BASHIR LAWAL v. FEDERAL REPUBLIC OF NIGERIA (2019)

BASHIR LAWAL v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/13462(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/AK/106C/2018

RATIO

POSITION OF A REPORT OF SCIENTIFIC NATURE FROM ANY GOVERNMENT PARASTATAL IN NIGERIA

This was the finding of this Court per my learned brother Yahaya JCA in the case of MUSA V FRN (2013) LPELR 22844 (CA) as follows:-
Any document pertaining to be a report under the hand of expert on chemistry or other branch of scientific knowledge in the service of any Government of Nigeria, on a substance submitted to him for examination or analysis, may be used as evidence in a criminal trial. See Section 250 (1) of the CPC. It is only when the Court considers it desirable, that it may require the person who analysed the substance and issued the report to appear and give evidence in person Section 250 (2) CPC. The appellant here had pleaded guilty, clearly showing that he knew the substances recovered from him to be Indian hemp or cannabis sativa. Since there was no dispute, the trial judge did not consider it desirable to call the maker to tender it. He was right.PER PATRICIA AJUMA MAHMOUD, J.C.A.

EVIDENCE: PROBATIVE VALUE WHEN THE MAKER OF THE DOCUMENT IS NOT CROSS EXAMINED
In the case of ABOABA V OGUNDIPE (2017) LPELR 42922 (CA), this Court found that it is trite that where the maker of a document is not called to be cross examined, the Court should not attach any probative value on such documents admitted in the absence of admissible oral evidence by person who can explain their purport are of no useful purpose. My learned brother in the case referred to and followed the decisions in NBC PLC V UBANI (2009) 3 NWLR, PT 1129, 512; G. CHITEX IND. LTD V OCEANIC BANK INTERNATIONAL NIG LTD (2005) 14 NWLR, PT 945, 392 and ALAO V AKANO (2005) 11 NWLR, PT 935, 160. As the Supreme Court explained in the case of OMEGA BANK NIG. LTD V OBC LTD (2005) 1 SCNJ, 150, the rationale behind this principle of law is that while a maker of a document is in a position to answer questions on it, the non maker of it is not in such a position.PER PATRICIA AJUMA MAHMOUD, J.C.A.

JUSTICE

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

BASHIR LAWALAppellant(s)

AND

FEDERAL REPUBLIC OF NIGERIARespondent(s

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant Bashir Lawal was arraigned in charge No. FHC/AK/28C/13 along with three others on a four count charge of dealing in petroleum products without lawful authority or appropriate license among other heads of count. The three others were alleged to have died in the course of the trial. The appellant pleaded not guilty to all the counts in the charge and the matter proceeded to trial. In proof of its case the prosecution called four witnesses and tendered eleven exhibits which were tendered and marked as Exhibits A-K.

The Defendant called one witness who was subpoenaed, did not testify in his own defence, tendered one exhibit, the subpoena served on DW1 and closed his case.

At the conclusion of hearing the learned trial judge, Justice F. A. Olubanjo in the Federal High Court sitting in Akure in a judgment delivered on the 5th day of July, 2017 convicted the appellant on two counts of conspiracy and dealing with adulterated petroleum product. He was discharged and acquitted of the other two counts of the four count charge that he was charged

and tried on.

It is against this conviction and sentence that the appellant now appealed to this Court on eight grounds of appeal dated and filed the 29/09/2017.

In compliance with the rules of Court and in prosecuting his appeal, the appellant raised four issues for determination as follows:-
1. Whether having regards to the facts of this case, the learned trial judge was right in attaching weight to Exhibit H and relying on same to convict the appellant, when the maker of the document was not produced for cross-examination upon the request of appellant and Ordered by Court? (Grounds 1 and 6)
2. Whether having regards to the registration number of the vehicle allegedly used in committing the offence as contained on the charge and the evidence and record of the Court, the learned trial judge was right in convicting the appellant? (Ground 2)
3. Whether having regards to the content of Exhibit K and the oral evidence of Prosecution witness on record, the trial judge was right in holding that the sample was on taken on 7th May, 2013? Grounds 4 and 5)
4. Whether having regards to the quality of evidence led by the prosecution, it

could be said that the prosecution has proved its case as required by law? (Ground 8)

