TAJUDEEN v. FRN
(2022)LCN/16425(CA)
In The Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, January 14, 2022
CA/IB/18C/2020
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Abdul-Azeez Waziri Justice of the Court of Appeal
Between
TELLA TAJUDEEN APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE STANDARD OF PROOF IN CRIMINAL MATTERS
It is indeed an elementary principle of law that in criminal trials, the Prosecution must prove its case beyond reasonable doubt. This burden on the Prosecution never shifts. See: Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 135(1) & (2) of the Evidence Act, 2011 and DANJUMA v STATE (2019) LPELR-47037(SC), per Bage, JSC at pages 13–17, paras. C–C; ISAH v STATE (2017) LPELR-43472(SC), per Peter-Odili, JSC at pages 28–29, para. F.
This burden, the Prosecution can only discharge by establishing with credible evidence all the ingredients of the offence(s) the accused person is charged with: ALOR v STATE (1997) LPELR-432(SC), per Adio, JSC at page 6, para. E; STATE v USMAN (2021) LPELR-55202(SC), per Ogunwumiju, JSC at pages 19–20, para. D; and STATE v IBRAHIM (2021) LPELR-55204(SC), per Ogunwumiju, JSC at pages 17–18, para. F. PER MOHAMMED, J.C.A.
WAYS THE PROSECTUTION CAN PROVE THE GUILT OF AN ACCUSED PERSON
It is also settled law that the commission of crime is established through any or combination of three ways, namely: (a) by direct evidence of eye witness(es); (b) by confessional statement of the accused; (c) by circumstantial evidence. See: OLAOYE v STATE (2018) LPELR-43601(SC), per Sanusi, JSC at page 13, para. C; BILLE v STATE (2016) LPELR-40832(SC), per Ngwuta, JSC at page 15, para. A; OGOGOVIE v STATE (2016) LPELR-40501(SC), per Peter-Odili, JSC at page 11, para. B; and ADEYEMO v STATE (2015) LPELR-24688(SC), per Ogunbiyi, JSC at page 16, paras. E – E. PER MOHAMMED, J.C.A.
WHETHER OR NOT DIRECT EVIDENCE OF AN EYE WITNESS IS THE MOST RELIABLE EVIDENCE
It is settled that direct evidence of eye witnesses is the best reliable evidence to establish a fact. See: UDO v STATE (2018) LPELR-43707(SC), per Rhodes-Vivour, JSC at page 22, para. A; and AKINLOLU v STATE (2015) LPELR-25986(SC), per Ogunbiyi, JSC at pages 41–42, para. F. PER MOHAMMED, J.C.A.
THE POSITION OF LAW ON THE BEST TIME TO OBJECT TO THE ADMISSIBILITY OF A DOCUMENT
This Court, in all the cases where a document was tendered without objection or by consent at the trial, has held that the best time to object to the admissibility of a document is at the trial and at the time the document was being tendered for admission in evidence and not by way of appeal: IBORI V. AGBI & ORS (2004) 6 NWLR (pt. 868) 78 at 136; FATUNBI v. OLANLOYE (2004) 12 NWLR (pt. 887) 229. A party who consented to a document being admitted in evidence is not permitted to resile from such agreement. He is estopped from doing so. Section 169 of the Evidence Act, 2011 is all about this estoppel by conduct. See also Uwais, CJN in IBORI v. AGBI & ORS (supra). And this is what makes this appeal a clear case of an abuse of the Court’s process.”
See also: EDET v STATE OF LAGOS (2020) LPELR-50047(CA), Aliyu, JCA at pages 21–23, paras. A–A; and YUSUF v STATE (2018) LPELR-46718(CA), per Wambai, JCA at pages 22–23, para. E. PER MOHAMMED, J.C.A.
THE POSITION OF LAW ON A RETRACTED CONFESSIONAL STATEMENT
It is settled law that when a confessional statement is admitted in evidence and later retracted, the Court should test its truthfulness and veracity by examining same in the light of other credible evidence in order to determine what weight to attach to it. In other words, the Court should consider: (a) whether there is anything outside the confession to show that it is true; (b) whether the confession is corroborated; (c) whether the facts contained in the statement are true as far as they can be tested; (d) whether the defendant had the opportunity to commit the offence; (e) whether the confession is possible; and (f) whether it is consistent with other facts ascertained and proved at trial. See: ALAO v STATE (2019) LPELR-47856(SC), per Aka’ahs, JSC at page 22, para. A; KOLAWOLE v STATE (2015) LPELR-24400(SC), per Galadima, JSC at pages 40–41, para. G; and AGBOOLA v STATE (2013) LPELR-20652(SC), per Ariwoola, JSC at page 37, para. A. PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the Federal High Court sitting in Ibadan (the trial Court) on a two count charge of conspiracy and transporting of 37 kilogrammes of Cannabis Sativa without lawful authority contrary to Section 11(b) of the National Drug Law Enforcement Agency Act, Cap. N30, LFN, 2004. The Charge is at pages 3–4 of the Record of Appeal. The second count of the Charge relating to conspiracy was however withdrawn and struck out on 4th October, 2017, leaving only the first count for the substantive offence of transporting 37 kilogrammes of Cannabis Sativa. On that date, the Appellant initially entered a guilty plea to the one count charge, which he later revisited on the 24th of January, 2018 with a not guilty plea. (See pages 58 and 62 of the Record of Appeal, respectively).
At trial, the Prosecution called four witnesses and tendered Exhibits A to K, while the Appellant solely gave evidence in his defence. In a considered judgment delivered on 13th November, 2019, the trial Court found the Appellant guilty and sentenced him to life imprisonment. The judgment of the trial Court is at pages 110–125, while the sentence is at pages 126 to 127 of the Record of Appeal.
Dissatisfied with his conviction and sentence, the Appellant brought this appeal vide an initial Notice of Appeal filed on the 128–131 of the Record of Appeal. The extant Notice of Appeal is however an Amended Notice of Appeal filed on 10th November, 2020, which was deemed properly filed on the 10th of November, 2021. The Record of Appeal was transmitted to this Court on 24th January, 2020.
Parties filed and exchanged briefs of argument. The Appellant’s Brief of Argument was filed on 10th November, 2020, while that of the Respondent was filed on the 18th of February, 2021. The Appellant’s Reply Brief was filed on the 8th of March, 2021. All the briefs exchanged by the parties were deemed properly filed on the 10th of November, 2021, the day the appeal was heard. On that day, parties adopted their respective briefs of argument.
The Appellant distilled the following three issues for determination:
1. Whether the learned trial Judge rightly convicted the Appellant in the circumstances of this case when the offence constituted by Section 11(b) of NDLEA Act Cap. N30, LFN 2004 was not proved beyond reasonable doubt. (Grounds 1, 3, 4 and 5 of the Amended Notice of Appeal).
2. Whether the learned trial Judge was right in giving credence and/or probative value to Exhibit K in the face of its inherent defects and absence on records pieces of evidence that could independently stand to corroborate the exhibits without themselves requiring corroboration. (Grounds 6, 7, 8, 9 and 10 of the Amended Notice of Appeal).
