Chukwudi Ugwanyi V. Federal Republic Of Nigeria (2010)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
The Appellant in this appeal was charged before the Federal High Court, Sokoto Division, sitting at Sokoto. He faced a one count charge of knowingly being in possession of Indian Hemp otherwise known as cannabis sativa without lawful authority. His plea of not guilty was initially taken on 14th November, 2001. Thereafter, on 16th July, 2002 and 18th July, 2002, two prosecution witnesses gave evidence in the matter. Various exhibits were also tendered and admitted. For reasons contained in the record of appeal and presumably, that of transfer of the trial judge, Lambo, J. the Appellant’s plea was taken afresh on 13th February, 2004 before Hobon, J. and the trial began de novo. Again the Appellant pleaded not guilty to a substituted one count charge, which reads:-
“That you Chukwudi Ugwanyi (m) 50 years of age, of No. 4 Arowojobe Street Onigbongbo – Maryland, Lagos on or about the 17th November, 2000 at Bodinga along Sokoto-Yauri Road, Sokoto within the jurisdiction of this Honourable Court, and without lawful authority had in your possession 26 kilogrammes of Indian Hemp otherwise known as Cannabis Sativa, a Narcotic Drug similar to cocaine and Heroine and thereby committed an offence contrary to and punishable under section 10 H of the National Drug Law Enforcement agency (Amendment) Act No. 15 of 1992.”
Again, at the recommenced trial, two prosecution witnesses testified for the prosecution. PW1 – Bitrus Ajiku Damuda, Chief Narcotic Agent, NDLEA and PW2 – Ibrahim Musa, Assistant Superintendent of Narcotic 1. Also, exhibits were tendered and admitted before the trial court. They are: the certificate of testing analysis, packing of substance forms and request for scientific aid, marked as Exhibits A, B and C respectively. The recovered substance in a carton containing twelve wrapped and sellotaped bundles – admitted and marked as Exhibits D1 – D12 respectively. The sealed envelope opened in court, the report and transparent evidence pouch with substances, feature and descriptions of the Appellant are marked as Exhibits E, E1 and E2 respectively. The report Exhibit E1 certified the substance analysed to be Indian Hemp of the genus cannabis sativa.
At the close of prosecution’s case, the Appellant entered into his defence and gave evidence as DW1. At the close of Appellant’s defence, both the learned counsel for the prosecution and the defence filed and exchanged written addresses which were subsequently adopted by them. At the conclusion of the trial on 21st June, 2005, the learned trial judge in his decision found the Appellant guilty of the offence charged, convicted and sentenced him to (15) fifteen years imprisonment without option of fine.
The Appellant was dissatisfied with the said decision of the trial court. His notice of appeal to this Court dated 15th July, 2005 contained three grounds of appeal. During the hearing of the appeal before the Court on 15th October, 2009, Magnus Ihejirika Esq., the learned counsel for the Appellant relied on and adopted their brief of argument filed on 16th March 2006. In the said Appellant’s brief, one issue was identified for determination in this appeal. It goes thus:
‘Whether having regard to the entire facts and circumstances of this case, including the nature of evidence adduced, the findings and judgment of the lower court is not perverse and based on proper evaluation and appraisal of the evidence adduced at the trial.”
The Respondent’s brief of argument was settled by Pius Nuhu Gamde Esq., and the same was deemed properly filed and served by order of this Court sought and granted on 13th January, 2009. He also relied on and adopted the said brief, wherein three issues were curiously referred to as having been formulated by the Appellant for the determination of this appeal. They are as follows:
“1. Whether the decision of the trial court is unreasonable, unwarranted and cannot be supported by evidence.
2. Whether the decision of the trial court is perverse.
3. Whether the trial court erred in law by admitting and relying on the Forensic Science Report i.e. Exhibit E in convicting the Appellant.”
Nothing of the sort happened. Looking at the grounds of appeal filed by the appellant in his notice of appeal in this matter, it is obvious that the only issue raised in his brief was properly distilled from the grounds of appeal. I shall therefore consider the said sole issue for the determination of the instant appeal.
Ingredients of the offence charged in this appeal are:-
“(i) Possession or using the prohibited substance/drug.
(ii) Doing so without lawful authority.
(iii) Doing so knowingly.”
In convicting the Appellant, the learned trial judge after an exhaustive review of the evidence adduced before him by both parties herein, coupled with an extensive consideration of the applicable laws thereon, stated thus:
“Upon the totality of evidence before the court there is only one conclusion and that is the prosecutions evidence ought to be believed and the accused’s evidence is not evidence of truth and hence ought to be disbelieved. Consequently the prosecution has proved the case of possession of Indian hemp beyond reasonable doubt against the accused person and the accused person has failed to rebut and bring himself within the defences or exceptions allowed under the Law creating the offence.
