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 miscarriage of justice or violation of some principles of law or procedure. This was so held by a Justice of the Supreme Court, Justice Bode Rhodes-Vivour whose lead judgment was supported by other four justices of the court.
The facts are these. The appellant is a trader. On the 16th day of November, 2000, he boarded a lorry bound for Sokoto. On getting to Bodinga, the lorry ran into a team of NDLEA operatives patrolling the Sokoto/BirninKebbi Road. The lorry had to stop and all the passengers were ordered to disembark with their luggage. BitrusAjikuDamudn (PW1), A Chief Narcotic Agent was in the team of NDLEA operatives. He approached the appellant, demanding to search the luggage. The appellant said his luggage contained used video machine and parts.
A search revealed twelve bundles neatly wrapped and stuck down with sellotape. PW1 tore open one bundle and saw a substance that he suspected to be Indian Hemp. The appellant was arrested by PW1 and taken to the NDLEA office for further interrogation. At the office, Ibrahim Musa (PW2), an Assistant Superintendent of Narcotic 1 used a United Nations Testing Kit to test a quantity of the substance from the appellant’s luggage (Dry leaves).
This was done in the presence of the appellant, and it was found to be Indian Hemp. It weighed 26 kilogrammes. Exhibits, D1-D12.Forms on testing, weighing and packing the substance were signed by PW1 and PW2 and the appellant. A drug analysis report Exhibit E, E2 turned out to be positive. The dried leaves in the appellant’s luggage was Indian Hemp.
Initially the case was before Akanbi .J. Trial commencedon 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 commencede novo. It was not until the 13th of February, 2004 that the appellant was arrested and brought before Hobon. J. He was nowhere to be found for over one year. He explained to the court that he went with a friend to Goronyo in Niger State in search of a man who had his money, but that he and his friend were arrested for possession of drugs and taken to prison in Niger Republic, and it was not until the 27th of December, 3003 that he was released from prison. Returning to Nigeria, he was arrested in Sokoto and brought before Hobon .J for the first time on the 13th of February, 2004.
Learned counsel for the appellant, Mr. A. Ogunsanya formulated two issues form the grounds of appeal.
*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.
*Whether having regard to the totality of the evidence adduced as exhibits in this matte, 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.O Okpoko presented two issues also for determination of this appeal.
*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.
*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 possession of Indian Hemp.
Justice Rhodes-Vivour delivering judgment: 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 the appeal.
The appellant was charged and arraigned on a one-count charge on 17th November, 2000 for being in possession of 26 kilogrammes of Indian Hemp otherwise known as Cannabis sativa, a narcotic drug similar to cocaine and thereby committed an offence contrary to and punishable under section 10 H of the NDLEA (Amendment) Act No 15 of 1992.
The appellant entered a not guilty plea. Two witnesses testified for the prosecution. They also tendered several exhibits A,B,C, D1-D12, E, E2, and F1-3 .
At the close of prosecution’s case, the appellant gave evidence as DW1. He did not call any witness or tender any document. In the judgment delivered on the 21st day of June, 2005, the appellant was sentenced to 15 years imprisonment. He lodged an appeal heard by the Court of Appeal, Sokoto Division.
In a judgment delivered on 13th day of January, 2010, the appellate court affirmed the verdict of the trial court.
This appeal is against that judgment.
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. Udo.v.The State (2006) 15 NWLR pt. 1061 p.199.
I agree with the leaned 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 confirmed by the Court of Appeal. The facts are that the appellant was found to be in possession of 26 kilogrammes of Indian Hemp, Exhibit D1-D12 on the 17th of November, 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 miscarriage of justice or violation of some principles of law or procedure. See Cameroun Airlines.v.Otutuizu(2011)-2SC Pt 111 p.200, Alakija.v.Abdullahi(1998) 5 SC .P.1 ,Oloke.v.Agbodiye (1999) 12 SC pt. 11. p 101.Ogbu.v.Wokoma (2005) 7SC Pt. 11.P. 123.
The findings by both the court below were correct, moreso as the exhibits are conclusive that the appellant did have in his possession unlawfully Indian Hemp. There is no merit in this appeal. It is accordingly dismissed. The other four justices concurred with the lead judgment. Appearances:
A. Ogunsanya for the appellant
B. E. Okpoko for the respondent
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