3. Whether the learned trial Judge correctly took into account all relevant statutory and existing judicial considerations in exercising her discretion in sentencing the Appellant, a first-time offender and father of infant children, to a life term imprisonment. (Ground 2 of the Amended Notice of Appeal).
The Respondent on the other hand formulated a sole issue, which is:
Whether the Prosecution had proved its case beyond reasonable doubt and whether the conviction and sentence of the Appellant was proper and justified in law, having regard to what transpired at the trial and as reflected in the record of proceedings.
It is trite that a Court is entitled to reformulate the issue or issues raised by the parties in order to give the issue or issues some precision or clarity. In so doing, the Court may reframe or abridge some of the issues. See: NEKA v ACB LTD (2004) 1 SC (Pt. 1) 32; AGBAREH v MIMRA (2008) 2 NWLR (Pt. 1071) 378 at 410; MACHIKA v IMAM & ORS (2010) LPELR-4448(CA); and OGBORO v REGTD TRUSTEES OF LAGOS POLO CLUB & ANOR (2016) LPELR-40061(CA).
From my examination of the issues raised by the parties in this appeal, it seems to me that the three issues raised by the Appellant essentially deal with whether the case against the Appellant was established beyond reasonable doubt to justify his conviction, as well as whether in the circumstance of this particular case, his sentence of life imprisonment was justified. The sole issue raised by the Respondent on the other hand, appears to have encompassed those two issues. However, because conviction and sentence are two distinct issues, I intend to consider each distinctively in determining the appeal. Hence, I am of the view that this appeal can be effectively determined with the following two issues:
1. Whether the Prosecution has proved its case against the Appellant to justify his conviction by the trial Court.
2. If issue 1 is in the affirmative, whether in the circumstance of the case, the sentence of the Appellant to life imprisonment is excessive.
ISSUE 1: Whether the Prosecution has proved its case against the Appellant to justify his conviction by the trial Court.
PARTIES’ SUBMISSIONS ON ISSUE 1:
It was submitted on behalf of the Appellant that Section 11 (b) of the NDLEA Act specifically stated cocaine, LSD, heroin and that the phrase “and other similar drugs” mentioned under the action means drugs of similar kinds or class, and before there could be a valid conviction under the section for transporting any other drugs aside the listed ones, evidence must be put before the Court to show that the drug for which the accused is standing trial for transporting is a drug similar to the ones listed. It was argued that there was no evidence put before the Court to show that cannabis sativa is a narcotic drug, similar to cocaine, LSD and heroin.
The learned Counsel for the Appellant further contended that the Prosecution had a duty to establish the ingredients of the offence. He submitted that the Prosecution must establish:
(a) That the Appellant was the driver of a green coloured Toyota Camry with Reg. No. KJA 91 MN
(b) That he transported 37kg of cannabis
(c) That cannabis sativa is a class of heroin, LSD and cocaine.
Counsel pointed out that to establish its case, the Prosecution called PW2, Mr. Badamosi Waheed Abimbola who stated that his job was to take custody of drugs Exhibits, take them to Lagos for analysis and other tasks given to him by his boss. He also said he conducted test on the sample of dried weed substance. (Pg. 65 of the Record of Appeal). He submitted that PW2 had under cross examination admitted not being a forensic expert and stated that he did not prepare the exhibit and was not present when it was prepared. Counsel posited that the foundation of the conviction of the Appellant was based on the test done by PW2, an exhibit keeper in the services of NDLEA, and the witness had stated that he is not a forensic expert. He argued that since the foundation is faulty and without basis, no super structure can be built on it. He called in aid MACFOY VS. UAC CO. LTD, (1962) AC 152 at 160.
Learned Counsel similarly argued that PW2 had admitted under cross-examination that he could not tell who was the owner of the car. He added that during his evidence in chief, PW1 had stated that the Appellant was brought to his office by two of his colleagues, but under cross-examination, he had stated that he was part of the team that arrested the Appellant. Counsel submitted that the Appellant had stated that he was never seen driving as the car was not in motion when the alleged arrest was made, and the Appellant was not seen with any driver’s licence. He argued that the circumstantial evidence was not strong and positive enough to show that the Appellant was the driver that drove the car on the day of the arrest, as there were two people in the vehicle. He cited IGABELE VS. STATE (2006) 6 NWLR (Pt. 975) 100 at 130, per Onnoghen, JSC (as he then was), to the effect that in the application of circumstantial evidence it must be narrowly examined, so that the possibility of fabrication to cast doubt on an innocent person is removed.
It was also submitted that there was inconsistency as to the description of the vehicle. It was pointed out that the witness claimed that the car was a green Toyota Camry with Reg. No. KJA 91 MN, but the learned trial Judge described it as Toyota Camry with Reg. No. KSA 91 MN, and the trial Judge ordered the final forfeiture of green Toyota Camry with Reg. No. KJA 91 MUS. It was argued that the identity of the means with which a defendant is alleged to have committed an offence is a material ingredient which must be proved beyond reasonable doubt.
It was also argued that the only exhibit that could have proved or explained the identity of the car was the print out from PW2’s phone and that same was clearly inadmissible under Section 84 of the Evidence Act 2011, in the absence of the necessary certification. The cases of KUBOR v DICKSON (2013) 4 NWLR (Pt. 1345) 534 at 577–578; OMISORE v AREGBESOLA (2015) 15 NWLR (Pt. 1482) 205 at 295, were cited.
It was also submitted by the Appellant’s counsel that even if Exhibit 1 could be admissible as a document, it was still inadmissible under the circumstance by virtue of Sections 102, 104 and 105 of the Evidence Act in the absence of certification of the said document since NDLEA is a public body. He relied on the cases of SUNDAY BELLO v ADEJUMOKE ODUOLA (2010) 50 WRN 139; ALHAJA SARIATIU O. KUKOYI v CHIEF MRS F. A. ADEUJA, APPEAL NO. CA/81/2004.
In respect of Exhibit K which was admitted at the trial Court through the PW3, it was submitted that the trial Court ought not to have placed probative value on the exhibit in the absence of any corroboration. It was argued that a piece of evidence which requires corroboration cannot itself be corroborated by another evidence.
It was also argued on behalf of the Appellant that the trial Court was wrong to have glossed over the Appellant’s claim that he did not write or sign or thumbprint any statement. It was argued that the issue goes beyond mere voluntariness or involuntariness, and that where there is a denial of a confessional statement, the onus is on the provocation to establish beyond reasonable doubt that the Appellant signed and thumb-printed the statement and the Respondent failed to do so. He cited ATOYEBI v ODUDU (1990) 6 NWLR (Pt. 157) 384 at 401.
RESPONDENT’S SUBMISSIONS:
In his counter submission, learned Counsel for the Respondent’s submitted that the entire argument of the Appellant is misconceived, as the case against the Appellant was proved beyond reasonable doubt and ample evidence was led to warrant his conviction. Relying on UGWUMBA v STATE (1993) 5 NWLR Part 296, 60 at 67, he submitted that the Respondent had proved all the necessary ingredients of the offence. He posited that the Respondent adopted the right procedure in accordance with the relevant laws in criminal trials. He pointed out that the Respondent’s 4 witnesses had established that:
(a) The Appellant was the one who drove the alleged vehicle.