In arguing the appeal, Mr. Emmanuel Rotji of counsel for the appellant adopted the brief as his legal arguments in support of the appeal. On issue (1) counsel submitted that the prosecution failed to produce the government chemist for cross examination on Exhibit H pursuant to the order of Court. Counsel contended that conviction and sentence of the appellant by the trial Court is premised on the conclusion reached from Exhibit H. Counsel referred to the cases of OMEGA BANK PLC V OBC LTD (2005) 8 NWLR, PT 928, 547 AT 581; HON, OKECHUKWU IGWE V INEC & ANOR (2012) LPELR 9834 (CA) and ONWARD ENTERPRISES LTD V OLAM INTL LTD (2010) AFWLR, PT 531, 1503 AT 1510-1511, PARAS E-E to submit that a document signed by an unidentified person cannot be a document the Court should attach any weight to. Counsel also argued that the document, Exhibit H was admitted through a witness who is not its maker. That there is no indication on the Exhibit as to the qualifications of the maker to conclude that the maker was an expert. Counsel referred to the case of

SOWEMIMO & ANOR V STATE (2004) 4 SCM, 199 AT 210-211; AZU V STATE (1993) 6 NWLR, PT 229, 303. Counsel referred to the case of MODUPE V STATE (1988) 4 NWLR, PT 87, 130 AT 138, PARA D to submit that an opinion can only be considered if it amounts to an expert opinion. That Exhibit H is an expert report and failure to state the qualification of the maker is fatal to the prosecutions case and the Court ought to have discountenanced the report and not put any weight to it. Counsel relied on EZE V STATE (2015) ALL FWLR, PT 811, 1394 AT 1423-1424 PARAS F-B; NYESOM V PETERSIDE (2016) ALL FWLR, PT 842, 1902 AT 1924, PARAS D-E and OKEREKE V UMAHI (2016) ALL FWLR PT 833, 1573 AT 1637, PARA F to submit that the Court ought to have discountenanced Exhibit H because PW2 was not the maker and the qualifications of the maker were not stated on the document. He urged the Court to resolve this issue in favour of the appellant.

On issue (2) Mr. Rotji submitted that the charge which the appellant pleaded to and upon which he was tried was one committed using a long DAF TRUCK with registration No EKY- 699 XH. That PW1, PW2 and PW4 gave different registration numbers as EKY- 699 XH;

EKY- 699 SH and EKY- 699 SK. That there is also EKY- 698 XH contained in the order of Court releasing the vehicle to the appellants employer and dated 30/09/2014. Counsel referred to the case of FRN V BARNINAS (2017) AFWLR, PT 882 1256 AT 1295, PARAS B-C 1282- 1283 PARAS E-A to submit that based on the above discrepancies, this Court must upturn the conviction which was based thereon. Counsel referred to the cases of BAKARE V STATE (1987) 1 NWLR, PT 52, 598 and GUFWAT V STATE (1994) 4 NWLR, PT 327, 435 AT 461, PARAS E-F to contend that any discrepancy or irreconcilable conflict in the evidence of the prosecution must be resolved in favour of the accused person.

In submitting on issue 3, counsel referred to Exhibit K to show that the only date thereon is 09/05/2013. That this shows that the sample was taken on the 09/05/2013 as confirmed by PW2 under cross examination. That this shows that the report dated 07/05/2013 could not have been based on the sample taken two days later on 09/05/2013. That it is not an option for the Court to speculate. He urged the Court to also resolve this issue in favour of the appellant.

The fourth and last issue

seem to be a summary of all the submissions made by counsel. I do not find it useful to summarize same. Counsel urged the Court to allow the appeal.

