Abubakar Mohammed V. Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
The appellant was charged before the Federal High Court, Ilorin Division on a one count of charge as follows:
“That you Abubakar Mohammed, male, adult on or about the 18th day of March, 2011 along Jebba/Mokwa express Way at Bode Sa’adu in Moro Local Government Area of Kwara State within the jurisdiction of this Honourable Court without lawful authority dealt in 20 kilogrammes of cannabis sativa (otherwise known as Indian Hemp) a drug similar to cocaine, heroin, LSD etc and thereby committed 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.”
He was arraigned on 12/4/2011. He pleaded guilty to the charge after it was read and interpreted to him in Hausa Language. The following items were tendered by the prosecution without objection and marked Exhibits A-H:
Statement of the appellant in Hausa and translated into English Language – Exhibit A.
Packing of substance form – Exhibit B.
Certificate of test analysis – Exhibit C.
Request for scientific aid form – Exhibit D
Brown sealed envelope – Exhibit E
Evidence pouch containing sample of the analysed drug – Exhibit F
Drug analysis report – Exhibit G
Bulk Exhibit – Exhibit H.
Thereafter the prosecution applied that the appellant be convicted as charged. There was no objection from M.A. Lawal Esq. who represented the appellant. He was convicted as charged and sentenced to 21/2 years imprisonment commencing from 12/4/2011.
Being dissatisfied with his conviction and sentence he appealed to the Court below. The two grounds of appeal without their particulars read as follows:
The learned trial Judge erred in law when he assumed jurisdiction to try the accused person for the offence of illegal possession of Indian Hemp when the Honourable Court lacks jurisdiction to try the said offence.
The learned trial Judge erred in law by admitting the accused person’s statement in Hausa and English versions in evidence in the absence of oral evidence of the reader and interpreter of the said confessional statement.
The appellant formulated one issue each from each ground of appeal. In a unanimous judgment delivered on 26/6/2013 the lower Court resolved both issues against the appellant and dismissed the appeal.
The appellant is still aggrieved and has further appealed to this Court vide his notice of appeal filed on 25/7/2013 containing 3 grounds of appeal.
At the hearing of the appeal on 14/12/2017, Isiaka Abiola Olagunju Esq., leading other counsel adopted and relied on the appellant’s brief filed on 9/1/2014 in urging the Court to allow the appeal. J.N. Sunday Esq., Director of Prosecution and Legal Services, NDLEA leading S.I. Mark Esq., Assistant Chief Legal Officer, adopted and relied on the respondent’ brief which was deemed filed on 10/6/15 in urging the Court to dismiss the appeal.
From the 3 grounds of appeal the appellant distilled two issues for determination:
- Whether the lower Court rightly affirmed the appellant’s conviction and sentence in the face of the appellant’s invalid arraignment and unfair trial (Ground 1).
- Whether with regard to the offence of unlawful possession of Indian Hemp the lower Court was
right when it held that the Indian Hemp Act (Vide its Section 8) Cap 16 VoL 7 Laws of the Federation of Nigeria 2004 is inconsistent with or has been repealed by the National Drug Law Enforcement Agency Act Cap N30 Vol. 9 LFN 2004 thereby conferring jurisdiction on the Federal High Court.(Grounds 2 and 3).
In formulating his issues for determination, learned counsel for the respondent observed that the appellant’s first issue is radically different from the issue he raised at the lower Court. He submitted that the said issue was raised without the leave of this Court and ought to be struck out. He cited Ogbu & Anor Vs the State (2007) 2 SCNJ 319 and Incar Nig. Plc & Anor Vs Bolex Enterprises (Nig) Ltd (2001) 5 SCNJ 460 in support of his position. In the event that this submission is not accepted by this Court, he formulated the following two issues for determination:
- Whether the Appellant’s arraignment was in compliance with the requirement of the law.
- Whether the lower Court was right to hold that the Federal High Court has jurisdiction to try Indian Hemp cases.
Before resolving the issues raised in this appeal, I deem it necessary to address the objection raised by
the learned counsel for the respondent on the appellant’s issue one. I have carefully examined the record of appeal and particularly the appellant’s brief of argument at pages 38-49 of the record. The two issues formulated for the determination of the appeal at page 40 of the record were:
- Whether the learned trial Court has the jurisdiction to try the appellant for the offence of unlawful possession of Indian Hemp.
