NURA OCHALA V. FEDERAL REPUBLIC OF NIGERIA
(2013)LCN/6312(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of June, 2013
CA/IL/C.38/2012
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
NURA OCHALA Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION OF THE COURT TO DETERMINE A MATTER
Jurisdiction, the power or authority of a court to determine any matter submitted before it, is the linchpin and heartbeat of any adjudications. Where a court of law is drained of the requisite jurisdiction to entertain any proceeding before it, its decision, no matter the magnitude of dexterity and artistry invested in it, will be trapped in the miasma of nullity, without any benefit ensuring to a party with a favourable judgment. PER OBUINYA, J.C.A.
THE JURISDICTION OF THE FEDERAL HIGH COURT TO DETERMINE CIVIL CAUSES AND MATTERS RELATING TO DRUGS AND POISONS
Now, the sacrosanct provision of Section 251(1)(m) of the Constitution, as amended, donates exclusive jurisdiction to the Federal High Court (the lower court) on civil causes and matters relating to drugs and poisons. By virtue of the provision of Section 251 (3) thereof: The Federal High Court shall also have and exercise jurisdiction and power in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of the section,” see Abbas vs C.O.P (1998) 12 NWLR (Pt.577) 308, Interestingly, the Supreme Court has given its imprimatur to the fact that Indian hemp is a drug within the meaning of drugs in Section 11 of the National Drug Law Enforcement Agency Act in the recent cases of Okewu vs FRN (supra)/(2012) 9 NWLR (Pt.1305) 327 and Chukwuma vs. FRN (supra). It stems from these highlights that the Constitution, as amended, has made clear and copious provisions in allotting jurisdiction to the Federal High Court over criminal causes and matters touching on Indian hemp.
Indubitably, the Federal High Court traces the statutory paternity of its jurisdiction over Indian hemp offences, allocated to it by Section 26(1) of the National Drug Law Enforcement Agency Act, to the Constitution, as amended. Contrariwise, there is no such triumvirate legislative nexus between the Indian Hemp Act, the Constitution, as amended, and the Magistrate’s Court vis-a-vis adjudication of Indian hemp crimes. It is trite that the Constitution, the fons et origo, is supreme, paramount and overshadows all other enactment promulgated by the legislature, be it federal or state legislature. By virtue of Section 1 (3) of the Constitution, as amended, all other laws must not only be consistent with its provisions, but derive their potency and legitimacy from it, see Oladele vs Nigerian Army (2004) 6 NWLR (Pt.868) 166; FRN v. Osahon (supra); Tanko as State (2009) 4 NWLR (Pt.1131) 430. Given the established linkage between the National Drug Law Enforcement Agency Act and the Constitution, as amended, regarding the jurisdiction of the Federal High Court over Indian hemp criminal matters, I hold the view that the Federal High Court, the lower court, is vested with the necessary jurisdiction to entertain the charge against the appellant, not the Magistrate’s Court as, enticingly, canvassed by the appellant. PER OBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering The Leading Judgment): This appeal germinated from the judgment of the Federal High Court, Ilorin Division, coram, A. O. Faji, J., in charge No.FHC/IL/38C/2011, delivered on 09/11/2011, wherein the appellant was convicted and sentenced to a term of imprisonment.
The facts of that case, which culminated in this appeal, before the lower Federal High Court was brief. On 23/09/2011, officers of the National Drug Law Enforcement Agency, Kwara State Command, conducted a search in the appellant’s house at Banni village,in Kaima Local Government of Kwara State. In the course of that search, the officers found on the appellant dried weeds, suspected to be Indian hemp otherwise known as cannabis sativa. As a consequence, the appellant was arrested by those officers.
After the preliminary investigation and field tests, the National Drug Law Enforcement Agency, Kwara State Command, acting for the Attorney General of the Federation, arraigned the appellant before the lower court on 09/11/2011. The charge, a one-count charge, found on page 1 of the printed record, was to the effect that the appellant: “without lawful authority, dealt in 8.8 kilogrammes of cannabis sativa (otherwise known as Indian hemp) a drug similar to Cocaine, Heroin, LSD etc. thereby committing (sic) an offence contrary to and punishable under Section 11 (c) of the National Drug Law Enforcement Agency Act,Cap N30 Law of the Federation of Nigeria 2004.”
