IN THE COURT OF APPEAL

Holden at Yola
 

 

Between

APPELLANT

CHINWEDU UGOCHUKWU 

and

RESPONDENT

FEDERAL REPUBLIC OF NIGERIA

JUDGMENT
(DELIVERED BY BIOBELE ABRAHAM GEORGEWILL, JCA)    

This is an appeal against the judgment of the Federal High Court Yola Division in Charge No: FHC/YL/113C/2013: Federal Republic of Nigeria V. Chinwedu Ugochukwu delivered on 29/10/2015, in which the Appellant as Accused person was convicted on a three count charge for knowingly being in possession without lawful authority of drugs similar to Cocaine, Heroine and LSD contrary to Section 19 of the National Drug Laws Enforcement Agency Act CAP N30, Laws of the Federation of Nigeria 2004 and sentenced to ten years on each counts to run concurrently.

The Appellant was thoroughly dissatisfied with the said judgment and had promptly appealed to this court against the said judgment vide a Notice of Appeal filed on 23/11/2015 on four grounds of appeal. The Record of Appeal was duly transmitted to this court on 3/12/2015. The Appellant’s brief was duly filed on 21/12/2015. The Respondent’s brief was duly filed on 29/2/2016. The Appellant’s reply brief was filed on 14/4/2016 but deemed properly filed on 16/5/2016.

At the hearing of this appeal on 16/5/2016, M. P. Atsev Esq., who held the brief of Sule J. Abul Esq., learned counsel for the Appellant, adopted the Appellant’s brief and Appellant’s reply brief as their argument in support of the appeal and urged the court to allow the appeal, set aside the judgment of the court below and discharge and acquit the Appellant of the three counts charge as alleged against him by the Respondent. On his part, B. S. Abdullahi Esq, learned counsel for the Respondent adopted the Respondent’s brief as their argument in opposition to the appeal and urged the court to dismiss the appeal for lacking in merit and to affirm the conviction and sentence of the Appellant by the court below. 

The facts of this appeal are rather very straight forward. On 14/10/2013 at Bauchi Street, Jimeta – Yola, Adamawa State the Appellant was arrested by officers and men of the NDLEA, Adamawa State Command, Yola for being in possession in his packing shop of substances suspected to be drugs similar to Cocaine, Heroine and LSD contrary to Section 19 of the NDLEA Act 2004. He was promptly taken into detention and subsequently charged before the court before vide a three counts charged filed on 23/10/2013. The Appellant was formally arraigned before the court below on 25/10/2013 where he pleaded guilty to the three counts charge against him. However, on the resumed date for continuation of hearing of the PW1 to tender relevant exhibits, the Appellant changed his plea to that of being “not guilty” to the three counts charge against him. The case then proceeded to full trial. 
The Respondent as the Prosecution called five witnesses who testified as PW1( Ali Baba Alhaji); PW2 ( Emmanuel Christopher); PW3 ( Ibrahim Hassan); PW4 ( Bongo Ibrahim Ladini and PW5 ( Ogodo Howard) and tendered several documents and items in evidence admitted as Exhibits P1, P2 – P7, PW2A, PW2B, PW2C1 – PW2C3 and PW4A. The Appellant testified in his defence as DW1 and tendered in evidence an identity card admitted as Exhibit DW1A. At the close of the case of the respective parties, written addresses were ordered to be filed by the court below on 13/5/2015 and on 2/6/2015, the written addresses were duly adopted and the matter was adjourned to 2/7/2015 for judgment. However, the judgment was not delivered on 2/7/2015 but was eventually delivered on 29/10/2015 and the Appellant was convicted and sentenced by the court below on all the three counts as charged by the Respondent.      

My lords, since in an appeal of this nature challenging the conviction and sentence of the Appellant, the three counts as laid against him by the Respondent before the court below, is the focal point for consideration in the light of the totality of the evidence as in the record of appeal as touching the proof of the essential elements or ingredients of the alleged offences beyond reasonable doubt to secure the conviction of the Appellant, I deem it pertinent to set out the three counts charged as laid against the Appellant before the court below, thus: 
COUNT 1:
                          “That you Chinwedu Ugochukwu, male, adult, 30 years old, on or about the 4th day of October 2013 at Bauchi Street, Jimeta Yola Adamawa State within the jurisdiction of this court without lawful authority knowingly possessed 2.5 kilograms of Pentazocine injection (Psychotropic substance) a drug similar to Cocaine, Heroine and LSD and thereby committed an offence contrary to and punishable under Section 19 of the National Drug Laws Enforcement Agency Act CAP N30, Laws of the Federation of Nigeria 2004”

COUNT 2:
                           “That you Chinwedu Ugochukwu, male, adult, 30 years old, on or about the 4th day of October 2013 at Bauchi Street, Jimeta Yola Adamawa State within the jurisdiction of this court without lawful authority knowingly possessed 400 grams of Rophynal (Psychotropic substance) a drug similar to Cocaine, Heroine and LSD and thereby committed an offence contrary to and punishable under Section 19 of the National Drug Laws Enforcement Agency Act CAP N30, Laws of the Federation of Nigeria 2004”

COUNT 3:

                           “That you Chinwedu Ugochukwu, male, adult, 30 years old, on or about the 4th day of October 2013 at Bauchi Street, Jimeta Yola Adamawa State within the jurisdiction of this court without lawful authority knowingly possessed 250 grams of Lexotan (Psychotropic substance) a drug similar to Cocaine, Heroine and LSD and thereby committed an offence contrary to and punishable under Section 19 of the National Drug Laws Enforcement Agency Act CAP N30, Laws of the Federation of Nigeria 2004” 
See page 3 of the record. 