(b) The late retraction of the confessional statement made by the Appellant in Court was of no importance as it was admitted without any objection raised by the Appellant and the statement, even though denied, is relevant to the case.
(c) There was evidence that the illicit drug tested positive for cannabis sativa.
(d) There was no clear evidence to show that the Appellant had lawful authority to deal with the cannabis.
Learned Counsel for the Respondent contended that in determining whether the Respondent proved the case beyond reasonable doubt, the totality of the evidence placed before the Court must be considered. He relied on ENGINEER AMALA v STATE (2003) FWLR (Pt. 159) 1504 (CA). He argued that the Respondent had given valid and cogent eye witness account of how the Appellant was arrested, how the car he drove was searched and 37kg of cannabis sativa and N67,000.00 were found. He added that circumstantial evidence before the trial Court shows that the Appellant transported cannabis sativa to the place he was arrested. He cited AKINYEMI v STATE (2001) 2 ACR 32; ALI VS. STATE (2003) AWLR 1 Pg. 581 at 599.
It was also submitted on behalf of the Respondent that the content of Exhibit K which is the confessional statement of the Appellant is an acknowledgment that he committed the offence charged and it is known that a defendant can be convicted upon his own confession. Reliance was placed on QUEEN v OBASA (1902) 1 AWLR Part 4 Pg. 651; and AKPAN v STATE (2004) 5 ACLR 135 at 163, line 15–20. It was argued that the testimonies of the Respondent’s witnesses and the exhibits tendered in this case were consistent with the confessional statement of the Appellant and as such the offence of unlawful transportation was proved against the Appellant and he was rightly convicted by the trial Court
Learned Counsel for the Respondent contended that the decision of the trial Court will only be set aside where the error or irregularity complained of has occasioned miscarriage of justice. Relying on CORPORAL LIVINUS UGWU v STATE (2013) All FWLR (Pt. 964), he argued that the irregularity referred to by the Appellant in respect of the description of the registration number of the Toyota Camry car did not occasion any miscarriage of justice to warrant setting aside the Appellant’s conviction. He added that the Respondent had proved to the satisfaction of the Court that the drug recovered from the Appellant was positive for cannabis sativa and the Appellant had no lawful authority to transport the prohibited drug and the Appellant had not been able to prove otherwise, even as the burden was on him to do so, as stated in Section 139 of the Evidence Act, 2011. He relied on IBRAHIM ABDUL-RAHMAN v COP (1971) 1 NNLR 27; (1971) NMLR 24. He urged the Court to dismiss the appeal.
RESOLUTION OF ISSUE 1:
The essential contention of the Appellant under this issue is that the Prosecution did not prove beyond reasonable doubt the ingredients of the offence for which the Appellant was convicted by the trial Court.
It is indeed an elementary principle of law that in criminal trials, the Prosecution must prove its case beyond reasonable doubt. This burden on the Prosecution never shifts. See: Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 135(1) & (2) of the Evidence Act, 2011 and DANJUMA v STATE (2019) LPELR-47037(SC), per Bage, JSC at pages 13–17, paras. C–C; ISAH v STATE (2017) LPELR-43472(SC), per Peter-Odili, JSC at pages 28–29, para. F.
This burden, the Prosecution can only discharge by establishing with credible evidence all the ingredients of the offence(s) the accused person is charged with: ALOR v STATE (1997) LPELR-432(SC), per Adio, JSC at page 6, para. E; STATE v USMAN (2021) LPELR-55202(SC), per Ogunwumiju, JSC at pages 19–20, para. D; and STATE v IBRAHIM (2021) LPELR-55204(SC), per Ogunwumiju, JSC at pages 17–18, para. F.
In the instant appeal, the charge for which the Appellant was convicted by the trial Court was as follows:
That you TELLA TAJUDEEN, male, adult on or about the 27th day of July, 2017 at Dugbe Area of Ibadan, Oyo State within the jurisdiction of this Honourable Court and being the driver of a green coloured Toyota Camry car with registration number KJA 91 MN without lawful authority TRANSPORTED 37 kilogrammes of cannabis sativa which is a Narcotic Drug similar to Cocaine, Heroin or LSD and thereby committed an offence contrary to and punishable under Section 11(b) of the National Drug Law Enforcement Agency Act, Cap. N30, Laws of the Federation of Nigeria, 2004.
(See: pages 3 – 4 of the Record of Appeal)
Learned Counsel for the Appellant had contended in paragraph 3.07 of the Appellant’s Brief of Argument that implicit in the above Charge formulated against the Appellant under Section 11(b) of the NDLEA Act, is that the Respondent had the burden of establishing the following ingredients beyond reasonable doubt:
(i) That the Appellant was the driver of a green coloured Toyota Camry car with registration number KJA 91 MN;
(ii) That in that capacity, the Appellant transported 37 kilogrammes of cannabis sativa.
(iii) That the cannabis sativa is of the class of cocaine, LSD or heroine.
It is also settled law that the commission of crime is established through any or combination of three ways, namely: (a) by direct evidence of eye witness(es); (b) by confessional statement of the accused; (c) by circumstantial evidence. See: OLAOYE v STATE (2018) LPELR-43601(SC), per Sanusi, JSC at page 13, para. C; BILLE v STATE (2016) LPELR-40832(SC), per Ngwuta, JSC at page 15, para. A; OGOGOVIE v STATE (2016) LPELR-40501(SC), per Peter-Odili, JSC at page 11, para. B; and ADEYEMO v STATE (2015) LPELR-24688(SC), per Ogunbiyi, JSC at page 16, paras. E – E.
The first contention made by the Appellant in paragraphs 3.05 and 3.06 of the Appellant’s Brief of Argument is that the Respondent had led no evidence to establish that the “cannavis sativa is a narcotic drug and similar to Cocaine, heroin or LSD” to warrant his conviction by the trial Court. Learned Counsel for the Appellant had contended that the phrase “or any other similar drugs” used in Section 11(b) of the NDLEA Act is meant to bring in drugs of similar kinds, class or genre and no evidence was led to show that cannabis sativa is similar to cocaine, heroin or LSD.
With due respect to the learned Counsel for the Appellant however, I find his argument misconceived, especially in view of the express statutory provisions contained in the Indian Hemp Act and the NDLEA Act, as well as settled judicial pronouncements on this issue. Apart from the fact that Section 1 of the Indian Hemp Act defines “Indian hemp” to mean “any plant or part of a plant of the genus of cannabis” and Section 52 of the NDLEA Act defines “cannabis plant” to mean “any plant of the genus of Cannabis”, there are several judicial pronouncements to the effect that cannabis sativa comes within similar drugs to Cocaine, Heroin or LSD as provided for in Section 11 of the NDLEA Act.
