UGWU GEOFFREY v. FEDERAL REPUBLIC OF NIGERIA (2016)

UGWU GEOFFREY v. FEDERAL REPUBLIC OF NIGERIA

(2016)LCN/8439(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2016

CA/L/628/2014

RATIO

EVIDENCE: REQUIREMENT FOR CIRCUMSTANTIAL EVIDENCE TO SUPPORT A CONVICTION
In the case of State v. Ogbubunjo (2001) 2 NWLR (Pt. 698) 576 @ pp 590 D-G 607 F-G, the Supreme Court observed:
“In order for circumstantial evidence to support a conviction, such evidence must not only be cogent, complete and unequivocal but compelling and lead to the irresistible conclusion that the accused and no one else is the offender; it must leave no ground for reasonable doubt and must be inconsistent with any other rational conclusion. There must be no other co-existing circumstance which can weaken such inference. [Lori v. State (1980) 5 SC 5: State v. Uzor (1972) 1 NMLR 208]” PER CHINWE EUGENIA IYIZOBA, J.C.A.
CRIMINAL LAW: DOUBT; ESSENCE OF DOUBT IN A CRIMINAL PROCEEDING
It is the duty of the prosecution to prove the charge against an accused person beyond reasonable doubt. If there is any doubt, the doubt must be resolved in favour of the accused as the presumption is that the accused is innocent until proven guilty. See Williams v. The State (1992) NWLR (Pt. 261) 515: Ogundiyan v. State (1991) 3 NWLR (Pt. 181) 519; Chukwuma v. F.R.N. (2011) LPELR-SC. 253/2007. PER CHINWE EUGENIA IYIZOBA, J.C.A.
COURT: WHICH COURT HAS THE PRIMARY DUTY OF EVALUATING EVIDENCE
The primary duty of a trial court is to evaluate evidence led of the trial, to make appropriate findings and to come to a reasonable conclusion based on its evaluation of the evidence. PER CHINWE EUGENIA IYIZOBA, J.C.A.

JUSTICES

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

UGWU GEOFFREY Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The appellant and the 1st accused Gabrielle Onyebuchi Obi were arraigned before Okechukwu Okeke J of the Federal High Court, Lagos Division in Suit No. FHC/L/89C/2011 on a two count charge; the first conspiracy to import 165 Kilogram of Cocaine into Nigeria; and the second importation of the said 165 Kilograms of Cocaine into Nigeria. Judgment was delivered on the 17th day of May, 2013 wherein they were convicted and sentenced to 15 years imprisonment on the first count and 5 years on the second count, the sentences to run concurrently for 15 years.
THE FACTS:
The case as made out by the Respondent is that the Appellant (2nd Accused) and Gabriel Onyebuchi Obi (1st Accused) conspired with other persons at large to import and actually imported a container with No. MSCU 1287231, containing 165 kilograms of cocaine into Nigeria. The Respondent in furtherance of its case tendered a copy of the bill of lading of the said container as Exhibit W, which the 1st Accused was alleged by the prosecution to have given to one Ibrahim Audu Maidurumi (PW 10) a Customs officer

whose assistance he sought to find out if the container had arrived in Nigeria and to clear same. The Respondent also tendered the 160 kilograms of cocaine, Exhs. A-A7 contained in 8 Ghana Must Go bags as well as a host of other pieces of evidence.

The evidence against the Appellant as led by the Prosecution was that he was found in possession of the Bills of lading in respect of two containers said to contain Cocaine. He was also found in possession of fake identification documents with which he was trying to clear the containers. The Appellant admitted that he was indeed in possession of the shipping documents but stated that the documents were given to him by one Audu Ismail to clear the containers. He did not know the contents of the container and did not know the 1st accused. The prosecution in the evidence led by its witnesses Katambi Ndirmbula (PW9) and Ibrahim Audu Maidurumi (PW10) confirmed that the Bills of lading were given to Audu Maidurumi (PW10) by the 1st accused. They also both confirmed that Audu Maidurumi gave the bills of lading to a clearing agent Audu Ismail who in turn engaged the Appellant.

The Appellant and the 1st Accused

gave evidence that they did not know each other and that they met for the first on the 21st of January 2011 the day they were both arrested. The 1st accused, as admitted, gave the bill of lading to PW10. PW10 gave the said bill of lading to one Audu Ismail a clearing agent. It was Audu Ismail who contacted the Appellant and gave him the instruction to begin the process of clearing the said containers.

The Prosecution called 11 witnesses and tendered several exhibits. The 1st and the 2nd Accused persons gave evidence on their behalf but did not tender any documents. Judgment was entered against the Appellant and the 1st accused and they were both convicted on the said two counts and sentenced as stated above notwithstanding the vital pieces of evidence which confirmed the chain of transaction and events provided during the trial by the witnesses for the prosecution and confirmed by the Appellant and the 1st accused.

Dissatisfied with the judgment, the Appellant appealed by Notice of appeal dated 23/4/14 filed on 24/4/14 at pages 384-391 of the Record of Appeal containing seven grounds of appeal. As is customary in this Court, the parties filed and

exchanged briefs of arguments. The appellant’s brief was settled by Lotanna Chuks Okoli, Esq. while the Respondent’s brief was settled by Y. S. Mshelia, Esq. and Obiageri Iwuchukwu, Esq.

From the seven grounds of appeal, learned counsel for the Appellant in his brief distilled two issues for determination as follows:

1. Whether the learned trial judge was right, based on the evidence presented in Court, in convicting the Appellant for the offence of conspiracy to import 165 kilograms of cocaine.
2. Whether the learned trial judge was right, based on the evidence presented in Court, in convicting the Appellant for the offence of importation of 165 kilograms of cocaine.

