(2017) LPELR-42000(CA)

Transcription

1 ABUBAKAR & ANOR v. A.G OF FEDERATION CITATION: In the Court of Appeal In the Ilorin Judicial Division Holden at Ilorin ON THURSDAY, 2ND MARCH, 2017 Suit No: CA/IL/C.13/2016 MOJEED ADEKUNLE OWOADE CHIDI NWAOMA UWA HAMMA AKAWU BARKA 1. MOHAMMED ABUBAKAR 2. MOHAMMED QUDUS Before Their Lordships: Between And ATTORNEY GENERAL OF THE FEDERATION Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. EVIDENCE - ADMISSION/ADMITTED FACT(S): Whether an admission is the best evidence against the person making it "In the first place, admissions can be proved against the persons who made them."per OWOADE, J.C.A. (P. 8, Para. D) - read in context 2. EVIDENCE - ADMISSION/ADMITTED FACT(S): Whether admission/admitted facts need further proof "Also, what is admitted needs no further proof."per OWOADE, J.C.A. (P. 8, Paras. D-E) - read in context 3. EVIDENCE - UNCHALLENGED/UNCONTROVERTED EVIDENCE: Effect of an unchallenged/uncontroverted evidence "Secondly, as it happened in the instant case, the Court would be free to accept the uncontradicted evidence of prosecution witnesses. See: Ogunbiyi, JSC in SEGUN AJIBADE VS. THE STATE (2013) 8 NCC 221 AT 245."Per OWOADE, J.C.A. (P. 8, Paras. E- F) - read in context

3 4. EVIDENCE - CONTRADICTION IN EVIDENCE: Whether every contradiction/inconsistency in evidence would affect the credibility of witnesses "Indeed, as a matter of law, it is not every miniature contradiction that will vitiate a trial. Minor contradiction which did not affect credibility of witnesses will be of no avail to the Appellant. See: MUSA VS. THE STATE (2009) 15 NWLR (PT. 1165) 465 at 484 (Per Fabiyi JSC) HABIB MUSA VS. STATE (2013) 8 NCC 464."Per OWOADE, J.C.A. (Pp , Paras. F-B) - read in context

4 MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Ilorin Division of the Federal High Court delivered by Hon. Justice A. O. Faji on the 11th day of December, The Appellants were jointly charged on on two counts. The first count was to import One Thousand, Seven Hundred and Forty (1,740) litres of PMS to Tsaragi without licence or authority to do so and with the intent to distribute or sell of same under the inherent jurisdiction of this Honourable Court thereby committed an offence under the S.4 (1) and punishable under S. 4(2)(b) of the Petroleum Act Cap. 10 Laws of the Federation The second count was that with the aid of one Sambo, male, adult of Kanbi Area, Kwara State now at large illegally without lawful authority or an appropriate licence deal with petroleum products by loading One Thousand, Seven Hundred and Forty (1,740) litres in six (6) drums and eight (8) jerry cans in white Toyota Lite Ace with Registration Number, XA 165 DEK with intent of importing same to Tsaragi and offer same for sale. Thereby committed an offence 1

5 contrary to S.1(17) (a) and (b) of Miscellaneous Offences Act Cap M17 LFN 2004 and punishable under the same Section. The facts of the case are that on the 14th day of May, 2015, the Appellants were engaged by one Mallam Sambo to transport some drums and jerry cans containing petroleum products from Kanbi Area of Kwara State to Tsaragi area of Kwara State. The Appellants were arrested by men of the Nigeria Security and Civil Defence Corps while conveying the products. The prosecution called two witnesses PW1 and PW2 that is, the Arresting Officer and the Investigating Police Officer and tendered fifteen (15)Exhibits through PW2 these are Exhibits A, B, B1, C, C1, D1, E, F1- F6, G1 G8, H and I respectively. The 1st Appellant testified as DW1 but no Exhibits were tendered through him. At the conclusion of the trial, the learned trial Judge discharged and acquitted the Appellants on Count 1 that is the offence of criminal conspiracy under Section 4(2)(b) of the Petroleum Act LFN 2004 on the ground that there was no evidence of importation but convicted the Appellants on the 2nd count of dealing with petroleum products under 2