In the Appellant’s brief, Sule J. Abul Esq., learned counsel for the Appellant had distilled two issues for determination in this appeal, namely: 

1.    “Whether from the totality of evidence before the trial court, the trial court was right when it held that the Prosecution had proved all the three counts in the charge against the Appellant beyond reasonable doubt in consequences of which it convicted and sentenced the Appellant?” (Distilled from Grounds 1, 2 and 3 of the Grounds of Appeal.) 

2.    “Whether the trial court occasioned a miscarriage of justice by its failure to deliver judgment in respect of Charge No: FHC/YL/113C/2013 within the statutory period provided for by law?” (Distilled from Ground 4 of the Ground of Appeal.) 

In the Respondent’s brief Abu Ibrahim Esq., learned counsel for the Respondent had adopted the two issues for determination as distilled by the Appellant’s counsel.

In the circumstances therefore, in which both counsel are ad idem on the issues for determination in this appeal from the four grounds of appeal and having given due considerations to the facts and evidence as led by the parties as in the record and the judgment of the court below, I find these two issues as distilled by the Appellant’s counsel and conceded to by the Respondent’s counsel as the two apt issues for determination in this appeal.

They are hereby adopted and set down as the two issues for determination in this appeal, namely: 

1.    Whether from the totality of evidence before the trial court, the trial court was right when it held that the Prosecution had proved all the three counts in the charge against the Appellant beyond reasonable doubt in consequences of which it convicted and sentenced the Appellant? 

2.    Whether the trial court occasioned a miscarriage of justice by its failure to deliver judgment in respect of Charge No: FHC/YL/113C/2013 within the statutory period provided for by law?
I shall therefore, proceed to consider and resolve these two issues for determination ad seriatim, commencing with the first issue for determination. I do so anon!

ISSUE ONE.
                      Whether from the totality of evidence before the trial court, the trial court was right when it held that the Prosecution had proved all the three counts in the charge against the Appellant beyond reasonable doubt in consequences of which it convicted and sentenced the Appellant? 

Learned counsel for the Appellant submitted that Section 19 of the NDLEA Act 2004 makes it clear that the drugs found in possession of the Appellant are not prohibited drugs which one cannot under whatever reasons keep in his possession and contended that the drugs found in possession of the Appellant are not prohibited but rather controlled drugs going by the provisions of Section 19 of the NDLEA Act 2004, which should be so construed and therefore were not prohibited drugs. Counsel relied on AG. Kano State V. AG. Federation (2007) All FWLR (Pt. 364) 238 @ p. 258; International Tobacco Company Ltd .V. National Agency for Food and Dru Administration and Control (20070 All FWLR (Pt. 382) 1981 @ p. 2001.
Learned counsel for the Appellant further submitted that the Respondent failed to prove the counts alleged against the Appellant beyond reasonable doubt as required by law by the failure to prove all the essential elements or ingredients of the offences charged under Section 19 of the NDLEA Act 2004 and contended that the Appellant in such circumstances was entitled to be discharged and acquitted and not to be convicted and sentenced as erroneously done by the court below. Counsel relied on Adeyemi & Ors V. The State (2012) All FWLR (Pt. 606) 492 @ p. 505.

Learned counsel for the Appellant also submitted that an essential ingredient of the offences charged was “without lawful authority” and contended that the Appellant gave unchallenged evidence of his lawful authority to be in possession of the drugs found in his possession, which at any rate were not prohibited drugs but merely controlled drugs and urged the court to hold that the unchallenged evidence of the Appellant created doubts which in law ought to be resolved in favour of the Appellant. Counsel relied on Addo V. The State (2011) All FWLR (Pt. 566) 585 @ p. 594.

On his part, learned counsel for the Respondent submitted that the duty on the prosecution in a criminal trial is to prove the case against the Accused person beyond reasonable doubt as required by law but not proof beyond all doubts or beyond every shadow of doubts and contended that improbable doubt or slight doubt or an unlikely doubt or any doubt not supported by credible evidence would not suffice to amount to reasonable doubt. Counsel referred to Section 36(1) and (5) of the Constitution of Nigeria 1999 as amended and Section 135 of the Evidence Act 2011 and relied on Bakare V. The State (1987) NSCC 267 @ p. 273; Ugwanyi V. FRN (2013) All FWLR (Pt. 662) 165 @ p. 166; Okewu V. FRN (2012) All FWLR (Pt. 625) 205 @ p. 223; Chukwuma V. FRN (2011) All FWLR (Pt. 585) 231 @ pp. 244 – 245; Shurumo v. The State (2011) All fwlr (Pt. 568) 864.

Learned counsel for the Respondent further submitted that in law to prove a criminal charge beyond reasonable doubt all that the Prosecution need do is to prove the essential elements of the offence(s) charged and contended that by the evidence led through PW2 and PW5 coupled with Exhibits PW2A, PW2B, PW2C1 – C3, the Respondent had established beyond reasonable doubt that the substance found in the Appellant’s possession were Psychotropic substances, a controlled substance and were in the knowingly in possession of the Appellant and for which he was rightly convicted and sentenced by the court below pursuant to Section 19 of the NDLEA Act 2004. Counsel referred to Section 10 (h) of the NDLEA Act 2004.

