Godwin Chukwuma V. Federal Republic Of Nigeria (2007)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

This is an appeal against the judgment of the Federal High Court, Sokoto in suit No. FHC/S/20C/2004 delivered on the 21st day of September, 2004, in which the court convicted and sentenced the appellant to a term of 15 years imprisonment under section 10H of the NDLEA (Amendment) Decree No.15 of 1992.

The appellant was arraigned before the Federal High Court, Sokoto, charged with an offence under section 10H of the NDLEA (Amendment) Decree No. 15 of 1992 as follows:

”That you Godwin Chukwuma (a.k.a. Goddy) male, 36 years of age of Mabera Area of Sokoto, on or about 22nd March, 2004 at Hajiya Halima Area, Sokoto within the jurisdiction of this Honourable Court and without lawful authority had in your possession 305 kilograms of cannabis sativa otherwise known as Indian hemp, a narcotic drug similar to cocaine and thereby committed an offence contrary to and punishable under section 10H of the NDLEA (Amendment) Decree No.15 of 1992.”

After the charge was read and explained to the accused person/appellant who appeared to have understood the charge satisfactorily and pleaded as follows:

“Accused: I understood the charge as read and explained to me and the allegation is not true. I am not guilty.”

The respondent, in an attempt to prove its case against the appellant as the accused called a total number of five witnesses and tendered exhibits A 1- 13, B, C, D, E – E2, in evidence in support of the case of the prosecution, while the appellant testified on his own behalf but called no other witness.

The facts of the case include the followings: The appellant was arrested by officers of the National Drug Law Enforcement Agents (NDLEA) on the 22nd day of March, 2004, at Hajiya Halima Area, Sokoto, in Sokoto State. The case for the prosecution is as stated by the five witnesses who testified that the accused was arrested for being in possession of substance suspected to be Indian hemp otherwise known as cannabis sativa, a narcotic drug similar to cocaine, heroin or LSD without lawful authority. Furthermore, that the appellant was taken to the NDLEA office along side the recovered substance and in his presence it was field tested using United Nations testing kits and it proved positive for cannabis saliva with a gross weight of 305 kilograms. That, other scientific analysis was conducted on the recovered substance at the laboratory and it proved positive for cannabis sativa otherwise known as Indian hemp. The appellant was found to have contravened the provisions of section 10H. NDLEA (Amendment) Decree No.15 of 1992. Thereafter, the appellant made an extra-judicial statement under caution at the NDLEA office, Sokoto on the 22nd day of March, 2004.

The appellant was arraigned before the Federal High Court Sokoto, on the 30th day of March, 2004 for the offence of knowingly being in possession of 305 kilograms of cannabis sativa, otherwise known as Indian hemp contrary to and punishable under section 10H.of the NDLEA (Amendment) Decree NO.15 of 1992 to which he pleaded not guilty. The appellant engaged the services of counsel to conduct his defence, the counsel actively participated in the trial as shown at pages 24 – 30 and 32 – 47 of the printed record but subsequently abandoned the case without complying with the procedure of applying to the court to withdraw.

In the course of trial, 5 prosecution witnesses testified and exhibits A1 – 13, B, C, D, E – E2 were tendered by the prosecutor in evidence. The appellant did not lead evidence to rebut or contradict the testimonies of the prosecution Witnesses.

After reviewing the evidence adduced by the prosecution and the defence of the appellant as well as taking into consideration the exhibits tendered by the prosecution in support of its case, the learned trial Judge, held:

“In the instant case the totality of evidence leaves this court in no doubt (1) that the substance in question was immediately tested upon arrest and recovery in the presence of witnesses and the accused person and the substance proved positive for cannabis sativa i.e. (Indian hemp) so also exhibit “E” expert analysis of the drug.

(2) The substance was found and recovered from the possession of the accused person immediately upon arrest with no lapse of time to create doubt. (3) Accused person knew that he had the substance in question in his possession.”

