Federal Republic Of Nigeria V. Joe Brown Akubueze (2010)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, J.S.C.

This an appeal against the judgment of the Court of Appeal, Port Harcourt Division ( the court below) delivered on the 4th of March, 2003, setting aside the conviction and sentence of the respondent by the Miscellaneous Offences Tribunal (the Tribunal) for drug related offences and ordering a retrial. The court below set aside the said conviction and sentence on the ground that the respondent was precluded from having a fair hearing before the Tribunal.

It is apt to depict briefly the facts of the matter leading to this appeal. The respondent herein was arraigned on 14th January, 1994, before the Tribunal presided over by Oni-Okpaku, J. on a six-count charge of conspiracy to import heroin, importation of heroin and possession of heroin under

section 10 ( c) (b), 10(a) and 10(h) respectively of the National Drug Law Enforcement Agency Amendment Decree No. 15 of 1992.

The prosecution called Nine (9) witnesses while the Accused did not testify and called no witness. The case for the prosecution, put briefly, was that on an information received by them sometime in December, 1993, two (2) containers suspected to be containing hard drugs were identified and seized while the ship Esmeralda from Bangkok was being off loaded at the Apapa Wharf.

Investigation revealed that the owner of the container was the respondent. He was arrested at the Murtala Muhammed International Airport on his return from Bangkok on the 22nd of December, 1993, and taken to Apapa Wharf where the two (2) containers were shown to him. He admitted being the consignee of both containers.

In his presence the two (2) containers were opened and searched. Water coolers, among other items, were found in them.

Some whitish substances suspected to be hard drugs were found concealed on the top of the water coolers. During investigation two (2) bills of lading were found in the Respondents luggage, which pointed to the direction that another consignment was coming from Bangkok. The respondent was taken to Apapa Wharf and in his presence, the additional two (2) containers were opened and searched. Again, substances suspected to be hard drugs were also found concealed in the water coolers. All the substances seized from him were field-tested, weighed and carefully packed.

A portion of same, sent to the Forensic Laboratory for analysis later confirmed the substances to be heroin.

The respondent, as stated earlier on, did not testify and called no witness. His counsel, Mr. Etudo was harassed out of the proceedings by the Tribunal on 25-1-94. The Tribunal gave the respondent seven (7) days to procure another counsel. The respondent who was ordered to be remanded in prison custody with stringent conditions had no opportunity to arrange for another counsel of his choice. The trial proceeded and at the end the respondent was found guilty and sentenced to a total of 115 years of life imprisonment with hard labour and sentences to run concurrently.

The respondent felt unhappy with the stance of the Tribunal and appealed to the court below which on being properly addressed, in its considered judgment handed out on 4th March, 2003, found as follows:-

“Looking at the proceedings from the date of the arraignment of the appellant to the date of his conviction and sentence it cannot be said that he had a fair trial in the circumstance. There is merit in this appeal and it is hereby allowed. The decision of the Tribunal is hereby set aside and the case is remitted to the Federal High Court, Lagos, for retrial.”

The appellant herein, felt dissatisfied and appealed to this court.

Briefs of Argument were filed on behalf of the parties. On the 11th March, 2010, when the appeal was heard, learned counsel on each side of the divide adopted and relied on the brief of argument filed on behalf of his client. The lone issue formulated on page 9 of the appellant’s brief reads as follows:-