Learned counsel for the Respondent also submitted that whether or not the Appellant has lawful authority to possess the Psychotropic substances with which he was found to be in possession and charged, convicted and sentenced was a fact within his personal knowledge and the onus of proof lies on the Appellant to prove same. Counsel referred to Section 136 (1) of the Evidence Act 2011. 

In his reply, learned counsel for the Appellant submitted that once there is a doubt created in the case of the Prosecution, the law is and has always been that such doubt ought to be resolved in favour of the Accused person, such as the doubt created in the Respondent’s case by the unchallenged evidence of lawful authority by the Appellant. Counsel relied on Akawo V. The State (2011) All FWLR (Pt. 597) 624 @ pp. 664 – 665.

My lords, in law to secure conviction of an Accused person, the Prosecution must by cogent and credible evidence prove the alleged offence(s) beyond reasonable doubt. A proof beyond reasonable doubt is attained once all the essential elements of ingredients of the offence(s) charged have been duly established by cogent and credible evidence. There is therefore, in law as rightly submitted by the Respondent’s counsel no duty of the Prosecution to prove its case beyond all shadows of doubt before a conviction can be secured. See Emmanuel Eke V. The State (2011) 200 LRCN 143 @ p. 149. 

What then in law is “proof beyond reasonable doubt”? In Bakare V. The State (1987) NSCC 267 @ p. 273, the erudite Oputa JSC, (God bless his soul) had expounded the legal requirement of “proof beyond reasonable doubt” succinctly thus: 
                       

    “Also it has to be noted that there is no burden on the Prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable doubt. Reasonable doubt will automatically exclude unreasonable doubt, imaginary doubt and speculative doubt, a doubt not borne out by the surrounding circumstances of the case.............................Absolute certainty is impossible in human adventure including criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit a high degree of cogency consistent with an equally high degree of probability”

See also Chukwuma V. FRN (2011) All FWLR (Pt. 585) 231; Shurumo V. The State (2011) All FWLR (Pt. 568) 864.

In law the burden of proof, that the duty to prove the alleged offence(s) against an Accused person beyond reasonable doubt, is static. It is squarely on the Prosecution. It never shifts. There is thus never any duty or burden or onus on the Accused person to prove his innocence under any circumstances in our criminal jurisprudence when the Prosecution has not proved its case beyond reasonable doubt or at least on a prima facie basis against the Accused person at the close of its case. See Adeyemi V. The State (2012) All FWLR (Pt. 606) 492 @ p. 505, where this court had emphatically pronounced inter alia thus:
               

          “In criminal cases, the burden of proof is on the Prosecution who must prove its case beyond reasonable doubt. Thus, the Prosecution must discharge the general duty of rebutting the presumption of innocence constitutionally guaranteed to the Accused person. This onus never shifts.”

Happily and quite interestingly too, both the Appellant and the Respondent as well as the court below by its judgment are ad idem on the essential elements or ingredients of the offences with which the Appellant was charged under Section 19 of the NDLEA Act 2004 and for which the Appellant was convicted and sentenced by the court below. These ingredients of the offences charged and as correctly identified by the parties and accepted by the court below and which I too accept as correctly representing the three ingredients of the offence created under Section 19 of the NDLEA Act 2004, are as follows, namely: 

1.    Being knowingly in possession of the suspected substance
2.    Without lawful authority
3.    Substance is prohibited or controlled substance.  

See Ugwanyi V. FRN (2013) All FWLR (Pt. 662) 1655 @ p. 1664. See also Odeh V. FRN (2008) All FWLR (Pt. 424) 1615.

 The court below had admirably and quite rightly too in my view set out these essential elements or ingredients of the offences alleged against the Appellant by the Respondent in its judgment thus: 
                       

   “From the wordings of the above Section 19 of the NDLEA Act, the ingredients of the offence are clearly;
1.    That the person who possessed the stated drugs has knowledge or is aware that the drugs are in his possession.
2.    That he has no lawful authority to be in possession of the drugs.
3.    That the drugs are proved to be the drugs stated in the Section or others similar to them” 

See page 85 of the record.

Now, the court below having correctly identified the three ingredients of the offences with which the Appellant was charged, how did it approach and resolved it on the evidence led before it in its judgment as in the printed record? This was how the court below considered and resolved these three ingredients of the offences charged against the Appellant in its judgment, inter alia, thus: 

“The Prosecution in this case before me alleged that the drugs found in the possession of the Defendant are “psychotropic drugs similar to Cocaine, Heroine and LSD”; that the Defendant knowingly possessed them and that he has no lawful authority to be in possession of the drugs...............Thus the issue for determination is whether the Prosecution has established the above ingredients of the offences the Defendant is charged with? The first ingredient of the offence is possession, actual or constructive of the drugs by the Defendant......................................I therefore hold that the Prosecution has proved that the drugs in issue were indeed found in the possession of the Defendant and the Prosecution has proved this ingredient of the offences charged. The second ingredient of the offences charged is that the Defendant possessed the drugs knowingly.......................................The second ingredient of knowledge that the drugs were in his possession has been proved against the Defendant and I so hold. The last ingredient of the offences of possession is that the drugs are scientifically confirmed to be the drugs stated in Section 19 or similar to them.............................................The 3rd ingredient of the offence of possession of the drugs, that is that the drugs were scientifically proved to be drugs similar to Cocaine, Heroine and LSD has been proved and I so hold. It means that the Prosecution has discharged the burden of proof placed on it by law by proving all the ingredients of the offences charged against the Defendant”
See pages 86 – 89 of the record. 

