YAHAYA UMAR v. FEDERAL REPUBLIC OF NIGERIA (2016)

YAHAYA UMAR v. FEDERAL REPUBLIC OF NIGERIA

(2016)LCN/8163(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of February, 2016

CA/K/482/C/2015

RATIO

EVIDENCE: BURDEN AND STANDARD OF PROOF: WHICH OF THE PARTIES HAS THE BURDEN TO PROVE A CASE BEYOND REASONABLE DOUBT IN CRIMINAL CASE

Under the 1999 Constitution of the Federal Republic of Nigeria (as amended) as it affects our adversarial criminal legal system, an accused person is presumed innocent until proved guilty by a competent Court. This presumption of innocence places a burden on the prosecution to prove a case beyond reasonable doubt in accordance with Section 135 of the Evidence Act, Capt. 112, Laws of the Federation, 1990. In the process, the prosecution has to prove all the essential elements of an offence as contained in the charge. The prosecution has the responsibility of proving all the essential elements of the offence charged, by producing vital material evidence by vital witnesses to testify during the proceedings.

The burden of proof in criminal case is on the prosecution who must prove the guilt of the accused person beyond reasonable doubt and must also discharge a general duty of rebutting the presumption of innocence constitutionally guaranteed to an accused person. This burden on the prosecution to prove the case against an accused person beyond reasonable doubt casts a further duty on the prosecution to assemble evidence such that will point irresistibly to the conclusion that it was the accused and no other person who committed the offence. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Mariagbo v. The State (1971) 2 SC 47; Solola v. The State (2005) 11 NWLR (Pt.937) 460; Umoru Usufu v. The State (2007) 3 NWLR (Pt.1020) 94. The commission of a crime by a person must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it. The burden of proof lies on the prosecution and it never shifts. If on the whole evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof laid on it by law and the accused is entitled to an acquittal. However, this does not mean the prosecution must call every available piece of evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus which the law lays upon the prosecution. See Alonge v. I.G.P (1959) SCNLR 516. In a criminal trial, the onus of proof is always on the prosecution to adduce credible evidence proving the guilt of the accused person, and failure to do so will automatically lead to the discharged of the accused person. See Almu v. The State (2009) 10 NWLR (Pt.1148) page 31 at 45 and Onubogu v. State (1974) 9 SC 1. per. IBRAHIM SHATA BDLIYA, J.C.A.

EVIDENCE: WAYS TO PROVE THE COMMISSION OF AN OFFENCE BY AN ACCUSED PERSON

The law is trite, there are three (3) ways to prove or establish the commission of an offence by an accused person. In Igbele v. State (2006) 6 NWLR (Pt. 975) page 100 at 130, the Supreme Court held that the guilt of an accused person can be proved by:

(a) The confessional statement of the accused person; or

(b) Circumstantial evidence; or

See also Lori v. State (1980) 8-11 SC page 81 and Emeka v. State (2001) 14 NWLR (Pt. 734) page 666. per. IBRAHIM SHATA BDLIYA, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER THE COURT CAN SAFELY CONVICT AN ACCUSED BASED ON THE CONFESSIONAL STATEMENT DESPITE ITS RETRACTION

I further hold that the Court can safely convict the accused based on the confessional statement despite its retraction, although it is advisable and desirable to consider some corroborative evidence outside the confessional statement of accused to see the probability of the accused committing the offence as charged. See Nwachukwu v. State (2007) 17 NWLR (Pt.1062) SC 37; Kin v. State (1992) 4 SCNJ 81, 110; Akpan v. State (1992) 6 NWLR (Pt 248) 439; Nsofor v. State (supra). per. IBRAHIM SHATA BDLIYA, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER CORROBORATION IS DESIRABLE TO HAVE CORROBORATIVE EVIDENCE WHERE A CONFESSIONAL STATEMENT IS DENIED OR RETRACTED

