3PLR – DIRECTOR OF PUBLIC PROSECUTION V BUSARI AKANJI
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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DIRECTOR OF PUBLIC PROSECUTION
3PLR/1968/39 (HC)
BEFORE
REPRESENTATION
Abedayo (Mrs.) State Counsel – for the Prosecution
Fatuga – for the Accused
MAIN ISSUES
Criminal Law-Charge-Knowingly cultivating Indian Hemp-Burden of proof-Indian Hemp Decree 1966 s.2(1).
MAIN JUDGEMENT
AYOOLA, J.:-
The Accused, Busari Akanji is charged with an offence under Section 2(1) of the Indian Hemp Decree 1966. He was alleged to have during the month of October, 1966 at Onisaho village farm via Iseyin, in the Ibadan Judicial Division knowingly cultivated plants of the genus cannabis, otherwise known as Indian hemp.” The Accused pleaded not guilty to the offence and was defended by Counsel.
The prosecution called two witnesses. The 1st P.W. John Araka narrated how after receiving a complaint on October 7, 1966, he and some other policemen visited a farm at Onisaho village. There they met a woman who described herself as the wife of the accused. The woman took them to a farm. One Salami Akinlabi was also present. When they got to the farm, the witness went on; they saw grown-up Indian hemp plants. The plants were uprooted: the plants and the woman were taken to Oyo. Salami Akinlabi also returned to Oyo with the Policemen. On the 9th of October 1966, the accused by himself came to the Police Station at Oyo. He was there arrest-ed, charged and cautioned and he made a statement in Yoruba language which was admitted as Exhibit ‘Al’. The English translation was admitted as Exhibit ‘A2’. The specimen of the plants recovered from the farm was packed and sealed in the presence of the accused and sent to the Government Chemist in Lagos. A report and the specimen came back. The Report was admitted in Evidence pursuant to Section 41 of the Evidence Act and marked as Exhibit ‘B’. The specimen was admitted as Exhibit ‘C’.
In Exhibit ‘AI’ the accused said as follows:-
“I was residing in Onisaho village, and I have my farm there. My wife, my brother Bello and I were residing in the same camp in the village. I am having two farms on which I cultivated cocoa, kola nuts, oranges and palm trees. I know one Salami, he came to me in the farm about five days ago he told me that he came to visit his farm. I offered him the land for his farm. It was Pa Emmanuel of Iroko who gave me the Indian hemp seeds which I planted in my farm about six months ago. When the Pa introduced the seeds to me he told me to plant them in my farm. When I asked him the use, he told me he had arranged with one Salami who would be coming to cut them when they are fit, and that he knew very well about it. He also told me that he got licence from the Government to trade on them. I realised nothing on the hemp. It was the first time that Salami came to reap them that he was caught by Police at Iseyin. Pa Iroko has long been living in this village. He has Indian hemp in his farm. I can pilot Police there.
Under cross-examination, the 1st P.W. admitted that it was one Salami Akinlabi who led Police to the farm where the Indian hemp was found. He led them there on October 7, 1966. The accused by himself called at Oyo Police station on October 9, 1966. The Police revisited the farm in the com-pany of the accused and Akinlabi again on the 20th October, 1966. The story becomes clearer when read together with the evidence of the 2nd P .W. Adolphus Abilawon a Local Government Police man who testified that sometime in October, 1966, he saw a man sitting on two bags at Iseyin motor Park. The man was salami Akinlabi. His movement was suspected when he was asked to open the bags, he was trembling. The bags were opened and leaves and seeds suspected to be Indian hemp were found. Salami Akinlabi was consequently arrested and later taken to Oyo Police station the next day. The Court must recall that it was the same Salami Akinlabi who took the Police to the farm at Onisaho apparently to show them where he got his “harvest” from. The Court recalls that in the statement Exhibits `A 1′ & `A2′, the accused was recorded as having said that when Pa Emmanuel directed the Hemp Plantation to be set up, he assured the accused that one “Salami” (this apparently could well be salami Akinlabi as subsequent events showed) who knew much about the matter (about hemp) would come to cut the plants when ripe for cutting. Exhibit Al then revealed that it was when Salami came for the first harvest that Police caught him. The Statement Exhibit A 1 was made on October 9, 1966. The prosecution having closed its case, the accused gave evidence. He said that he is a fanner. He explained that when he learnt that Police wanted to see him, he voluntarily went to them at Oyo, a distance of many miles from his village. He denied planting Indian Hemp. This is contrary to what he was alleged to have said in Exhibit `A 1′ wherein he was recorded as having said that Pa Emmanuel gave him the Indian Hemp seed which he planted in his farm. He denied making any admissions in Exhibit `A1′ and testified that when he was taken before a Superior Officer, he dissociated himself from the contents of Exhibit `Al’ and that this dissociation was supported by his later statement Exhibit `D 1′. He said that it was he who took the Police to Pa Iroko’s house (otherwise known as Pa Emmanuel). The accused called no witness.
The onus is on the prosecution to prove the guilt of the accused beyond all reasonable doubt. The onus (except in relation to issues such as insanity and the like) never on the defence. It follows therefore that for a charge under Section 2(l) of the Indian Hemp Decree 1966 to succeed, the prosecution must prove beyond all reasonable doubt that the accused “knowingly” plant-ed Indian Hemp, i.e. that he knowingly planted it, knowing it to be Indian Hemp. Knowledge may be proved by inference from all the evidence. But the inference must be irresistible (See.R v. Iregbu.4 W.A.C.A. 32). The learned Author of “Criminal Law,” by Glanville Willians, in the General Part, Second edition at page 168, in my opinion, correctly stated the law when he said:-
“It is a general rule of construction of the Word `knowingly’ in a statute that it applies to all the elements of the ACTUS REUS. An example of the application of this construction can be found in the case of R v. Cohen (1951) 1 K.B. 505 where the Court of Criminal Appeal interpreted the offence in the Customs and Excise Act of “knowingly harbouring custom goods” to mean that the accused must have knowingly harboured goods and also knowingly that they were uncustomed.”
Having considered the defence of the accused along with the case for the prosecution, I do not believe the accused when he denied that the planted the Indian Hemp. I however accept his statement in Exhibit ‘Al’ as being the correct version of what happened. The contents of Exhibit’A 1′ appear clear-ly a correct version when tested against the other evidence in this case. But, Exhibit ‘Al’ reflects the absence of the necessary mens rea. I am of the view that the accused, although he planted the plants did not do so knowingly. “Pa Emmanuel” made use of him as an innocent agent. The conduct of the accused is consistent with innocence. He went voluntarily to the Police. He took Police to Pa Emmanuel’s house. He made his allegation against Pa Emmanuel in his statement Exhibit ‘Al’ at the earliest stage-the day he went to the Police. The Prosecution did not, as they ought to do having regard to the diction in R v Essien 4 W.A.C.A. 112 at page 113, call Pa Emmanuel as a witness. The accused’s allegation in Exhibit ‘Al’ that he was acting merely as an innocent agent and that Pa Emmanuel made him to believe in a set of facts stands uncontradicted.
I hold therefore that the prosecution has failed to prove the necessary nebs rea beyond all reasonable doubt. I also hold that the prosecution has consequently failed to prove the charge against the accused beyond reasonable doubt. I return a verdict of Not Guilty. The accused is therefore acquitted and discharged.
Accused acquitted and discharged.
