‘Prosecution need not call every witness before proof beyond reasonable doubt is established’

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, […]

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 heroin and thereby committed an offence contrary to and punishable under Section 10H of the National Drug Law Enforcement Agency (Amendment) Act No 15 of 1992. Hobon, J of the Federal High Court, Sokoto Division.
The appellant entered a not guilty plea. Two witnesses testified for the prosecution. Both of them are officers from the National Drug Law Enforcement Agency (NDLEA). The prosecution tendered in court the following items, which were admitted as Exhibits:
A. Certificate of testing analysis
B. Packing of substance Forms
C. Request for scientific aid
D1 – D12 Twelve wrapped cellotaped bundles recovered from the appellant.
E. Drug analysis Report dated 4/1/2005
E2. Transparent evidence pouch with substances feature and descriptions of the accused and the case. (i.e. what exhibit E contained).
F1 – 3. Certificate of conviction in Niger Republic together with attachments.
Evidence was led by the prosecution witnesses to show how the appellant was arrested with 26 kilogrammes of Indian hemp. At the close of the prosecution case the appellant gave evidence as DW1. He did not call any witness or tender any document.
In a judgment delivered on the 21st day of June 2005 the learned trial judge concluded as follows:
“Consequently the prosecution has proved the case of possession of Indian hemp beyond reasonable doubt against the accused person and the accused person failed to rebut and bring himself within the defenses or exceptions allowed under the law creating the offence. I therefore accept the evidence of the prosecution and hereby find the accused person guilty of the offence charged …..”The appellant was sentenced to 15 years imprisonment. He lodged an appeal. The Court of Appeal Sokoto Division heard the appeal. That court had no difficulty confirming the judgment of the trial court.
In a judgment delivered on the 13thday of January, 2010 the Court of Appeal had this to say:
“In conclusion and in the given circumstances, in so far as the appellant has failed in his bid to successfully challenge his conviction by the trial court, this court cannot disturb the verdict and sentences imposed by the said trial court. This appeal is dismissed as it lacks merit. The conviction of the appellant and the sentence imposed by the lower court are hereby affirmed by me …….”
This appeal is against that judgment. In accordance with Order 6 Rule 5 of the rules of this court both sides filed and exchanged briefs. The appellant’s brief was filed on the 1st of August, 2010 while the respondents brief was deemed duly filed on the 7th of April, 2011.
Learned counsel for the appellant, Mr. A. Ogunsanya, formulated two issues from his grounds of appeal. They read:
1. Whether there was evidence before the trial court to prove beyond reasonable doubt that the substance allegedly recovered from the appellant was indeed cannabis sativa otherwise known as Indian hemp and that same is a drug similar to cocaine, LSD or heroine.
2. Whether having regard to the totality of the evidence adduced as exhibits in this matter, the Court of Appeal is justified in affirming the findings of the trial court.
On the other side of the fence learned counsel for the respondent, Mr. E. Okpoko presented two issues also for determination of this appeal. The issues are:
1. Whether the Court of Appeal was right in law when it held that the case against the appellant can be said to have been proved beyond reasonable doubt.
2. Whether having regard to the totality of the evidence adduced, the Court of Appeal was right in affirming the conviction of the appellant for being in unlawful possession of Indian hemp.
The issues presented by both sides ask the same question. I find it safe to rely on the issues presented by the appellant to decide this appeal.
At the hearing of the appeal on the 26th of January 2012, learned counsel for the appellant adopted his brief filed on the 16th of August 2010. He urged this court to allow the appeal. Learned counsel for the respondent adopted his brief which was deemed duly filed on the 7th of April 2011 and urged this court to dismiss the appeal.
Initially the case was before Akanbi. J. Trial commenced on the 16th of July 2002. On the 18th of July 2002 the appellant was admitted to bail, and on the 15th of May 2003, the court was informed that the appellant had jumped bail. On the 22nd of September 2003, the case was sent to Hobon. J.  for  trial to commence de novo. Learned counsel for the appellant observed that the substance was tested by PW2, an exhibit keeper and not by an expert as required by law.
Reference was made to Exhibit A. Azu v State (1993) 6 NWLR (Part 299) page 303. He submitted that evidence of PW2 is not admissible as evidence of an expert because he failed to state in his evidence in chief his qualifications and years of experience. He further observed that PW2 said that he sent 2 grams of the substance for laboratory analysis in Lagos, but that it was 5 grams that was shown on the drug analysis report and that it took four years for the report to be returned. He argued that it is doubtful if Exhibit E is the result of the analysis of Exhibit D1 – D2 contending that the doubt ought to be resolved in favour of the appellant. Reference was made to Bozin v State (1985) 2 NWLR (Part 8) page 465
Concluding he submitted that the prosecution failed to comply with the provisions of Sections 43 and 65 of the evidence Act, contending that the prosecution also failed to prove its case beyond reasonable doubt.

(To be continued.)