6 Section 1 (17) (a) and (b) of the Miscellaneous Offences Act Cap M17 LFN The Appellants were aggrieved with the decision and filed separate Notices of Appeal in this Court on Each of the Appellants filed three (3) Grounds of Appeal. Appellants Brief of Argument dated was filed on the same day but deemed filed on Respondent s Brief of Argument dated , filed on was deemed filed on Learned Counsel for the Appellants nominated three (3) Issues for determination. They are: i. Whether the prosecution was able to prove beyond reasonable doubt that the quantity of the alleged petroleum product allegedly contained in 6 drums and 8 jerry cans was above 500 litres as required by the law. ii. Whether the mere conveying of the alleged petroleum product by the Appellants for one Mallam Sambo in the course of their daily transportation business amounts to dealing in petroleum product under Section 1 (17) (a) & (b) of the Miscellaneous Offences Act Cap. M17 LFN iii. Whether the evidence adduced by prosecution was credible and cogent enough for the trial 3

7 Court to have relied upon and convicted the Appellants. Learned Counsel for the Respondent adopted the Issues formulated by the Appellants. On Issue one, Learned Counsel for the Appellants submitted that the prosecution could not prove through any credible evidence before the trial Court that the quantity of the alleged petroleum products contained in 6 drums and 8 Jerry cans found in possession of the Appellants was above 500 litres or any other number of litres as required by law. On this, said Counsel, the prosecution witness (PW1) testified thus: In the vehicle, we met 6 drums, 8 jerry cans of PMS filled up and one empty jerry can. Appellants Counsel reproduced the provision of Section 4 (1) and (2) (a) and (b) of the Petroleum Act Cap. 10 LFN, He submitted that by the provision of Section 4 (2) of the Petroleum Act, the ingredient of proving commission of the offence under the Section is by stating and/or proving the quantity of the content of the petroleum found,that is, how many litres of petroleum found in the Appellants possession? He submitted that while the Arresting Officer (PW1) maintained that 4

8 the Appellants were found to be transporting 6 Drums and 8 Jerry cans, the charge sheet against the Appellants read, 1, 740 litres in 6 drums and 8 Jerry cans. He submitted there was no evidence on record by the prosecution that shows any correlation between quantity of PMS in 6 drums and 8 Jerry cans and 1,740 litres of PMS. Counsel said the questions that beg for answers are: (i) How does the quantities of the alleged petroleum product in 6 drums and 8 jerry cans suddenly became 1,740 litres of petroleum product? (ii) How much quantity of petroleum products was contained in each of the 6 drums 8 jerry cans? The prosecution, according to Counsel ought to have led evidence to show how the quantities of the alleged petroleum product in 6 drums and 8 jerry cans could arithmetically sum to be 1,740 litres or at least above 500 litres to make it an offence. He reiterated, referring to the case of: ISIAKA VS. STATE (2012) ALL FWLR (PT. 645) 381 at 394 that by the provision of Section 4 (2) of the Petroleum Act Cap. 10 LFN, 2004, it is not every quantity of Petroleum product found in possession of a person that constitutes an offence 5

9 under the Act. That the missing part of the evidence constitutes vital evidence in the view of the fact that the Petroleum Act stipulates the amount and/or quantity of petroleum product that could make a person in whose possession it was found culpable. Counsel referred to the case of: BELLO SHUROMO VS. STATE (2011) ALL FWLR (PT. 568) 864 at 881 for the meaning of vital evidence. Moreover, he submitted that where a special or specific intent form the ingredient of an offence that special intent must be proved in order to secure conviction. Where it is not proved, the accused must be discharged. On this, he referred to the cases of: GREG OLIEH AND ANOR VS. FEDERAL REPUBLIC OF NIGERIA (2005) ALL FWLR (PT.281) PG AT 1770; R. V. NWANGAGWU (1962) 1 ALL NLR 29; and DANIEL OKON UTUK VS. THE STATE (2011), ALL FWLR (PT.586) 562 AT 569. Appellants Counsel further submitted that failure of the prosecution to show how much litres of the alleged petroleum products were contained in each and every container found in possession of the Appellant ought to create doubt in the mind of the trial Court. And, that the trial

