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DANJUMA RABE V. FEDERAL REPUBLIC OF NIGERIA (2013)

DANJUMA RABE V. FEDERAL REPUBLIC OF NIGERIA

(2013)LCN/5893(CA)

 

In The Court of Appeal of Nigeria

On Thursday, the 7th day of February, 2013

CA/IL/C.45/2012

RATIO

JURISDICTION: MATTERS OF JURISDICTION MUST BE HANDLED FIRST

 It is settled that the law commands the courts to deal first with jurisdictional issue presented before them see Agbiti V. Nigerian Army (2011) 4 NWLR (Pt.1236) 175. PER OBANDE FESTUS OGBUINYA J.C.A

STATUTES: WHEN THERE ARE CONFLICTING PROVISIONS IN STATUTES, THE PROVISION OF THE CONSTITUTION WILL PREVAIL( IF THE CONSTITUTION PROVIDES FOR SAME)

If it were so, then the import or implication is that the two statutes, the Indian Hemp Act and the National Drug Law Enforcement Agency Act, would be in conflict as they cannot be implemented without arriving at disharmonious results, as to which court has the jurisdiction to determine the offence. To resolve such a statutory impasse, the test evolved in the case of F.R.N V. Osahon (2006) 9 NWLR (Pt.973) 424 at 441 is apt. Therein Belgore, JSC, as he then was stated:
“…I think the argument that seemed to persuade Court of Appeal is in the argument of the present respondents as appellants calling the police Act a general Act and the Federal High Court specific Act. That dichotomy certainly swayed the court below…If the police Act was made by the National Assembly, so is the Federal High Court Act….Where two provisions, one each from an Act of National Assembly conflict in relation to the same subject-matter as in this instance, question of right to prosecute criminal matters in the Federal High Court, the conflict cannot be isolated to the two provisions only in so far as there are constitutional provisions on the same matter. In such a situation, the provisions of the Constitution shall govern the interpretation….PER OBANDE FESTUS OGBUINYA J.C.A

FEDERAL HIGH COURT: THE JURISDICTION OF THE FEDERAL HIGH COURT AS REGARDS DRUGS AND POISONS
Now, the sacrosanct provision of section 251 (1)(m) of the Constitution. By amended, donates exclusive jurisdiction to the Federal High Court on civil causes and matters relating to drugs and poisons. By virtue of the provision of section 251 (3) thereof:
“The Federal High Court shall also have and exercise jurisdiction and power in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of the section.” See Abbas V. C.O.P (1998) 12 NWLR (Pt.577) 308.PER OBANDE FESTUS OGBUINYA J.C.A

NDLEA ACT: WHETHER THE INDIAN HEMP IS A DRUG WITHIN THE PROVISION OF THE NDLEA ACT

Interestingly, the Supreme Court has given its imprimatur to the fact that Indian hemp is a drug within the meaning of drugs in section 11 of the National Drug Law Enforcement Agency Act in the recent case of Okewu V. FRN (2012) 9 NWLR (Pt 1305) 327, It stems from these highlights that the Constitution, as amended, has made clear and copious provisions in allotting jurisdiction to the Federal High Court over criminal causes and matters touching on Indian hemp. Indubitably, the Federal High Court traces the statutory paternity of its jurisdiction over Indian hemp offences, allocated to it by section 26(1) of the National Drug Law Enforcement Agency Act, to the Constitution, as amended. Contrariwise, there is no such triumvirate legislative nexus between the Indian Hemp Act, the Constitution, as amended, and the Magistrate’s Court vis-à-vis adjudication of Indian hemp crimes. PER OBANDE FESTUS OGBUINYA J.C.A

THE CONSTITUTION AS THE GRUND NORM

It is trite that the Constitution, the fons et origo, is supreme, paramount and overshadows all other enactment promulgated by the legislature, be it national or state legislature. By virtue of section 1 (3) of the Constitution, as amended, all other laws must not only be consistent with its provisions, but derive their potency and legitimacy from it, see Oladele V. Nigerian Army (2004) 6 NWLR (Pt.868) 166; FRN V. Osahon (supra); Tanko V. State (2009) 4 NWLR (Pt. 1131) 430. PER OBANDE FESTUS OGBUINYA J.C.A

WITNESSES: ILLITERATE WITNESS: WHEN AN ILLITERATE PERSON MAKES AN EXTRA JUDICIAL STATEMENT THE RECORDER AND INTERPRETER MUST BE AVAILABLE IN COURT TO TESTIFY
Now, it is settled law, as rightly captured by the appellant, that where an accused person is an illiterate so that his extra-judicial statement is recorded by another person, invariably by a law enforcement personnel, and translated to him by another person, both the recorder and the interpreter of that pre-trial statement must be called to testify as witnesses in respect of it otherwise it will be inadmissible as a documentary hearsay. This cardinal principle of law is of antiquity in criminal proceedings, see Rex V. Godado (1940) 6 WACA 60; Rex V. Ogbuewu (1949) 12 WACA 483; Zakwakwa of Yorro V. Queen (1960) SCNLR 36; Nwaeze V. State (1996) 2 NWLR (pt. 428); FRN V. Usman (supra)/(2012) All FWLR (Pt. 632) 1539.PER OBANDE FESTUS OGBUINYA J.C.A

