ABUBAKAR MOHAMMED v. FEDERAL REPUBLIC OF NIGERIA
(2013)LCN/6348(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of June, 2013
CA/IL/C53/2012
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
ABUBAKAR MOHAMMED Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RATIO
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED ON A RETRACTED CONFESSIONAL STATEMENT
Where a confessional statement is made and it is positive and unequivocal, and amounts to an admission of guilt, regardless of the fact that maker resiles from it or retracted it altogether it becomes admissible and accused may be convicted on it, see Stephen John & 1 Or v. State CA/J/50C/2006. PER ABUBAKAR, J.C.A.
WHETHER OR NOT THE MAGISTRATE COURT CAN TRY OFFENCES RELATED TO DRUGS LISTED UNDER THE EXCLUSIVE LEGISLATIVE LIST
It is also settled as rightly submitted by Mrs. Adeleye, that drugs being items listed under the exclusive legislative list cannot by any means be the intention of the law that magistrates courts being creation of state legislature shall try offences relating to such items under the exclusive legislative list.
Certainty Section 8 of the Indian Hemp Act Cap 16, Laws of the Federation of Nigeria 2004, is in conflict with section 26 of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation 2004. And since section 251(1)(m) has also conferred jurisdiction on the Federal High Court it is therefore clear that Section 8 of the said Indian Hemp Act offends the provisions of the Constitution of the Federal Republic of Nigeria 1999, and by the provision of Section 1 sub-section 3 of the constitution of the Federal Republic of Nigeria 1999 if any law is inconsistent with the provisions of the constitution, the constitution shall prevail, and that other law shall to the extent of the inconsistency be void. PER ABUBAKAR, J.C.A.
TIJJANI ABUBAKAR, J.C.A. (Delivering The Leading Judgment): The Appellant Abubakar Mohammed was arraigned before the Federal High court Ilorin presided over by A. O. Faji J. on the 18th day of March, 2011.
The charge against the Appellant reads as follows
“That you, ABUBAKAR MOHAMMED, male, adult on or about the 18th day of March 2011, along Jebba/Mokwa express way at Boda Sa’adu in Moro Local Government Area of Kwara State within the jurisdiction of this Honourable court, without lawful authority dealt in 20 kilogrammes of Cannabis Sativa (otherwise known as Indian Hemp) a drug similar to Cocaine, heroin, LSD, etc. and thereby committed an offence contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria 2004”.
On the 12th day of April, 2011, Appellants plea was taken when charge was read to him, he pleaded guilty, thereupon the court found him guilty and he was convicted and sentenced to two and half years imprisonment by the court.
The Appellant became aggrieved and filed notice of appeal filed on 23rd October, 2012 following extension of time granted by this court on 15th October, 2012.
Appellant’s grounds of appeal without their particulars are set out below:
Ground I
The learned trial Judge erred in law, when he assumed jurisdiction to try accused person for the offence of illegal possession of Indian hemp, when the Honourable court lacks jurisdiction to try the said offence.
Ground II
The learned trial Judge erred in law by admitting the accused person’s statement in Hausa and English versions in evidence in the absence of oral evidence of the reader and interpreter of the said confessional statement.
The notice of appeal is at pages 27 to 30 of the record of appeal.
The appellant through learned counsel Abiola Olagunju, distilled from Appellant’s grounds the following issues for determination:
1. Whether the learned trial Judge has the jurisdiction to try the Appellant for the offence of unlawful possession of Indian hemp.
2. Whether, the failure of the prosecution to call the recorder and interpreter is fatal to their case.
Arguing issue number one, learned counsel for the Appellant said, jurisdictional issue being an important pivot in adjudication can be raised at any stage, even on appeal, jurisdiction counsel said is what confers right on the court to determine any case. Counsel said, no matter how well proceedings are conducted, such proceedings go to nothing, if they are conducted without jurisdiction. Learned counsel therefore referred us to SHELIM VS. GOBANG (2009) ALL FWLR (Part 496) 1866 at 1877, stating that, a court is only competent when:
a) It is properly constituted with respect to the number and qualification of its members.
b) The subject matter of the action is within its jurisdiction.
c) The action is initiated by due process of law
d) Any condition precedent to the exercise of its jurisdiction has been filled.
Learned counsel for the Appellant also relied on MADUKOLU VS NKEMDILIM (1960) SCNLR 341.
