proved to be Indian Hemp (cannabis sativa); and
4. That the accused was in possession of the substance without lawful authority.
See in this regard the cases of OYEM V. FRN (2019) LPELR-47392(SC), BLESSING V. FRN (2015) LPELR-24689(SC) and UGWANYI V. FRN (2012) LPELR-7817(SC).
The ingredients as stated above remain sacrosanct and each must be established by the prosecution beyond reasonable doubt to sustain a conviction under the said Section 19 of the NDLEA Act. 

The prosecution can establish the guilt of an accused by (i) the voluntary confessional statement made by him; (ii) by evidence of an eye witness or (iii) by cogent circumstantial evidence. Proof of an offence by any of or a combination of the above listed methods is sufficient to establish a charge against a defendant beyond reasonable doubt. See the cases of BALOGUN V. FRN (2021) LPELR-53185(SC) and JUNAIDU V. STATE (2021) LPELR-55199(SC).

​In the instant appeal, it is clear, from the judgment of the lower Court reproduced hereinbefore that the prosecution tendered Exhibit D – the extra-judicial confessional statement of the Appellant and that the lower Court relied substantially on the said Exhibit in convicting the Appellant for the offence with which he was charged. The position of the law relating to confessional statements has been extensively considered and enunciated by the Supreme Court and this Court in several decisions. One of such decisions is the case of ORI V. THE STATE (2020) LPELR-49554(CA) wherein this Court per Lokulo- Sodipe, JCA; stated thus: –
“…Confession and its making are matters provided for under the Evidence Act. The law is clear from decided cases as to what a confessional statement is. Going by Section 28 of the Evidence Act, a confessional statement is a statement made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Such a statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See amongst many others the cases of AKPAN V STATE (1992) 7 SCNJ 22 and AZABADA V. THE STATE (2014) LPELR-23017(SC). This is why a statement made to the Police by an accused person in the course of Police investigation into a crime that is the subject matter of a charge before a Court and in which an accused person had admitted or suggested the inference that he committed the offence, is always relevant and will be admitted where the accused person does not deny the making of the statement voluntarily; and/or where he denies making the statement at all. In a situation where an accused does not deny making a statement alleged by the prosecution to be confessional, but claims not to have made it voluntarily, then the requirement of the law is that such a statement is not admissible in evidence against the accused person unless it is shown by the prosecution that it was a voluntary statement. This must be done by the Court embarking on a trial within trial. This is to enable the trial Judge determine whether or not the prosecution has established that the statement containing the confession was made voluntarily; and to the extent that the Judge is so satisfied, the same will be admitted in evidence and duly marked as an exhibit tendered by the prosecution. See GBADAMOSI V. THE STATE (1992) NWLR (Pt. 266) 465 and STATE V. IBRAHIM (2019) LPELR-47548(SC). Similarly, it is the settled position of the law that a confessional statement which an accused person denies making at the point of its being tendered, is admissible in evidence despite the denial. See the cases of IKEMSON V. THE STATE (supra), AWOPEJU V. THE STATE (2002) 3 MJSC 141 and AMOS V. STATE (2018) LPELR-44694(SC).”

​I consider it expedient to reiterate that in the instant case, the prosecution clearly relied on the “confessional statement’’ of the Appellant in proof of the offence with which he was charged. Exhibit D is the extra-judicial confession made by the Appellant and which the lower Court in its judgment held to have been retracted by the said Appellant. In fact, it is the contention of the Appellant in his evidence that he is not the maker of the said Exhibit. That he was only asked to append his signature to the same which he did. It is the crux of the finding of the lower Court that since Exhibit D, amounted to a confession, the evidence of the prosecution’s witnesses corroborating the contents of the said Exhibit D, was cogent enough to warrant the conviction of the Appellant. It is no doubt a settled position of the law that the production of an extra judicial confessional statement of an accused person before a trial Court does not automatically entitle the Court to rely on the same to convict an accused. This is so even though the position of the law is to the effect that the confessional statement of an accused person when admitted in evidence becomes part of the case of the prosecution which the trial Court is bound to ascribe appropriate probative value. See the case of NWACHUKWU V. STATE (2007) LPELR-8075(SC) amongst others. Thus, the lower Court is still expected to test the veracity of the said confessional statement to ascertain whether or not it is safe to rely on the same in convicting the Appellant. In determining whether a Court can rely solely on the confessional statement of a defendant to convict him, the Supreme Court in the case of BASSEY V. STATE (2019) LPELR-46910(SC) per Sanusi, JSC; stated as follows: –
“However, in multiplicity of judicial authorities of this Court, it has been decided that before relying solely on confessional statement to convict an accused or in the process of evaluation of same, trial Courts are desired to subject the confessional statement to the following six tests; namely
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements made on it in fact true as they can be tested?
(d) Was the accused one who had the opportunity of committing the offence?
(e) Is the confession possible; and
(f) Is it consistent with the other facts which have been ascertained and have been proved?
Once a confessional statement is subjected to these six tests, this Court has held that same can be safely relied upon to ground a conviction. See …”
See also the cases of ALAO V. STATE (2019) LPELR-47856(SC) and AKINRINLOLA V. STATE (2016) LPELR-40641(SC).