- Whether the failure of the prosecution to call the recorder and interpreter is fatal to their case.
The issue of the arraignment of the appellant did not arise at all. The general rule is that parties must be consistent in the case they present to the Court. An appeal is a continuation of the trial and therefore a party is not permitted to change his case midstream and argue a completely different case on appeal. See Onykwelu vs Elf Petroleum Nig. Ltd. (2009) 5 NWLR 181; (2009) 2-3 SC; Adeosun vs. Gov. of Ekiti State & Ors (2012) LPELR-7843(SC).
It is therefore imperative that where a party intends to raise a fresh issue for the first time on appeal, he must seek and obtain the leave of Court to do so.
Failure to seek and obtain leave deprives the Court of jurisdiction to determine such issues. See: Abdullahi & Ors Vs The State (2013) LPELR – 20644 (SC); Shettima & Anor. Vs Goni & Ors (2011) LPELR – 417 (SC).
That said, it is also settled law that the issue of jurisdiction is fundamental and goes to the root of the entire adjudication. Where the Court lack jurisdiction, any steps taken in the proceedings including the judgment, no matter how erudite, would be an exercise in futility, for the proceedings are a nullity and liable to be set aside. It is for this reason that the issue of jurisdiction may be raised at any stage of the proceedings and even for the first time on appeal to this Court. Prior leave is not required to raise an issue of jurisdiction. See: Obiakor Vs The State (2002) 10 NWLR (Pt.776) 612; Campagnie General de Geophvsique (NIGLT) C99 Nig. Ltd Vs Moses Aminu (2015) LPELR – 2446 3 (SC); Gaji Vs Paye (2003) 5 SC 53; A.G. Kwara State & Anor Vs Alhaji Saka Adeyemo & Ors. (2016) LPELR – 41147 (SC).
The valid arraignment of an accused person touches on the jurisdiction of the Court.
An improper arraignment is a breach of the accused person’s fundamental right to fair hearing guaranteed by Section 36(6)(a) of the 1999 Constitution and is capable of rendering the entire proceedings a nullity. See: Abdullahi Ibrahim Vs The State (2013) LPELR – 21883 (SC); State Vs Oladimeji (2003) FWLR (Pt. 175) 395 @ 406.
Therefore, even though the alleged improper arraignment of the appellant before the trial Court is a fresh issue being raised for the first time here at the Apex Court, being an issue of jurisdiction, it is properly raised and no leave is required. The two issues formulated by the appellant are therefore competent and shall be considered in the resolution of this appeal.
Whether the lower Court rightly affirmed the appellant’s conviction and sentence in the face of the appellant’s invalid arraignment and unfair trial.
In support of this issue, learned counsel for the appellant referred to the statutory requirements for a valid arraignment, as provided for in Section 215 of the Criminal Procedure Act (CPA) Cap 41 Laws of the Federation of Nigeria (LFN) 2004, to wit:
“The person to be tried upon any charge or
information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order, and the charge or in information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duty served therewith”‘
He referred to Lufadeju Vs Johnson (2007) ALL FWLR (Pt.371)1532@1552-1554E-A,where this Court judicially considered the provisions of Section 215 of the CPA and held that the requirements are mandatory and must be strictly complied with and that the effect of non-compliance is that the entire proceedings would be null and void. In further adumbration on the point, he cited the following cases: Kajubo Vs The State (1988) 3 SC (Reprint) 109 @ 114 & 122; Odessa vs. F.R.N. (2005) ALL FWLR (Pt. 282) 2010 @ 2029 D-E; Rufai vs The State (2001) 7 NSCQR 420 @ 427, 428 & 433; Tobby vs The State (2001) 6 NSCQR (Pt. 1) 362 @ 369 – 370.
Relying on the case of Olabode Vs The State (2009) 5 – 6 SC 29 @ 38 – 40, he submitted that where the accused person understands the language of the Court, substantial compliance with the provisions of Section 215 of the CPA would suffice but as far as the recording of his plea is concerned, the plea must be recorded in the exact words used by him. He referred to the proceedings of the trial Court on 12/4/2011 at page 22 of the record, reproduced hereunder for ease of reference:
Accused person in the dock.
