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OYELEKE AFOLABI v. FEDERAL REPUBLIC OF NIGERIA (2019)

OYELEKE AFOLABI v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/13407(CA)

(2019) LPELR-47731(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2019

CA/IL/C.52/2017

 

Before Their Lordships

IBRAHIM SHATA BDLIYAJustice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKAJustice of The Court of Appeal of Nigeria

BALKISU BELLO ALIYUJustice of The Court of Appeal of Nigeria

Between

OYELEKE AFOLABI – Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

RATIO

WHETHER OR NOT THE COURT MUST CONSIDER ALL DEFENCES RAISED BY AN ACCUSED PERSON

The law is settled beyond any argument that a Court, including the appellate Court, has a sacred duty to consider all the defences raised by an accused person, which is in evidence before it, no matter how weak or unreasonable it may be. See Nwuzoke Vs. State (1988) LPELR-2135 (SC), where Obeseki, JSC held at page 9 paragraphs B-E as follows:Â
???”The adjudication process in this our adversarial system of administration of justice demands that every defence available to the accused on the evidence and facts before the Court must be considered by the Court. To refrain from a consideration of the defence because it is considered weak, far-fetched, foolish, conflicting, unfounded and false is to ere seriously in the discharge of one’s duty as a judge. Where there is no evidence to warrant consideration of the defence, the trial judge has no duty to consider the defence. It is not the duty of the judge to scout round for defences where there are none and where the evidence does not suggest one. See R v. Kwabena Bio (1945) II WACA 46 at p. 48.”
See also Hassan Vs. State (2017) LPELR-41994 (CA) and Adelu Vs. State (2014) LPELR-22886 (SC). However, it is important to remember that this case being criminal matter, the burden of proof is squarely on the prosecution to prove the guilt of the Appellant for the offences charged beyond reasonable doubt. That burden does not shift until the prosecution discharges it beyond reasonable doubt, to the satisfaction of the Court. It is only if and when the burden has been discharged that the onus of showing any reasonable doubt in the prosecution???s case is shifted to the accused person. This is where the defence raised by the Appellant should be adequately and dispassionately considered by the trial Court. See Section 135 (3) of the Evidence Act, 2011, which provides that:
???If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the defendant. PER ALIYU, J.C.A.

WHETHER OR NOT THE COURT CAN CONVICT UPON A CONFESSIONAL STATEMENT 

The law???s trite, a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict. Where there are facts and circumstances outside the confession which make it probable that the confession is true, the Court can convict upon the confession and those additional facts and circumstances.
See Olabode vs. State (2009) 11 NWLR (Pt. 1152) page 254 at 273; Ogoala vs. State (1991) 2 NWLR (Pt. 175) page 509; Obiasa vs. Queen (1962) 2 SCNLR page 402 and Okabichi vs. State (1975) 1 All NLR page 71.
In Akpa vs. State (2008) 14 NWLR (Pt. 1106) Page 72 at 92, Niki-Tobi, JSC said:
???In law, where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. See Milla vs. The State (1985) 3 NWLR (Pt. 11) 190 at page 95 paragraph C-D, the Supreme Court per Tobi, JSC stated the law thus:
???Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused person. What better evidence than that? He knows or know what he did and he says or said it in Court. Is there need for any further proof? I think not.”
Tabai, JSC expressed same view in the case of  Olabode vs. State (2009) 11 NWLR (Pt. 1152) page at 273 thus:Â
???It is settled law that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict.???PER ALIYU, J.C.A.

WHETHER OR NOT THE COURT CAN STILL CONVICT ON A RETRACTED CONFESSIONAL STATEMENT

Where an accused person retracted or resiled form making the statement or denied its voluntariness, the Court can still rely on to convict, provided certain conditions are satisfied. In determining whether to attach any weight to the statement, made by an accused person which has been retracted or not, the Court, through a litany of decisions have laid down the tests to be applied or followed.
For instance, in the case of Dawa vs. State (1980) 8 – 11 SC Page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267 – 268:
???on the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. vs. Sykes (1913) 8 Cr. App. R.233 and approved by the west African Court of Appeal in Kanu vs. the King (1952/55) 14 WACA 30 and I regard them as sound and golden. The questions a judge must ask himself are:
(1) Is there anything outside the confession to show that it is true?
(2) It is corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession possible?
(6) Is it consistent with other facts which have been ascertained and have been proved?
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to passes the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain. Since Kanu vs. the King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfied the 6 tests enumerated above. Among the long line of authorities may be mentioned: (1)
The Queen vs. Obiasa (1962) 1 All NLR (2) Edet Obosi vs. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. Vs. The Republic (1966) NMLR 307 (4) Obue vs. The State (1976) 2 SC 141 (5) Jimoh Yesufu vs. The State (1976) 6 SC 167 (6) Ebhomien & Ors. Vs. The Queen (1963) 1 All Nr 365.??? PER ALIYU, J.C.A.

