STANLEY OSSAI V. THE FEDERAL REPUBLIC OF NIGERIA
(2012)LCN/5629(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of October, 2012
CA/IL/C.35/2012
RATIO
APPEAL: WHERE SHOULD ISSUES FOR DETERMINATION AND GROUNDS OF APPEAL BE BASED ON
Only recently, in the case of Duke Oji vs. FRN (an unreported decision of this Court in CA/IL/C.33/2012, delivered on 22/11/2012 (pages 15 and 16) we held as follows, on the need to found appeal on live question attacking the ratio decidendi of the judgment appealed against:-
“I must state, from the onset, that this appeal appears to be the product of an enterprising legal mind of the Appellant’s Counsel, seeking a reprieve for his client (Appellant), with obvious difficulties in situating the appeal in the judgment appealed against. The law is trite that appeal – the ground(s) thereof and the issue(s) therefrom, must be founded on a valid complaint, arising from the judgment on appeal. Putting it differently, a valid complaint in an appeal must arise from the judgment appealed against, challenging a live issue or ratio decidendi in the judgment of the lower Court. See the case of Shettima vs. Goni (2011) 18 NWLR (Pt.1279) 413 at 440; CPC vs. INEC (2011) 18 NWLR (Pt.1279) 493 at ratio 25; Aprofim Engr. Construction (Nig.) Ltd. vs. Bigouret (2012) ALL FWLR (Pt.622) 1740, ratio 2. In the case of Aribo vs. CBN (2011) ALL FWLR (Pt.554) 104 at 116, this Court held:
“A ground of Appeal is a complaint against the decision of a Court. An appeal is usually against a ratio decidendi of the judgment or ruling appealed against. Therefore, an appeal presupposes the existence of some decisions of the Court below appealed against. Once there is no decision on a point then there cannot be an appeal against what has not been decided. In the instant case, the plaintiff’s particulars that did not arise from the decision of the trial Court are discountenanced. (Ogunbiyi vs. Ishola (1996) 6 NWLR (Pt. 452) 12 (1996) 5 SCNJ 143; Oredoyin vs. Arowolo (1989) 4 NWLR (Pt.114) 172.” PER ITA GEORGE MBABA J.C.A.
COURT: WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION TO DETERMINE CASES ON OFFENCES RELATING TO POSSESSION AND DEALING IN CANNABIS SATIVA
The Supreme Court, in the cases of Chukwuma vs. FRN (2011) 13 NWLR (Pt. 1264) 391 and OKEWU vs. FRN (2012) 9 NWLR (pt.1305) 327, had clearly laid to rest any controversy about the jurisdiction of the Federal High Court to hear and determine criminal cases on offences relating to possession and dealing in cannabis sativa (Indian hemp), under section 11(c) of the NDLEA Act, saying that Cannabis Sativa (Indian hemp) falls within the phrase “any other similar drugs” in the Section 10(h) of the NDLEA Decree 1989 (which is equivalent of 11(c) of the NDLEA Act, Cap. N30 Laws of the Federation 2004. See holdings 14 & 15 of Okewu v. FRN (supra):
“Cannabis sativa, otherwise known as Indian hemp, falls within the phrases ‘ahny other similar drug” used in section 10(h) of the National Drug Law Enforcement Agency Decree No. 48 of 1989 (as amended) Accordingly, the tribunal was right when if so held in this case… There is no doubt that all the drugs mentioned in section 10(h) of the law, that is, Cocaine, LSD and Heroin with cannabis sativa otherwise known as Indian Hemp, are substances that are known to alter users perception or consciousness. They are also narcotic drugs hence, they are prohibited by Law. In other words, Cocaine, LSD, Heroin and Indian hemp are prohibited in the same way, because they are all drugs that alter one’s perception or consciousness, hence the prohibition by law. As a result, I am not in the slightest doubt and I hereby say with conviction that court below was right to hold that the substance called Indian Hemp, otherwise known as cannabis sativa falls within the phrase “any other similar drugs” used in section 10(h) of the NDLEA Act pursuant to which the appellant was charged convicted and sentenced by the tribunal.
Section 11(1)(b) of the National Drugs Law Enforcement Agency Decree no. 48 of 1989 (as amended) identifies Indian hemp as a raw material used in the production of narcotic drugs, and prohibits its cultivation. Accordingly, the appellant’s argument that Indian hemp does not qualify as “any other similar drugs” under section 10(h) of the Decree because it was not specifically mentioned in section 10(h) of the Decree is a flawed argument as was rightly held by the trial tribunal.” PER ITA GEORGE MBABA J.C.A.
CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF UNLAWFUL POSSESSION OF INDIAN HEMP
See also the case of Chukuma vs. FRN (2011) 13 NWLR (Pt. 1264) 391 at 412, where it was held:-
‘”The ingredient of the offence of unlawful possession of Indian hemp contrary to and punishable under section 10H of the National Drug Law Enforcement Agency (Amendment) Decree No. 15 of 1992 are:
(a) that the weed was in possession of the accused;
(b) that the weed is proved to be Indian hemp
(c) (cannabis sativa); and
(d) that the accused was in possession of the
(e) weed without lawful authority. PER ITA GEORGE MBABA J.C.A.
