Dr. Babatunde Olubami Koiki V. The State (1976) LLJR-SC

Dr. Babatunde Olubami Koiki V. The State (1976)

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This appeal came before us on the 29th day of January 1976, for hearing, and after hearing counsel for the appellant and counsel for the respondent, we dismissed it for lack of merit, and now give our reasons.The appellant was tried on information charging him in count 1 with the offence of:

“Attempt to export Indian Hemp (Cannabis Sativa) contrary to Section 14(2) of the Indian Hemp Decree and punishable under Section 4 of the Indian Hemp Decree 1966; and in count 2, with the offence of:

“Unlawful possession of Indian Hemp contrary to Section 5(1)(b) of the Indian Hemp Decree 1966;

by Bada, J., sitting at Lagos, in the High Court of Lagos State.  He was acquitted on count 1 and convicted and sentenced to 10 years imprisonment on count 2.

Against this conviction, the appellant filed and argued the following grounds of appeal:

(1) The learned trial Judge erred in law in convicting the appellant as he did when the evidence upon which he convicted him was neither clear nor convincing, and in any case, below the standard of proof required to establish guilt in a criminal trial.

(2)The verdict was unreasonable and cannot be supported, having regard to the evidence adduced by the prosecution before the trial court.

Nine (9) witnesses gave evidence for the prosecution, but the accused alone gave evidence for the defence.

The facts in the main were not in dispute and shortly put are as follows:-

The appellant, a Medical Practitioner, in the employ of Lagos State Government up to the end of April 1974, at the conclusion of his 1 year housemanship at the Island Maternity Hospital, Lagos, decided to take a postgraduate course in Medicine, specializing in Gynaecology, in Western Germany. He bought his ticket and booked his flight to Western Germany for 5th May 1974. On the morning of 5th May 1974, precisely at 7.00 a.m., he left his Burma Crescent residence for Ikeja Airport with his luggage consisting of a travelling wardrobe and a travelling bag.
On arrival, he took his luggage to the customs clearing hall  for customs check by customs preventive officers. He met Gambo Madaki (P.W.6), a customs preventive officer, at the customs desk. There was a previous arrangement between the appellant and the P.W.6 for P.W.6 to render assistance to the appellant in clearing his luggage through the customs check point. This he did as disclosed by the evidence of P.W.6, part of which reads as follows:-

“I saw him on the 5th day of May 1974, at the Airport around the Airways counter. I told him that after he shall have finished with the Airways, he should meet me at the customs desk. When the accused came, I was at the customs desk and I told him to identify his luggage. He identified the two luggages, one bag and one wardrobe.  I examined the wardrobe bag and chalked both bags. Immediately the accused finished with me, he was intercepted by Wahili. At that stage, I left the Airport entirely according to plan. Exhibit “P24″ is the wardrobe bag I checked”.  (Underlining is ours).

Wahili, (P.W.4) caused the content of the travelling wardrobe to be thoroughly examined. This examination led to the recovery of 4 parcels of Indian Hemp from the wardrobe in the presence of the appellant.
On this issue, the appellant said in evidence:

“I did not know Gambo at all, nor did I talk to him …………  I then went to the customs and queued up.  My bag had no lock or key on that day.  When it was my turn, a customs officer asked me to point to my bag. He searched the handbag (the travelling bag) in my hand; he opened the zip of the travelling bag, put his hand on the side and then asked me if I had anything in it. I told him “No” and he chalked it. A porter came and carried it and was going to the truck outside.  As I was moving on, a man in plain clothes stopped me and said he wanted to search my loads …………..When the porter came back with my loads, he said he was not satisfied with the former checking.  I agreed and asked him to carry on. He called another customs officer and asked him to open the travelling wardrobe and re-search it; he did so. During the search, he brought out four parcls wrapped in tinfoil. I was surprised. The customs officer asked me what they were. I could not give him any answer, so he cut one of them open and showed me. I was surprised and I told him they surely look like Indian Hemp. He called the customs officer”. (Underlining is ours).

