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.

2. Whether from the facts and circumstances of the case the lower Court went beyond the scope of its jurisdiction to rely on the testimony of PW4 in reaching the conclusion that the products with the brand name Pikin’ were those manufactured by the 3rd Accused.
3. Whether the lower Court was right in imposing a fine of N1,000,000.00 (One Million Naira) on the Appellant, in the exercise of its discretion.
4. Whether the lower Court failed to consider the issues properly canvassed before it to have occasioned a miscarriage of justice.
5. Whether the lower Court erred in arriving at the conclusion that the unsworn statement of DW1 amounted to an admission of guilt.
6. Whether the lower Court was right 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 the same drugs.

Learned counsel for the Appellant prepared and filed a 26 pages reply brief

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on the 15th November 2017, and same was deemed filed on the 31st January, 2019.

The issues distilled by both parties for determination of this appeal are similar. It is the Appellant who is complaining against the judgment of the lower Court. It is therefore proper that I consider this appeal on the basis of the issues submitted by the Appellant as the aggrieved party. I will therefore adopt the issues formulated for the Appellant in the determination of this appeal. Before I do that, I will set out in brief, the facts of this case in the con of count 4 of the charge for which the Appellant stands convicted. This count reads as follows: –

“That you Adeyemo Abiodun, Egbele Austin Eromosele and Barewa Pharmaceutical Limited of 1 – 5 Olugbo Close, Shasha Road Akuwonjo, Lagos State within the jurisdiction of this 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 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.”

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The Appellant herein was the 3rd accused at the trial Court. It is a limited company licenced to produce drugs in Nigeria. The prosecution’s case is that it was involved in the manufacture, distribution and sale of “My Pikin Baby Teething Mixture in Nigeria”. That sometimes in 2008, the Chief Pharmacist of Ahmadu Bello University Zaria, by phone reported to Hauwa Keri, a Director of Establishment inspection, with National Agency for Food and Drugs Administration and Control (NAFDAC) that some children died after taking a syrup called My Pikin. Hauwa Keri in turn reported to the Director-General, NAFDAC, Professor Dora Akunyili who instructed her to carry out investigations. She set up a team made up of NAFDAC Inspectors who were able to retrieve the remnants of the syrup. Preliminary investigation showed that the drug that was common to all the children that died was “My Pikin”, and that all the children presented the same symptom of renal failure characterized by the inability to pass urine.

Remnants of the drugs were also collected from Lagos University Teaching Hospital and University College Hospital Ibadan. It was

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the initial result of the test that led NAFDAC to seal up the Appellant herein. At the end of its investigation, the case was transferred to the Department of Enforcement because the Appellant and its directors were involved in the illegal chemical marketing. By the language of the charge as reproduced in this judgment, the Appellant and the remaining accused persons were accused of selling dangerous drugs called “My Pikin” to Roca Pharmacy for distribution to the public knowing fully well that the quality of the drugs did not represent what they claimed it to be.

Section 1 (18) (a)(ii) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 under which the Appellant’s conviction and sentence of seven years imprisonment were affirmed by the lower Court, provides as follows: –

“Any person who deals in, sell, offers for sale or otherwise expose for sale any petroleum product, food, drink, drug, medical preparation or manufactured or proceeded product which is not of the quality, substance, nature or efficacy expected of the product or preparation, or is not of the quality of efficacy expected of the product or preparation, or is not

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of the quality, substance, nature or efficacy which the seller represents it to be, or has in anyway been rendered or has become noxious, dangerous or unfit, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding ten (10) years.”

For the prosecution to succeed in establishing the offence under the section referred to above, it must prove beyond reasonable doubt, the following ingredients: –

1. That the accused dealt in, sold, offered for sale or exposed for sale of any product, food, drink, drug, medical preparation or manufactured or processed mentioned in the section.
2. That the products so mentioned in 1 above are not of the quality substance, nature or efficacy which the accused presents them to be.
3. That the accused comprised in the manufacture and for processing those products.
4. That the products so manufactured or processed have been rendered noxious, dangerous or unfit for human’ use.