The lower Court in its judgment found as a fact that some information contained in Exhibit D are those which could only be within the exclusive knowledge of the Appellant and in the same vein found that some portions of the said Exhibit were imputations from PW3. I consider it pertinent to reproduce some aspects of the evidence of PW3 who admitted in evidence to have recorded the statement of the Appellant: –
“… I am in Court to testify that on 18/11/14, I was assigned by my Superior to record the Statement of Defendant. Which I started by cautioning him. After cautioning him he voluntarily asked me to write his statement for him because he cannot write very well, which I did.”

​Under cross-examination PW3 stated thus: –
Q: – Look at the second page where you recorded “I use to” and ‘six sack”, why did you not flow as you were writing, why did you wrong it and write something on it, and same with six sacks (sic)
A: – They are eligible enough. I did not wrong anything there. I only, on the word “who” I write I on top of “w” then “u” on top of “h”, I did not even cross it. It is very clear. That was based on how he was telling me the story. Then on the word “six”, I asked him how many bags recovered from you he told me is five. It was here I purse (sic) and went with him to the exhibit officer to ascertain the figure, after he admitted to the kg, but just to know the mode of concealment and the sacks involved. There he pointed at his exhibit and I said count is (sic) yourself. Then he confirmed it was six. So we came back to the office. That is why five is still visible in the statement.
Q: – This statement is it your statement or the defendant.
A: – It is the statement of the defendant.
Q: – In writing the statement of the defendant do you have the power to alter it and insert something because you think he is telling lie.
A; – I don’t have such power.
Q: – What you are telling the Court is that anything in the statement which you do not agree with you don’t put down, you do your own investigation to confirm it then you write it down according to what you believe.
A: – That is why it is voluntary.
…Kokowei:- …
My question is that they are not within the Defendant’s knowledge to come within his statement it is his (PW3’s) official fiction, (sic)
Court: – …
​A: – As I told you earlier he (Defendant) is not the only person who supplied the information. All these information I got it in reference (sic) from the exhibit office, during the recording of the statement, the exhibit keeper use to bring the forms and a times (sic) he attached (sic) it. And the Defendant claimed he did so, i.e. thumb printed the forms, in exhibit office.”

It would appear to be apparent from the evidence of PW3 vis-a-vis that of the Appellant that as alleged by the said Appellant, Exhibit D upon which the lower Court relied to convict him, was not his making even though he thumb printed the same. It is also not in doubt from the evidence of PW3 that contrary to his claim that PW2 – Exhibit Keeper contributed to the making of Exhibit D, the lower Court in its judgment rightly found this to be untrue or improbable. I have painstakingly read the record and I am of the considered view that the lower Court was wrong in simply treating Exhibit D as a confessional statement which the Appellant retracted. In this wise, it is pertinent to re-produce what transpired immediately before the confessional statement admitted as Exhibit D, was tendered. The same as recorded by the lower Court on pages 58-59 of the record reads: –
“I am in Court to testify that on 18/11/14, I was assigned by my superior to record the statement of defendant. Which I started by cautioning him. After cautioning him he voluntarily asked me to write his statement for him because he cannot write very well, which I did. After recording his statement I read it over to him and he accepted it to be the true statement. Subsequently, he thumb printed the statement likewise myself, …
​Tawum: I seek to tender the statement in evidence.
Kokowei: This statement apart from the opening part, the body of the statement was not what the Defendant told the PW3. They are all importation. In effect, the defendant is retracting the statement.
Court: The statement dated 18/11/14 is admitted in evidence as exhibit D.
Tawun: That is all”

In respect of Exhibit D, the Appellant in his evidence-in-chief testified as follows: –
“Kokowei: You mentioned about the owner of the house.
DW2: I don’t know the owner of the house as at that time. They took me to Ondo. On getting their (sic) they brought paper that they have already written and said I should thumb print it. I said they should read it to me before I thumb print it. So I thumb printed on the paper…
Kokowei: They also said that in this your statement you told them that you used to buy Igbo at Old garage.
DW2: I did not tell them so. They are the ones that wrote the statement, …”