My lords, here lies the bone of contention between the parties as touching on the first issue for determination in this appeal. While the Appellant contends vehemently that the Respondent did not discharge the onus of proving the offences charged against him beyond reasonable doubt as required by law by proving all the ingredients of the offences charged, the Respondent contends vehemently too that all the ingredients of the offences charged were duly established by cogent evidence and the case of the Appellant was proved beyond reasonable doubt as required by law.

In resolving these crucially divergent contentions, which indeed in my view is the real crux of this appeal, I bear in mind the clear position of the law as earlier reiterated in this judgment that the burden of proof in criminal cases, which is proof beyond reasonable doubt, is static and lies on the Prosecution and it never shifts unto the Accused person. 

The court below had as I had earlier observed correctly, in my view, identified and set out the three essential elements or ingredients of the offences with which the Appellant was charged to be briefly; a. Possession; b. Without lawful authority and c. Psychotropic substance, but curiously throughout the gamut of its consideration of the case of the Respondent against the Appellant, it gave neither thought nor consideration to the second ingredient of the offences charged to wit; “Without lawful authority” as part of the ingredients of the offences to be proved by the Respondent against the Appellant in order to secure his conviction.

I have taken the time to reproduce earlier in this judgment in extenso the considerations and finding of the court below on the ingredients of the offences charged against the Appellant, in which the ingredients were limited to a. Possession; b. knowingly in possession and c. Psychotropic substances as opposes to the true ingredients of the offences charged to wit: a. Knowingly being in possession; b. Without lawful authority and c. Psychotropic substance. 

It does appear so obviously and I so hold that lacking in the entire consideration of the case of the Respondent by the court below was the second ingredient of the offences charged to wit: Without lawful authority”, which in my view is perhaps the most crucial of all the three ingredients of the offences with which the Appellant was charged by the Respondent before the court below.

Curiously but regrettably though, it would appear that the court below was led into this grave error of not considering the second ingredient of “without lawful authority” as an essential element of the offences charged against the Appellant, even after correctly identifying it earlier in its judgment at page 85 of the record, by the very vehement but hopelessly erroneous and unfounded contention of the Respondent as Prosecution in its final written address before the court below, where it had submitted thus: 
     

                    “On the issue of lawful authority, we submit that the onus lies on the Defendant to prove lawful possession........................Moreover, the Defendant failed to establish that he has lawful authority to possess those drugs”
See pages 26 – 27 of the record. 

Taking a cue, as it appears from the Respondent’s submission, the court below left out the second ingredient of “without lawful authority” in its consideration of the ingredients of the offences charged and rather proceeded to shift the burden of proving “without lawful authority” unto the Appellant when it stated and held inter alia thus: 
           

              “Section 135(3) of the Evidence Act 2011 provides that..........................The Defendant testified in his defence and tendered an identification card of an Association of Patent Medicine Dealers to which he belonged.............................He said he is authorised to be in possession of the drugs and to supply them to the Pharmacist as a patent Medicine Dealer. But he who asserts has to prove, according to Section 136(1) of the Evidence Act 2011........................”

See pages 89 – 90 of the record. 

Amusingly, though with due respect, the Respondent who had succeeded in misleading the court below as to the ingredients of the offences charged and leaving out the crucial ingredient of “without lawful authority” had once again made that submission before us in this appeal as the correct position of the law when it submitted in the Respondent’s brief inter alia thus: 

                          “We submit that whether or not the Appellant has lawful authority to possess Psychotropic substances, with which he was charged, convicted and sentence was a fact within his personal knowledge and by virtue of Section 136(1) of the Evidence Act 2011, the onus of proof lies on the Appellant. This court is urged to so hold.”

 The provision of Section 19 of the NDLEA Act 2004, under which the Appellant was charged by the Respondent and was convicted and sentenced by the court below, is very instructive as to the ingredients of the offence created under that Section. It provides thus: 

                         “Any person who without lawful authority, knowingly possesses the drugs popularly known as Cocaine, LSD, Heroine or any similar drugs shall be guilty of an offence under this Act and liable on conviction to be sentenced to imprisonment for a term not less than fifteen years and not more than twenty five years” (Underlining is mine for greater emphasis and focus) 

On the clear and very unambiguous provisions of Section 19 of the NDLEA Act 2004, as set out above, the onus of proof that the Appellant was in possession of the Psychotropic substances “without lawful authority” was in my view squarely on the Respondent. It is in my further view the most crucial of the three ingredients of the offence created under Section 19 of the NDLEA Act 2004 and with which the Appellant was charged by the Respondent. The Respondent carried with it the onerous burden of proving that the Appellant was in possession of the Psychotropic substances without lawful authority. To therefore, shift this crucial burden or onus or duty of proving “without lawful authority” unto the Appellant, as did the court below on the leading and prompting of the Respondent, to prove “lawful authority” was clearly turning the onus of proof upside down. It was illogical. It was unjust and it was also unfair. 

In law, it is only and only if the court below had considered the second crucial element of “without lawful authority” and found that on the evidence as led by the Respondent it has been made out at least on prima facie basis that the burden of proving lawful authority, as a defence, would then shift unto the Appellant. Thus, in a judgment in a trial on a charged laid under Section 19 of the NDLEA Act 2004, such as the one of the court below on appeal to this court and now under consideration, where the ingredient “without lawful authority” was not even considered as part of the ingredients of the offence created under Section 19 of the NDLEA Act 2004 to be proved by the Prosecution, the Respondent, it was clearly in grave error for the court below to require the Appellant to carry the onus of proving “lawful authority” when the Respondent had not proved and the court below had not considered “without lawful authority” as part of the ingredients of the offence created under Section 19 of the NDLEA Act with which the Appellant was charged by the Respondent.