To secure a conviction, the prosecution needs to prove only one of the ingredients enumerated above. Count 4 of the charge under which the Appellant was convicted did not accuse the Appellant

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of manufacturing or processing of the drug, My Pikin. The 2nd, 3rd and 4th ingredients of the offence for which the Appellant was arraigned before the trial Court, as enumerated above are irrelevant in the circumstance of this appeal. The only relevant issue in this appeal is whether the Appellant sold or distributed drugs which were dangerous to the public for public consumption

The Respondent neither cross appealed against the decision of the trial Court when it discharged the Appellant from all other charges except counts 3 and 4, nor did it appeal against the decision of the lower Court. The narrow issue left for this Court to determine is whether the lower Court was right when it affirmed the Appellant’s conviction on count four (4) of the charge.

On the first issue for determination of this appeal, learned counsel’s quarrel is against the finding of the lower Court at pages 788 of the printed record of this appeal where it held thus: –

“I read carefully the cross examination of PW1 which is at pages 140 to 151 of the printed record. Her evidence was unchallenged. The genesis of the problems of the Appellant and his co-accused are

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consequently as set out in the evidence of PW1. With that background information we can now go on to consider whether the finding of fact by the lower court that the drug My Pikin Baby Teething Mixture batch 02008 was indeed dangerous can be faulted.”

According to the learned counsel, the lower Court fell into a grave error in relying on the evidence of PW1 in considering the decision of the trial Court when the trial Court declined to rely on the evidence of PW1 in arriving at its decision. It is learned counsel’s contention that the lower Court’s reliance on the evidence that was, not relied upon by the trial Court was a new issue which was raised by the lower Court suo motu and parties were required to address the Court on the new issue. In aid learned counsel cited Bhojsons Plc vs Daniel Kalio (2006) 5 NWLR Pt 973 330 at 351; Aermacchi SPA vs A.I.C Ltd (1986) 2 NWLR (Pt.23) 443 at 449; Kuti vs Balogun (1978) 1 SC 53 at 60; Iriri vs Erhurhobara (1991) 2 NWLR (Pt. 173) 252 at 265; Ndiwe vs Okocha 1992 7 NWLR (Pt.252) 129 at 139; Iyaji vs Eyigebe (1987) NWLR (pt. 61) 523; Victino Fixed Odds Ltd vs Ojo (2010) 8 NWLR (Pt. 1197) 487.

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Finally learned counsel urged this Court to hold that the Appellant was denied fair hearing by the lower Court, when it was not invited to address the Court on its reliance on the evidence of PW1.

In reply, learned senior counsel for the Respondent submitted that there was no reliance on other grounds by the lower Court in affirming the conviction of the Appellant for the sale of dangerous drugs other than those contained in the judgment of the trial Court. Learned senior counsel on the authorities of Ado Ibrahim & Company Ltd vs Bendel Cement Co. Ltd (2007) 7 LPELR 188 (SC) and Estisione Nig. Ltd & Anor vs Osun State Government & Anor (2012) LPELR 7938(CA) submitted that the evidence of PW1 was part of the record of the lower Court and as such it was entitled to look into its record and make use of any document it considers relevant in determining the issue before it.

The reply brief is a repeat of the Appellant’s argument in his brief of argument. It is therefore needless to consider it as the essence of a reply brief is to give the appellant an opportunity to react to new issues in the Respondent’s brief of argument.

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I wish to start by saying that there is nowhere in the judgment of the lower Court where reliance was placed on the evidence of PW1 in considering the findings/decision of the trial Court. The lower Court merely stated that the evidence of PW1 was unchallenged and it was a background information to the problems of the appellant. This comment did not amount to placing reliance on the evidence of PW1. The fact that the lower Court made reference to the evidence of PW1 is part of its responsibility to look into any document in its record in order to support established facts. The lower Court’s consideration as to whether the finding of fact by the trial Court that the drug, “My Pikin Baby Teething Mixture batch 02008” was indeed dangerous was based on the lower Court’s assessment of the evidence of PW4, PW5, PW6 and PW7. This is clearly demonstrated in the judgment of the lower Court at page 788 of the record in the following words:-

“With that background information we can now go on to consider whether the finding of fact by the lower court, that the drug “My Pikin Teething Mixture batch 02008 was indeed dangerous can be faulted. It was argued for the Appellant that the lower

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Court in convicting the Appellant on count 3 and 4 relied on the evidence of PW4, PW5, PW6 and PW7 when their evidence failed to meet the required scientific standard for such conviction.”

