Dr. Babatunde Olubami Koiki V. The State (1976)
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A. O. OBASEKI, AG. J.S.C.
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).
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