On that date of arraignment before the lower court, 09/11/2011, the charge was read and explained to the appellant in English language and he pleaded guilty to it. Sequel to that guilty plea, the respondent’s counsel, I. J. Igwubor Esq.,tendered all the necessary documentary evidence which were, without opposition from the respondent’s counsel, admitted in evidence as exhibits A, B, C, D, E and, G. The exhibits occupy pages 17-26 of the printed record. Thereafter, the respondent urged the lower court, without objection, from the appellant’s counsel, to convict the appellant based on his plea and the evidence. Thereupon, the lower court convicted the appellant as charged.
In the appellant’s allocutus pleaded, for him by his counsel, the lower court was informed that he was a first offender without any criminal record. Thereafter,the lower court proceeded, on page 15 of the record, to sentence the appellant thus: “The accused person is accordingly sentenced to 18 months imprisonment starting from 23/9/2011.”
The appellant was dissatisfied with the decision of the lower court. Consequently, he filed a two-ground notice of appeal, encapsulated on pages 27 30 of the cold record, on 06/07/2012, wherein he prayed this court for: “An ORDER allowing the appeal set aside the conviction and sentence imposed on the appellant and discharge and acquit him of the offence of illegal possession of Indian hemp preferred against him.’ Subsequent to that, the parties filed and exchanged their briefs of argument in the manner prescribed by the rules of this court.
The appeal was heard on 21/05/2013. In that regard, learned counsel for the appellant, Abiola Olagunju, Esq.,adopted the appellant’s brief of argument, filed on 29/10/2012 and settled by Peter Mrakpor, Esq., as forming his arguments in support of the appeal. He prayed the court to allow the appeal. Similarly, the respondent’s counsel, Adeola Omotunde, Esq.,adopted the respondent’s brief of argument, filed on 22/04/2013, but deemed filed on 30/04/2013, as representing his submissions against the appeal.He prayed the court to dismiss the appeal.
The appellant, in his brief of argument, crafted a solitary issue for determination of the appeal to wit:
“Whether by virtue of the express provisions of the Indian Hemp Act, Volume 7, Cap. 16, Laws of the Federation of Nigeria, 2004, the Federal High Court was right to have assumed Jurisdiction to try, convict and sentence the Appellant herein, for an India Hemp related offence.”
In the respondent’s brief of argument, it distilled a singular issue for determination of the appeal viz:
“Considering the totality of this case whether the provisions of the Indian Hemp Act, Volume 7, Cap 16, Laws of Federation of Nigeria 2004 is capable of depriving donated by Section 251 (1)(m) of the 1999 Constitution and Section 26 of the National Drug Law Enforcement Agency Act, Cap. N30, laws of the Federation of Nigeria, 2004 in the determination of this case.”
I have situated the appellant’s single issue with that of the respondent. In my view, both issues are symmetrical, one a mirror image of the other. On this score, I will settle the appeal on the concise lone issue formulated by the appellant. After all, it is the appellant that is peeved by the decision of the lower court.
Arguments on the issue
Learned counsel for the appellant submitted that the lower court erred when it assumed jurisdiction and tried, convicted and sentenced the appellant for the offence of dealing in 8.8 kilogrammes of Indian hemp without lawful authority. He, however, acknowledged that section 26 of the National Drug Law Enforcement Agency Act conferred exclusive jurisdiction to try offenders under the Act on the lower court. He explained that the National Drug Law Enforcement Agency Act was established to enforce laws against the cultivation, processing, sale and use of hard drugs in general. He posited trial the Indian Hemp Act, Cap.16, Laws of the Federation of Nigeria, 2004, was the specific law that applied for the prosecution of persons accused of Indian hemp related offences. He added that Section 8 (1) of the Indian Hemp Act expressly provided the Magistrate’s Court with jurisdiction over Indian hemp related offences.
Learned counsel took the view that the Indian Hemp Act was not repealed by the National Drug Law Enforcement Agency Act; noting that the Indian Hemp Act applied where the offences related to Indian Hemp since the courts would not try an accused person under different Laws at the same time. He maintained that where there is a specific law in respect of an offence, it is only that specific law that will apply in the prosecution of an accused person. He placed reliance on the cases of Akpan vs. State (1986) 3 NWLR (Pt.27) 225; NECO v. Tokode (2011) 5 NWLR (Pt.1239) 45 and posited that the appellant should have been charged under the Indian Hemp Act. He persisted that the Federal High Court (the lower court) lacked the jurisdiction to try the appellant for the offence of illegal dealing in Indian hemp because of the existence of the Indian Hemp Act. He referred to the case of Onwudiwe vs FRN (2006) 10 NWLR (Pt.988) 382. He outlined the ingredients of jurisdiction, as noted in the cases of Madukolu vs Nkemdilim (1962)1 All NLR (Pt.4)587, to support his submissions. He stated that once a court lacked the jurisdiction over a case before it, any decision made in respect of it would be a nullity. He referred to the case of Onwudiwe vs FRN (supra) to support his postulation. He posited that the issue of jurisdiction could be raised at any stage of the proceedings, even for the first time on appeal. He relied on the case of Oyakhire v. State (2006)15 NWLR (pt.1001)157 to buttress his submission. He based on those submissions, prayed the court to allow the appeal.