The testimonies of PW4-PW7 were reproduced and after a thorough consideration, the lower Court came to conclusion that the sample of batch 02008 of the drug “My Pikin Teething Mixture,” was contaminated with the contaminant Diethylene Glycol. I therefore agree with learned senior counsel for the Respondent that there was no reliance on other grounds or the evidence of PW1 by the lower Court in affirming the conviction of the Appellant for sale of dangerous drugs other than those contained in the judgment of the lower Court and the issues raised before it.

The lower Court was entitled to look into any document in its record and make use of it in order to arrive at a just decision. When a document is in the record of the Court, it cannot be a new issue on which a judge is precluded from looking at. This Court has in a number of decided cases held that a Court of law is entitled to look into its record and make use of any document it considers relevant in

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determining issues before it. See Fumudoh vs Aboro (1991) 9 NWLR (Pt. 214) 2010 at 229; Agbareh & Anor vs Mimra & 2 Ors (2008) 2 NWLR (Pt. 1011) 378 at 411 – 412; Badejo vs Minister of Education (1996) 9 -10 SCNJ 51.

The pagination of the record of appeal is so disjointed. The testimony of PW1 is found at pages 134 -151. It is therefore part of the record of appeal and the lower Court only made use of it to support the fact of the case. The first issue is accordingly resolved against the Appellant. The 1st, 2nd, 3rd and 16th grounds of appeal upon which the issue is formulated are hereby dismissed.

The 2nd issue is 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 Appellant, thereby occasioning a miscarriage of justice. In arguing this issue, learned counsel for the Appellant made reference to several extracts from the judgment of the lower Court and concluded as follows:-

(1) That the lower Court acted as a trial Court.

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(2) That the lower Court misdirected itself with respect to Exhibit M, which was a letter written by the Appellant in which it instructed Roca Pharmacy to stop the sale of My Pikin Baby Teething Mixture.

(3) That the lower Court’s finding that the Appellant did not deny manufacturing and sale of the drug runs contrary to the record of appeal, where the trial Court never considered the evidence of DW1.

(4) That the lower Court had erred first of all in speculating and affirming the integrity of the products retrieved from “wholesalers around” in the absence of any pronouncement or finding to that effect by the learned trial judge.

(5) That there was mistaken identity of ‘My Pikin’.

(6) That the holding of the Court that the accused persons did not present their own set of drug sample to contradict or disprove the authenticity and accuracy of Exhibit R is contrary to the records before it.

Finally on this issue learned counsel submitted that the learned justices of the Court of Appeal failed to avert their minds to the fact that they are bound by the records of appeal, and where an issue was not in contest between the parties at the lower Court, the Appellate

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Court cannot open a new issue in its judgment, particularly where the parties were not given an opportunity to address the Court on such issue.

The passages quoted by learned counsel for the Appellant have to do with the analysis of the evidence of PW4, where the lower Court made the following observations at pages 789 – 790 of the record as follows: –

“Five cartons of batch 02008 were amongst the drugs retrieved by PW4 from wholesalers around to whom they had supplied the drug. It is obviously unlikely that PW4 will collect what he did not supply, and equally unlikely that the wholesalers would release to PW4 goods not purchased from him. There is no reason for a trader to offer up to PW4 drugs not purchased from PW4. The company alone manufactures products with the brand name no other pharmaceutical company in Nigeria manufactures products bearing that brand name.

The identities of the wholesalers and individual sampling of what was retrieved from them are consequently irrelevant under the circumstances.”

These are the passages which learned counsel for the Appellant accused the lower Court of acting as a trial Court and delved

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into needless speculation. I do not agree with the learned counsel that the lower Court went beyond the scope of its jurisdiction. By Section 15 of the Court of Appeal Act, the lower Court had full jurisdiction over the whole proceedings in this matter as if the proceedings had been instituted before it as a Court of first instance, and by doing so, a conclusion arrived at on the strength of the evidence before the trial Court, cannot be said to be a new case. In the course of evaluation of evidence, a Court of law is entitled to make deductions from the evidence before the Court which deduction may result in conclusions based on proper appraisal of that evidence. Where deductions are based on the evidence before the trial Court by the lower Court this Court has no reasons to interfere with such deductions. See Cyracus Nnadozie & Ors vs Nze Ogbunelu Mbagwu (2008) 3 NWLR (Pt.1074) 363 at 387.

The deduction by the lower Court that PW4 could only collect what he had supplied to the distributors accord with common sense and was based on the evidence before the Court. I am therefore of the firm view that the lower Court was right in its pronouncements as

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highlighted at pages 788 – 789 of the record.