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11 Court would be under strict obligation to resolve the doubt in favour of the accused person. He referred to the cases of: TANKO VS. STATE (2009) ALL FWLR (PT.456) 1977 AT 2012; OMOGODO VS. STATE (1998)5 SC 5. He finally submitted on Issue One that the conclusion of the trial Court that the quantity of petroleum products contained in the 6 drums and 8 jerry cans was 1,740 litres was not based on any credible evidence but mere speculation. He referred to the case of: FAROJOYE VS. HASSAN (2007) ALL FWLR (PT. 368) 1070 AT 1094 and urged that decision of Court of law should not be based on speculation and possibilities but rather on facts and credible evidence adduced by the parties. On Issue One, learned Counsel for the Respondent submitted that the evidence of PW1 and PW2 as to the events and as to the quantity of petroleum products found on the Appellants were never denied, challenged or controverted. That, rather, that the evidence of PW1 and PW2 was corroborated by DW1. Respondent s Counsel referred to the cases of: MOHAMMED VS. STATE (2007) ALL FWLR (PT. 366) 688 and DABO & ANOR VS. STATE (1967) 5 SC 197and

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13 submitted that in the consideration of proof beyond reasonable doubt a trial Court ought to consider whether the Appellant could be seen to be blameless of the charge on the conclusion of the prosecution s case. He submitted in the instant case that the admission of DW1 in his viva voce evidence corroborated the evidence of PW1 and PW2. Appellants Issue One is a question of fact which boils down to the assessment and evaluation of evidence by the trial Court. The evidence of PW1 and PW2 in relation to the charge of petroleum products of 1,740 litres contained in 6 drums and 8 jerry cans was indeed never denied, challenged or controverted by the Appellants. In the first place, admissions can be proved against the persons who made them. Also, what is admitted needs no further proof. Secondly, as it happened in the instant case, the Court would be free to accept the uncontradicted evidence of prosecution witnesses. See: Ogunbiyi, JSC in SEGUN AJIBADE VS. THE STATE (2013) 8 NCC 221 AT 245. In the instant case the evidence of the prosecution witnesses fixing the quantity of petroleum products found in possession of the

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15 Appellants at 1,740 Litres contained in 6 drums and 8 jerry cans was uncontradicted and the Court was right to have acted on it. Issue One is resolved against the Appellants. Appellants Counsel submitted on Issue Two that the mere conveyance of the petroleum products by the Appellants in the course of their daily transportation business does not amount to dealing in petroleum product under Section 1 (17) (a) & (b) of the Miscellaneous Offences Act, Cap. M17 LFN He submitted that the phrase dealing in petroleum product as used in the above referred Act does not include the mere transportation without more. Mere transportation of petroleum product without more cannot be equated to dealing in a petroleum product. He submitted that for any person to be said to be engaged in the business of dealing in petroleum product under the Miscellaneous Offences Act, such person must be shown and/or proven to be engaged in the business of either actual import, export, sales or distribution of petroleum product without lawful authority and/or an appropriate licence. He reproduced the provision of Section 1(17) (a) & (b) of 9