The law is trite, where a confessional statement is denied or retracted, it is desirable to have corroborative evidence no matter how slight before convicting on such statement. The Court has a duty to test the veracity or otherwise of the statement by comparing it with other facts outside the statement to see whether they support, confirm or correspond with the statement. In a way, the Court may scrutinize the statement to test its truthfulness or otherwise in line with available evidence. See Kazeem v. State (2009) All FWLR (Pt. 465) 1749; Dawa v. State (1980) 8-11 SC 236; Ikpasa v. A-G. Bendel (1981) 9 SC 7; Bolanle v. State (2005) 7 NWLR (Pt.925) 431; Obisi v. Chief of Naval Staff (2002) 2 NWLR (Pt. 751) 400. See also Odunayo v. State (2014) 12 NWLR (Pt. 1420) page 109. per. IBRAHIM SHATA BDLIYA, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; THE TEST TO BE APPLIED BY THE COURT IN DETERMINING ON THE ISSUE OF WEIGHT TO BE ATTACHED TO CONFESSIONAL STATEMENTS RETRACTED OR NOT RETRACTED

In determining whether to attach any weight to the statement made by an accused person which has been retracted or not, the Court, through a litany of decisions have laid down the tests to be applied or followed. For instance, in the case of Dawa v. State (1980) 8-11 SC page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267 – 268: “On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. v. Sykes (1913) 8 Cr, App, R.233 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30 and I regard them as sound and golden.

The questions a judge must ask himself are:

(1) Is there anything outside the confession to show that it is true?

(2) Is it corroborated?

(3). Are the relevant statements made in it of facts, true as far as they can be tested?

(4). Was the prisoner one who had the opportunity of committing the murder?

(5). Is his confession Possible?

(6). Is it consistent with other facts which have been ascertained and have been Proved?

If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.

Since Kanu v. The King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above. Among the long line of authorities may be mentioned: (1) The Queen v. Obiasa (1962) 1 All NLR (2) Edet Obosi v. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. v. The Republic (1996) NMLR 307 (4) Obue v. The State (1976) 2 SC 141 (5) Jimoh Yesufu v. The State (1976) 6 SC 167 (6) Ebhomien & Ors. v. The Queen (1963) 1 All NR 365′” per. IBRAHIM SHATA BDLIYA, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER A CONFESSIONAL STATEMENT MADE BY AN ACCUSED PERSON AND PROPERLY ADMITTED IN LAW IS THE BEST GUIDE TO THE TRUTH OF THE ROLE PLAYED BY HIM AND UPON WHICH ALONE THE COURT CAN CONVICT

The law is trite, a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict. Where there are facts and circumstances outside the confession which make it probable that the confession is true, the Court can convict upon the confession and those additional facts and circumstances. See Olabode v. State (2009) 11 NWLR (Pt.1152) page 254 at 273; Ogoala v. State (1991) 2 NWLR (Pt. 175) page 509; Obiasa v. Queen (1962) 2 SCNLR page 402 and Okabichi v. State (1975) 1 All NLR page 71. In Akpa v. State (2008) 14 NWLR (Pt. 1105) page 72 at 92, Niki Tobi, JSC said: “In law, where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. See Milla v. The State (1985) 3 NWLR (Pt. 11) 190 at page 95 Paragraph C-D, the Supreme Court per Tobi, JSC stated the law thus: “Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused person. What better evidence than that? He knows or know what he did and he says or said it in Court. Is there need for any further proof? I think not.” Tabai, JSC expressed same view in the case of Olabode v. State (2009) 11 NWLR (Pt.1152) page 254 at 273 thus: “It is settled law that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict. per. IBRAHIM SHATA BDLIYA, J.C.A.

COURT: WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT AND WHEN CAN AN APPELLATE COURT INTERFERE WITH THE SAME

EVIDENCE: PROVE BEYOND REASONABLE DOUBT; WHAT PROOF BEYOND REASONABLE DOUBT ENTAILS

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

EVIDENCE; PROOF BEYOND REASONABLE DOUBT; WHEN CAN THE COMMISSION OF A CRIME BY AN ACCUSED PERSON BE SAID TO HAVE BEEN PROVED BEYOND REASONABLE DOUBT