Aggrieved with the conviction and sentence, the appellant by his notice of appeal dated and filed on 13/10/2004, containing six grounds of appeal at pages 71 – 75 of the printed record. The grounds of appeal and their particulars are hereby reproduced below as follows:

“Ground One

The decision of the trial court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced at the trial.

Ground Two

The trial court erred in law when it convicted the appellant of the offence contrary to and punishable under section 10th) of NDLEA (Amendment) Decree No.15 of 1992 when there was no scientific or expert evidence before it to prove that the substance recovered from the appellant was cannabis sativa (Indian Hemp) nor that the said substance is indeed a narcotic drug similar to cocaine.

Particulars of Errors

(a) Before a conviction under section 10(h) of NDLEA (Amendment) Decree No.15 of 1992 can be made out, the prosecution must lead scientific or expert evidence to establish that the substance recovered from the appellant was cannabis sativa (Indian hemp) and that same is indeed a narcotic drug similar to cocaine.

(b) The prosecution in the instant case did not lead any such evidence.

(c) PW1 who claimed to have tested the substance and found same to be Indian Hemp in the presence of the appellant immediately upon the arrest of the appellant is not an expert as he did not state his qualifications and years of experience on the job.

(d) Again, exhibit “E” relied upon by the trial court to convict the appellant as charged is merely a brown envelope and not a scientific report of an expert.

(e) Even though there is a report signed by one Mr. Afolabi P.O. purporting to show that the analyzed substance is Indian Hemp, the said report was not specifically tendered in evidence and marked as an exhibit in the proceedings.

(f) Further, even the said report of one Mr. Afolabi P.O. did not confirm that the analyzed substance is indeed a narcotic drug similar to cocaine as mandatorily required by section 10(h) of NDLEA (Amendment) Decree No. 15 of 1992.

Ground Three

The trial court erred in law when it relied on exhibit “E” (a brown envelope sealed and labeled “NDLEA Drug Analyst Report”) as well as a transparent evidence pouched containing the analyzed substance to convict the appellant as charged despite the fact ‘that there was no evidence before it whatsoever to prove that the substance in exhibit “E” or transparent evidence pouched is the same substance or part of the same substance in possession of the appellant and recovered from the appellant by men of the NDLEA.

Ground Four

The trial court erred in law when it allowed the prosecution to re-open its case on the day of judgment (21/9/04) so as to enable the prosecution tender in evidence certain documents and exhibits when there was no application (oral or documentary) from the prosecution for such a relief and when a fortiori the appellant who was not represented by a counsel was not afforded any opportunity to be heard on any such application for the re-opening of the prosecution’s case. The trial court in the circumstance allowed the prosecution to re-open its case when no such relief was prayed for by the prosecution.

Ground Five

The trial court erred in law and occasioned a miscarriage of justice to the appellant when it allowed the prosecution to re-open its case on the day of judgment and in the process certain documents and exhibits were tendered by the prosecution and admitted in evidence which documents and exhibits were instantly used by the court to convict the appellant as charged. Particulars of Errors

(a) On the day of judgment (21/9/04) the court allowed the prosecution to tender a brown envelope sealed and labeled “NDLEA Drug Analyst Report” admitted in evidence as exhibit “E” as well as a transparent evidence pounced containing the analyzed substance.

(b) The said documents and exhibit were used by the court to convict the appellant instantly as charged.

(c) No opportunity was given to the appellant who was not represented by a counsel to call rebuttal evidence on the fresh pieces of documents and exhibits introduced into the proceedings by the prosecution on the Day of Judgment before judgment was passed against the appellant.

(d) Whereas in criminal trials, the prosecution is not permitted to re-open its case to prove some matters of substance except where the need to do so could not reasonably have been for seen despite due diligence.

(e) Whereas the recognized exceptions for the re-opening of the prosecution’s, case do not apply in the case of the appellant.

Ground Six

The sentence passed on the appellant by the trial court was excessive as the trial court neglected to consider and direct that the minimum term of imprisonment imposed on the appellant should take effect from the date of arrest and or of imprisonment of the appellant while undergoing trial.”