CONFESSION: WHAT IS A CONFESSIONAL STATEMENT

Section 27 of the Evidence Act, 2004 (now section 28 of the Evidence Act 2011) defines a confession thus:
“27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”
See Onyenge V. State (2012) 15 NWLR (Pt.1324) 586; Adesina V. State (2012) 164 NWLR (Pt.1321) 429.PER OBANDE FESTUS OGBUINYA J.C.A

CONFESSION: WHETHER VERBAL CONFESSIONS ARE OF THE SAME STANDARD AS WRITTEN ONES

In the eyes of the law, verbal confession made by an accused person, privately and/or in the open court, are cognizable in law and are as potent as written ones, see Arogundare V. State (2009) 6 NWLR (Pt. 1136) 165/(2009) All FWLR (Pt.469) 409/(2009) 13 WRN 1, Jua V. State (2010) 4 NWLR (pt. 1184) 217/(2010) 43 WRN 1. A criminal confession is one of the legally recognized, three ways of proving commission of crimes, see Igri V. State (supra); State V. Isah (2012) 16 NWLR (Pt. 1327) 673.PER OBANDE FESTUS OGBUINYA J.C.A

CONFESSION: CONFESSIONS ARE THE BEST EVIDENCE

By law, confessions are the best evidence, stronger than the evidence of an eye-witness, in criminal proceedings, see Akpa V. State (2008) 14 NWLR (Pt.1106) 72/(2008) 39 WRN 27/(2008) 34 NSCQR 1249. PER OBANDE FESTUS OGBUINYA J.C.A

JUSTICE

PAUL ADAMU GALINJE justice of The Court of Appeal of Nigeria

OBANDE O. FESTUS OGBUINYA justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR justice of The Court of Appeal of Nigeria

 

Between

DANJUMA RABEAppellant(s)

 

AND

FEDERAL REPUBLIC OF NIGERIARespondent(s)