On Exhibit M, the fact that the Appellant had given instruction through Exhibit M for the withdrawal of the drug “My Pikin” is a clear admission that there was something wrong with the drug. The inference by the lower Court to that effect was well founded as the letter Exhibit M was written and dispatched before the instruction from PW2.

The contradiction highlighted in the testimony of PW7 and the actual drug that was presented for analysis is human. In absence of any discrepancies in the testimonies of witnesses it will be presumed that the witnesses are tutored to give such evidence.

For such contradiction to affect the credibility of a case, it must be shown that it is weighty and same has occasioned a miscarriage of justice. The overwhelming evidence has clearly shown that the drug that was packaged and sent for analysis was “My Pikin Teething Mixture.” Learned counsel in presentation of the appellant’s case seem to rely on pieces of extracts from the decision of the lower Court. I am of the firm view that the procedure adopted by the learned counsel cannot help his client. The case before

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the trial Court that has rolled up to this Court is that the Appellant sold drug that was dangerous for public consumption. No amount of hiding under legal technicality, by finding fault with the discrepancies in the procedure before the lower Court can change the course of this case. The dictates of justice demand that the guilty be punished and the innocent be set free after a fair hearing under procedural regularity which does not permit the acquittal of an otherwise guilty person upon fanciful errors contained in the proceedings. The law always aims at substantial justice. The Court is more interested in substance than in form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice. See Ogbomor vs State (1985) 1 NWLR (Pt. 2) 223; State vs Gonto (1983) 1 SCNLR 142; Bature vs State (1994) 1 NWLR Pt. 320 267. State vs Salawu (2011) 1 NWLR (Pt. 1279.

Finally on this issue, the overwhelming evidence before the trial Court showed that the drug “MY Pikin Teething Mixture” is a product manufactured by the Appellant.

The responsibility to establish that other companies or individuals can share in

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the brand name of the drug rested with the Appellant and its co-accused. Appellant’s failure to do so, had removed any unwarranted speculation that the drug received at NAFDAC laboratory was a counterfeited version of the Appellant’s product. I am also of the view that the lower Court never made a case for the parties. The 2nd issue is therefore resolved against the Appellant and in favour of the Respondent.

The next issue I wish to consider is the 6th issue for determination of this appeal. Learned counsel for the appellant submitted that the appellant and the other persons that were charged along with it had no intention to sell dangerous drug to the public. According to the learned counsel for an accused to be found liable under Section 1 (18) (a)(ii) of the Miscellaneous Offences Act it must be shown that he intended to commit the offences enumerated under that section.

In reply, learned senior counsel for the Respondent enumerated the ingredients of the offence for which the appellant was charged, tried and convicted and submitted that intention to sell the drug, subject matter of this case is not an ingredient of the substantive offence for

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which the Appellant was convicted. The three ingredients as enumerated by learned counsel are: –

1. Proof that the drug was contaminated.
2. Proof that the Appellant sold the adulterated drug.
3. Proof that the product is not of the quality, expected of the producer or is not of the quality, substance, nature or efficacy which the seller represents it to be, or has in any way been rendered or has become noxious, dangerous or unfit.

It is learned senior counsel’s contention that the prosecution has proved all the ingredients of the offence and the lower Court was right when it affirmed the decision of the trial Court with respect to the charge of selling dangerous drug to the public. Learned senior counsel urged this Court to dismiss the appeal.

The evidence before the trial Court clearly shows that the Appellant did sell the drug “My Pikin Teething Mixture” to Roca Pharmacy for consumption by the public. Laboratory analysis shows that the drug contained Diethylene Gloycol which according to expert is dangerous.

Laboratory analysis were carried out by PW6 and PW7 who gave their qualifications and their pieces of evidence were

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believed by the learned trial Judge and such belief was confirmed by the lower Court. PW6 and PW7 were called as expert witnesses. An expert is a person who is especially skilled in the field in which he is giving evidence, and whether or not a witness can be regarded as an expert is a question of law for the judge to decide.

Expert opinion is only necessary where the expert can furnish the Court with scientific or other information of a technical nature that is likely to be outside the experience and knowledge of the Judge. The evidence of PW6 and PW7 is very clear. The drug, My Pikin Teething Mixture is dangerous.