Under cross-examination, the Appellant maintained thus: –
“…
Q: You told the Court that when you got to the office they brought documents to you already prepared and asked you to thumb print and you asked them to explain to you they refused.
A: What I told the Court us what I told them.
Q: I am telling you what you told the Court now that they refused to read the documents to you and said you should not worry.
A: I already said it that when they brought the papers. I asked them to read it to me they said I should not worry, I should sign…
Q: That means this statement that is telling lies against you is among those documents that they said you should thumb print without reading it to you.
A: It is the agony of not been (sic) able to read, otherwise I would have read it myself.
Q: That means the statement is among the documents they brought to you to thumb print.
A: As they said I should not worry so I thumb printed on the documents…”

​It is also very glaring from the record that PW3 not only admitted that he imputed into Exhibit D answers to questions he put to the Appellant at the point of and/or during the recording of the said Exhibit D, but that some of the imputes were based on facts he (PW3) ascertained from the exhibits kept with the Exhibit keeper – PW2. The lower Court as it can be seen from its judgment found Exhibit D to be a confessional statement made by the Appellant to PW3. Given the portions of the testimony of PW3 and the Appellant reproduced above, I am however of the considered view that the lower Court did not fully appreciate that the Appellant basically raised the defence of non-est factum in relation to Exhibit D and that the situation confronting the said Court in respect of the said Exhibit D was not one of simple retraction. In this regard, see the decision of this Court in the case of AGWU V. STATE (2021) LPELR-54725(CA) wherein Lokulo-Sodipe, JCA; applying the decision of the Supreme Court in the case of AIGUOREGHIAN V. STATE (2004) LPELR-270(SC), and (2004) 3 NWLR (Pt. 860) 367; stated thus: –
“At the best, the Appellant was by his grounds of objection raising the plea of non-est factum. The position of the law is that inasmuch as the plea of non-est factum does not admit to the making of the statement involuntarily, the Court should admit the same and determine the question as to whether or not the accused person made the same in the light of the evidence placed before it. That the issue of non est factum is usually confused with that of retraction is what many trial Judges do not bear in mind. That there cannot be a retraction of a confessional statement by an accused person who relies on a plea of non-est factum without first finding that it was made by the said accused person is another position many trial Judges do not appreciate. Reproduced hereunder is what the Supreme Court stated on the issue of non-est factum vis-a-vis retraction of a confessional statement in the case of AIGUORUEGHIAN V. STATE (2004) LPELR-270(SC), and (2004) 3 NWLR (Pt. 860) 367: –
“Although it is conceded that the issue of non-est factum was not raised by counsel when the statements were sought to be tendered, the plea of non-est factum was nonetheless validly raised. Had objections been raised to the admissibility of the statements on the basis of non-est factum, they would still have been admitted in evidence as non-est factum does not affect admissibility, … Therefore raising the objection that the statements were not made by the appellants at the stage of tendering same would have been superfluous as the statements would all the same have been admitted. This Court has held in Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380 at 399-400 F-A that the plea non-est factum in relation to a confessional statement is a matter of fact to be determined by the Judge at the conclusion of the trial. Be it noted that it is trite that when a document is sought to be tendered and is objected to by counsel, what counsel objecting does at that stage is no more than a submission on the admissibility of the statement. Thus, as the issue of non-est factum is a matter of fact, the challenge of such a statement is more properly done when the accused or any other witness of his impugns the statement as not being that of the accused from the witness box. I agree with learned counsel for 2nd appellant therefore that as counsel is not competent to give evidence from the bar and the challenge of a confessional statement on grounds of non-est factum is a matter of fact, the challenge is appropriately made when the accused as witness denies the making of such a statement. As I had cause to observe in Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380, a case identical to the one in hand:
“… Now the voluntary statement of the appellant which was confessional in nature was received in the proceedings giving rise to this appeal as exhibits B and B1 and these are part of the prosecution’s case. See Anofi Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101. The appellant for his defence in rendering his testimony in Court, admitted he never said what was recorded. He thereby sought to retract the statement rather than its involuntariness that was in issue.”
In view of the appropriate attack of the appellants of the statement (exhibits A and C) as not being their deeds, it was incumbent on the Courts below to have made a finding on whether the said statements were actually made by the appellants before holding that the statements were retracted or before putting them into any use in convicting the appellants.
It is noteworthy to stress that the terms “retraction” and “resile from” have been used interchangeably in most decisions with the pleas of non-est factum. This is misleading since a statement must first be shown to have been made before it can be said to have been retracted by its maker for, where the very making of the statement is in issue, the retraction cannot arise at that stage. It is in this wise that I agree that where an accused person sets up a defence of non est factum in relation to a confessional statement, what he has done is not a retraction but a denial of the making of the statement. No finding was made by the two Courts below on the issue of fact as to whether the appellant made the statements. The application therefore of the rule in Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419 and Asanya v. The State (1991) 3 NWLR (Pt. 180) 422, two cases that have been overruled, was therefore prejudicial to the appellants whose conviction ought not to be allowed to stand. See Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383. What it boils down to is that had the testimony of the 2nd appellant and his extra-judicial statement (exhibit C) not been treated as unreliable, the 2nd appellant would have been absolved of the offence of murder of the deceased based on his defence of alibi which was not investigated. Furthermore, the evidence of PW2 who himself was a victim of the same attack, ought not to have been viewed with as much confidence as the trial Court and the Court below did, it being the evidence of a victim.
It is for these reasons I have given above that the answer I proffer to issue No. 2 is in the negative.
For all I have been saying, I also allow the 2nd appellant’s appeal, set aside the decisions of the two Courts below and discharge and acquit each of the appellants.”
​I am of the considered view that even though the lower Court was apparently misled by the use of the word “retracted” by learned counsel for the Appellant at the point of tendering the confessional statement admitted as Exhibit D, it however correctly admitted the same without explicitly treating the objection to its admissibility as being based on the ground of non-est factum. This is because there was no objection to the admissibility of the Appellant’s extra-judicial confessional statement admitted as Exhibit D, on the ground that it was not made voluntarily. It is also apparent from the portions of the judgment of the lower Court that have been re-produced and underlined hereinbefore, that the lower Court even without first considering Exhibit D in the light of the principle of non-est factum as enjoined by law in the circumstances of the instant case, but as one of simple “retraction” still made a finding that the said Exhibit D was made by the Appellant, and voluntarily too. I simply do not see how the finding or conclusion of the lower Court in this regard can be said to properly flow from what the lower Court said in its judgment which as earlier stated has been re-produced and underlined hereinbefore.

