BAREWA PHARMACEUTICALS LIMITED v. FEDERAL REPUBLIC OF NIGERIA (2019)

BAREWA PHARMACEUTICALS LIMITED v. FEDERAL REPUBLIC OF NIGERIA

(2019) LCN/4615(SC)

In the Supreme Court of Nigeria

Thursday, April 11, 2019


Case Number: SC.530/2016

 

JUSTICES:

IBRAHIM TANKO MUHAMMAD

MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

AMIRU SANUSI

PAUL ADAMU GALUMJE

 

APPELLANTS

BAREWA PHARMACEUTICALS LIMITED

 

RESPONDENTS

FEDERAL REPUBLIC OF NIGERIA

RATIO

 

WHETHER THE APPPELLATE COURT IS EXPECTED TO CONSIDER ALL ISSUES BEFORE IT

“The Court of Appeal in the case of Isansi v State (2007) LPELR – 8436 (CA) Per Ba-aba at P.40, paras E-G, held on this score, thus: – “It has been held that where an appellate Court is of the view that a consideration of an issue is enough to dispose of the appeal, it is not under obligation to consider all the other issues formulated. See Anyaduba v Nigeria Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt.243) 535 at 561, Okonji v Njokanma (1991) 7 NWLR (Pt.202) 131; Ebba v Ogodo (1984) 1 SCNLR 372”. In Kanu v A. Imo State (2013) LPELR – 20646 (CA) the Court of Appeal, Per Abubakar, JCA, at page 12-13, paras G-A, held thus: “It is settled that the Court of Appeal must consider all issues submitted to it. It must be noted that where the Court becomes satisfied that consideration of one or more issues may determine the appeal, it may no longer be necessary to consider all issues”. See Tumbi v Opawole (2000) 1 SC. The Apex Court in 7 Up v Abiola (2001) 29 WRN 98 at 114; (2001) 13 NWLR (Pt.730) 469 at 493, Per Onu JSC, held: “The general rule, it is now settled, is that an appellate Court has a duty to consider all the issue placed before it. Albeit, where it is of the view that a consideration of one is enough to dispose of the appeal, it is not under any obligation to consider all the other issue posed”. His Lordship, Kalgo, JSC in the 7 Up v Abiola case (supra) at 514, held: “It is well-settled that an Appeal Court must consider all issues presented before it by the parties. There are however exceptions according to the facts and circumstances of a case. One of such circumstances as laid down by this Court is where the Court concerned is of the view that a consideration of one Issue is enough to dispose of the appeal; it is not under any obligation to consider all the issues. See Anyaduba v NRTC Ltd (1992) 5 NWLR (Pt.243) 535; Okonji v Njokanma (1991) 7 NWLR (Pt.202) 131, Sanusi v Amayogun (1992) 4 NWLR (Pt.257) 527.”

 

CAN THE COURT ACT UPON A RETRACTED CONFESSIONAL STATEMENT

“The fact that an accused has retracted a confessional statement does not mean that the Court cannot act on it. Before a conviction can be properly founded on a retracted statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Ubierho v The State (2005) 5 NWLR (Pt.919) 644.

 

CIRCUMSTANCES WHEN THE SUPREME COURT WILL INTERFERE WITH THE CONCURRENT FINDINGS OF THE LOWER COURT

“For interference or upsetting of concurrent findings to take place, the findings must be shown to be perverse and that is not the case here. See Aja v Okoro (1991) 7 NWLR (ft.203) 260 at 285, Otitoju v Governor Ondo State (1994) 4 NWLR (Pt.340) 518 at 533 Per Belgore JSC (as he then was), Mogo Chinwendu v Nwanegbo Mbamali (1980) 3-4 SC 31; Victor Woluchem & Ors. v Simon Gudi & Ors (1981) 5 SC 319 at 326; Arisa v State (1988) 3 NWLR (Pt.83) 386; Kimdey v Military Governor Gongola State(1988) 2 NWLR (Pt. 77) 445, Dosunmu v Joto (1987) 4 NWLR (Pt.65) 297; Chukwuogor v Obuora (1987) 3 NWLR (Pt.61) 454; Okonkwo v Okolo (1988) 2 NWLR (Pt.79) 632; Akilu v Fawehinmi (NO.2) (1989) 2 NWLR (Pt.102) 121.

 

INGREDIENTS OF THE OFFENCE OF SELLING DANGEROUS DRUGS

”Section 1 (18) (a)(ii) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 under which the Appellant’s conviction and sentence of seven years imprisonment were affirmed by the lower Court, provides as follows: – “Any person who deals in, sell, offers for sale or otherwise expose for sale any petroleum product, food, drink, drug, medical preparation or manufactured or proceeded product which is not of the quality, substance, nature or efficacy expected of the product or preparation, or is not of the quality of efficacy expected of the product or preparation, or is not of the quality, substance, nature or efficacy which the seller represents it to be, or has in anyway been rendered or has become noxious, dangerous or unfit, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding ten (10) years.” 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 for sale of any product, food, drink, drug, medical preparation or manufactured or processed mentioned in the section. 2. That the products so mentioned in 1 above are not of the quality substance, nature or efficacy which the accused presents them to be. 3. That the accused comprised in the manufacture and for processing those products. 4. That the products so manufactured or processed have been rendered noxious, dangerous or unfit for human’ use. To secure a conviction, the prosecution needs to prove only one of the ingredients enumerated above.

 

 

 

 – WHETHER AN APPELLATE COURT CAN INTERFERE WITH DEDUCTIONS MADE IN EVALUATION OF EVIDENCE BY A TRIAL COURT “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 Cyracus Nnadozie & Ors vs Nze Ogbunelu Mbagwu (2008) 3 NWLR (Pt.1074) 363 at 387.”

 

MEANING OF AN EXPERT

“An expert is a person who is especially skilled in the field in 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 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”.

 

MEANINIG OF 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. Intention therefore is a mental attitude which can seldom be proved by direct evidence but can be proved by circumstances from which it may be inferred. Section 1 (18) (b)(i) of the Act places the burden of proof of lack of intention on the person that is charged with the offence.

 

 

WHEN THE APPELLATE COURT WOULD INTERFERE WITH THE SENTENCE OF THE LOWER COURT

“In Omokuwajo 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.”

 

 

 

GUIDE ON EVALUATION OF EVIDENCE

“The Supreme Court had laid down certain guides on this matter of evaluation by a trial Court and I call in aid the case of Cyriacus Nnadozie & Ors. v Nze Ogbunelu Mbagwu (2008) 3 NWLR (Pt.1074) 363 at 387 Per Tobi JSC thus: – “The duty of a trial judge is to evaluate the evidence before him to arrive at a decision. The duty of an appellate Court, such that the Court of Appeal, is to go into the evidence evaluated by the trial judge to see whether there was any perversity in the findings, and in the course of carrying out this duty, an appellate Court will also go into the evidence and come to a conclusion one way or the other. A conclusion arrived at by an appellate Court on the strength of the evidence by the trial Court, cannot be said to be a new case. In the course of evaluating evidence, a Court of law is entitled to make deductions here and there from the evidence before the Court, and deductions which result in conclusions were based on proper appraisal of evidence on record which did not amount to a new case, therefore the Supreme Court has no basis of interference with its decisions”. (Underlined for emphasis). The learned trial judge within the exclusive province of the Court of trial which sees, hears, watches and believes evaluated the evidence before him and tackled the credibility issue of the witnesses adducing the relevant evidence and made the findings of facts that came out. In this peculiar position of the trial Court an appellate Court cannot venture since what is before the appellate Court is really the second or third hand process and in which situation it goes into the record, the submissions before it in assessing if the Court of trial had carried out his own duty as it ought. See Chief Frank Ebba v Chief Wani Ogodo (1984) 4 SC at 98/99.”