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

JUSTICES

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

YAHAYA UMAR – Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Evelyn Anyadike of the Federal High Court (the lower Court) delivered on the 10th of July, 2014, wherein, Yahaya Umar (the appellant) was found guilty, convicted and sentenced to 2 years imprisonment for committing an offence under Section 11(c) of the National Drug Law Enforcement Agency (NDLEA) Law, 2004. The facts of the case or the events culminating to the arrest, trial and conviction of the appellant are simple and straight-forward. On or about 23rd of July, 2013 officers of the NDLEA, acting on an information went to the house of the appellant and searched therein. They discovered some substances wrapped in bundles in his bedroom and others in sacks in a store. He was arrested and taken to NDLEA office in Zaria. The substances were examined and analised in his presence and found to be Cannabis Sativa (commonly called Indian Hemp). The appellant was later arraigned before the lower Court on a one count charge which was later amended. The prosecution called 4 witnesses and tendered exhibits in proving the case

against the appellant. The appellant gave evidence in his defence. On the 10th of July, 2014, the learned trial judge of the lower Court delivered judgment convicting the appellant as charged. Dissatisfied with the judgment, he filed a Notice of Appeal to this Court on the 14th of July, 2014.

The appellant filed his brief of argument on the 25th of July, 2014, wherein a lone issue has been distilled from the grounds of appeal for determination in the appeal. The Respondent’s brief of argument was deemed filed on the 1st of July, 2015, wherein the lone issue for determination in the appellant’s brief of argument was adopted. The appeal was heard by this Court on the 24th of November, 2015. Nnamonso Ekanem, Esq. of learned counsel to the appellant, adopted the brief of argument and urged the Court to allow the appeal, set aside the judgment of the lower Court, discharge and acquit the appellant. T. J. Atserhegh, Esq. adopted the respondent’s brief of argument, urged the Court to dismiss appeal and affirm the judgment of the lower Court.

?The lone issue for determination in the appeal as formulated by the appellant and adopted by the respondent is

thus:

”WHETHER THE EVIDENCE ADDUCED AT THE LOWER COURT ESTABLISHED THE GUILT OF THE APPELLANT BEYOND REASONABLE DOUBT?.

After a dispassionate evaluation of the totality of the evidence adduced before the lower Court the learned trial judge found and held as follows on pages 59-60 of the printed record of appeal:

“The prosecution’s case is that the Accused person’s house was raided based on intelligence report and dried weeds recovered from his room and store in this presence, his wife and children. The accused accepted ownership. The dried weeds tested positive to cannabis sativa and weighed 6.350kg.

Facts stated in Exhibit ‘A” which is part of the case of the prosecution corroborates the statement of the prosecution witnesses as produced above.

Secondly, the evidence by the PW2 and PW3 that the exhibit were recovered in the presence of accused his wife and children and that the accused person accepted ownership there and then was not challenged during cross-examination of the two (2) witnesses and therefore accepted as the truth. See Obi v. Uzor (1991) 9 NWLR (Pt.213) 94; Ado v. Eldestein (2002) NWLR (Pt.747)50. This admission by the accused erases any other probability that

the drugs belong to another person or was kept by another person as the accused claimed.

His failure to produce the said Usman from Kano whom he alleged was his tenant in the store at the time and his failure to discloses his real name and address which would have helped in further investigation have not helped the accused because he who asserts proved.

I therefore hold that the prosecution in effect has established the ingredients of the offence as charged and based on which I find the accused person guilty as charged.”

Was the learned trial Judge right or justified in arriving at the decision (supra)? Nanmonsa Ekanem, Esq. of learned counsel to the appellant, adumbrated that it is the duty of the prosecution to prove the guilt of an accused person beyond reasonable doubt, which never shifts.

That failure of the prosecution to do so would create a doubt which is to be resolved in favour of the appellant with the consequence of a discharge and acquittal. That in order to decide whether the prosecution has discharged the burden of proving the case against an accused person or not, the totality of the evidence must be considered. The case of

Aroyewan v. Commissioner of Police (2004) 16 NWLR (Pt.899) page 414 at 433 and Orji v. State (2008) 10 NWLR (Pt. 1094) page 30 at 60 cited and relied on to buttress the submissions (supra).