It is clear from the provisions of Section 31 of the Evidence Act, 2011, that the fact that a confessional statement was obtained by question-and-answer session does not render the same irrelevant once it is relevant to any matter in issue. See also the case of AHMAD V. STATE (2019) LPELR-47973(CA). 

Similarly, the position of the law is not that for a confessional statement to be admissible, the recorder of a confessional statement made by an accused who is unable to write his statement by himself must give evidence of the specific questions asked and answers elicited from an accused person during the recording of the voluntary confessional statement in question. It is however very clear from the cases, that doing this should be restricted to matters of the name of the accused, address, occupation and other details about himself and as to his involvement in the crime he is alleged to have committed. See the case of HAMZA V. STATE (2019) LPELR- 47858(SC). It would appear that the lower Court in holding that Exhibit D was voluntarily made because information stated therein in respect of the personal details of the Appellant could only have been provided by him, did not appreciate that an accused making a statement will not ordinarily start narrating details about himself, educational achievements and marital status, if questions in that regard were not put to him by the Policeman or Policewoman recording the said statement. I am therefore of the considered view that the lower Court in determining the truthfulness of Exhibit D, literally misdirected itself when it stated in its judgment thus: –
“Again, as earlier stated above, the defendant, in his evidence before the Court, retracted the above confession. He alleged that the statement was pre-written by the NDLEA officers and he was simply asked to thumb print on it without the statement been first read over to him even though he demanded that is (sic) should be read over to him. I do not believe the defendant’s claim that the statement was pre-written by the NDLEA officers and he was simply asked to thumb print on it without same been first read over to him. The statement contains a brief biography of the defendant. It contains the date and place where he was born, the primary school he attended and the fact that he dropped out in class 3. It also contains the fact that he thereafter went to learn motor mechanic work at Akure, but stopped six months to his graduation because of his mother’s death. It furthermore, contains the dates he married his first wife and second wife, after the death of his first wife, and the number of children he had or has with each of the wives. No doubt these are informations (sic) that are best known to the defendant. Under cross-examination, he admitted some of the above facts that were mentioned to him by the prosecuting counsel, to be correct. If the statement was pre-written, how did the NDLEA officers got (sic) all the above personal information about the defendant? The defendant did not claim that any of the NDLEA officers knew him before his arrest. He also did not claim that any other person that knows him gave the NDLEA officers his personal particulars. I therefore reject the defendant’s claim that he did not make the statement in question, i.e. exhibit D. I find that the statement was made by the defendant, and it was voluntary.”