The Respondent’s counsel on their part also formulated two issues for determination but framed differently thus:
l. Whether the prosecution has proved its case against the Appellant beyond reasonable doubt as required by law.
2. Whether in the circumstances of this case it will not be improper for the Court of Appeal to tamper with the findings of fact of the Trial Court.
The two sets of issues are intertwined and basically the same.

APPELLANT’SARGUMENTS:
Learned counsel for the appellant on their issue one submitted that the evidence led by the Prosecution in proof of the allegations against the Appellant was insufficient to support the findings by the learned trial judge and the conviction of the Appellant. He cited and relied on the case of Amaechi v. INEC (2007) 10 WRN I. Counsel referred to the definition of “conspiracy” as set out in Adekoya v. State (2012) 33 WRN 1 @ 22; Obiakor v. State (2002) FWLR (Pt. 113) 299 at 310-311; Odogwu v. The State [2013] 38 W.R.N. 17 at page 62; R. v. Teper (1952) A.C. 480 at 489 and submitted that because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts and that for circumstantial evidence to ground conviction, it must lead to one and only one conclusion i.e. the guilt of the accused. Counsel submitted that to secure a conviction on the charge of conspiracy, the Prosecution must prove that the Appellant intended to and did carry out actions aimed of importing or aiding in importing in concert with others, cocaine into Nigeria using container

number MSCU 1287231. Counsel referred to the evidence of the prime witness of the Prosecution PW9 Katambi Ndirmbula and submitted that the evidence was clearly to the affect that the Appellant only got involved in this transaction as a result of instructions from one Audu Ismail. The said Audu Ismail only got involved as a result of instructions from Ibrahim Maidurumi (PW10). PW10 in his testimony before the Court again confirmed all this. The shipping documents came into his possession from the 1st accused and he gave them to Audu Ismail with some money to clear the containers. Audu Ismail in turn gave the documents to the Appellant with instructions to clear the containers. Counsel opined that rather than treat the Appellant as an unwitting pawn in the whole drama, the Prosecution chose to use him as a scape goat and even went as for as utilizing PW10 from whom the Appellant’s supposed culpability could be traced, as a witness for the prosecution to convict on otherwise innocent man for an offence which he clearly knew nothing about. Counsel queried why PW10 and Audu Ismail were let free and the Appellant charged. He wondered if the Appellant would have been

involved in the drama if he had not been procured by PW10 and his agent Audu Ismail. He submitted that these are the questions that ought to have agitated the mind of the trial judge but that his lordship failed to consider them or make any findings on them. Counsel submitted that the mere fact of being procured by a third party to clear a container cannot amount to an intention to import cocaine. He argued that the only fact relied upon by the learned trial judge was the admission by the Appellant in his statement to the NDLEA that he procured from a business centre, the consignee’s documents to enable him clear the container on the directive of Audu Ismail who was well known to the prosecution and yet they failed to call him to challenge the evidence given by the Appellant. Counsel submitted that it was the duty of the prosecution to prove the charge beyond reasonable doubt and that they ought to have called Audu Ismail if indeed they were of the opinion that the Appellant was lying. He contended that the Prosecution also led no evidence that the documents were forged or produced without the consent of the owner and that the trial judge relied on the

Appellant’s statement in convicting him but ignored his explanation as to why this was done. Counsel submitted that the prosecution has the duty to prove its case by evidence of such quality and quantity as to leave the Court in no reasonable doubt as to the guilt of the accused person. Counsel submitted that the Appellant was not party to any criminal enterprise to import cocaine but only procured documents for the purpose of expediting the clearing of the goods in order to earn his fees. Counsel submitted that save for the effort made to clear the container which effort was explained by PW10 and the Appellant, no other evidence was provided to support a link, independent of PW10, between the 1st accused and the Appellant to sustain the charge of conspiracy. He urged us to allow the appeal on this ground and to set aside the conviction for conspiracy and sentence of imprisonment for 15 years passed on the Appellant.
?
On issue two: whether the learned trial judge was right, based on the evidence presented in Court, in convicting the Appellant for the offence of importation of 165 kilograms of cocaine, counsel submitted that for the appellant to be found

guilty on count two, the prosecution must show by credible and valid evidence that the accused (i) imported cocaine, (ii) without lawful authority, (iii) into Nigeria.
?
Counsel submitted that the only evidence led was to the effect that the Appellant acting as a clearing agent sought to clear the container on the instructions of a third party which said party was not charged but was in fact called as a witness of the trial. Counsel after examining the findings of the learned trial judge submitted that no evidence was led by the prosecution against the Appellant save for the fact that he on his own embarked on the production of fake identity card and letter of authorization from Efcrisam Groups to facilitate the clearing of the container. Counsel submitted that in his evaluation of the evidence led, the trial judge failed to consider the effect of the evidence before him that the Appellant only became involved when he was hired by Audu Ismail as agent for Maidurumi (PW10) to clear the containers, and that in his statement to the NDLEA Exhs. J and J1 (pages 155 to 160 of the record) the reason for producing the documents was because the Appellant could not

make contact with the owners of the container, Efcrisam Groups. Counsel further submitted that he learned trial judge also failed to consider the fact that the Prosecution led no evidence to show that this explanation was not tenable either by calling Efcrisam Group to show that they were always available and could easily have been reached. He submitted that the Managing Director of the said Efcrisam Group was listed as a witness for the prosecution but did not testify. He submitted that the learned trial judge did not also consider the fact that no evidence was led by the Prosecution to show some form of contact (independent of Audu Ismail and PW10 Maidurumi) between the Appellant and 1st accused to indicate the possibility of circumstances which would lead to the conclusion that the Appellant was indeed involved in the importation of cocaine as alleged. Counsel submitted that the conclusion of the learned trial judge that having watched his demeanour the Appellant displayed the character of someone who would not speak the truth under any circumstance without any supporting evidence were perverse. Counsel finally submitted that the onus is on the Prosecution

to prove every count in a charge beyond reasonable doubt in order to secure a conviction; and that the Prosecution failed to prove each of the counts against the Appellant beyond reasonable doubt. He urged the Court to allow the appeal and to discharge and acquit the Appellant on all the counts.