JURISDICTION: WHETHER LEAVE OF COURT IS REQUIRED TO RAISE ISSUE OF JURISDICTION
On that score, the appellant has the licence of the law to raise it without the leave of this court even though it was not raised in the lower court. In this wise, I draw on the case of Moses v. State (2006) 11 NWLR (Pt 992) 458 at 503 in which Ogbuagu, JSC, stated.
…The consequence is long settled in a number of decided authorities to the effect that an appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court, without the leave of the court having been had and obtained… Let me add quickly, that the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary. PER OBANDE OGBUINYA, J.C.A.
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
STANLEY OSSAI Appellant(s)
AND
THE FEDERAL REPUBLIC OF NIGERIA Respondent(s)
ITA GEORGE MBABA J.C.A.: (Delivering the Leading Judgment): Appellant was charged at the Federal High Court Ilorin, on 24/2/12 as follows:
“That you STANLEY OSSAI, male, Adult 34 years, on about the 6th day of February, 2012 at Oyun area in Ilorin East Local Government Area of Kwara State, within the Jurisdiction of this Honourable Court, without lawful authority dealt in 10 kilogramme of Cannabis Sativa (otherwise known (sic) as Indian hemp) a drug similar to Cocaine Heroin, LSD etc. thereby committing an offence contrary to and punishable under section 11(c) of the National Drug Law Enforcement Agency Act. “Cap N30 Laws of the Federation of Nigeria, 2004.”
On being arraigned on 15/3/2012, he pleaded guilty to the charge and was convicted and sentenced to 2 years imprisonment, starting from 6th February, 2012, by Hon. Justice A.O. Faji who heard the case.
This appeal is against that judgment. Appellant filed his notice and grounds of appeal on 18/5/2012, and raised 2 grounds of appeal, as follows:
“GROUND 1:
The learned trial Judge erred in law to have tried, convicted and sentenced the appellant on a charge premise (sic) on section 11(c) of the National Drug Enforcement Agency Act Cap. 30 Laws of Federation of Nigeria, 2004 when the Appellant did not commit any offence under the said Law.
PARTICULARS OF ERROR
(i) The Appellant was arraigned, tried, convicted and sentenced to two yeas imprisonment under section 11(C) of National Drug Law Enforcement Agency Act, Cap 30, Laws of Federation of Nigeria, 2004.
(ii) The charge against the Appellant was “deal in 10 kilogrammes of Cannabis Sativa (otherwise known as Indian Hemp).”
(iii) National Drugs Law Enforcement Agency Act Cap. 30 LFN 2004 does not apply to dealing in cannabis Sativa (otherwise known as Indian Hemp).
(iv) Dealing in cannabis Sativa (Indian Hemp) is not an offence under Cap. 30 LFN, 2004.
(v) By virtue of (ii) – (iv) above, the arraignment, trial, conviction and sentencing of the Appellant are a nullity.
(vi) The error of the trial court occasioned a miscarriage of justice on the appellant.
GROUND 2
The learned trial Judge erred in law in assuming jurisdiction to try and trying, convicting and sentencing the Appellant to imprisonment when by provisions of the relevant law, the Federal High Court has no jurisdiction to try the Appellant for offence alleged against him.
PARTICUALRS OF ERROR
(i) The Charge against the Appellant is one of possession of or dealing in Cannabis Sativa (Indian Hemp)
(ii) The said offence is only triable under the Indian Hemp Act, Cap. 16 Laws of the Federation of Nigeria, 2004.
(iii) Under the Indian Hemp Act, Cap 16 Laws of the Federation of Nigeria, 2004, the Magistrate Court and not the Federal High Court has jurisdiction to try offence with which the Appellant was arraigned.
(iv) The Error of the Lower Court occasioned a miscarriage of justice on the Appellant.”
Appellant however noted in the notice of appeal that “The question of Law raised in this appeal was not raised and canvassed at the Lower Court.”
Appellant filed his Brief of argument on 3/7/2012 and on being served with the Respondent’s brief, filed a Reply Brief on 5/11/12. He raised a lone issue for determination, namely:
“Whether or not having regard to the provisions of sections 4, 5(1) 6, 7(1) and (2), 8(1) and (2) of the Indian Hemp Act, Cap. 16 Laws of the Federation 2004 the arraignment, trial, conviction and sentencing of the appellant for the offence of dealing “in 10 kilogrammes of Cannabis Sativa, otherwise known as Indian Hemp, a drug similar to Cocaine, Heroin LSD etc.” under section 11(c) of the National Drug Law Enforcement Agency Act, Cap N30 Laws of the Federation of Nigeria 2004 by the trial Court, are not a nullity for want of jurisdiction by the trial Court.” (Grounds 1 and 2).
The Respondent filed its brief on 23/10/12 and the same was deemed duly filed on 30/10/12. The Respondent distilled two issues for determination:
(1) Whether Cannabis Sativa otherwise known as Indian Hemp is not one of the similar drugs” under section 11(c) of the NDLEA Act, Cap N30 Laws of the Federation of Nigeria, 2004.
(2) Whether it is the Federal High Court or the Magistrate Court that has jurisdiction to try the Appellant for the offence of “dealing in 10 kilogrammes of Cannabis Sativa (otherwise known as Indian Hemp)”, having regards to the provisions of the NDLEA Act, Cap N30 Laws of the Federation of Nigeria, 2004 and the Indian Hemp Act, Cap 16 Laws of the Federation of Nigeria, 2004.
The appeal was heard on 20/11/2012 when counsel on both sides urged the Court as per their respective Briefs.