In my finding therefore, the decision of the court below requiring the Appellant to prove lawful authority in the absence of any evidence of without lawful authority, as no such evidence was led by any of the PW1, PW2, PW3, PW4 and PW5, who were all simply fixated with the fact of the Appellant being knowingly in possession of the suspected substances and which upon laboratory analysis were confirmed scientifically to be Psychotropic substances similar to Cocaine, Heroine and LSD and thus leaving out the fact of without lawful authority to be proved by the Appellant was most perverse and erroneous. 

In like manner, the court below also not considering the ingredient of without lawful authority in its judgment as part of the ingredients of the offences alleged against the Appellant by the Respondent but requiring the Appellant to prove lawful authority was, with greatest respect, tantamount to calling on the Appellant to prove his innocence. This is thus a clear case of misplacement or misapprehension of the burden and onus of proof in a criminal trial by the court below. 

A misdirection by way of misplacing the burden of proof on an Accused person, such as the Appellant, and requiring him not only to prove an essential element of the offences with which he is charged but also his innocence is a grave misdirection and the findings that the Appellant had not proved his innocence when the Respondent had failed to prove all the three essential elements of the offence created under Section 19 of the NDLEA Act was utterly perverse. Thus, in all cases in which a trial court places the burden of proof wrongly and in such error proceeds to determine the case to the detriment of the party on whom the burden of proof was wrongly placed, it would in my view clearly amount to a grave misdirection capable of rendering the entire decision of the trial court erroneous and liable to be set aside. In law, therefore, the consequences of grave misdirection as to the onus of proof could be very devastating on the judgment of the court appealed against and an appellate court would readily intervene to set aside such a judgment. See    PHMB V. Ejitagha (2000) 11 NWLR (Pt. 677) 154; Adedeji V. Oloso (2007) 5 NWLR (Pt. 1026) 133; 

                 In Onobruchere V. Esegine (1986) 2 SC 385; the erudite Oputa, JSC.,(God bless His soul) had poignantly put it thus: 
                                         

    “Once it is found that there had been a misapprehension as to the onus of proof and a misdirection casting such onus on the wrong party, I think it will be reasonably fair to assume the likelihood of a miscarriage of justice...”

Again in Hon. Zubairu & Anor. V. Lliyasu Mohammed & Ors. (2009) LPELR 5124 (CA,) this Court per Augie, JCA, had put this issue succinctly in its proper context thus: 
                   

    “Misdirection as to the onus of proof is a very serious error, indeed and to say that the Lower Tribunal in this case definitely erred, is to put it mildly..............which is unfortunate and a proven instance of miscarriage of justice....”     

I hold firmly therefore, that unless and until the Respondent, as Prosecution, prima facie proves by cogent and credible all the essential elements or ingredients of the offences charged under Section 19 of the NDLEA Act 2004 against the Appellant, the issue of the defence of the Appellant does not arise at all for consideration by the court below. Thus, in a criminal trial, at the close of the Prosecution case if one or more or some of the ingredients of the offence(s) charged has not been proved at least prima facie, it is incumbent on the trial court, which is neither on an inquisition mission or persecution, to discharge the Accused person at that stage without necessarily even calling on him to enter upon his defence as doing so would clearly amount in law to calling upon the Accused person to prove his innocence contrary to the constitutional presumption of his innocence until the contrary is proved. See Adeyemi & Ors V. The State (supra) at p. 505.

It is only and only when the Prosecution has proved the offence through cogent and credible evidence beyond reasonable doubt or at least prima facie that the burden will shift unto the Appellant as Accused person to prove the existence of reasonable doubt as provided in Section 135(5) of the Evidence Act 2011. There can therefore, be no duty or burden on an Accused person to prove the existence of any reasonable doubt when the Prosecution had not proved the alleged offence beyond reasonable doubt. 

This is where, with due respect, the court below got it all wrong when it misplaced the burden of proof and misdirected itself as to on whom the onus of proving without lawful authority lies and held perversely that it lied on the Appellant. It is only where this second most crucial ingredients has also been shown to exist at least prima facie that the onus would shift unto the Accused person to prove lawful authority, failing which if the other two ingredients had also been proved then the Accused would be rightly convicted of the offence created under Section 19 of the NDLEA Act. Generally, the law is and has always been: he who asserts must prove! See Ayinde V.Abiodun & Ors. (1999) 8 NWLR (Pt. 616) 587. See also Ewo & Ors. V. Ani & Ors. (2004) 3 NWLR (Pt. 861) 610 @ p.630; Trade Bank Plc. V. Chami (2003) 13 NWLR (Pt. 836) 158 @ p. 204; Osawura V. Ezeiruka (1978) 6 – 7 SC 135 @ p. 145; Umeojiako V. Ezenamuo (1990) 1 NWLR (Pt. 126) 225; Ugbo V. Aburime (1993) 2 NWLR (Pt. 273) 101.    

It is pertinent for me to point it out at once that in law the offence of possession of prohibited or controlled drugs is not a strict liability offence. It is not simply an open and shot case once an Accused person is found to be in possession of suspected substance and promptly arrested with the prohibited or controlled drugs and charged to court. The Prosecution must still prove by cogent credible evidence the three essential elements of the offence, namely; a. being knowingly in Possession; b. without lawful authority and c. the drug being confirmed a prohibited or controlled drug.