OBANDE FESTUS OGBUINYA J.C.A (Delivering the Leading Judgment): This appeal sprouted from the judgment of the Federal High Court, Ilorin Division, presided over by A.O Faji, J., in charge No. FHC/IL/13C/2012, delivered on 22/05/2012, wherein the appellant was convicted and sentenced to a term of imprisonment.
The facts of that case, which culminated in this appeal, before the lower Federal High Court were simple. On 21/03/2012, the appellant, a 27 – year old labourer, was a passenger in a motor vehicle that was searched at Bode-Saadu, Jebba Road, in Moro Local Government of Kwara State by officers of the National Drug Law Enforcement Agency, Kwara State Command. In the course of that search, the officers found on the appellant dried weeds, suspected to be Indian hemp otherwise known as cannabis sativa.
As a consequence, the appellant was arrested by those officers.
After the preliminary investigation and field tests, the National Drug Law Enforcement Agency, Kwara State Command, acting for the Attorney General of the Federation, arraigned the appellant before the lower court on 22/5/2012. The charge, a one-count charge, found on page 1 of the printed record, was to the effect that the appellant: “without lawful authority trafficked in 4.4 kilogrammes of cannabis sativa (otherwise know (sic) as Indian hemp a drug similar to Cocaine, Heroin, LSD etc. thereby committing (sic) an offence contrary to and punishable under section 11 (b) of the National Drug Law Enforcement Agency Act Cap N30 Law of the Federation of Nigeria 2004.”
On that date of arraignment before the lower court, 22/5/2012, the charge was read, interpreted and explained to the appellant from English to Hausa and vice versa and he pleaded guilty to it. Sequel to that guilty plea, the respondent, without objection, fielded Pw1, Ahmed Akopari Suleiman, an exhibit keeper in the Kwara State Command of the Agency who presented the facts of the case to the lower court. In the course of his evidence, Pw1 tendered all the necessary documentary evidence which were, without opposition, admitted in evidence as exhibits A, B, C, D, E, F, G and H and H1. The appellant had no questions for the Pw1 under cross-examination after his evidence. Thereafter, the respondent urged the lower court, without objection, to convict the appellant based on the evidence. Thereupon, the lower court convicted the appellant as charged.
In the appellant’s allocutus, pleaded for him by his counsel, the lower court was informed that he was a first offender of 27 years old, a labourer and a redeemable smoker and urged to temper justice with mercy in the sentencing. Thereafter, the lower court proceeded, or page 13 of the record, to sentence the appellant thus:
“I hereby sentence you-DANJUMA RABE-to a term of 12 months imprisonment starting from today 22/05/2012.”
The appellant was to be dissatisfied with the decision of the lower court. Consequently, he filed a three-ground notice of appeal, encapsulated on pages 26-29 of the cold record, on 12/07/2012, wherein he prayed this court for: “An ORDER allowing the appeal, set aside the conviction and sentence imposed on the appellant and discharge and acquit him of the offence of illegal possession of Indian hemp preferred against him.” Subsequent to that, the parties filed and exchanged their briefs of argument in the manner prescribed by the rules of this court.
The appeal was heard on 16/01/2013. In that regard, the court, in line with the provision of order 18 rule 9(4) of the Court of Appeal Rules, 2011, deemed the appellant’s brief of argument, settled by peter Mrakpor, Esq., and filed on 17/08/2012, as duly argued in favour of the appeal. Similarly, the respondent’s counsel, Mrs. M.O Adeleye, adopted the respondent’s brief of argument, filed on 27/11/2012, but deemed filed on 23/11/2012, as representing her submissions against the appeal. She prayed the court to dismiss the appeal.
The appellant, in his brief of argument, crafted two issues for determination of the appeal to wit:
1. “Whether or not the learned trial Judge acted rightly when he assumed jurisdiction and tried the Appellant for the offence of illegal possession of Indian hemp.
2. Whether or not the Appellant’s statement in Hausa and English version (EXHIBITS H and H1) can be admitted in evidence without the oral evidence of the police officer and the interpreter.”
In the respondent’s brief of argument, it distilled two issues for determination of the appeal, viz”
“Issue One
Whether the Federal High Court has jurisdiction to try the Appellant for the offence of trafficking 4.4 Kg of cannabis sativa (Indian Hemp) having regard to the provision of the Constitution of Federal Republic of Nigeria, 1999, National Drug Law Enforcement Agency Cap N 30, Laws of the federation of Nigeria 2004 and the Indian Hemp Act Cap 116 of the Laws of the Federation 2004,
Issue Two
Whether the Respondent is required to call witnesses to prove the guilt of the Appellant beyond reasonable doubt in spite of his plea of guilty.”
An intimate comparison of the two sets of issues, undoubtedly, reveals that they exhibit symmetrical contents in substance. The appellant’s issue one mirrors the respondent’s issue one. The respondent’s issue two matches with the appellant’s issue two. In view of this oneness, I will consider the appeal on the basis of the appellant’s issues for determination, after all he is the one incensed with the decision of the lower court.
Arguments on the Issues:
Issue One.
Learned counsel for the appellant submitted that the lower court erred when it assumed jurisdiction and tried the appellant for the offence of illegal possession of Indian hemp. He, however, acknowledged that section 26 of the National Drug Law Enforcement Agency Act conferred exclusive jurisdiction to try offenders under the Act on the lower court. He explained that the National Drug Law Enforcement Agency Act was established to enforce laws against the cultivation, processing; sale and use of hard drugs in general. He posited that the Indian Hemp Act, Cap. 16, Laws of the Federation of Nigeria, 2004, was the specific law that applied for the prosecution of persons accused of Indian hemp related offences. He added that section 8 (1) of the Indian Hemp Act expressly provided the Magistrate’s Court with jurisdiction over Indian hemp related offences. He further submitted that section 2 of the Indian Hemp Act related to the offence of planting and cultivating Indian hemp for which the High Court had jurisdiction to try summarily, sections 4-7 of the Act were focused on different offences under which the offence of unlawful possession of Indian hemp, for which the appellant was charged, fell within.
