Nonye Imunze V. The Federal Republic Of Nigeria (2014)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The appellant, as accused person was arraigned before a Federal High Court, Kano on a two count charge which read:

COUNT 1

That you Nonye Iwunze (M) a trader resident of Kwanarkifi Quarters Brigade Kano on or about 18th October 2004 at Bachalawa Quarters Kano manufactured fake Barbicillin Ampicilin syrup (powder) and Rampicillin Ramsey syrup (powder) and you thereby committed an offence contrary to section 1 (a) of the counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous provisions) Act Cap C.34 Laws of the Federation of Nigeria 2004 and punishable under section 3 of the same Act.

COUNT 2

That you Nonye Iwunze (M) a trader resident of Kwanarkifi Quarters Brigade Kano on or about 18th October 2004 at Bachalawa Quarters Kano, within the jurisdiction of this Honourable Court were in possession of fake Barbicillin Ampicillin syrup (powder) and Rampicillin Ramsey syrup (powder) and you thereby committed an offence contrary to section 1 (a) of the counterfeit and Fake Drugs and Unwholesome Processed Foods Miscellaneous provisions) Act Cap C.34 Laws of the Federation of Nigeria 2004 and punishable section 3 of the same Act.

The appellant entered guilty pleas to both counts.

He was not represented by counsel. The prosecution opened its case on 24/2/05, called three witnesses and tendered several exhibits. The appellant did not cross-examine the witnesses neither did he give evidence or call witnesses for his defence. He also did not object to the tendering of the exhibits and refused to address the court at the end of trial on the 3rd of March 2005. In a considered judgment delivered on the 11th of Match, 2005 the learned trial judge found the appellant guilty on both counts and sentenced him to five years imprisonment with an option of N500,000 fine on each count.

Dissatisfied with the conviction and sentence, the appellant filed an appeal. It was heard by the Court of Appeal, Kaduna Division. In that court the respondent filed a Preliminary objection to the hearing of the Appeal. His ground of objection was that since the Notice of Appeal was signed by counsel for the appellant and not by the appellant the appeal is incompetent. After hearing counsel on both sides the Court of Appeal concluded as follows:

“On the whole, since the appeal is incompetent for want of proper procedure in initiating it I will visit striking out on it. Accordingly, the appellants’ appeal filed on the 1st of April, 2005, be and is hereby struck out for being incurably incompetent.”

This appeal is against that judgment. In accordance with Order 6 Rule 5(1) and (2) of the Supreme Court Rules, counsel filed briefs of argument. Learned counsel for the appellant, Mr. B.C. Igwilo filed the appellants brief on the 22nd of November 2011. He urged this court to allow the appeal and set aside the conviction of the appellant.

Learned counsel for the respondent, Mr. T. Ede filed the respondents brief on the 5th of April 2012. He urged us to dismiss the appeal.

Before concluding that the appeal was incompetent, the Court of Appeal considered the appeal on its merits.

The three issues formulated by the appellant were considered and pronouncements made on them. This is a good procedure, and judges who sit in the penultimate court are advised to adopt that procedure, the reasoning being that in the event the final court finds that the Court of Appeal was wrong on jurisdiction it would have no difficulty considering the appeal on its merits. Failure to make a pronouncement on the merits, and the final court finds that the Court of Appeal was wrong on jurisdiction, the Supreme Court would have to send the case back to the Court of Appeal for a hearing at great cost to the appellant, and a waste of judicial time.