MEANING OF PROOF BEYOND REASONABLE DOUBT

What ???proof beyond reasonable doubt??? entails has been enunciated in the case of Maigari vs. State (2013) 17 NWLR (Pt. 1384) page 425 at 438 that ???proof beyond reasonable doubt??? is not synonymous with proof beyond the shadow of doubt. If the evidence is so strong against a man as to leave only remote possibilities in his favour which can be dismissed with the sentence. ???of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt,??? but nothing short of that would suffice as proof beyond reasonable doubt. See Emoga vs. State (1997) 1 NWLR (Pt.483) 615.
The law requires that a crime must be proved beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law will fail to protect the community if it admits fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence ???of course it is possible, but not in the lease probable,??? the case is beyond reasonable doubt, but nothing short of that will suffice. See Jua vs. State (2010) 4 NWLR (Pt. 1184) page 217 at 253. As to when the commission of a crime by an accused person can be said have been proved beyond reasonable doubt, the Supreme Court in the case of Ilori vs. The State (1980) 8-11 SC page 81 at 99 held that:
???The basic necessity before a verdict of guilty in a criminal charge can be pronounced is that the jury are satisfied of the guilt of the accused beyond all reasonable doubt. Proof beyond reasonable doubt as denning, J., (as he then was) stated in Miller vs. Minister of pensions (1947) 2 All E.R. 372, 373:
???does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ???of course it is possible, but not in the least probable??? the case is proved beyond reasonable doubt but nothing short of that will suffice. PER BDLIYA, J.C.A.


BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment):
 The Appellant was arraigned before the Federal High Court Ilorin Judicial division on the 26th July 2010 on a two counts charge of knowingly and without lawful authority dealing in and possession of 199 kilograms of Cannabis sativa (otherwise known as Indian hemp), an illicit narcotic drug, both offences contrary to Sections 11 (c) and 19 of the National Drug Law Enforcement Agency Act, Cap. N30, Laws of the Federation of Nigeria 2004. He pleaded not guilty to the charge. At the trial, the prosecution called four witnesses and tendered exhibits, including the 199kilograms of the Cannabis Sativa (Indian hemp) and the confessional statement of the Appellant made after his arrest in support of its case. The Appellant also testified as DW2 and called two other witnesses in his defence. The prosecution???s case was that the officers of the National Drug Law Enforcement Agency (NDLEA), Kwara State Command received intelligence report that the Appellant deals in illicit drugs, and they mounted a surveillance on him and confirmed the truth of the intelligence report. Upon confirming

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the truth of the intelligence report that the Appellant stored bags of Indian hemp in a kiosk near his house, the NDLEA officers raided his house and arrested him along with the 199 kilograms of the drug.Â

In his defence, the Appellant denied being the owner of the kiosk in which the narcotic drug was recovered and claimed that the search in his own house did not disclose anything incriminating. He also said that there was evidence found in the kiosk of who the real owner of the kiosk was, but that the NDLEA officers refused to investigate this fact or arrest the real owner of the kiosk.

At the end of the trial, the learned trial Judge, Hon. Justice A. O. Faji in a considered judgment delivered on the 30th January 2014 found the Appellant guilty as charged, see page 319 of the record of appeal where he held that:
???I must therefore find and hold that the prosecution has established all the ingredients of the offence. The two counts in the charge have been proved beyond reasonable doubt. The defence has not raised any doubt against the case for (sic) the prosecution. Rather, they have cleared doubt in the case for the prosecution and

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created doubts as to the innocence of the accused person. I therefore find the accused person- OYELEKE AFOLABI guilty on Count 1. I also find the accused person-OYELEKE AFOLABI guilty on Court 2.???

The Appellant was subsequently sentenced to five years on count 1 and fifteen years imprisonment on count 2, both sentences to run concurrently. See pages 323 to 325 of the record of appeal.

The Appellant was aggrieved with the decision of the lower Court and challenged same vide his notice of appeal containing a single ground of appeal, filed on 9th November 2016 with the leave of Court. The record of appeal was thereafter compiled and transmitted on the 6th April 2017, but deemed properly transmitted on the 4th May 2017. The Appellant???s brief of argument settled by Ahmed Akanbi Esq. was filed on the 9th March, 2018 but deemed properly filed and served on the 15th March, 2018, and it spanned 15 pages. At page 4 of the brief, the learned counsel formulated and submitted a sole issue from the single ground of appeal for the determination of this appeal thus:
???Whether it was safe for the learned trial Judge to have solely relied on an

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uncorroborated confessional statement in convicting the Appellant for the offence of unlawful dealing and possession of 199 kg of Indian hemp (Distilled from the sole ground of appeal).???

Mrs. M. O. Adeleye, the Assistant Director of Prosecution and Legal Matters of the NDLEA, Kwara State Command, settled the Respondent???s brief that was filed on the 8th February 2019, but deemed properly filed and served on the 21st February, 2019. It spanned 15 pages of argument in opposing the appeal, and at page 4 thereof, the Respondent???s counsel distilled a single issue for determination from the sole ground of appeal, namely:
???Whether the conviction and sentencing of the Appellant was proper and justifiable in law having regards to all that transpired at the trial and as reflected in the record of appeal.???

On the 1st April, 2019, the appeal was called for hearing and Ruth Ozegbe Esq., adopted the Appellant???s brief in urging the Court to allow the appeal and to set aside the judgment of the trial Court. Mrs. Adeleye equally adopted the Respondent???s brief of argument in urging the Court to dismiss the appeal in

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its entirety and to affirm the judgment of the lower Court.