Against this finding, the learned counsel for the Appellant submitted that the learned trial judge did not give adequate considerations to material contradictions in the evidence of PW2 – Ibrahim Musa, with regards to the handling of the prohibited substance and scientific analysis report thereon. He argued that there was delay and a broken link in the chain of custody and of the sequences of events from the time of arrest of the Appellant and events which occurred thereafter, so that there is no opportunity for any body to intermeddle with the substance or the substance being substituted with another. It was also his contention, that there was inability on the part of the prosecution to prove the offence charged beyond reasonable doubt by the failure of the prosecution to prove essential ingredients of the offence in question. Finally, it was his submission that the trial court did not consider the defence of the Appellant regarding his denial of ownership and possession of the prohibited drugs, coupled with improper or inadequate appraisal of the entire evidence adduced at the trial, thereby leading to non – resolution of doubts raised therein in favour of the Appellant. Reliance was placed regarding these submissions on the cases of ISHOLA V. THE STATE (1969) 1 N.M.L.R. 259; FOLORUNSHO V. THE STATE (1993) 8 NWLR (PT 313) 612 and THE QUEEN V. MARY ANTHONY & ANOR. (1964) N.M.L.R. 74. We were urged to allow the appeal, quash the conviction, discharge and acquit the Appellant.
On his part, the learned counsel for the Respondent maintained that the prosecution proved its cases against the Appellant beyond reasonable doubt. Furthermore, that the findings of the trial court thereon was not perverse, moreso, when the essential ingredients of the offence charged were proved beyond reasonable doubt. It was his contention, that the evidence adduced before the trial court established possession or ownership of the prohibited substance in the Appellant, with an unbroken chain of custody which established that the recovered drug or samples sent for forensic analysis could not have been tampered with, going by the evidence adduced before the trial court, which remained largely unchallenged. It was then submitted by the learned Respondent’s counsel that the Appellant failed to exculpate himself by proving either that he was not in possession knowingly or that he has requisite lawful authority regarding his possession of the prohibited substance. The cases of ABDULRAHMAN V. C.O.P. (1971) 1 N.M.L.R. 87; ELIJAH AMEH IKEWU V. FEDERAL REPUBLIC OF NIGERIA (2005) ALL FWLR (PT. 254) 858; THE QUEEN V. AROGUNDADE (1964) NNLR 70; ALAGBADION V. THE STATE (2000) 7 NWLR (Pt. 666) 686 and PATRICK OFORLETE V. THE STATE (2000) 12 NWLR (Pt. 681) 413 were cited in support of these submissions.
Invariably, in all criminal cases, the onerous burden of proving the offence or offences preferred against the accused person beyond reasonable doubt lies on the prosecution. How this is discharged, depends largely on the nature or type of offence involved, the given set of facts and circumstances of each case.
What is more, proof beyond reasonable doubt is not by any means, proof beyond any iota or shadow of doubt. The phrase connotes proof that has attained that level of certainty, credibility and assuredness which leaves the court without any vestige of lingering doubts regarding culpability or otherwise of the accused person and with regards to the particular offence with which he has been charged.
Again, in determining whether the prosecution has established a case beyond reasonable doubt against the accused person, the evidence adduced by the prosecution to prove the essential ingredients of the offence charged, must be examined together and in its entirety. Benefit of doubt if any, is resolved in favour of the accused person.
Thus, if the accused person gives an account of the event or incident which is consistent with his innocence and could be true or is not proved to be otherwise, such an accused person is entitled to be discharged and acquitted. This is because, in such an instance a doubt has been raised with regards to his guilt as the same will be incapable of being proved beyond reasonable doubt. See CHRISTOPHER OKOLO V. C.O.P. (1977) NNLR 1. Indeed, an accused person should not be convicted simply because the court finds his account or version of the incident to be incredible or an outright lie. Despite such a scenario, the court still has the bounden duty to examine the totality of evidence adduced before it in order to ascertain whether the guilt of the accused person has been established beyond reasonable doubt. See AGUNBIADE V. THE STATE (1999) 4 NWLR (Pt. 599) 391.
In the instant case, after giving a summation of the evidence adduced and his reasoning thereon, the learned trial judge stated thus:-
“In the instant case the unchallenged evidence of persons who actually participated in the search and the arrest and recovery of the substance from the scene of crime up to the office where the test of the substance, weighing, packaging, and sealing were conducted ought to be accepted and relied upon. See the Supreme Court case in ALAGBADION V. THE STATE (2000) 7 NWLR (Pt. 666) 686.”
The learned counsel for the Appellant in his brief, argued and juxtaposed the evidence given by PW2 during the initial trial before Lambo, J. regarding the packaging and sending the substance recovered from the Appellant to Lagos for scientific examination. The material and relevant piece of evidence in this regard is the testimony of PW2 during the trial de novo before Hobon, J and not otherwise. That is not proper and the argument thereon is accordingly discountenanced by me. It is however to be noted that under cross examination PW2 answered thus:
“Yes, I took two grammes out of the quantity for my test and the one I will use for sending for further laboratory analysis at Lagos.”
(See Page 105 of the record of appeal) Again, Exhibit E, the sealed envelope which contained transparent evidence pouch with substances, feature and description of the Appellant and case number was marked Exhibit E2. It was opened and the contents read in open court.