In the instant appeal, the court below after correctly identifying these essential elements, regrettably failed to consider each of these three ingredients of the offence charged but rather proceeded to consider only the first ingredient, which it subdivided into the first and second elements and proceeded to consider the third elements while leaving out the second element of without lawful authority, which it considered as a burden on the Accused person to be proved by the Accused person as his defence being in its view a fact within his person knowledge. So was the court below right when it held that the onus of proving without lawful authority, which it converted to lawful authority, was on the Appellant? In my finding, in law the Appellant carried no such burden of proof unless and until the Respondent had led sufficient credible admissible evidence in support of the second element of the offence, without lawful authority in the Appellant to possess the controlled drugs as would shift the burden unto the Appellant to call rebuttal evidence of his lawful authority to be in possession of those drugs found in his possession.

 Looking at the judgment in totality, it is clear that the court below misconceived in her evaluation both the second ingredient of the offence charged and the placing of the burden of proof of the three essential elements of the offence charged by placing the burden of proving the first and third elements on the Respondent and the second element on the Appellant when in law all three elements must be proved by the Respondent against the Appellant and not otherwise. Thus, the court below had summersaulted and laboured under the grave and unpardonable error that the burden of proving the second element, without lawful authority, was on the Appellant and proceeded to find him guilty for not proving his lawful authority to be in possession of the controlled drugs found in his possession in his packing shop. In law therefore, where a court misplaces the onus of proof on the wrong party and thus erroneously shifting the burden placed by law, then the judgment ought to be set aside. See Uche Odiaka V. The State (2013) LPELR 21977 (CA); Ebong . The State (2012) All FWLR (Pt. 633) 1945 @ pp. 1968 – 1969; Akinkunmi V. Sadiq (1997) 8 NWLR (Pt. 516 277 @ p. 291; UBN Ltd. V. Osezuah (1997) 2 NWLR (Pt. 485) 28; Nor V. Tarkaa (1998) 4 NWLR (Pt. 544) 130 @ pp. 137 – 138; Iheanacho V. Chigere (2004) 17 NWLR (Pt. 901) 130; Gilsod Associates Limited V. ALGON (2011) LPELR 4197 (CA).

I therefore, answer the first issue for determination in favour of the Appellant and hold firmly that the onus or burden of proof without lawful authority was squarely on the Respondent being the second essential element or ingredient of the offence with which the Appellant was charged by the Respondent and not on the Appellants as was erroneously decided by the court below. The conviction of the Appellant resulting into his imprisonment for ten years on such a grave misdirection and misplacement of the onus of proof by the court below is a classical case of proven miscarriage of justice and cannot be allowed to stand. It must be set aside and the Appellant allowed to breathe once again the free air as an innocent citizen of this country against whom the Respondent had failed to prove the offences alleged against him beyond reasonable ground. 

I am constraint, by the attitude of the court below which leans towards conviction at all costs due to the prevalence of drugs abuse and its related issues in our society and the resultant damages, to observe that a court of law is not a place for morality or gauging public opinion without legal proof of guilt. In other words, before a court can solemnise on morality there must be before it proof of the legal guilt of the Accused person. Morality, that which is morally wrong or reprehensible alone without legal proof of guilt is not sufficient to convict an Accused person and to sentenced him to doing time in prison. This was exactly what the court below did when it allowed itself to be overwhelmed by the prevalence of drug abuse and dealings in prohibited and controlled drugs by Patent Medicine Dealers to sway its feeling in arriving at conclusions not justified by the evidence led by the Respondent and thus failed in its duty to dispassionately consider the totality of the case, including the second element of the offence charged and yet proceeding to convict the Appellant for offences, one of whose critical and essential element or ingredient, without lawful authority, was not proved by the Respondent. 

In my finding, the Appellant ought to have been discharged when at the close of the Respondent’s case there was no cogent and credible evidence of the second element of the offences charged, namely; without lawful authority rather than the Appellant being made to prove his innocence as did the court below to prove lawful authority when without lawful authority has not been proved by the Respondent and regrettably was not even considered as an essential ingredient of the offence by the court below in its judgment. 

Having resolved the first issue for determination in favour of the Appellant against the Respondent and holding firmly that the Respondent did not prove the second crucial ingredient of the offence charged, which was not even considered by the court below as part of the ingredients of the offence proved by the Respondent and thus no case was even made out against the Appellant for which he ought even to have been called upon to enter his defence save to prove his innocence as was done by the court below, I have asked myself if there is still any life issue left in the 2nd issue for determination in this appeal?  I think not but let me for the sake of completeness and being the penultimate court which is under a duty to consider and resolve all issues canvassed before it by the parties proceed anon to consider and resolve the second issue for determination, albeit very briefly.
 ISSUE TWO:

                       Whether the trial court occasioned a miscarriage of justice by its failure to deliver judgment in respect of Charge No: FHC/YL/113C/2013 within the statutory period provided for by law?

Learned counsel for Appellant submitted that the judgment of the court below was delivered 30 days after the 90 days as prescribed by law and contended that a careful perusal of the said judgment would reveal that the time lapse had adversely affected the perception, appreciation and evaluation of the evidence by the court below and had thereby occasioned a miscarriage of justice and he thus urged the court to set aside the judgment of the court below.  Counsel referred to Section 294 (1) and (5) of the Constitution of Nigeria 1999 as amended and relied on Ayinke Stores V. Ola Adebogun (2013) All FWLR (Pt. 682) 1797 @ p. 1811.