I.J. Igwubor for the prosecution.
M.A. Lawal for the accused person.
Igwubor: Applies for charge dated 24/3/2011 filed 25/3/2011 to be read to the accused person and his plea taken.
ISA TURE ABDULKADIR affirms to interprete (sic) from English to Hausa and vice versa.
Court: Charge is read, interpreted and explained to the accused person from English to Hausa and vice versa, and he appeared perfectly to understand same.
Learned counsel submitted that Section 218 of the CPA requires a verbatim record of the exact words used by the Madukolu Vs Nkemdilim (1963) 1 ANLR (Pt.4) 587 @ 595, he contended that the entire trial is
incompetent, the prosecution having failed to fulfill a condition precedent to the exercise of the Court’s jurisdiction to try the appellant. He also argued that the failure of the prosecution to call the recorder and interpreter of the appellant’s statement as witnesses is fatal to their case. He cited and relied on:Abayomi Olalekan Vs The State (2002) ALL FWLR (Pt.91) 1609. He also took issue with the fact that learned counsel for the prosecution, Mr. Igwubor played a dual role as prosecutor and witness for the prosecution, a practice which he contends was deprecated by this Court in Elabanjo Vs Tijani (1986) 12 SC (Reprint) 218 @ 229 – 230 paras. 30 – 5. He urged the Court to resolve this issue in the appellant’s favour.
In reaction to the above submissions, learned counsel for the respondent referred to Section 215 of the CPA and Section 36 (6) of the 1999 Constitution and the case of Adeniyi Vs The State (2001) 5 SCNJ 371 @ 379 in asserting that the provisions of the law were duly complied with. He reproduced the proceedings at page 22 of the record and submitted that the following features of the arraignment are evident:
That the appellant was placed before the Court unfettered.
2.That the charge was read over and explained to him in the language he understands to the satisfaction of the Court.
3.That he pleaded guilty to the charge.He also noted that the record shows that one Isa Ture Abdulkadir, a sworn interpreter was in Court on the day of arraignment and he interpreted the charge to the appellant in Hausa language before he pleaded thereto. He also noted that the appellant was represented by counsel, one M.A. Lawal Esq. He referred to Section 150 (1) of the Evidence Act 1990 (now Section 168 (1) of the Evidence Act 2011) and submitted that there is a presumption in law that official acts have been done regularly until the contrary is proved. He referred to the case of Ogunye Vs The State (1999)4 SCNJ 33.On the alleged failure of the prosecution to call the interpreter of the appellant’s statement as a witness, learned counsel submitted that learned counsel for the appellant did not avert his mind to the fact that the appellant pleaded guilty to the charge and that the trial was a summary trial, as provided for in Section 33 (2) of the Federal High Court Act Cap F12 LFN 2004.
He noted that the procedure to be followed where an accused person pleads guilty is provided for in Section 218 of the CPA and that the issue of fairness or unfairness of the hearing does not arise. He relied on Omoju Vs FRN (2008) SCNJ 197 @ 212 per Niki Tobi, JSC.
I commence the resolution of this issue by reiterating the fact that the proper arraignment of an accused person is fundamental to the jurisdiction of the Court to try him. I have also stated earlier in this judgment that an improper arraignment is a breach of the fundamental rights of a person charged with an offence to fair hearing guaranteed by Section 36 (6) of the 1999 Constitution. The provisions of Section 215 of the CPA have been reproduced earlier. The fundamentals of a valid arraignment have been restated in numerous decisions of this Court. In Kajubo Vs The State (1988) 1 NWLR (Pt.73) 721 @ 738 C – F His Lordship, Oputa, JSC stated thus:
” … for there to be a proper arraignment
(i) “The accused person shall be present in Court.
(ii) The charge or information shall be read over to him in a language he understands.
(iii) The charge or information after being read
over in such language should be explained to him avoiding as much as possible the use of technical expressions. This explanation should acquaint the accused person with the essential ingredients of the offence charged and with the factual situation resulting in and giving rise to the offence charged.