Learned counsel took the view that the Indian Hemp Act was not repealed by the National Drug Law Enforcement Agency Act; noting that the Indian Hemp Act applied where the offences related to Indian hemp since the courts would not try an accused person under different Laws at the same time. He maintained that where there is a specific law in respect of an offence, it is only that specific law that will apply in the prosecution of an accused person. He placed reliance on the case of NECO V. Tokode (2011) 5 NWLR (Pt. 1239) 45 and posited that the appellant should have been charged under the Indian Hemp Act. He persisted that the Federal High Court (the lower court) lacked the jurisdiction to try the appellant for an offence of illegal possession of Indian hemp because of the existence of the Indian Hemp Act. He referred to the case of Onwudiwe V. FRN (2006) 10 NWLR (Pt. 988) 382. He outlined the ingredients of jurisdiction, as noted in the cases of A.P.C Ltd V. N.D.D.I.C (2006) 15 NWLR (Pt. 1002) 404; Umanah V. Attah (2006) 17 NWLR (pt. 1007) 503; Madukolu V. Nkemdilim (1962) 2 SCNLR 341/(1962)1 All NLR (pt.4) 587, to support his submissions. He stated that once a court lacked the jurisdiction over a case before it, any decision made in respect of it would be a nullity. He referred to the case of Onwudiwe V. FRN (supra) to support his postulation. He posited that the issue of jurisdiction could be raised at any stage of the proceedings, even for the first time on appeal. He relied on the case of A.P.C. Ltd. V. NDDIC Ltd (supra) and Ogakhire V. State (2006) 15 NWLR (Pt.1001) 157 to buttress his submission”.
For the respondent, learned counsel contended that the lower court had jurisdiction, to the exclusion of other court, to try persons charged with narcotic drug offences as in the appellant’s case. She drew the court’s attention to the charge against the appellant, adding that the National Drug Law Enforcement Agency Act, under which he was arraigned, was an existing law. She explained that in the second. Schedule to the 1999 Constitution, as amended, drugs and poisons were mentioned as items under the exclusive legislation of the National, Assembly so that Decree No.48 1989 which established National Drug Law Enforcement Agency Act, now the National Drug Law Enforcement Agency Act, was a competent law of the National Assembly. She traced the historical legislation on drug related matters and concluded that the National Drug Law Enforcement Agency Act had taken over the responsibility of legislation in respect of Indian hemp in the Indian Hemp Act thereby making the latter to exist as a law without life. She solicited the court to invalidate the Indian Hemp Act in view of the provision of section 3 15 (3) of the amended Constitution. She referred to Decree No. 20 of 1984 as amended by Decree No. 22 of 1986, Decree No. 62 of 1999 and section 251 (1)(m)(s) and (3) of the 1999 constitution, &s amended, section 26 of the National Drug Law Enforcement Agency Act and section 7 (1) of the Federal High Court Act, cap F12, Laws of the Federation of Nigeria, 2004 which gave the lower court exclusive jurisdiction to try criminal matters relating to drugs and Poison.
Learned counsel argued that the Magistrate’s Court of Kwara State, which the appellant said had jurisdiction over the case, was a creation of the District Laws of Kwara State, 2004 and not that of the Constitution, as amended like the lower court. She maintained that by of virtue of section 4(3) of the Constitution, as amended, it is only the National Assembly that has the power, to the exclusion of the House of Assembly, to make laws on items (drug and poison) on the Exclusive Legislative List. She concluded that the Indian Hemp Act which gave a Magistrate’s court, not a product of the constitution, the power to try a case under the Exclusive Legislative List of the constitution was void; praying the court to so declare it by virtue of section 315 (3) of the amended Constitution and section 3(q) of the National Drug Law Enforcement Agency. Act she insisted that all the appellant’s submissions and cases cited on the issues were misconceived and irrelevant and should be discountenance by the court.
Issue Two
Learned counsel for the appellant submitted that when an extra-judicial statement was obtained from an accused person through the services of an interpreter, both the police officer who recorded the statement and the interpreter who translated to the accused person must testify in court before it could be admissible in evidence. In support of that submission, he relied on the cases of FRN V. Usman (2012) 8 NWLR (Pt. 1301) 141 at 159-160 and Olalekan V. The State (2002) FWLR (pt.91) 1605. He then, contended that exhibits H and H1, which were the appellant’s statements in Hausa and English versions respectively, were inadmissible without the oral evidence of the police officer and interpreter adding that it should not have been admitted by the lower court. He reasoned that the admission of those exhibits H and H 1 in evidence breached the appellant’s right to fair hearing. He posited that the law provided for the requisite procedure to be allowed before extra-judicial statement of an illiterate could be admitted in evidence and same was not complied with. He noted that the lower court relied heavily on those exhibits in convicting the appellant for the said offence. He maintained that the conviction of the appellant, based on those exhibits before the lower court, was unwarranted and unreasonable being in non-compliance with the provision of the law. Learned counsel, based on those submissions, urged this court to allow the appeal.
On behalf of the respondent, learned counsel argued, per contra, that upon the plea of guilt by the appellant, the lower court satisfied all righteousness by calling Pw 1 who presented the facts of the case and tendered the relevant documents. He stated that neither the appellant nor his learned counsel objected to the admission of those documents nor the truth of the testimony of pw1. He persisted that the lower court was right in admitting those documents, believing the facts as presented to it and relying on them in convicting and sentencing the appellant. She relied on the provision of section 29(2)(b) of the Evidence Act, 2011. She explained that those exhibits H and H 1 were confessional statement of the appellant made voluntarily to the respondent when he was arrested and that he never contested their admissibility. She took the view that when an accused person pleads guilty as did the appellant, the prosecution is exempted from the burden of proof beyond reasonable doubt. She referred to the case of Samuel Ago Omoju V. FRN (2008) 11 MJSC 156 at 174.
Learned counsel further argued that once a confessional statement, whether judicial or extra-judicial, was free, voluntary direct and properly established, it would be a sufficient proof of guilty of an accused person and enough to sustain a conviction so long as the court was satisfied with the right of such a confession.
He placed reliance on the case of Yahaya V. State (2005) NCC 120. She submitted that it was not necessary for the calling of the police officer and interpreter who recorded and interpreted those exhibits respectively as witnesses; noting that the testimony of Pw1 did not occasion any miscarriage of justice against the appellant. She contended that by virtue of section 285 (1) of the Criminal procedure Act, once the court complied strictly with the provision, the procedure guaranteed fair hearing to the accused person, she relied on the proceedings of 22/05/2012, which led to the conviction and sentence of the appellant, to argue that the lower court adopted the right procedure before he was convicted and sentenced. She described the appellant’s submissions in respect of exhibits H and H 1 as an academic exercise and irrelevant to the appeal. Learned counsel, or the strength of those arguments prayed the court to dismiss the appeal.