APPELLANT???S ARGUMENT
In arguing the lone issue submitted for determination, the learned Appellant???s counsel submitted that the confessional statement, which the trial Court relied upon in convicting the Appellant for the offences charged, did not comply with the dictates of the law. He relied on the cases of Lasisi Vs. State (2013) 9 NWLR (pt. 1358) 74 (SC) and Kaza Vs. State (2008) & NWLR (pt. 1085) 125 (SC) in support of his submission. It was also submitted that the Supreme Court has stated and restated the need to subject a confessional statement of an accused person to some test which, only if passed will impel the Court to act on it alone to ground the conviction of the accused person. It was posited that in this appeal, there are no independent facts outside the confession (contained at page 35 of the record of appeal) that show that the confessional statement relied upon was was true, direct and unequivocal. It was contended that the prosecution had also failed to link the premises (kiosk) where the drug was discover to the Appellant. See page 266 of the record of

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appeal showing the testimony of the brother of the Appellant (DW1), to the effect that nothing incriminating was discovered in the house of the Appellant. Thus, the prosecution failed to present any facts outside the confessional statement that showed it was true, or proffered any evidence before the trial Court to corroborate the confessional statement. That in this case, the confessional statement raised doubt to its truthfulness, because it was not written by the Appellant and the Court ought not to have relied on it in the absence of strong and compelling evidence corroborating it.Â

The learned Appellant???s counsel quoted from the confessional statement (contained at page 6 of the record of appeal) wherein it was stated that the cannabis sativa was tested, weighed, packed and sealed ???in the presence of the suspect???, and he submitted that this showed clearly that the statement was not written or authorized by the Appellant because he would not have referred to himself as a ???suspect???, nor would he be able to provide answers to the weight of the cannabis. But should the Court hold the view that the Appellant authorized

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the confessional statement, he alternatively submitted that the officer who was authorized to record the statement did not correctly record the Appellant, which impugns doubt to the case of the prosecution. Reliance was placed on the case of Salawu Vs. State (2011) 47 NSCQR 276 at 349 and Igbi Vs. State (2000) NWLR (pt. 648) 169 in support of the argument.Â

It was further argued that it is trite law that before a Court convicts an accused person based on his confessional statement, it must critically look at the surrounding factors which corroborate the confession, like the accused having the opportunity as to time and other factors, to commit the offence charged. Where the Court cannot find any evidence establishing the fact that the accused person had the opportunity of committing the offence, it must discharge and acquit the accused person. It was posited that in this case, the prosecution did not lead any evidence to support and corroborate the confessional statement, which the trial Court relied upon in convicting the Appellant. Further contended that the learned trial Judge failed to consider the defence of the Appellant in which he denied

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having any connection with the illicit drug. The Court is therefore urged to consider the defence of the Appellant and to quash the decision of the trial Court.

RESPONDENT???S SUBMISSIONSÂ
In arguing the lone issue, the learned Respondent???s counsel referred the Court to pages 75-96 of the record of appeal, which showed the trial-within-trial proceedings conducted by the trial Court to determine the voluntariness or otherwise of the confessional statement of the Appellant. It was after that trial within trial that the trial Court found that the confessional statement was made voluntarily and it admitted it in evidence as Exhibit ???H???, but later renamed as Exhibit ???A???. The learned counsel submitted that the position of the law is that once a Court has admitted a document or statement in evidence, it has become a part of the record, and the Court is bound to act and rely on it in arriving at its decision. See Salawu Vs. State (2011) 12 S.C. 4. It was further submitted that the fact that the Appellant had retracted his confessional statement during trial does not preclude the Court from acting on it to convict

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him. See Odeh Vs. FRN (2008) All FWLR (Pt. 424) 1590. The Court was therefore urged to discountenance the argument of the Appellant???s learned counsel and to hold that the learned trial Judge rightly admitted and relied on the confessional statement of the Appellant and that his conviction was justified.

With regards to the five tests laid down by the Supreme Court in Ogudo Vs. State ((2011) S. C. (pt. I) 71 to be applied by a Court before a confessional statement of an accused can be relied upon in convicting him; which is the crux of the Appellant???s brief of argument, the learned Respondent???s counsel submitted that the Appellant???s confessional statement in this case had passed the six ???truth??? tests through the testimonies of PW1 to PW3. It was argued that the truth test set out by the Supreme Court is geared towards the goal of providing evidence outside the confession that authenticates it. In this appeal, it was contended that the testimonies of the prosecution witnesses supported and strengthened the confessional statement of the Appellant, as such the learned trial Judge was therefore justified to have relied on

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same in finding the Appellant guilty as charged, and the Court was urged to so hold.Â

It was further submitted that the determination of the truth of the confessional statement of the Appellant is not the duty of the counsel but of the trial Court and in this case, the trial Court had diligently and duly evaluated the evidence before it and upon which it arrived at its findings. Reliance was placed on the decision in Bright Vs. State (2013) 8 NWLR (pt. 1303) 297 and Ebenehi Vs. State 2009) 2-3 MJSC 138 to support of the submissions.

In response to the Appellant???s learned counsel???s argument that the phrase ???suspect??? used in the confessional statement showed that he did not make it because he would not refer to himself as ???suspect???; the learned Respondent???s counsel reproduced the entire confessional statement of the Appellant contained at pages 5 ??? 6 of the record of appeal, and argued that the even if the use of the word ???suspect??? by the officer recording the confessional statement was a misnomer, same did not go to the substance of the statement. This is especially so, in view of the

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testimonies of the PW1 and PW3 to the effect that the Appellant was actually present during the weighing, testing, packing and sealing of the exhibits in question.