The information alluded to by the lower Court in its judgment was such that PW3 in recording Exhibit D was eminently entitled to have asked the Appellant and the fact that the said PW3 recorded answers provided him in response to the questions that elicited the information in question, does not ipso facto render as untenable the Appellant’s stance that the PW3 came with a pre-written statement. The inference that can also be made, is that PW3 simply filled a portion of the statement he had pre-written with correct information supplied by the Appellant in order to give the said statement a semblance of truth. The position of the law to the effect that a Policeman or Policewoman recording the statement of an accused as a suspect can ask questions considered relevant in respect of the crime under investigation, in my considered view is however no license for the recorder of a confessional statement to import or impute therein material facts about the matter the accused person is standing trial for and to attribute the same to the said accused as matters to which he confessed. A confessional statement by law must be the direct and unequivocal statement of the accused person. I am of the considered view that it is very glaring from the underlined portions of the judgment of the lower Court re-produced above, that the lower Court failed to appreciate the fact that what it admitted that PW3 imported into Exhibit D and the fact that some of the information contained therein, was not from the Exhibit Keeper as PW3 wanted the lower Court to believe and act on, radically changed the nature of the narration in Exhibit D to that of the said PW3 and not that of the Appellant irrespective of the truthfulness of certain aspects of the information supplied to PW3 by the Appellant.

Furthermore, the lower Court in my considered view also did not appreciate the fact that as there were alleged two different seizures made from the Appellant; one in the room where he lived and the other from a building he was said to have rented, the said seizures ought to have been treated as different exhibits. The lower Court instead of appreciating the need for the seizures made at different places and at different times to have been tested and the results thereof tendered separately by the prosecution, the said Court took it upon itself (acting without evidence in that regard) and made a finding that the seizure made in the Appellant’s room/house came from the larger seizure made in a building said to have been rented by or for the Appellant by “Oyinbo – a soldier man”. These observation, lapses or gaps in the prosecution’s case in my considered view were sufficient for the lower Court to have found that the Appellant did not make Exhibit D and in no small measure lent credence to the claim of the Appellant that PW3 came with a prepared statement which he (Appellant) was made to sign and thus was very consistent with the position of the Appellant in his evidence before the said Court that he did not make the statement admitted as Exhibit D. It would also appear to me that the position of the lower Court that it was entitled to accept some part of Exhibit D and reject some part of it, and relying in this regard on the case of GARBA V. STATE (1997) LPELR-1308(SC) is a total misapplication of the law as enunciated by the Supreme Court in the said case. This is what the Supreme Court stated in the case under reference: –
“The main contention of learned Senior Advocate of Nigeria, J.B. Daudu Esq., for the appellant, is that both Courts below were in error to have employed the incriminating parts of Exhibit 8 against the appellant while at the same time rejecting the exculpatory aspects thereof which raised the defences of private defence and provocation.
The law appears settled that where a mixed statement is under consideration in a case where an accused person has not given evidence, the Court should advert its mind to the fact that the whole statement, both incriminating parts and the excuses or explanations therein must be considered together in deciding where the truth lies. See …. A trial Court however is entitled to accept an incriminating portion of a confessional statement as established while rejecting another portion of the same statement, especially where, upon a consideration of the entire evidence before the Court, there exists overwhelming credible evidence in support of such incriminating portion of the confessional statement, as well as other pieces of evidence which render the rejected exculpatory part clearly unreliable…”

​In the instant case, the lower Court would appear to have lost sight of the fact that the Appellant testified, denying that he made Exhibit D, and that it was therefore incumbent on the said Court to have first made a finding that the said Exhibit D was made by the Appellant and to have thereafter applied the test put in place by law for the purpose of ascribing weight or credibility to a confessional statement to the said Exhibit (i.e. whether there was overwhelming credible evidence in support of the incriminating portion of Exhibit D as found to be the case by the lower Court and which position in my considered view is not supported by the totality of evidence adduced before the said Court). See again the case of BASSEY V. STATE supra. In other words, it is a total mystery how the lower Court could be said to have rightly decided to pick or choose which aspects of the said Exhibit D were made by the Appellant and acceptable for the purposes of his conviction given the imputations therein made by PW3 vis-a-vis the evidence of PW1, PW4 and the said PW3 against the backdrop of the inconsistencies in the evidence of these witnesses as highlighted by the Appellant in his brief of argument. The relevant portions of the evidence of the said witnesses are reproduced hereunder: –
PW1 in his evidence in chief before the lower Court on 14/4/2016, stated as follows: –
“… Based on information received by (sic) a good citizen of Nigeria in the office concerning the illegal activities of drugs, on the 18/11/14. I was among the team of NDLEA operatives from Ondo Area Command led by the 2ic (sic) of the command Mr. Godwin Owirri S.N. (Supretendant of Narcortic (sic) and went for a raid operation to the house and premises of the said suspect whereby we arrested him with some raps (sic) of dried leaves suspected to be cannabis sativa in his possession, inside his room. We went ahead (sic) to another room he rented, for himself, and there again we discovered a large quantity of dried leaves suspected to be cannabis sativa in black rubber container.”