Narrowing on the issue for determination submitted to this court, learned counsel said, Section 8 of the Indian Hemp Act, Cap 16, Laws of the Federation of Nigeria 2004 provides that it is the Magistrate Court that is empowered to adjudicate over offences relating to Cannabis Sativa, otherwise known as “Indian Hemp”. Learned counsel reproduced Section 8 of the Act, and said jurisdiction is in Magistrates courts. With regards to trial of offences in sections 4 to 7 of the Act.
Learned counsel said, section 4 deals with export of Indian hemp and the penalty while section 5 deals with smoking and possession. Counsel said, Section 18 of the Act clearly states that it is Magistrates courts that have jurisdiction over offences relating to possession of Indian hemp.
Counsel referred this court to the Indian Hemp Act and said the act has not been repealed by the National Assembly. Learned counsel said the legislature used the word “notwithstanding” in Section 8 of the said Indian Hemp Act, and the word when used is meant to exclude the effect of any other statute or subordinate registration, Learned counsel referred the court to NDIC vs OKEM ENTERPRISES LTD & ANOR (2004) All FWLR (PART 210) 1176 at 1232.
From the charge preferred against the Appellant learned counsel said it is clear, the Appellant was charged for possession of Indian hemp and the applicable statute is the Indian Hemp Act, not any other statute, he therefore urged this court to give the statute its natural and ordinary meaning. Since the provision is not ambiguous, he said, where words of provisions are straight forward, plain and clear, the courts function is to ascribe to them their ordinary grammatical meaning, he referred the court to PASCAL IKENNA EJIOGU VS. ALPHONSUS B. IRONA & 7 OTHERS (PT.442) FWLR PAGE 1066; and said Section 8 of the Indian Hemp Act empowers only the Magistrates court to have jurisdiction in summary trial of any offence of Indian hemp and other related offences, and that the Federal High Court lacks jurisdiction to try the Appellant.
Counsel said, where a court lacks jurisdiction to adjudicate on a matter, the trial and subsequent conviction by the court lacking jurisdiction is a nullity no matter how well the trial is conducted, learned counsel relied on EDWIN UDEMEGBUNAM ONWUDIWE VS FEDERAL REPUBLIC OF NIGERIA (2006) All FWLR PART 319. Having submitted that the Federal High court lacks jurisdiction to try the Appellant, counsel urged this court to so hold, and resolve this issue in favour of the Appellant.
Learned Counsel M. O. Adeyeye (Mrs.) for the Respondents adopted Appellants issues for determination, and therefore submitted argument on same in Respondents brief filed on 8th February 2013.
On issue number one, in Response, Mrs. Adeleye said Appellants argument is not only misconceived but also a misunderstanding of the law, counsel referred this court to section 26 of the National Drug Law Enforcement Agency Act Cap N30, Laws of the Federation of Nigeria 2004, learned counsel said the section confers exclusive jurisdiction on the Federal High Court, in this section learned counsel said, accords with provisions of the Federal High Court Act.
Learned counsel said Section 11(c) of the NDLEA Act, is to the effect that any person who without lawful authority sells, buy, exposes, possesses or offers for sale or deals with drugs popularly known as Cocaine, LSD, heroin or any other similar drug, shall be tried exclusively by the Federal High court. Counsel said, similar drug has been interpreted to include Indian hemp counsel relied on OKEWU VS FRN (2012) 2 SC Pt 11; learned counsel also relied on section 251 (m) of the Constitution, and Section 26 of the NDLEA Act, and said, by the combined effect of the two provisions no other court shall, have jurisdiction to entertain and try drug and drug related offences except the Federal High Court.
Mrs. Adeleye said, the Respondent submitted that, drugs and poisons are listed as items on the exclusive legislative list, which by implication means only Federal Government has legislative competence on the subject, as such, Magistrates Courts that are creations of state legislation cannot be conferred exclusive jurisdiction, counsel therefore said the submission by learned counsel for the Appellant is a misconception of the law.
Learned counsel said the effect of section 26 of the NDLEA Act and 251 (1)(m) and (s) of the constitution of the Federal republic of Nigeria is to repeal the provisions of the Indian Hemp Act, counsel said the state assembly cannot legislate over items listed in the exclusive legislative list, magistrates courts being creations of state legislature cannot be conferred jurisdiction to try such listed items, that NDLEA Act stands to negate Indian Hemp Act, that the continued existence of the Indian Hemp Act has brought it, into collision course with the provisions of section 20 of the NDLEA Act, and the Federal High court act, and Section 1(3) of the constitution of the Federal Republic of Nigeria 1999, provides that, any law that is inconsistent with the provisions of the constitution is void to the extent of that inconsistency, counsel said Section 8 of the Indian Hemp Act is void, and urges this court to so hold.