Learned Counsel pointed out that when the appellant was arraigned before the lower Court, he informed the Court that he could only speak and understand Hausa language, thereby an interpreter interpreted the charge and the entire proceedings conducted by the Court from Hausa to English Language. That the appellant gave his evidence at the trial in Hausa and stated that his statement was taken by the police which he thumb printed without being interpreted to him. That he did not sign the statement record by the police nor was it interpreted to him. Counsel further argued that the appellant is not disputing making the statement but that being an illiterate, same was not interpreted to him, he did not sign it. It has been pointed out that, apart from the statement of the appellant, all other documents have been thumb printed, not signed by the appellant. Counsel referred to Exhibits ?B?, ?C? and ?D? to reinforce the submissions

(supra). Counsel then contended that in view of the foregoing, could it be said without any doubt, that Exhibit ?A’ was signed by the appellant. Counsel referred to the case of R. v. Sykes (1913) 8 CR App. 233 which was approved in Kanu v. R. WACA 30 and followed by the Supreme Court in the case of Dawa v. State (1980) 8-11 SC page 236 and contended that the six (6) tests enumerated therein have not been satisfied before the lower Court, therefore, the appellant could not have validly and legally made the statement (Exhibit ?A?) alleged by the prosecution.

Learned Counsel went further to adumbrate that having shown that the appellant did not sign Exhibit “A”, the lower Court was in error when it admitted and relied on same in convicting the appellant. That the prosecution did not adduce reliable evidence proving the commission of the offence with which the appellant was charged as required in law, that is beyond reasonable doubt. This Court has been urged to resolve the lone issue in favour of the appellant, allow the appeal, set aside the judgment of the lower Court and to discharge and acquit the appellant accordingly.

?For

the Respondent, T.J. Aterhegh, Esq. of learned Counsel, contended that having admitted Exhibit “A” in evidence the lower Court rightly ascribed probative value in view of its contents which is an admission of the commission of the offence which the appellant was charged with. Counsel cited Section 28 of the Evidence Act, 2011 to buttress the submission that a confession is an admission by a person charged with the commission of an offence indicating that he committed the offence. That where a confession is freely made under caution by an accused person, such confession can be relied on for conviction. The cases of Hassan v. State (1969) All NLR page 251; Ikemson v. State (1989) 3 NWLR (Pt. 110) page 45 and Gira v. State (1996) 4 NWLR (Pt. 443) page 373 at 387 cited and relied on to reinforce the submissions (supra).

Learned Counsel further contended that by virtue of Section 28 of the Evidence Act, 2011, a confession being an admission of committing an offence, conviction can properly be made as enunciated in a plethora of decided authorities by the Superior Courts, such asOlabode v. State (2009) 11 NWLR (Pt. 1152) page 254 at 273 and Akpa v. State

(2008) 14 NWLR (Pt. 1106) page 72 at 92. On the retraction of Exhibit ?A” by the appellant. Counsel pointed out that notwithstanding, having been corroborated by other independent evidence the lower Court was right in attaching weight to it in convicting the appellant. The case of Ojo v. FRN (2008) 11 NWLR (Pt.1999) page 467 at 480 cited in reinforcement of the submissions (supra).

Apart from Exhibit “A” the confessional statement of the appellant, Counsel contended that the independent evidence of PW2, PW3, PW4 and Exhibits ?B?, ?C?, “D?, “E” and “F” are credible evidence upon which a conviction could be secured in respect of the offence with which the appellant was charged. That the evidence of PW2, PW3, PW4 and Exhibits “B? to “F” were not challenged nor discredited by the appellant, therefore, the prosecution had proved all the essential elements of an offence under Section 11(c) of the NDLEA Act. Therefore, the lower Court was right in holding that the prosecution proved the commission of the offence with which he has been charged beyond reasonable doubt. The cases of Shehu v. State (2010) All FWLR (Pt. 523)

page 1841 at 1855; Sunmoll Ishika v. State (1969) NMLR 259 at 260 and Ounmi v. Queen 14 WACA page 65 cited in aid.