In OKEWU v FRN (2012) LPELR-7834(SC), the Supreme Court, per Ariwoola, JSC, held at pages 23–24, para. C, as follows:
“As clearly shown above, the law in question under which the Appellant was charged, convicted and sentenced, Section 10(h) of the NDLEA Act, prohibits being in possession of DRUGS popularly known as Cocaine, LSD, heroine or any other similar drugs. A drug in the context of the law instant is defined as “natural or synthetic substance that alters ones perception or consciousness.” A narcotic drug therefore is “a drug that is controlled or prohibited by law.” See: Black’s Law Dictionary, 9th Edition pages 571 and 1120 respectively. There is no doubt that all the drugs mentioned in Section 10(h) of the law, that is, Cocaine, LSD and Heroine with Cannabis Sativa otherwise known as Indian Hemp are substances that are known to alter users’ perception or consciousness. They are also narcotic drugs hence, they are prohibited by law. In other words, Cocaine, LSD, Heroine and Indian hemp are prohibited in the same way because they are all drugs that alter one’s perception or consciousness hence the prohibition by law. As a result, I am not in the slighted doubt and I hereby say with conviction that the Court below was right to hold that the substance called Indian Hemp, otherwise known as Cannabis Sativa falls within the phrase “any other similar drugs” used in Section 10(h) of the NDLEA Act pursuant to which the Appellant was charged, convicted and sentenced by the tribunal.”
See also on this: AKANNI v FRN (2012) LPELR-19949(CA), per Ikyegh, JCA at pages 10–14, para. B; OSSAI v FRN (2012) LPELR-19669(CA), per Mbaba, JCA at pages 30–33, para. B; ADEBAYO v FRN (2017) LPELR-42395(CA), per Dongban-Mensem, JCA (as he then was) at pages 17–18, para. F; and OLUGBADE v FRN (2018) LPELR-50096(CA), per Tukur, JCA at pages 8–9, paras. D–D.
I therefore, have no hesitation in discountenancing the argument of the Appellant. Cannabis Sativa is clearly a narcotic drug similar to cocaine, heroin or LSD, within the meaning of Section 11(b) of the NDLEA Act. Given this settled position, there was therefore, no need for the Respondent to lead any evidence to establish same.
The learned Counsel for the Appellant had also argued that the Respondent had not established that the Appellant was the driver of the green Toyota Camry car because at all material times relevant to the point of the arrest of the Appellant, the car was not in motion and the Appellant was not seen actually driving the vehicle and he was not seen with any driver’s licence. The learned Counsel for the Respondent had however countered that there was evidence that the Appellant was the person who drove the Toyota Camry containing cannabis sativa on that date. He had referred to the evidence of PW2 and PW3 who were eye witnesses and who gave account of what happened.
It is instructive to observe that from the Record of Appeal, the Respondent had in establishing its case against the Appellant relied on the evidence of four witnesses (PW1–PW4), as well as documentary and other exhibits, of which is also a confessional statement of the Appellant (Exhibit K). Of the witnesses, PW1 (Badamosi Waheed Abimbola), was the Deputy Superintendent of Narcotic who conducted the test on the sample of the dried weed substance and confirmed same to be Cannabis Sativa, while PW2 (Auwalu Nasiru Ali) and PW3 (Umar Maga), both Assistant Superintendents of Narcotics, were eye witnesses who took part in the arrest of the Appellant. PW4, Abubakar Zakari Aliyu, also an Assistant Superintendent of Narcotics with the Forensic and Chemical Monitory Unit of NDLEA testified and identified all the scientific results of the drug forensic analysis which he received and handed over to PW1.
In his evidence at pages 64–70 of the Record of Appeal, PW1, Badamosi Waheed Abimbola, a Deputy Superintendent of Narcotics with NDLEA, stated that on the 27th of July, 2017, two of his working colleagues, Nnani Samson and Hawa Nasiri, all Assistant Superintendents of Narcotics II brought the Appellant with a big sack of dried weed which they off-loaded from a green Toyota Car and that when he tested a sample of the weed it proved positive for cannabis sativa, and upon counting the parcels concealed in the sack, there were 35 pieces which on the scale weighted 37 kilogrammes. The witness also stated that after indicating the positive nature of the test, he filled three Exhibit Forms which were certificates of test analysis. He stated that he took another sample which he sealed in a transparent evidence pouch and marked same as A1 while the third form was a request for scientific aid form. He stated that all the three forms were thumb printed and signed by the Defendant and the two officers that brought him. He stated that he documented the exhibits, including the car and the sum of N67,000 also found on the Defendant, while taking the Form A1 and the Scientific Aid Forms to the NDLEA Forensic Laboratory where it was given a number NDLEA/SD/2017/1259. He stated that he also issued a case number NDLEA/OYSC/HQ/53/07/17. He then tendered the Certificate of Test Analysis Form, the Packing of Substance Form and the Request for Scientific Aid Form which were admitted in evidence without objection as Exhibits A, B and C, respectively. He also tendered the Big Brown Envelope, the Drug Analysis Report and the Request for Scientific Aid endorsed at the Forensic Laboratory all of which were also admitted without objection as Exhibits D, E and F, respectively. He also tendered the Form A1, as well as the 35 parcels of dried weed substance which were admitted as Exhibits G and H1–H35, respectively.
Also at page 77, PW2, one Auwalu Nasiru Ali, an Assistant Superintendent of Narcotics II, had testified that on receipt of information at their office that one green Toyota Camry with Registration No. KJA 91 MW which was carrying dried weed suspected to be cannabis sativa had come to Dugbe and parked near Cocoa House, Ibadan, he proceeded along with other officers in his team, namely – Shogbanke Lateef, Nnani Samson and Umar Manga, and that when they got to Dugbe, they saw the green Toyota Camry with the Appellant sitting behind the wheel and another person by his side. He stated that when they searched the vehicle, they found a white sack containing parcels of compressed cannabis sativa and that upon arresting the Appellant, the compressed cannabis sativa was tested at their Office in their presence and in the presence of the Appellant, and same was confirmed to be 35 parcels of cannabis sativa weighing 37 kilogrammes. He stated that they all signed the necessary Exhibit Forms, Certificate of Test Analysis and Parking of Substance Forms, Request for Scientific Aid Form and Search Endorsement Form. He also tendered a printed copy of the picture of the green Toyota Camry which he took with his phone and printed in the office printer. The Search Endorsement Form and the Printed Picture of the green Toyota Camry were admitted in evidence without objection as Exhibits I and J, respectively.
PW3, Umar Maga, an Assistant Superintendent of Narcotics I, the second eye witness, also testified under cross-examination at pages 91–93 of the Record of Appeal, wherein he stated that he participated in the operation leading to the arrest of the Appellant and investigated the case. He stated that they arrested the Defendant and one Eji Lucky, a mobile policeman. He said when they got to the place where the Toyota Camry was packed the doors were not open and the Appellant was on the driver’s seat at the time of arrest. PW3 stated that the Appellant had told him that he was the driver of the vehicle and that he drove the vehicle from Abeokuta.