These parcels were forwarded under cover of Exhibit “P1” Police Report Form D22 to the Government Chemist for examination and report. P.W.2, Mathew Nnaemeka Ejoh, an Assistant Federal Government Chemist conducted chemical analysis on them and found them to be Indian Hemp. On this point, he stated on oath as follows:

“I carried out the test as requested in Exhibit P1. The tests applied are chemical test and microscopic test. The results obtained would tell us whether the exhibit is Indian Hemp or not Indian Hemp. I carried out these tests on the parcels forwarded to our office. The test on all the four exhibits (parcels) showed that the parcels are Indian Hemp (Cannabis Sativa). I made a report of my findings and signed it. The parcels now shown to me are the parcels sent to me and labelled A. A1-A3. After the test of the sample from each parcel, we sealed the parcel with our own seal and numbered it.  If I see my report, I shall be able to identify it. It is Exhibit P4”.
In his findings, the learned trial Judge inter alia held:
“I accept the evidence of the prosecution witnesses and I hold that the dried leaves in 4 rolls of parcels Exhibits P6, P6A-P6C suspected to be Indian Hemp, are in fact Indian Hemp. These parcels were recovered from the accused’s travelling wardrobe which was in his possession and control at the material time. The proviso to paragraph (b) of Section  5(1) has no application in this case and in the absence of any proof to the contrary within the provision of Section  13 of the said Decree, I hold that the accused knowingly possessed the four rolls (parcels) of Indian Hemp. The prosecution in respect of count 2 of the information therefore succeeds”. (Underlining is ours).

The only point canvassed in the grounds of appeal, shortly put, is that there was a break in the chain of evidence connecting the parcels sent to and analysed in the Federal Government Chemist with the parcels recovered from the possession of the appellant. Mr. Aka-Bashorun, the learned counsel for the appellant made the point that whereas the alleged Indian Hemp recovered from the appellant were wrapped in silvery tinfoil, the herbs sent to the Government Chemist were wrapped in brown paper. He therefore, impliedly submitted, that the sample sent for analysis were not the same as those recovered from the appellant at Ikeja, and, that the admission of the appellant to P.W.4 that the herbs were Indian Hemp notwithstanding, the prosecution still had a duty to satisfy the court by expert evidence that the herbs were Indian Hemp. He emphasised that unless there is evidence that the parcel sent to the Government Chemist for analysis is the one recovered from the appellant, the prosecution has failed to discharge the burden of proof on them.
It is settled law that the trial court has to be satisfied of the truth of admission by an accused before convicting on it.

From the evidence on record, there was enough evidence before the learned trial Judge to satisfy him that the herbs found in the possession of appellant were Indian Hemp (Cannabis Sativa).
We observe that beside the extra judicial admission made to the 4th P.W. that the herbs found in his baggage at Ikeja Airport were Indian Hemp, there is the admission before the learned trial Judge that he told P.W.4 that the 4 parcels wrapped in tinfoil found in him travelling wardrobe looked like Indian Hemp.

We find also that the evidence adduced before the learned trial Judge sufficiently connected the samples examined by the Government Chemist, P.W.2 with the 4 parcels recovered from the appellant, and, for this purpose, we refer to the evidence of P.W.1, and the appellant.
In his testimony, P.W.1 said inter alia:-

“…………Wahili Nnanawa handed over the accused person to me with four rolls of dried leaves suspected to be Indian Hemp……….. I brought out the 4 rolls and opened them one by one and I found dried leaves in them ……….I packed the 4 rolls of dried leaves suspected to be Indian Hemp in the presence of the accused and he signed Police Form D22, the purpose of which was to send them to the Government Chemist for analysis. The form now shown to me is the form I referred to. The accused also signed ………….

Court: Form D22 admitted and marked Exhibit “P1”.
………………. later on the 26th of June 1974, I went to the Government Chemist and collected 4 rolls suspected to be Indian Hemp with the report of the Government Chemist … On 1st July 1974, I served a copy of the report on the accused person and he signed receiving the copy ……………..

