Yahaya Umar V. Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
The Appellant was arraigned and prosecuted at the Federal High Court sitting in Kaduna Division. Appellant was convicted and sentenced to two years imprisonment in a judgment delivered on 10th day of July, 2014. The said conviction and sentence was confirmed by the Court of Appeal Kaduna Division in its Judgment delivered on the 5th day of February, 2016. Peeved by this Judgment, the Appellant further appealed to this Court.
FACTS OF THE CASE
On or about 23rd July, 2013 based on information, officials of the National Drug Law Enforcement Agency went to the House of the Appellant. The officers searched his house in his presence and that of his family and discovered some wraps of Cannabis Sativa in his bedroom and another quantity in a sack in his store, whereupon he was arrested and taken to their office in Zaria. At the NDLEA office, the substance recovered from the Appellant was tested in his presence and same tested positive for Cannabis Sativa which, he confirmed by thumb printing Exhibit B (certificate of test analysis form). The said substance were subsequently tested forensically
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and they also tested positive for Cannabis Sativa as evidenced by Exhibit “F” the drug analysis report signed by an Expert.
Upon his arrest, the Appellant voluntarily made a statement to the investigating officer wherein he confessed to dealing in Cannabis Sativa. The Appellant was subsequently arraigned and tried at trial Court (Federal High Court Kaduna). At the trial, the Appellant denied making the Confessional Statement the Hon. Court after reviewing the circumstance of the said Confessional Statement, admitted same as Exhibit A’. The prosecution called four (4) witnessed and tendered several Exhibits including the Cannabis – Sativa weighing 6.350 Kilograms.
At the close of the prosecution’s case, the Appellant testified on his behalf. On 10th July, 2014 Judgment was delivered by the trial Court, and the Appellant was sentenced to imprisonment. The said sentence was affirmed by the Court of Appeal in a Judgment delivered on the 5th day of February, 2016. By a Notice of Appeal on pages 129-131 containing four (4) grounds of Appeal filed on the 2nd March, 2016 the Appellant filed this appeal before this Court.
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From the said four (4) grounds of appeal, the Appellant formulated three issues for determination in this appeal Viz:
“(1) Whether Exhibit ‘A’ (the alleged Confessional Statement of the Appellant) is inadmissible and therefore wrong for the lower Court to have relied on same to convict and sentenced the Appellant to two (2) years imprisonment.
(2) Whether the necessary ingredients required by the Law to be established by the prosecution had been met to warrant/sustain the conviction and sentence of the Appellant of unlawful dealing in 6.350 Kilograms of Cannabis Sativa, a narcotic drug.(Grounds 1, & 2)
(3) Whether the decision of the Lower Court Convicting and Sentence the Appellant to two (2) years imprisonment for unlawful dealing in 6.350 Kilograms of Cannabis Sativa, a narcotic drug is not unwarranted unreasonable and cannot be supported having regards to the evidence adduced.”
The Respondent on its part formulated one (1) issue for the determination of this appeal to wit: –
“Whether the evidence adduced at the Lower Court established the guilt of the Appellant beyond reasonable doubt.”
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After the examination of the three (3) issues as proposed by the Appellant, for the determination of this appeal, as against the Sole Issue as proposed by the Respondent; the appeal shall be determined on the Respondents Sole Issue to wit:-
“Whether the evidence adduced at the trial Court established the guilt of the Appellant beyond reasonable doubt.”
CONSIDERATION AND RESOLUTION OF THE ISSUE
The Contention of the learned Counsel to the Appellant is based on the standard of proof required in Criminal cases. The Appellant was not under any obligation to prove his innocence due to the presumption of innocence he enjoys under Section 36(5) of the Constitution of the Federal Republic of Nigeria. It was submitted that Exhibit ‘A’ (the alleged Confessional Statement) was inadmissible at the time the Trial Court admitted same and relied on same to convict and sentence the Appellant. The reasons are not farfetched (a) That – lines 6 – B of Exhibit’A’ it was clearly stated therein that Appellant is an illiterate (b) Speaks and understand Hausa Language, cannot write in both Hausa and English (c) Appellant only thump printed on Exhibit ‘A’ but did not signed it (d) There was no illiterate Jurat.
