Barewa Pharmaceuticals Limited V. Federal Republic Of Nigeria (2019)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALUMJE, J.S.C.

Three persons, namely, Adeyemo Abiodun, Egbele Austin Eromosele and the Appellant herein, a limited liability company, were arraigned before the Federal High Court, Lagos on a six counts amended charge for various offences under the counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C 34 Laws of the Federation of Nigeria 2004, and Miscellaneous Offences Act, Cap M17 Laws of the Federation of Nigeria, 2004. They pleaded not guilty to the charge. In order to prove its case, the prosecution called seven witnesses and tendered several documents which were admitted in evidence. Mr. Egbele Austin Eromosele was the only witness that testified for the defence. At the end of the trial, and in a reserved and considered judgment, delivered on the 17th May, 2013, Okeke. J. found the Appellant and the two other accused persons guilty of the offence under counts 3 and 4 of the amended charged and they were all convicted accordingly.

The Appellant herein, being a company was ordered to be wound up and its assets forfeited to the Federal Government of

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Nigeria, while the two other convicts were each sentenced to seven years imprisonment on each of the two counts. The sentences were ordered to run concurrently. They were however acquitted and discharged from the remaining counts.

Being aggrieved, the three convicts appealed separately to the Court of Appeal (the lower Court). The appellant’s appeal was heard. In a reserved and considered judgment delivered on the 31st of May, 2016, the appeal was allowed in part. The conviction for conspiracy to sell dangerous drugs. “My Pikin Baby Teething Mixture” to Roca Pharmacy under count three of the charge was set aside. Conviction for sale of dangerous drugs under count 4 was affirmed. The order for winding up and forfeiture of the assets of the appellant was also set aside by the lower Court. In its place, the Appellant was sentenced to a fine of One Million Naira (N1,000,000.00).

The Appellant is dissatisfied with the judgment of the lower Court. Being aggrieved it has brought this appeal. It is to be noted that Adeyemo Abiodun and Egbele Austin Eromosele, Appellant’s co-accused did have their respective appeals numbers SC.531/2016 and SC.529/2016 to

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this Court dismissed on 2nd February, 2018.

The Appellant’s notice of appeal at pages 844 -854, filed on the 21st June, 2016 contains sixteen grounds of appeal. Parties filed and exchanged briefs of argument. The Appellant’s amended brief of argument, settled by Afolabi Kuti, learned counsel for the Appellant was filed on the 23rd January, 2017, but deemed filed on the 30th March, 2017. From the sixteen grounds of appeal, learned counsel formulated six issues for determination of this appeal at page 10 of the said Appellant’s amended brief of argument as follows: –

1. Whether the reliance of the lower Court on grounds other than those contained within the judgment of the trial Court in affirming the conviction of the Appellant for sale of dangerous drugs, amounts to a denial of the Appellant’s right of fair hearing. Grounds 3, 10, 11, 12.
2. Whether the lower Court relied on unproven assumptions and consequently misdirected itself in reaching the conclusion that any of the products in circulation in Nigeria with the brand name “My Pikin” are the ones manufactured by the 3rd accused; thereby occasioning a miscarriage of justice. Grounds 1, 2,4, 5, 6, 13, 14.

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Whether the lower Court was right in imposing a fine of N1,000,000.00 (One Million Naira) on the Appellant, in the absence of any reason or basis for the discretion. Grounds 16.

4. Whether the lower Court failed to consider the issues properly canvassed before them, and thereby occasioned a miscarriage of justice. Ground 9.
5. Whether the lower Court erred in arriving at the conclusion that the unsworn statement of DW1 amounted to an admission of guilt. Grounds 8, 15.
6. Whether the lower Court erred in finding the Appellant liable for sale of dangerous drugs despite reversing the decision of the trial Court which found the Appellant guilty of conspiracy to sell dangerous drug. Ground 7.Chief Mike Ozekhome, learned senior counsel for the Respondent, at page 6 of the Respondent’s brief of argument filed on the 7th November, 2017, but deemed filed on the 31st of January, 2019 adopted the six issues formulated by the learned counsel for the Appellant with some slight alterations to suit the justice of the case as follows:-
7. Whether there was reliance on other grounds by the lower Court other than those

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contained within the judgment of the trial Court in affirming the conviction of the Appellant for sale of dangerous drugs, such as can be said to amount to a denial of fair hearing.