On his part, learned counsel for the Respondent submitted the delivery of judgment outside the constitutionally allowed period under Section 294(1) of the Constitution of Nigeria 1999 as amended does not ipso facto render such a judgment liable to be set aside without more by virtue of Section 294(5) of the Constitution of Nigeria 1999 as amended. Counsel relied on Cotecna International Limited V. Churchgate Nig. Limited (2010) 12 SC (Pt. 11) 140; African Continental Bank Ltd. & Anor V.  Ajugwa (2012) 2 NWLE (Pt. 1295) 97 @ p. 104.

Learned counsel for the Respondent further submitted that the court below had explained the reasons for the delay in delivering the judgment and in the absence of any miscarriage of justice occasioned by the delay, as none has been shown, the judgment is not liable to be set aside. 

My lords, notwithstanding my desire to consider this second issue albeit briefly, being an issue submitted to us for consideration by the parties, I still find myself debating within me if there is really any life isssue left in this issue to be determined as would be of any utilitarian value to either or both of the parties to this appeal. In my respectful view issue two is indded no longer of any utilitarian value to this appeal as it has been rendered merely academic and has ceased to be live issues in this appeal in the sense that its further resolution one way or the other will have no crucial effect on this appeal, which by the resolution of the first issue for determination in favour of the Appellant has renderd the appeal to be pregnant with great merit and perforce must succeed. In law, there is no duty on Court to consider and resolve academic issues. See Mrs Sasan Olley V. Hon. Olakulu Ganuju Tunji & Or (20130 10 NWLR CA 1362) 275. See also Olabisi Oyeniyi V. Tajudeen Kareem & Ors (2012) 20 WRN 91; Chief Adedayo & Anor V. PDP & Ors (2013) 17 NWLR (Pt. 1382) 1;Senator Adelphus Igbeke V. Lady Margeny Okadigbo & Or (2013) 12 NWLR (Pt. 1368) 225; Trade Bank Plc V. Benilux Nig Ltd (2003) 9 NWLR (Pt. 825) 416 See also Ukejianya  V. Uchendu (1950) 13 WACA 45; Nwecha V. Gov. of Anambra State (1984) 1 SCNLR 634; Eperokun V. University of Lagos (1986) 4 NWLR (pt. 43) 162..    

In Charles Oke & anor. V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per  Muhammad JSC, had this to say on this issue: 

“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose”.  

In law, when a particular point is said to be merely academic it means that it has no real relevance or effect.  In other words, the issue or point has become spent and is no longer of any benefit or value and it is therefore, not worth spending the precious and scare judicial time of this ever busy penultimate Court in the hierachy of Courts in this Country  dissipating energy thereon. I shall therefore, not proceed any further to consider issue two in any details but will only do so albeit breifly, since in my firm view it is no longer a live issue and in law there is no duty imposed on me to proceed to do so in the light of the resolution of the first issue, which has in my view completely determined the appeal exhaustively with finality leaving nothing further of any utilitarian value in this appeal. 

Be that as it may, it is common ground between the parties that the respective case of the parties before the court below was closed on 24/11/2014 and 13/5/2015 respectively. The final written addresses of the parties were duly adopted on 2/6/2015 and judgment was fixed for 2/7/2015 but that judgment day was not to be until 29/10/2015, when judgment was delivered, which was about 30 days outside the 90 days as prescribed by Section 294(1) of the Constitution of Nigeria 199 as amended. 

Happily, both parties through their respective counsel are ad idem that in law the mere fact that judgment was delivered outside the 90 days period as prescribed by law would not ipso facto, without more, render such judgment liable to be set aside or treated as a nullity unless there has been occasioned thereby a miscarriage of justice by reason of the delay in the delivery of the judgment. 

The starting point in the resolution of this second issue is therefore the provisions of Subsection 5 of Section 294 of the Constitution of Nigeria 199 as amended, which provides thus:  

                                294(5): “The decision of a court shall not be set aside or treated as a nullity solely on the ground of non compliance with the provisions of Subsection (1) of this Section unless the court exercising jurisdiction by way of appeal or judicial review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”

The court below had proffered what it considered its excuses for not delivering the judgment within the 90 days as prescribed by law. Let us hear what the court below gave as its reason thus: 
                   

      “This judgment was adjourned from 2nd June 2015 to 2nd July 2015. However, I was not able to deliver it on the date until the court vacation which started on 15th July 2015. We resumed on 15th September 2015. The sallah break and Court’s legal year and conference also intervened. Thus the late delivery of this judgment”
See page 94 of the record.

My lords, in law a judgment not delivered within the prescribed time for such flimsy reason as those set out belatedly in the judgment of the court below is still not ipso facto without more liable to be set aside or treated as a nullity unless miscarriage of justice is shown.  However, I find the reasons proffered by the court below for the failure to deliver the judgment within the constitutionally stipulated 90 days as not only flimsy and spurious but also laughable. No wonder, the court below forgot completely that the three essential ingredients of the offences charged, which it correctly identified at page 86 of the record of appeal, were not what it eventually considered in convicting and sentencing the Appellant to ten years imprisonment, when it without considering the second most crucial element of the offence, without lawful authority, proceeded to convict the Appellant. This is clearly a travesty of justice. Courts of trial must be alive to their responsibilities, particularly in criminal trials involving the liberty of the citizen. 