(iv) To make assurance doubly sure the trial Judge should also satisfy himself that the explanation of the offence charged was adequate and that the accused understands what he is standing trial for.
It is good practice for trial Courts to specifically record that “the charge was read and fully explained to the accused to the satisfaction of the Court” before then recording his plea thereto.”
See also: Erekanure Vs The State (1993) 5 NWLR (Pt. 294) 385; Solola Vs. The State (2005) 11 NWLR (Pt. 937) 460; Olayinka vs The State (2007)9 NWLR (Pt. 1040) 561.
I have carefully examined the proceedings of the trial Court on 12/4/2011 at page 22 of the record (reproduced above). All the requirements set out in Section 215 of the CPA were complied with. The record states clearly that one Isa Ture
Abdulkadir, sworn interpreter, read and interpreted the charge to the appellant in Hausa language. The learned trial Judge made the following note in his record after the charge was read: “Charge is read, interpreted and explained to the accused person from English to Hausa and vice versa and he appeared perfectly to understand same.” This shows that not only was the charge read and interpreted to the appellant in the language he understands, it was also explained to him to the satisfaction of the Court.
Learned counsel has argued that the appellant’s plea was not recorded in the exact words used by him. Section 218 of the CPA, on which he relied provides thus:
“if the accused pleads guilty to any offence with which he is charged the Court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to 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.”
It is interesting to note that learned counsel underlined the
phrase “the Court shall record his plea as nearly as possible in the words used by him “in paragraph 3.10 of his brief of argument for emphasis and yet failed to go further by showing in what way the Court failed to comply with the law. The contention appears to me to be speculative. It is also pertinent to note that the appellant was represented by counsel during his arraignment and no objection was raised to any aspect of the procedure. I am satisfied that there was due compliance with the provisions of Section 215 and 218 of the CPA and Section 36 (6) of the 1999 Constitution by the trial Court and that the appellant’s arraignment was proper.
On the alleged unfairness of the trial, learned counsel has argued that the persons who recorded and interpreted the appellant’s statement ought to have been called as witnesses by the prosecution and that it was improper for the prosecutor to double as the prosecution witness. As rightly observed by learned counsel for the respondent, by virtue of Section 33 (2) of the Federal High Court Act Cap F12 LFN 2004, all criminal causes and matters before the Court shall be tried summarily. A summary trial or summary
proceeding is defined in Black’s Law Dictionary 8th edition as “a proceeding that settles a controversy or disposes of a case in a relatively prompt and simple manner” ‘In Ralph Uwazuruike & Ors. Vs A.G. Federation (2013) LPELR-20392. His Lordship, Fabiyi, JSC stated:
“Summary trial entails immediate action without following the rigmarole in normal legal procedures. In some cases, it is often carried out brevi manu. It may appear unusual but where such is the law as dictated by Section 33 of the Federal High Court Act Cap 133 LFN 1990, so be it.”
Section 33 of the Federal High Court Act 1990 is in pari materia with Section 33 (2) of the Federal High Court Act LFN 2004. Section 218 of the CPA reproduced earlier also provides that once an accused person pleads guilty to an offence, and the Court is satisfied that he intends to admit the truth of all the essential elements of the offence, he shall convict him of the offence and pass sentence accordingly. This applies to non-capital offences such as the charge in the instant case. The advantage and importance of summary trials have been commended in several decisions of this Court. See: Baalo Vs –
FRN (2016) LPELR-40500 (SC) @ 16-18 D-C, where Sanusi, JSC held as follows:
“The antecedents of this case brings to the fore the propriety of a summary trial in criminal proceedings. Where an accused person is arraigned before a criminal Court and he pleads guilty of (sic) the offence or charge he is facing… after the charge was read and explained to him, the trial Court is free to adopt summary trial and convict and sentence him provided the Court is satisfied that he really understood the charge read and explained to him before he admitted his guilt… The summary trial procedure is adopted to avoid a prolong(ed), full blown trial and the rigours associated with same.
To my mind summary trial is not only beneficial to the Court but is also of great benefit to the accused. The advantage of summary trial is that it speeds up the trial thereby saving a lot of cost and time.