In evaluating the evidence of the two eye witnesses, the learned trial Judge had in his judgment, particularly at pages 119-120 of the Record of Appeal held as follows:
“Flowing from the above I will start at the beginning with the facts placed before the Court. The defendant was placed at the crime scene at Dugbe, in Ibadan on the 27th day of July, 2017 where he was arrested, seated on the driver’s seat, that is, behind the car steering of the Toyota Camry with registration number KJA 91 MN.
The evidence of PW2 is:-
“…I was among the team of strike force…. When we got to Dugbe, we saw the green Camry Toyota. We rushed to the car and we introduced ourselves to the driver, that is, the Defendant sitting at the steering and the other person by his side.”
The PW3 in the course of cross-examination exposed thus:
“…when we got to where the Toyota Camry was parked, the door was not opened. The Defendant was the driver of the Camry. The defendant and Eji Lucky were inside the vehicle… The defendant was on the driver’s seat at the time of arrest..”
No doubt, the above testimonies are direct evidence of the prosecution which points to the fact that the defendant was found seated in the driver’s seat and circumstantially is the driver of the vehicle in question. Now the mere ipse dixit of defendant that Eji Lucky was the driver of the vehicle cannot depreciate this solid evidence of the defendant found seated on the driver’s seat of the vehicle in question, and will leave a reasonable man to infer only one fact, that is, the defendant is the actual driver of the vehicle…I must hastily add this is my conclusion irrespective of the watery submission from Defence counsel that the Prosecution failed to produce defendant’s National Driver’s Licence, which he argued will ground the fact that defendant drove the vehicle in question on the aforementioned day. On the contrary to Defence, I hold the firm view that the evidence of the defendant’s Driver’s Licence will de facto depict the defendant is licenced to drive, and will not amount to proof that he in fact drove the said vehicle on the said day.”
Learned Counsel for the Appellant had tried to argue at page 9 of the Appellant’s Brief of Argument that it was not established that the Appellant was the driver of the green Toyota Camry vehicle because the vehicle was not in motion and the Appellant was not seen actually driving the vehicle, and his driving licence was also not produced. He had argued that circumstantial evidence can only be employed where it is complete and unequivocal. But as rightly observed by the learned trial Judge above, the evidence of PW2 and PW3 has clearly placed the Appellant in the driving seat of the green Toyota Camry at Dugbe Ibadan at the material time of his arrest on the 27th day of July, 2017.
It is settled that direct evidence of eye witnesses is the best reliable evidence to establish a fact. See: UDO v STATE (2018) LPELR-43707(SC), per Rhodes-Vivour, JSC at page 22, para. A; and AKINLOLU v STATE (2015) LPELR-25986(SC), per Ogunbiyi, JSC at pages 41–42, para. F.
As for the inference made by the learned trial Judge that the Appellant is the driver of the vehicle, the settled law is that circumstantial evidence is as good as direct evidence once it is cogent, compelling and pointing irresistibly to a given fact: AIGBADION v STATE (2000) LPELR-264(SC), per Ejiwunmi, JSC at pages 28–29, para. E; and STATE v SUNDAY (2019) LPELR-46943(SC), per Okoro, JSC at pages 24–25, para. D.
Having been found by PW2 and PW3 at the driver’s seat of the green Toyota Camry, the irresistible conclusion any reasonable person can reach is that the Appellant was the driver of the said vehicle. More so, PW3 had testified under cross-examination that the Appellant had confirmed to him that he drove the vehicle from Abeokuta. (See page 92 of the Record).
It is also instructive to state that in addition to the evidence of PW2 and PW3, the eye witnesses who arrested the Appellant, the Respondent had also tendered and relied on Exhibit K, the Appellant’s confessional statement. Learned Counsel for the Appellant had tried to argue that the trial Court ought not to have ascribed probative value to the said confessional statement because the Appellant had denied writing same or thumb-printing same.
Pages 90–91 of the Record of Appeal however, shows that when the Appellant’s confessional statement was tendered, the Appellant only denied writing the statement and stated that he was not shown any paper talk less of thumb printing it. When the statement was tendered, the learned Counsel for the Appellant had then retorted that: “For whatever it is worth, I do not have any objection”. The trial Court then admitted the said statement in evidence as Exhibit K.
It is settled law that resiling from a confessional statement or denial of it does not render the statement inadmissible: ALARAPE v THE STATE (2001) 5 NWLR (Pt. 705) 79 at 98.
Indeed, in ORJI v FRN (2019) LPELR-46534(SC), per Eko, JSC at pages 13–14, paras. E–E, the Apex Court reiterated this position when it held as follows:
“… Exhibit A was admitted into the proceedings unopposed. The Appellant was present and was represented by Counsel at the time the statement was tendered and admitted. Neither the Appellant nor his Counsel raised the issue of the involuntary making of the statement. The fact that Exhibit A was tendered and admitted in evidence without objection or by consent is evidence that the defence was satisfied that there was nothing in law on which they could rely on to oppose its admissibility. This Court, in all the cases where a document was tendered without objection or by consent at the trial, has held that the best time to object to the admissibility of a document is at the trial and at the time the document was being tendered for admission in evidence and not by way of appeal: IBORI V. AGBI & ORS (2004) 6 NWLR (pt. 868) 78 at 136; FATUNBI v. OLANLOYE (2004) 12 NWLR (pt. 887) 229. A party who consented to a document being admitted in evidence is not permitted to resile from such agreement. He is estopped from doing so. Section 169 of the Evidence Act, 2011 is all about this estoppel by conduct. See also Uwais, CJN in IBORI v. AGBI & ORS (supra). And this is what makes this appeal a clear case of an abuse of the Court’s process.”
See also: EDET v STATE OF LAGOS (2020) LPELR-50047(CA), Aliyu, JCA at pages 21–23, paras. A–A; and YUSUF v STATE (2018) LPELR-46718(CA), per Wambai, JCA at pages 22–23, para. E.
Learned Counsel for the Appellant had at page 17 of the Appellant’s Brief of Argument tried to skew argument around signature or thumb printing of the statement. However, it is clear from the record that the Appellant essentially denied making any statement. And having failed to raise any objection as to the admissibility of Exhibit K at the trial Court, the Appellant cannot before this Court raise same on appeal: ORJI v FRN (supra).
It is settled law that when a confessional statement is admitted in evidence and later retracted, the Court should test its truthfulness and veracity by examining same in the light of other credible evidence in order to determine what weight to attach to it. In other words, the Court should consider: (a) whether there is anything outside the confession to show that it is true; (b) whether the confession is corroborated; (c) whether the facts contained in the statement are true as far as they can be tested; (d) whether the defendant had the opportunity to commit the offence; (e) whether the confession is possible; and (f) whether it is consistent with other facts ascertained and proved at trial. See: ALAO v STATE (2019) LPELR-47856(SC), per Aka’ahs, JSC at page 22, para. A; KOLAWOLE v STATE (2015) LPELR-24400(SC), per Galadima, JSC at pages 40–41, para. G; and AGBOOLA v STATE (2013) LPELR-20652(SC), per Ariwoola, JSC at page 37, para. A.