In ISHOLA V. THE STATE (supra), it was held inter alia that: –
“The prosecution had a duty to prove that once the plant was taken from the possession of the accused every possibility whatsoever of its being tampered with or its being substituted with another had been excluded: once an opportunity existed for this, the chain snaps and a reasonable doubt would exist as to whether the plant that was taken from the possession of the accused was the one that was analysed and known to be of the genus cannabis.
In the instant case, the two prosecution witnesses proffered evidence that the prohibited substance recovered from the Appellant was packed, kept in such a way, place and with the exhibit keeper for the duration that existed between the time the Appellant was apprehended with the substance and the time it was sent for scientific examination. That all these actions were taken in the presence of the Appellant. Furthermore, that the substance could not have been tampered with or substituted by anybody. There was thus positive proof that the substance was kept in life custody throughout the relevant and material period in this matter. Additionally, Exhibit E1 serves as further confirmation of Exhibit A which certified that the recovered prohibited drug tested positive to be cannabis sativa.
It can be garnered from this piece of evidence that what PW2 took out of the recovered substance was what he used to conduct the field test which proved positive and what was sent to Lagos for further analysis/examination. Hence, there is no unsolved riddle as argued by the learned counsel for the Appellant with regards to where PW2 obtained the samples which he tested and the one sent to Lagos. In the given circumstances of this case, the delay or duration pertaining to the receipt of Exhibit E1 cannot be said to be damaging and fundamentally affecting the evidence adduced by the prosecution in this matter. I do not find that the evidence adduced by the prosecution materially contradicts in this matter.
The learned counsel for the Appellant argued the point that since the vehicle in which the appellant was allegedly found had other persons such as the driver, conductor and other passengers; such material witnesses ought to have been called by the prosecution to obviate the doubt as to whether the prohibited substance belonged to him. Reference and reliance was placed on THE QUEEN V. MARY ANTHONY & ANOR. (1964) NNLR 74. Also, citing GUKAS V. JOS INTERNATIONAL BREWRIES LTD. (1991) 6 NWLR (Pt. 199) 616, we were urged to interfere with the findings of fact made by the lower court in this appeal.
The law is settled that the right of the prosecution to call witnesses required to prove its case is not a mere privilege but a prerogative. Hence, the prosecution is not obliged to call a host of or particular witnesses. All what is required from the prosecution is to call sufficient material witnesses to prove its case and in so doing, it has discretion in the matter. Thus, even one credible witness, if believed is enough. See NWAEZE V. THE STATE (1996) 2 NWLR (Pt. 428) 1. Regarding the issue or ingredient of possession, it is correct to argue as the learned counsel for the Appellant did, that there are two versions with respect to Appellant’s arrest vis-a-vis Exhibits D1 – D12. Going by the testimonies contained in the record of appeal, I must say, that while the version stated by PW1 is believable, that of the Appellant does not have the ring of truth around it. It must have been drummed up for his defence and a poor and porous one for that matter.
In the instant case, there are no material contradictions or inconsistencies which call for resolution by the trial court. Right from the point of arrest, the Appellant identified the carton containing the prohibited substance and which he described as used video machines as his. Again, he was not the only passenger in the vehicle that was searched. Indeed, he was the third passenger to be so searched. Hence, no doubt existed as to whether the box in which the substance was found belonged to the Appellant and there was thus nothing in the form of a doubt to be resolved
by the trial court.
I am thus of the humble but firm view point that the evidence adduced by the Respondent herein against the Appellant in this appeal is strong as to leave only a remote possibility in his favour and which said remote possibility can be discountenanced or dismissed with the notion, that “of course it is possible but not in the least probable.” Thus the case against the Appellant can be said to have been proved beyond reasonable doubt. See AGBO V. THE STATE (2006) 6 NWLR (Pt. 977) 545.
It is noteworthy, that it is not every trivial inconsistency or contradiction in the evidence of the prosecution witness or witnesses that is fatal to its case. It is only when such an inconsistency or contradiction is substantial and fundamental to the main issues in question before the court and thereby engenders creation of some elemental doubt in the mind of the trial court that an accused person is entitled to benefit therefrom. See THEOPHILUS V. THE STATE (1996) 7 NWLR (Pt. 463) 686.
The lower court to my mind arrived at a just decision which is not perverse in this appeal. I also do not share the sentiment expressed by the learned counsel for the Appellant that the learned trial judge took into consideration, the fact that the Appellant jumped bail and was alleged to have been convicted in the Republic of Niger for a similar offence as the one with which the Appellant was charged before him and that this prejudiced his mind in the delivery of his judgment and passing of sentence. It is the law, that the prosecution is entitled to inform the court after conviction of any record of previous conviction of the convict before it.
Thus, the trial court was in order when it admitted the certificate of conviction of the Appellant in Niger as Exhibits F1 – F3 respectively and after taking into consideration, the moving and powerful allocutus made on.
Other Citations: (2010)LCN/3525(CA)