A brief facts of the case, as per the Briefs and the Record of appeal, shows that Appellant, 34 years, old, on or about 6/2/2012, at Oyun Area of Ilorin East Local Government Area of Kwara State, without any lawful authority, dealt with 10 kilogrammes of Cannabis Sativa (Indian Hemp), a drug similar to Cocaine, Heroin, LSD etc, contrary to section 11(c) of the National Drug Law Enforcement Agency Act. On being arrested and arraigned, he pleaded guilty to the charge. The prosecution called a witness to present the facts, which the Appellant admitted and he was convicted and sentenced accordingly, after allocutus plea by his Counsel, Mrs. Lawal, who said that Appellant was a first offender, who found himself out of job after a motor accident and took to the drug business. He hawked wraps of Indian Hemp and was arrested with a sack weighing 10 Kilogrammes.
Appellant’s complaint in the appeal is not a denial of commission of the offence, but a challenge of the jurisdiction of the Court to convict him under the law with which he was charged- section 11(c) of the National Drug Law Enforcement Agency Act, Laws of the Federation of Nigeria, 2004.
Arguing the Appeal, learned Counsel for the Appellant, Salman Jawgndo Esq., submitted that, having regard to the provisions of sections 4, 5(1), 6, 7(1) & (2) and 8(1) and (2) of the Indian Hemp Act, Cap 16 Laws of the Federation of Nigeria, 2004, the arraignment, trial, conviction and sentencing of the Appellant for offence of dealing “in 10 kilogrammes of Cannabis Sativa (otherwise known as Indian Hemp) a drug similar to Cocaine, heroin, LSD etc” under section 11(c) of the National Drug Law Enforcement Agency Act, Cap N30 Laws of the Federation of Nigeria, 2004 by the trial Court are a nullity, for want of jurisdiction by the trial Court.
Counsel submitted that, because the Appellant was charged with dealing in Indian Hemp (Cannabis Sativa) under Section 11(c) of the NDLEA Act, Cap N30 Laws of the Federation and not under Indian Hemp Act, Cap 16 Laws of the Federation of Nigeria, 2004, the arraignment, trial, conviction and sentencing was a nullity, for want of jurisdiction by the trial court; that having regards to the express provisions of the Indian Hemp Act, the offence of dealing in Indian Hemp cannot be and is not captured by the provision of Section 11(c) of the National Drug Enforcement Agency Act, Cap N30 Laws of the Federation of Nigeria, 2004 and or by any Section of the NDLEA Act.
Counsel submitted that the offence of dealing in Indian Hemp (Cannabis Sativa) is recognized”:under section 5 (1) and 7(1) of the Indian Hemp Act Cap. 16 Laws of Federation of Nigeria 2004; that by Section 8(1) & 2 of the Indian Hemp Act, it is the Magistrate court and not the High Court (including the Federal High Court) that has the jurisdictional competence or vires to deal with the offences, created by Sections 4, 5(1) and 7(1) & (2) of the Indian Hemp Act.
Counsel reproduced the relevant provisions of the NDLEA Act and of the Indian Hemp Act, and submitted that it was clear from the unambiguous provisions of the Indian Hemp Act that offences relating to Indian Hemp Act are regulated and punished by the Indian Hemp Act and not section 11(c) of the NDLEA Act; that the trial court was therefore wrong to assume jurisdiction to try Appellant under section 11(c) of the NDLEA Act, relying on the phrase “any other similar drugs in section 11(c) of the Act.
Counsel added that the phrase “any other similar drugs” in Section 11(c) of the NDLEA Act is not wide enough to include, and cannot be interpreted to include, dealing in Indian Hemp, in view of the specific express provisions of the Indian” Hemp Act. Consequently, counsel submitted, Appellant was charged, tried, convicted and sentenced under a wrong law; that it is trite that charging an accused person under a wrong law vitiates the charge, and where the charge is so vitiated the trial and conviction based on such invalid charge are a nullity.
Counsel, however cited the Supreme Court authorities in Godwin Chukwuma vs. FRN (2011) 5 SC (Pt.11) 1 at 29, 35, 41 and 47, to the effect that “… The substance called Indian Hemp, otherwise known as Cannabis Sativa, fails within the phrase “any other similar drugs” used in Section 10(h) of the NDLEA Act pursuant to which the Appellant was charged and sentenced by the tribunal” (per Ariwoola JSC), but still argued that the phrase “any other similar drugs” cannot cover or be extended to Indian hemp in the face of specific provisions on offences relating to Indian Hemp, contained in the Indian hemp Act. Because according to him, the principle of ejusdem generis rule does not apply, where matters that would have been accommodated under the rule are otherwise specifically provided for in an Act or Law; he submitted that the applicable maxim is generalia specialibus non derogant, that is, specific provision, overrides general provision. He relied on the case of Attorney General of the Federation vs. Abubakar (2007) All FWLR (Pt.375) 405 at 524 Arowosaye vs. Ogedengbe (2009) All FWLR (Pt. 476) 1926 at 1965; Kraus Thompson Organization vs. NIPSS (2004) 5 SC (Pt.1) 16 at 20-22.
