Nura Ochala V. Federal Republic Of Nigeria (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering The Leading Judgment)

This appeal germinated from the judgment of the Federal High Court, Ilorin Division, coram, A. O. Faji, J., in charge No.FHC/IL/38C/2011, delivered on 09/11/2011, wherein the appellant was convicted and sentenced to a term of imprisonment.

The facts of that case, which culminated in this appeal, before the lower Federal High Court was brief. On 23/09/2011, officers of the National Drug Law Enforcement Agency, Kwara State Command, conducted a search in the appellant’s house at Banni village,in Kaima Local Government of Kwara State. In the course of that search, the officers found on the appellant dried weeds, suspected to be Indian hemp otherwise known as cannabis sativa. As a consequence, the appellant was arrested by those officers.

After the preliminary investigation and field tests, the National Drug Law Enforcement Agency, Kwara State Command, acting for the Attorney General of the Federation, arraigned the appellant before the lower court on 09/11/2011. The charge, a one-count charge, found on page 1 of the printed record, was to the effect that the appellant: “without lawful authority, dealt in 8.8 kilogrammes of cannabis sativa (otherwise known as Indian hemp) a drug similar to Cocaine, Heroin, LSD etc. thereby committing (sic) an offence contrary to and punishable under Section 11 (c) of the National Drug Law Enforcement Agency Act,Cap N30 Law of the Federation of Nigeria 2004.”

On that date of arraignment before the lower court, 09/11/2011, the charge was read and explained to the appellant in English language and he pleaded guilty to it. Sequel to that guilty plea, the respondent’s counsel, I. J. Igwubor Esq.,tendered all the necessary documentary evidence which were, without opposition from the respondent’s counsel, admitted in evidence as exhibits A, B, C, D, E and, G. The exhibits occupy pages 17-26 of the printed record. Thereafter, the respondent urged the lower court, without objection, from the appellant’s counsel, to convict the appellant based on his plea and the evidence. Thereupon, the lower court convicted the appellant as charged.

In the appellant’s allocutus pleaded, for him by his counsel, the lower court was informed that he was a first offender without any criminal record. Thereafter,the lower court proceeded, on page 15 of the record, to sentence the appellant thus: “The accused person is accordingly sentenced to 18 months imprisonment starting from 23/9/2011.”

The appellant was dissatisfied with the decision of the lower court. Consequently, he filed a two-ground notice of appeal, encapsulated on pages 27 30 of the cold record, on 06/07/2012, wherein he prayed this court for: “An ORDER allowing the appeal set aside the conviction and sentence imposed on the appellant and discharge and acquit him of the offence of illegal possession of Indian hemp preferred against him.’ Subsequent to that, the parties filed and exchanged their briefs of argument in the manner prescribed by the rules of this court.

The appeal was heard on 21/05/2013. In that regard, learned counsel for the appellant, Abiola Olagunju, Esq.,adopted the appellant’s brief of argument, filed on 29/10/2012 and settled by Peter Mrakpor, Esq., as forming his arguments in support of the appeal. He prayed the court to allow the appeal. Similarly, the respondent’s counsel, Adeola Omotunde, Esq.,adopted the respondent’s brief of argument, filed on 22/04/2013, but deemed filed on 30/04/2013, as representing his submissions against the appeal.He prayed the court to dismiss the appeal.

The appellant, in his brief of argument, crafted a solitary issue for determination of the appeal to wit:

“Whether by virtue of the express provisions of the Indian Hemp Act, Volume 7, Cap. 16, Laws of the Federation of Nigeria, 2004, the Federal High Court was right to have assumed Jurisdiction to try, convict and sentence the Appellant herein, for an India Hemp related offence.”

In the respondent’s brief of argument, it distilled a singular issue for determination of the appeal viz:

“Considering the totality of this case whether the provisions of the Indian Hemp Act, Volume 7, Cap 16, Laws of Federation of Nigeria 2004 is capable of depriving donated by Section 251 (1)(m) of the 1999 Constitution and Section 26 of the National Drug Law Enforcement Agency Act, Cap. N30, laws of the Federation of Nigeria, 2004 in the determination of this case.”

I have situated the appellant’s single issue with that of the respondent. In my view, both issues are symmetrical, one a mirror image of the other. On this score, I will settle the appeal on the concise lone issue formulated by the appellant. After all, it is the appellant that is peeved by the decision of the lower court.

Arguments on the issue