… Another advantage of summary trial is that if an accused person pleads guilty as in the present case, there is the possibility for him to enjoy some degree of indulgence with regard to leniency and may also earn less stringent penalty, since by his early plea of guilt, he had
relieved the Court of rigorous and lengthy time consuming trial…”
In Omoju Vs F.R.N. (2008) 7 NWLR (Pt.1085) 38, in similar circumstances as the instant case, the appellant pleaded guilty to a charge of unlawfully exporting 1.1 kg of heroin contrary to and punishable under Section 10 (b) of the National Drug Law Enforcement Agency Act. Although he initially pleaded not guilty to the charge and maintained a not guilty plea when the charge was amended by substituting the word “cocaine” for heroin, he eventually applied to change his plea upon being served with the proof of evidence. He changed his plea to guilty, whereupon the prosecution tendered all the relevant exhibits including his confessional statement. He was convicted as charged and sentenced to two years imprisonment. He appealed against his conviction to the Court of Appeal and subsequently to this Court on several grounds.
One of the issues for determination in the appeals was whether, notwithstanding his guilty plea, the prosecution was still required to discharge the onus of proving the case beyond reasonable doubt. It was also contended that the appellant was denied fair hearing. His
Lordship, Niki Tobi, JSC had this to say at pages 59 – 60 H -C & 61 C – D:
“Dealing with Section 36 (8) and (12) of the Constitution, learned counsel submitted that the appellant was denied fair hearing. How In what way An accused person who pleads guilty to an offence is not entitled to a hearing and so the issue of fairness or unfairness of a hearing is neither here nor there. In other words, by entering a guilty plea, hearing is foreclosed, as the next and last procedural step of the Judge is to convict and pass appropriate sentence.
Learned counsel also raised the issue of possible tampering with the substance as there was the possibility of not keeping it in proper custody. Can this be a serious submission in the light of the guilty plea If the appellant was convinced that the substance was tampered with, why would he plead guilty. What was he pleading guilty to If the substance was tampered with, is that not a valid defence open to the appellant
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 compelling 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 actus reus of the accused as the case may be. That makes it easier to locate causation or causa sine qua non.”
I am well guided by view expressed above by the eminent jurist. Having pleaded guilty to the charge, and the learned trial Judge having satisfied himself that he understood what he was pleading to, the next stage of the proceedings was conviction and sentence. The appellant’s extra judicial statement and its translation were admitted in evidence without objection. He was represented by counsel. Just as in Omoju’s case (supra), if the appellant had any legal objection to the tendering of his statement, he had the option of changing his plea to not guilty and raising the objection at the trial. In view of the appellant’s guilty plea, the tendering of the various exhibits by the prosecution through counsel cannot amount to the prosecutor doubling as the accuser and a witness. The prosecuting counsel tendered the documents from the bar and did not give any
evidence. As stated in Omoju’s case (supra) in light of the appellant’s guilty plea, the issue of fairness or unfairness of the trial does not arise.
I find no merit in this issue. It is accordingly resolved against the appellant.
Whether with regard to the offence of unlawful possession of Indian Hemp, the lower Court was right when it held that the Indian Hemp Act (vide its Section 8), Cap 16 Volume 7, Laws of the Federation of Nigeria 2004, is inconsistent with, or has been repealed by the National Drug Law Enforcement Agency Act Cap N30, Volume 9, Laws of the Federation of Nigeria 2004, thereby conferring jurisdiction on the Federal High Court.
It is the contention of learned counsel for the appellant that by virtue of the provisions of Section 8 of the Indian Hemp Act, Cap 16 LFN 2004, it is the Magistrate Court that has jurisdiction to adjudicate over offences relating to cannabis sativa otherwise known as Indian hemp. The Section provides:
“8. (1) Every Magistrate in any part of Nigeria shall, notwithstanding anything contained in any enactment have jurisdiction for the summary trial or any offence under Sections 4 to
7 of this Act and may impose the punishment provided by this Act for such an offence.
(2) Subsection (1) of this Section shall be without prejudice to the operation of the Children and Young Persons Law of any State or the Children and Young Persons Act of the Federal Capital Territory.”