The respondents brief in opposition to the appeal was filed on the 31/05/2018 but deemed on the 07/11/2018 by MR. K. O. Olodeoku Deputy Director, Zonal, Federal Ministry of Justice. Counsel did not however turn up on the day of hearing even though hearing notice was issued on him. The Court pursuant to Order 19 (5) (1) of the Rules of Court 2016, deemed the respondents brief as having been argued. In it counsel raised three issues for the determination of the Court:
1. Whether the admission of Exhibit H in evidence and the weight accorded it for the conviction of the accused person by the trial Court was wrong in law?
2. Whether on the strength of the facts and evidence before the trial Court, there was a conclusive proof of the existence and identity of the vehicle used in committing the offence?
3. Whether on the totality of the evaluated facts and evidence before the Court, the accused person was rightly convicted?

On issue (1) counsel relied on SECTION 83 (2) (a) of the EVIDENCE ACT, 2011

as giving the Court the unfettered discretion to admit any document in evidence even though the witness is not the maker. Counsel submitted that it is erroneous to expect a report to be signed by an officer other than the person to whom the request was made. That the evidence of witness summons and affidavit of non-service on Alexander-Otakpo M. N. (MRS) shows that it is not reasonably practicable to secure her attendance or that all reasonable efforts to find her have been made without success. That this entitled the Court to admit that document pursuant to SECTION 83 (2) (a) of the EVIDENCE ACT. Counsel referred to the cases of ABADOM V STATE (1997) 9 NWLR, PT 479, 1 and BUHARI V INEC (2008) 12 MJSC, 293-294 to contend that the fact that the maker of a document was not called as a witness cannot render the document inadmissible.

On issue (2), counsel submitted that there was conclusive proof of the existence of a particular truck in which the adulterated product was contained and the identity of this truck had been confirmed by the accused person. That the discrepancies in the plate number is grossly immaterial to

vitiate a conviction based on the evaluated facts and evidence before the Court. Counsel referred to NWANKWOALA V STATE (2006) AFWLR, PT 339, 801 AT 802 and DURU V STATE (1993) 3 NWLR, PT 281, 283. That the Court not being in doubt as to the existence and identity of the truck used in the commission of the offence rightly ascribed the appropriate weight on same in the evaluation of evidence to convict the appellant. Counsel urged the Court to so hold.

Like in the appellants brief, issue (3) of the respondents brief seems to be a summary of issues (1) and (2). I find it unnecessary to summarize it herein. Counsel urged the Court to resolve all the issues raised in favour of the respondent, dismiss the appeal and affirm the judgment of the lower Court.

From the grounds of appeal and the issues raised by the parties it is my view that the following issue will determine this appeal effectively:
Who was the expert (chemist) who carried out the analysis of the diesel and found it to be off specification i. e. adulterated? And what is the effect of the failure of the prosecution to call him as a witness to tender the report

and or be cross examined by the appellant on it?

SECTION 68 of the EVIDENCE ACT, 2011 is the relevant provision on who is an expert on an issue. It provides as follows:
68(1) When the Court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible.
(2) Person so specially skilled as mentioned in subsection (1) of this section are called experts.”
A person is therefore an expert on such point of science when there is evidence that he had knowledge, training or experience in the matter in question. But whether or not a person is qualified as an expert is a question for the judge to determine. See AZU V STATE (1993) 6 NWLR, PT 229, 303 AT 311 and ABIODUN V FRN (2018) LPELR 43838 (SC). There is no doubt that Exhibit H, the laboratory report on the product that classified it as adulterated and therefore an

offence for which the appellant was convicted is the report of an expert. The appellants counsel in the Court below objected to its admissibility on the grounds that it was signed by an unknown chemist and that it was not tendered through the maker. The document was tendered through PW2, admitted and marked as Exhibit H. PW2 is Mr. Jobi Olamide Victor, a staff of Nigeria Security and Civil Defence Corps, Ondo State Command. The trial judge admitted the document in spite of the objection of counsel that PW2 is not the maker. I hold that the learned trial judge was right to have admitted the document. This is because the law that governs admissibility is relevance and whether there is proper and sufficient pleading of fact related to the document. See OSENI V STATE (2012) NWLR, PT 1193, 31. In the case of BLESSING V FRN (2013) 12 WRN 36, this Court found that:
It is not necessary for forensic expert who analyzed the drug and issued the report Exhibit 4 to come to Court in person to tender the document for it to be admitted ..
The other plank of the argument is the application of