RESPONDENT’S ARGUMENTS:
On the first issue, whether the prosecution has proved its case against the Appellant beyond reasonable doubt as required by law, learned counsel for the Respondent submitted that the case against the Appellant was proved beyond reasonable doubt and that there was evidence beyond reasonable doubt to warrant the conviction of the Appellant for the offences of conspiracy to import 165 Kilograms of Cocaine into Nigeria and importation of the said 165 Kilograms of Cocaine into Nigeria. Counsel quoted the dictum of Karibi Whyte, JSC in Ogwunba v. State (1993) 5 NWLR (Pt 296) 60 at 67 that “— a formulation which only raise the issue of whether the case against the Appellant had been proved beyond reasonable doubt is not merely raising the issue of burden of proof, it questions the proof of essential ingredients of the offence and the

validity of procedure adopted”. Counsel submitted that the prosecution in discharging the burden of proof proved all the essential ingredients of the offences and that the trial Court adopted the right procedure in accordance with the relevant lows in criminal trial in coming to the decision convicting the Appellant. Counsel submitted that the Respondent tendered evidence that the Appellant was involved in the conspiracy and importation of container no. MSCU 1287231 which contained 165 Kilograms of Cocaine imported into Nigeria in January 2011. He opined that the appellant who was convicted along with the 1st accused admitted on oath that he faked documents to facilitate the clearance of the container no. MSCU 1287231 which contained the 165 Kilograms of Cocaine.

On the ingredients of conspiracy, Counsel referred to the Supreme Court case of Kaza v. State (2008) 7 NWLR (Pt. 1085) 125 at 133 and submitted that the prosecution adduced the under listed evidence to prove the conspiracy between the Appellant and the second accused person in the importation of the container containing the cocaine?
(i) Evidence that the Appellant handed over the bill of

lading in respect of container no. MSCU 1287231 which contained the 165 Kilogrammes of Cocaine to Ibrahim Maidurumi – PW12 and also paid a deposit of N300,000 to enable him clear the container containing 165 Kilogrammes of Cocaine.
(ii) Evidence that Ibrahim Maidurumi handed the bill of Lading to Audu Ismail, who in turn gave it to Ugwu Geoffery (the 2nd Accused).
(iii) Evidence that the 2nd accused then forged some documents and made payments to Ellisbonar Nigeria Ltd to get a release letter to clear the container from the Tin can Island Port.

Learned counsel urged the Court to affirm the conviction of the Appellant for conspiracy to import the 165 Kilogrammes of Cocaine into Nigeria.

With respect to the offence of importation of the 165 Kilograms of Cocaine, Counsel submitted that the prosecution also proved the offence beyond reasonable doubt. Counsel submitted that the Respondent was required to prove the following ingredients.
a. That there was importation of cocaine into Nigeria.
b. That the Appellant was a party to the importation of the Cocaine.
c. That the substance imported is proved to be cocaine.

?On (a), counsel submitted that the trial Court found at page 349 of the record of Proceedings that the said container no. MSCU 1287231 containing the 165 Kilograms of Cocaine was imported into the country from Bolivia, South America. The Country of origin is Bolivia and the destination of the container is Nigeria. Counsel argued that once the container landed at Tin can Port, Lagos, it has been imported into Nigeria. He referred to Exhibit W (the bill of lading).

On (b), that the Appellant was a party to the importation of the Cocaine, counsel referred to the findings of the learned trial judge in his judgment at page 349 of the Record of Proceedings:
“The activities of the 1st and 2nd accused persons are indicative of the involvement of a syndicate. The two accused persons though they claim not to know each other, I am satisfied that they conspired with persons now of large to import the 165 Kilograms of Cocaine in container no. MSCU 1287231 from Bolivia, South America”
?
Counsel also referred to the findings of the trial judge at page 348 of the Record of proceedings:
“That the evidence before the Court is that the 1st accused handed over the Bill

of Lading (Exhibit W) for container MSCU 1287231 to Ibrahim Audu Maidurumi (PW10) to assist him in the clearing of the said container. In Exhibit M the 1st Accused Statement dated 2nd January 2011, the 1st accused stated that he gave the bills of lading for containers nos. MSCU 3668026 and MSCV 1287231 to Ibrahim and that they were given to him by one Chief Oke. The Bill of Lading for container no. MSCU 1287231 was given to Ibrahim by the 1st accused personally”.
Counsel submitted that all these findings were sufficient to prove that the Appellant was party to the importation of the cocaine.
?
On (c), that the substance imported is proved to be Cocaine, counsel submitted that in his evidence PW4 gave a graphic account of how the powdery substance recovered from the tiles which was the mode of concealment was field tested and packed into A1 and A3. The evidence of PW4 was that A1 was sent to the Forensic Laboratory for forensic analysis. PW3 the liaison officer gave evidence of how he received A1 from PW4 and kept until it was analyzed on 14th of February 2011 by PW2. He also gave evidence of how the A1 was returned. A1 was admitted as Exhibit F and the

forensic reports were admitted as Exhibit E. The report confirms that the powdery substance tested positive f or Cocaine.