On behalf of the respondent, learned counsel contended that Indian Hemp (Cannabis Sativa) is a narcotic drug as it falls within the phrase “any other similar drugs” used in Section 10(h) of the National Drug Law Enforcement Agency Act under which the appellant was charged; tried, convicted and sentenced by the lower court. He placed reliance on the cases of Okewu vs. FRN (2012) All FWLR (pt.625) 205; Chukwuma v. FRN (2011) 13 NWLR (Pt.1264) 391; the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic substances,1989, Section 74(1) of the Evidence Act, 2O11 and Section 11(c) of the National Drug Law Enforcement Agency Act in support of that contention.
He posited that this court is bound, by the doctrine of stare decisis,to follow decisions in Okewu vs. FRN (supra) and Chukwu FRN (supra) on the interpretation of “any other similar drugs” as including Indian hemp. He conceded that when the Indian Hemp Decree (now Act) was promulgated in 1966, it gave jurisdiction to the Magistrate’s court to try offenders under it. He, however, added that with the establishment of the National Drug Law Enforcement Agency, initially by Decree No. 48 of 1988, now National Drug Law Enforcement Agency Act, the jurisdiction to try offences relating to Indian hemp was transferred to the Federal High Court. He referred to Section 17 of the National Drug Law Enforcement Agency Act. He reasoned that before jurisdiction was transferred to the Federal High Court,offenders under the Act were being tried by the Special (Miscellaneous Offences) Tribunals which were established by Decree 20 of 1984 as amended by Decree 22 of 1988. He referred to Decree No. 62 of 1999 which confirmed the jurisdiction of the Federal High Court to try Indian hemp related offences. He reproduced the provisions of Section 251(1) (m) and (3) of the Constitution as amended, and 7 (1) of the Federal High Court Act, Cap. F12, Laws of the Federation of Nigeria, 2004 which gave the lower court jurisdiction to try offences relating to drugs and poisons.
Learned counsel argued, per contra, that the case of Akpan vs. State (supra) and NECO vs. Tokode (supra) are not apposite to present case as their facts are radically different. He took the view that the question of specific or general provision of an enactment will disappear in the face of clear provisions of the Constitution bearing in mind that it is the Supreme law of the law. In support of that view, he cited the cases of FRN vs. Osahon (2005) 5 NWLR (Pt.973) 361 and Araka vs. Egbue (2003) FWLR (Pt.175) 507.
He insisted the provisions of Section 251(1)(m) and (3) of the Constitution, as amended, vests on the Federal High Court the exclusive jurisdiction in matters relating to drugs and poisons. He postulated that right vested in the constitution could not be taken away or interfered with by any other legislation, except the constitution itself, and that any other law purporting to abrogate such a right would be void to the extent of the inconsistency. He sought in aid the cases of Amusan vs. Olawuyi (2002) 12 NWLR (Pt.780) 30, Bronik Motors Ltd vs. Wema Bank Ltd (1983) 1 SCNLR 296 and the provisions of section 1 (3) of the Constitution, as amended, to back up his postulation. He maintained that the Indian Hemp Act is inconsistent with the provision of Section 251(1) (m) and (3) of the Constitution, as amended, and urged the court to so declare based on the provision of section 315(3) of the constitution as amended. He submitted, in the alternative, that when the provisions of the Indian Hemp Act, Section 7(1) of the Federal High Court Act and Section 251(1) (M) of the Constitution, as amended, are juxtaposed the worst scenario is that the Magistrate’s Court and the Federal High Court could have concurrent jurisdiction over matters relating to dealing in Indian Hemp. He persisted that the cases of Onwudiwe vs. FRN (supra), and Madukolu vs. Nkemdilim (supra), relied upon by the appellant, are against his position since the Federal High Court has the jurisdiction to try him. He urged the court to resolve the issue in favour of the respondent and dismiss the appeal.