With regards to whether the Appellant had the opportunity to commit the offence charged, the Court was again referred to the testimonies of PW1 to PW3 vis-??-vis the confessional statement (Exhibit ???A???), and was urged to hold that there was strong evidence to prove that the Appellant had the opportunity to commit the offences he was convicted of. In conclusion, the Court was referred to the ingredients of the offences of possession of and dealing in the illicit drug of Indian hemp, contrary to Sections 11(c) and 19 of the NDLEA Act, which the Appellant was convicted of, and it was submitted that the prosecution proved all the ingredients of the offences and therefore the lower Court was right and justified in finding the Appellant guilty thereof. The Court was urged to dismiss the appeal in its entirety and to affirm the judgment of the lower Court.

DETERMINATION OF THE APPEAL
???
I have given due consideration to the respective briefs of argument of parties in

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support and in opposition to this appeal. The complaint of the Appellant as can be discerned from his sole ground of appeal, is that the learned trial Judge was wrong when he solely relied on the confessional statement, which did not satisfy the legal requirements to ground the Appellant???s conviction. For this reason, I prefer and hereby adopt the Appellant???s sole issue to my determination of the appeal.

As a background foundation of the determination of the issue in contention, I consider it pertinent to state the position of our criminal law as provided by Section 29 (1) of the Evidence Act 2011, that a confessional statement of an accused person is not only relevant in criminal proceedings, but it is one of the ways of establishing the guilt of the accused. It is also the settled position of the law as shown by uncountable number of decided cases of this Court and the Supreme Court that an accused person can be convicted solely on his confessional statement, where the Court is satisfied that the confession was true and made voluntarily. See Kaza Vs. State (supra), Lasisi Vs. State (supra), Azabada Vs. State (2014) 12 NWLR (pt. 1420) 40,

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Omoju Vs. State (2008) 7 NWLR (pt. 1085) 38, Essien Vs. State (2018) ALL FWLR (pt. 939) 1993 at 2004 and Onitilo Vs. State (2018) 2 NWLR (pt. 1603) 23.

As noted above, the lone issue for determination raised the question whether the confessional statement of the Appellant admitted by the trial Court had satisfied the requirements of the law to justify the lower Court???s reliance on it ???solely??? in convicting the Appellant for the offences charged. The complaint of the Appellant is predicated on the following four (4) points or sub-issues as raised and argued in the Appellant???s brief of argument and which I consider germane to the determination of the lone issue:
1. There were no independent facts outside the confession, which showed that it was true, direct and unequivocal (see paragraphs 4.1, 4.5 to 6.12 of the Appellant???s brief of argument).
2. The prosecution failed to link the Appellant with the premises (kiosk) where the illicit drug was recovered.
3. The use of the word ???suspect??? in reference to the Appellant in the confessional statement is indicative of the fact that it was not written or

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authorized by the Appellant who will not refer to himself as ???suspect???.
4. The trial Court failed to consider the defence of the Appellant before arriving at its decision.

With regards to the first point to the effect that there were no facts outside the confession to make it true, although the law is trite that a free and voluntary confession can ground a conviction, but where the accused person retracts his confessional statement at the trial as happened in this case, the practice has evolved whereby the court must look for some evidence outside the confession which will make it probable. Thus, where after considering all the circumstances and the facts, the Court finds evidence supporting or verifying the facts confessed to by the accused person in the retracted confessional statement, it means the confessional statement is reliable and the Court can proceed to rely on it. See Azabada Vs. State (supra) at pages 52-53 per Onnoghen JSC.

In his judgment, the learned trial Judge held at pages 316 to 317 as follows:
???As regards the truth test, I am of the view that Exhibit A can and has passed the truth tests. PW1???s

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testimony that he saw the accused person and another person load sacks from a car into the kiosk on 3rd July 2010, was not challenged by the defence. It now turns out that when the kiok was opened or broken into the next day-4th July 2010, the sacks were in the kiosk. All these confirmed not only the intelligence report that prompted the surveillance by PW1 but also the events PW1 saw in the course of the surveillance on 3rd July 2010???. I accept the truth of Exhibit A and will rely on it being one of the modes of proof of guilt.???

The above finding of the lower Court was based on the testimonies of PW1 (Tunde Daniel) contained at pages 202 to 203 and 248 to 250 of the record of appeal. PW1 was the arresting officer. It was his evidence that after witnessing, on surveillance, the Appellant and one other person offloaded the 19 sacks of the drug, he led a team of the NDLEA officers to the house of the Appellant and indeed the drug exhibits were recovered in the kiosk. It is noteworthy that the PW1 also stated, under cross-examination at page 248-249 of the record of appeal that his surveillance on the Appellant lasted for one month before the

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day of the operation in which the Appellant was arrested, and that the Appellant used the kiosk as his warehouse where he keeps the drug.

Similarly, PW2 (Ahmed Sulaiman) whose testimony is contained at pages 253 to 257 stated that he was among the officers led by PW1 for the operation in which the Appellant was arrested. He was also the exhibit officer who field-tested the content of the 19 sacks arrested in the operation and also took sample to the forensic laboratory for forensic analysis. It was his evidence that the Appellant admitted ownership of the kiosk and the 19 sacks of the drug arrested therein. See also the testimony of PW3 (Ojang Okey) contained at pages 257 to 259 in which he stated that he was among the NDLEA officers led by PW1 that went to arrest the Appellant, and that the Appellant had admitted to them to be the owner of the kiosk and the 19 sacks of the drug discovered therein.

In the circumstances, the Appellant???s contention that there were no independent facts outside the confessional statement is not correct. Clearly, the testimonies of the PW1 to PW3 who were indeed the arresting officers constituted facts outside the

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confession that verified its truth. Therefore in view of the testimonies of these witnesses, which were not discredited under cross-examination, I cannot fault the above finding of the learned trial Judge. Consequently this point/sub issue is resolved against the Appellant.