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On the said Exhibit ‘A’ yet the trial Court not only admitted same in evidence, but relied heavily on same to Convict and Sentence the Appellant. This is a serious error committed by the trial Court. See:- UMARU VS THE STATE (2009) 8 NWLR (Pt. 1142) 134 at 142 paragraphs E-G; SUBERU VS THE STATE (2010) 8 NWLR (Pt.1197) 586 at 591 – 592.
Learned counsel for the Appellant further submitted that, the prosecution failed to prove beyond reasonable doubt that the alleged drug was recovered in the room of the Appellant and no other. It is in evidence that the Appellant had rented out the room in which the NDLEA officers found the said drug to Usman from Kanis and the room was the only room that is not locked amongst the ones that were searched by the officers. The NDLEA officers failed to investigate this information, but instead paid heavy reliance on the alleged Confessional Statement.
Learned counsel finally submitted that, Exhibit ‘A’ upon which the lower Court relied on to convict and sentenced the Appellant is inadmissible in that the Appellant is an illiterate and the alleged Confessional Statement (Exhibit ‘A) was not interpreted to him in a language
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that he understands. The purported signature of the Appellant is not possible which creates the doubt whether it was the Appellant or not who signed same. See:- SALE VS THE STATE (2016) 3 NWLR (Pt. 1499) 392 at 402. He urges the Court to allow the appeal.
On the side of the Respondent, it is submitted that, the Law is trite, there are three (3) ways to prove or establish the commission of an offence by an accused person. The guilt can be proved by: –
“(a) The Confessional Statement of the accused person or
(b) Circumstantial evidence or
(c) Evidence of an eye witness or witness of the commission of the crime.”
See:- IGABELE VS THE STATE (2006) 4 NWLR (Pt. 975) 100 at 130; LORI VS THE STATE (1980) 8-11 SC 81; EMEKA VS THE STATE (2001) 14 NWLR (Pt. 734) 666.
To prove the commission of an offence under Section 11 (c) of the NDLEA Act, the prosecution are the ones to prove the following:-
“(i) That the accused (the appellant) was found to be in possession of substance (weeds etc) suspected to be Cannabis Sativa (Indian Hemp).
(ii) That what was found with the appellant was scientifically proved to be Cannabis Sativa (Indian Hemp), and
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(iii) The appellant had no lawful authority to be in possession of or deal with such substance i.e.Cannabis Sativa (Indian Hemp).”
See:- FEDERAL REPUBLIC OF NIGERIA VS IWEKA (2011)12 SCNJ (Pt.11) 785 at 812 and CHUKWUMA VS FEDERAL REPUBLIC OF NIGERIA (2011) 5 SCNJ 40 at 56.
Learned counsel submitted further that, the extra judicial statement of the Appellant which was tendered and admitted as Exhibit’A’ even though at the trial, the Appellant took objection to the admissibility on the ground that, he made his statement in Hausa Language, he did not sign but thumb printed all of which goes to the weight to be attached to same not admissibility. See:- HASSAN vs THE STATE (1989) All NLR 2511; IKEMSON vs THE STATE (1989) 3 NWLR (Pt.110) 45; GIRA vs THE STATE (1996) 4 NWLR (Pt. 443) 373 at 387; KOIKI vs THE STATE (1976) 4 SC 107; OLABODE VS THE STATE (2009) 11 NWLR (Pt.1152) 254 at 273; AKPA vs THE STATE (2008) 14 NWLR (Pt. 1106) 72 at 92 Paragraph D.
Learned counsel submitted finally that Exhibit ‘F’ which is the Drug Analysis Report which confirms that the substance found in possession of the Appellant was Cannabis Sativa
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i.e. Indian Hemp. A Government Chemist and Forensic Analyst signed Exhibit accordingly by virtue of Section 55 of the Evidence Act 2011 Exhibit ‘F’ is conclusive evidence of the fact that what was found in possession of the Appellant was Cannabis Sativa i.e. Indian Hemp.