Resolution of the Issues
In attending to the mono issue in this appeal, it is crucial to understand that it is a vitriolic attack on the jurisdiction of the lower court to entertain the charge levelled against the appellant. Jurisdiction, the power or authority of a court to determine any matter submitted before it, is the linchpin and heartbeat of any adjudications. Where a court of law is drained of the requisite jurisdiction to entertain any proceeding before it, its decision, no matter the magnitude of dexterity and artistry invested in it, will be trapped in the miasma of nullity, without any benefit ensuring to a party with a favourable judgment.
The fulcrum of the appellant’s grievance on the issue is that, it is the Magistrate’s Court, by virtue of Section 8 (1) of the Indian Hemp Act, not the lower Federal High court, that has the jurisdiction to try the charge slammed against the appellant. The respondent, expectedly, is of a discordant view as it holds, tenaciously, to the opposite stance that it is the Federal High Court that is clothed with the jurisdiction to hear the charge by virtue of the provision of Section 26 (1) of the National Drug Law Enforcement Agency Act.
To do balanced justice to this stubborn, critical and novel issue, it is pertinent, foremost, to pay a visit to the one-count charge preferred against the appellant by the respondent. It is embedded in the printed record, on page 1 thereof. The meat of the charge, upon a clinical examination, is that the appellant unlawfully dealt in 8.8 kilogrammes of Cannabis Sativa (Indian hemp) which constituted an offence and punishable und.er section 11 (c) of the National Drug Law Enforcement Agency Act. I have, anxiously, ferreted through the entire gamut of the 15- section Indian Hemp Act, with a fine tooth comb, but unable to stumble on a section or provision therein which criminalizes dealing in Indian hemp without lawful authority, the foul crime with which the appellant was charged with. Put the other way round, and clearly too, the offence levelled against the appellant in the one-count charge is not within the legislative four walls of the Indian Hemp Act. The criminal wrong of unlawful possession of Indian hemp, which dotted or was recurrent in the appellant’s alluring submission, is a far cry from the offence with which the appellant was hauled before the lower court. Indisputably, the offence of illicit dealing in Indian hemp, which the appellant was accused of having committed, is, amply, entrenched in the prescription of Section 11 (c) of the National Drug Law Enforcement Agency Act.
It follows that the appellant’s argument, as inviting as it is, is with due reverence, off tangent in that the Magistrate’s Court will not be cloaked with the jurisdiction to try a non-existent offence in the Indian Hemp Act. The foregoing analyses, to my mind, dilute/douse the appellant’s dazzling contention that it is the Magistrate’s Court, not the Federal High Court (the lower court), that has the competence to entertain the charge against the appellant.
Besides, even if the offence of dealing in Indian hemp were to be found in the Indian Hemp Act, the appellant’s seemingly impregnable view point would still be disabled.. The reason is not far-fetched. If it were so, then the implication is that the two statutes, the Indian Hemp Act and the National Drug Law Enforcement Agency Act, would be in conflict as they cannot be implemented without arriving at disharmonious results, as to which court has the jurisdiction to determine the offence. To resolve such a rare statutory impasse, the test evolved in the case of F.R.N. Vs Osahon (supra,) at 441 comes in handy. Therein Belgore, JSC, as he then was, stated:
…I think the argument that seemed to persuade Court of Appeal is in the argument of the present respondents as appellants calling the Police Act a general Act and the Federal High Court specific Act. That dichotomy certainly swayed the court below…If the police Act was made by the National Assembly, so is the Federal High Court Act….Where two provisions, one each from an Act of National Assembly conflict in relation to the same subject-matter as in this instance, question of right to prosecute criminal matters in the Federal High Court, the conflict cannot be isolated to the two provisions only in so far as there are constitutional provisions on the same matter. In such a situation, the provisions of the Constitution shall govern the interpretation.
The question of specific provision or general provision of any enactment will disappear in the face of clear provision of the Constitution.
I will employ this ex cathedra pronouncement in handling the apocryphal situation invented by the appellant. Now, the sacrosanct provision of Section 251(1)(m) of the Constitution, as amended, donates exclusive jurisdiction to the Federal High Court (the lower court) on civil causes and matters relating to drugs and poisons. By virtue of the provision of Section 251 (3) thereof: The Federal High Court shall also have and exercise jurisdiction and power in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of the section,” see Abbas vs C.O.P (1998) 12 NWLR (Pt.577) 308, Interestingly, the Supreme Court has given its imprimatur to the fact that Indian hemp is a drug within the meaning of drugs in Section 11 of the National Drug Law Enforcement Agency Act in the recent cases of Okewu vs FRN (supra)/(2012) 9 NWLR (Pt.1305) 327 and Chukwuma vs. FRN (supra). It stems from these highlights that the Constitution, as amended, has made clear and copious provisions in allotting jurisdiction to the Federal High Court over criminal causes and matters touching on Indian hemp.