Counsel referred to Section 42 of the Evidence Act which provides as follows:
“Either party to the proceedings in any criminal case may produce a certificate signed by the Government Chemist, the Deputy Government Chemist, an Assistant Government Chemist, a Government pathologist or entomologist, or the Accountant-General or any other chemist so specified by the Government Chemist of the Federation or of the State, any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of the State, or any Accountant specified by the Accountant-General of the Federation or of the State (whether any such officer is by that or any other title in the service of a State or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated therein”
He submitted that in addition to producing the forensic reports of the Exhibits in this case, the Forensic Analyst was called as a witness and she was cross-examined by the defence. Counsel

further submitted that all the ingredients of the offence of importation hove been proved by the prosecution. The onus consequently shifted to the accused (appellant herein) to prove lawful authority. Counsel cited Section 142 of the Evidence Act which provides that “when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”; and Section 143 of the Evidence Act which further provides that: “Any exception, exemption, proviso, excuse, qualification whether it does or does not accompany in the same section the description of the offence in the Act, order, by-law, regulation or other document creating the offence may be proved by the accused, but need not be specified or negative in the charge, and if so specified or negative, no proof in relation to the matter so specified or negative shall be required on the part of the prosecution”. Counsel cited the case of Ibrahim Abdul-Rahaman v. Commissioner of Police of Police (1971) 1 NNLR 87 or 1971 NWLR 24 where it was held that “the onus was on the accused to show that he falls within the exceptions allowed in law.” Counsel submitted that the Appellant failed to prove

lawful authority to import cocaine into the country. Counsel urged the Court to hold that the Respondent has proved count II that is importation of 165 Kilogrammes of cocaine against the Appellant beyond reasonable doubt and to affirm the conviction of the Appellant accordingly.

On the second issue, whether in the circumstances of this case it will not be improper for the Court of Appeal to tamper with the findings of fact of the Trial Court, learned counsel submitted relying on Mini Lodge v. Ngei (2009) 12 SCNJ 93 at 104 and Amadi v. F.R.N. (2005) 18 NWLR (Pt. 1119) 259 at 267 and 268 that the evaluation of evidence remains the exclusive preserve of the trial Court because of its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus the Court is best suited to assess their credibility. Where therefore a trial Court makes a finding as to the credibility of a witness an appellate Court would not ordinarily interfere. Contending that the findings of the trial Court were not perverse and ought not to be interfered with, counsel urged us to dismiss the appeal as lacking in merit.

RESOLUTION
The first issue

is on the count of conspiracy. In the case of Obiakor v. State (2002) 10 NWLR (Pt. 774-776) 612 @ 628-629 Kalgo, JSC discussed the nature of the offence of conspiracy thus:
“Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts And for circumstantial evidence to ground conviction, it must lead to one and only one conclusion i.e. the guilt of the accused. See Popoola v. Commissioner of Police (1964) NMLR 1; R. v. Roberts (1913) 9 CAR 189 Raphael Ariche v. State (1993) 6 NWLR (Pt. 302) 752. The facts to be relied upon for conviction must be consistent, cogent and must irresistibly lead to guilt of the accused…..”
Further in the case of Clark v. State (1986) 4 NWLR (Pt. 35) 381 @ 394 H, Kolawole, JCA delivering the lead judgment observed:
“What then is the nature of

evidence required in a case of conspiracy of this kind? Generally, it may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and the person charged be also proved to have been engaged in it. I think it is well recognized in law that it is not necessary that it should be proved that the appellants met to concoct the scheme which led to the theft of the subject aircraft—
I believe that the essential ingredient of the offence of conspiracy or the gist of the offence lies in the bare engagement and association to do an unlawful thing which is contrary to or forbidden by law, whether that thing be criminal or not, whether or not the accused persons had knowledge of ifs unlawfulness. It is of course necessary to constitute the offence that there should be a criminal purpose common to all the conspirators. (See R. v. Clayton (1943) 33 Cr. App. R 113)”
The charge of conspiracy reads:
That you Gabriel Onyebuchi Obi and Ugwu Geoffery males; adults, sometime in October 2010 of Lagos within the jurisdiction of this Honourable Court, conspired with others of Large

to commit an unlawful act, to wit, to import 165 kilogrammes of cocaine from Bolivia, South America using container no. MSCU 1287231 and you thereby committed an offence contrary to and punishable under Section 14(b) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation 2004.

For the prosecution to secure a conviction on the above count of conspiracy, it must establish the following:
l. That the appellant and the 1st accused had an agreement or a meeting of their minds to import cocaine into Nigeria from Bolivia using container MSCU 1287231:
2. In the absence of the overt act of the meeting of their minds, there must be evidence of acts on the part of the appellant and the 1st accused from which the inference can be drawn that there was indeed a meeting of their minds to commit the offence charged.
?
From the evidence adduced, there was no overt act establishing the agreement. That, of course is not surprising as any such agreement would have been in complete secrecy. The prosecution consequently relied on circumstantial evidence and inference from the under-listed proved acts:
i. Evidence that the 1st accused

handed over the bill of lading in respect of container no. MSCU 1287231 which contained the 165 Kilogrammes of Cocaine to Ibrahim Maidurumi – PW10 and also paid a deposit of N300,000 to enable him clear the container containing 165 Kilogrammes of Cocaine.
ii. Evidence that Ibrahim Maidurumi handed the bill of Lading to Audu Ismail, who in turn gave it to the appellant.
iii. Evidence that the appellant then forged some documents and made payments to Ellisbonar Nigeria Ltd. to get a release letter to clear the container from the Tin can Island Port.

Do the above circumstantial pieces of evidence lead to one and only one conclusion that the appellant and the 1st accused entered into an agreement or had a meeting of their minds to import cocaine into Nigeria from Bolivia? The answer in my humble view is on emphatic no! But the learned trial judge in his judgment at page 348 of the Record of appeal answered the question in the affirmative. His view:
“The evidence before the Court is that the 1st accused handed over the Bill of lading (exhibit W) for container MSCU 1287231 to Ibrahim Audu Maidurumi (PW10) to assist him in the clearing of the said

container. In Exhibit M the 1st accused’s statement dated 22nd January 2011 the 1st accused started that he gave bills of lading for containers nos. MSCU 3668026 and MSCU 1287231 to Ibrahim and that they were given to him by one Chief Oke. The Bill of Lading for container no MSCU 1287231 was given to Ibrahim by the 1st accused personally.
The 2nd accused in his statement dated 23rd January 2011 (Exhibit J1) stated that nobody asked him to go to computer to produce Efcrisam’s letter heading and ID card. That he did not fell Audu Ismail about faking of the ID card and letter heading. That the sum of N5,000 given to him by Audu Ismail was for his feeding and transport.
The activities of the 1st and 2nd accused persons are indicative of the involvement of a syndicate. The two accused persons though they claim not to know each other, I am satisfied that they conspired with persons now at large to import the 165 kilograms of cocaine in container no MSCU 1287231 from Bolivia, South America.”

