‘Prosecution is not bound to call every witness before proof beyond reasonable doubt would be established’

(Continued from last week) Learned counsel for the respondent observed that PW1 and PW2 gave direct positive account of the arrest of the appellant with 26kg of Indian hemp along Bodinga-Sokoto road on the 17th of November 2000. Relying on Exhibits A, B, C, D1-D12, E and E2 he submitted that the prosecution proved the […]

(Continued from last week)

Learned counsel for the respondent observed that PW1 and PW2 gave direct positive account of the arrest of the appellant with 26kg of Indian hemp along Bodinga-Sokoto road on the 17th of November 2000. Relying on Exhibits A, B, C, D1-D12, E and E2 he submitted that the prosecution proved the case against the appellant beyond reasonable doubt.
 I shall makesome observations on the procedure for arrest and prosecution of a drug suspect. Put briefly:
1. The suspect is arrested on reasonable suspicion of being in possession of drugs.
2. The authorities take possession of the substance suspected to be drugs in the presence of the suspect and weigh it.
3. A preliminary test may or may not be done depending on the circumstances, but if done it is desirable it is done in the presence of the suspect.
4. Relevant papers, to wit: Certificate of test analysis (if preliminary test is done)packing of substance/drugs forms are filled by the arresting authorities and signed by the suspect.
5. All the substance recovered, or a reasonable quantity is sent to the laboratory for expert analysis.
6. The laboratory issues a report which may be positive or negative. It is that report that the prosecution acts on to prove its case against the suspect or allow him to go home if the report is negative for drugs.
7. An expert from the laboratory that conducted the test testifies, in court, and in his evidence in chief he should state his qualification andexperience before he proceeds to give evidence on his report.
The appellant was charged with being in possession of Indian hemp punishable under Section 10 H of the National Drug Law Enforcement Agency (Amendment Act) No 15of 1992. To succeed, the prosecution must prove each of the following beyond reasonable doubt:
 1. That the substance is Indian Hemp.
2. That the substance was in possession of the appellant.
3. That the substance was in the appellant’s possession to his knowledge and without lawful authority.
In Miller v Minster of Pensions (1947) 2 All E.R. page 372, it was stated by Denning. J (as he then was), “That proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. See also Lori v State (1980) 8 -11 SC page 81; Section 138 (1) of the Evidence Act.
Proof beyond reasonable doubt does not mean proof beyond all about, or shadow of doubt. It simply means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence.
I shall now examine evidence led to see if the one count charge was proved beyond reasonable doubt:
 1. That the substance is Indian hemp.
Preliminary test conducted by PW2 using United Nations Testing Kit revealed that ExhibitsD1- D12 was Indian hemp. This was further confirmed by the report issued from the Forensic science laboratory, Lagos. See Exhibits E, E2. I am satisfied that both courts below were correct in finding as a fact that Exhibits D1- D12was/is Indian hemp or Cannabis Sativa.
2. Whether the substance was in possession of the appellant.
To have or to own is to possess. A thing is in possession of a person if it is found on him. The passengers in the lorry were ordered to disembark with their luggage. The appellant and all the passengers complied. The appellant identified his luggage.
A search of the appellant’s luggage was carried out by PW1 in his presence, and therein was found neatly wrapped Indian hemp weighing in at 26kilogrammes. It is conclusive that Exhibits D1- D12 were in possession of the appellant,since it was in his luggage, and he never denied being the owner of the luggage.
3. Whether the substance was in the appellant’s possession to his knowledge and without lawful authority.
Since the appellant has not denied ownership of his luggage and Indian hemp was found inhis luggage, in the absence of a defence to show that the substance was in his possession with lawful authority it was safe for the learned trial judge, toconclude that the substance was in his possession without lawful authority.
Signing Exhibits A and B, Certificate of Testing Analysis, and Packing Forms onthe 17th day of January 2000, the same day he was arrested, after preliminary tests were done implies that the appellant was in full agreement with everything in both Exhibits. That in effect means that the appellant agreed the substance in his luggage is/was indeed Indian hemp or cannabis sativa.
Before I conclude this judgment I must turn my attention to some points raised in the appellants brief, and they are PW2 said on oath that he sent 2 grams of the substance for laboratory analysis but 5 grams was shown in the drug analysis report.
 The Drug Analysis Report, Exhibit E, E2 reads in part: “Some quantity of dry vegetable materials weighing about 5.00grams enclosed in a heat sealed transparent evidence pouch….”
While relevant extracts from the testimony of PW2 runs as follows: In evidence in chief he said:“… I also took some quantity of it and sent it to Lagos for further expert analysis on18/7/02”.
And in cross-examination the witness said:“….. yes I took two grams out of the quantity for my test and the one Iwill use for sending for further laboratory analysis atLagos.”
There was more-examination.
After adiligent review of the above extract from the testimony of PW2 it cannot be said whether it was 2 grams or 5 grams of the substance that was sent to Lagos for further laboratory analysis.
On non-compliance with Section 43 and 65 of the Evidence Act.
Section 43 of the Evidence Act states that:“Where any such certificate is intended to be produced by either partyto the proceedings, a copy thereof shall be sent to the other party at least 10 clear days before the day appointed for the hearing and if it thinks fit adjourn the hearing on such terms as may seem proper.”
I agree with the learned trial judge. There was no miscarriage of justice. I fail to see the relevance of Section 65 of the Evidence Act. Exhibits A, B,C, D1 – D12, E, E2 and the testimony of PW1 and PW2 are overwhelming in showing that there was proof beyond reasonable doubt that the substance recovered from the appellant was cannabis sativa, otherwise known as Indian hemp. The Court of Appeal was justified in affirming the findings of the trial court.
Finally I must observe that the judgment of the trial court was on facts that were confirmedby the Court of Appeal. The facts are that the appellant was found to be inpossession of 26 kilograms of Indian hemp, Exhibit D1 – D12 on the 17th ofNovember 2000.
Concurrent findings of fact are rarely disturbed by this court, but this court would be compelled to interfere if the findings are perverse or cannot be supported by the evidence before the court or there is/was a miscarriageof justice or violation of some principle of law or procedure.
The findings by both courts below were correct, more so as exhibits towit: A, 8, C, D1 -D12, E, E2 are conclusive that the appellant did have in his possession unlawfully Indian hemp. There is no merit in this appeal. It is accordingly dismissed.

Concluded.
Judgment of the Court Delivered by Bode Rhodes Vivour. JSC