Briefs of argument were duly filed and exchanged by the parties in accordance with the rules of practice and procedure of this court.

At the hearing of the appeal which came up for hearing on the 13th day of February, 2007, counsel to the parties adopted their respective briefs of argument. Mr. Jacob E. Ochidi, adopted the appellant’s brief dated 25/4/05 filed on 28/4/05 and urged the coul1 to allow the appeal while the learned counsel for the respondent, Mr. Pius Gamde, also adopted the respondent’s brief dated 5/6/05, filed on 7/6/2006 and urged the court to dismiss the appeal and affirm the judgment of the trial court.

The learned counsel for the appellant distilled four issues for determination in this appeal at pages 3 – 4 of the appellant’s brief as follows:

Issue No.1

Whether there was evidence before the trial court to prove beyond reasonable doubt that the substance allegedly recovered from the appellant by men of the NDLEA was indeed cannabis sativa otherwise known as Indian Hemp and that same is a drug similar to cocaine, LSD or heroine. This issue related to ground two of the notice of appeal of the appellant.

Issue No.2

Whether there was evidence before the trial court proves that the substance analyzed by the forensic expert was indeed part of the substance allegedly recovered from the appellant by men of the NDLEA and submitted for expert analysis. This issue relates to ground three of the notice of appeal.

Issue No.3

Was the appellant denied fair trial or in any way prejudiced when the prosecution was allowed by the court to re-open its case on the date fixed for judgment so as to enable the prosecution prove some matters of substance relating to the charge? This issue relates to grounds four and five of the notice of appeal of the appellant.

Issue No.4

Was the sentence passed by the trial court against the appellant excessive having regard to the circumstance of the case? This issue relates to ground six of the notice of appeal of the appellant.”

The respondent’s counsel on the other hand at page 5 of the respondent’s brief, formulated three issues for determination in this appeal, as follows:

“1. Whether at the trial court, the recovered substance was established to be Indian Hemp otherwise known as cannabis sativa, and the guilt of the appellant proved beyond reasonable doubt.

2. Whether or not the appellant was denied a fair hearing or in any way prejudiced at the trial.
3. Whether the sentence imposed by the trial court on the appellant was in conformity with the law.”

Learned counsel for the appellant commenced his argument by reproducing section 10H of the NDLEA (Amendment) Decree No.15 of 1992 under which the appellant was charged and convicted and submitted that in the giving circumstance where vegetable substance is recovered from a suspect, such substance must be subjected to forensic analysis to determine whether or not same is cannabis sativa otherwise known as Indian hemp and that same is a drug similar to cocaine, LSD or heroine. He contended that a conviction under section 10H, cannot be sustained unless there is proof before the trial court, confirming that the recovered substance is indeed cannabis sativa. Relying on the authority of Shehu v. The State (1978) NNLR 82 at 85, learned counsel for the appellant, submitted that before a court of law can admit and make use of the evidence of a witness who claims to be an expert, such a witness must clearly state his qualifications and years of experience and not merely stating the post held by him. Learned counsel for the appellant argued that it is settled law that where there is a failure on the pan of the prosecution to establish the case against the accused beyond reasonable doubt, such an accused is entitled to an acquittal. The appellant’s counsel urged the court to resolve issue No.1 in favour of the appellant.

On issue No.2 of the appellant, it is stated that the trial court in its judgment relied heavily on exhibit “E”, the expert analysis report of the substance in arriving at its conclusion that the substance is cannabis sativa and referred to page 68 of the printed record. It is further submitted that the trial Judge was wrong in law to have placed reliance on the said forensic analysis report when no basis exists to connect the analyst report on the substance with the appellant and urged for that reason that issue No.2 should be resolved in favour of the appellant.

It is submitted on issue No.3 that the appellant was denied fair trial or prejudiced when the trial court allowed the prosecution to re-open its case on a day fixed for judgment and urged the court to also resolve issue No.3 in favour of the appellant.