Counsel noted that the Indian Hemp Act predated the NDLEA Act, as the former (first enacted as Decree No. 19 of 1966) came to force on 13/3/1966, while the latter (enacted first as Decree No. 48 of 1989 and later as Decree No. 33 of 1990 Decree 25 of 1993, Decree No.3 of 1995 and Decree No. 62 of 1997) came into force on 29/12/1989. He said that since the Indian Hemp Act deal specifically with offences relating to or appertaining to Indian Hemp and predates the NDLEA Act, the phrase “any other similar drugs” in Section 11 of the NDLEA Act, cannot be interpreted to include the offences relating to or appertaining to Indian Hemp. He relied on the cases earlier cited on the point.
Counsel further submitted that this Court cannot follow or be bound by its earlier decision or that of the Supreme Court, where it is obvious that the decision was reached per in curiam. He relied on the definition of the term ‘per in curiam’ as in Black’s Law Dictionary, 8th Edition page 175 and the case of Elabanjo vs. Dawodu (2006) 6-7 SC. 24 at 81-82 He urged us to interpret the Indian Hemp Act vis-a-vis, the NDLEA Act in the manner that will be consistent with the working of the system, and referred us to the case of ADH Ltd vs. Amalgamated Trustees Ltd (2007) All FWLR (Pt. 392) 1781 at 1834.
Counsel added that since the Supreme Court did not consider the provision of the Indian Hemp Act in the case of Okewu vs. FRN (Supra) that case is distinguishable from this case (at hand) and this Court is not under a duty to follow it by way of stare decisis. He relied on the case of Odu’a Investment vs. Talabi (1997) 7 SCNJ 600 at 643; Chief Gani Fawehinmi vs. NB (No.2) (1989) NWLR (Pt.105) 558 at 650; Babatunde vs. P.A.S. & T.A. Ltd (2007) All FWLR (Pt. 572) 1721 at 1908.
Counsel conceded that the issue of the jurisdiction of the High Court to entertain the case was not raised at the Court below, and was being raised for the first time on appeal, but added that being an issue touching on jurisdiction it can be raised at any stage even on appeal. He relied on the case of Our Line Ltd. vs. SCC (Nig.) Ltd. (2009) ALL FWLR (Pt.489) 210 at 251.
He maintained that by the Indian Hemp Act, Section 8(1), it is the Magistrate Court that has jurisdiction to hear the case of the Appellant, that by Sections 2 and 3 of the Indian Hemp, the High Court only has jurisdiction in respect of planting or cultivation and unlawful importation or sale of Indian Hemp; that while it was conceded that High Court includes the Federal High Court, the Federal High Court would not have jurisdiction with respect to offences credited by sections 4, 5, 6 and 7 of the Indian Hemp Act. He relief on the case of Adetola vs. Igele Enter Ltd (2011) 1 – 2 SC. (Pt. 11) 1 at 29.
Counsel cited other authorities to say that because section 8 of the Indian Hemp Act employed the words: “Notwithstanding anything contained in any enactment” the intendment was to confer jurisdiction on the Magistrates Court, all over the country, to try offences under sections 4, 5, 6 and 7 of the Indian Hemp Act, and that the High Court has no jurisdiction to try offences under those provisions; that the Federal High Court was, therefore, effectively divested of jurisdiction and power to try the offence with which Appellant was charged, as per section 8 of the Indian Hemp Act. He relied on the case of Nwaka vs. Head of Service Ebonyi State (2008) ALL FWLR (Pt.402) 1156 at 1169, where, he said, Jurisdiction has been defined as the power of the Court to hear and determine the subject matter in controversy between the parties. He also relied on Torri vs. National Park Services of Nigeria (2009) ALL FWLR (Pt.495) 1626 at 1797; ANSA VS. RTPCN (2008) ALL FWLR (Pt.405) 1681 at 1686.
He urged us to allow the appeal and set aside the conviction of the Appellant, discharge and acquit him.
Arguing their issue 1, learned counsel for the Respondent, Femi A. Oloruntoba Esq., Director, Prosecution and Legal Services (NDLEA), submitted that the entire submission of the Appellant’s Counsel was a misconception of the law; that the appeal is, in fact, an abuse of judicial process, in view of the Supreme Court decisions in Godwin Chukwuma vs. FRN (2011) 5 SC (Pt.11) 1 at 84 and Okewu vs. FRN (2012) 2 SC (Pt.11) I at 29, which laid to rest the ”controversy on whether “drugs properly known as Cocaine, LSD, Heroin or any other similar drugs” include cannabis sativa, otherwise known as Indian hemp within the NDLEA Act.
Counsel submitted that, aside from the indisputable decisions of the Supreme Court in the two cases aforementioned, that Section 52 of the NDLEA Act, which is the Interpretation section of the Act, defines narcotic drug as follows:
“…any of the substances, natural or synthetic in the first Schedule of the Single Convention of Narcotic Drugs 1961 and the Convention as amended by the 1972 Protocol amending the Single Convention on Narcotic drugs as amended in the second schedule to this Act, including the United Nations Convention Against illicit Traffic in Narcotic drugs and Psychotropic Substances 1989.”
Counsel submitted that that interpretation or definition by reference is an acceptable way of defining or interpreting a word or an expression in a statute; that the 1961 Single Convention, the 1972 Protocol as well as the United Nations convention Against illicit Traffic in Narcotic Drugs and Psychotropic Substances 1989 are all conventions to which Nigeria is a signatory and which the courts are enjoined to take judicial notice of. He relied on Section 74(1) (sic) of the Evidence Act 2011, which says:
“The court shall take judicial notice of the following facts:
(1) All laws or enactments and any subsidiary Legislation made hereunder having the force of law now or hereto fore in force, in any part of Nigeria.”