 

 

PAUL ADAMU GALUMJE, J.S.C. (DELIVERING THE LEADING JUDGMENT): Three persons, namely, Adeyemo Abiodun, Egbele Austin Eromosele and the Appellant herein, a limited liability company, 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. They pleaded not guilty to the charge. In order to prove its case, the prosecution called seven witnesses and tendered several documents which were admitted in evidence. Mr. Egbele Austin Eromosele was the only witness that testified for the defence. At the end of the trial, and in a reserved and considered judgment, delivered on the 17th May, 2013, Okeke. J. found the Appellant and the two other accused persons guilty of the offence under counts 3 and 4 of the amended charged and they were all convicted accordingly. The Appellant herein, being a company was ordered to be wound up and its assets forfeited to the Federal Government of Nigeria, while the two other convicts were each sentenced to seven years imprisonment on each of the two counts. The sentences were ordered to run concurrently. They were however acquitted and discharged from the remaining counts. Being aggrieved, the three convicts appealed separately to the Court of Appeal (the lower Court). The appellant’s appeal was heard. In a reserved and considered judgment delivered on the 31st of May, 2016, the appeal was allowed in part. The conviction for conspiracy to sell dangerous drugs. “My Pikin Baby Teething Mixture” to Roca Pharmacy under count three of the charge was set aside. Conviction for sale of dangerous drugs under count 4 was affirmed. The order for winding up and forfeiture of the assets of the appellant was also set aside by the lower Court. In its place, the Appellant was sentenced to a fine of One Million Naira (N1,000,000.00). The Appellant is dissatisfied with the judgment of the lower Court. Being aggrieved it has brought this appeal. It is to be noted that Adeyemo Abiodun and Egbele Austin Eromosele, Appellant’s co-accused did have their respective appeals numbers SC.531/2016 and SC.529/2016 to this Court dismissed on 2nd February, 2018. The Appellant’s notice of appeal at pages 844 -854, filed on the 21st June, 2016 contains sixteen grounds of appeal. Parties filed and exchanged briefs of argument. The Appellant’s amended brief of argument, settled by Afolabi Kuti, learned counsel for the Appellant was filed on the 23rd January, 2017, but deemed filed on the 30th March, 2017. From the sixteen grounds of appeal, learned counsel formulated six issues for determination of this appeal at page 10 of the said Appellant’s amended brief of argument as follows: – 1. 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 Appellant’s right of fair hearing. Grounds 3, 10, 11, 12. 2. 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. Grounds 1, 2,4, 5, 6, 13, 14. 3. Whether the lower Court was right in imposing a fine of N1,000,000.00 (One Million Naira) on the Appellant, in the absence of any reason or basis for the discretion. Grounds 16. 4. Whether the lower Court failed to consider the issues properly canvassed before them, and thereby occasioned a miscarriage of justice. Ground 9. 5. Whether the lower Court erred in arriving at the conclusion that the unsworn statement of DW1 amounted to an admission of guilt. Grounds 8, 15. 6. Whether the lower Court erred in finding the Appellant liable for sale of dangerous drugs despite reversing the decision of the trial Court which found the Appellant guilty of conspiracy to sell dangerous drug. Ground 7. Chief Mike Ozekhome, learned senior counsel for the Respondent, at page 6 of the Respondent’s brief of argument filed on the 7th November, 2017, but deemed filed on the 31st of January, 2019 adopted the six issues formulated by the learned counsel for the Appellant with some slight alterations to suit the justice of the case as follows:- 1. Whether there was reliance on other grounds by the lower Court other than those contained within the judgment of the trial Court in affirming the conviction of the Appellant for sale of dangerous drugs, such as can be said to amount to a denial of fair hearing. 2. Whether from the facts and circumstances of the case the lower Court went beyond the scope of its jurisdiction to rely on the testimony of PW4 in reaching the conclusion that the products with the brand name Pikin’ were those manufactured by the 3rd Accused. 3. Whether the lower Court was right in imposing a fine of N1,000,000.00 (One Million Naira) on the Appellant, in the exercise of its discretion. 4. Whether the lower Court failed to consider the issues properly canvassed before it to have occasioned a miscarriage of justice. 5. Whether the lower Court erred in arriving at the conclusion that the unsworn statement of DW1 amounted to an admission of guilt. 6. Whether the lower Court was right in finding the Appellant liable for sale of dangerous drugs despite reversing the decision of the trial Court which found the Appellant guilty of conspiracy to sell the same drugs. Learned counsel for the Appellant prepared and filed a 26 pages’ reply brief on the 15th November 2017, and same was deemed filed on the 31st January, 2019. The issues distilled by both parties for determination of this appeal are similar. It is the Appellant who is complaining against the judgment of the lower Court. It is therefore proper that I consider this appeal on the basis of the issues submitted by the Appellant as the aggrieved party. I will therefore adopt the issues formulated for the Appellant in the determination of this appeal. Before I do that, I will set out in brief, the facts of this case in the context of count 4 of the charge for which the Appellant stands convicted. This count reads as follows: – “That you Adeyemo Abiodun, Egbele Austin Eromosele and Barewa Pharmaceutical Limited of 1 – 5 Olugbo Close, Shasha Road Akuwonjo, Lagos State within the jurisdiction of this Honourable Court on or about October, 2008 sold dangerous drug to wit: MY PIKIN BABY TEETHING MIXTURE to Roca Pharmacy of 34 Balogun Road, Agege, Lagos, which did not represent the quality you represented it to be and you thereby committed an offence contrary to Section 1 (18)(a)(ii) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria 2004.” 6The Appellant herein was the 3rd accused at the trial Court. It is a limited company licenced to produce drugs in Nigeria. The prosecution’s case is that it was involved in the manufacture, distribution and sale of “My Pikin Baby Teething Mixture in Nigeria”. That sometimes in 2008, the Chief Pharmacist of Ahmadu Bello University Zaria, by phone reported to Hauwa Keri, a Director of Establishment inspection, with National Agency for Food and Drugs Administration and Control (NAFDAC) that some children died after taking a syrup called My Pikin. Hauwa Keri in turn reported to the Director-General, NAFDAC, Professor Dora Akunyili who instructed her to carry out investigations. She set up a team made up of NAFDAC Inspectors who were able to retrieve the remnants of the syrup. Preliminary investigation showed that the drug that was common to all the children that died was “My Pikin”, and that all the children presented the same symptom of renal failure characterized by the inability to pass urine. Remnants of the drugs were also collected from Lagos University Teaching Hospital and University College Hospital Ibadan. It was the initial result of the test that led NAFDAC to seal up the Appellant herein. At the end of its investigation, the case was transferred to the Department of Enforcement because the Appellant and its directors were involved in the illegal chemical marketing. By the language of the charge as reproduced in this judgment, the Appellant and the remaining accused persons were accused of selling dangerous drugs called “My Pikin” to Roca Pharmacy for distribution to the public knowing fully well that the quality of the drugs did not represent what they claimed it to be. Section 1 (18) (a)(ii) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 under which the Appellant’s conviction and sentence of seven years imprisonment were affirmed by the lower Court, provides as follows: – “Any person who deals in, sell, offers for sale or otherwise expose for sale any petroleum product, food, drink, drug, medical preparation or manufactured or proceeded product which is not of the quality, substance, nature or efficacy expected of the product or preparation, or is not of the quality of efficacy expected of the product or preparation, or is not of the quality, substance, nature or efficacy which the seller represents it to be, or has in anyway been rendered or has become noxious, dangerous or unfit, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding ten (10) years.” 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 for sale of any product, food, drink, drug, medical preparation or manufactured or processed mentioned in the section. 2. That the products so mentioned in 1 above are not of the quality substance, nature or efficacy which the accused presents them to be. 3. That the accused comprised in the manufacture and for processing those products. 