analysis in Lagos. The length of time it took before the report from the forensic laboratory in Lagos was received in Sokoto is
irrelevant. It can only be relevant if the appellant is able to show that the substance sent for further scientific analysis was
tampered with or that as a result of the length of time suffered miscarriage of justice. The appellant was unable to show any of
the above. Exhibit E is the result of the analysis of Exhibit D1-D12.
On non-compliance with Section 43 and 65 of the Evidence Act.
Section 43 of the Evidence Act states that:
“Where any such certificate is intended to be produced by either party to the proceedings, a copy thereof shall be sent to
the other party at least ten clear days before the day appointed for the hearing and if it thinks fit adjourn the hearing on
such terms as may seem proper.”
The above provides for the service of certificate on the adverse party before hearing and it became relevant in the trial court
when the prosecution wanted to tender Exhibit E, E2, the Report from the Forensic Science Laboratory in Lagos on the
substance tested. The Record of proceedings shows that the Report in question was not served on the appellant 10 days before it
was tendered in court. The interpretation of the above is that if the Report (certificate) is not served on the adverse party, ten
days before it is used in court the judge may if he thinks fit, adjourn the hearing on such terms as may seem proper. It has been
long settled that the word “may” is not always “May” it sometimes may be equivalent to “shall” where the context so admits.
See Ifezue v Mbadugha (1984) 1 SCNLR page 427; Amadi v N.N.P.C. (2000) 10 NWLR (Part 674) page 76; Ogidi v State
(2005) All FWLR (Part 251) page 202; Odua Investment Co. Ltd v Talabi (1997) 7 SCNJ page 600
“May” as used in Section 43 of the Evidence Act gives the judge discretion to adjourn the hearing if the certificate is not served
on the adverse party ten days before using it in court. Exercising his discretion to proceed with the case was a correct exercise
of discretion when the learned trial judge explained thus:
“…. I don't think there is any good cause for any adjournment on situation where all the requirements as to the genuiness
of the document in question are satisfied …….”
I agree with the learned trial judge. There was no miscarriage of justice. I fail to see the relevance of Section 65 of the Evidence
Act. Exhibits A, B, C, D1 - D12, E, E2 and the testimony of PW1 and PW2 are overwhelming in showing that there was proof
beyond reasonable doubt that the substance recovered from the appellant was cannabis sativa, otherwise known as Indian
hemp. The Court of Appeal was justified in affirming the findings of the trial court.
Finally I must observe that the judgment of the trial court was on facts that were confirmed by the Court of Appeal. The facts
are that the appellant was found to be in possession of 26 kilograms of Indian hemp, Exhibit D1 - D12 on the 17th of November
2000.
Concurrent findings of fact are rarely disturbed by this court, but this court would be compelled to interfere if the findings are
perverse or cannot be supported by the evidence before the court or there is/was a miscarriage of justice or violation of some
principle of law or procedure. See Cameroon Airlines v Otutuizu (2011)1- 2 SC (Pt111) page 200; Alakija v Abdullahi (1998) 5
SC page 1; Oloke v Agbodiye (1999) 12 SC (Part 11) page 101; Ogbu v Wokoma (2005) 7 SC (Part 11) page 123.
The findings by both courts below were correct, more so as exhibits to wit: A, 8, C, D1 - D12, E, E2 are conclusive that the
appellant did have in his possession unlawfully Indian hemp.
There is no merit in this appeal. It is accordingly dismissed.
Judgment delivered by
Walter Samuel Nkanu Onnoghen. JSC
I have had the benefit of reading in draft, the lead judgment of my learned brother Rhodes-Vivour, JSC just delivered.
I agree with his reasoning and conclusion that the appeal is without merit and ought to be dismissed. My learned brother has
exhaustively dealt with the relevant issues raised in the appeal. I therefore have nothing useful to add.
I accordingly dismiss the appeal.