Learned counsel Adeleye said by the provisions of section 315(2) and (3) of the 1999 constitution, this court has the power to invalidate the entire provisions of the Indian Hemp Act for being inconsistent with the 1999 constitution, the Federal High court Act and the NDLEA Act. Counsel therefore urged this court to declare the provisions of the Indian Hemp Act void, discountenance the submissions of counsel for the Appellant and resolve the issues in favour of the Respondent.
Section 8 of the Indian Hemp Act Cap 16 Law of the Federation of Nigeria 2004 provides as follows:
“Every magistrate in any part of Nigeria, shall notwithstanding anything contained in any enactment have jurisdiction for the summary trial of any offence under sections 4 to 7 of this Act, and may impose the punishment provided by this Act for such an offence”.
The offences in section 4 to 7 of the Act are, smoking, export and possession of Indian hemp. Section 4 provides as follows:
“Subject to this Act, any person who exports any Indian hemp shall be guilty of an offence, and liable of conviction to imprisonment for a term of not less than twenty one years”.
Section 5(1) of the act also provides as follows:
“Any person who
a. Smokes any Indian hemp or
b. Knowingly has any Indian hemp in his possession, shall be guilty of an offence, and liable of conviction to imprisonment for a term not less than four years without the option of fine.
The National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation 2004 provides as follows:
20 Jurisdiction etc.
1) “The Federal High court shall have exclusive jurisdiction to try offenders under this Act.
2) The Federal High court shall have power to impose the penalties provided for in this act.
While section 8 of the Indian Hemp Act gives jurisdiction to Magistrates Courts, Section 26 of the NDLEA Act confers exclusive jurisdiction on the Federal High court to try and impose penalties under the Act.
The charge against the Appellant is under section 11(c) of the NDLEA Act, the Section provides as follows:
11. Importation, etc, of cocaine, heroin, or similar etc. drugs,
“Any person who without lawful authority (c) sells, buys, exposes or offers for sale or otherwise deals in or with the drug popularly known as cocaine LSD heroine or any other similar drugs, shall be guilty of an offence and liable of conviction to imprisonment for life”.
The Supreme Court in ELIJAH AMEH OKEWU VS FRN SC53/2009, per Adekeye JSC defined narcotic drugs to include Indian hemp.
Adekeye JSC said:
“Merriam Webster Dictionary 1988 10th Edition at page 770, defines narcotic drug, as a drug (as opium or morphine), that in moderate cases dulls the senses, relieves pain and induces profound sleep, but in excessive doses causes stupor, coma or convulsions. A drug (as Marijuana or LSD) subject to restrictions similar to that of addictive narcotic whether physiologically addictive, and narcotic or not, something that soothes, relieves or lulls.
Black’s Law Dictionary Eight Edition defines “narcotics as an addictive drug especially opium that dulls the senses and induces sleep, a drug that is controlled and prohibited by law.
From the foregoing Marijuana, opium or morphine all belong to the same group of narcotic drugs which soothe, relieve or lull. The words smoking used in section 10(h) obviously refer to Indian hemp in the group as you cannot smoke cocaine LSD or heroine”.
With the above judicial pronouncement, it is now clear that Indian hemp falls clearly within the contemplation of Section 11(c) of the National Drugs Law Enforcement Agency Act, and Section 26 of the Act earlier reproduced in this judgment confers exclusive jurisdiction on the Federal High Court.
The Federal High Court Act and Section 251 of the constitution of the Federal Republic of Nigeria confer jurisdiction on the Federal High Court to try drug and drug related offences to the exclusion of any other court.
Learned counsel Adeleye said drugs and poisons are listed under the exclusive legislative list it is therefore a gross misconception to submit that magistrates courts shall have exclusive jurisdiction, I agree with learned counsel that the provisions of section 26 of the NDLEA Act Cap N30 Laws Federation of the Federation of Nigeria 2004 clearly confer exclusive jurisdiction on the Federal High Court. It is also settled as rightly submitted by Mrs. Adeleye, that drugs being items listed under the exclusive legislative list cannot by any means be the intention of the law that magistrates courts being creation of state legislature shall try offences relating to such items under the exclusive legislative list.