He submitted that by virtue of the above provision, the Magistrate Court has exclusive jurisdiction to try offences involving the possession of Indian hemp. He place emphasis on the words “notwithstanding anything contained in any enactment …” and submitted, relying on NDIC Vs Okem Ent. Ltd. & Anor. (2004) ALL FWLR (Pt.210) 1176 @ 1232 1233 H – A, that where the word “notwithstanding” is used in a Section or a Statute, it is meant to exclude an impinging or impeding effect of any other provision of the Statute or other subordinate legislation so that the section may fulfill itself. He argued that the Indian Hemp Act has not been repealed by the National Assembly and therefore remains a subsisting law. He submitted that an intention to repeal a statute must be expressly stated, as statutes are not repealed by inference or implication. He cited: Ibidapo Vs
Lufthansa Airlines (1997) 4 NWLR (Pt. 498) 124 @ 163 in support. He submitted that an offence is defined by the Statute that created it. He referred to Section 36 (12) of the 1999 Constitution to the effect that no one can be convicted of an offence unless such offence is prescribed in a written law, either an Act of the National Assembly or a law of a State or any subsidiary legislation or instrument under the provision of a law. He contended that Section 11 (c) of the NDLEA Act does not contain the words “Indian hemp” but rather refers to “cocaine, LSD, heroin or any other similar drugs”. He argued that there is no conflict between the Indian Hemp Act and Section 251 of the Constitution as well as item 21 of the Exclusive Legislative List in the Second Schedule to the Constitution. He submitted that while the Indian Hemp Act is specific, the NDLEA Act is general in matters rerating to Indian hemp and that there is no conflict between the two. He submitted that even though the Courts have power to nullify a Statute that is in conflict with the Constitution, see: Abaye vs Ofili & Anor (1986) 1 SC (Reprint) 149 @ 161 para 5, no such inconsistency or
conflict exists in the instant appeal. He submitted further that the Indian Hemp Act must prevail over the provisions of the NDLEA Act, having regard to the fact that the former deals specifically with Indian Hemp. He referred to: Edet Akpan vs. The State (1986) 3 NWLR (Pt. 27) 225 @ 239 G-H; Abubakar vs. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 523 @ 447 C-D; Mandara vs A.G. Federation (1984) 4 SC (Reprint) 6 @ 19 Paras. 5-15 & 20 Paras. 1 – 10; Awuse Vs Odili (2003) 18 NWLR (Pt.851) 116 @ 168 B-E; A.G. Federation Vs Abubakar (2007) 10 NWLR (Pt.1041) 1 @ 92 – 93 H -C & 148 – 149 H – B.
Learned counsel submitted that the interpretation given to the law by the lower Court vesting the Federal High Court with general jurisdiction, would clutter the Court with matters dealt with elsewhere. He submitted further that there is nothing sacrosanct in State Courts trying Federal offences so long as there is an enabling statute in that regard. He referred to: Ishamel Emelogu vs The State (1988) 5 SC (Reprint) 121 @ 132 para 5-30, 133 paras 5-10 & 137 paras, 25-35. He urged the Court to give Section 8 of the Indian Hemp Act its natural and ordinary
meaning as enjoined by many decisions of this Court and to hold that the Magistrate Court has exclusive jurisdiction to try the offence for which the appellant was charged. He submitted that in the absence of jurisdiction the trial before the lower Court and the subsequent conviction of the appellant is a nullity. He urged this Court to set aside the judgment of the trial Court, which was affirmed by the Court below.
In response, learned counsel for the respondent submitted that the Federal High Court has exclusive jurisdiction to try offences relating to Indian Hemp. He noted that the appellant was charged under Section 11 (c) of the NDLEA Act, which provides thus:
“11. Any person who without lawful authority-
(c) sells, buys, exposes or offers for sale or otherwise deals in or with the drugs popularly known as Cocaine, LSD, heroin or any other similar drug shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life,”
He submitted that this Court, in the case of: Okewu Vs F.R.N. (2012) 2 SC (Pt.Il) 1 interpreted the words “similar drugs” to include Indian Hemp. He referred to Section 26 of the NDLEA
Act, which confers exclusive jurisdiction on the Federal High Court to try offenders under the Act. He also referred to Section 251 (1) (m) and (s) of the 1999 Constitution, which confers exclusive jurisdiction on the Federal High Court to try drugs and drugs related offences to the exclusion of any other Court and Section 251 (3) thereof, which provides that ”the Federal High Court shall have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Subsection (1) of this Section”.
