CORAM
SUNDAY AKINOLA AKINTAN, JUSTICE, SUPREME COURT
PARTIES
ADEYEMO ABIODUN APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The Appellant herein along with one other accused person and Barewa Pharmaceutical Limited were arraigned before the Federal High Court, Lagos, on a six counts amended charge for various offences under the Counterfeit and Fake Drugs And Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C 34 Laws of the Federation of Nigeria 2004, and Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria 2004. The Appellant and his co-accused pleaded not guilty to the charge. The Prosecution called seven witnesses and tendered several documents that were admitted in evidence. The Appellant who was the 2nd accused person at the trial court was the only witness called by the defence and he testified as DW1. At the end of the trial, and in a reserved and considered judgment, the court found the Appellant and the two other accused persons guilty of the offence under counts 3 and 4 of the amended charge and they were all convicted accordingly. The Appellant and the 2nd convict were sentenced to seven (7) years imprisonment on each of the two counts, and the sentences were ordered to run concurrently. The 3rd convict being a company was sentenced as charged and it was ordered to be wound up and its assets forfeited to the Federal Government of Nigeria. They were however acquitted and discharged from the remaining counts. Being aggrieved with the decision of the trial court, the Appellant appealed to the Court of Appeal which affirmed the conviction and sentence of the Appellant on count 4 whilst count 3 was set aside. Being aggrieved, he has further appealed to this court.
HELD
Appeal Dismissed
ISSUES
Whether the reliance of the lower court on grounds other than those contained within the judgment of the trial court in affirming the conviction of the Appellant for sale of dangerous drugs amounts to a denial of the Appellants’ right of fair hearing. Whether the lower court relied on unproven assumptions and consequently misdirected itself in reaching the conclusion that any of the products in circulation in Nigeria with the brand name “my pikin” are the ones manufactured by the 3rd accused; thereby occasioning a miscarriage of justice. Whether the lower court was right, in affirming the trial court’s exercise of discretion, imposing an excessive prison sentence on the Appellant, in the absence of any reason or basis for the discretion. Whether the lower court failed to consider the issues properly canvassed before them, and thereby occasioned a miscarriage of justice. Whether the lower court erred in arriving at the conclusion that the unsworn statement of DW1 amounted to an admission of guilt. Whether the lower court erred In finding the Appellant liable for sale of dangerous drugs despites reversing the decision of the trial court which found the Appellant guilty of conspiracy to sell dangerous drug.
RATIONES DECIDENDI
OFFENCE UNDER SECTION 1(18)(A)(II) OF THE MISCELLANEOUS OFFENCES ACT CAP M17 LAWS OF THE FEDERATION OF NIGERIA – INGREDIENTS THE PROSECUTION MUST PROVE TO SUCCEED IN ESTABLISHING THE OFFENCE UNDER SECTION 1(18)(A)(II) OF THE MISCELLANEOUS OFFENCES ACT CAP M17 LAWS OF THE FEDERATION OF NIGERIA 2004
“For the prosecution to succeed in establishing the offence under the section referred to above, it must prove beyond reasonable doubt the following ingredients:-
1. That the accused dealt in, sold, offered for sale or exposed any of the products mentioned in the section aforesaid which is not of the quality substance, nature or efficacy which he represents it to be.
2. That the accused compromised in the manufacture and/or processing those products which are represented by the sellers as the authentic products which they ought to be.
3. That because of the compromising attitude of the accused in the manufacturing or processing of the products, they have been rendered noxious, dangerous or unfit for human use.”
REPLY BRIEF- ESSENCE OF A REPLY BRIEF
“The reply brief is a repeat of the Appellant’s argument in his brief of argument. It is therefore needless to consider it as the essence of a reply brief is to give the appellant an opportunity to react to new issues in the Respondent’s brief of argument.”
RECORD OF COURT- DUTY OF COURTS TO LOOK INTO ITS RECORD AND MAKE USE OF ANY DOCUMENT IT CONSIDERS RELEVANT IN DETERMINING ISSUES BEFORE IT
“The lower court was entitled to look into any document in its record and make use of it in order to arrive at a just decision. When a document is in the record of the court, it cannot be a new issue on which a judge is precluded from looking at. This court has in a number of decided cases held that a court of law is entitled to look into its record and make use of any document it considers relevant in determining issues before it. See Fumodoh vs Aboro (1991) 9 NWLR (Pt. 214) 2010 at 229; Agbareh & Anor vs Mimra & 2 Ors (2008) 2 NWLR (Pt, 1011) 378 at 411 – 412; Badejo vs Minister of Education (1996) 9 -10 SCNJ 51.”