Certainty Section 8 of the Indian Hemp Act Cap 16, Laws of the Federation of Nigeria 2004, is in conflict with section 26 of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation 2004. And since section 251(1)(m) has also conferred jurisdiction on the Federal High Court it is therefore clear that Section 8 of the said Indian Hemp Act offends the provisions of the Constitution of the Federal Republic of Nigeria 1999, and by the provision of Section 1 sub-section 3 of the constitution of the Federal Republic of Nigeria 1999 if any law is inconsistent with the provisions of the constitution, the constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
I hereby declare that section 8 of the Indian Hemp Act Cap 16 Laws of the Federation of Nigeria 2004; is inconsistent with section 26 of the NDLEA Act Cap N30 Laws of the Federation of Nigeria 2004 and Section 251 of the constitution of Federal Republic of Nigeria, the said Section 8 is therefore declared void, the Federal High Court has jurisdiction to try Indian Hemp cases, Issue one is therefore resolved in favour of the Respondent.
On Issue number 2, learned counsel for the Appellant referred this court to ABAYOMI OTALEKAN VS. STATE (2002) All FWLR PART 91 and said failure to call the recorder of Appellants statement is fatal to the case of the prosecution. He said, where an interpreter is used in taking statement, the state is inadmissible unless the person who interpreted is called as a witness, as well as the person who wrote it down.
Learned counsel said from the record of proceedings, especially page 7 of the record of Appeal the statement of the accused was taken in Hausa, and interpreted to him, it was recorded by one Nasiru Abdulhamid. And that Nasiru was not called to testify as a witness, that not even the interpreter was called as a witness, learned counsel relied on FRN VS. MOHAMMED USMAN (2012) All NWLR (PART 632) 1639 at 1655. Counsel said the procedure adopted at the trial offends the rules of procedure and the duty of the court to do justice. He urged this court to allow the appeal and set aside the judgment of the lower court.
Mrs. Adeleye, learned counsel for the Respondent said, once an accused person pleads guilty, what is expected of the trial court is to proceed and convict, learned counsel relied on Section 218 of the Criminal Procedure Act, learned counsel said, the trial court did substantial justice by convicting the Appellant having pleaded guilty; that an accused who pleads guilty is not entitled to hearing, counsel relied on SAMUEL AYO OMOJU VS. FRN (2008) All FWLR (PART 415), learned counsel said Appellants plea of guilty transformed the character of the proceedings from normal criminal trial to summary trial.
Respondents counsel said Appellant did not raise objection to the admissibility of the statement, he cannot raise objection on appeal, moreso he was represented by counsel at the trial, Appellant cannot raise objection on appeal, counsel relied on JOHN vs. STATE.
Learned counsel Adeleye therefore urged this court to resolve this issue in favour of the Respondent and dismiss the appeal.
Appellant was represented at the trial by learned counsel M. A. Lawal, counsel for the prosecution I. J. Igwubor tendered Appellants statement at trial without the any objection, see pages 12 to 13 of the record of appeal, it is certainly too late in the day for the Appellant to raise objection on appeal. He also pleaded guilty at the trial; an accused who pleads guilty to an offence is not entitled to hearing, by entering a plea of guilty, hearing is foreclosed, the next stage is to convict and pass appropriate sentence. See SAMUEL AYO OMOJU (supra).
The plea of guilty in open court by the Appellant and his statement which reads in part as follows (page 19 record of appeal)
“I have been smoking Indian for about ten years now. I went to Lagos and bought Indian Hemp from one Bilya, who sells at Alaba Rago Lagos, because I have been into selling Indian Hemp since last year…”
Where a confessional statement is made and it is positive and unequivocal, and amounts to an admission of guilt, regardless of the fact that maker resiles from it or retracted it altogether it becomes admissible and accused may be convicted on it, see Stephen John & 1 Or v. State CA/J/50C/2006.
Appellant offered confessional statement and pleaded guilty in open court, he certainly and unequivocally threw himself into the trap of the law, he certainly cannot raise objection to admissibility of his confessional statement on appeal, it is late.
This issue is resolved in favour of the Respondent. Having resolved the two issues in favour of the Respondent, I now hold that the Appeal is totally lacking in merit, it is therefore dismissed, I affirm the decision of the lower court delivered on 12th April 2011.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in advance judgment just the delivered by my learned brother, Abubakar JCA, and I agree with the reasons and conclusion therein. I join my brother in dismissing the appeal for lacking in merit.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in draft the judgment learned of my brother Abubakar, JCA and I entirely agree with the reasoning therein and the inevitable conclusion that the appeal is bereft of substance and stands dismissed.
I subscribe to the order affirming the decision of the lower court delivered on 12th April 2011.
Appearances
Abiola Olagunju Esq.For Appellant
AND
M. O. Adeleye, Mrs. (CLO – NDLEA)For Respondent