SECTION 83(1)(a) and (b) of the EVIDENCE ACT which gives the Court the unfettered discretion to admit a document in evidence even though the witness is not the maker:-
Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied it he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably, practicable to secure his attendance or if all reasonable efforts to find him have been made without success.
From Exhibit H, it is apparent that the relevant document is the report itself and not the letter forwarding the report. The report is signed by an unnamed chemist. It is the report that is the forensic document therefore the expert evidence and not the covering letter signed by Mrs Alexander Otakpo M. N. In the proof of evidence as contained at page 8 of the printed records, she is reported to be the Area Chemist of the PPMC LTD. She signed the covering letter on behalf of and for the Area Manager. A simple comparison of her signature and the one for the chemist shows without a doubt that the two signatures are not authored by one and the

same person. In other words MRS Alexander Otakpo M. N. is not the maker of the report and I so find. The reliance on Exhibit H is to the effect that MRS Alexander- Otakpo M. N. could not be found as evidence by the endorsement on the return of non-service on her. The truth of the matter is that she is not the maker of the document. Though being a chemist she may have been in a position to have answered some questions on the report but not specific question on the analysis and the tests conducted on the sample. I find therefore that it is of no moment in this case that Mrs Alexander-Otakpo M. N. could not be found. She is not the maker of the report who should have been called to tender the report or give evidence of its findings from the examination.
It is important therefore that having wrongly admitted Exhibit H, the learned trial judge should not have placed any weight on it as it has no probative value. The trial Court in discountenancing the objection of counsel against the admissibility of Exhibit H on the ground that the report was not tendered through the maker did not consider whether upon the application of counsel to the accused that they

required to cross examine the maker it was desirable to call the maker.
This was the finding of this Court per my learned brother Yahaya JCA in the case of MUSA V FRN (2013) LPELR 22844 (CA) as follows:-
Any document pertaining to be a report under the hand of expert on chemistry or other branch of scientific knowledge in the service of any Government of Nigeria, on a substance submitted to him for examination or analysis, may be used as evidence in a criminal trial. See Section 250 (1) of the CPC. It is only when the Court considers it desirable, that it may require the person who analysed the substance and issued the report to appear and give evidence in person Section 250 (2) CPC. The appellant here had pleaded guilty, clearly showing that he knew the substances recovered from him to be Indian hemp or cannabis sativa. Since there was no dispute, the trial judge did not consider it desirable to call the maker to tender it. He was right.
There is a lot of wisdom in this authority. Wisdom which I will confidently say was not applied in the instant case.
From Exhibit H, it is not easy for an ordinary person to

read all the numbers and understand what it means. It is only the remarks which is the conclusion that states The product is off specification, hence it is adulterated. To my mind it is not enough that this is the conclusion. The appellant through his counsel may want to question the maker that what is the level of adulteration, whether it is consistent with a deliberate adulteration or could it have resulted from using a container to store the product without the knowledge that it had been used for a different product? What product was used to adulterate the product? These and many questions could have been put across to the expert witness. The answers may well have exonerated the appellant. I hold therefore that the learned trial Court did not give a proper consideration to the objection of counsel on the admissibility of Exhibit H through PW2 and not the maker before dismissing it. He was in grave error to have done so. I so find.
This takes us naturally to the effect of evidence of a witness not cross examined. In the instant case even though PW2 was cross examined he was never cross examined in respect of Exhibit H, not being an expert in