16 the Miscellaneous Offences Act and argued that the operative or key words under the Section are: imports, exports, sells, offers for sales and distribute. These, Counsel said are the words that denote the act of a person that would otherwise constitute the offence of Dealing in petroleum product. The wordings and meaning of the said Section 1 (17) (a) & (b) of the Miscellaneous Offences Act, Cap. M17, 2004 are simple and unambiguous and the Court ought to equally give the said Section simple interpretation. This, he said is because, where the language of the statute or document is clear, explicit and unambiguous, the Court is duty bound to give it literal interpretation. On this, Counsel referred to the cases of: BB LAND-MARK REALITY LTD VS. FIDELITY BANK PLC (2005) 1 NWLR (PT. 441) 430, SALEH VS. NIGERIA CUSTOM SERVICE (2012), ALL FWLR (PT.620) 1328 AT He referred to the evidence of PW1 and DW1 to the effect that the Appellants were arrested while transporting the petroleum product. He submitted that the evidence of the prosecution witnesses did not prove any of the ingredients of the offence of dealing in 10

17 petroleum products against the Appellants. He submitted, relying on the case of: JAMIU ADENIYI AND ORS VS. FRN (2012) ALL FWLR (PT. 646) 575 AT 593 that the failure of the prosecution to prove the essential ingredients of the offence of dealing with petroleum product is fatal to its case. He submitted that the simple meaning of the phrase Dealing in according to the current edition of Macmillan Standard Dictionary is Deal in something means to buy and sell something. But that there was no evidence on record in the instant case to show and/or suggest that the Appellants were in the business of buying and selling of petroleum product other than the fact that they were transporting petroleum product. Appellants Counsel submitted further that the Appellants volunteered the phone number of Mallam Sambo, the owner of the petroleum product but that the Arresting Officer, PW1 and his team were not interested. He referred to the cases of: GARBA VS. STATE (2011) 14 NWLR (PT. 1266) 98, ONAFOWOKAN VS. STATE (1987) 3 NWLR (PT.61) 538, OLABODE VS. STATE (2007) ALL FWLR (PT.389) 1301 and submitted

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19 that there is nothing on record concrete and substantial enough to warrant the conviction of the Appellants on the 2nd count of the charge. Learned Counsel for the Respondent posited in relation to Issue Two that the offence is strict liability in nature, the Appellants were found in possession transporting more than 500 litres as required by Section 4 (2) of the Petroleum Act and Section 1 (17) of the Miscellaneous Act, are duty bound to discharge the burden of showing that they have a licence to so deal with over 500 litres of PMS found in their possession. He submitted that even if the Appellants were not offering the product for sale, their action amounted to distribution which fall under the phrase otherwise deals as stipulated under the Act contravened by the Appellants. Appellants Issue Two deals with the interpretation and scope of the provision of Section 1 (17) (a) & (b) of the Miscellaneous Offences Act. It reads thus: 17 Dealing in petroleum products e.t.c. any person who without authority or an appropriate license a) Imports, exports,sells, offers for sales, 12

20 distribute, or otherwise deal with or in any crude oil, petroleum product in Nigeria. b) Does anything for which licence is required under the Act, shall be guilty of an offence and liable on conviction to be sentenced to imprisonment " Learned Counsel for the Appellants submitted interalia that the Appellants were found in possession of the said 1,740 litres of petroleum products in the course of their daily transport business. Moreover, that the operative or key words in the above provision are imports, exports, sells offers for sales and distribute. I think, Appellants Counsel has taken a narrow and restricted view of the above provision and has eliminated the import and impact of the use of the words or otherwise deal with or... In 1 (17) (a) above. The truth is that the word deal has a very wide connotation and clearly embraces and accommodates the situation of Appellants that were found in possession of the petroleum products in the course of transporting same. For example, in The Compact Edition of the Oxford English Dictionary Vol. 1 A-O Oxford 13

21 University Press (1971) Reprint (1988)at Page 654 the word deal includes to deliver, bestow, tender, to take part, occupy oneself with business, participate, to have business communication, negotiation to carry on commercial transaction, trade, to handle, dispose a thing in any way etc. Clearly, and by the above definitions, the Appellants were rightly held to have otherwise deal with or in any crude oil, petroleum or petroleum product in Nigeria within the provision of Section 1 (17) (a) & (b) of the Miscellaneous Offences Act Cap. M Issue Two is resolved against the Appellants. On Issue Three, Appellants Counsel submitted that the trial Court could not have safely convicted the Appellants in view of the totality of the evidence adduced in the case. First, that the evidence of the prosecution witnesses was full of conflicts, discrepancies, sharp and material contradictions. That PW2 in his evidence in Chief at pages , lines of the record and his evidence under cross examination at page 141 lines 8-10 exhibited gross contradictions. For example, that 14