He submitted that the combined effect of Section 26 of the NDLEA Act and Section 251 of the 1999 Constitution is that the Federal High Court is conferred with exclusive jurisdiction to entertain any matter relating to drugs and poisons. He also referred to item 21 of the Exclusive Legislative List in the Second Schedule to the 1999 Constitution and submitted that since drugs are listed therein, the implication is that only the Federal Government of Nigeria has legislative competence on the subject and cannot be subject to the jurisdiction of a Magistrate Court established by a State. He submitted that the
effect of Section 26 of the NDLEA Act and Section 251 of the Constitution is to repeal the provisions of the Indian Hemp Act. He noted that the commencement date of the NDLEA Act is 29th December 1989 while the commencement date for the Indian Hemp Act is 31st March 1966. He argued that the coming into effect of the NDLEA Act has automatically abrogated the Indian Hemp Act. Relying on Section 1 (3) of the Constitution, he submitted that any law that is inconsistent with the provisions of the Constitution is void to the extent of the inconsistency. He urged the Court to hold that Section 8 of the Indian Hemp Act relied upon by learned counsel for the appellant is void. He contended that by virtue of Section 315 (2) and (3) of the Constitution, this Court has the power to invalidate the entire provisions of the Indian Hemp Act.
Courts are creations of Statute or the Constitution. They can only exercise jurisdiction as conferred on them by the Statute or Constitution creating them. See: Obiuweubi Vs CBN (2011) 7 NWLR (Pt.1247) 465; ANPP Vs Goni (2012) 7 NWLR (Pt.1298) 147. In the locus classicus on jurisdiction, Madukolu Vs Nkemdilim (1962) 2 SCNLR 341, it
was held that:
“A Court is competent to adjudicate on a cause or matter when:
- It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another;
- the subject matter of the case is within its jurisdiction; and
- the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
Jurisdiction is the life-blood of adjudication. Without it, the Court labours in vain. The age-long golden rule of statutory interpretation is that where the language of the statute is clear and unambiguous the words used must be given their natural and ordinary meaning, unless such interpretation would lead to injustice or absurdity. See: Ibrahim Vs Barde (1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo Vs Alamu (1987) 3 NWLR (61) 377 @ 402 F-H; Ahmed Vs Kassim (1958) SCNLR 28 @ 30 C.
For ease of reference, I shall repeat the provisions
of Section 8 of the Indian Hemp Act:
“8. (1) 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.
(2) Subsection (1) at this Section shall be without prejudice to the operation of the Children and Young Persons Law of any State or the Children and Young Persons Act of the Federal Capital Territory.”
The offences created under Sections 4 – 7 of the Act are exportation of Indian hemp, smoking or unlawful possession of Indian hemp, possession of utensils for use in smoking Indian hemp and use of premises for sales, smoking, etc. of Indian hemp. The clear and unambiguous words used in Section 8 (1) above, in my view, do not confer exclusive jurisdiction on the Magistrate Court to try offences relating to Indian hemp. The charge against the appellant was for dealing in 20kg of Cannabis sativa (otherwise known as Indian hemp), a drug similar to cocaine, heroin, LSD etc. without lawful authority, an offence punishable under Section 11 (c) of the NDLEA Act.
Section 251 (1) (m) and (s) and (3) of the 1999 Constitution provides :
“251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred on it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters [relating to] –
(m) drugs and poisons;
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.
(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Subsection (1) of this Section.”