the field. In the case of ABOABA V OGUNDIPE (2017) LPELR 42922 (CA), this Court found that it is trite that where the maker of a document is not called to be cross examined, the Court should not attach any probative value on such documents admitted in the absence of admissible oral evidence by person who can explain their purport are of no useful purpose. My learned brother in the case referred to and followed the decisions in NBC PLC V UBANI (2009) 3 NWLR, PT 1129, 512; G. CHITEX IND. LTD V OCEANIC BANK INTERNATIONAL NIG LTD (2005) 14 NWLR, PT 945, 392 and ALAO V AKANO (2005) 11 NWLR, PT 935, 160. As the Supreme Court explained in the case of OMEGA BANK NIG. LTD V OBC LTD (2005) 1 SCNJ, 150, the rationale behind this principle of law is that while a maker of a document is in a position to answer questions on it, the non maker of it is not in such a position. It is for the latter situation that the Court would not attach probative value to such a document which is considered as good as the mere paper on which it is made. See also NWAKODO V OHAJURUKA & ORS (2008) LPELR 4640 (CA) and LAWRENCE V OLUGBEMI & ORS (2018) LPELR 45966

(CA). This is more so in the instant case where the trial Court relied quite heavily on Exhibit H to convict the appellant. Moreover the failure to call the maker of this document was never explained. I have already found that the said MRS Alexander-Otakpo M. N. listed on the proof of evidence is not the maker of the report. And even if she was the reason, given by the prosecution for not securing her attendance is not tenable, if she was transferred as the prosecution alleged her organization should know where she was transferred to. From page 8 of the records, it is clear that the said MRS Alexander-Otakpo, M. N. is the Area Chemist of the organization, PPMC. This would presuppose that there were other chemists in the Area Office. It would have been excusable if any other chemist from the PPMC testified or presented for cross examination in Exhibit H. This would have afforded the appellant the opportunity to have tested the truthfulness of the report through cross examination. Failure to call the maker of the document, even for cross examination in my view amounts to a violation of the appellants right to fair hearing. I hold therefore that the learned

trial judge was in grave error to have placed probative value on Exhibit H. Because the trial Court placed much value on Exhibit H to convict the appellant, it follows that such a conviction cannot stand. Consequently, I hold that this appeal succeeds on this ground.

I therefore allow it. The decision of the learned trial judge delivered on the 5th day of July, 2017 is hereby set aside.

In view of this finding I deem it unnecessary and a pure academic exercise to determine such ancillary matters as to whether it was the DAF truck in issue that was used to transport the alleged adulterated diesel and other related matters. This is because the function of the Court is to resolve disputes and not embark on needless academic adventure.
The appellant is therefore discharged and acquitted.

MOHAMMED AMBI – USI DANJUMA, J.C.A.: I have read in draft before now the lead judgment just delivered by my learned brother, Patricia Ajuma Mahmoud, JCA allowing the instant appeal and agree that the appeal has merit. The reliance on the purported expert report of the adulterated character of the petroleum product, the

reason for the conviction, was faulty as no expert was called to testify in respect of the alleged adulteration; The report stood un-demonstrated at the trial as a dumped document; the veracity of which was suspect and it therefore.commanded no evidential value. I, accordingly, adopt the reasoning and conclusions arrived at in the lead and concur that the appeal be allowed.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I read in draft the lead judgment by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and quiet agreed with the reasoning and conclusion contain therein with nothing useful to add. It is also my holden that appeal has merit and allow same to see the light of the day by being successful.

The decision of the learned trial Judge, Hon. Justice F. A. Olubanjo of the Federal High Court sitting in Akure delivered on the 5th day of July, 2017 is hereby set aside. I therefore discharged and acquitted the Appellant as done by my learned brother in the lead Judgment.

Appearances:

Mr. Emmanuel Rotiji with him, Mr. E. A. AgahFor Appellant(s)

Respondent’s counsel issued hearing notice but absentFor Respondent(s)

Appearances

Mr. Emmanuel Rotiji with him, Mr. E. A. AgahFor Appellant

AND

Respondent’s counsel issued hearing notice but absentFor Respondent