Resolution of the Issues
In settling the issues, it is axiomatic that I attend to them in their numerical sequence. This is because, apart from orderly and neatly resolution, the first issue is a vitriolic attack on the jurisdiction of the lower court to entertain the charge leveled against the appellant. It is settled that the law commands the courts to deal first with jurisdictional issue presented before them see Agbiti V. Nigerian Army (2011) 4 NWLR (Pt.1236) 175. The essence of that prime attention is to determine the fortune of the matter in the court. This reason is, in turn, premised on the ground that jurisdiction, the power or authority of a court to determine any matter submitted before it, is the linchpin and heartbeat of any adjudications. In the result, where a court of law is drained of the requisite jurisdiction to entertain any proceeding before it, its decision, no matter the quantum of dexterity and artistry invested in it, will be trapped in the miasma of nullity, without any benefit enuring to a party with a favourable judgment.The fulcrum of the appellant’s grievance on issue one is that it is the Magistrate’s Court, by virtue of section 8 (1) of the Indian Hemp Act, not the lower Federal High court, that has the jurisdiction to try the charge slammed against the appellant. The respondent, expectedly, is of a discordant view as it holds, tenaciously, to the opposite stance that it is the Federal High Court that is clothed with the jurisdiction to hear the charge by virtue of the provision of section 26 (1) of the National Drug Law Enforcement Agency Act.
To do balanced justice to this stubborn, critical and novel issue, it is pertinent, foremost, to pay a visit to the one-count charge preferred against the appellant by the respondent. It is embedded in the printed record, on page 1 thereof. The meat of the charge, upon a clinical examination, is that the appellant unlawfully trafficked in 1.4 kilogrammes of Cannabis Sativa (Indian hemp) which constituted an offence under and punishable in section 11 (b) of the National Drug Law Enforcement Agency Act. I have, anxiously, ferreted through the entire gamut of the 15-section Indian Hemp Act, with a fine tooth comb, but unable to stumble on a section or provision therein which criminalizes trafficking in Indian hemp without lawful authority, the foul crime with which the appellant was charged with. Put the other way round, and clearly too, the offence leveled against the appellant in the one-count charge is not within the legislative four walls of the Indian Hemp Act. The criminal wrong of unlawful possession of Indian hemp, which dotted or was recurrent in the appellant’s alluring submission, is a far cry from the offence with which the appellant was hauled before the lower court. Indisputably, the offence of illicit trafficking in Indian hemp, which the appellant was accused of having committed, is amply entrenched in the prescription of section 11 (b) of the National Drug Law Enforcement Agency Act.
It follows that the appellant’s argument, as inviting as it is, is with due reverence, off tangent in that the Magistrate’s Court will not be cloaked with the jurisdiction to try a non-existent offence in the Indian Hemp Act. The foregoing analyses, to my mind, dilute/douse the appellant’s dazzling contention that it is the Magistrate’s Court, not the Federal High Court (the lower court), that has the competence to entertain the charge against the appellant.
Besides, even if the offence of trafficking in Indian hemp were to be found in the Indian Hemp Act, the appellant’s seemingly impregnable view point would still be disabled. The reason is not far-fetched. If it were so, then the import or implication is that the two statutes, the Indian Hemp Act and the National Drug Law Enforcement Agency Act, would be in conflict as they cannot be implemented without arriving at disharmonious results, as to which court has the jurisdiction to determine the offence. To resolve such a statutory impasse, the test evolved in the case of F.R.N V. Osahon (2006) 9 NWLR (Pt.973) 424 at 441 is apt. Therein Belgore, JSC, as he then was stated:
“…I think the argument that seemed to persuade Court of Appeal is in the argument of the present respondents as appellants calling the police Act a general Act and the Federal High Court specific Act. That dichotomy certainly swayed the court below…If the police Act was made by the National Assembly, so is the Federal High Court Act….Where two provisions, one each from an Act of National Assembly conflict in relation to the same subject-matter as in this instance, question of right to prosecute criminal matters in the Federal High Court, the conflict cannot be isolated to the two provisions only in so far as there are constitutional provisions on the same matter. In such a situation, the provisions of the Constitution shall govern the interpretation….
The question of specific provision or general provision of any enactment will disappear in the face of clear Provision of the Constitution.”
I will employ or draw on this binding pronouncement in handling the apocryphal situation invented by the appellant. Now, the sacrosanct provision of section 251 (1)(m) of the Constitution. By amended, donates exclusive jurisdiction to the Federal High Court on civil causes and matters relating to drugs and poisons. By virtue of the provision of section 251 (3) thereof:
“The Federal High Court shall also have and exercise jurisdiction and power in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of the section.” See Abbas V. C.O.P (1998) 12 NWLR (Pt.577) 308. Interestingly, the Supreme Court has given its imprimatur to the fact that Indian hemp is a drug within the meaning of drugs in section 11 of the National Drug Law Enforcement Agency Act in the recent case of Okewu V. FRN (2012) 9 NWLR (Pt 1305) 327, It stems from these highlights that the Constitution, as amended, has made clear and copious provisions in allotting jurisdiction to the Federal High Court over criminal causes and matters touching on Indian hemp. Indubitably, the Federal High Court traces the statutory paternity of its jurisdiction over Indian hemp offences, allocated to it by section 26(1) of the National Drug Law Enforcement Agency Act, to the Constitution, as amended. Contrariwise, there is no such triumvirate legislative nexus between the Indian Hemp Act, the Constitution, as amended, and the Magistrate’s Court vis-à-vis adjudication of Indian hemp crimes. It is trite that the Constitution, the fons et origo, is supreme, paramount and overshadows all other enactment promulgated by the legislature, be it national or state legislature. By virtue of section 1 (3) of the Constitution, as amended, all other laws must not only be consistent with its provisions, but derive their potency and legitimacy from it, see Oladele V. Nigerian Army (2004) 6 NWLR (Pt.868) 166; FRN V. Osahon (supra); Tanko V. State (2009) 4 NWLR (Pt. 1131) 430. Given the established linkage between the National Drug Law Enforcement Agency Act and the Constitution, as amended, regarding the jurisdiction of the Federal High Court over Indian hemp criminal matters, I hold the view that the Federal High Court, the lower court, is vested with the necessary jurisdiction to entertain the charge against the appellant, not the Magistrate’s Court as, ably, canvassed by the appellant.