Counsel submitted that in the 1961 Single Convention on Narcotic Drugs Cannabis Sativa, otherwise known as Indian hemp, is one of the drugs listed as narcotic drugs in Schedule 1 to the Convention; that it is listed as CANWABIS AND CANNABIS RESIN AND EXTRACTS AND TINCTURES OF CANNABIS. Counsel said that on this alone, cannabis sativa (otherwise known as Indian hemp) is one of the “any other similar drugs” referred to in Section 11(c) of the NDLEA Act.
He relied again on the case of Godwin Chukwuma vs. FRN (supra) and OKEWU VS. FRN (supra), which he said the man issue for determination in each of them was “Whether the classification of Indian hemp otherwise called cannabis sativa or narcotic drug, by the Court of Appeal was correct by virtue of the provisions of the National Drug Law Enforcement Act (Sic) Decree No. 48 of 1989” Counsel submitted that the Supreme Court held in that case – OKEWU VS. FRN (supra) as follows:
“There is no doubt that all drugs mentioned in Section 10(h) of the Law that is Cocaine, LSD and heroine with Cannabis Sativa, otherwise known as Indian Hemp are substances that are known to alter users’ perception or consciousness. They are also narcotic drugs, hence, they are all prohibited by law. In other words, cocaine, LSD, Heroine and Indian hemp are prohibited in the same way because they are all drugs that alter one’s perception or consciousness, hence the prohibition by law. As a result I am not in the slightest doubt and I hereby say with conviction that the court below was right to hold that the substance called Indian hemp, otherwise known as cannabis sativa falls within the phrase “any other similar drugs” used in Section 10(h) of the NDLEA Act pursuant to which the Appellant was charged, convicted and sentenced by the Tribunal.”
Counsel added that the wording “any other similar drugs” used in Section 10(h) of the NDLEA Act is the
Same as used in Section10(c) (sic) of NDLEA Act, as amended. He added that the fantastic argument canvassed by the Appellant’s Counsel, at paragraphs 5.7 to 5.12 of the Appellants Brief are not only irrelevant, but also constitute an affront to the time or age long honoured principles of stare decisis upon which our legal jurisprudence is hinged.
Counsel argued that the Indian Hemp Act which the learned Counsel for Appellant said the Supreme Court did not consider in the two cases cited above, is, in fact, invalid law, which is inconsistent with the provisions of the 1999 Constitution, saying that even though the Indian Hemp Act is an existing law, it is void to the extent of its inconsistency with the provisions of the Constitution. He relied on Section 1(3) of the 1999 Constitution; that the said law can only be applied with such modifications as may be necessary to bring it in conformity with the provisions of the 1999 Constitution. He submitted that the jurisdiction conferred on Magistrate’s Court in the Indian Hemp Act, being inconsistent with the exclusive jurisdiction vested in the Federal High Court by the Constitution, in matters relating to drugs and poison, is void.
He urged us to resolve the issue in Respondent’s favour and dismiss the Appeal.
On issue 2, Counsel submitted that the proper understanding of the issue of jurisdiction in drug related matters would require examination of the historical development thereof. He submitted that the Indian Hemp Act was promulgated in 1966, and it gave jurisdiction to the Magistrates Courts to try offenders, and that was the position until the NDLEA Decree No 48 of 1989 (now Act) was enacted, which vested jurisdiction in a special tribunal to try offenders. (See Section 17 of the 1989 NDLEA Act); that with the coming into force of the 1999 Constitution, the Special Tribunals were abolished, and jurisdiction to try drug and drug related offences transferred to the Federal High Court. He relied of Section 2(3) of Decree No 62 of 1999, which provided thus:
“A charge, claim or court process filed before a Tribunal established under any of the enactments specified in the schedule to this Decree shall be deemed to have been duly filed or served before the Federal High Court or High Court of a State as the case may be and such charge, claim and Court process shall be deemed amended as to title, venue and such other matter as may be appropriate to give effect to this subsection without further assurance than this Decree.”
That, Counsel submitted, was a transitional provision (made in the eve of the 29th May 1999, to usher in democracy) to transfer all cases pending at the Tribunals to the regular courts, depending on the subject matter, and that in respect of drug matters, exclusive jurisdiction was given to the Federal High Court. He relied on Section 251(1) (m) and (3) and the item 21 on the Exclusive Legislative List (2nd schedule part 1) of the 1999 Constitution.
Counsel submitted that the obvious implication of the above is that only the Federal High Court has the competence to hear and decide matters touching on drugs and poison and not the Magistrates Courts, established by the State Laws. Counsel also relied on Section 7(1) of the Federal High Court Act Cap F12, Laws of the Federation of Nigeria, 29004.
Counsel urged us to act under Section 315(3) of the 1999 Constitution and declare the Indian Hemp Act Cap 16 Laws of the Federation, 2004 invalid on the ground of inconsistency with provisions of the NDLEA Act Cap N30 laws of the Federation of Nigeria as well as the provisions of the 1999 Constitution.
He urged us to dismiss the appeal.
The Appellant’s Reply Brief was rather a lengthy further buttress of his earlier argument on the exclusive jurisdiction of the Magistrates Court under Section 8 of the Indian Hemp Act, to try offences under Sections 4, 5, 6 and 7 of the Act and that even the amended list of ‘Narcotic Drugs’ in the NDLEA Act does not include Indian hemp or cannabis sativa.
