Commissioner Of Police Midwestern State Of Nigeria V. Stephen Oruware (1974)

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ELIAS, CJN.

The appellant in this case was originally charged in BOM/173c/71 as follows:- “FIRST COUNT: That you Stephen Oruware (m) during the month of June 1971 at Burutu in the Bomadi Magisterial District unlawfully supplied to one Rita Okonedo (f) some quantity of “Apiol & Steel Pills” knowing that they were intended to be unlawfully used to procure her miscarriage and thereby committed an offence punishable under Section 173 of the Criminal Code Cap. 28 Vol. I, Laws of Western State of Nigeria 1959, applicable in the Midwestern State of Nigeria. SECOND COUNT: That you Stephen Oruware (m) on the 19th day of October, 1971 at Burutu in the Bomadi Magisterial District did possess Poison to wit; some quantity of “Ladies Occasional Pills,” with the intent that they shall be used for an illegal purpose and thereby committed an offence, punishable under Section 277 of the Criminal Code Cap. 28 Vol. I, Laws of Western State of Nigeria 1959, applicable in the Midwestern State of Nigeria.”

The Senior Magistrate in Bomadi Magistrate’s Court, Midwestern Nigeria, found him guilty on both counts and sentenced him to 9 months’ imprisonment with hard labour on count 1, and 4 months’ imprisonment on Count 2, both terms to run concurrently. This was on June 29, 1972. There was an appeal to the Warri High Court where the appeal was allowed and the conviction of the appellant on each of the 2 count was quashed and he was acquitted and discharged on July 5, 1973. At the beginning of the hearing of the appeal in the Warri High Court, the prosecution itself said that it could not support the conviction of the appellant by the Senior Magistrate on the 1st count. So the hearing proceeded only on the 2nd count and the judgment was delivered as already stated.

The Prosecution brought up this appeal on this one main ground, namely:- “That the learned Judge of appeal erred in law by not applying the presumption that the possession of the Ladies Occasional Pills, which are poison, by the accused/respondent should be deemed to be for an illegal purpose in the circumstances under Section 278 of the Criminal Code Cap. 28, Vol. I, Laws of the Western State of Nigeria 1959 applicable in the Midwest.” Section 277 of the Criminal Code provides as follows:   “Any person who shall sell or transfer, make or possess any poison or poisonous matter with the intent that it shall be used for an illegal purpose shall be liable to a fine of £100, or to imprisonment for a term of 2 years or to both such fine and imprisonment.”

The learned Senior Magistrate duly found the accused to have been in possession of the pills and the learned trial Judge did not reject this finding of fact. He did, however, make the following remarks: “Turning to conviction of count 2, the prosecution to succeed therefore had to prove that possession of the pills mentioned there was with the intent alleged in the charge. The Prosecution led no evidence wherever the said intent could be inferred.”

Onakughotor, learned counsel for the appellant, while agreeing that no evidence was led in connection with this charge, argued that S. 278 of the Criminal Code made it unnecessary for them to do so, and that the onus is on the possessor of the poison to prove that its possession is not for an illegal purpose.

He submitted that the pills have been shown to be poisonous and the Government Chemist’s report which was tendered in evidence to show that a purse containing Ladies Occasional Pills was found inside a carton under the accused bed. Learned counsel referred us to Commissioner of Police v. Okoyen (1964) 1 All NLR 305 in support of his contention that the prosecution can appeal on a point of law, as in the present case, under S. 69 of the Magistrate’s Courts Law.

He therefore contended that the mere possession by the appellant was sufficient to put the onus on him, and that, in any case, the learned trial Judge did not seem to have adverted his mind to S. 278 anywhere in his judgment.

Popo, learned counsel for the respondent, for his part, submitted that the presumption under S. 278 could not be applied to this case because the accused was not charged under S. 278 but only under S. 277. It was his contention that S. 278 is not intended to amplify S. 277 which rendered even a qualified doctor liable once an intent to commit abortion could be proved by the prosecution. Section 278 of the Criminal Code reads: “Any person found in possession of, or making, selling or transferring any poison or poisonous matter, shall, unless he is a registered or licensed medical practitioner, a registered or licensed Dentist, a registered medical assistant, a qualified Veterinarian Surgeon or a person authorized under the Pharmacy Law to deal in such poison or shall have received the same from a person authorised to deal therein be deemed to be in possession of or to be making, selling or transferring the same for an illegal purpose unless he shall prove the contrary.”

We do not consider learned counsel’s interpretation of the relationship between Section 277 and Section 278 as tenable because we are of the view that Section 278 really amplifies the provision of Section 277. The position in law is that while Section 277 deals with the sale or possession of poison for an illegal purpose. Section 278 is concerned to provide that possession must be deemed to be illegal unless the contrary is proved. The two sections are complementary. Learned counsel submitted that failure on the part of the prosecution to have charged the respondent under Section 278 has robbed the respondent of the opportunity of exonerating himself would not seem sound.

We are unable to accept the suggestion of the learned counsel that an independent offence is constituted by Section 278, which is clearly without any independent penalty attached to it. Indeed, the fact that Section 277 is amplified by Section 278 is borne out by the form of words used in both as well as the linking together of Sections 277, 278 and 279 for the purpose of defining the terms “Poison” and “Poisonous matter” in Section 280 of the same code.

Learned counsel for the respondent finally submitted that in view of the youth of the offender who was only 23 years of age at the material time he would ask us to exercise our discretion by giving the respondent the option of a fine. We are in sympathy with this submission since the Senior Magistrate whose conviction of the accused on count 2 we are hereby restoring, could have given the lad the option of a fine instead of the 4 months’ imprisonment.

In the result, the appeal is allowed and the judgment of the High Court of Warri in No. W/3CA/73 delivered on July 5, 1973 is hereby set aside. In its place we restore the judgment of the Senior Magistrate Court at Bomadi delivered on June 29, 1972 but only in respect of ground 2, for which we substitute a fine of N100 for the 4 months’ term of imprisonment. And this shall be the judgment of the court.

Other Citation: (1974) LCN/1882(SC)