Under cross-examination, the PW1 stated thus: –
“Q: The Defendant was arrested in his house, correct?
A: – Yes.
Q: – After the arrest of the Defendant he was taken from his house to a different location, correct?
A: – Yes.
Q: – We may move the Court to the locus incur (sic) tell the Court the distance between the Defendant’s house to the other room.
A: – Just three minutes tracking (sic)
Q: – Give example of the distance, it is upto (sic) the police Head Quarters.
A: – No. Just like from here to the other road (Outside the Court premises) Why it took time is because we put leg-chain on his leg and we were moving slowly in order not to attract attention of other people.
Q: – What was the particular location were (sic) the Defendants was arrested.
A: In Owena Village in Idanre L.G.A
Q: As at the time the defendant was arrested at his house, what time?
A:- Around 0130 hours in the morning.
Q: – As the time Defendant was arrested was he the only one in the house.
A: – Yes.
Q: – At the rented room that you found the offending substance was it an abandoned building or a dwelling house.
A: No it was an abandoned building
Q: – Are there no occupants of that house.
A: – I don’t know the occupants of the house.
Q: Can you describe the house.
A: – Yes, were (sic) the large container was found, when you enter the village there us one Antena (sic), then from there we used leg, though I am not conversant with the terrain, because we were led by somebody. The house, when you enter the compound there is a building by the right and left and there is one facing you when you come in. The one facing you is where we recovered the exhibit,
Q: You said somebody led you from the Defendant’s house to the room.
A: – No we work with informants, so he is not drug agent he cannot lead us (sic)
Q: – You said you packed by the antenna and used leg and somebody led you, all that while the Defendant has been arrested.
A: – Yes. The Defendant led us to the place (where the substance was recovered).
Q: – I asked you that you earlier said someone led you to the place and you said yes.
A: – No. The person led us to his (Def.) house, then he (Def.) led us to where he is keeping it.
Q: – This is a Court of Justice and you don’t have any interest other than the justice of the matter and you would be happy if an innocent person goes to jail.
A: – Yes.
Q: – You have told this Court that you are not familiar with the terrain somebody led you, the somebody is now the Defendant.
A: – Yes
Q: – At the rented house where the offensive substance was recovered describe the house, is it a bungalow, face me and face you or what how many rooms (sic).
A: – I cannot say the number of rooms. All I know is that there are houses on the left and right and one facing us. The one facing us is where we recovered the substance. It is a mood (sic) house.
Q: – As the arresting officer, in your own evaluation of the house, it is not a one room house, correct?
A:- Yes
Q: – You would agree with me that there were people living in that house, it is a dwelling house.
A: – Yes.
Q: – Since there were people living in that house and you went to the house at that time how did you gain entrance to the house.
A: – It is an open place, there is no entrance.
Q: – Did you have any cause to interrogate any occupant of the house.
A: – We don’t have any business with them
…”

The PW4, IPO, in this regard under cross-examination, stated thus: –
“Q: – The cannabis sativa in question was found in the room the defendant was arrested is that right?
A: – No
Q: – Can you describe the place the drug was found?
A: – This modern day, drug peddlers don’t keep their drugs in the same room they live. From intelligence gathered the suspect was arrested taken to where his exhibit where (sic) kept at a close distance.
Q: – Can you describe the house where the drug was found.
A:- I cannot because of the time frame (time lapse).
Q: – You do not also know the address of the house the drug was found.
A: – I don’t know the address of the house but I can take you to the house. The houses in Idorin are not properly numbered.
Q: – Is the house in Idorin?
A: – Owena is Idorin Area.
Q: – It is corrected (sic) to say that in the course of your investigation, you never visited the house where the drugs was found (sic).
A: – I was part of the team that made the arrest.
Q: – How many rooms were in that house.
A: – I cannot remember.
Q: – In which of the rooms was the drugs recovered.
A: – In one of the rooms, I cannot remember the exact room.
Q: – The house in question was a dwelling house.
A:- Yes.
Q: – How many people were in that house as at the time you carried out the operation.
A: – We are after our target not any other person in the house.
Q: – Your target was living in a different house taken to another house inhabited by other persons. As the I.N.O you ought to question the people in that house, so how many people were in that house.
Q: – As an intelligent organization before we embark (sic) on an operation we gather intelligence and go straight to our target. We don’t go about checking other rooms.
Q: – You were not with the officer who obtained the statement of the defendant.
A:- I was not with him.
Q: – If this Court is to visit the locus incur(sic) describe how we would get to the house.
A: – I told the Court I was part of the team that visited the house. I am not the surveillance officer. The surveillance officer is in a position to give the description of the house.
Q: – I put it to you that you did not visit the house during your investigation because there was no surveillance officer to take you to the house on 19th.
A: – I was part of the team that went to the house. We went their (sic) 1.00 O’clock in the night.
Q: – You did not visit the house during the investigation of the case.
A:- There was no need for that.
Q: – It would be correct to say that you sat down in your office and concluded your investigation.
A: – With the fact before me I have every reason to conclude in my office.”