On his issue No.4, it is submitted that the sentence of 15 years imposed by the trial court was excessive. Learned counsel for the appellant contended that in imposing the sentence the learned trial Judge ought to have taken into cognizance the period already spent by the appellant while awaiting trial and ought to have made the imposed term of imprisonment to have commenced from the date of the appellant’s detention in prison.

In conclusion, learned counsel for the appellant urged the court to allow the appeal, set aside the conviction and sentence and enter a verdict of acquittal.

The learned counsel for the respondent in his written submission, also commenced by referring to the charge which he reproduced in the respondent’s brief and submitted that by the provisions of section 10H of the NDLEA (Amendment) Decree No. 15 of 1992, the following ingredients are required to establish the offence:

“(a) possession of Indian hemp or any “other similar drug.”

(b) without lawful authority.

(c) possession must be within the knowledge of the accused person.”

He stated that in furtherance of proof of the prosecution’s case five witnesses testified and tendered exhibits A1 – 13, B, C, D, E – E2, in evidence. That the trial court considered the entire evidence and the exhibits, particularly exhibits “D” and “E1 – E2” as well as the testimonies of PW1 and PW2 both of whom gave a vivid account of how the appellant was an’ested in possession of 305 kilograms of Indian hemp at Hajiya Halima Area of Sokoto on the 22/3/2004 by NDLEA officers. It is further submitted on the issue of possession, that the onus of being in lawful possession is on the appellant as contemplated by section 142 and 143 of the Evidence Act. See Abdul-Rahaman v. C.O.P (1971) 1 NMLR 87. He argued that the evidence of the prosecution witnesses is credible, placing reliance on Patrick Ofarlete v. The State (2000) 12 NWLR (Pt.681) 415.

According to the learned counsel for the respondent, the critical question of whether the substance recovered is Indian hemp, was answered by the testimonies of PW1 – PW5 on pages 24 – 55 of the printed record, including exhibits A1 – 13, B, C, D, E – E2. It is further submitted that in determining whether or not the prosecution has proved its case beyond reasonable doubt, the totality of the evidence led before the court must be considered as was the case in the instant appeal. See Engineer Gabriel Amala v. The State (2004) 12 NWLR (Pt.888) 520, (2003) FWLR (Pt.159) 1504. He argued that there was credible and reliable evidence placed before the trial court to support the case for the prosecution and the evidence was not challenged or discredited in any way by the appellant and the court relied on it to convict and sentence the appellant in accordance with the law. It is further contended that the Drug Analysis Report was properly tendered before the court in accordance with section 42 of the Evidence Act without any objection. The trial court being satisfied that the forensic report was from the proper source was right in admitting and acting on it.

On the issue of the right of fair hearing, it is submitted that it is evident from the record that the appellant was in court and was given full opportunity to participate and indeed participated in the proceedings but did not object to the tendering of exhibits E – E2 as shown at pages 59, 60 and 61 of the printed record. The learned respondent counsel argued that the sentence passed on the appellant by the trial court for being in possession of 305 kilograms of Indian hemp without lawful authority contrary to section 10H of the NDLEA (Amendment) Decree No.15 of 1992 was not excessive but consistent with the provisions of section 10H of NDLEA (Amendment) Decree No.15 of 1992 and that an appellate court does not ordinarily interfere with a sentence imposed by the trial court unless the appellate court is satisfied that the trial court has erred in imposing the sentence. Pointing out that sentencing is at the discretion of trial court which exercises its discretion judicially and judiciously. See Laja v. Police (1961) 1 All NLR 715: Uwakwe v. The State (1974) 9 SC 25.

In conclusion, the learned counsel for the respondent urged the court to dismiss the appeal and affirm the conviction and sentence passed on the appellant.