For completeness, the case of NECO V. Tokode (supra), upon which the appellant placed high premium on in his argument, is not apposite here. The reason is plain. The facts of that case, which centred on statute bar or limitation law, are not on all fours with the facts of the case in hand. On this premise, the doctrine of stare decisis, which would have enabled me to utilize the case, is not available here as it thrives only on similarity of facts of cases. In legal parlance, the facts of that case and those of the instant case are distinguishable. I, therefore, turn down the appellant’s tempting invitation to follow this court’s decision in that case, which was rightly decided on its own peculiar facts, on account of facts differentials
Altogether, having regard to these legal expositions, it is obvious that the appellant’s sterling submissions on this issue do not come within the warm embrace of the law. The charge against the appellant does not fall within any of the three negative elements of jurisdiction, as enunciated in the case of Madukolu V. Nkemdilim (supra); Agbiti V. Nigerian Navy (supra) and Oyakhire V. State (supra), as to disrobe the Federal High Court of the jurisdiction to try the appellant. In sum, I am of the firm view that the lower court is the forum competence for the trial of the appellant’s case. All in all, I resolve the issue one against the appellant and in favour of the respondent.
Having dispensed with the first issue, I proceed to handle issue two. The kernel of the issue is whether it was proper, in law, to admit exhibits H and H 1 without the oral evidence of their recorder and interpreter. For purpose of clarity and appreciation, the two exhibits were the extra-judicial statements of the appellant made to the officers of the National Drug Law Enforcement Agency, Kwara State Command, or his arrest. Exhibit H was the Hausa version while exhibit H 1 was the English version of it. The two exhibits, found on pages 22-25 of the record, were tendered by pw1 and received, without objection, in, evidence after the appellant’s plea of guilty to the one-count charge. Exhibit H1, categorically, disclosed that the appellant .did not go to school”. In other words, the appellant was/is an illiterate in English language.
Now, it is settled law, as rightly captured by the appellant, that where an accused person is an illiterate so that his extra-judicial statement is recorded by another person, invariably by a law enforcement personnel, and translated to him by another person, both the recorder and the interpreter of that pre-trial statement must be called to testify as witnesses in respect of it otherwise it will be inadmissible as a documentary hearsay. This cardinal principle of law is of antiquity in criminal proceedings, see Rex V. Godado (1940) 6 WACA 60; Rex V. Ogbuewu (1949) 12 WACA 483; Zakwakwa of Yorro V. Queen (1960) SCNLR 36; Nwaeze V. State (1996) 2 NWLR (pt. 428); FRN V. Usman (supra)/(2012) All FWLR (Pt. 632) 1539.
However, I must place on record, apace, that in the aforementioned cases, including the latest of them, FRN V. Usman (supra) on which the appellant hinged his attractive argument, there were full-scale trials involving calling of witnesses by the prosecution and the defence. It is on record that the appellant pleaded guilty to the offence with which he was charged thereby obviating the necessity of full-blown trial of the matter in consonance with the provisions of sections 218 of the Criminal procedure Act, Cap. C41, Laws of the Federation of Nigeria, 2004, and 187 (2) of the Criminal Procedure Code Law, Cap. C23 Laws of Kwara State, 2007. Put differently, the facts, circumstances and proceedings in the case of FRN V. Usman (supra), on which the appellant pegged his submission, sharply contrast with those of the case. Going by the wide factual distinction and dichotomy between them, it will be an insult to the law to deploy the said cardinal rule of law as enunciated in the case of FRN V. Usman (supra).
Undoubtedly, the doctrine of stare decisis, which would have served as the yardstick/template for the invocation of the revered principle, is available for utility where facts of cases are identical, not where they are antithetical to the other as in this situation. On this score, I will, for fear of the wrath of the law, restrain myself from following the decision in FRN V. Usman (supra), as nudged by the appellant, on the premise of distinguishable facts and circumstances displayed above.
The need, to call, as witnesses, the police officer recorder and the interpreter of exhibits H and H1 was abrogated/truncated by the nature of the summary trial precipitated by the appellant’s plea of guilty. It follows, automatically, that those exhibits were not rendered inadmissible because their recorder and interpreter did not testify as witnesses.
That is not all. The two exhibits H and H1, from the record, were admitted in evidence without any scintilla or tinge of objection from the appellant or his counsel during the trial in the lower court. It is true that the law gives the courts the licence to expunge inadmissible evidence (documentary) even though it was admitted without objection at the trial. Be that as it may, the appellant will not be a beneficiary of this principle of law in the sense that I have not found any vitiating elements in those exhibits to make them inadmissible. That apart, those exhibits are not at all event inherently inadmissible pieces of documentary evidence to warrant their expunction. Since the documents were admissible in law, the appellant was required by law to object to their admission at the lower court. The appellant’s failure to object to their admission at trial was a negation of the law and a costly one too. It is now settled, that an accused person who fails to protest against an admission of an admissible document is foreclosed from taking objection on appeal, see John V. State (2011) 18 NWLR (Pt. 1278) 353; Oseni V. State (2012) 5 NWLR (Pt. 1293) 351; Igri V. State (2012) 16 NWLR (Pt. 1327) 522. It was part of the appellant’s trumpcards that the lower court, heavily, relied on exhibits H and H1 in convicting and sentencing the appellant thereby making its decision impeachable. I have just reached a solemn finding, which I see no justification to disturb, that those exhibits were admissible in law.
Moreover, perhaps, it is lost on the appellant that those exhibits were not the only incriminating evidence against the appellant. It must be, constantly, borne in mind that the appellant made a guilty plea. That guilty plea is akin to and a quintessential of a criminal confession. Section 27 of the Evidence Act, 2004 (now section 28 of the Evidence Act 2011) defines a confession thus:
“27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”
See Onyenge V. State (2012) 15 NWLR (Pt.1324) 586; Adesina V. State (2012) 164 NWLR (Pt.1321) 429.
It follows, therefore, that since a confession can be “made at any time by a person charged with a crime,” it must not be in writing, such as the ones in exhibits H and H1, as seemingly pontificated by the appellant.