Indubitably, the Federal High Court traces the statutory paternity of its jurisdiction over Indian hemp offences, allocated to it by Section 26(1) of the National Drug Law Enforcement Agency Act, to the Constitution, as amended. Contrariwise, there is no such triumvirate legislative nexus between the Indian Hemp Act, the Constitution, as amended, and the Magistrate’s Court vis-a-vis adjudication of Indian hemp crimes. It is trite that the Constitution, the fons et origo, is supreme, paramount and overshadows all other enactment promulgated by the legislature, be it federal or state legislature. By virtue of Section 1 (3) of the Constitution, as amended, all other laws must not only be consistent with its provisions, but derive their potency and legitimacy from it, see Oladele vs Nigerian Army (2004) 6 NWLR (Pt.868) 166; FRN v. Osahon (supra); Tanko as State (2009) 4 NWLR (Pt.1131) 430. Given the established linkage between the National Drug Law Enforcement Agency Act and the Constitution, as amended, regarding the jurisdiction of the Federal High Court over Indian hemp criminal matters, I hold the view that the Federal High Court, the lower court, is vested with the necessary jurisdiction to entertain the charge against the appellant, not the Magistrate’s Court as, enticingly, canvassed by the appellant.
For completeness, the cases of Akpan vs. State (supra)/(1986)/ 1 NSCC (Vol.17) 686 and NECO vs. Tokode (supra), upon which the appellant placed high premium on in his argument, are not apposite. The reason is plain. The facts of Akpan vs. State (supra), a Supreme Court decision, bordered on no-case submission and fair hearing and, ipso facto, not in pari materia with those of the instant case. Again, the facts of NECO vs. Tokode (supra), which centred on statute bar or limitation law, are not on all fours with the facts of the case in hand. On this premise, the doctrine of stare decisis, which would have enabled me to utilize them, is not available here as it thrives only in the presence of similarity of facts of cases. In legal parlance, the facts of those cases and those of the instant case are distinguishable. I, therefore, turn down the appellant’s tempting invitation to follow the decision in those cases, which were rightly decided on their own peculiar facts, for want of closeness or harmony in their facts.
Altogether, having regard to these legal expositions, it is obvious that the appellant’s sterling submissions on this issue do not come within the warn embrace of the law.
The charge against the appellant does not fall within any of the three negative elements of jurisdiction, as enunciated in the case of Madukolu vs Nkemdilim (supra); and Ogakhire as State (supra), as to disrobe the Federal High Court of the jurisdiction to try: the appellant. I am of firm view that the lower court is the forum competent for the trial of the appellant’s case. In the light of these reasons, arrived at after due consultation with the law, it is obvious that the law, heavily, tilts against the appellant on the issue. In the circumstance, I have no choice than to resolve the single issue against the appellant and in favour of the respondent.
On the whole, going by the reasons advanced herein, with the aid of the law, I hold the firm view that there is no jot of merit in the appellant’s appeal. Consequently, I dismiss the appeal as lacking in merit. For the avoidance of doubt, the decision of the lower court, delivered on 09/11/2011, in which it convicted and sentenced the appellant to a term of 18 months imprisonment, starting from 23/09/2011, stands affirmed by me.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Ogbuinya JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
My learned brother has ably resolved all the issues raised in the appeal satisfactorily to the extent that I have nothing useful to add. As alluded to in the lead judgment, S.251(1)(m) gives exclusive jurisdiction to the Federal High Court on civil causes and matters relating to drugs and poisons. In Okewu v. FRN (2012) 9 NWLR (Pt.1305) 327, the Supreme Court ruled that Indian hemp is a drug within the meaning of drugs in Section 11 of the National Drug Law Enforcement Agency Act.
There is no equivalent of Section 11 (c) of the National Drug Law Enforcement Agency Act in the Indian hemp Act, as such a Magistrate Court will have no basis to entertain the charge against the Appellant. The lower court was therefore right to have assumed jurisdiction in this matter.
For all I have said, this appeal racks merit and it is liable to be dismissed. Accordingly it is hereby dismissed. I abide by the consequential order made the lead judgment.
TIJJANI ABUBAKAR, J.C.A.: I agree.
Appearances
Abiola Olagunju, Esq.For Appellant
AND
Adeola Omotunde, Esq.For Respondent