After a careful examination of the issues formulated for determination in this appeal, I have found it necessary to frame or reframe the issues for determination in this appeal. It is consistent with the liberal approach which is not uncommon for an appellate court to formulate an issue or issues for determination based on grounds of appeal filed where the issues formulated by the parties are inadequate for the determination of appeal. See Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523; Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt.276) 410; Sha (Jnr) v. Kwan (2000) 8 NWLR (Pt.670) 685 at 708 – 709.

It is in this exercise of the powers given to the Court of Appeal, that I now frame the issue below for the determination of this appeal as follows:

“Whether or not there is credible evidence adduced before the trial court by the prosecution to support the judgment of the learned trial court?”

It is a cardinal principle of our criminal law that in all cases, the burden of proving that any person has been guilty of a crime or wrongful act, subject to certain exceptions is on the prosecution; and if the commission of a crime is directly in issue in any civil or criminal proceedings, it must be proved beyond any reasonable doubt. See section 138 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990, which provides as follows;

“138(1) If the commission of a crime by a party to any proceedings directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt.” See Onafowokan v. The State (1987) 3 NWLR (Pt.61) 544 -545.It is pertinent to reproduce some portions of the evidence in the determination of this appeal. A total of five witnesses testified for the prosecutions while the appellant, as the accused gave evidence in his own defence.

PW1, Abubakar Yakubu Sakaba testified as follows;

“PW.1, Adult, male, Moslem, affirm, my names are Abubakar Yakubu Sakaba:

Isa Mohammed

I want to intimate the court that I have just been briefed about this case. I am yet to have interview with the accused person so after PW1 testifies I will ask for a date for cross-examination.

PW1

My names are Abubakar Yakubu Sakaba. I work with NDLEA Sokoto command. I am ANS II. My schedule of duties includes exhibit officer of the command. As exhibit officer of the command. I weigh, pretest, substance, packages and sealed and keep exhibits under my custody. I know this accused person he is Godwin Chukwuma a.k.a Goddy. He was arrested on 22/3/2004 G at Mabera Area here in Sokoto. He was brought in exhibit office to me with five Ghana must go and eight other bags containing Indian hemp. The Indian hemp was pretested and was weighed and it weighed 305 kilograms in his presence and all necessary forms i.e. exhibits forms were filed and I signed each, accused person also thump print and signed each form with dates after pre-tested the substance with United Nations Testing Kits and it prove positive for cannabis sativa. If I see each bag I can identify the five Ghana must go bags are biggest size while the eight other bags some were big and others small.”

“Cross-Examination

1. My names are Abubakar Yakubu Sakaba.
2. It did not take me much time to repack and pre-test the substance which proved positive for cannabis sativa i.e. Indian hemp.
3. It took me 30 minutes to weight pretest and re-pack all the recovered substance.
4. Yes, accused person was present through the process of pretesting, repacking weighing etc and he signed and thump-print all the forms.
5. I did this on the same date of arrest i.e. 22/03/04.
6. After all these, I wrote out accused’s name each date on each bag packed up on a card board paper I indicated name of the accused person age type of exhibit weight of the exhibit date of arrest.
7. The cardboard paper I attached it to one of the exhibit bag.
8. Each bag has the name and date.
9. No. the cardboard paper was not attached to exhibit A1 – 3.”

“PW.2: My names are Danguguwa Haruna Adamu. I work with NDLEA Sokoto State Command, my rank is Deputy Superintendent Narcotics (DSN) at the NDLEA I am principal staff officer operation and intelligence. I know this accused person. On 22/3/2004, I led a team of NDLEA operatives to the house and premises of the accused person Godwin Chukwuma also known as Goddy. After searching the house and premises. I arrested the accused person after recovering and seizing some loose quantity of dry leaves suspected to be cannabis sativa concealed inside a bagco sack.

The house and premises are at Mabera Area in Sokoto Township. From there, I took him and the exhibit and he led us to his Warehouse in a compound at Hajiya Halima Area here in Sokoto. Where we open the warehouse in his presence and recovered more bags of dry leaves suspected to be cannabis sativa concealed in “Ghana must Go” bags and bagco sacks respectively.