In the eyes of the law, verbal confession made by an accused person, privately and/or in the open court, are cognizable in law and are as potent as written ones, see Arogundare V. State (2009) 6 NWLR (Pt. 1136) 165/(2009) All FWLR (Pt.469) 409/(2009) 13 WRN 1, Jua V. State (2010) 4 NWLR (pt. 1184) 217/(2010) 43 WRN 1. A criminal confession is one of the legally recognized, three ways of proving commission of crimes, see Igri V. State (supra); State V. Isah (2012) 16 NWLR (Pt. 1327) 673.

By law, confessions are the best evidence, stronger than the evidence of an eye-witness, in criminal proceedings, see Akpa V. State (2008) 14 NWLR (Pt.1106) 72/(2008) 39 WRN 27/(2008) 34 NSCQR 1249; Oseni V. State (supra) The corollary of the foregoing is that, even if those exhibits were to be jettisoned, as supplicated by the appellant, that can only fetch him a barren or Pyrrhic victory in this appeal. The reason is plain. The appellant’s vivi voce confession, plea of guilty made in the bowel of the lower court on 22/05/2012, stands valid and extant as a concrete inculpatory evidence against him. By the prescription of section 227 (1) of the Evidence Act, 2004 (now section 251 of the Evidence Act, 2011), a wrongful admission of evidence should not of itself be a ground to upturn a decision, where it appears to an appellate that the evidence could not reasonably have affected the decision which would have been the same without that unlawfully admitted evidence, see Archibong V. State (2006) 5 SCNJ 202/(2006) 14 NWLR (pt.1000) 349. In other words, the removal of exhibits H and H1 from the proceedings will not exculpate/ absolve the appellant from the crime given his criminal parole confession of guilty to it.
There is the crying need to emphasis that the appellant’s plea of guilty connotes a lot of things against him. That plea of guilty is personal to him and he is bound by it, see Torri V. NPSN (2011) 13 NWLR (Pt. 1264) 355. It presupposed that he understood the charge before pleading to it, see Okewu V. FRIV (supra). By that plea, his fundamental right of defence as enshrined in the Constitution, as amended, became legitimately scuttled, see Torri V. NPSN (supra) and Omogu V. FRN (supra)/(2008) 7 NWLR (Pt. 1085) 38. I dare say, by the appellant’s plea of guilty, an oral confession which is accommodated in law, he not only surrendered himself to the waiting arms of the law, but became, paradoxically, his own accuser. By his own volition of plea of guilty, the appellant destroyed and extinguished the presumption of innocence that accrues to him by dint of the inviolable provision of section 36(5) of the Constitution, as amended, and made himself the undoubted owner of the required mens rea and acteus reus vis-à-vis that charge preferred against him.
As already noted, at the cradle of this issue, the provisions of section 218 of the Criminal Procedure Act and 187 (2) of the Criminal Procedure Code give the courts the latitude to convict and sentence an accused person upon his plea of guilty. Thus, in the case of Omogu V. FRN (supra) at 61, Tobi JSC, lucidly stated:
“The law is elementary that if an accused person pleads guilty, the burden of proof placed on the prosecution becomes light, like a feather of an ostrich. It no longer remains the superlative and competing burden of proof beyond reasonable doubt. After all, the guilty plea has considerably shortened the distance and brought in some proximity the offence and the mens rea or acteus reus of the accused as the case may be. That makes it easier to locate causation or causa sine qua non.”
I hold the view that the lower court acted, without reservations, in keeping with the spirit and tenets of the aforementioned provisions of the Act and the code on the strength of the appellant’s plea of guilty. The law compels the lower court to obey those provisions to the letter, hence the use of the compulsive word “shall” therein, see Tanko V. State (supra); Amoshina V. State (2011) 14 NWLR (pt.1268) 530; Edibo V. State (2007) 13 NWLR (pt. 1051) 306; Yusuf v. State (2011) 18 NWLR (Pt.1279) 853. The lower court further acted in accord with the letters of those provisions when it convicted the appellant and sentenced him to a lesser term of 12 months imprisonment as against the penalty of life sentence prescribed in section 11 (b) of the National Drug Law Enforcement Agency Act, under which he was charged, since the punishment is not death sentence reserved for capital offences, see Tanko V. State (supra); Amosima V. State (supra).
To my mind, the punishment of 12 months imprisonment, given by the lower court, is minimal considering the maximum punishment of life imprisonment allocated for that heinous offence. It would appear, the lower was swayed by the allocutus. The appellant is lucky to earn such a lenient punishment. It is unfortunate that people still engage in the unholy and illicit business of dealing in cannabis sativa (Indian hemp) inspite of the severe punishment allotted to it and the expansive and incessant campaigns mounted by the government and private organization against the dastardly, inhuman and guillotine act. Nevertheless, for want of a cross appeal on the sentence, I will say no more while the appellant relishes in the mild punishment.
In the light of these reasons, arrived at after consulting the law, it is obvious that the law, heavily, tilts against the appellant on the issue. In the circumstance, I have no choice than to resolve the issue two against the appellant and in favour of the respondent.
On the whole, going by the reasons advanced herein with the aid of the law, I hold the firm view that there is no modicum of merit in the appellant’s appeal. Consequently, I dismiss the appeal as lacking in merit. For the avoidance of doubt, the decision of the lower court, delivered on 22/05/2012, in which it convicted and sentenced the appellant to a term of 12 months imprisonment, starting from 22/05/2012, stands affirmed by me.