The second point of complaint of the Appellant against the confessional statement is that the prosecution could not or did not link the kiosk in which the drug was found to the Appellant, and this means that the confessional statement could not be true. This issue was also raised before the trial Court and in resolving it, the learned trial Judge after considering the testimonies of the prosecution witnesses, held at page 317 of the record of appeal thus:
???Indeed, the surveillance by PW1 and the discoveries made on 4th July, 2010 also constitute circumstantial evidence pointing irresistibly to the fact that it was the accused person who hid the 19 sacks which turned out to be Indian hemp in a kiosk. It is also my view that the proximity of the kiosk to accused person???s house is not so material as to affect this conclusion. In any event, the intelligence report which

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sparked off the surveillance was that the accused person was dealing in Indian hemp at his residence at 56 Duma Street, Isale Koko Area Ilorin Kwara State. It was at that address that PW1 went for surveillance. It was also at that address that the accused person was arrested on 4th July 2010 in the kiosk after the sacks were found.???

On this point, I also examined the testimony of PW1, (the arresting officer) under cross-examination at pages 249 to 250 of the record of appeal where the witness insisted that the Appellant admitted being the owner of the kiosk and he led the officers to it. Note also how the defence counsel repeatedly asked the witness about the ownership of the kiosk and how the witness insisted severally that the Appellant had said the kiosk was his own. For emphasis this was what the PW1 said under cross-examination:
???I asked him who owns the kiosk, he said it is his. He led us to the kiosk. We then searched the kiosk and found 19 bags. He was arrested in the kiosk???. The kiosk is in front of the house. The distance is like from the witness box to the dock. The surveillance revealed that the kiosk was his warehouse

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where he keeps the drug so that no one will suspect the accused brought the drugs there. He was not arrested on the spot as he was bringing the drug as we were on surveillance heeded (sic) approval to strike???. There was nothing else apart from the drug in the kiosk.”
See also the testimonies of PW2 and PW3 who all stated that the Appellant had admitted to them that he was the owner of the kiosk and the drug exhibit found therein.

Therefore upon the evidence aforementioned, I totally agree with the learned trial Judge???s above finding on the point in view of the evidence of the arresting officers, which I analyzed from the record of appeal supra. The testimonies of PW1 to PW3 before the trial Court undoubtedly connected the Appellant with the kiosk where the drug was discovered. It is illogical for the officers to take him to the kiosk without the intelligence report and surveillance showing he offloaded the 19 sacks of the drug in the kiosk and like the trial Court found, it was the intelligence report showing that the Appellant dealt with the narcotic drug that triggered the surveillance on him alone and no other. Therefore

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the finding of the learned trial Judge on this point cannot be faulted and I so hold.

The third point of complaint of the Appellant against the confessional statement and the argument of the learned counsel for the Appellant was the use of the phrase ???in the presence of suspect??? contained in the confessional statement, which he contended is indicative of the fact that it was not the Appellant who wrote or authorized the writing of the confessional statement with the resultant effect that it failed the ???truth??? test. The record of appeal shows that this same issue was raised under cross-examination of the PW1, the officer who recorded the statement of the Appellant. See pages 248 to 250 of the record, where the defence counsel asked the witness thus:
???(PW1) shown Exhibit H, page 2, the suspect therein is Afolabi Oyeleke. The statement from the beginning was in first person singular i.e. ???I???. The accused person was referring to himself as the suspect. He ended with this is my statement after referring to ???suspect???. The suspect does not refer to the accused person.???

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In answer to the above question, PW1 stated that:
???There is only one suspect and it is Afolabi Oyeleke. The field tested (sic) was in the presence of the suspect and the arresting officer. The arresting officer and myself, the other arresting officer and myself. He (accused) was not giving and (sic) opportunity to field tested (sic) it himself since he did not contest the field tested (sic) as he signed the documents.???

In his judgment, particularly on this point, the learned trial Judge held, at pages 315 to 316 of the record of appeal thus:
???The other challenge seems to be the use of the words: ???the suspect???. It would seem inelegant for a person to refer to himself in 3rd person or by description when the word ???I??? is simpler and more straightforward. The gist of Exhibit A is however an admission of the offence. The words: ??? the suspect??? came up in relation to the packing, sealing, weighing and marking of the substance. That does not go the substance of Exhibit A. In any event, PW2 and PW3 testified that the weighing packing and sealing was done in the presence of the accused person, PW1 and PW3. This issue

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is therefore in my respective view not of much substance.???

From the questions put to the PW1 by the defence counsel, it is clear that the counsel was trying to discredit the confessional statement on the ground that it could not have been made by the Appellant since he would not refer to himself in the 3rd person. The answer of the PW1 that there was only one suspect in the case, that is the Appellant, was not only logical in showing that the statement could only be made by the Appellant, but was also in accord with the other facts and evidence before the Court. The learned trial Judge was therefore right in his findings to the effect that the reference to ???suspect??? in the confessional statement was in respect of the testing, weighing, etc. of the drug exhibit, rather than the substance of the confessional statement. The trial Judge was in the best position to assess the witnesses in respect of the answers to the questions put to them on the issue in controversy, because both the witnesses and the counsel were before him in the proceedings. There is nothing on the record of appeal or the Appellant???s brief of argument that showed

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that the finding of the lower court on this head of complaint was wrong in the circumstances, and therefore I have no reason to interfere with the findings. I agree totally with the learned Judge.