This is very important because where a convict is not able to appeal against such a judgment, such as the instant one under consideration, then such injustice by reason of likely miscarriage of justice occasioned by the lapse of time on the memory of the court would last forever and an innocent person punished for a crime he did not commit according to law. I therefore, without any hesitation deprecate in strong terms the flimsy reasons given, such as courts vacation, sallah break, legal year and conference, as if these occasions inhibits the court below from writing its judgment,  for the failure of the court below to deliver its judgment within the 90 days period as prescribed by law. 

At any rate, in my view, the court’s vacation is rather a period, in which the court below which had a pending judgment on its hands was indeed in a greater advantaged position to write the said judgment to be delivered as soon as the vacation period was over and not a period rather to be used as an excuse for not writing the pending judgment. I consider these excuses as lame, baffling and trifling, more so with the adverse effect it has had on the judgment of the court below, which had rendered the said judgment in my finding liable to be set aside. However, I have already earlier found in this judgment that the judgment of the court below was perverse and liable to be set aside on the merit.  

In the circumstances therefore, I hold that the lapse of time clearly adversely affected the court below proper perception of the case as presented by the parties before it as in the printed record and resulted into its oscillation on the essential ingredients of the offences charged and the unjustifiable and unwarranted shifting of the onus of proof of the second ingredients of the offences charged unto the Appellant contrary to law and thereby occasioned grave miscarriage of justice on the Appellant, for which the judgment of the court below is also liable to be set aside and I so hold. Consequently, the second issue is also hereby resolved in favour of the Appellant against the Respondent.

My lords, as I bring this judgment to a close, I deem it pertinent to reiterate by was of a parting comment in passing that the law is and has always been that while the dictates of justice commands that the guilty be convicted and punished according to law, the innocent must be set free for after all it is better for 99 guilty to go scot free than for one innocent person, such as the Appellant in the instant appeal against whom the second most crucial elements or ingredients of the offence created under Section 19 of the NDLEA Act 2004 was not proved, to be convicted and punished for an offence he had not been proved to have committed beyond reasonable doubt as required by law.  So be it! See Sylvester Ogbomo V. The State (1985)  1NSCC 224. See also Abeke Onafowokan V. The State (1987) 7 SCNJ 238.

On the whole therefore, having resolved both issues for determination in favour of the Appellant against the Respondent, the appeal is pregnant with merit and perforce must succeed. It is hereby allowed. 
In the result, the judgment of the Federal High Court Yola Division in Charge No: FHC/YL/113C/2013: The Federal Republic of Nigeria V. Chinwedu Ugochukwu delivered on 29/10/2015 is hereby set aside.  In its stead, the Appellant is hereby forthwith discharged and acquitted of all the three counts charged as laid against him by the Respondent for of the Respondent to prove the alleged offences beyond reasonable doubt as required by law. 

JUMMAI HANNATU SANKEY, J.C.A.
I had the opportunity to read in draft the Judgment of my lord Georgewill, J.C.A., just delivered. My learned brother has meticulously and comprehensively considered all the issues raised for determination in this Appeal. It will therefore be merely repetitive of all that my lord has fully and exhaustively pronounced upon in the lead Judgment to add anymore thereon.
It suffices to say that I agree that the Appeal has merit, and it is accordingly allowed.
                                                                             
SAIDU TANKO HUSAINI
I had the advantage of reading in draft the Judgment just delivered by my brother, Biobele Abraham Georgewill, JCAwith whom I concur.

In criminal cases, the burden duty lie with the Prosecution who must prove the guilt of the accused person, being the party who asserts the affirmative. Refer to Section 131 (1) (2) and Section 135 (1) (2) of the Evidence Act. The proof required is by the standard of proofbeyond reasonable doubt and this entails that the Prosecution must bring to bear all necessary ingredients required for the proof of a given offence. He must lead evidence to prove those ingredients of the offence in order to discharge the burden. See: Alabi Vs. State (19930 7 NWLR (Pt. 307) 57, 523. 

It is important to note that the burden on the prosecuting authorities to prove the guilt of an accused person does not shift not until a prima facie case is established requiring the defendant the accused person to offer explanation by way of defence to rebut the allegation as established by evidence.

In the case of the charge brought against the appellant under section 19 of the National Drug Law Enforcement Agency Act, 2004 the prosecution was required to lead evidence and prove the following 3 (three) ingredients, namely;

1.    Knowingly being in possession of the suspected substance.
2.    Without lawful authority 
3.    Substance is a prohibited or controlled substance.

It is crystally clear from the evidence led on record that none of the witnesses called by the Prosecution gave evidence in relation to the 2nd ingredient that is the appellant had in his possession the suspected substance “without lawful authority” but it is for the Prosecution to prove that element of the offence not the accused person/appellant hence the court below was/is in error to shift this burden duty from the Prosecution to the appellant. This is a misplacement of the duty statutorily vested on the prosecuting authorities. It is for this reason and the more detailed reasoning as contained in the lead Judgment that I too will allow this appeal and set aside the Judgment delivered at the Federal High, Yola in Charge No. FHC/YL/113C/2013. I abide by other consequential orders contained in the lead Judgment.

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COUNSEL

M. P. Atsev Esq., holding the brief of Sule J. Abul Esq., for the Appellant
B. S. Abdullahi Esq., Legal Officer, NDLEA Adamawa Command, Yola for the Respondent.