(Words in square brackets mine)
Section 26 of the NDLEA Act provides that the Federal High Court shall have exclusive jurisdiction to try offences under the Act. From the above provisions of the Constitution, it is quite clear that the Federal High Court has exclusive jurisdiction in civil causes and matters relating to drugs and poisons. By virtue
of Subsection (3) of Section 251, it also has jurisdiction in respect of criminal causes and matters in which jurisdiction is conferred by Subsection (1) of the Section. A criminal charge relating to drugs and poison being among the items listed in Subsection(1) therefore comes within the purview of Subsection (3). Furthermore, by Section 251(1)(s), the National Assembly may confer on the Federal High Court additional civil or criminal jurisdiction, whether to the exclusion of any other Court or not. By Section 26 of the NDLEA Act Cap N30 LFN 2004, the National Assembly has, in this regard, conferred exclusive jurisdiction on the Federal High Court to try offenders under the Act. Drugs and poisons are listed as Item 21 in Part 1 of the Exclusive Legislative List in the Second Schedule to the Constitution. Thus the subject mater is within the exclusive competence of the National Assembly to legislate upon. In the circumstances, I agree with the lower Court that having included drugs in the Exclusive Legislative list, it could not be the intention of the legislature that the Magistrate Court, being a creation of the State legislature, shall try offences relating to such items in the Exclusive Legislative list. I also agree with the Court below that Section 8 of the Indian Hemp
Act Cap 16 LFN 2004 is in conflict with Section 26 of the NDLEA Act.
The Constitution is the groundnorm and fundamental law of the land. It is supreme and prevails over any other legislation enacted by the National Assembly or any State House of Assembly. Section 1 (3) of the Constitution provides that if any other law is inconsistent with the provision of the Constitution, the Constitution shall prevail and that other law, to the extent of the inconsistency shall be void. I do not agree with the Court below that the Indian Hemp Act is inconsistent with the provisions of Section 251 of the Constitution and is therefore void to the extent of the inconsistency. Section 251(1) (m) does not confer exclusive criminal jurisdiction on the Federal High Court in matters relating to drugs and poisons. It confers exclusive civil jurisdiction only. However, by virtue of Section 251(1)(s), the Federal High Court may exercise such other civil or criminal jurisdiction, whether to the exclusion of any other Court or not as may be conferred on it by an Act of the National Assembly. The NDLEA Act Cap. N30 LFN 2004 is an Act of the National Assembly and it is this Act that
confers exclusive jurisdiction on the Federal High Court to try offences under the Act. Rather, I am of the view that the National Assembly, in exercise of its powers under the Constitution, having conferred exclusive jurisdiction on the Federal High Court in relation to offences under the NDLEA Act, including offences relating to the possession of Indian hemp, there is an implied repeal of the Indian Hemp Act. It is correct, as submitted by learned counsel for the appellant, that the general rule is that statutes are not repealed by inference or implication but by direct provision of the law. There is however an exception to this general rule. A statute may repeal another by implication where the terms of the later one are so inconsistent with the former that they cannot stand together, as effect cannot be given to both at the same time. See: Governor of Kaduna State Vs Lawal Kagoma (1982) 4 SC 87; Akintokun Vs LPDC (2014) 5 – 7 SC (Pt. 1) 1 @ 84. In the instant case, Section 8 of the Indian Hemp Act, which came into force on 31st March 1966 is so inconsistent with Section 26 of the NDLEA Act, which came into force later in time on 29th December 1989, that
both provisions cannot stand together. The exclusive jurisdiction conferred on the Federal High Court by Section 26 of the NDLEA Act, in the exercise of power conferred on the National Assembly by Section 251 (1) (s) and (3) of the Constitution, has completely ousted the jurisdiction of the Magistrates Court to try offences relating to Indian hemp. There is therefore an implied repeal of Section 8 of the Indian Hemp Act. The extant law on the jurisdiction of the Federal High Court to try offences relating to Indian Hemp is therefore the NDLEA Act, particularly Section 26 thereof.
In conclusion on this issue, this Court has laid to rest the question as to whether or not the Federal High Court has jurisdiction to try offences relating to Indian hemp in Okewu Vs F.R.N. (2012) 9 NWLR (Pt.1305) 327 where it was held that Indian hemp is a drug within the meaning of drugs in Section 11 of the NDLEA Act. Section 26 of the Act confers exclusive jurisdiction on the Federal High Court in relation to all offences under the Act. This issue is accordingly resolved against the appellant.
In conclusion, I find no merit in this appeal. It is accordingly dismissed.
The judgment of the lower Court delivered on 26th June 2013 affirming the judgment of the Federal High Court, Ilorin delivered on 12th April 2011, is hereby affirmed.