In evaluating Exhibit K, the learned trial Judge had held at pages 121–124 of the Record of Appeal as follows:
“This brings me to Exhibit K, the defendant’s statement recorded at the earliest opportunity in this case. Pertinent to mention, at the time prosecution sought to tender this statement, the Defence failed to raise any objection thereto. In the course of this trial, he consistently stated that Exhibit K is not a confessional statement. The Defendant said he was not given a paper to write, as such he did not write this Exhibit K. In effect he denied the Exhibit K. it is very trite where it is not the voluntariness of the defendant statement that is in issue, then the Exhibit K is admissible in evidence, but weight to be attached will be addressed. This is because the plea of non est factum does not affect admissibility.
In order to adjudge what weight to give Exhibit K, I find the surrounding facts of this case must be taken into account. Firstly I find the shift in defendant’s position that he did not make a statement, to the position that he only gave details of his bio data, and then his evidence that he only stated what he was told to say, is a violent contradiction from his earlier stance.
…I do find very crucial to prosecution’s case, that the content of Exhibit K is more logical than the incredible defence of the defendant to wit, that he hired the Toyota Camry in question, they travelled all the way to Sagamu, only to return to Dugbe in Ibadan to collect money from Eji Lucky’s customer, and the fuel finished in the vehicle, that was why they were found parked and arrested. The Exhibit K in my view is very weighty and cogent to PW2 and PW3 testimony, most especially where the defendant stated as follows:
“…Tunde met me yesterday in Abeokuta and dropped a white sack with compressed parcels of Igbo and I promised Tunde that I will bring it today 27-7-2017 to Ibadan and we agreed that I will be given Fifteen Thousand Naira… I transported the Igbo inside my green Toyota Camry…to Dugbe Area of Ibadan. On my way from Abeokuta I assisted one Mobile Police Officer to Ibadan but he did not know what I was carrying in my car, but we were arrested at Dugbe, while I was waiting for Tunde to come and collect the Igbo.
There is no gain said that I do believe that the defendant in fact made the Exhibit K at the earliest opportunity when he was apprehended before he had time to ponder on the seriousness of the offence he had confessed to. This statement of the defendant supports the sack of thirty-five compressed parcels of dried weed substance recovered from the defendant’s Toyota Camry, which proved positive in a preliminary test conducted by PW1 on a little quantity of the dried weed substance in the defendant’s presence and at NDLEA Forensic Laboratory at Lagos State as evidenced in Exhibit E, that is the Drug Analysis Report. Interestingly is the craftiness of the defendant in respect of admitting that the operatives of the NDLEA seizure of his money to wit, Sixty Seven Thousand Naira. It is very crucial to mention that the defendant did not allude not to have understood the cautionary words read and explained to him by PW3. I find the defence from the defendant is an afterthought meant to circumvent the course of justice.
A cursory perusal of paragraph 4.6 of Defence Counsel final written address reveals the said paragraph is a product of ‘copy and paste’, since the facts alluded to there, do not align with the facts of this case. He stated therein as follows:
‘My Lord, as to exhibit ‘A’ the purported statement of the defendant which he denied and said it was written by the PW1 after a lot of torture where he had to sign…’
I must say learned Defence Counsel attempted to smuggle in evidence of torture to the defendant which was not raised by the defendant or defence counsel in the course of evidence.
Flowingly, I find in accordance with the settled position of the law, that Exhibit K is a free and voluntary confession of guilt by the defendant, which is also direct and has been sufficiently proved by the prosecution to warrant a conviction. I also find that by the prosecution’s tightly linked chains of evidence, the prosecution has proved the guilt of the defendant beyond reasonable doubt.”
It seems clear to me from the above holding of the learned trial Judge, that he had duly evaluated the Appellant’s confessional statement in the light of other evidence led in the case and found same to be truthful and credible. The evidence of PW2 and PW3 to the effect that they arrested the Appellant at Dugbe, Ibadan while sitting in the driving seat of a green Toyota Camry in which they found a sack containing dried weed suspected to be Cannabis Sativa; the evidence of PW1 to the effect that when the Appellant was brought to him with the Toyota Camry vehicle and the sack of dried weed he conducted a test on the sample of the dried weed and confirmed same to be 35 parcels of compressed Cannabis Sativa weighing 37 kilogrammes; the evidence of PW4 to the effect that a drug analysis test was conducted at the NDLEA Laboratory which also confirmed the dried weed to be Cannabis Sativa; the documentary evidence of the test and drug analysis results (Exhibit E); the material evidence of the green Toyota Camry car in which the Appellant was arrested while transporting the 35 kilogrammes of Cannabis Sativa; the material evidence of the 35 parcels of the Cannabis Sativa (Exhibits H1–H35) are all independent evidence which supports the confessional statement of the Appellant in Exhibit K.
I observe that in this appeal, learned Counsel for the Appellant had made strenuous efforts to discredit the evidence of the witnesses of the Prosecution, as well as the Drug Test Result and Drug Analysis Report tendered as Exhibit E. For instance, he had pointed to some discrepancies in the evidence of the witnesses, especially in stating the registration number of the Appellant’s green Toyota Camry vehicle. I however hasten to state that all the discrepancies raised by the learned Counsel are clearly not material enough as to impact on the evidence given by those witnesses in support of the Prosecution’s case, especially when the totality of the evidence is considered, including the confessional statement of the Appellant.
It is settled law that in criminal litigation, only material contradictions and not minor discrepancies can create doubt enough to tilt the scale of conviction. See: MUSA v STATE (2019) LPELR-46350(SC), per Muhammad, JSC at page 9, para. A; and ADELODUN v FRN (2017) LPELR-42356(CA), per Owoade, JCA at page 54, para. B.
In the instant appeal, the Appellant had confessed to the commission of the offence in Exhibit K, which the trial Court had duly evaluated against other independent oral and material evidence and found same to be credible. Once a confessional statement is found to be credible, a Defendant can be convicted on the strength of his confession alone, even if such a confession was retracted by the Defendant or was not corroborated. See: BERENDE v FRN (2021) LPELR-54993(SC), per Peter-Odili, JSC at pages 63–64, para. E; and BLESSING v FRN (2015) LPELR-24689(SC), per Ogunbiyi, JSC at page 49, para. C.
At page 1537, Black’s Law Dictionary 8th Edition defines transportation as the movement of goods and persons from one place to another by a carrier.
In the contents of Exhibit K, the Appellant had confessed that he was given the white sack containing compressed parcel of “Igbo” to transport same for him to Ibadan for a fee of Fifteen Thousand Naira and that he transported same in his green Toyota Camry to Dugbe, Ibadan and was arrested while waiting for Tunde to come and collect same. Confession is the highest and most satisfactory evidence if there is an independent proof that a crime had in fact been committed. See: OKEMMIRI v FRN (2015) LPELR-24485(CA), per Agube, JCA at pages 10–14, para. C.
