Adeyemo Abiodun V. Federal Republic of Nigeria (2016)

LawGlobal-Hub Lead Judgment Report

CHINWE EUGENIA IYIZOBA, J.C.A. 

 The appellant and two others were arraigned in the Lower Court on an amended charge which read as follows:
COUNT ONE:
That you Adeyemo Abiodun, Egbele Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable Court on or about October, 2008 manufactured an adulterated drug to wit: MY PIKIN BABY TEETHING MIXTURE AND YOU THEREBY COMMITED AN OFFENCE CONTRARY TO Section 1 (a) of the counterfeit and Fake Drugs and unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C34 Laws of the Federation of Nigeria, 2004 and punishable under Section 3 of the same Act.
COUNT TWO:
That you Adeyemo Abiodun, Egbele Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable Court on or about October, 2008 distributed an adulterated drug to wit: MY PIKIN BABY TEETHING MIXTURE TO Roca Pharmacy of 34 Balogun Road, Agege, Lagos and you thereby committed an offence contrary to Section 1 (a) of the counterfeit and Fake Drugs and Unwholesome

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Processed Foods (Miscellaneous Provisions) Act cap C34 Laws of the Federation of Nigeria, 2004 and punishable under Section 3 of the same Act.
COUNT THREE:
That you Adeyemo Abiodun, Egbele Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable Court on or about October, 2008 did conspire among yourselves to sell dangerous drug to wit: MY PIKIN BABY TEETHING MIXTURE to Roca Pharmacy of 34 Balogun Road, Agege, Lagos which did not represent the quality you represented it to be and you thereby committed an offence contrary to Section 1 (18) (a) (ii) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1 (18) (a) (ii); 1 (18) (b) (ii) and 3 of the same Act.
COUNT FOUR:
That you Adeyemo Abiodun, Egbele Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable Court on or about October, 2008 sold dangerous drug to wit: MY PIKIN BABY TEETHING MIXTURE to Roca Pharmacy of 34 Balogun Road, Agege, Lagos which did not represent the quality

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you represented it to be and you thereby committed an offence contrary to Section 1 (18) (a) (ii) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1 (18) (a) (ii); 1(18) (b)(ii) and 3 of the same Act.
COUNT FIVE:
That you Adeyemo Abiodun, Egbele Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable Court on or about October, 2008 did conspire among yourselves to adulterate a drug to wit: My PIKIN BABY TEETHING MIXTURE and you thereby committed an offence contrary to Section 3 (6) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1 (18) (a) (i) and 3 of the same Act.
COUNT SIX:
That you Adeyemo Abiodun, Egbele Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable Court on or about October, 2008 adulterated a drug to wit: MY PIKIN BABY TEETHING MIXTURE so as to change materially the quality or efficacy of the same without notice to the purchasers, knowing that

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same will be sold as a drug and you thereby committed an offence contrary to Section 1 (18) (a) (i) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1 (18) (a) (i) and 3 of the same Act.

Trial proceeded before Okeke J of the Federal High Court, Lagos Division. The prosecution called seven witnesses. The Appellant did not testify but called one witness, the 2nd accused person who testified as DW1; exhibits were tendered and admitted in evidence. Final addresses were filed and duly adopted. In its judgment delivered on 17/05/13, the Lower Court discharged and acquitted the Appellant and the two other accused persons on Counts 1, 2, 5 and 6 but convicted them on Counts 3 and 4. They were sentenced to seven years imprisonment on each of counts 3 and 4, the terms to run concurrently. The Court ordered that the assets of the 3rd accused Barewa pharmaceuticals Ltd be wound up and forfeited to the Federal Government of Nigeria.

?Dissatisfied with the judgment, the Appellant and his co-accused filed separate notices of appeal on 3/7/13.Tt is pertinent at this point to mention that judgment had earlier been

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delivered by this Court in this appeal on the 31st day of December, 2013 coram S.D. Bage, S.J Ikyegh and Tijjani Abubakar JJCA affirming the judgment of the Lower Court. All the Appellants appealed to the Supreme Court. It turned out that the judgment was based on an abandoned Notice of Appeal filed on 26/6/13 instead of the valid Notice of Appeal filed on 3/7/13. The Supreme Court consequently declared the judgment a nullity and remitted the appeal back to this Court for hearing de novo on the valid Notice of Appeal filed on 3/7/13.

The Notice of appeal of 3/7/13 has 13 grounds of appeal. Briefs of argument were filed and exchanged. The Appellant’s brief of argument dated and filed 5/7/13 was settled by Osaro Eghobamien SAN. From the 13 grounds of appeal he distilled the following 7 issues for determination:
“1. Whether the Appellant can be convicted in the absence of strict scientific evidence that the drug “My Pikin Baby Teething Mixture” was dangerous: Ground 10.
2. Whether the learned trial trudge was right in convicting the Appellant on the basis of unsubstantiated, unreliable and contradictory evidence. Grounds 3, 5, 6, 7 and 9
?3. Whether the learned trial

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