Elijah Ameh Okewu V. The Federal Republic Of Nigeria (2012)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

On the 11th day of June, 1997, the Appellant was arraigned before the Special (Miscellaneous Offences) Tribunal, holden at Lagos, presided over by Makwe, J on a single count charge as follows:-

“That you, Elijah Ameh Okewu on or about the 13th day of March, 1997 at Ibadan unlawfully possessed 58 bags of Indian Hemp otherwise known as Cannabis Sativa weighing 408 Kilogrammes and thereby committed an offence contrary to and punishable under Section 10 (h) of the National Drug Law Enforcement Agency Decree No. 48 of 1989”

The plea of the appellant was taken on the same 11/06/1997. In its judgment delivered on the 25th September, 1997, the Appellant was found guilty as charged, convicted and sentenced to the minimum of 15 years imprisonment. Dissatisfied with the conviction and sentence, the Appellant appealed to the Court of Appeal, Lagos Division via an Amended Notice of Appeal dated and filed on 21/10/2003. The court below in its judgment delivered on 19/04/2004 dismissed the Appellant’s appeal, upheld the conviction and sentence of the Appellant by the Special (Miscellaneous Offences) Tribunal, that is, the trial tribunal.

Being dissatisfied with the decision of the court below, the Appellant further appealed to this court with his Notice of Appeal dated 6/03/2009 but filed on 10/03/2009. The said Notice of Appeal was however deemed as properly filed and served on 20/05/2001.

Briefs of argument were filed and exchanged. The Appellant’s brief of argument dated 16/03/2011 was filed on the same date. The Respondent’s brief of argument was filed on 20/09/2011 but was deemed properly filed and served on 16/11/2009.

On the day the appeal came up for hearing, counsel to both parties were in court. Each adopted his respective brief of argument and relied on their submissions therein.

From the two Grounds of Appeal filed, the Appellant formulated a sole issue as follows:

“Whether the Appellant was rightly convicted and sentenced to 15 years imprisonment for unlawfully possessing 58 bags of Indian hemp otherwise known as Cannabis Sativa pursuant to Section 10 (h) of the National Drug Law and Enforcement Agency Decree No.48 of 1989 when Cannabis Sativa is not a drug within the meaning of Section 10(h) of the Decree and all the ingredients of the offence were not contained in the charge read to the Appellant.”

In proferring argument in support of the sole issue raised, learned counsel to the appellant referred to the charge preferred against the Appellant. He also referred to the relevant provision of the law allegedly breached. He contended that it is not in dispute that an integral element for conviction under the law (Section 10 (h) of the NDLEA Decree) is that the possession of the drug must be done knowingly and with the knowledge that the substance is a narcotic drug. Learned counsel contended further that the charge merely accused the Appellant of unlawfully possessing the Cannabis Sativa without addressing the requirement that he knew he was in possession of a narcotic drug. It was contended that the charge did not contain all the essential ingredients of the offence charged under Section 10 (h) of the NDLEA Decree to ground a conviction. He submitted that in the absence of all the essential ingredients of the offence in the charge, the facts of the matter could not groundly support the offence as charged under Section 10 (h) of the NDLEA Decree. He relied on Abacha Vs. State (2002) 11 NWLR (Pt. 779) 437-499.

Learned counsel further submitted that since the words “knowingly possesses” were clearly missing from the charge, the Appellant could not be said to have understood the complaint against him and it amounted to mere speculation for the Court of Appeal to have concluded that the facts of the matter have established both the actus reus and mens rea of the offence.

Learned counsel submitted and urged the court to hold that the Appellant has been prejudiced by the manner of the framing of the charge and that the Appellant has been misled by the omission of the words “knowingly possesses” in the framing of the charge as it did not contain all the ingredients of the offence. He further submitted and urged the court to hold that since the charge did not contain all the essential ingredients of the offence, the charge was not clear and precise and the Appellant’s plea was a nullity. He relied on Kayode vs. State (2008) 1 NWLR (Pt.1068) at 281 and submitted that the purported Appellant’s plea of guilty cannot amount to an admission of the offence.

Learned Counsel contended that it is common ground that Indian hemp otherwise known as Cannabis Sativa is not mentioned under Section 10 (h) of the National Drug Law Enforcement Agency Decree No. 48 of 1989. He mentioned the drugs referred to in the Law and queried whether Indian hemp qualifies as “any other similar drugs” within the meaning of Section 10 (h) of the NDLEA Decree No. 48 of 1989.

Learned Counsel contended that since when specific words of a particular class are used in a Statute followed by general words, the general words take their meaning from the specific words, ejusdem generis. He submitted that the words “any other similar drugs” must therefore be drugs of the same class as cocaine, LSD and heroine. He cited a few cases including, Buhari vs. Yusuf (2003) 14 NWLR (Pt.841) 446, Texaco (Nig) Plc vs. Lukoko (1997) 6 NWLR (Pt.510) 651 at 664 on the maxim “Expressio unius est exclusion alterius.” Also, Cross on Interpretation of Statutes and Halsbury’s Law of England 4th Edition at Para 876. He submitted and urged the court to hold that Indian hemp cannot by any stretch of imagination be said to be “any other similar drugs” under the provisions of Section 10 (h) of the NDLEA Decree.