He also relied on Section 12 of the 1999 Constitution to say that no treaty between Nigeria and any other country shall have effect, unless ratified or enacted by the National Assembly, as such Conventions or protocols and/or any treaty by whatever name called is not part of the laws of Nigeria until enacted by the National Assembly and assented to by the president. He said that the Conventions and Protocols referred to by the Respondent have not been proved to have been ratified by Nigeria as required by Section 12 of the Constitution, as such the Court cannot take judicial notice of them.
On the call to declare, the Indian Hemp Act as inconsistent with the 1999 Constitution, with regards of the exclusive powers of the Federal High Court to hear and determine matters relating to drugs and poison under the Constitution, vis-a-vis the powers of the Magistrate’s Court under Section 8 of the Indian Hemp Act, Counsel submitted that the Indian Hemp Act is not inconsistent with the Constitutional provisions. He tried to draw analogy with the Land Use Act, the exclusive jurisdiction of the Area and customary Courts, therein, as per Section 41 of the Act, vis-a-vis, that of the High Court in Section 39 of the Act. He relied on the dictum of Iguh JSC in Adisa vs. Oyinwola (2000) 6 SC (Pt.11) 47 at 107 – 109.
He added that the invitation for us to hold that the Federal High Court has exclusive jurisdiction in section 251(1) of the Constitution is an invitation for us to amend the constitution, which we lack power to do; that the National Assembly’s power granting the High court (including Federal High Court) jurisdiction on specific matters under Indian Hemp Act, as well as to the Magistrates Court on some other matters in the Act, has not been affected by the Constitutional provisions.
He urged us to refuse the invitation by the Respondent’s Counsel.
RESOLUTION OF THE ISSUES:
I think the two issues distilled by the Respondent are subsumed in the Single issue by the Appellant I shall, therefore, consider this appeal on the sole issue by the Appellant, but as modified by me.
Whether the learned trial Court was right in assuming jurisdiction in the case, convicting and sentencing the Appellant for offence of dealing in 10 kilogramme of cannabis sativa (otherwise known as Indian hemp) under section 11(c) of the NDLEA Act, Cap N30 Laws of the Federation, 2004, having regards to section 4, 5, 6, 7(1) to (2) and 8 (1) & (2) of Indian Hemp Act 2004 which tends to vest jurisdiction on the Magistrate Court to try offences relating to Indian hemp? Appellant’s Counsel, in fact, did not disguise his correct knowledge of the true position of the law over the real question in controversy in this appeal, which is:
Whether the trial court, was right in trying convicting and sentencing the Appellant, pursuant to section 11(c) of the NDLEA Act, for offence of dealing in Cannabis Sativa (Indian hemp), relying on the phrase “or any other similar drug” in that provision to include Cannabis Sativa (Indian hemp), as one of the drugs penalized by that provision?
Appellant was kind enough to supply the most recent judicial authorities on the interpretations of the phrase “any similar drugs” contained in the Section 11(c) of the NDLEA Act, as per the case of Okewu vs. FRN (2012) NWLR (Pt. 1305) 327 at 367, where the Supreme Court had thus:
“I am not in the slightest doubt and I hereby say with conviction that the Court below was right that the substance called Indian hemp, otherwise known as cannabis sativa, a fall within the phrase “any other similar drugs” used in section 10(h) of the NDLEA Act, pursuant to which the appellant was charged and sentenced by the tribunal.” Per Ariwoola JSC (also reported Okewu vs FRN (2012) 2 SC (Pt. 11) 1 at 29, 35, 41 & 47.
Appellant’s Counsel cited that judgment and reproduced that holding of the Supreme Court, as well as that of Chukwuma vs FRN (2011) 5 SC (Pt 11) 1 at 84, in paragraphs 5.6 of the Appellant’s Brief, but strangely, urged us not to follow that judicial precedent, for the (equally strange) reason that the Supreme Court reached that decision per in curiam, because it did not consider the provisions of the Indian Hemp Act, Cap.116 Laws of Federation 2004, which specifically incriminates possession and dealings in Indian hemp (cannabis sativa) and vest jurisdiction in the Magistrates Court to try such aspect of the offence as provided in Section 11(c) of the NDLEA Act. Can this Court depart from the decision of the Supreme Court and/or fault the Apex Court, that it decided a case per in curiam. Not at all, as it is the Apex Court alone that can reverse itself.
Appellant tried, in vain, to distinguish this appeal in from the cases of Okewu vs FRN (supra) and Godwin Chukwuma (supra) by importing the provisions of the Indian Hemp Act into this appeal, which was never in issue at the trial court, and a complete stranger to the case of the Appellant, as he was never on trial under that Law (Indian Hemp Act).
”The entire argument of the Appellant on this issue was a moot question, as if he was wishing that Appellant were arraigned under the provisions of the Indian Hemp Act Cap 16, Laws of the Federation 2004, for him to plead that the trial, conviction and sentencing was a nullity, because appellant was not arraigned in the Magistrates Court as provided by section 8 to the Act!
That was completely a wishful thinking and, in fact, absurd, as it is not the offender that should elect the law upon which his wrongful act should be retried, where there are more than one penal Law to penalize his criminal conduct.