A trial Court, before whom witnesses appear to give evidence, has the primary duty of evaluating and ascribing probative value to the evidence laid before it. Therefore, unless it is established that the trial Court has shirked from this primary duty, or the evaluation was perversely done, an appellate Court will not interfere, even if it would have evaluated such evidence differently. In other words, the function of an appellate Court on questions of fact is limited to seeking whether or not there was evidence before the trial Court upon which its decision on facts was based and whether the trial Court wrongly accepted or rejected any evidence at the trial which has occasioned miscarriage of justice. See: EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at pages 10–11, para. D; and JIBRIN v FRN (2018) LPELR-43844(SC), per Augie, JSC at pages 13–14, para. A.
Not only has the Respondent produced evidence of eye witnesses and tendered material evidence as shown above, it has tendered the confessional statement of the Appellant, all of which were rightly evaluated by the trial Court in finding the Appellant guilty of the offence with which he was charged. This being the case, I see no reason upon which this Court can interfere with the decision of the trial Court. I therefore resolve this issue against the Appellant.
ISSUE 2: If issue 1 is in the affirmative, whether in the circumstance of the case, the sentence of the Appellant to life imprisonment is excessive.
APPELLANT’S SUBMISSION ON ISSUE 2:
Learned Counsel for the Appellant’s essential contention under this issue is that the learned trial Judge had not exhausted all statutory provisions and principles and practice of sentencing prescribed before exercising the judicial discretion of imposing a maximum sentence of life imprisonment. He had argued that the Appellant is a 48 year old carpenter, married to a young woman with four infant children. He had pointed out that the Appellant had no previous conviction. He contended that one of the principles of sentencing is that where the count relates and an act or series of acts, the sentence should be ordered to run concurrently and not consecutively. He had cited KENNETH CLARK v STATE (1986) NWLR (Pt. 35) 385, to the effect that an Appellate Court can intervene by exercising the judicial discretion to reduce the sentence imposed on an Appellant having considered the circumstance of the case. He urged the Court to intervene as the life sentence imposed on the Appellant was excessive. He pointed out that the Appellant who had been in prison for 3 years ought to be set free to enable him take care of his family. He relied on CHRISTOPHER FAGBEMI v STATE (1978) 6 F.C.A; SUNDAY IMOISILI v A.G. BENDEL (1986) 2 C.A. (Pt. 1) 390; and ENGR. KWALE v THE STATE (2003) FWLR (Pt. 159) 1504 at 1531, 1504; and OSAYOMI & ORS VS. THE STATE (2006) ALL FWLR (Pt. 342) 1577 at 1598, 1600; to the effect that Courts should be slower in imposing terms of imprisonment even where sentences are provided for by the statutes, particularly on first time offenders. He urged the Court to hold that the sentence of life imprisonment imposed on the Appellant by the trial Court was excessive.
RESPONDENT’S SUBMISSIONS ON ISSUE 2:
In his counter submission, learned Counsel for the Respondent argued that the trial Court rightly exercised its discretion when it sentenced the Appellant to life imprisonment for the offence. He argued that the sentence was right in law and a correct exercise of judicial discretion which this Court cannot interfere with. He cited GENERAL & AVIATION SERVICES LTD v THAHAL (2004) 10 NLWR (Pt. 880) 50 at 89 and urged the Court to uphold the sentence.
I have considered the submissions of the parties under this issue. It is trite that sentencing is the concluding part of a criminal trial. It means no more than the imposition on the convicted Defendant of the punishment prescribed by law. The sentence to be imposed by the Court must therefore be in accordance with that prescribed by the statute creating the offence and/or providing the punishment for the offence. Hence, a Court can neither impose a higher sentence than the one provided for, nor impose a sentence which the statute prescribing the offence has not provided for. See: EKPO v STATE (1982) 1 NCR 34; and ASAKITIKPI v STATE (1993) 5 NWLR (Pt. 296) 641.
Sentences prescribed by statutes may be fixed and mandatory or may provide a minimum or maximum sentence, thus conferring discretion upon the Court to impose a sentence between the two extremes, depending on the circumstances of the case. In such situation, an allocutus may be made upon the Court highlighting reasons why the Court should impose a lesser sentence upon the convicted Defendant. However, where the sentence prescribed for a particular offence is a mandatory one, the Court has no discretion (indeed no jurisdiction) to impose a lesser or higher sentence than the mandatory one prescribed. In such a situation, an allocutus becomes a waste of time. See: STATE v JOHN (2013) LPELR-20590(SC), per Rhodes-Vivour, JSC at page 29, para. C; EMMANUEL v FRN (2019) LPELR-47925(CA), per Akomolafe-Wilson, JCA at pages 20–22, para. E; and PEDRO v STATE (2015) LPELR-24547(CA), per Owoade, JCA at pages 17–19, para. E.
In the instant case, the Appellant was convicted of transporting 37 kilogrammes of cannabis sativa without lawful authority contrary to Section 11(b) of the National Drug Law Enforcement Agency Act. The said Section stipulates that:
Any person who without lawful authority –
(a) …
(b) exports, transports or otherwise traffics in the drugs popularly known as cocaine, LSD, heroine or any other similar drugs shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life.
(underline mine for emphasis)
In interpreting the nature of the sentence provided under this Section, this Court had consistently held that the punishment of life imprisonment provided under the Section is mandatory, conferring no discretion upon the Court to impose a lesser sentence than that prescribed.
In the most recent case of ELIZABETH v FRN (2021) LPELR-54632(CA), Ikyegh, JCA reiterated this position when he held at pages 11–12, paras. D–E, as follows:
“The Court (Augie J.C.A. (now J.S.C.), Saulawa, J.C.A. (now J.S.C.) and Ikyegh, J.C.A.) held in the case of Nweke Chibueze Francis v. Federal Republic of Nigeria unreported Appeal No.CA/L/136/2010 delivered on 21.06.2013 that the sentence of imprisonment for life for a person convicted for the offence of exporting, transporting or otherwise trafficking in drugs such as cocaine, as in this case, is fixed or mandatory. His Lordship, Augie, J.C.A., (now J.S.C.) stated lucidly, inter alia, in His Lordship’s judgment that – “The Appellant herein was convicted for the offence of exportation of cocaine, and the lower Court was right, in my view, to hold that the above-stated provision (Section 11(b)) of the NDLEA Act is mandatory, and “excludes the idea of discretion”. His Lordship Saulawa, J.C.A. (now J.S.C.) relying on the Supreme Court case of Lt. F. O. Odunlami (NN/2121) v. The Nigerian Navy (2013) LPELR-SC.328/2011 with similar sentence for the offence of manslaughter held that there is no discretion to exercise in sentencing for an offence with mandatory or fixed sentence. There is therefore no discretion to exercise in sentencing the appellant for the offence of exporting the hard drug called cocaine without lawful authority. The Court of Appeal (the Court) is bound by its own previous decision vide Honeywell Flour Mills Plc v. Ecobank (Nig.) Ltd. (2019) 2 NWLR (pt.1655) 35 at 51.”
