Justice Abdulahi Mikailu of the High Court in Banjul has dismissed the criminal appeal case involving one Lamin Darboe and the state. The appellant, Lamin Darboe was tried by the Banjul Magistrates' Court on a charge of possession of prohibited drug for the purpose of drug trafficking, contrary to Section 43(4)(e) of the Drug Control Act 2003 as amended.
The trial of the appellant at the magistrates' court involved the testimonies of four prosecution witnesses and a defence witness, which ended on the 23rd April 2011. In a judgement delivered on the 18th July 2011, the presiding magistrate, T.A. Alagbe found the appellant guilty as charged and convicted and sentenced him to serve 15 years imprisonment accordingly.
The facts of the case put forward by the prosecution are that on the 21st October 2012, one 1st Class Constable Momodou Alieu Baldeh, a police officer was at the Sololo Check Point between the hours of 17:00 - 18:00 hours when a 7-passenger Peugeot vehicle with registration number 'BJL 5822 D' arrived. CPL 1199 Fatty assigned him to conduct search on the said vehicle, which he did.
In the course of the search, he recovered a military bag on top of the vehicle and when he further searched the bag, he discovered four bundles of suspected Cannabis sativa, and the appellant accepted ownership of the bag. Consequently the appellant was arrested and taken to Bansang Police Station where he purportedly volunteered to write cautionary and voluntary statements. The said statements were admitted in evidence as exhibits B and B1 without any objection from the appellant.
A weighing certificate disclosing the suspected Cannabis sativa to have weighed 3kg 840g and analytical report confirming the substance to be Cannabis sativa, were admitted in evidence as exhibits A and A1. The bag containing four bundles of Cannabis sativa plant was admitted in evidence as exhibit C.
At the end of the prosecution case, the appellant testified on his own and denied ownership of exhibit C. He alleged that he was beaten and forced to thumb print exhibit A and A1 and a certain document, the contents of which he did not know at the Weigh and Measure Office. He further alleged that his statements were taken at Bansang but the independent witness' statement was obtained in Banjul. He testified that the independent witness did not sign exhibits A and A1 in his presence.
The trial court disbelieved the appellant and found the prosecution's case proven beyond reasonable doubt and the appellant was convicted and sentenced accordingly. It is against this decision that the appellant filed a notice of appeal before the High Court.
The counsel for the appellant filed a brief of arguments on behalf of the appellant and raised six issues for determination: (1) Did the prosecution discharge their burden of proving the charge against the accused person beyond reasonable doubt? (2) Could the appellant bear his responsibility to prove any fact raised by him during the trial? (3) Could the learned trial magistrate have relied on the uncorroborated evidence of PW3 to support the allegation that the appellant confessed owning the military bag containing the prohibited drugs for which he was charged when they failed to call a material witness to testify in support of that allegation. (4) Did the recording of the alleged confessional statements of the appellant satisfy the Evidence Act and the judges' rules? (5) Is the conviction of the appellant supported by the evidence? 6) Is the sentence imposed on the appellant justified in the circumstances of the case?
In his judgement, Justice Mikailu disclosed that from the substance of the arguments by both parties (the appellant and the state), it is clear from the record that exhibit C (Cannabis sativa) was weighed in the presence of the appellant and he was one of the signatories to exhibit A. He further disclosed that exhibits A and A1 were presented to the appellant when the documents were tendered by the prosecution and it is also conceded by the appellant in his brief of argument that samples were extracted by PW1 in the presence of the appellant which resulted in the issuance of exhibit A1.
On whether substantial justice will be served if the evidence concerning exhibit A and A1 is to be expunged from the record when application for their admission in evidence was never objected to or challenged by the appellant Justice Mikailu revealed that the provision of Section 83(5) of the Drug Control Act is procedural. He held that exhibits A and A1 were properly admitted in evidence as the appellant did not raise any objection when they were tendered by the prosecution at the trial.
The Justice further revealed that he agreed with the conclusion reached by the learned trial magistrate in the record of appeal when he held "as to the 2nd and 3rd ingredients they had established through uncontroverted evidence of PW1 Njaga O. Jatta who said that the said prohibited drug was weighed in the presence of the accused and weighed 3kg 840g and exhibit A was issued to that effect. PW1 further testified that the said substance was analysed and exhibit A1 analytical report was issued confirming its being Cannabis sativa. These pieces of evidence were not challenged and therefore admitted".
Justice Mikailu averred that he found that the prosecution has proved with the certainty required by law that exhibit C is indeed a prohibited drug; that is Cannabis sativa and weigh more than 2kg. He further averred that while the prosecution, through its witness contended that the said military bag belongs to no one but the accused person, the accused person said that there were three soldiers in the said vehicle and each with his own military bag and he deemed ownership of the exhibited drug.
The judge noted that the trial magistrate has properly evaluated the evidence before the court, adding that the duty of the appellate court is to ascertain whether or not there is evidence upon which the trial court acted and once there is such evidence the appellate court must not interfere with the finding of fact of a trial court, but where the later failed to properly evaluate the evidence or make proper use of the opportunity of seeing or hearing the witnesses at the trial, or where it has drawn wrong conclusions from the accepted evidence, or where its findings are shown to be perverse.
The Justice however revealed that from the evidence before the court, it has not been shown that the trial magistrate had either failed to properly evaluate the evidence or failed to make use of the opportunity he had in observing and hearing the witnesses at the trial. Justice Mikailu remarked that he found the appellant's counsel submission that failure to call the drivers and/or CPL Fatty is fatal to the prosecution's case as a non starter.
The judge quoted a Nigerian Supreme Court case, in Asuquo Bassey Versus the State (2012) 7 NCC 383 at ratio 5 which held that proof beyond reasonable doubt is not achieved by the prosecution calling several witnesses to testify rather the court is only interested in the testimony of quality witness. He explained that it is trite law that court is entitled to act on the evidence of a single witness if that witness is believed can establish a case beyond reasonable doubt unless where the law requires corroboration, citing the case of Magaji Vs Nigeria Army (2008) 34 NSCQR 121 at ratio 19.
The judge pointed out that he agreed with the reasoning of the trial magistrate in the record of appeal when he rejected the contention that CPl Fatty was on a vendetta mission and had an axe to grind with the appellant. He noted that it is clear from the evidence on record that CPL Fatty did not search the vehicle in which exhibit C was found, CPL Fatty did not obtain exhibit B and B1 from the appellant and CPL Fatty did not accompany or escort the appellant to weigh and measure department and he was not one of the witnesses that testified at the trial against the appellant.
In conclusion, Justice Mikailu said he agreed with the conclusion reached by the learned magistrate, noting that the prosecution has proved its case beyond reasonable doubt against the appellant with the certainty required by law and accordingly held that the appeal lacks merit and be dismissed.
The judge then affirmed the conviction and sentenced imposed by the Magistrates' Court.