We immediately seized these bags as exhibits and I took the accused person together with the exhibits to the NDLEA office Arkila Area Sokoto for further investigation. At the office, the exhibit officer Abubakar Yakubu Sakaba pretested the dry leaves suspected to be Indian hemp in my presence, and witness by the accused person. The result of the pretest proved positive for cannabis sativa and the same exhibit officer weighed the whole exhibits using standard scale and it weighed a total of 305 kg.

The exhibit officer prepared the exhibit forms in respect of the seized exhibits 1 and the accused person signed each of the forms. After the accused person wrote his name and signed each exhibit form, which I witnessed, 1 also wrote my name on each and I signed each form I can identify these bags used in concealing the substance recovered.

1. By the name of the accused person written on these bags.

2 By the total weight which was 305kg.

3. By the date of arrest 22/3/2004.
4. Type of bags used witness was shown exhibits A1 – 13 and he identified each.

Each of the exhibit forms have my name and signature on it and the name of the accused person is also written on each and his signature and accused’s thump print is on each. Witness was shown exhibits B, C & D and he identified each.

After all these, the accused person was detained in the main cell of NDLEA for further investigation. The recovered substance cannabis sativa were in all concealed in five Ghana must go bags and other eight bags making 13 bags in all.”

“Cross-Examination

1. I arrested accused person at his residence at Mabera Area here in Sokoto.
2. Yes at his house where he resides.
3. No, 1 went to Hajiya Halima area when accused person took me and my team to his warehouse at Hajiya Halima Area Sokoto. This was after his arrest.
4. It was in the presence of the accused person after he showed us his warehouse that we opened the warehouse.
5. We opened it with the key which accused person gave me.
6. We went to the warehouse together with the accused person. He was the one who showed us the warehouse.
7. Accused person clearly admitted that the warehouse was his own private warehouse.
8. The accused warehouse was residential compound one of the rooms the accused person converted it into his warehouse.”

Thereafter PW.3 Magaji Samuel, Assistant Superintendent Narcotics (ASN) testified at pages 51 – 52, PW4, Kehinde Bashir Chief Narcotics Agent (CNA) testified at pages 53 – 54 while PW5 Samson D. Pada, Chief Narcotics Agent, (CNA) testified at pages 54 – 55.

The evidence of PW.3, PW.4 and PW.5 are substantially the same as that of PW1 and PW2 hence it is unnecessary to reproduce same.

On 13/7/04, when the case came up for defence, appellant as the accused, applied for a further adjournment of the case to call his defence witnesses, as shown at page 56 of the printed record. The learned trial Judge acceded to the request of the appellant and further adjourned the case to 28/7/04 for the defence.

At pages 51 – 58, the appellant testified as follows:

“Accused: I would like to state my own side of the story since I do not have any witness to call apart from myself. My lawyer refused to co-operate so I disengaged him I don’t want him any more. I am giving this statement as an accused person and not as witness to myself what I know is that on 22/3/04 I was in my house at Mabera Sokoto about three people armed with guns entered my house around 3.00pm in the afternoon.

They identified themselves as officers of NDLEA Sokoto Command and they said they got information that I am selling Indian hemp at Mabera Area and they come for searching. After their searching of my house they said they were not satisfied. So they will take me to their office when they handcuffed me and put me in the vehicle to their office.

At their office, I found all these goods they now brought to court and I was also brought to court together with these goods after eight days. That is all I know about this case and I do not have any witness to call that is all.”

As can be seen from the printed record, initially the appellant as accused was represented by two learned counsel Olodo Esq., and Isa Mohammed, Esq., but after PW1 and PW.2 testified and were cross-examined by the counsel to the appellant, at pages 24 – 26 and 45 – 46 respectively of the printed record, the counsel to the appellant appear to have abandoned the case.

At page 50 of the printed record, the appellant as accused said:

“Accused person: I don’t know why my lawyer refused to come may be he has withdrawn so we can go ahead and forget about him.”