Even when the learned Counsel for the Respondent dutifully traced the historical evolution of the penal laws on unlawful possession, use or dealing in Cannabis sativa (Indian hemp) from the days of the Indian Hemp Decree in 1966 (when the Magistrates Courts were also allowed to try offenders) to the day of NDLEA Decree in 1989, when special Tribunals were vested with exclusive jurisdiction in such matters, and finally to the 1999 Constitution when exclusive original jurisdiction was vested in the Federal High Court on matters, relating to Drugs and poison (See section 251(j) (m) and item 21 in the 2nd schedule to the 1999 Constitution), Appellant still persisted in his error and misconception of the law, as to the applicability of Section 11(c) of the NDLEA Act, as the appropriate law to try the Appellant, in the circumstances.
In the light of the provisions of Section 251(1)(m) and (3) of the 1999 Constitution, vesting jurisdiction in the Federal High Court over matters listed therein, including drugs and poison; it does not appear Section 8(1) of the Indian Hemp Act which says:
“Every magistrate in any part of Nigeria shall notwithstanding anything contained in any enactment, have jurisdiction for the summary trial of any offence under Sections 4 to 7 of this Act and may impose the punishment provided by this Act for such an offence” is still a good and valid law.
Even if that provision were still relevant and operational, the same cannot be interpreted to oust the jurisdiction of the High Court or Federal High court to adjudicate over the offence under Sections 4 to 7 of the Act as the Appellant would want us to believe. This is because that provision (Section 8(1) did not vest exclusive jurisdiction on the Magistrate Court to try offences under section 4 to 7 of the Indian Hemp Act.
This appeal, therefore, to the extent that it sought to introduce the Indian Hemp Act, which was not contemplated in the charge, nor raised at the lower Court as the law governing the offence, did not arise from the judgment appealed against. And so, both the grounds of appeal and the issue therefrom, are alien to the ratio decidendi of the judgment appealed against, and are not worth any further consideration, being academic.
Only recently, in the case of Duke Oji vs. FRN (an unreported decision of this Court in CA/IL/C.33/2012, delivered on 22/11/2012 (pages 15 and 16) we held as follows, on the need to found appeal on live question attacking the ratio decidendi of the judgment appealed against:-
“I must state, from the onset, that this appeal appears to be the product of an enterprising legal mind of the Appellant’s Counsel, seeking a reprieve for his client (Appellant), with obvious difficulties in situating the appeal in the judgment appealed against. The law is trite that appeal – the ground(s) thereof and the issue(s) therefrom, must be founded on a valid complaint, arising from the judgment on appeal. Putting it differently, a valid complaint in an appeal must arise from the judgment appealed against, challenging a live issue or ratio decidendi in the judgment of the lower Court. See the case of Shettima vs. Goni (2011) 18 NWLR (Pt.1279) 413 at 440; CPC vs. INEC (2011) 18 NWLR (Pt.1279) 493 at ratio 25; Aprofim Engr. Construction (Nig.) Ltd. vs. Bigouret (2012) ALL FWLR (Pt.622) 1740, ratio 2. In the case of Aribo vs. CBN (2011) ALL FWLR (Pt.554) 104 at 116, this Court held:
“A ground of Appeal is a complaint against the decision of a Court. An appeal is usually against a ratio decidendi of the judgment or ruling appealed against. Therefore, an appeal presupposes the existence of some decisions of the Court below appealed against. Once there is no decision on a point then there cannot be an appeal against what has not been decided. In the instant case, the plaintiff’s particulars that did not arise from the decision of the trial Court are discountenanced. (Ogunbiyi vs. Ishola (1996) 6 NWLR (Pt. 452) 12 (1996) 5 SCNJ 143; Oredoyin vs. Arowolo (1989) 4 NWLR (Pt.114) 172.”
Counsel for Appellant must refrain from employing their legal ingenuities, in the negative sense, to scheme hypothetical or moot complaints to lie appeals, where no valid or live issue exists in a judgment to found the appeal.
It is equally very “unlawyerly” to emplore a lower Court to refuse to follow and apply clear and binding decisions of this Court or of the Supreme Court in clearly similar matters, which the doctrine of stare decisis cannot be wished away.
The Supreme Court, in the cases of Chukwuma vs. FRN (2011) 13 NWLR (Pt. 1264) 391 and OKEWU vs. FRN (2012) 9 NWLR (pt.1305) 327, had clearly laid to rest any controversy about the jurisdiction of the Federal High Court to hear and determine criminal cases on offences relating to possession and dealing in cannabis sativa (Indian hemp), under section 11(c) of the NDLEA Act, saying that Cannabis Sativa (Indian hemp) falls within the phrase “any other similar drugs” in the Section 10(h) of the NDLEA Decree 1989 (which is equivalent of 11(c) of the NDLEA Act, Cap. N30 Laws of the Federation 2004. See holdings 14 & 15 of Okewu v. FRN (supra):
“Cannabis sativa, otherwise known as Indian hemp, falls within the phrases ‘ahny other similar drug” used in section 10(h) of the National Drug Law Enforcement Agency Decree No. 48 of 1989 (as amended) Accordingly, the tribunal was right when if so held in this case… There is no doubt that all the drugs mentioned in section 10(h) of the law, that is, Cocaine, LSD and Heroin with cannabis sativa otherwise known as Indian Hemp, are substances that are known to alter users perception or consciousness. They are also narcotic drugs hence, they are prohibited by Law. In other words, Cocaine, LSD, Heroin and Indian hemp are prohibited in the same way, because they are all drugs that alter one’s perception or consciousness, hence the prohibition by law. As a result, I am not in the slightest doubt and I hereby say with conviction that court below was right to hold that the substance called Indian Hemp, otherwise known as cannabis sativa falls within the phrase “any other similar drugs” used in section 10(h) of the NDLEA Act pursuant to which the appellant was charged convicted and sentenced by the tribunal.