Further, it is important to point out that the learned trial Judge had indeed conducted a trial within trial to determine the voluntariness or otherwise of the confessional statement, at the end of which he found that the Appellant made the confessional statement voluntarily. See the ruling on the trial Court, delivered on 11th May 2012, contained at pages 239 to 246 of the record of appeal, on which there is no appeal. Having found and ruled that the confessional statement was made by the Appellant voluntarily, it formed part of the case of the prosecution against the Appellant and the learned trial Judge was right to rely on it in the final determination of the case against the Appellant. See Salawu Vs. State (supra) referred to by the learned Respondent???s counsel on this point and Lasisi Vs. State (supra) cited and relied upon by the Appellant, where the Supreme Court held inter alia that:
???Once a confessional statement was admitted through a

23

trial within trial, it is very difficult for the appellate Court to intervene because evaluation of evidence is based on witnesses??? credibility.???

Therefore this Court cannot interfere with the decision of the trial Court on this issue especially, as the ruling itself has not been appealed against. The resultant effect of this finding is that the confessional statement of the Appellant was properly relied upon in the final decision of the trial Court.

Finally on the determination of the lone issue is the point of complaint of the Appellant to the effect that the learned trial Judge failed to consider his defence at the trial. The law is settled beyond any argument that a Court, including the appellate Court, has a sacred duty to consider all the defences raised by an accused person, which is in evidence before it, no matter how weak or unreasonable it may be. See Nwuzoke Vs. State (1988) LPELR-2135 (SC), where Obeseki, JSC held at page 9 paragraphs B-E as follows:Â
???“The adjudication process in this our adversarial system of administration of justice demands that every defence available to the accused on the evidence and facts

24

before the Court must be considered by the Court. To refrain from a consideration of the defence because it is considered weak, far-fetched, foolish, conflicting, unfounded and false is to ere seriously in the discharge of one’s duty as a judge. Where there is no evidence to warrant consideration of the defence, the trial judge has no duty to consider the defence. It is not the duty of the judge to scout round for defences where there are none and where the evidence does not suggest one. See R v. Kwabena Bio (1945) II WACA 46 at p. 48.”
See also Hassan Vs. State (2017) LPELR-41994 (CA) and Adelu Vs. State (2014) LPELR-22886 (SC).

However, it is important to remember that this case being criminal matter, the burden of proof is squarely on the prosecution to prove the guilt of the Appellant for the offences charged beyond reasonable doubt. That burden does not shift until the prosecution discharges it beyond reasonable doubt, to the satisfaction of the Court. It is only if and when the burden has been discharged that the onus of showing any reasonable doubt in the prosecution???s case is shifted to the accused person. This is where the defence

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raised by the Appellant should be adequately and dispassionately considered by the trial Court. See Section 135 (3) of the Evidence Act, 2011, which provides that:
???If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the defendant.???

It is against the above stated position of the law that I will examine the record of appeal in order to determine whether or not there is any merit in the complaint of the Appellant on this point.Â

The judgment of the trial Court is contained in pages 292 to 325 of the record of appeal. At pages 293 to 296, the learned trial Judge reviewed/summarized the evidence called by prosecution and the defendant. Specifically at page 295 of the record of appeal, the learned trial judge stated the Appellant???s defence as follows:
???The Defence opened on 10th July, 2012 with the testimony of DW1- AFOLABI NASIRUDDEEN AYOMIDE- the accused person???s younger brother. He was cross-examined by the prosecutor. The accused person testified as DW2. He was cross-examined by the prosecutor. The third and final Defence Witness-

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DW3- was Bidemi Otolorin- a neighbor to the accused person. She was cross-examined by the prosecutor. The Defence closed its case. Written addresses were ordered and filed.???

Then from page 296 to 300 of the record of appeal, the learned trial judge considered and summarized the defence counsel???s final written address, and from page 300 to 307, the final written address of the prosecution???s counsel was also summarized. Pages 307 to 309 of the record of appeal contained the reply on points of law. The decision of the learned trial Judge is contained in pages 309 to 319 of the record of appeal, in which he again reviewed the evidence of the prosecution vis-??-vis the argument put up against it by the defence counsel. At pages 312 to 314, the learned trial Judge stated the defence case thus:
???The case for the defence is that whilst in his residence on the 4th July 2010, some men came to the house of the accused person and asked for someone referred to by the Defence witnesses differently as Suraju, Alfa Suraju and Surajuddeen. The accused person told them that he is not Suraju but Oyeleke Afolabi. The operatives searched his

27

apartment and found nothing incriminating. They put him in handcuffs and asked who owned the kiosk which according to defence witnesses was on another man???s land and not close to the house in which the accused person lives. The accused person denied ownership but was forced to the kiosk which was forced open with a hammer. The National Drug Law Enforcement Agency operatives who came in mufti were armed.
After forcing the kiosk open, various items like DVD, CD, a sound system, a television set, a photograph and some sacks were found. The accused person denied the ownership of the items and even told the operatives that with the photograph, the owner of the kiosk could easily be traced. Even though PW2 suggested that since the owner of the kiosk was now identified by his photograph, the accused person should be released, the other operatives insisted on taking the accused person to the National Drug Law Enforcement Agency office. The accused person was beaten up thoroughly and taken to the National Drug Law Enforcement Agency office.
Whilst at the National Drug Law Enforcement Agency office, the accused person was put in a cell and his statement

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subsequently taken after he has been beaten by the NDLEA operatives, with the assistance of two other people with sticks and at gun point. The first statement he made was rejected by the superior officer- one Mr. Femi and after more brutalization; a statement that was acceptable to Mr. Femi was counter-signed by Mr. Femi. The National Drug Law Enforcement Agency operatives also asked for money in exchange for the accused???s freedom, telling him that should the matter get to Court, the Court would believe only the National Drug Law Enforcement Agency???s story.???