4. That the products so manufactured or processed have been rendered noxious, dangerous or unfit for human’ use. To secure a conviction, the prosecution needs to prove only one of the ingredients enumerated above. Count 4 of the charge under which the Appellant was convicted did not accuse the Appellant of manufacturing or processing of the drug, My Pikin. The 2nd, 3rd and 4th ingredients of the offence for which the Appellant was arraigned before the trial Court, as enumerated above are irrelevant in the circumstance of this appeal. The only relevant issue in this appeal is whether the Appellant sold or distributed drugs which were dangerous to the public for public consumption. The Respondent neither cross appealed against the decision of the trial Court when it discharged the Appellant from all other charges except counts 3 and 4, nor did it appeal against the decision of the lower Court. The narrow issue left for this Court to determine is whether the lower Court was right when it affirmed the Appellant’s conviction on count four (4) of the charge. On the first issue for determination of this appeal, learned counsel’s quarrel is against the finding of the lower Court at pages 788 of the printed record of this appeal where it held thus: – “I read carefully the cross examination of PW1 which is at pages 140 to 151 of the printed record. Her evidence was unchallenged. The genesis of the problems of the Appellant and his co-accused are consequently as set out in the evidence of PW1. With that background information we can now go on to consider whether the finding of fact by the lower court that the drug My Pikin Baby Teething Mixture batch 02008 was indeed dangerous can be faulted.” According to the learned counsel, the lower Court fell into a grave error in relying on the evidence of PW1 in considering the decision of the trial Court when the trial Court declined to rely on the evidence of PW1 in arriving at its decision. It is learned counsel’s contention that the lower Court’s reliance on the evidence that was, not relied upon by the trial Court was a new issue which was raised by the lower Court suo motu and parties were required to address the Court on the new issue. In aid learned counsel cited Bhojsons Plc vs Daniel Kalio (2006) 5 NWLR Pt 973 330 at 351; Aermacchi SPA vs A.I.C Ltd (1986) 2 NWLR (Pt.23) 443 at 449; Kuti vs Balogun (1978) 1 SC 53 at 60; Iriri vs Erhurhobara (1991) 2 NWLR (Pt. 173) 252 at 265; Ndiwe vs Okocha 1992 7 NWLR (Pt.252) 129 at 139; Iyaji vs Eyigebe (1987) NWLR (pt. 61) 523; Victino Fixed Odds Ltd vs Ojo (2010) 8 NWLR (Pt. 1197) 487. Finally learned counsel urged this Court to hold that the Appellant was denied fair hearing by the lower Court, when it was not invited to address the Court on its reliance on the evidence of PW1. In reply, learned senior counsel for the Respondent submitted that there was no reliance on other grounds by the lower Court in affirming the conviction of the Appellant for the sale of dangerous drugs other than those contained in the judgment of the trial Court. Learned senior counsel on the authorities of Ado Ibrahim & Company Ltd vs Bendel Cement Co. Ltd (2007) 7 LPELR 188 (SC) and Estisione Nig. Ltd & Anor vs Osun State Government & Anor (2012) LPELR 7938(CA) submitted that the evidence of PW1 was part of the record of the lower Court and as such it was entitled to look into its record and make use of any document it considers relevant in determining the issue before it. 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. I wish to start by saying that there is nowhere in the judgment of the lower Court where reliance was placed on the evidence of PW1 in considering the findings/decision of the trial Court. The lower Court merely stated that the evidence of PW1 was unchallenged and it was a background information to the problems of the appellant. This comment did not amount to placing reliance on the evidence of PW1. The fact that the lower Court made reference to the evidence of PW1 is part of its responsibility to look into any document in its record in order to support established facts. The lower Court’s consideration as to whether the finding of fact by the trial Court that the drug, “My Pikin Baby Teething Mixture batch 02008” was indeed dangerous was based on the lower Court’s assessment of the evidence of PW4, PW5, PW6 and PW7. This is clearly demonstrated in the judgment of the lower Court at page 788 of the record in the following words:- “With that background information we can now go on to consider whether the finding of fact by the lower court, that the drug “My Pikin Teething Mixture batch 02008 was indeed dangerous can be faulted. It was argued for the Appellant that the lower Court in convicting the Appellant on count 3 and 4 relied on the evidence of PW4, PW5, PW6 and PW7 when their evidence failed to meet the required scientific standard for such conviction.” The testimonies of PW4-PW7 were reproduced and after a thorough consideration, the lower Court came to conclusion that the sample of batch 02008 of the drug “My Pikin Teething Mixture,” was contaminated with the contaminant Diethylene Glycol. I therefore agree with learned senior counsel for the Respondent that there was no reliance on other grounds or the evidence of PW1 by the lower Court in affirming the conviction of the Appellant for sale of dangerous drugs other than those contained in the judgment of the lower Court and the issues raised 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 Fumudoh 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. The pagination of the record of appeal is so disjointed. The testimony of PW1 is found at pages 134 -151. It is therefore part of the record of appeal and the lower Court only made use of it to support the fact of the case. The first issue is accordingly resolved against the Appellant. The 1st, 2nd, 3rd and 16th grounds of appeal upon which the issue is formulated are hereby dismissed. The 2nd issue is 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 Appellant, thereby occasioning a miscarriage of justice. In arguing this issue, learned counsel for the Appellant made reference to several extracts from the judgment of the lower Court and concluded as follows: – (1) That the lower Court acted as a trial Court. (2) That the lower Court misdirected itself with respect to Exhibit M, which was a letter written by the Appellant in which it instructed Roca Pharmacy to stop the sale of My Pikin Baby Teething Mixture. (3) That the lower Court’s finding that the Appellant did not deny manufacturing and sale of the drug runs contrary to the record of appeal, where the trial Court never considered the evidence of DW1. (4) That the lower Court had erred first of all in speculating and affirming the integrity of the products retrieved from “wholesalers around” in the absence of any pronouncement or finding to that effect by the learned trial judge. (5) That there was mistaken identity of ‘My Pikin’. (6) That the holding of the Court that the accused persons did not present their own set of drug sample to contradict or disprove the authenticity and accuracy of Exhibit R is contrary to the records before it. Finally, on this issue learned counsel submitted that the learned justices of the Court of Appeal failed to avert their minds to the fact that they are bound by the records of appeal, and where an issue was not in contest between the parties at the lower Court, the AppellateCourt cannot open a new issue in its judgment, particularly where the parties were not given an opportunity to address the Court on such issue. The passages quoted by learned counsel for the Appellant have to do with the analysis of the evidence of PW4, where the lower Court made the following observations at pages 789 – 790 of the record as follows: – “Five cartons of batch 02008 were amongst the drugs retrieved by PW4 from wholesalers around to whom they had supplied the drug. It is obviously unlikely that PW4 will collect what he did not supply, and equally unlikely that the wholesalers would release to PW4 goods not purchased from him. There is no reason for a trader to offer up to PW4 drugs not purchased from PW4. The company alone manufactures products with the brand name no other pharmaceutical company in Nigeria manufactures products bearing that brand name. The identities of the wholesalers and individual sampling of what was retrieved from them are consequently irrelevant under the circumstances.” These are the passages which learned counsel for the Appellant accused the lower Court of acting as a trial Court and delved into needless speculation. I do not agree with the learned counsel that the lower Court went beyond the scope of its jurisdiction. By Section 15 of the Court of Appeal Act, the lower Court had full jurisdiction over the whole proceedings in this matter as if the proceedings had been instituted before it as a Court of first instance, and by doing so, a conclusion arrived at on the strength of the evidence before the trial Court, cannot be said to be a new case. 