Section 11(1)(b) of the National Drugs Law Enforcement Agency Decree no. 48 of 1989 (as amended) identifies Indian hemp as a raw material used in the production of narcotic drugs, and prohibits its cultivation. Accordingly, the appellant’s argument that Indian hemp does not qualify as “any other similar drugs” under section 10(h) of the Decree because it was not specifically mentioned in section 10(h) of the Decree is a flawed argument as was rightly held by the trial tribunal.”
See also the case of Chukuma vs. FRN (2011) 13 NWLR (Pt. 1264) 391 at 412, where it was held:-
‘”The ingredient of the offence of unlawful possession of Indian hemp contrary to and punishable under section 10H of the National Drug Law Enforcement Agency (Amendment) Decree No. 15 of 1992 are:
(a) that the weed was in possession of the accused;
(b) that the weed is proved to be Indian hemp
(c) (cannabis sativa); and
(d) that the accused was in possession of the
(e) weed without lawful authority.
In the instant case, the prosecution proved the first two ingredients at the trial court by adducing credible evidence which were ample enough sustain the charge and conviction of the appellant.
The appellant did nothing to prove that he was in lawful possession of the substance. (P.412, paras C – F)”Appellant in this case had pleaded guilty to the charge when he was arraigned. By so doing, Appellant had admitted every particular of the charge, including the legal fact by the prosecution in the charge, that cannabis sativa (otherwise known as Indian hemp) (is) a drug similar to Cocaine, Heroin, LSD etc…” That also agrees with the definition of the drug in Section 52 of the NDLEA Act, when read jointly with the 1961 Single Convention on Narcotic drugs, which the court takes judicial notice of, pursuant to section 122(1) of the Evidence Act, 2011.
Of course, if that was ever in doubt, the legal pronouncement by the Supreme Court in the case of Okewu vs. FRN (supra) has settled every linkering doubt, as to the similarity and family relationship between Cannabis sativa (Indian hemp) and Cocaine, Heroine and LSD established, as similar drugs with “substances that are known to alter users perception or consciousness. They are also narcotic drugs, they are prohibited by Law” (per Ariwoola JSC).
In the words of Ariwoola JSC in Okewu vs. FRN (supra) at 354, I, too, hold that: “I am not in the slightest doubt and hereby say with conviction that the Court below was right to hold that the substance called Indian Hemp, otherwise known as cannabis sativa, falls within the phrase “any other similar drug” used in Section 10(h) (now 11(c) of the NDLEA Act, pursuant to which the appellant was charged, convicted and sentenced” by the Court below.
I therefore resolve the issue against the Appellant and hold that the appeal is, completely, devoid of merit and should be dismissed. It is accordingly dismissed, as I uphold the judgment of learned trial Judge.
Parties shall bear their costs.
OBANDE OGBUINYA, J.C.A.: I had the privilege of reading, in draft, the judgment delivered by my learned brother, Ita G. Mbaba, JCA, and endorse, completely, his reasons and conclusions therein.
The kernel of the appellant’s grievance is that he was tried in the wrong court, the lower Federal High Court, Ilorin Division. In order words, he has challenged his trial on account of forum non competens. The appellant’s complaint, to all intents and purposes, evinces a jurisdictional issue. On that score, the appellant has the licence of the law to raise it without the leave of this court even though it was not raised in the lower court. In this wise, I draw on the case of Moses v. State (2006) 11 NWLR (Pt 992) 458 at 503 in which Ogbuagu, JSC, stated.
…The consequence is long settled in a number of decided authorities to the effect that an appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court, without the leave of the court having been had and obtained… Let me add quickly, that the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary.
Be that as it may, the appellant’s grouse does not have the backing of the law. The reason is obvious.
The National Drug Law Enforcement Agency Act, Cap. N30, Laws of the Federation of Nigeria, 2004, which, in section 26(1) thereof, donates jurisdiction to the lower court over the charge levelled against the appellant, traces its potency to the provision of section 251(1) (m) and (2) of the 1999 Constitution, as amended. The latter provision allots to the lower court the power to entertain criminal matters relating to drugs and poisons which cannabis sativa, the drug he was accused to have unlawfully dealt with, legitimately belongs. The constitution, as amended, occupies a kingly position in the corpus of our jurisprudence and its provisions are not only sacrosanct, but override any other prescription of any other law that is antithetical to it. In the light of the foregoing, the appellant’s dazzling and inviting arguments are hostile to the law and unhelpful to him in this appeal. I hold that the lower court has the unbridled jurisdiction to hear the charge against the appellant.
For the above reasons, coupled with detailed ones assembled in the leading judgment, I, too, dismiss the appeal as void of merit.
PETER OLABISI IGE, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother MBABA, JCA. I am in complete agreement with him that the appeal has no merit.
I dismiss the appeal and affirm the decision of the lower Court.
Appearances
Salman Jawondo Esq.,
Bayo Alase Esq.,For Appellant
AND
Femi A. Oloruntoba Esq. DPLS (NDLEA),
Mrs M. O. Adeleye CLO (NDLEA)For Respondent