After stating the defence put up by the Appellant, the learned trial Judge held that the prosecution has proved the charge against the Appellant and proceeded to further hold that:
???The defence has not raised any doubt against the case for the prosecution. Rather they have cleared doubt in the case for the prosecution, and created doubts as to the innocence of the accused person.???

I have examined closely the record of appeal and in particular, as related to the defence put up by the Appellant. The Appellant testified as DW2 and called two other witnesses, DW1

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and DW3 in his defence. DW1 was Afalabi Nasiruddeen Ayomide, and his testimony is contained at pages 266 to 269 of the record of appeal. He stated that he was present on the day the Appellant was arrested. The officers had asked for one Surajuddeen to which the Appellant said he was not the one. Then the officers asked to search the room of the Appellant, which they did but nothing incriminating was discovered. They then searched a container outside the house of the Appellant, which the DW1 said belonged to another person and 19 sacks were recovered therein. He said the container ???was in another man???s land???.
???
The Appellant???s testimony as DW2 is contained at pages 269 to 274 in which he denied the allegations against him. He said that there was a photograph found inside the kiosk where the drug was discovered and it belonged to ???a cassette seller??? who owned the kiosk, but the NDLEA officers refused to arrest the person in the photographs. He stated that the NDLEA officers beat him up, threatened him with gun and forced him to admit the ownership of the drug exhibit. He said that though there are eight families living in

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the house where he was arrested but the officers only arrested him.Â

The testimony of DW3, Bidemi Otolorin is contained at pages 287 to 289 of the record of appeal. She stated that she lived in the same house with the Appellant, and she was at home when he was arrested. The officers asked for Alfa Suraju, but they went up to the room of the Appellant and searched it and also searched other rooms in the house. The officers later took the Appellant to a container outside the house, which they forced open and discovered the sacks of the drug along with some DVDs and photograph of the alleged owner of the kiosk.

It is my view that the learned trial Judge in his judgment captured the entire scope of the defence put up by the Appellant, before holding that the defence???s evidence did not raise any doubt in the prosecution???s case. The retracted confessional statement was found to be voluntarily as I have found above. The denial of the ownership of the kiosk was also considered by the trial Court and found to be discredited by the testimony of the PW1 showing the surveillance that led to the arrest of the Appellant and the narcotic drug. I

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agree with the trial Court???s findings in view of the evidence before it. The claim that the kiosk was in another man???s land was a vague statement and unsubstantiated by the Appellant and his witnesses. In the case of Hassan Vs. State (supra), this Court held Per SHUAIBU ,J.C.A that:
“Where a trial Court fails or neglects to consider the defence of an accused person, an appellate Court is at liberty or under a duty to consider such defence having regard to the evidence on the record. However, it is not every failure of the trial Court to consider the defences opened to an accused person that will be fatal to the case of the prosecution. For such a consequence to arise, there must be on record legally admissible evidence in support of the alleged defence(s) as such evidence is what grounds the defence(s).???
See also Ndukwe Vs. State (2009) LPELR-1979 (SC). In this appeal, I have not found any concrete evidence on record in support of the Appellant???s defence, which raised any doubt in the prosecution???s case that could be resolved in his favour. Consequently, this point is also resolved against the Appellant.

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In conclusion, I find from the record of appeal, that the trial Court did not actually rely solely on the confessional statement to convict and sentence the Appellant for the offences charged. There was in fact other evidence outside the confession that verified its truth such as the evidence of the PW1 who conducted surveillance on the Appellant for sometime before the day of the operation in which he was arrested. Consequently I resolve the lone issue against the Appellant. I find no merit in this appeal and it is hereby dismissed. Consequently, the judgment of the Federal High Court, Ilorin Judicial Division in respect of Charge No: FHC/IL/27C/2010 delivered on the 30th January, 2014 by Hon. Justice A. O. Faji is hereby affirmed.

IBRAHIM SHATA BDLIYA, J.C.A.: The appellant was arraigned before the Federal High Court Ilorin Division (the lower Court) on a two counts charge accusing him of knowingly and without lawful authority dealing and being in possession of 199 kilograms of Cannabis Sativa, (known as Indian Hemp) in local parlance; being an illicit narcotic drug contrary to Sections 11 (c) and 19 of the National Drug Law Enforcement, Agency Act 2004.

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The prosecution called witnesses who testified and were crossed examined by the appellant???s counsel. The appellant also testified and called witnesses who testified in his defence. The learned judge of the lower Court, after final addresses were adopted by learned counsel, considered the evidence and the applicable principles of law, and convicted the appellant as charged.