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 Cyracus Nnadozie & Ors vs Nze Ogbunelu Mbagwu (2008) 3 NWLR (Pt.1074) 363 at 387. The deduction by the lower Court that PW4 could only collect what he had supplied to the distributors accord with common sense and was based on the evidence before the Court. I am therefore of the firm view that the lower Court was right in its pronouncements as highlighted at pages 788 – 789 of the record. On Exhibit M, the fact that the Appellant had given instruction through Exhibit M for the withdrawal of the drug “My Pikin” is a clear admission that there was something wrong with the drug. The inference by the lower Court to that effect was well founded as the letter Exhibit M was written and dispatched before the instruction from PW2. The contradiction highlighted in the testimony of PW7 and the actual drug that was presented for analysis is human. In absence of any discrepancies in the testimonies of witnesses it will be presumed that the witnesses are tutored to give such evidence. For such contradiction to affect the credibility of a case, it must be shown that it is weighty and same has occasioned a miscarriage of justice. The overwhelming evidence has clearly shown that the drug that was packaged and sent for analysis was “My Pikin Teething Mixture.” Learned counsel in presentation of the appellant’s case seem to rely on pieces of extracts from the decision of the lower Court. I am of the firm view that the procedure adopted by the learned counsel cannot help his client. The case before the trial Court that has rolled up to this Court is that the Appellant sold drug that was dangerous for public consumption. No amount of hiding under legal technicality, by finding fault with the discrepancies in the procedure before the lower Court can change the course of this case. The dictates of justice demand that the guilty be punished and the innocent be set free after a fair hearing under procedural regularity which does not permit the acquittal of an otherwise guilty person upon fanciful errors contained in the proceedings. 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 vs Gonto (1983) 1 SCNLR 142; Bature vs State (1994) 1 NWLR Pt. 320 267. State vs Salawu (2011) 1 NWLR (Pt. 1279. Finally, on this issue, the overwhelming evidence before the trial Court showed that the drug “MY Pikin Teething Mixture” is a product manufactured by the Appellant. The responsibility to establish that other companies or individuals can share in the brand name of the drug rested with the Appellant and its co-accused. Appellant’s failure to do so, had removed any unwarranted speculation that the drug received at NAFDAC laboratory was a counterfeited version of the Appellant’s product. I am also of the view that the lower Court never made a case for the parties. The 2nd issue is therefore resolved against the Appellant and in favour of the Respondent. The next issue I wish to consider is the 6th issue for determination of this appeal. Learned counsel for the appellant submitted that the appellant and the other persons that were charged along with it had no intention to sell dangerous drug to the public. According to the learned counsel for an accused to be found liable under Section 1 (18) (a)(ii) of the Miscellaneous Offences Act it must be shown that he intended to commit the offences enumerated under that section. In reply, learned senior counsel for the Respondent enumerated the ingredients of the offence for which the appellant was charged, tried and convicted and submitted that intention to sell the drug, subject matter of this case is not an ingredient of the substantive offence for which the Appellant was convicted. The three ingredients as enumerated by learned counsel are: – 1. Proof that the drug was contaminated. 2. Proof that the Appellant sold the adulterated drug. 3. Proof that the product is not of the quality, expected of the producer or is not of the quality, substance, nature or efficacy which the seller represents it to be, or has in any way been rendered or has become noxious, dangerous or unfit. It is learned senior counsel’s contention that the prosecution has proved all the ingredients of the offence and the lower Court was right when it affirmed the decision of the trial Court with respect to the charge of selling dangerous drug to the public. Learned senior counsel urged this Court to dismiss the appeal. The evidence before the trial Court clearly shows that the Appellant did sell the drug “My Pikin Teething Mixture” to Roca Pharmacy for consumption by the public. Laboratory analysis shows that the drug contained Diethylene Gloycol which according to expert is dangerous. Laboratory analysis were carried out by PW6 and PW7 who gave their qualifications and their pieces of evidence were believed by the learned trial Judge and such belief was confirmed by the lower Court. PW6 and PW7 were called as expert witnesses. An expert is a person who is especially skilled in the field in 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 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. The evidence of PW6 and PW7 is very clear. The drug, My Pikin Teething Mixture is dangerous.In selling the drug to Roca Pharmacy, was the Appellant under any duty of care at all to observe the quality of the product it was selling? If it was under a duty of care did it observe the standard required in the circumstances of the case. Was there evidence of trial of the drug before releasing same to the public for consumption? In the instant case the Appellant’s failure to state the kind of precautions it took to avoid selling contaminated drug to Roca Pharmacy amount to a breach of duty: The Appellant has failed to show that he had no intention to sell adulterated drug for public consumption. Learned counsel for the Appellant cited Section 1 (18) (b)(i) of the Miscellaneous Offences Act and submitted that there was no proof that the Appellant had any intention to sell adulterated drugs to the public. Section 1(18)(b)(i) of the Act provides as follows: – “Whenever any person is charged under the preceding paragraph (a)(ii), it shall be a defence if he can establish that he did not know or had no reason to know or believe that the petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product has been adulterated or otherwise rendered noxious dangerous or unfit”. 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. Intention therefore is a mental attitude which can seldom be proved by direct evidence but can be proved by circumstances from which it may be inferred. Section 1 (18) (b)(i) of the Act places the burden of proof of lack of intention on the person that is charged with the offence. The Appellant throughout has failed to show that it had no intention to sell adulterated drug to Roca Pharmacy for public consumption. The lower Court in my view rightly upheld the decision of the trial Court on the grounds that the prosecution proved its case beyond reasonable doubt. This issue is resolved in favour of the Respondent and against the Appellant. On issue three, learned counsel for the Appellant’s quarrel is that the sentence imposed on the Appellant is excessive. According to the learned counsel, the facts on record clearly show: – 1. There were no wholly exceptional circumstances demanding the imposition of excessive fine of One Million Naira. (N1,000,000.00) on the Appellant. 2. There were substantial mitigating circumstances which ought to, but which appeared not to have been taken into consideration in the exercise of the Court’s discretion. Learned counsel insists that the discharge of the Appellant by the trial Court and the Court of Appeal from more serious charges of manufacturing the drug My Pikin and causing death, is enough mitigating factor that would have brought about the imposition of a minimal fine or none at all. In Omokuwajo 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.” The charge for which the Appellant was convicted carries a sentence of not more than 10 years. The trial Court imposed a sentence of fine of One Million Naira (N1,000,000.00), because the Appellant is a juristic person, as it is not a human being that can serve a sentence of imprisonment. A fine of One Million Naira (N1,000,000.00) in my view is not excessive, considering the fact that the order for winding up and forfeiture of the Appellant’s assets had been adjudged wrong and consequently set aside. The law is settled that where the decision of a lower Court is substantially based on the exercise of discretion, this Court will not interfere unless the lower Court failed to exercise its discretion judiciously and judicially. In the instant case, the exercise of lower Court’s discretion with regard to the sentence it passed was neither frivolous nor arbitrary. 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) 10 NWLR (Pt. 1203) 630. For the reasons I have alluded to herein, I decline to interfere with the sentence imposed on the appellant. Having convicted the Appellant on count 4, it is natural that the next stage is punishment. The fine imposed on the Appellant flowed from the judgment and it is in accordance with due process. The 3rd issue is resolved against the Appellant. Issues 4 and 5 have been subsumed into my consideration of other issues and I do not need to repeat myself. Having resolved the vital issues against the Appellant, this appeal shall be and it is hereby dismissed. The judgment of the lower Court is hereby affirmed. MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Paul Adamu Galumje JSC and to register the support I have in the reasoning from which the decision came about, I shall make some remarks. The Court of Appeal, Lagos Division or Lower Court or Court below, Coram: Chinwe Eugenia Iyizoba, Yargata Byenchit Nimpar and Jamilu Yammama Tukur, JJCA in a judgment delivered on 31/5/2016 held that the appeal against the judgment of the trial High Court succeeded in part and proceeded to set aside the conviction and sentence of the appellant to seven (7) years imprisonment on count 4. The Court below further held that the order for winding up and forfeiture of the assets of the appellant is set aside and, in its place, sentenced the appellant to a fine of one million naira. The detailed facts leading to this appeal are set out fully in the lead judgment and no useful purpose will be achieved in repeating them except for when the occasion warrants a reference to any part. On the 31st January, 2019 date of hearing, learned counsel for the appellant, Afolabi Kuti Esq. adopted the brief of argument filed on 23/1/2017 and deemed filed on 30/3/17 and a reply brief filed on 15/11/17 and deemed filed on 31/1/17. In the brief of argument six issues were crafted for determination which are as follows: – 1. 