On whether the prosecution adduced evidence proving the commission of an offence under Section 11(c) of NDLEA beyond reasonable doubt as required by Section 138(1) of the Evidence Act, 2011, Counsel submitted that, it had in that what the law requires is proof beyond reasonable doubt, not beyond all doubt. The case of Bakare v. State (1989) NSCC page 267 at 273; Akpa v. State (supra) and Olabode v. State (supra) were relied on to buttress the submissions (supra). In conclusion, Counsel did urge the Court to resolve the lone issue against the appellant

RESOLUTION OF SOLE ISSUE:

The amended charge against the appellant (then an accused person) reads thus:

“That you Yahaya Umar (Male), Adult, of Numbun Corner, Gwantu in Sanga Local Government Area of Kaduna State on or about 23rd August, 2013 at your residence in Gwantu in Sanga Local Government Area of the State within the jurisdiction of this Honourable Court and without lawful authority dealt in 6.350kg of Cannabis sativa, a narcotic drug and thereby committed an offence

contrary to an punishable under Section 11(c) of the NDLEA Act, 2004 Laws of the Federation.”

Section 35(5) of the 1999 Constitution (as amended) provides that:

“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”

Because of the provisions of Section 35(5) of the 1999 Constitution (as amended) (supra), Section 135(1), (2) and (3) of the Evidence Act, 2011 provides as follows:

“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or in not directly in issue in the action.

(3) If the prosecution proves the commission of a crime beyond reasonable doubt is shifted on to the defendant.”

Under the 1999 Constitution of the Federal Republic of Nigeria (as amended) as it affects our adversarial criminal legal system, an accused person is presumed innocent until proved

guilty by a competent Court. This presumption of innocence places a burden on the prosecution to prove a case beyond reasonable doubt in accordance with Section 135 of the Evidence Act, Capt. 112, Laws of the Federation, 1990. In the process, the prosecution has to prove all the essential elements of an offence as contained in the charge. The prosecution has the responsibility of proving all the essential elements of the offence charged, by producing vital material evidence by vital witnesses to testify during the proceedings.

Solola v. The State (2005) 11 NWLR (Pt.937) 460; Umoru Usufu v. The State (2007) 3 NWLR (Pt.1020) 94.

The commission of a crime by a person must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it. The burden of proof lies on the prosecution and it never shifts. If on the whole evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof laid on it by law and the accused is entitled to an acquittal. However, this does not mean the prosecution must call every available piece of evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus which the law lays upon the prosecution. See Alonge v. I.G.P (1959) SCNLR 516.

In a criminal trial, the onus of proof is always on the prosecution to adduce credible evidence proving the guilt of the accused person, and failure to do so will automatically lead to the discharged of the accused person. See Almu v. The State (2009) 10 NWLR (Pt.1148) page 31 at 45 and Onubogu v. State (1974) 9 SC 1. Did the prosecution adduce credible evidence proving the

charge against the appellant at the lower Court? The law is trite, there are three (3) ways to prove or establish the commission of an offence by an accused person. In Igbele v. State (2006) 6 NWLR (Pt. 975) page 100 at 130, the Supreme Court held that the guilt of an accused person can be proved by:

(a) The confessional statement of the accused person; or

(b) Circumstantial evidence; or

See also Lori v. State (1980) 8-11 SC page 81 and Emeka v. State (2001) 14 NWLR (Pt. 734) page 666.

Learned Counsel to the appellant strenuously contended that the trial Judge of the lower Court erred in law when he relied on Exhibit “A” (the statement allegedly made by the appellant) in convicting him. That Exhibit “A” ought not been attached much weight having denied signing same being an illiterate person. That the appellant could not have signed same. On pages 56 to 58 of the printed record of appeal, the learned trial Judge found and held as follows:

“The statement was signed and thumb printed after the cautionary word, the authority to write statement and after

the statement. The statement was also counter signed by a superior officer in compliance with the rules. I hold the view that the facts stated in the statement could not have been imagined by someone who had no insider information or person knowledge of those facts.