In selling the drug to Roca Pharmacy, was the Appellant under any duty of care at all to observe the quality of the product it was selling If it was under a duty of care did it observe the standard required in the circumstances of the case. Was there evidence of trial of the drug before releasing same to the public for consumption In the instant case the Appellant’s failure to state the kind of precautions it took to avoid selling contaminated drug to Roca Pharmacy amount to a breach of duty: The Appellant has failed to show that he had no

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intention to sell adulterated drug for public consumption.

Learned counsel for the Appellant cited Section 1 (18) (b)(i) of the Miscellaneous Offences Act and submitted that there was no proof that the Appellant had any intention to sell adulterated drugs to the public. Section 1(18)(b)(i) of the Act provides as follows: –

“Whenever any person is charged under the preceding paragraph (a)(ii), it shall be a defence if he can establish that he did not know or had no reason to know or believe that the petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product has been adulterated or otherwise rendered noxious dangerous or unfit”.

Intention is defined by the Black’s Law Dictionary 6th Edition as a determination to act in a certain way or to do a certain thing. A state of mind in which a person seeks to accomplish a given result through a course of action. Intention therefore is a mental attitude which can seldom be proved by direct evidence but can be proved by circumstances from which it may be inferred. Section 1 (18) (b)(i) of the Act places the burden of proof of lack of intention on the person that

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is charged with the offence. The Appellant throughout has failed to show that it had no intention to sell adulterated drug to Roca Pharmacy for public consumption. The lower Court in my view rightly upheld the decision of the trial Court on the grounds that the prosecution proved its case beyond reasonable doubt. This issue is resolved in favour of the Respondent and against the Appellant.

On issue three, learned counsel for the Appellant’s quarrel is that the sentence imposed on the Appellant is excessive. According to the learned counsel, the facts on record clearly show: –

1. There were no wholly exceptional circumstances demanding the imposition of excessive fine of One Million Naira. (N1,000,000.00) on the Appellant.
2. There were substantial mitigating circumstances which ought to, but which appeared not to have been taken into consideration in the exercise of the Court’s discretion.

Learned counsel insists that the discharge of the Appellant by the trial Court and the Court of Appeal from more serious charges of manufacturing the drug My Pikin and causing death, is enough mitigating factor that would have brought about the

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imposition of a minimal fine or none at all. In Omokuwajo vs FRN (2013) LPELR 20184 which was cited and relied upon by learned counsel for the Respondent, this Court said: –

…the general rule is that sentencing is a matter completely at the discretion of the trial Court provided the discretion is exercised judicially and judiciously within the law.

An appellate Court consequently will not interfere with the exercise of discretion by the lower Court unless the sentence imposed is manifestly excessive in the circumstances or wrong in principle.”

The charge for which the Appellant was convicted carries a sentence of not more than 10 years. The trial Court imposed a sentence of fine of One Million Naira (N1,000,000.00), because the Appellant is a juristic person, as it is not a human being that can serve a sentence of imprisonment. A fine of One Million Naira (N1,000,000.00) in my view is not excessive, considering the fact that the order for winding up and forfeiture of the Appellant’s assets had been adjudged wrong and consequently set aside.

The law is settled that where the decision of a lower Court is substantially

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based on the exercise of discretion, this Court will not interfere unless the lower Court failed to exercise its discretion judiciously and judicially.

In the instant case, the exercise of lower Court’s discretion with regard to the sentence it passed was neither frivolous nor arbitrary. Since discretion is always unfettered, this Court cannot take steps to fetter such discretion, except for good and substantial reasons. See ACME Builders Ltd vs K.S.W.B (1999) 2 NWLR (Pt. 590) 288; Chigbu vs Tonimas (Nig) Ltd (1999) 3 NWLR (Pt. 593) 115; University of Lagos vs Olaniyan (NO.1) 1985 1 NWLR (Pt. 1) 156; Hamza vs Kure (2010) 10 NWLR (Pt. 1203) 630. For the reasons I have alluded to herein, I decline to interfere with the sentence imposed on the appellant.

Having convicted the Appellant on count 4, it is natural that the next stage is punishment. The fine imposed on the Appellant flowed from the judgment and it is in accordance with due process. The 3rd issue is resolved against the Appellant. Issues 4 and 5 have been subsumed into my consideration of other issues and I do not need to repeat myself.

Having resolved the vital issues against the

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Appellant, this appeal shall be and it is hereby dismissed. The judgment of the lower Court is hereby affirmed.

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SC.530/2016