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 appellant’s right of fair hearing. Grounds 3, 10, 11 and 12. 2. 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. Grounds 1, 2, 4, 5, 6, 13 and 14. 3. Whether the lower Court was right in imposing a fine of N1,000,000.00 (One Million Naira) on the appellant, in the absence of any reason or basis for the direction. Ground 16. 4. Whether the lower Court failed to consider the issues properly canvassed before them, and thereby occasioned a miscarriage of justice. Ground 9. 5. Whether the lower Court erred in arriving at the conclusion that the unsworn statement of DW1 amounted to an admission of guilt. Grounds 8 and 15. 6. Whether the lower Court erred in finding the appellant liable for sale of dangerous drugs despite reversing the decision of the trial Court which found the appellant guilty of conspiracy to sell dangerous drug. Ground 7. Chief Mike Ozekhome SAN, learned counsel for the respondent adopted the brief of argument filed on 17/11/17 and deemed filed on 31/1/19 and in it were formulated the following issues for determination, viz: – 1. Whether there was reliance on other grounds by the lower Court other than those contained within the judgment of the trial Court in affirming the conviction of the appellant for sale of dangerous drugs, such as can be said to amount to a denial of fair hearing. 2. Whether from the facts and circumstances of the case the lower Court went beyond the scope of its jurisdiction to rely on the testimony of PW4 in reaching the conclusion that the products with the brand name “My Pikin” were those manufactured by the 3rd Accused. 3. Whether the lower Court was right in imposing a fine of N1,000,000.00 (One Million Naira) on the appellant, in the exercise of its discretion. 4. Whether the lower Court failed to consider the issues properly canvassed before it to have occasioned a miscarriage of justice. 5. Whether the lower Court erred in arriving at the conclusion that the unsworn statement of DW1 amounts to an admission of guilt. 6. Whether the lower Court was right in finding the appellant liable for sale of dangerous drugs despite reversing the decision of the trial Court which found the appellant guilty of conspiracy to sell the same drugs. The contents of the issues on each side are substantially the same and for convenience I shall use those crafted by the respondent. ISSUES 1, 2 & 3: 1. Whether there was reliance on other grounds by the lower Court other than those contained within the judgment of the trial Court in affirming the conviction of the appellant for sale of dangerous drugs, such as can be said to amount to a denial of fair hearing. 2. Whether from the facts and circumstances of the case the lower Court went beyond the scope of its jurisdiction to rely on the testimony of PW4 in reaching the conclusion that the products with the brand name “My Pikin” were those manufactured by the 3rd accused. 3. Whether the lower Court was right in imposing a fine of N1,000,000.00 (One Million Naira) on the appellant in the exercise of its discretion. Learned counsel for the appellant, Afolabi Kuti Esq. contended that a perusal of the Notice of Appeal filed by the appellant against the judgment of the trial Court shows there was no appeal at the lower Court against the refusal of the trial Court to rely on the evidence of PW1. That the Court below failed to confine itself to the grounds filed and canvassed before and to issues that naturally arise out of those grounds. He referred to Bhojsons Plc v Daniel-Kalio (2006) 5 NWLR (Pt.973) 330 at 351; Iyaji v Eyigebe (1987) NWLR (Pt.61) 523 etc. That the Court below exceeded its jurisdiction and delved into the realm of conjecture and assumption in making its incorrect conclusions. He cited Sunday Udofia v The State (1984) LPELR- 3306 (SC); Sosimi v COP (1975) 6 CCHCI 881 at 883; FRN v Daniel (2012) All FWLR (n.627) 687. It was submitted that there was no concurrent finding of fact as to the reason for the exercise of the Court’s discretion on sentence imposed upon conviction on the count charge dealing with sale of dangerous drugs. That the failure of the Court below to impose a nominal fine against the appellant has occasioned a miscarriage of justice. Responding, learned Senior Counsel, Mike Ozekhome stated that an appellate Court is competent to deal with issues not placed before it when the issues are germane to the consideration of the appeal such as the evidence of PW1. He citedAdo Ibrahim v Bendel Cement Company Ltd (2007) LPELR – 188 (SC). That the alleged contradictions are not enough to discredit the testimony of the witnesses as the alleged discrepancy had been successfully explained by the witnesses. He cited Nwankwoala v State (2007) 2 NCC 107 at 116. Learned Senior Advocate contended that the circumstances to warrant this Court interfering with the lower Court’s exercise of discretion in imposing a fine of one million naira do not exist. He citedDamina v State (1995) 8 NWLR (Pt.415) 513 at 541; Globe Fishing Ind. Ltd & Ors v Coker (1990) 7 NWLR (Pt.162) 265 at 297. The contentions of the appellant in the main in regard to the issues above are based on the Courts below going outside the record in reaching the decisions they came to. The respondent’s opposing position is that the posture of the appellant was incorrect as the Courts below operated from evidence and facts on record which they were entitled to consider in the quest for substantial justice. A few excerpts of what transpired in the trial Court as that Court conducted its evaluation of evidence might throw more light to the questions raised. The trial Court at pages 252, 258-260, 282-283, 316-320 of the record made reference to the testimony of PW1. In fact, the trial Court at page 316 of the record, relying on the testimony of PW1, held thus:- “On issue one, the learned counsel to the accused persons contended in their respective addresses that the prosecution has not been able to prove that my pikin teething mixture manufactured by the accused person was adulterated/contaminated/or dangerous. With due respect, such contentions were misconceived in view of the overwhelming evidenced before the Honourable Court. Starting with PW1 – Mrs. Hauwa Keri, a highly qualified Pharmacist of over 30 years of experience and Director of NAFDAC Establishment Inspection Directorate who said inter alia in her evidence-in-chief…” In summing up the testimony of PW1 amongst other prosecution witnesses, the trial Court held thus at page 336 of the record: “Therefore in view of the foregoing overwhelming evidence led by the prosecution which has clearly established and proved the above listed facts beyond reasonable doubt, the Court was urged to resolve issue one, that is, that the prosecution has proved that my pikin teething mixture batch No. 02008 manufactured by the accused persons was adulterated/contaminated and/or dangerous.” In respect of the evidence of PW4, the learned trial judge held thus: “The foregoing evidence has rendered worthless the contention of the defence that it was only batch no. 02008 that was withdrawn by PW4 from its customers. By the testimony of PW4 highlighted above, it is clear that he had withdrawn all the batches of My Pikin Baby Teething mixture before the visit of the NAFDAC Establishment Inspection Directorate. In other words, he withdrew all the batches in compliance with the letter (Exhibit M) from the accused person stopping the sale of the products without anticipating any visit by NAFDAC officials”. See pages 325 of the Record. His Lordship went on further: “Learned counsel also alluded to the issue of not sampling the products against the customers to whom PW4 had sold the products. This contention submitted with due respect is an error of opinion. The sampling procedure mentioned by PW2 in her testimony is meant to be between NAFDAC and drugs manufacturing companies. A product not manufactured by a distributor or retailer cannot be sampled and given to him to retain. What would he be retaining it for. In his conclusion at pages 365 and 366 of the record, the learned trial judge held: “I have considered the evidence led and the exhibits tendered and the submissions of learned SAN for the 1st and 3rd accused and the submissions of the learned counsel for the prosecution. It is not in dispute that PW4 Ezekiel Akerele of Roca Pharmacy, 34 Balogun Street, Agege, Lagos, vide Exhibit