22 in an attempt to establish that samples of Exhibits F1-F6 and Exhibit G1-G8 were taken, PW2 first stated during his examination in Chief thus: Myself and Officer Adesina and the two defendants went to the bus that was driven into our command. I confirmed a white Hiace Toyota Bus with registration number XA 165 DEK (EKITI). Inside the bus were 6 loaded drums of PMS, 8 jerry cans filled with PMS and one empty jerry can Counsel submitted that the above testimony presupposes that the bus which was admitted and marked Exhibit E was actually opened before the contents Exhibit F1-F6 and G1- G8 were supposedly confirmed by PW2 and his team in their Command premises. That, in another breath, PW2 under cross-examination testified thus: It will be wrong to allege that I tampered with the contents of the vehicle because today is the first day I will open the vehicle. Appellants Counsel submitted that the day PW2 claimed to be the first day he would be opening the vehicle is not the same day he earlier claimed that he confirmed the contents of the vehicle. Counsel wondered how PW2 could have confirmed the contents of 15

23 Exhibit E without opening same. He noted that the issue of whether samples of the contents of Exhibits F1-F6 and Exhibits G1-G8 were taken was strongly in contention but that the trial Court glossed over these material contradictions in the evidence of the prosecution witnesses and agreed that samples were indeed taken from Exhibit F1-F6 and Exhibits G1-G8 and eventually admitted the purported laboratory analysis of the said sample in evidence as Exhibits K and KI. He referred to the cases of: ATTAH VS. STATE (2010) ALL FWLR (PT.540) 1224 AT 1246 and EJIGBADERO VS. STATE (1978) 9-10 SC 81 and submitted that it is trite that where there are material contradictions in the evidence of the prosecution, the Court ought to use such contradictions in favour of the accused person. He furthered that the inability of the prosecution to clear the doubt as to whether or not Exhibit E was opened till the trial date constitute a sufficient ground for the trial Court to resolve that discrepancy against the prosecution. He submitted that the learned trial Judge acknowledged the sharp contradiction in the testimonies of PW2 as found at page 176 of the 16

24 record and the Court wondered how possible it was for the prosecution to take samples from the contents of the drums without opening Exhibit E. But that, surprisingly, the learned trial Judge found at page 176 that The response of PW2 under cross-examination as regards tampering with Exhibit E, to my mind has to do with what happened after 14th & 15th May, 2015 and not before then. He referred to the case of: NDIDI VS. STATE (2007) ALL FWLR (PT. 381) 1617 at 1657 and submitted that a trial Court is not permitted to look for excuses to shore up the case of the prosecution. On another wicket, Appellants Counsel submitted that it is on record as could be found at page 177, lines 7-13 that Exhibit J, K and K1 do relate to request to NNPC to examine adulterated PMS recovered from some black marketers at Oloru, Oke-oyi Road, Ilorin. That the Appellants were standing trial in connection with dealing in petroleum product without the required authority and licence and criminal conspiracy. The Appellants, said Counsel, were obviously not standing trial for offences relating to adulterated PMS. Thereafter, said Counsel, the 17