The Appellant in his evidence in chief stated thus: –
“On 18/11/14 I was in my house with my wife and children. We were sleeping. That is how I heard knocking; koko koko, kaka. I saw a lot of touch (sic) light outside through the window. I told my wife, is it not thieves that came to this house? Later I was hearing open the door open the door. Before I can stand up. They have already forced the door opened (sic).
That is how they came in and searched everywhere in the house and wake everybody up. They asked me where is my “Igbo” I, told them I don’t know anything about Igbo. I am not smoking it.
After they conducted the search in the house and did not find anything, they hand cuffed me and asked me to wear my cloth. This is how they took me outside my house. My wife followed us they chased her back that she is a woman.
As we were going after about like six or seven NEPA poles (distance) we entered one house. As we entered the house, they have already spread the cannabis sativa outside the house. They asked me who owns this, I said I am not the owner, (sic) Then they said I should enter their vehicle. They packed the Indian hemp inside the vehicle, (sic) That is how they took me to Ondo
Kokowei: – You mentioned about the owner of the house.
DW2: – I don’t know the owner of the house as at that time.
Then they took me to Ondo. On getting their (sic) they brought paper that they have already written and said I should thumb print it. I said they should read it to me before I thumb print it. They said I should not worry. So I thumb printed on the paper…”

​It is my considered view that the evidence of PW1 and PW4 regarding whether or not the Appellant was on his arrest found with any quantity of the cannabis sativa is contradictory. Likewise, the evidence of these witnesses regarding the location or scene where the substance that was tendered at trial was found and which is very material to the proof of the second ingredient of the offence as stated hereinbefore. I am also of the considered view that from the portions of the evidence reproduced above, it is clear that the witnesses were not ad idem as to how they got to know where the bags of substance the Appellant was alleged to have in his possession were kept. This is to say that the witnesses were not ad idem as to whether it was the Appellant that took the Officers of the Agency to where the substances were recovered or whether the said Officers simply led the Appellant there as they already had information as to the location of the said substance consequent to the previous surveillance the Agency had engaged in. I am of the considered view that if the lower Court had painstakingly applied the tests Courts have been admonished to resort to before relying on a confessional statement in convicting an accused person, the said Court would have seen that the prosecution did not establish that there was anything outside the said confession to show that it is true; that the facts of the said confession is corroborated; that the relevant statements made in it is in fact true as they can be tested; that the confession was possible and that it is consistent with the other facts which have been ascertained and have been proved. The prosecution I cannot but again note, portrayed the substance to have been recovered from the house of the Appellant as well as in a room in a building said to be rented by/for the Appellant. The prosecution however failed to show that indeed the Appellant was exclusively in constructive or actual possession of the room from which the alleged substance was said to have been recovered. This is against the backdrop of the testimony of PW4 to the effect that it is not their concern to have anything to do with any other occupant of the building. The point is, when the prosecution did not lead evidence to show that the room in question was rented by the Appellant from any person, and did not show that the room which was hitherto locked was unlocked for the Officers of the Agency by the Appellant, then it beats me hallow how it can commonsensically be concluded by any reasonable tribunal that the substance said to have been recovered from a room into which any other person could come in to put the substance, remove things or plant things (even the informant to the Agency not excluded) can be said to be in the possession of the Appellant. All I have been endeavouring to show is that given the inconsistencies in the evidence of PW1 and PW4 as to how the substance ascribed to the Appellant was recovered and the lack of evidence showing the exclusive possession by the Appellant of the room in which the substance was alleged to have been recovered as well as the story of the Appellant from his evidence and which is to the effect that his possession of the substance was concocted by Officers of the Agency who in any case admitted that the Appellant was their target before they went to make the bust as it were, it becomes obvious that the lower Court was wrong in giving any weight to any portion of Exhibit D. This is so, even if it is assumed that the lower Court was right in concluding that the said Exhibit was made by the Appellant when it did not correctly identify and painstakingly address the issue of non-est factum raised by the Appellant.