EVALUATION OF EVIDENCE – DUTY ON COURTS TO MAKE DEDUCTIONS FROM THE EVIDENCE BEFORE IT
“In the course of evaluation of evidence, a court of law is entitled to make deductions from the evidence before the court which deduction may result in conclusions based on proper appraisal of that evidence. Where deductions are based on the evidence before the trial court by the lower court this court has no reasons to interfere with such deductions. See Cypiacus Nnadozie & Ors vs Nze Oqbunelu Mbagwu (2008) 3 NWLR (Pt.1074) 363 at 387.”
“EXPERT”- WHO IS AN “EXPERT”?
“An expert is a person who is specially skilled in the field which he is giving evidence, and whether or not a witness can be regarded as an expert is a question of law for the judge to decide”.
EXPERT OPINION – WHEN IS AN EXPERT OPINION NECESSARY?
“Expert opinion is only necessary where the expert can furnish the court with scientific or other information of a technical nature that is likely to be outside the experience and knowledge of the Judge.”
SUBSTANTIAL JUSTICE – DUTY ON COURTS TO DO SUBSTANTIAL JUSTICE
“The law always aims at substantial justice. The court is more interested in substance than in form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice. See Ogbomor vs State (1985) 1 NWLR (pt. 2) 223; State Gonto (1983) 1 SCLR 142; Bature vs State (1994) 1 NWLR (Pt. 320) 267; State vs Salawu (2011) 1 KWLR (Pt. 1279)”.
“INTENTION”- DEFINITION OF THE WORD “INTENTION”
“Intention is defined by the Black’s Law Dictionary 6th Edition as a determination to act in a certain way or to do a certain thing. A state of mind in which a person seeks to accomplish a given result through a course of action.”
SENTENCE – WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION OF A TRIAL COURT IN IMPOSING A SENTENCE
“In Omokunwajo vs FRN (2013) LPELR 20184 which was cited and relied upon by learned counsel for the Respondent, this court said:-
……the general rule is that sentencing is a matter completely at the discretion of the trial court provided the discretion is exercised judicially and judiciously within the law.
An appellate court consequently will not interfere with the exercise of discretion by the lower court unless the sentence imposed is manifestly excessive in the circumstances or wrong in principle.”
EXERCISE OF DISCRETION – INSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF DISCRETION OF A TRIAL COURT
“The law is settled that where the decision of a trial court is substantially based on the exercise of discretion, an appellate court will not interfere with the discretion unless the trial court failed to exercise its discretion judiciously or judicially.”
EXERCISE OF DISCRETION – WHETHER AN APPELLATE COURT HAS THE RIGHT TO RESTRICT THE EXERCISE OF DISCRETION BY A TRIAL COURT
“Since discretion is always unfettered, this court cannot take steps to fetter such discretion, except for good and substantial reasons. See ACME Builders Ltd vs K.S.W.B (1999) 2 NWLR (Pt. 590) 288; Chigbu vs Tonimas (Nig) Ltd (1999) 3 NWLR (Pt. 593) 115; University of Lagos vs Olaniyan (No.1) (1985) 1 NWLR (Pt. 1) 156; Hamza vs Kure (2010) 10NWLR (Pt. 1203) 630.
CONSTRUCTION OF A STATUTE – DUTY OF A JUDGE IN CONSTRUING THE PROVISIONS OF A STATUTE
“The legislative intent of Section l(18)(a)(ii) of the Act Cap M17 LFN 2004 is to punish any person who sells products that are substandard, unfit or injurious. Ours, as the Judex, is only to identify the legitimate object or purpose of the legislation and give effect to it: Rabiu V. Kano State (1950) LPELR 2936 (SC)”.
CASES CITED
STATUTES REFERRED TO
Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C 34 Laws of the Federation of Nigeria 2004.
Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria 2004