25 learned trial Judge concluded that Exhibit K and K1 are the result of the laboratory analysis of samples taken from Exhibit F1-F6 and G1-G8. Counsel submitted that there is nothing to show in Exhibits K and K1 that the same were result of samples taken from the petroleum product found in possession of the Appellants. Exhibits K and K1 are not relevant to the case against the Appellants. He referred to the case of: IMOH VS. JIMOH (2013) ALL MFWLR (PT. 659) 1114 AT 1139 and concluded that Exhibits K and K1 ought to be expunged as they were wrongly admitted in evidence. Learned Counsel for the Respondent insisted that neither the evidence of PW1, PW2 nor the admissibility of Exhibits K and K1 were challenged by the Appellants. He referred to the case of: GAJI VS. PAYS (2003) 8 NWLR (PT. 325) 583 for the position of law that unchallenged evidence ought to be admitted. Appellants Issue Three raises two related issues of facts. The first is the alleged contradiction in the evidence of PW2 as to when he opened Exhibit E (the arrested vehicle). The second is the relevance and/or authenticity of Exhibits K and K1 through the request

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27 letter Exhibit. J. A careful reading of the Judgment of the learned trial Judge would show his reasoning and reasons on the resolution of these important points. He reasoned as follows: i. That the evidence of PW1 and PW2 and the admission of DW1 was more than sufficient to prove the offence in Count 2 of the charge. ii. That the alleged contradiction in the evidence of PW2 could not be taken as material because the Appellants did not deny that the samples of K and K1 were taken in their presence. iii. That the only challenge to the admissibility of Exhibits K and K1 was that PW2 was not the maker and that was resolved by the application of the provision Section 55 of the Evidence Act Cap. E The learned trial Judge thus held sundrily from page 181 of the record: First that: The evidence of DW1 is a clear admission of the crime. It is clear, that DW1 knew they were being asked to transport petrol. He is not in that line of business but accepted to transport something he knows nothing about." Second, at pages , The defence has contended that the evidence led by the prosecution is

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29 inconsistent. PW1 s testimony fixes the two Defendants at the scene of the crime in possession of the substance which they were transporting from Kanbi to Tsaragi. PW1 arrested the Defendants and handed them over to the Investigation Department. PW2 took over at the Investigation Department, it was he who took and forwarded the sample of the product to the NNPC. He took the sample in the presence of the Defendants. This fact was not challenged under cross-examination Third at pages , I have already commented on the sampling process. PW2 also testified as to the contents of Exhibit E and the 6 drums and 8 jerry cans. This was done in the presence of the Defendants. Exhibits E, F1-F6, G1-G8 and K and K1 were tendered by PW2. That these Exhibits were recovered from Defendants containing petroleum product was not challenged under cross-examination. Clearly from the vivid accounts of PW1 and PW2, the admission by DW1 and the uncontradicted and unchallenged evidence of the prosecution, the alleged contradiction in the evidence of PW2 pales into insignificance. Indeed, as a matter of law, it is not every 20

30 miniature contradiction that will vitiate a trial. Minor contradiction which did not affect credibility of witnesses will be of no avail to the Appellant. See: MUSA VS. THE STATE (2009) 15 NWLR (PT. 1165) 465 at 484 (Per Fabiyi JSC) HABIB MUSA VS. STATE (2013) 8 NCC 464 Issue Three is resolved against the Appellants. Having resolved the three (3) Issues in this appeal against the Appellants; the Appeal lacks merit and it is accordingly dismissed. The Judgment of the Federal High Court, Ilorin Division per A. O. Faji J. delivered on in Suit No. FHC/IL/12C/2015 is hereby affirmed. CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now, the judgment of my learned brother, MOJEED ADEKUNLE OWOADE, JCA. I agree with his detailed reasoning and conclusion arrived at in holding that the appeal is devoid of merit, I also dismiss it and affirm the judgment of the trial Court. HAMMA AKAWU BARKA, J.C.A.: The instant appeal is a challenge to the Judgment of the Federal High Court Ilorin delivered on the 11th of December, 2015 Coram: A. O. FAJI

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32 J. The facts of the case that generated this appeal have been eloquently set out in the lead Judgment. The three Issues identified and agitated upon, has in my humble opinion, been settled to my liking. I too share the view that this appeal is lacking in merit and ought to and is hereby dismissed. The Judgment of the Lower Court in SUIT NO. FHC/IL/12 C /2015 delivered on the 11th of December, 2015 is hereby affirmed. 22