It must be pointed out that the position of the law in the cases of Ibeh V. State and Sule V. State, amongst others relied on by the lower Court is settled to the effect that where there are material contradictions in the evidence of a party, it is not for the Court to pick and choose which one in its opinion is more acceptable and probable as the circumstances of the case before it demands. This general rule however does not apply where the said “variations” in evidence do not amount to contradictions but are discrepancies in which case, the Court may, considering other aspects of the case align itself with the facts which are corroborated by some other credible evidence and must not in the circumstance be in respect of a material element of the case/charge. The totality of the case must at all times be considered by the Court in the light of the said contradictions.
In the case of Ibeh v. State cited and relied on by the lower Court, the Supreme Court per Belgore, JSC; dwelling on the issue of contradiction in evidence stated thus: –
“The proper role of the Court in a criminal trial is to evaluate all the evidence before it and be sure that the case for prosecution has been proved beyond reasonable doubt and convicted; but if there is doubt, whether based on material contradictions or lack of sufficient evidence, the benefit of that doubt must be given to the accused person.
Once there is contradiction and it remains unexplained that will be doubt on the evidence of that witness; if the witness is for the prosecution and the contradiction happens to be material as in this case, a doubt then exists and the benefit of it must be given to the accused. The learned trial Judge devoted much of his judgment justifying the evidence of prosecution despite the contradictions and outrightly rejected the evidence of the defence.”
​In his contributory judgment in the case under reference, Wali, JSC; stated thus: – “As this Court observed in Boy Muka v. The State (1976) 9 & 10 SC 305 particularly at 325, the Court is duty bound to evaluate the whole evidence adduced by the prosecution in order to come to the conclusion that the prosecution’s case has been proved. It is not for the Judge to pick and choose which set of the prosecution’s witnesses to believe and which to reject, but must evaluate the totality of the evidence adduced by the prosecution. The Judge cannot simply accredit one set of witnesses and discredit the other without cogent reason; explaining the discrepancy in the testimonies by the witnesses. See …”

In my considered view, contradictions which relate to an element or ingredient of an offence for which a defendant is charged amount to material contradictions and the prosecution cannot be said to have proved a case beyond reasonable doubt where a material contradiction remains unexplained as in the instant case.

​The lower Court seems not to have adverted its mind to the fact that in a criminal trial, there is no avenue for speculation. That it is expected to act on facts established with certainty and by legally admissible evidence showing that an accused person (in this case the Appellant) committed the offence he is charged with. See the case of SANI V. STATE (2015) LPELR-24818(SC). The lower Court in the instant case glaringly engaged in justifying and filling in the gaps in the case of the prosecution and did not appreciate the position of the law that inasmuch as a confessional statement of an accused is part of the evidence of the prosecution, it is the prosecution that has the duty of explaining any material contradiction in the totality of the evidence it has placed before the Court. The law does not expect a Court as an impartial arbiter to resolve material contradictions in the evidence placed before it by parties. Indeed, I cannot but observe that the sentence passed on the Appellant by the lower Court in my considered view, is somehow indicative of the fact that the said Court was not convinced of the guilt of the Appellant in respect of the offence with which he was charged on established facts but only felt obliged to convict the Appellant to please the prosecution; and therefore decided to sentence him to a term of imprisonment that is much more less than the mandatory minimum sentence of not less than 15 years stipulated under Section 19 of the NDLEA Act under which the Appellant was charged. There is absolutely nothing on record to show that this incongruous sentence as it were, was as a result of any plea bargain under the Administration of Criminal Justice Act, 2015. This being the situation I will restrain myself in considering whether or not “plea bargain” is applicable to sentencing under Section 19 of the NDLEA Act given the clear and unambiguous provisions of the said Section.

Flowing from all that has been said hereinbefore is that the sole issue for the determination of this appeal is resolved in favour of the Appellant and against the Respondent.

In the final analysis, there is merit in the instant appeal and it succeeds. It is hereby allowed. Accordingly, the conviction of the Appellant and the sentence passed on him by the lower Court are hereby set aside. An order acquitting and discharging the Appellant, is hereby made by this Court.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Ayobode Olujinmi Lokulo-Sodipe, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein. I have nothing more to add.

YUSUF ALAHJI BASHIR, J.C.A.: I have had the opportunity of reading in draft, the lead judgment delivered by my learned brother AYOBODE O. LOKULO-SODIPE, (JCA).

I entirely agree with the reasons stated by his lordship in coming to the conclusion that there is merit in the instant appeal. The appeal therefore succeeds.
It is hereby accordingly allowed.

The conviction and sentence imposed on the Appellant by the lower Court are hereby set aside and in its place, an order acquitting and discharging the Appellant is hereby made.

Appearances:

K. Kokowei For Appellant(s)

N.A. Ekanem (Asst. State Commander, NDLEA, Osun State) For Respondent(s)