Government Chemist report admitted and marked Exhibit “P4”.  Four rolls admitted and marked Exhibits “P6”, “P6A”, “P6B”, “P6C”.  (Underlining is ours).

The appellant in his evidence stated inter alia as follows:-

“When the porter came back with my load, I asked him why he wanted to search me again.  He said he was not satisfied with the former checking. I agreed and asked him to carry on. He called another customs officer and asked him to open the travelling wardrobe and re-search it. He did so. During the search, he brought out four parcels wrapped in tinfoil. At this time, I was surprised. The customs officer in plain clothes asked me what they were. I could not give him any answer so he cut one of them open and showed me. I was surprised and told him they surely look like Indian Hemp……. He then went inside his office and later called me in. I went in and he produced in my presence 4 yellow sheets of paper where he asked me to claim the ownership of the 4 parcels.  I did so and he placed them separately on the 4 labels”.

Under cross-examination, he said, inter alia:
“When he opened the parcel and showed me the content, I said it was Indian Hemp.  The parcels recovered from my bag were those labelled with the labels prepared by the customs man in plain clothes. I identified my signature on the yellow label affixed to Exhibits “P6”, “P6A-P6C”.  At the time I was intercepted, I know that not everything in the wardrobe bag was seen by the man who checked it.”

Looking at Exhibit P1, Form D22, a request form signed by P.W.1 and accused, requesting examination of the parcel, we observe that each of the four rolls was described as –
“One roll of herbs wrapped with brown paper and covered with a transparent paper suspected to be Indian Hemp”.
The learned counsel for the appellant made a great play of the statement of P.W.9, Emmanuel Arokodare, which reads:
“I did not see the brown paper on the four rolls that night”.
We think this statement has been taken out of its con and find that the learned trial Judge dealt adequately with the point of counsel rejecting the evidence of the witness that:

“We used the brown paper to wrap the four rolls in their original state”
as being a figment of his imagination. He was perfectly entitled in law, to believe part of the evidence of a witness, and reject the other part. See Ekanem v. The King 13 WACA 108.

It is at this stage necessary to take a more critical look at the testimony of P.W.9, to show that the witness’s observation was faulty. Looking at the records, his evidence under cross-examination reads in part:
I do not know about the contents of the bag. I only know about the four rolls. I cannot recollect seeing money. I did not see the brown paper on the four rolls that night. All the four parcels were each wrapped with the white silvery paper”. (Underling is ours).

This can only refer to the stage before the four parcels were packed by P.W.1, Inspector Akubo.  P.W.9 did not claim to have packed the four parcels for analysis by the Government Chemist, but corroborated the evidence of P.W.1 and the appellant that they were packed by P.W.1.

On this point, his evidence reads:

“The accused and the exhibits were handed over to Inspector Akubo.  Inspector Akubo then packed and sealed the exhibits – four rolls of parcels suspected to be Indian Hemp, in the presence of the accused person ………….. On 6th May 1974, at about 8.00 a.m., I was instructed by Inspector Akubo to collect the sealed exhibits from the exhibit keeper and take it to the Federal Government Chemist………… I took the sealed exhibit to the Federal Government Chemist where the exhibit was taken from me and a receipt was given to me. The document now shown to me is the form filled and later signed by the accused and which I took to the Federal Government Chemist. It was on it the receipt of the sealed parcel was acknowledged. The document is Exhibit “P1”.  (Underlining is ours).

Having admitted that he took Exhibit “P1” along with the parcel to the Government Chemist and obtained a receipt from the Government Chemist on it, it is obvious, and he should have seen in Exhibit “P1” that the four rolls parcel were each packed in brown paper and transparent paper. Whether P.W.9 saw the brown paper or not, we were satisfied that the prosecution discharged the onus of proof in this matter and that the conviction was amply justified by the evidence.

We therefore found no merit in the appeal and dismissed it.

Other Citation: (1976) LCN/2361(SC)

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