PAUL ADAMU GALINJE, J.C.A: I have had the privilege of reading before now the judgment just delivered by my learned brother, Ogbuinya JCA, and I agree with the reasoning contained therein and the conclusion arrived thereat. I have nothing useful to add. The appeal which I find no merit is also dismissed by me.

TIJJANI ABUBAKAR  J.C.A: My brother Obande JCA, made available to me in advance copy of the judgment just delivered, I read the judgment, and agree with the conclusion.
The Appellant through learned counsel crafted two issues for determination. My brother conducted microscopic analysis of the facts, issues and the law.
I will just comment on issue number 2. Admissibility of Exhibits H and H1. Learned counsel for the Appellant said, both Police officer and the interpreter who recorded and translated the statements must be called to testify at the trial failure to do so must render the statements inadmissible.
Learned counsel for the Respondent said neither Appellant nor his counsel raised objection to the admissibility of the statements at the trial, the Court was therefore right in admitting the statements as exhibits.
At the trial, the accused pleaded guilty to the one count charge, and the accused was represented by counsel, the record of appeal page 9 shows that M. A. Lawal represented the accused on the 22nd day of May 2012, and Issa Turei Abdulkadir affirmed to interprete the proceedings from English to Hausa, at page 12 of the Record of Appeal.
“PW1: Identifies Hausa and English version of accused persons statement seek to tender.
Lawal: No objection.
Court: The Hausa and English version of the accused persons statement are admitted in evidence and Marked H and H7.”
Learned counsel Lawal for the Appellant said he had no objection to the admissibly of Exhibits H and H1.
Apart from exhibits H and H1, the Appellant pleaded guilty at the trial, the accused person and his counsel were present in Court live when exhibits H and H1 were admitted in evidence, there was no slightest protest or reaction, to the contrary learned counsel Lawal for the Appellant said he had no objection to the admissibility of the exhibits. Appellant must not therefore use appeal as a forum to revive a case that is already in “intensive care” it is too late in the day. See JOHN V. STATE (2011) 18 NWLR (Pt.1278) 353.
Section 218 of the CPA provides as follows:
218 “If the accused pleads guilty to any offence with which he is charged, the court stall record his plea as nearly as possible in the words used by him, and if satisfied that he intended to the admit the truth of all the essentials of the offence of which he has pleaded guilty, the court shall convict him of that offence and pass sentence upon or make an order against him, unless there shall appear sufficient cause to the contrary.”
I agree with my brother Obande, JCA, that the learned trial Judge, gave minimum sentence considering the provisions of Section 11(b) of the NDLEA. Absence of cross appeal against Sentence, makes it such that, the only position to take is to say the Appellant is lucky he must thank his stars, it is so, because the trial Judge said at page 13 of the record.
“The accused person’s age, personal circumstances as well as the circumstances of the arrest show someone who is now graduating from smoking Indian hemp to selling. In order to ensure that the brakes are applied before he gets to the underserved destination…..”
Appellant is lucky there is no cross appeal against sentence, I will stop here.
Just as my brother Obande, I hold the view that there is no scintilla of merit in this appeal, I also dismiss it, and affirm the judgment of A. O. Faji J. delivered on 22/05/2012.
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Appearances

For Appellant

 

AND

Mrs. M.O. Adeleye, CLO, National Drug Law Enforcement AgencyFor Respondent