M returned inter alia five cartons of My Pikin Baby Teething Mixture Batch No. 02008 produced by Barwa Pharmaceuticals Ltd to NAFDAC. Evidence of PW4, PW5, PW6 and PW7 conclusively show that what PW6 and PW7 analyzed and found to be injurious to health was produced by the accused persons. Exhibits T and U confirm that batch 02008 of My Pikin Baby Teething mixture (My Pikin Paracetamol Syrup) produced by the accused are injurious to health”. Clearly the learned trial judge conducted a well-considered judgment with sound valuation utilizing the evidence adduced before him taken alongside the defence put up in evidence by the appellant. It makes one take the stand that the appellant is making reference to things that did not happen at the trial courts evaluation of evidence. The Supreme Court had laid down certain guides on this matter of evaluation by a trial Court and I call in aid the case of Cyriacus Nnadozie & Ors. v Nze Ogbunelu Mbagwu (2008) 3 NWLR (Pt.1074) 363 at 387 Per Tobi JSC thus: – “The duty of a trial judge is to evaluate the evidence before him to arrive at a decision. The duty of an appellate Court, such that the Court of Appeal, is to go into the evidence evaluated by the trial judge to see whether there was any perversity in the findings, and in the course of carrying out this duty, an appellate Court will also go into the evidence and come to a conclusion one way or the other. A conclusion arrived at by an appellate Court on the strength of the evidence by the trial Court, cannot be said to be a new case. In the course of evaluating evidence, a Court of law is entitled to make deductions here and there from the evidence before the Court, and deductions which result in conclusions were based on proper appraisal of evidence on record which did not amount to a new case, therefore the Supreme Court has no basis of interference with its decisions”. (Underlined for emphasis). The learned trial judge within the exclusive province of the Court of trial which sees, hears, watches and believes evaluated the evidence before him and tackled the credibility issue of the witnesses adducing the relevant evidence and made the findings of facts that came out. In this peculiar position of the trial Court an appellate Court cannot venture since what is before the appellate Court is really the second or third hand process and in which situation it goes into the record, the submissions before it in assessing if the Court of trial had carried out his own duty as it ought. See Chief Frank Ebba v Chief Wani Ogodo (1984) 4 SC at 98/99. His Lordship of the Court of Appeal stated at page 822 of the record, thus:” I shall in the determination of this appeal adopt the respondent’s issues 1 and 2 and the appellant’s issue 7 as the 3rd issue. Respondent’s issue 3 is not relevant in the instant appeal. The appellant’s issue one is basically same as the respondent’s issue one. Appellant’s issues 2, 3, 4, 5 and 6 will be subsumed under the respondent’s issue 2. Appellant’s issue 7 will be the 3rd issue. For the avoidance of confusion, the appeal will be determined under three issues as follows”. It was in resolving issue one which was ‘whether the lower Court made a finding, based on scientific evidence that the drug “My Pikin Baby Teething Mixture” with Batch No. 02008 was dangerous, which therefore support the conviction of the appellants (appellant’s issue 1), that the lower Court in line with the trite principle of law that a Court of law is entitled to look into its record and make use of any document it considers relevant in determining the issue before it, that reference was made to the testimony of PW1 (page 837 of the records), to the effect that: “I read carefully the cross-examination of PW1 which is at pages 140 to 150 of the printed record. Her evidence was unchallenged. The genesis of the problems of the appellant and the other two accused persons are consequently as set out in the evidence of PW1. With that background information, we can now go on to consider whether the finding of fact by the lower Court that the drug “My Pikin Baby Teething Mixture batch no. 02008 was indeed dangerous can be faulted”. On what the Court below did with the appeal before it wherein it analysed the facts relating to the samples collected and sent to the laboratory for analysis and agreeing with the trial Court stated as can be seen at pages 821 to 823 thus: “Learned counsel overlooked the fact that before PW5 took over the drugs, it had already been sampled so that the sampling of 14/10/09 was second sampling as shown in the evidence of PW3 set out above that “the sales representative of Roca Pharmacy made a written statement to the Police and batch 02008 was sampled again The 44 days wait was consequently of no moment. Besides as earlier stated, Barewa Pharmaceuticals are the only manufacturers of the drug. They identified the product as their own. The possibility of substituting the samples with another is non-existent. There was no doubt whatsoever that the samples are the same as the ones retrieved by PW4 who confirmed the samples. The attempt by learned counsel to challenge the authenticity of the drugs at this point is surely an afterthought”. An extensive quotation from the judgment of the lower Court shows why that Court concurrently made similar findings as the trial Court and I quote as follows: -“With the background history of this case as set out above, it is obvious that the appellant’s complaints are without merit. Batch 02008 of My Pikin is what has been found to be dangerous. Five cartons of batch 02008 were amongst the drugs retrieved by PW4 from wholesalers around to whom they had supplied the drugs. It is obviously unlikely that PW4 will collect what he did not supply and equally unlikely that the wholesalers would release to PW4 goods not purchased from him. There is no reason for a trader to offer up to PW4 drugs not purchased from PW4. The argument of counsel defies logic and is contrary to common course of human reaction to such a situation. Besides as earlier stated, the drug in question is the product of the appellant Barewa Pharmaceutical Ltd. The company alone manufactures products with the brand name. No other pharmaceutical company in Nigeria manufactures products bearing that brand name. The appellant knew their distributors and the distributors knew their customers to whom they supply the drugs. Indeed the appellant and his co-accused did not deny in their statements or oral evidence that the products were their own. They had identified the drugs as theirs. The identities of the wholesalers and individual sampling of what was retrieved from them are consequently irrelevant under the circumstances. Appellant’s contention is obviously a case of pleading to allow fanciful possibilities deflect the course of justice. All the drugs retrieved by PW4 had been duly sampled and surrendered to NAFDAC. PW3 at page 184 of the Record testified as follows: “The Sales representative of ROCA Pharmacy made a written statement to the Police and Batch 02008 was sampled again in the presence of superintendent pharmacist, production pharmacist and analyst of Barewa Pharmaceutical Ltd. The same was triplicate, one set given to the three officers of Barewa Pharmaceutical Ltd. One set was sent to NAFDAC Control Laboratory. The third set was given to the investigating Police Officer (IPO) as exhibit”. PW5, a Deputy Superintendent of Police attached to Federal Task Force Counterfeit and fake Drugs Police Squared NAFDAC testified that this case was referred to the squad for investigation by Establishment Inspector Directorate NAFDAC which also transferred to them five cartons of suspected contaminated MY Pikin Baby Teething mixture. PW5 testified: “Mr. Ezekiel Akerele, a Sales Representative of ROCA Pharmaceutical Ltd of No. 34 Balogun Street Agege, Lagos who is a distributor of Barewa Pharmaceutical Ltd from whom the Inspection Directorate of NAFDAC recovered the alleged contaminated My Pikin Baby Teething mixture batch no. 02008 manufactured by Barewa Pharmaceutical Ltd. Confirmed that the said pharmaceutical product batch 02008 is among the Pharmaceutical product recovered from him. The accused persons were called upon. They came and inspected the products and confirmed that the product batch 02008 was manufactured by Barewa Pharmaceutical Ltd. The Police form D22 was filled containing the particulars of the alleged contaminated My Pikin Baby Teething mixture and the names of the accused persons. The product batch was packaged and sealed in the presence of the accused persons in three units. On each of the sealed units of the product, the accused persons wrote their names and signed. I countersigned. One of the sealed units of the product was given to the accused persons. One of the units was restrained by the Federal Tax Force on Counterfeit and Fake Drugs Police Squad Investigation team. One of the units accompanied with the Police form D22 was forwarded to NAFDAC Laboratory for analysis”. I need point out in view of the posture of the appellant that though in general an Appeal Court deals with specific issues placed before it on appeal, that is not to suggest that it lacks the power, competence or jurisdiction to consider other issues which are cognate to the matter decided by the trial Court but for some reasons the trial Court