See also on this: DANSO v FRN (2013) LPELR-20165(CA), per Galinje, JCA (as he then was) at pages 15–17, para. F; and EMMANUEL v FRN (supra), per Jauro, JCA (as he then was) at pages 13–16, para. C.
With the above previous decisions of this Court on the mandatory nature of the sentence of life imprisonment prescribed in Section 11 of the NDLEA Act, I have no hesitation in also resolving the second issue against the Appellant. I hold that in the circumstance of this case, the trial Court was bound to impose the mandatory sentence of life imprisonment on the Appellant, and same is not excessive. The trial Court was therefore right to have imposed the mandatory sentence as prescribed.
Having resolved the two issues for determination in this appeal against the Appellant, I hold that this appeal is devoid of merit. Accordingly, I hereby dismiss same and affirm the judgment of the Federal High Court sitting in Ibadan delivered by Hon. Justice J. O. Abdul Malik on the 13th day of November, 2019 in Charge No. FHC/IB/73C/2017.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Abba Bello Mohammed, JCA, obliged me with an advance copy of the lead judgment which has just been delivered. I agree completely with the reasoning and conclusion reached by His Lordship on the issues for determination in the appeal.
Our adversary criminal justice system is accusatorial. This is in accordance with Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides that every person charged with a criminal offence shall be presumed innocent until he is proven guilty. The necessary corollary of this presumption of innocence is that the prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011.
Though the law is that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt; it however connotes proof of the crime charged with the certainty required in a criminal trial. This certainty is accomplished by proving the essential elements of the offence charged and establishing that it is the accused person that committed the crime. In aliis verbis, proof beyond reasonable doubt does not mean or import beyond any degree of certainty. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380.
As demonstrated and explicated in the lead judgment, the evidence adduced by the Prosecution established the essential ingredients of the offence charged beyond reasonable doubt and the lower Court was correct in convicting on the said evidence.
With regard to the Appellant’s contention that the sentence of life imprisonment imposed by the lower Court is excessive; it is an integral principle of criminology and penology that where a sentencing language in a statute is specific and mandatory, a Court of law has no discretionary power to exercise. It must impose the specific and mandatory sentence stipulated. However, where the sentencing language is general without fixing a mandatory ceiling by way of sentence, then a Court of law can in exercise of its discretionary power impose a sentence which it deems commensurate with the factual situation of the case: ISANG vs. THE STATE (1996) 9 NWLR (PT 473) 458 at 471 and LAWRENCE vs. FRN (2018) LPELR (44510) 1. Section 11 (b) of the National Drug Law Enforcement Agency Act under which the Appellant was convicted prescribes a mandatory sentence of imprisonment for life. It does not provide for, allow, permit or even envisage any other sentence for a term less or more than the prescribed imprisonment for life. See CHIBUZOR vs. FRN (2017) LPELR (41852) 1 at 14-16, AMOSHIMA vs. THE STATE (2011) 14 NWLR (PT 1268) 530 at 553 and 561, AMANCHUKWU vs. THE STATE (2007) 6 NWLR (PT 1029) 1 at 23 and BALOGUN vs. A.G. OGUN STATE (2002) 6 NWLR (PT 763) 512. On the settled state of the law, the lower Court had no discretion to exercise in sentencing as it was obligated to impose the mandatory imprisonment for life prescribed by Section 11 (b) of the National Drug Law Enforcement Agency Act, under which the Appellant was charged, arraigned, tried and convicted.
Having insightfully perused the Records of Appeal and the briefs of argument filed and exchanged by the parties, I entirely agree with the indubitable conclusion in the lead judgment that this appeal is devoid of merit. Therefore, I equally join in dismissing the appeal. The judgment of the Federal High Court, Ibadan Division in CHARGE NO. FHC/IB/73C/2017 delivered on the 13th day of November, 2019 embodying the conviction and sentence of imprisonment for life imposed on the Appellant is hereby affirmed.
Appeal dismissed.
ABDUL-AZEEZ WAZIRI, J.C.A.: I have had the opportunity of reading in draft before now, the judgment prepared and just delivered by my learned brother, Abba Bello Mohammed, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. The two issues framed by the Court for the determination of the appeal have been exhaustively dealt with.
To support the lead judgment, I wish to make a few remarks.
The Appellant in the instant appeal was arraigned, tried and convicted under Section 11 (b) of the National Drug Law Enforcement Agency Act 2004 which provides:
“Any person, who, without lawful authority exports, transports or otherwise traffics in the drugs popularly known as cocaine, LSD, heroin or any other similar drugs shall be guilty of offence and liable on conviction to be sentenced to imprisonment for life”. (Emphasis and parenthesis mine).
The Appellant herein complained of the imposition of life imprisonment by the lower Court. Without much ado, the offence for which the Appellant was found guilty, convicted and sentenced carries a mandatory sentence of life imprisonment. See the case of AMANCHUKWU VS. FRN (2007) 6 NWLR (PT 1029) 1. In the aforementioned case, the Appellant was arraigned before the Miscellaneous Offences Tribunal sitting in Kano on a one count charge of importing 600 grammes of Heroine by concealing same in his body contrary to Section 10(a) of the National Drug Law Enforcement Agency Decree No. 48 of 1989. The Appellant pleaded guilty to the charge and was sentenced to life imprisonment. On appeal, the Court while interpreting Section 10(a) of the NDLEA Decree which is in pari material with Section 11(a) of the NDLEA Act, not only affirmed the sentence of life imprisonment but on page 23 held thus:
“Unfortunately, the offence for which the Appellant pleaded guilty carries a mandatory sentence of life imprisonment”. The sentence in Section 11 (a) of the NDLEA is mandatory, not maximum as such Courts have no discretion in the matter. It should be noted that there is a world of difference between maximum sentence and mandatory sentence. Where a statute prescribes a mandatory sentence in clear terms as in the instant case, the Courts have no jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised in the matter. See BALOGUN VS. A.G OF OGUN STATE (2002) 6 NWLR (PT 763) 512: OTTI VS. STATE (1991) 8 NWLR (PT 207) 103 at 121. It therefore follows that since the sentence is mandatory whether it appears excessive or unreasonable, the lower Court has no option or discretion but to impose the fixed and mandatory sentence as prescribed by the statute.
Based on the evidence on the printed record of Appeal and the evidence adduced before the lower Court orally and documentary, I have no hesitation as rightly found by my learned brother in the lead judgment that there is no merit in the appeal and liable to be dismissed. Consequently, the judgment of the Federal High Court Ibadan Judicial Division in CHARGE No. FHC/IB/73C/2017 delivered on the 13th day of November, 2019 convicting and sentencing Appellant to life imprisonment is endorsed by me too.
Appearances:
Otunba M. Olayinka Bolanle, with him, O. M. Ogundoro (Miss) For Appellant(s)
R. J. Hinmikaiye, Esq., Deputy Director, NDLEA, with him, D. O. Otunla, Esq., R. O. Ige, Esq. and A. A. Balogun, Esq., all Legal Officers, NDLEA For Respondent(s)