It is also not challenged nor discredited during cross-examination of PW3 that the accused was taken to the Area Commander who read the statement over to accused and he admitted that it was his statement. The accused during evidence on oath admitted that he was taken to the superior officer but claimed that he did not understand what the officer discussed as they spoke in English Language.

I hold that it is too late in the day to complain as the appropriate time for him to do that was at the point when the statement was being read over to him. The statement Exhibit ‘A’ was made by the accused and it is positive and direct to the admission of guilt by the accused to the offence as charged.

I further hold that the Court can safely convict the accused based on the confessional statement despite its retraction, although it is advisable and desirable to consider some corroborative evidence

outside the confessional statement of accused to see the probability of the accused committing the offence as charged. See Nwachukwu v. State (2007) 17 NWLR (Pt.1062) SC 37; Kin v. State (1992) 4 SCNJ 81, 110; Akpan v. State (1992) 6 NWLR (Pt 248) 439; Nsofor v. State (supra).

Learned Counsel’s contention that the accused having denied signing Exhibit ‘A? that is beholves on the prosecution to establish that the thumb print and signature are those of the accused person does not avail the accused because the accused person admitted while given evidence in Court that he thumb printed on Exhibit ‘A’. ”

Was the learned trial Judge right when he relied on Exhibit “A” in arriving at the decision reproduce (supra)? The appellant is not denying making the statement, but that the one tendered at the lower Court was not signed by him because he could not have done so being an illiterate person. The law is trite, where a confessional statement is denied or retracted, it is desirable to have corroborative evidence no matter how slight before convicting on such statement. The Court has a duty to test the veracity or otherwise of the statement by comparing it

with other facts outside the statement to see whether they support, confirm or correspond with the statement. In a way, the Court may scrutinize the statement to test its truthfulness or otherwise in line with available evidence. See Kazeem v. State (2009) All FWLR (Pt. 465) 1749; Dawa v. State (1980) 8-11 SC 236; Ikpasa v. A-G. Bendel (1981) 9 SC 7; Bolanle v. State (2005) 7 NWLR (Pt.925) 431; Obisi v. Chief of Naval Staff (2002) 2 NWLR (Pt. 751) 400.

See also Odunayo v. State (2014) 12 NWLR (Pt. 1420) page 109.

“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. v. Sykes (1913) 8 Cr, App, R.233 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30

and I regard them as sound and golden.

The questions a judge must ask himself are:

(1) Is there anything outside the confession to show that it is true?

(2) Is it corroborated?

(3). Are the relevant statements made in it of facts, true as far as they can be tested?

(4). Was the prisoner one who had the opportunity of committing the murder?

(5). Is his confession Possible?

(6). Is it consistent with other facts which have been ascertained and have been Proved?

authorities may be mentioned: (1) The Queen v. Obiasa (1962) 1 All NLR (2) Edet Obosi v. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. v. The Republic (1996) NMLR 307 (4) Obue v. The State (1976) 2 SC 141 (5) Jimoh Yesufu v. The State (1976) 6 SC 167 (6) Ebhomien & Ors. v. The Queen (1963) 1 All NR 365′”

I, think, it is apt, at this juncture, to relate Exhibit “A” to the evidence of other witnesses that the prosecution called at trial before the lower Court in answering the questions or tests enumerated in the case of Dawa v. State (supra). Question (1) is answered in the positive in view of the evidence of PW1, PW2, PW3 and PW4 as well as Exhibits “B”, ?C?, ?E? and “F”. These pieces of evidence are independent of Exhibits “A” which are outside its contents. Question (2) is also answered positively in that the evidence of PW1, PW2, PW3, PW4 and Exhibits ?B?, ?C?, ?E?, and “F” have corroborated the contents of Exhibits “A”. Question (3) is again answered in the positive because the contents of Exhibit “A” are of facts which could be tested and ascertained as to its authenticity or

truthfulness. Question (4) is also answered positively because the appellant did not disown the house where the substance was found. Indeed, the evidence of PW1-PW4 clearly established the appellant was present and staying in the house. Question (5), is answered positively because the appellant only denied signing Exhibit “A” being an illiterate, and lastly Question (6) is also answered in the positive because the evidence of PW1- P4 are consistent with the statement in Exhibit ‘A’ which can be ascertained and have been proved. Exhibit “A” has therefore passed the tests satisfactorily to be attached great evidential value in the determination of whether the appellant did commit the offence with which he been charged or not.