COURT’S RESOLUTION
Upon due consideration of the arguments presented by counsel in this appeal, the evidence presented at the trial vis a vis the Judgment appealed against, it is the view of this Court that the totality of the evidence presented in this case leaves this Court with little or no room to arrive at a different conclusion with the trial and lower Court. This stems from the fact that the duty of Court, is to interpret the statute in accordance with the intention of the law makers. In UGWU VS ARARUME (2007) 12 NWLR (Pt. 1048) 367 at 498 this Court stated thus:-
“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declares the intention of the legislature.”
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Courts generally have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the course of substantial justice. See:- MAKERI SMELTTNG CO. LTD. VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt. 766) 447 at476-477.
“The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”
See also AJAKAIYE VS IDEHIA (1994) 8 NWLR (Pt. 364) 504, ARTRAIND LTD VS NBCI (1997) 1 NWLR (Pt. 483) 574, DAKAT VS DASHE (1997) 12 NWLR (Pt. 531) 46, BENSON VS NIGERIA AGIP CO. LTD (1982) 5 S.C1.
The law is that the Supreme Court will not interfere with concurrent findings of facts made by the trial Court and the Court of Appeal unless such findings are perverse; or are not supported by the evidence; or are reached as a result
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of a wrong approach to the evidence; or as a result of a wrong application of evidence; or as a result of a wrong application of any principle of substantive law or procedure. SeeARABAMBI VS ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt. 959) 1 per Onnoghen, J.S.C (Pt. 46, C-E). See also OCHIBA VS THE STATE 2011 12 SC (Pt. IV) p. 79″ per Rhodes-Vivour, J.S.C. (pp.51-52, paras. F-B). See also CAMEROON AIRLINES VS OTUTUIZU 2011 12 SC (Pt.III) P.200; OLOWU VS NIG. NAVY 2011 12 SC (Pt. III) page 1; AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt.II) P.98.
The above finding also becomes inevitable given the provisions of Section 222 of the CPC to the effect that:
“No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.”
Also compelling are the provisions of 288 and 382 of the CPC, which state respectively (repeated for emphasis):
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SECTION 288 OF THE CPC
“A Court exercising appellate jurisdiction shall not in exercise of such jurisdiction interfere with the finding or sentence or other order of the lower Court on the ground that only that evidence has been wrongly admitted or that there has been a technical irregularity in procedure, unless it is satisfied that a failure of justice has been occasioned by such admission or irregularity.”
SECTION 382 OF THE CPC
“Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or reviewed on account of any error, omission or irregularity in the appeal or reviewed on account of any error, omission or irregularity in the complaint, summons, warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Criminal Procedure Code unless the Appeal Court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.”
Moreover, by virtue of the provisions of Section 28 of the Evidence Act, Confessional Statement is tenable and admissible.
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The Section describes a Confessional Statement thus:
“A confession is an admission made at any time by a person, charged with a crime tending to show or suggest the inference that he committed the crime.”
Confessional Statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by Confessional Statement, circumstantial evidence and evidence of an eye witness. A Confessional Statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice. See for example PATRICK IKEMSON & 2 ORS. VS THE STATE (1989) 3 NWLR (Pt. 110) 455 at 476 paras. D; JOSEPH IDOWU VS THE STATE (2000) 7 SC 50 at 62; (2000) 12 NWLR (Pt. 680), at 48, NKWUDA EDAMINE VS THE STATE (1996) 3 NWLR (Pt. 438) 530 at 537 paras. D-E; SAMUEL THEOPHILUS VS THE STATE (1996) 1 NWLR (Pt. 423) page 139 at 155 paras. A-B; and AWOPEJU VS THE STATE (2002) 3 MJSC 141 at 151.
This Court, per the Learned Onnoghen, JSC (as he then was; now CJN) in PETER ILIYA AZABADA VS THE STATE
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(2014) All FWLR (Pt. 751) 1620, para. B has made it abundantly clear in the following words:
“The Confessional Statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his Confessional Statement alone, where the confession is constant with other ascertained facts which have been proved.”