There is nothing in the evidence set out above by the trial judge to justify his conclusion that there was a conspiracy. All the above acts do not supply the

element of the meeting of the mind between the appellant and the 1st accused. As submitted by learned counsel for the Appellant, the Respondent did not adduce any evidence to show that the appellant and the 1st accused knew each other or had any communication concerning the importation of the cocaine. A meeting of their minds to carry out the illegal act cannot also be deduced from their respective acts. The evidence before the Court was clearly to the effect that the Appellant only got involved in this transaction as a result of instructions from one Audu Ismail. The said Audu Ismail only got involved as a result of instructions from Ibrahim Maidurumi (PW10). PW10 in his testimony before the Court again confirmed all this. The shipping documents came into his possession from the 1st accused and he gave them to Audu Ismail with some money to clear the containers. Audu Ismail in turn gave the documents to the Appellant with instructions to clear the containers. There was no evidence of any direct or indirect connection of the appellant and the 1st accused in the above established acts. There is no evidence whatsoever that the appellant and the 1st accused

planned the forgery of the documents of Efcrisam Group. There is evidence that money passed from Audu Ismail to the appellant for the actions he took. The prosecution did not call Audu Ismail to give evidence as to how he came to choose the Appellant to clear the goods. PW11 Eshiet Elihu the Managing Director of Ellisbonov Nig. Ltd in his evidence in chief stated that BG Logistics Bolivia were the shippers of the container MSCU 1287321. He had also told the Court that from the information on the bill of lading, Efcrisam Group was the consignee of the cargo. The owner of Efcrisam Group Mr. Kayode Fashagba was arrested by NDLEA officials and taken to their office where he made a statement. He was not charged along with the Appellant and the 1st accused and was not even called as a witness to testify as to his link with the consignment. Perhaps if he had given evidence many issues would have been clarified. The fact that the appellant forged the documents of Efcrisam Group to enable him clear the container does not prove or lead irresistibly to the inference that he worked in concert with the appellant to import cocaine into Nigeria: especially as PW11 the MD of

Ellisbonov Nig Ltd. stated in his evidence that he did not know the Appellant. In the case of State v. Ogbubunjo (2001) 2 NWLR (Pt. 698) 576 @ pp 590 D-G 607 F-G, the Supreme Court observed:
“In order for circumstantial evidence to support a conviction, such evidence must not only be cogent, complete and unequivocal but compelling and lead to the irresistible conclusion that the accused and no one else is the offender; it must leave no ground for reasonable doubt and must be inconsistent with any other rational conclusion. There must be no other co-existing circumstance which can weaken such inference. [Lori v. State (1980) 5 SC 5: State v. Uzor (1972) 1 NMLR 208]”
?
There are certainly in the instant case other possible explanations for the actions of the appellant other than a plan to import cocaine into Nigeria. He may have acted because he was paid to forge the documents or to facilitate the quick clearance of the container in order to earn his fees. In his first statement after arrest on 21/1/11 at page 155-158 of the printed record, he stated that he was given a total sum of N50,000.00 by Audu Ismail for the processing of the documents. He also

said that when he went to Efcrisam Group of no. 7 Olusesan Ogunro Street Okunola Egbeda Lagos he found it was a residential home without any company signboard with the name Efcrisam Group, he informed Audu Ismail who told him to wait that he would contact the person that gave him the documents. After waiting for two days and time was passing, he then went to computer centre of Apapa to do the fake documents. There is nothing in the evidence fed to show any connection between the appellant and the 1st accused or indeed any other person in the entire transaction, other than Audu Ismail. It is thus rather surprising that Ismail and Kayode Fashagba were not called to throw further light in the transaction. However, the fact remains that the circumstantial evidence adduced by the Respondent did not lead to the logical conclusion that there was a conspiracy between the appellant and the 1st accused accused to import cocaine from Bolivia into Nigeria. Learned counsel for the appellant is right in his submission that it is the duty of the Court in every case of conspiracy to ascertain as best as it could the evidence of the complicity of any of those charged with the

offence of conspiracy. No evidence of complicity was adduced in the instant case and the learned trial judge erred in convicting the appellant of conspiring with the 1st accused and others of Large to import 165 Kilograms of Cocaine from Bolivia, South America using container no. MSCU 1287231.
?
Learned counsel for the appellant rightly expressed surprise that PW10 and Audu Ismail whose involvement in the transaction were no different from that of the appellant but were not only left off the hook but the prosecution decided to turn PW10 into a witness for the prosecution to convict the appellant for an offence he clearly knew nothing about. The evidence adduced show that the Appellant would not have been involved in the drama if he had not been procured by PW10 and his agent Audu Ismail to assist in clearing the container. It is quite surprising that the learned trial judge did not consider these matters and did not make any findings on them. As submitted by learned counsel f or the appellant, apart from the effort to clear the container and the forgery of documents to expedite the clearing of the container as explained by the appellant and PW10 no other

evidence was provided to support a link, independent of PW10, between the 1st accused and the Appellant to sustain the charge of conspiracy. A proper evaluation and consideration of the evidence led by the Prosecution and the Defence would have brought this out clearly. There is no basis whatsoever for the conviction of the appellant and the 1st accused for conspiracy.