Aggrieved with the conviction and sentencing, the appellant appealed to this Court contending that the prosecution did not prove the commission of the offences contained in the charge beyond reasonable as required by Section 135(1) of the Evidence Act, 2011. The learned judge of the lower Court in convicting the appellant relied on the statement made by the appellant to the police, which is confessional.Â

The law???s trite, a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict. Where there are facts and circumstances outside the confession which make it probable that the confession is true, the Court can convict

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upon the confession and those additional facts and circumstances.
See Olabode vs. State (2009) 11 NWLR (Pt. 1152) page 254 at 273; Ogoala vs. State (1991) 2 NWLR (Pt. 175) page 509; Obiasa vs. Queen (1962) 2 SCNLR page 402 and Okabichi vs. State (1975) 1 All NLR page 71.
In Akpa vs. State (2008) 14 NWLR (Pt. 1106) Page 72 at 92, Niki-Tobi, JSC said:
???In law, where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. See Milla vs. The State (1985) 3 NWLR (Pt. 11) 190 at page 95 paragraph C-D, the Supreme Court per Tobi, JSC stated the law thus:
???Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused person. What better evidence than that? He knows or know what he did and he says or said it in Court. Is there need for any further proof? I think not.”
Tabai, JSC expressed same view in the case of 

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Olabode vs. State (2009) 11 NWLR (Pt. 1152) page at 273 thus:Â
???It is settled law that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict.???

Where an accused person retracted or resiled form making the statement or denied its voluntariness, the Court can still rely on to convict, provided certain conditions are satisfied. In determining whether to attach any weight to the statement, made by an accused person which has been retracted or not, the Court, through a litany of decisions have laid down the tests to be applied or followed.
For instance, in the case of Dawa vs. State (1980) 8 – 11 SC Page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267 – 268:
???on the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. vs. Sykes (1913) 8 Cr. App. R.233 and approved by the west African Court of Appeal in Kanu vs. the King (1952/55) 14 WACA 30 and I regard them as sound and golden.

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The questions a judge must ask himself are:
(1) Is there anything outside the confession to show that it is true?
(2) It is corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession possible?
(6) Is it consistent with other facts which have been ascertained and have been proved?
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to passes the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain. Since Kanu vs. the King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfied the 6 tests enumerated above. Among the long line of authorities may be mentioned: (1)

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The Queen vs. Obiasa (1962) 1 All NLR (2) Edet Obosi vs. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. Vs. The Republic (1966) NMLR 307 (4) Obue vs. The State (1976) 2 SC 141 (5) Jimoh Yesufu vs. The State (1976) 6 SC 167 (6) Ebhomien & Ors. Vs. The Queen (1963) 1 All Nr 365.???
The evidence of PW1, 2 and 3, when taken together have sufficiently satisfied the requirements set out in the case of Dawa v. State (1980) P. 11 S.C. P. 236 @ 267. The learned judge of the lower Court was therefore right when he relied on Exhibit A, the confessional statement, and convicted the appellant as charged in the two counts charge.

The other appellant???s complaint or grouse against the judgment of the lower Court in which he was convicted is that no evidence was adduced to prove his guilt beyond reasonable doubt as required by Section 135(1) of the Evidence Act, 2011, which provides thus:
???135 (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.???
What ???proof beyond reasonable doubt??? entails has been

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enunciated in the case of Maigari vs. State (2013) 17 NWLR (Pt. 1384) page 425 at 438 that ???proof beyond reasonable doubt??? is not synonymous with proof beyond the shadow of doubt. If the evidence is so strong against a man as to leave only remote possibilities in his favour which can be dismissed with the sentence. ???of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt,??? but nothing short of that would suffice as proof beyond reasonable doubt. See Emoga vs. State (1997) 1 NWLR (Pt.483) 615.
The law requires that a crime must be proved beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law will fail to protect the community if it admits fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence ???of course it is possible, but not in the lease probable,??? the case is beyond reasonable doubt, but nothing short of that will suffice. See Jua vs. State (2010) 4 NWLR (Pt. 1184) page 217 at 253.

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As to when the commission of a crime by an accused person can be said have been proved beyond reasonable doubt, the Supreme Court in the case of Ilori vs. The State (1980) 8-11 SC page 81 at 99 held that:
???The basic necessity before a verdict of guilty in a criminal charge can be pronounced is that the jury are satisfied of the guilt of the accused beyond all reasonable doubt. Proof beyond reasonable doubt as denning, J., (as he then was) stated in Miller vs. Minister of pensions (1947) 2 All E.R. 372, 373:
???does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ???of course it is possible, but not in the least probable??? the case is proved beyond reasonable doubt but nothing short of that will suffice.???
The evidence of PW 1, 2 and 3, taken together with Exhibit ???A???, the confessional statement of the appellant, proved the commission of the offences

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by the appellant beyond reasonable doubt as found by the learned judge of the lower Court. For the foregoing, and the fuller reasonings of my Lord, BALKISU BELLO ALIYU, J.C.A, contained in the leading judgment, I hereby dismiss the appeal, and affirm the judgment of the Federal High Court, delivered on the 30th of January, 2014, by A. O. FALI, J.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother Balkisu Bello Aliyu JCA just delivered was made available to me in draft.

???I agree with the reasoning as well as the conclusions reached thereat. I also dismiss the appeal for lacking in merit, and thereby affirm the decision of Faji J., of the Federal High Court Ilorin delivered on the 30th day of January, 2014 as well as the sentenced imposed.

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Appearances:

Ruth Ozegbe, Esq.For Appellant(s)

Mrs. M.O. Adeleye, (Assistant Director, Prosecution and Legal, NDLEA, Kwara State Command)For Respondent(s)

>

 

Appearances

Ruth Ozegbe, Esq.For Appellant

 

AND

Mrs. M.O. Adeleye, (Assistant Director, Prosecution and Legal, NDLEA, Kwara State Command)For Respondent