“Confession in criminal procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof. Therefore, where an accused person confesses to a crime in the absence of an eye witness to the killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. In other words, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved, is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the confession.”
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The content of Exhibit ‘A’ the Confessional Statement of the Appellant reads as follows: –
“I have been smoking Cannabis Sativa about thirty years now and I started selling Cannabis Sativa in 2008. I normally buy my Cannabis Sativa from one Pius, an Igbo man from Abuja who normally brings it to my house in Numbun Cornen Gwantu. I usually buy one bag from him at the cost of N30,000.00 which will take me about six weeks to sell them all. I do wrap and sell the Cannabis Sativa at N20:00 per wrap in my house and at the end make a profit of N10,000.00 per bag after sale. Today, 23rd August, 2013 at about 130 hours a team of NDLEA Officers came to my house and introduce themselves and further requested to search my house for Cannabis Sativa which I freely allowed them as my family and I watched carefully. Some wraps of dried Leaves was found in my bedroom and also white sack containing dried Leaves was found in my store and were removed by the NDLEA Officers. I accept the ownership of the contents in the white Sack and wraps in my room.”
The Exhibits recovered had further strengthened this Confessional Statement, which in
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my own view, is direct, positive and unambiguous admission of the crime. It is my view that the Judgment of the trial Court Cannot be faulted at all and the lower Court was right in affirming and endorsing it. The Appellant has failed to convince me that this is a situation in which this Court should interfere. See MINI LODGE LTD. VS NGEI (2009) 18NWLR (Pt.1173) 254. The attempt by the Appellant to retract this statement at the trial Court on some flimsy excuses did not help him. The Appellant never denied the content or the body of his Confessional Statement. To say that he made a thumbprint on the Confessional Statement, but did not sign the statement is neither here nor there. There is nothing to do with the absence of an illiterate Jurat on the said Exhibit ‘A’, covered by the illiterates protection Act Cap 518 Law of Federation 2004, having admitted his own thumbprint on Exhibit A’. Also, the claim before the trial court that Exhibit’A’was made in Hausa Language by the Appellant did not ipso facto make it inadmissible. The position consistently maintained by this Court is that, while it has frequently been said that a statement should,
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if possible, be written down in the Language in which it is made, it is not ipso facto made inadmissible by a failure to follow this procedure. See UDO VS QUEEN (1964) 3 N.SC.C. 14 at 15-16.
Finally, a retraction or denial of a Confessional Statement does not affect its admissibility See: – IDOWU VS THE STATE (1998) 11 NWLR (Pt. 574) 354, SULE VS THE STATE (2009) LPELR – 3125 (SC) 24, F.R.N. VS IWEKA (2011) LPELR – 9350; OSENI VS THE STATE (2012) LPELR – 7833.
In the final analysis, having resolved the Sole Issue in this appeal against the Appellant, the appeal is unmeritorious and it is hereby dismissed. The Judgment of the Court of Appeal delivered on the 5th of February, 2016, which confirmed the conviction and sentence of the Appellant to two (2) years imprisonment by the trial Court is further affirmed by this Court.
Furthermore, the Appellant (then accused person) was convicted and sentenced on the 10/7/2014 to two (2) years imprisonment.
From 2014 July, to July of 2018, is a period of 4 years and 3 months. This is a classical case that reminds one of the needs to regimen the jurisprudence of criminal appeals in this country.
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There is nothing more abnormal than a situation where a convict is sentenced to serve an imprisonment for 2 years, he is unsatisfied with the conviction and sentence but his appeal is only concluded after over 4 years, a period within which if he is not on bail, he would have not only served his sentence but over- served same. This trend makes nonsense of our criminal appellate process and needs be corrected in earnest. If the Appellant has been in prison custody since he was sentenced to prison, then the Appellant has served for more than the period of his punishment in custody. Therefore, in the overall interest of Justice, it is the order of this Court that he must be released and set free from the prison custody with immediate effect.
SC.614/2016