failed or omitted to consider and which the Court of Appeal in its opinion needs in the consideration of those issues before it and the only route to aid it in the effective disposal of the matter on hand. This is in line with what has become trite that a Court of law is entitled to look into its record and make use of any document it considers relevant in the determination of the issue before it. See Ado Ibrahim & Company Ltd. v Bendel Cement Company Ltd. (2007) – LPELR – 188 (SC); Estisione Nig. Ltd. Anor v Osun State Government & Anor (2012) LPELR – 7938 (CA); Fumudoh v Aboro (1991) 9 NWLR (pt.214) 210 at 229; Agbareh & Anor. v Mimra & 2 Ors. (2008) 2 NWLR (Pt.1011) 378 at 411-412. Therefore the grouse of the appellant that the Court below had made reference to the testimony of PW1 to the conviction of the appellant as according to the assertion of the appellant it did not form part of the judgment of the trial Court on appeal before the lower Court is not correct. I say so because the Court below had the jurisdiction and competence to utilise that piece of evidence of PW1 to get to the justice of the case and it cannot be faulted since the appellant had not established a miscarriage of justice on account of that use of the record. I must remind myself that this appeal is against concurrent findings of fact and the appellant is calling on this Court to interfere including the matter of the lower Court’s exercise of discretion in imposing a fine of one million naira sentence on the appellant after setting aside the order of winding up and forfeiture of the assets of the appellant earlier ordered by the trial Court. In this regard what is paramount when this call for intervention in concurrent findings is made is if the failure of justice had been occasioned. A mere speculative opinion that a failure of justice might have occurred is not sufficient to justify the interference of an Appeal Court such as the Apex Court. It is not every irregularity in the trial Court that will give rise to miscarriage of justice and justify a successful call for interference, such irregularity must go to the root of the case and no such defect exists in the case in hand for which this Court would set in motion the upsetting of the findings concurrently and very well made findings and the follow up conclusion. See Damina v State (1995) 8 NWLR (Pt.415) 513 at 541; Globe Fishing Ind. Ltd. & Ors v Coker (1990) 7 NWLR (Pt.162) 265 at 297. From the foregoing all the three issues are resolved against the Appellant and in favour of the Respondent. ISSUES 4, 5 AND 6: 4. Whether the Lower Court failed to consider the issues properly canvassed before it to have occasioned a miscarriage of justice. 5. Whether the Lower Court erred in arriving at the conclusion that the unsworn statement of DW1 amounted to an admission of guilt. 6. Whether the Lower Court was right in finding the appellant liable for sale of dangerous drugs despite reversing the decision of the trial Court which found the appellant guilty of conspiracy to sell the same drugs. For the appellant, it was submitted that the Court below failed to adequately review certain findings of the trial Court and if it had evaluated the evidence properly would have come to a different conclusion. He cited the case Makanjuola v Balogun (1989) 3 NWLR (Pt.108) 192 at 204 – 205; Wassah & Ors. v Kara & Ors. (2014) 12 SCM (Pt.11-12) 250. That the failure of the trial Court and subsequently the lower Court to consider the testimony of DW1 being the only witness for the defence is akin to the failure to consider the defence of the accused person which is fatal to the prosecution’s case. He cited Adisa v The State (1991) 1 NWLR (Pt.168) 490 at 509. That the lower Court ought to have set aside the conviction for sale of dangerous drugs in the peculiar circumstances of the case. He cited Arinze v State (1990) 6 NWLR (Pt.154) 158 at 164 (CA). For the respondent, it was submitted that the Court below is not obligated to look at every issue submitted to it for consideration if it is of the view that the consideration of a particular issue was enough to dispose of the appeal. He cited Isansi v State (2007) LPELR – 8436 (CA): Kanu v A. G. Imo State (2013) LPELR – 20646 (CA); 7UP v Abiola (2001) 29 WRN 98 at 114; (2001) 13 NWLR (Pt.730) 469 at 493. He further stated that it is not true that the trial judge did not consider the defence of DW1 as can be seen on the record and the Court below made findings along the same lines. That in the circumstance, this is one of those occasions where the Apex Court should refrain from interfering with the concurrent findings of two lower Courts. He cited Aja v Okoro (1991) 7 NWLR (Pt.203) 260 at 285; Otitoju v Governor Ondo State. (1994) 4 NWLR(Pt.340) 518 at 533 The learned counsel for the respondent contended that what is expected of the prosecution was effectively done in this case as the respondent was able to prove the unbroken link through its various witnesses which testimonies the appellant was not able to impeach. He stated on that the Court can acquit an accused on the offence of conspiracy and yet convict him for the substantive charge. He cited Atano & Ors v A. G. Bendel (1988) 2 NWLR (Pt.75) 201 at 232. That there is no basis for this Court upsetting the concurrent findings of the Courts below. He cited Lewis v UBA (2016) LPELR -40661. Part of the grouse of the appellant is that the Court below failed to consider a certain issue brought up before it. In this regard certain guides exist and so while the Court is enjoined to consider all issues brought before it, where certain issues are subsumed in the settled ones then no need exists to embark on considering the issue which answer has been placed in the issue already considered and decided upon. I shall cite a few judicial authorities to showcase what I have attempted to communicate. The Court of Appeal in the case of Isansi v State (2007) LPELR – 8436 (CA) Per Ba-aba at P.40, paras E-G, held on this score, thus: – “It has been held that where an appellate Court is of the view that a consideration of an issue is enough to dispose of the appeal, it is not under obligation to consider all the other issues formulated. See Anyaduba v Nigeria Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt.243) 535 at 561, Okonji v Njokanma (1991) 7 NWLR (Pt.202) 131; Ebba v Ogodo (1984) 1 SCNLR 372”. In Kanu v A. Imo State (2013) LPELR – 20646 (CA) the Court of Appeal, Per Abubakar, JCA, at page 12-13, paras G-A, held thus: “It is settled that the Court of Appeal must consider all issues submitted to it. It must be noted that where the Court becomes satisfied that consideration of one or more issues may determine the appeal, it may no longer be necessary to consider all issues”. See Tumbi v Opawole (2000) 1 SC.The Apex Court in 7 Up v Abiola (2001) 29 WRN 98 at 114; (2001) 13 NWLR (Pt.730) 469 at 493, Per Onu JSC, held: “The general rule, it is now settled, is that an appellate Court has a duty to consider all the issue placed before it. Albeit, where it is of the view that a consideration of one is enough to dispose of the appeal, it is not under any obligation to consider all the other issue posed”. His Lordship, Kalgo, JSC in the7 Up v Abiola case (supra) at 514, held: “It is well-settled that an Appeal Court must consider all issues presented before it by the parties. There are however exceptions according to the facts and circumstances of a case. One of such circumstances as laid down by this Court is where the Court concerned is of the view that a consideration of one Issue is enough to dispose of the appeal; it is not under any obligation to consider all the issues. See Anyaduba v NRTC Ltd (1992) 5 NWLR (Pt.243) 535; Okonji v Njokanma (1991) 7 NWLR (Pt.202) 131, Sanusi v Amayogun (1992) 4 NWLR (Pt.257) 527. In this appeal, the Court of Appeal dealt with the issue of jurisdiction of the trial Court to entertain the case and left the other ancillary issues which it considers as academic. In the light of the above authorities and what I said earlier about the issue of jurisdiction in a case, the Court of Appeal was not wrong in failing to consider the other ancillary issues in the circumstances of this case. There is no miscarriage of justice as a result or denial of fair hearing”. Onu JSC in the 7Up v Abiola (2001) 29 WRN 98 at 114-115 (2001) 13 NWLR (Pt.730) 469 at 493-494 where he held thus: In the instant case, where the Court below arrived at the view that the only “live” issue (the sole issue on jurisdiction) is enough to dispose of the appeal, this Court will not impose upon it the obligation to consider all the other issues posed by the appellant. That being so I hold that it does not matter that the Court below failed to consider the other issues raised by the appellants in their brief and which failure did not occasion a miscarriage of Justice. See Union Bank of Nigeria Ltd v Nwaokolo (1995) 6 NWLR (Pt.400) 127; Kotoye v CBN (1989) 1 NWLR (Pt.98) 419 and Bamaiyi v The State (2001) 8 NWLR 270. Besides and in addition, the failure to consider these other issues has in my opinion not occasioned a miscarriage of justice. See Mora & Ors v Nwalusi & Ors (1962) 1 All NLR (pt.4) 5S1 and Stool of Abinabina v Enyimadu 12 WACA 171 at 173. As this Court succinctly put it, “An appellate Court has a duty to consider all the issues