On the appellant’s issue 2, whether the trial Court was right, based on the evidence presented in Court, in convicting the appellant for the offence of importation of 165 kilograms of cocaine.
?
In count two, the appellant was charged with importing without lawful authority 165 kilograms of cocaine from Bolivia South America on or about the 27th day of January, 2011 using container no. MSCU 1287231 contrary to Section 11(a) of the Notional Drug Law Enforcement Agency Act Cap 30 Laws of the Federation 2004. To succeed the prosecution must prove each of the following beyond reasonable doubt:
a. That there was importation of 165 kg of cocaine into Nigeria on or about the 27th day of January, 2011.
b. That the substance imported is proved to be cocaine.
c. That the Appellant

was a party to the importation of the cocaine.

What amounts to proof beyond reasonable doubt? I am bound to start with the focus classicus on the point, the case of Miller v. Minister of Pensions (1947) 2 All E.R. p. 372 where Lord Denning J (as he then was) observed
“That proof beyond reasonable doubt 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 if is possible, but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice.”
I will also refer to the authorities cited by the Respondent in its brief of argument:
“Proof beyond reasonable doubt must attain a high degree of probability. In the case of Ahmed v. State (2003) 3 ACLR, 145 Ayoola, JSC (as he then was) said
“It is equally now firmly established that proof beyond reasonable doubt means no more than what if says and need not attain the degree of absolute certainty,

although if must attain a high degree of probability. That is what proof beyond reasonable doubt is all about in our criminal jurisprudence” (Emphasis added)
Also, in the case of Audu v. State, 7 NWLR (Pt. 820) 516 at 554, this Court held that “I will now deal briefly with issue No. 1 of the Respondent. It is true that by virtue of the provisions of Section 138 of the Evidence Act, the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt, but as held in the case of Akalezi v. The State (1993) 2 NWLR, (Pt. 273), 1 at 12, 1993 2 SCNJ 19 and restated in the case of Nasiru v. The State, 1999, 2 NWLR (Pt. 589) 87 1999, 1 SCNJ 82 at 94 per Uwais CJN, the expression beyond reasonable doubt, certainly does not mean “beyond any shadow of doubt”
The prosecution consequently has the burden of proving all the essential elements of the offence in the charge beyond reasonable doubt. It must put forward before the Court evidence which is so strong, compelling and convincing that it leaves no reasonable man in doubt as to the guilt of the accused. I will not in this judgment bother about the first two ingredients in this appeal

as those were not dealt with by learned counsel for the appellant in his brief. I shall therefore go straight to the 3rd ingredient:
(c) That the Appellant was a party to the importation of the cocaine.

The question here is what evidence did the Respondent adduce in support of their contention that the appellant was a party to the importation of the cocaine? There is evidence that the 1st accused gave two bills of lading to PW10 to assist him in clearing the two containers. PW10 gave the bills of lading to Audu Ismail who in turn gave the bills of lading to the appellant to assist with the clearance. PW10 in his evidence confirmed the above. The Respondent at page 13 and 14 of their brief of argument referred to the findings of the trial judge at page 349 of the printed records:
“The activities of the 1st and 2nd accused persons are indicative of the involvement of a syndicate. The two accused persons though they claim not to know each other, I am satisfied that they conspired with persons now of large to import the 165 Kifograms of cocaine in container no. MSCU 1287231 from Bolivia, South America”

Counsel also referred to the findings of

the learned trial judge in his judgment at page 348 of the Record of Proceedings:
“That evidence before the Court is that the 1st accused handed over the Bill of Lading (Exhibit W) for container MSCU 1287231 to Ibrahim Audu Maidurumi (PW10) to assist him in the clearing of the said container. In Exhibit M the 1st Accused Statement dated 22nd January 2011, the 1st accused stated that he gave the bills of lading for containers nos. MSCU 3668026 and MSCU l287231 to Ibrahim and that they were given to him by one Chief Oke. The bill of lading for container no. MSCU 1287231 was given to Ibrahim by the 1st accused personally”.

The Respondent had submitted that the above findings were sufficient to prove that the Appellant was party to the importation of the cocaine. The full findings of the learned trial judge on count 2 at pages 349 to 350 of the printed records are as follows:
Paragraph 1.
On Count two the evidence of DW1 (1st accused) and DW2 (2nd accused) are weak and most unconvincing. The 1st accused’s story, that one chief Oke whom he claims to meet at a joint, who visits his house, and calls him with a concealed number, but he does not

know the chief’s residence, gave the Bills of Lading for containers number MSCU 3668026 and MSCU 1287231 is hard to believe. In this charge the subject matter is container no MSCU 1287231 containing 165 kilograms of cocaine. It is not the case of the defence that the substance concealed in tiles and packed in container no MSCU 12872321 is not cocaine.
Paragraph 2
The evidence of PW1, PW2, PW3, PW4, PW4 PW6, PW7, PW8, PW9, PW10 and PW11, is convincing as to what was recovered from container MSCU 1287231, and the activities of the 1st and 2nd accused persons. The 2nd accused on his own embarked on the production of fake identity card and letter of authorization of Efcrisam Groups to facilitate the clearing of container no MSCU 1287231 containing 165 kilograms of cocaine.
Paragraph 3
It is hard to believe the story of the 1st accused person. Under cross-examination the 1st accused denied that in April, 2009 he tried to obtain a visa to travel to Bolivia. In his additional statement dated 23rd January, 2011 (Exhibit N) the 1st accused stated thus: ‘One of the documents is (an) a Spanish affidavit which I used to apply for visa to Bolivia in

April 2009 but did not get the visa.
Paragraph 4
The stories of the 1st and 2nd accused persons are bare faced lies. 1st accused claimed that he does not know chief Oke, yet he gave out his own N300,000.00 to facilitate the clearing of container number MSCU 1287231 the subject matter of this charge. I watched the demeanour of each of the two accused persons. Each of then displayed the character of someone who would not speak the truth under any circumstance.