See Olabode v. State (2009) 11

NWLR (Pt.1152) page 254 at 273; Ogoala v. State (1991) 2 NWLR (Pt. 175) page 509; Obiasa v. Queen (1962) 2 SCNLR page 402 and Okabichi v. State (1975) 1 All NLR page 71.

In Akpa v. State (2008) 14 NWLR (Pt. 1105) page 72 at 92, Niki Tobi, JSC said:

“In law, where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. See Milla v. The State (1985) 3 NWLR (Pt. 11) 190 at page 95 Paragraph C-D, the Supreme Court per Tobi, JSC stated the law thus:

“Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused person. What better evidence than that? He knows or know what he did and he says or said it in Court. Is there need for any further proof? I think not.”

Tabai, JSC expressed same view in the case of Olabode v. State (2009) 11 NWLR (Pt.1152) page 254 at 273 thus:

“It is settled law that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict.?

On pages 56 lines 16-18 and page 58 lines 11 of the record of appeal, the learned trial judge found and held as follows:

“The statement Exhibit “A” was made by the accused and it is positive and direct to offence as charged. Facts stated in Exhibit “A” which is part of the case of the prosecution corroborates the statement of the prosecution witnesses as produced above.?

The law is trite, an appellate Court cannot and should not ordinarily interfere with findings of facts, evaluation of evidence, and decision arrived at, by a trial Court unless there exist good ground for doing so. I have found no cogent and good ground to disturb the findings and decision of the learned trial Judge on the statement of the appellant, Exhibit “A” regarding its admissibility, weight or evidential value in convicting the appellant.

What is more, even without Exhibit “A” (the confessional statement of the appellant) the evidence of PW1, PW2, PW3, PW4

and Exhibits ?B?, ?C”, ?D? “E? and “F” have proved the commission of the offence with which the appellant was arraigned before the lower Court. PW2, Charles Abuul testified that 6.350kg of Cannabis Sativa was recovered from the bedroom of the appellant on the 23rd of August, 2013. On page 18 of the record of appeal, he specifically stated thus:

“Based on information that Yahaya Umar is trading in Cannabis Sativa called Indian Hemp at Numbun Corner Area of Gwantu town, a team of NDLEA officers including myself went to the house of the suspect on 23rd August, 2013. During the search which was closely witnessed by the accused and his wife, I discovered some loose wrap of dried weeds suspected to be Cannabis Sativa in the accused person’s bedroom. After the discovery … I ordered the suspect to take us round to other rooms in the entire building. During the search, I further discovered in his store more quantity of dried leaves suspected to be Indian Hemp concealed in a white sack.?

?PW4, Yahaya Usman Kamba stated in his evidence which has been recorded on pages 23-24 of the record of appeal as follows:

?I know the accused on 23rd day of August, 2013 the accused was brought before me by 2 officers, namely, Charles Abuul and Sani Musa Zaria PW1 and PW2 with a white sack containing dried weeds suspected to be Cannabis Sativa. I asked the accused the owner of the weeds and he said it belongs to him. I then took a sample from the sack I conducted a field test using United Nations Kit in the presence of the accused and the officers that brought him and the result proved positive to Cannabis Sativa. I then filled some exhibit forms where the accused thumb printed and the arresting officers also signed and put date. I also signed. I then took a sample and put it in a transparent evidence pouch marked “A1″ which I took to Lagos for forensic analysis even though the result is not yet ready.”

Exhibits ?B? “C” and “D” were admitted in evidence through PW4. These exhibits reinforced the credibility of the testimonies of PW1, PW2, PW3 and PW4 in proving the commission of the offence under Section 11(c) of the NDLEA Act by the appellant. The learned trial Judge was therefore right when he held as follows on pages 58-59 of the record of appeal:

“The evidence by PW2 and PW3 that the exhibits were recovered in the presence of accused, his wife ,children and that the accused person accepted ownership there and then was not challenged during cross examination of the two witnesses and therefore accepted as the truth. The admission by the accused erases any other probability that the drugs belong to another person or was kept by another person the accused claimed.