placed before it, vide Okonji v Njokanma (1991) 7 NWLR (Pt.202) 131. But in the instant case the issue on which the appeal was decided was the most important “Live” issue before it, challenging as it does the order of non-suit on the claim for declaration of title. If a Court of Appeal is of the view correctly that a consideration of one issue is enough to consider all the other issues posed. If however it is erroneous in its decision, the consequence may be setting aside of its decision on appeal with an order of rehearing. The Court of Appeal was right in its decision here and its failure to consider those other issues has not led to miscarriage of justice”. (Underlining mine for emphasis). See SLN Vol.2 (Pt.111), para 1986, PP. 1299-1300. With the principle on issues to be considered as raised, the appellant clearly did not fairly bring up the issue of non-consideration in the light of trial Court holding thus: – “The said written statement of the 2nd accused as stated above clearly shows that the accused persons were carrying on the manufacture of MY PIKIN BABY TEETHING MIXTURE below the quality it purports to be and sold same to the public including Roca Pharmacy. I agree with Chief Ozekhome SAN that in the face of the above, it is a great disservice to the trial Judge for the appellant to reach the unfortunate conclusion that, “the trial Court did not even consider the defence of DW1 and was not in a position to evaluate the denial by DW1. The Justices of the Court of Appeal amplified the error. Instead, the learned Justices held wrongly that there was no denial on the part of the accused persons notwithstanding that the record proved otherwise”. See paragraph 4.38, page 24 of the appellant’s brief. From the record at pages 366, 367 and 368, the learned trial judge carried a thorough analysis of the evidence of DW1 and stated thus: -“The 2nd accused (DW1) in his written statement dated 1st December, 2008 admitted and stated thus: “After sampling, the raw material is supposed to be sent to quarantine pending the outcome of the result of Analysis, but in the absence of Quarantine Section, yellow labels are placed on the materials pending on the result outcome. Presently the company does not have Quarantine Section for raw materials but we use yellow labels”. At page 367 of the record, the trial judge stated further, while analyzing the evidence of DW1, thus: “Further the 2nd accused stated in the said statement that other tests that could differentiate it from other material such as boiling point and other tests could not be carried out due to lack of reagent. That TLC is performed on Propylene Glycol, but because of lack of ammonium hydroxide it could not be standardized and thus not documented. The laboratory is not adequately equipped for tests of contamination and other tests”Also at pages 366 to 368 of the record, the trial judge stated as follows: – “The said written statement of the 2nd accused as stated above clearly shows that the accused persons were carrying on the manufacture of MY PIKIN BABY TEETHING MIXTURE below the quality it purports to be and sold same to the public including Roca Pharmacy. I hold that the prosecution has proved its case in respect of counts 3 and 4 against the accused. The accused persons are guilty on counts 3 and 4 as charged”. In the face of the above, it is a great disservice to the trial Judge for the appellant to reach the unfortunate conclusion as contained in paragraph 7.16 at page 36 of the appellant’s brief to the effect that: “Throughout the body of the 121 page judgment of the trial Court; specifically from pages 249 – 369 of the records, the learned trial judge, respectfully failed to consider and/or evaluate a single shred of evidence led by PW1; the only witness for the appellant. Rather his Lordship devoted a substantial part of what in effect was a 3-page judgment; from pages 366-368 of the records, to replicating portions of the unsworn statement of DW1 to the Police, and relied on this and this alone as the case of the defence. Again, I am at one with respondent’s counsel that the purported failure to evaluate the evidence of the defence was erroneously conjured by the appellant. The misapprehension or the error of the evaluation of the non-denial, is that of the appellant and not that of the lower Court. Analysing a similar submission put forward by the appellant before it, the lower Court at page 837 and 838 of the record held: “Learned counsel for the appellant complained that the learned trial judge failed to consider the evidence of DW1 but rather relied heavily on his unsworn statement to the Police. The unsworn testimony of DW1 is almost in the nature of a confession. No objection was raised to its admissibility at the time it was tendered as an exhibit. DW1 did not disclaim the statement in his oral evidence in Court. But he made statements on oath which contradicted his statement to the police. For example, in his statement to the police, he stated plainly that the laboratory was not adequately equipped for tests of contamination and that because of inadequate supplies, they could not guarantee the quality of both raw materials and the finished product “My Pikin”. In his oral evidence in Court, DW1 backpedaled and recanted from these confessional statements. The fact that an accused has retracted a confessional statement does not mean that the Court cannot act on it. Before a conviction can be properly founded on a retracted statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Ubierho v The State (2005) 5 NWLR (Pt.919) 644. The evidence of PW1 and PW2 on their visit to the factory supported the unsworn statement to the police. The learned trial judge was right in acting on the confessional statement. I am of the firm view that the evidence adduced by the prosecution even without the unsworn statement and oral evidence of DW1 was credible enough to support the conviction of the appellant on count 4″. I see no further justification in going on and on in this appeal as the concurrent findings and conclusion of the two Courts below are difficult to dislodge and nothing placed by the appellant on which this Court could hold as basis to interfere except for the baseless assertions of the appellant outside the record in seeking to persuade the Court to go along with its line of the thought. For interference or upsetting of concurrent findings to take place, the findings must be shown to be perverse and that is not the case here. See Aja v Okoro (1991) 7 NWLR (ft.203) 260 at 285, Otitoju v Governor Ondo State (1994) 4 NWLR (Pt.340) 518 at 533 Per Belgore JSC (as he then was), Mogo Chinwendu v Nwanegbo Mbamali (1980) 3-4 SC 31; Victor Woluchem & Ors. v Simon Gudi & Ors (1981) 5 SC 319 at 326; Arisa v State (1988) 3 NWLR (Pt.83) 386; Kimdey v Military Governor Gongola State(1988) 2 NWLR (Pt. 77) 445, Dosunmu v Joto (1987) 4 NWLR (Pt.65) 297; Chukwuogor v Obuora (1987) 3 NWLR (Pt.61) 454; Okonkwo v Okolo (1988) 2 NWLR (Pt.79) 632; Akilu v Fawehinmi (NO.2) (1989) 2 NWLR (Pt.102) 121. In totality the issues 4, 5 and 6 are resolved against the appellant as nothing has been proffered to change the course of events. From the foregoing and the well-articulated leading judgment, I see no merit in this appeal which I dismiss. I abide by the consequential orders as earlier made. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the privilege of reading in draft the judgment of my learned brother, Paul Adamu Galumje, JSC, just delivered. His Lordship has painstakingly considered and competently resolved all the issues referred to this Court for determination. I agree entirely with the sound reasoning and conclusions reached. I adopt them as mine and have nothing further to add by way of adumbration or emphasis. I am satisfied that the lower Court gave careful consideration to all the issues presented to it and rightly affirmed the appellant’s conviction in respect of count 4 of the charge. The fine of N1,000,000 imposed upon the appellant is fair having regard to the entire circumstances of this case, I am not persuaded to interfere. Accordingly, I find no merit in this appeal. It is hereby dismissed. The judgment of the lower Court is affirmed. Appeal dismissed. AMIRU SANUSI, J.S.C.: I had the advantage of reading before now, the Judgment just rendered by my learned brother Paul Adamu Galumje JSC. All the salient issues raised in the appeal have been adequately addressed by His lordship in the Judgment His reasoning and the conclusion arrived at, especially his resolve to levy fine on the appellant to the tune of the sum of N1, 000,000, in respect of the fourth count, is ideal and apposite. I endorse such conclusion and dismiss the appeal. As a corollary, I affirm the Judgment of the Court below. Appeal dismissed IBRAHIM TANKO MUHAMMAD, AG. C.J.N.: I have had the opportunity of reading before now, the judgment just delivered by my learned brother, Galumje, JSC. I agree with my lord that the appeal is lacking in merit and ought to be dismissed. I too, hereby, dismiss the appeal.

COUNSELS

Afolabi Kuti, Esq. with him, H. H. Bassey, Esq., Owhoavwodua E. Pius, Esq. and Gbeyide Victor, Esq. for Appellant Chief Mike Ozekhome, SAN with him, Godwin Iyinbor ,Esq., Oluchi Uche, Esq., Osilama Mike|Ozekhome, Esq. for Respondent|

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