It is apparent from the above findings and evaluation of evidence by the learned trial judge that no evidence was led by the prosecution against the Appellant except that he on his own embarked on the production of fake identity card and letter of authorization of Efcrisam Groups to facilitate the clearing of container no MSCU 1287231 containing 165 Kilograms of cocaine. I am in total agreement with the views of learned counsel for the appellant that in his evaluation the trial judge failed to consider the effect of the evidence before him that the Appellant only became involved when he was hired by Audu Ismail as agent for Maidurumi (PW10) to clear the containers, and that in his statement

to the NDLEA Exhs. J and J1 (pages 155 to 160 of the record) the reason for producing the documents was because the Appellant could not make contact with the owners of the container, Efcrisam Groups. The learned trial judge also failed to consider the fact that the Prosecution led no evidence to show that this explanation was not tenable either by calling Efricsam Group to show that they were always available and could easily have been reached. Indeed, PW11 Eshiet Elihu the Managing Director of Ellisbonov Nig Ltd in his evidence in chief stated that BG Logistics Bolivia were the shippers of the container MSCU 1287321. He had also told the Court that from the information on the bill of lading, Efcrisam Group was the consignee of the cargo. PW11 testified that they made contact with Efcrisam Group whose name appeared on the House bill of lading as the consignee and that it was on the strength of the contact that the Appellant was sent to their office. He further testified that the House bill of lading is a trade document between the exporter of the goods referred to as the shipper and the buyer referred to as the consignee. It is evident then that Efcrisam Group

played a vital role in the entire transaction as the consignees of the goods in the containers. The owner of Efcrisam Group Mr. Kayode Fashagba was arrested by NDLEA officials and token to their office where he made a statement. PW9 confirmed under cross-examination that Kayode Fashagba said he was aware of the containers and was communicating with the shippers. Yet he was not charged along with the Appellant and the 1st accused and was not even called as a witness to testify. I further agree with learned counsel for the appellant that it is curious that the learned trial judge did not toke into consideration the fact that no evidence was led by the Prosecution to show some form of contact (independent of Audu Ismail and PW10 Maidurumi) between the Appellant and 1st accused to indicate the possibility of circumstances which would lead to the conclusion that the Appellant was indeed involved in the importation of Cocaine as alleged.

It is the duty of the prosecution to prove the charge against an accused person beyond reasonable doubt. If there is any doubt, the doubt must be resolved in favour of the accused as the presumption is that the accused is

innocent until proven guilty. See Williams v. The State (1992) NWLR (Pt. 261) 515: Ogundiyan v. State (1991) 3 NWLR (Pt. 181) 519; Chukwuma v. F.R.N. (2011) LPELR-SC. 253/2007. The prosecution has in my view failed to put forward before the Court evidence which is so strong, compelling and convincing against the appellant such that it leaves no reasonable man in doubt as to the probability that the appellant was indeed a party to the importation of cocaine into Nigeria in the container MSCU 1287231. There is just no evidence as pointed out by learned counsel for the appellant to link the appellant to the offence. The judgment of the trial court is at Pages 310 to 350 of the printed record. It is noteworthy that summary of the proceedings and addresses of counsel spanned from pages 310 to 348 of the judgment. The evaluation of the evidence and conclusion arrived at by the learned trial judge started from the middle of page 348 to 350. It was that minimal. The primary duty of a trial court is to evaluate evidence led of the trial, to make appropriate findings and to come to a reasonable conclusion based on its evaluation of the evidence. The learned trial judge

did not evaluate adequately the evidence led neither did his lordship give due consideration to the issues raised in the addresses of counsel. The only comment the learned trial judge made about the case put forward by the appellant that he was hired by Audu Ismail to assist in clearing the container is this:
“The stories of the 1st and 2nd accused persons are bare faced lies. The 1st accused claimed that he does not know chief Oke, yet he gave out his own N300,000.00 to facilitate the clearing of container MSCU 1287231 the subject matter of this charge. I watched the demeanour of each of the accused persons. Each of them displayed the character of someone who would not speak the truth under any circumstance.”

The learned trial judge did not give any indication as to his reasons for his conclusion that the appellant and his co-accused displayed the character of persons who would not speak the truth under any circumstances. What this means is that the learned trial judge just by watching the demeanour of the Appellant was able to come to the conclusion without supporting evidence that he was incapable of telling the truth. These findings and

conclusions being unsupported by evidence are perverse. It is true that generally an appellate Court will not disturb the findings of fact mode by a trial Court which had the opportunity of hearing and observing the demeanour of the witnesses but where the trial Court failed to properly evaluate the evidence or make proper use of the opportunity of seeing and watching the demeanour of the witnesses and the findings of the Court are perverse, the appeal Court con intervene. There simply was no proper evaluation of the evidence led in the case by the trial judge. In the case of Mafimisebi v. Ehuwa (2007) All FWLR (Pt. 355) P562 @ 605G Onnoghen, JSC observed:
“It is settled law that the evaluation of evidence and the ascription of probative value thereto reside within the province of the trial Court that saw, heard and assessed the witnesses and that where a trial Court unquestionable evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate Court to substitute ifs own views for the view of the trial Court but the Court can intervene where there is insufficient evidence to sustain the judgment, or where the trial

Court fails to make proper use of the opportunity of seeing, hearing and observing the witnesses or where the findings of fact of the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before if or its findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the Court.”
See also Adimora v. Ajufo (1983) 3 NWLR (Pt. 80) 1; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Are v. Ipaye (1990) NWLR (Pt. 132) 298; Elohor v. Osayade (1992) 6 NWLR (Pt. 249) 524.