I therefore hold that the prosecution in effect has established the ingredients of the offence as charged and based on which I find the accused person guilty as charged.”

The substance or pith of the appellant’s complaint against the judgment of the lower Court in which he was convicted is that no evidence was adduced to prove his guilt beyond reasonable doubt as required by Section 135(1) of the Evidence Act, 2011 which provides thus:

“135(1) if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt”.

What “proof beyond reasonable doubt” entails has been enunciated in the case of Maigari v. State (2013) 17 NWLR (Pt. 1384) page

425 at 438 that “proof beyond reasonable doubt” is not synonymous with proof beyond the shadow of doubt. If the evidence is so strong against a man as to leave only remote possibilities in his favour which can be dismissed with the sentence, “of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt,? but nothing short of that would suffice as proof beyond reasonable doubt. See Emoga v. State (1997) 1 NWLR (pt. 483) 615.

The law requires that a crime must be proved beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law will fail to protect the community if it admits fanciful possibilities to defect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case is beyond reasonable doubt, but nothing short of that will suffice.

See Jua v. State (2010) 4 NWLR (Pt. 1184) page 217 at 253.

?As to when the commission of a crime by an accused person can be said to have been

proved beyond reasonable doubt, the Supreme Court in the case of Ilori v. The State (1980) 8-11 SC; page 81 at 99 held that:

“The basic necessity before a verdict of guilty in a criminal charge can be pronounced is that the jury are satisfied of the guilt of the accused beyond all reasonable doubt Proof beyond reasonable doubt as Denning, J., (as he then was) stated in Miller v. Minister of Pensions (1947) 2 All E.R. 372, 373:

“does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice.”

?Apart from the confessional statement of the appellant, that is Exhibit “A” the respondent adduced independent credible evidence (See evidence of PW1, PW2, PW3, PW4 and Exhibits ?B”, ?C?, ?D?, “E” and ?F?) to prove the charge against the

appellant. To prove the commission of an offence under Section 11(C) of the NDLEA Act, the prosecution has the onus to prove the following:

(i) That the accused (the appellant) was found to be in possession of substance (weeds, etc) suggested to be Cannabis Sativa (Indian Hemp)

(ii) That what was found with the appellant was scientifically proved to be Cannabis Sativa (Indian Hemp), and

(iii) The appellant had no lawful authority to be in possession of or deal with such substance i.e. Cannabis Sativa (Indian Hemp)

See FRN v. Iweka (2011) 12 SCNJ (Pt. 11) page 785 at 812 and Chukwuma v. FRN (2011) 5 SCNJ page 40 at 56.

The totality of the evidence adduced by the respondent (the prosecution) have established all the essential ingredients required to prove the offence under Section 11(c) of the NDLEA Act, with which the appellant was tried and convicted by the lower Court. It is on the foregoing premises that I am in full agreement with the learned trial Judge when she held on page 60 of the record of appeal that:

?I therefore hold that the prosecution in effect has established the ingredients of the offence as charged and based

on which I find the accused person guilty as charged.”

In other words, the commission of an offence under Section 11(c) of NDLEA Act by the appellant had been proved as required by Section 135(1) of the Evidence Act, 2011, that is, beyond reasonable doubt. Consequently, I resolve the sole issue against the appellant. The appeal therefore fails. The judgment of the lower Court delivered on the 10th of July, 2014 in Charge No. FHC/KD/82C/2013 is hereby affirmed.

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

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: The facts of the case leading to the present appeal and the various contentions of Counsel have been set out in the lead Judgment of my learned brother Ibrahim S. Bdliya JCA.

I am in agreement with His Lordship’s reasoning

that this appeal lacks merit and should be dismissed. I affirm, in consequence, the Judgment of the lower Court.

Appearances

Nnamonso Ekanem, Esq.For Appellant

AND

T. J. Atserhegh, Esq.For Respondent