At page 59 of the printed record before the delivery of the judgment, learned counsel for prosecution, Ibrahim Dangana Esq., in his own words said:

“The NDLEA Sakata command is in receipt of a large brown envelope annexed to it, a Drug Analysis Report dated 19/8/2004 by the wordings of section 42(1)(a) Evidence Act, I apply to tender this exhibit from the bar.

Accused: No objection.

Court: The brown envelope sealed and labeled NDLEA Drug Analysis Report dated 19/8/2004 being public document admission from the bar is hereby admitted into evidence and marked as exhibit ‘E” to be unsealed in court”

I took the pain to reproduce some portions of the proceedings purposely because of the impression given by the learned counsel for the appellant that, the appellant was not given a fair trial and that exhibits which -are inadmissible in evidence were admitted by the learned trial Judge. Since we are all bound by the record, the record has answered the issue raised by the learned counsel for the appellant as the appellant was initially represented by counsel until he decided to proceed with his case without a counsel. It should be noted that all the exhibits tendered before the lower court were admitted in evidence without any objection either from the appellant’s counsel or the appellant.

On the complaints of the learned counsel for the appellant who in my view made an attempt to re-open the case by raising issues, challenging the admissibility of the documents in evidence on appeal when in fact the said documents were admitted in evidence by the learned trial Judge without any objection, I rely on the decisions of the Supreme Court of Nigeria in Owie v. Ighiwi (2005) 5 NWLR (Pt.917) 184 at 220, where it was held that the wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the Court of Appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision cannot be effected if such evidence had not been admitted. See Francis Arinze v. First Bank of Nigeria Ltd. (2000) 1 NWLR (Pt.639) 78 at 89. Section 227(1) of the Evidence Act, Cap. 112, Laws of the Federation 1990 reads:

“227(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”

However, it is not even necessary to resort to the case of the provisions of section 227(1) of the Evidence Act, in this appeal as the documents admitted in evidence are admissible documents and were properly admitted as borne out by the printed record.

Apart from the fact that there is ample evidence adduced by the prosecution in support of its case which has been proved beyond reasonable doubt against the appellant as required by section 138 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, there is also the confessional statement of the appellant admitted in evidence marked exhibit “A” where the appellant admitted committing the offence. In Igago v. State (1999) 14 NWLR (Pt.637) 1 at 16, the Supreme Court of Nigeria held that a confession is an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime. See Ikemson v. State (1989) 3 NWLR (Pt.110) 455; Shazali v. State (1988) 5 NWLR (Pt.93) 164; Nwosu v. State (1998) 8 NWLR (Pt.562) 433. See also section 27(1) of the Evidence Act, Cap.112, Laws of the Federation of Nigeria, 1990. Sections 142 and 143 of the Evidence Act provides:

“142. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

“143. 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, bye-law, regulation, or other document creating the offence, may be proved by the accused, but need not be specified or negatived in the charge, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the prosecution.”

It is not every error by a lower court that will warrant the success of an appeal. For an error to lead to the reversal of a judgment it must be grave and crucial to the extent that it has occasioned a miscarriage of justice. See Fadlallah v.Arewa Textiles Ltd. (1997) 8 NWLR (Pt. 518) 546; Ayoola v. Adebayo & Ors. (1969) 1 All NLR 159 and Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616.

Assuming that exhibit E was wrongly admitted; I still hold that the prosecution has adduced sufficient evidence in proof of the offence charged, hence no cogent reasons have been given to warrant interfering with the judgment.

The sole issue formulated by me having regard to what has been stated above, is therefore answered in the affirmative in that the evidence adduced by the prosecution supports the judgment of the learned trial Judge.

In the result, I hold that the appeal lacks merit and must be and is hereby dismissed. The judgment of the Federal High Court, Sokoto, in suit No.FIHC/S/20C/2004 delivered on the 21st day of September, 2004, by Adamu Hobon, J, of the Federal High Court, is hereby affirmed by me.

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Other Citations: (2007)LCN/2351(CA)