The findings of the learned trial judge (if there were findings) are perverse and are not supported by the evidence before the Court. This Court can consequently interfere with the findings. Furthermore, in the absence of proof of the ingredients of the offence charged beyond reasonable doubt, lies by an accused person can never ground a conviction. See Omogode v. State (1981) 5 SC 5. The learned trial judge did not evaluate the evidence led especially the claim by the appellant that he got the bills of

lading from Audu Ismail to assist in clearing the container or that he had to embark on the production of fake identity cord and letter of authorization of Efcrisam Groups to facilitate the clearing of the container no MSCU 1287231 when he was unable to trace the address of the company. The least the prosecution could have done to discredit the evidence of the appellant was to call as witnesses Mr. Kayode Fashogba the owner of Efcrisam Group and Audu Ismail. None of the witnesses was called. No explanation was given for the failure to call them. His lordship simply concluded that the appellant and the 1st accused lied and went ahead to convict them as charged. In the case of Omogode v. State (Supra) Nnamani, JSC observed:
“The Tribunal ought, in spite of the numerous lies told by the appellant, to have weighed the case of the prosecution very carefully, to determine whether on the totality of that evidence, the guilt of the appellant was proved beyond all reasonable doubt. I do not think it did so.”

The case of the prosecution in this appeal is unfortunately afflicted by the same malaise. The learned trial judge had found in his evaluation that the

Appellant as DW2 led evidence that was weak and most unconvincing, that the stories he told in his defence were bare faced lies and that having watched his demeanour the Appellant displayed the character of someone who would not speak the truth under any circumstance. The learned trial judge in spite of any lies told by the appellant and his co-accused failed to weigh the evidence presented carefully to determine whether there was proof beyond reasonable doubt. There simply was no iota of evidence to link the appellant here to the importation of cocaine into the country. Learned counsel for the appellant is right that the learned trial judge fell into the grave error of relying on the perceived weak case of the Appellant rather than the strength of the Prosecution’s case in convicting the Appellant. The case of Uzoka v. State (1990) 6 NWLR (Pt. 1591) 680 cited by the appellant is apt. There Ogwuegbu, JCA (as he then was) observed at page 692B that:
“The prosecution had the duty to prove the guilt of the appellant as required by law and it is not relieved of this duty by the fact that the trial judge did not believe the defence of the appellant.”

Thereliance by the learned trial judge on his disbelief of the Appellant’s defence, in the absence of evidential proof by the Prosecution, was wrong and insufficient to ground the conviction of the Appellant for the offences charged. It is further strange that the appellant and the 1st accused were arrested on 21/01/11 but were not taken for a search of the container until one week later on 27/01/11. There were unexplained gaps in the evidence presented by the prosecution leaving doubts as to the guilt of the appellant. Added to the fact that vital witnesses were not called to give evidence, the doubt must be resolved in favour of the appellant. The prosecution did not prove the case on the standard required by law. It did not prove beyond reasonable doubt the alleged conspiracy between the appellant and the 1st accused and that the appellant was involved in the importation of 165 Kg of cocaine from Bolivia using container MSCU 1287231.
In the circumstances, the appeal has merit and is hereby allowed. The judgment of the lower Court is set aside. The appellant is discharged and acquitted.

UZO I. NDUKWE-ANYANWU, J.C.A.:I

had the privilege of reading in draft form, the judgment just delivered by my learned brother Chinwe Eugenia Iyizoba JCA. I am in total agreement with his reasoning and final conclusion.
“Conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act itself and the act of each of the parties, promise against promise capable of being enforced if lawful, is punishable if it is for criminal object or the use of criminal means In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code”.
per Fatayi Williams, JSC in Olushegun Haruna v. The State (1972) 8-9 SC page 108 (1972) All NLR page 798.

It is true that conspiracy may exist between people who have never seen each other like in this case.

It is worrisome to note that the 1st Accused did not hand over any papers to the Appellant. The 1st Accused handed over to Ibrahim Maidurumi who handed over to Audu Ismail. Ibrahim Maidurumi later as PW10 gave evidence. There is a chain link between the 1st Accused, Ibrahim Maidurumi, Audu Ismail and finally

Ugwu Geoffrey the Appellant. The 1st Accused and the Appellant are the 1st and 4th in the chain. The 2nd and 3rd in the chain Ibrahim Maidurumi and Audu Ismail were not charged.

It is doubtful that the 1st Accused and the Appellant were in agreement. The Appellant was running around to clear the containers with the bills of lading given to him. Even when he could not trace the address he continued in the process of clearing the containers.

If the PW10, a Custom officer handed over to Audu Ismail who handed to the Appellant Ugwu Geoffrey, why were they all not charged; Is it not the same handing over from one person to the other. Were the 1st Accused and the appellant being made scapegoat of what the Appellant did not know. In my own humble opinion, the Appellant, the 4th person in this chain could not have been said to conspire with the 1st Accused who did not hand over any document to him. I find it difficult to find that there is any conspiracy between the two persons charged without the PW10 and Audu Ismail. The chain and the connection was broken.
“It is well established that it is the duty of the prosecution to place before the Court all

available relevant evidence. This does not mean of course, that a whole host of witnesses must be called upon the same point but it does mean that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called.”
per Achike, JSC in Oduneye v. The State (2001) LPELR-2245. I dare say that this case was not properly investigated and prosecuted.

For this and the more comprehensive reasoning and conclusion in the lead judgment I also allow this appeal. I abide by all the consequential orders in the lead judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.:
I had the honour of reading in advance the thorough judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, J.C.A. with which I agree with nothing extra to add.

Appearances:

L. C. Okoli, Esq. with him, E. C. Ayalogu, Esq. and Miriam Ikwueme (Mrs.)For Appellant(s)

O. Iwuhukwu (Mrs.) Assistant Director Prosecution Legal Services NDLEAFor Respondent(s)

Appearances

L. C. Okoli, Esq. with him, E. C. Ayalogu, Esq. and Miriam Ikwueme (Mrs.)For Appellant

AND

O. Iwuhukwu (Mrs.) Assistant Director Prosecution Legal Services NDLEAFor Respondent

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