Isiaka Mumini V. Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The Appellant was tried for unlawful dealing in 10kg of cannabis sativa (Indian hemp). He pleaded guilty upon arraignment and was summarily convicted and sentenced to 2 years imprisonment by the Federal High Court (Coram: Faji, FJ.). His conviction and sentence, upon appeal to the Court of Appeal (the Lower Court) where the sole issue was about the jurisdiction of the trial Court, were affirmed by the Lower Court.
Jurisdiction of the trial Federal High Court is still the sole issue in this further appeal brought by the convict Appellant. For the Appellant the sole issue has been couched thus by his counsel –
Whether having cognizance of the charge preferred against the Appellant at the trial Court, the Court below was correct when it upheld the decision of the said trial Court that it was seised of the requisite jurisdiction to entertain the proceedings undertaken pursuant thereto
The charge, on which the proceedings culminating in the conviction and sentence of Appellant rested, reads thus –
That you, ISIAKA MUMINI, male, adult, on or about the 17th day of
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December, 2011, at Nungurme Village of Gwanara District in Baruten Local Government Area of Kwara State, within the jurisdiction of this Honourable Court, without lawful authority, dealt in 10 Kilogrammes of cannabis sativa (otherwise known as Indian Hemp), a drug similar to cocaine, Heroin, LSD etc and thereby committing an offence contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act Cap N30 of Law of the Federation of Nigeria, 2004.
At the Lower Court the Appellant, contending that the Federal High Court lacked the requisite jurisdiction to entertain the charge aforestated, argued that it is only the Magistrates Court that has been vested with jurisdiction, by virtue of Section 8(1) of the Indian Hemp Act to entertain the charge on which he was arraigned at the Federal High Court. Section 8(1) of the Indian Hemp Act provides –
8.(1). Every Magistrate in any part of Nigeria shall, NOTWITHSTANDING ANYTHING CONTAINED IN ANY ENACTMENT, have jurisdiction for the summary trial of any offence under Sections 4 -7 of this Act and may impose the Punishment provided by this Act for such an offence.
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It appears from Section 3(2) of the Indian Hemp Act that any person charged with an offence of either importing Indian Hemp or dealing in Indian Hemp by knowingly “selling any Indian Hemp” shall “be tried summarily by a single Judge of the High Court within whose jurisdiction the offence was committed”. The offence of dealing in or importing Indian Hemp under Section 3(2) of the Indian Hemp Act is clearly, by dint of Section 8(1) of the Act, not within the jurisdiction vested in the Magistrate’s Court. The offences within the jurisdiction of the Magistrate’s Court are those having to do with possession, selling and smoking, including being in possession of “any pipe or other utensil for use in connection with the smoking of Indian Hemp” or permitting, by the occupier, the use of any premises for the purpose of selling, preparing and/or the smoking of Indian Hemp. The offences under Sections 4-7 of the Indian Hemp Act are those in respect of which the Act vests jurisdiction in the Magistrate’s Courts to entertain. The jurisdiction is not stated expressly to be exclusive to the Magistrate’s Court. Thus, as what is not expressly prohibited is implicitly permitted;
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the jurisdiction of the High Court having not been expressly prohibited is by implication permitted.
Subsequent to the promulgation of the Indian Hemp Act, the Miscellaneous Offences Act, 1992 was promulgated. Section 1(15) of the Miscellaneous Offences Act, 1992 criminalized inter alia the importation, manufacture, processing, planting or growing of “the drug popularly known as cocaine, LSD, herein or any similar drug” and imposed, as punishment upon conviction, “imprisonment for life” for the offence. Section 1(1) of the Miscellaneous Offences Act, 1992 empowers the Federal High Court “to try any person for any of the offences specified under (the) Section and to impose the penalty relating thereto.
The National Drug Law Enforcement Agency Act Cap 30 LFN 2004 (NDLEA Act) was enacted subsequent to the Miscellaneous Offences Act, 1992. The provisions of Section 1(15) (a) (i) of the Miscellaneous Offences Act, 1992 and Section 11(c) of the NDLEA Act, 2004 are ipsima verba. The punishment for planting or growing, dealing in selling, buying or offering for sale of the drugs under Section 11 of the NDLEA Act, 2004 is “imprisonment for life “.<br< p=””
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The Appellant, as his counsel would though wishfully prefer, was not charged for any offence under the Indian Hemp Act. The charge expressly alleges that he committed the offence, he pleaded guilty to at the trial Federal High Court, created by or under the NDLEA Act, 2004.
Section 26(1) of the NDLEA Act, 2004 vests exclusive jurisdiction in the Federal High Court to try offences under the Act. The Appellant was charged for an offence under Section 11(c) of the NDLEA ACT, 2004. He was arraigned at the Federal High Court where he pleaded guilty to the charge.
The facts of this case are almost on at fours with the facts in OKEWU v. FRN (2012) 9 NWLR (Pt.1305) 327 (SC) on which the lower Court relied to resolve the issue of jurisdiction against the Appellant herein. While in the instant case the Appellant was charged for dealing in 10kg of canabis sativa, in OKEWU v FRN (supra) Mr. Okewu was charged for being in unlawful possession of 58 bags of (408kg) of cannabis sativa (Indian Hemp). Mr. Okewu upon arraignment, like the instant Appellant, also pleaded guilty to the charge read to him. A question arose in OKEWU v. FRN (supra) as to whether, from
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the phrase “any other similar drugs”, cannabis sativa (Indian Hemp) can be said to belong to the same class of cocaine, LSD, or Heroine. That is the same argument Mr. Omotoso, of counsel to the present Appellant, is raising in this appeal.
This Court relying on GODWIN CHUKWUMA (a.k.a. Goddy) v. FRN (2011) ALL FWLR (Pt.585) 231; (2011) 13 NWLR (Pt.1264) 391, which also was on all fours with OKEWU v. FRN (supra), held that Indian Hemp falls within the phrase any other similar drugs” used in the NDLEA Act, 1989; that marijuana, opium or morphine all belong to the same group of narcotic drugs which soothe, relieve or lull”, and that the words by smoking, used in Section 10(h) of the said NDLEA Act, obviously refer to Indian Hemp in the group as no one smokes cocaine, LSD or Heroine. It is clear from the opinion of Adekeye, JSC, in OKEWU V. FRN that this Court resorted to the ejusdem generis rule to construe provisions of Section 10(h) of the NDLEA Act (formerly Decree No.48) of 1989 (provision in pari materia with Section 11(c) of NDLEA Act 2004). According to the learned Jurist: this canon of
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statutory construction implies that where general words follow the enumerative particular classes of things, the general words will be construed as applying only to things of the same general class of those enumerated. After all, as Galadima, JSC, stated in OKEWU V. FRN (supra) at page 361; NDLEA Act 1989, particular Section 11(1)(b) thereof, prohibits the planting or cultivation of Indian Hemp because it constitutes a factor in the raw material used for processing of narcotic drugs.
The doctrine of stare decisis which persists in this Court, and indeed in common law jurisdictions, under the rule of precedent is that this Court is to abide by former precedents where the same points come again in litigation. It presupposes, in the words of Adekeye, JSC, in DINGYADI & ANOR V. INEC & ORS (2011) LPELR 950 (SC), that the law on the point has been solemnly declared and determined in a previous case. The Appellant has not asked that we depart from the decision in OKEWU v. FRN (supra). Accordingly, it does not lie in his mouth to say, arguing on the maxim expression unis est exclusio alterius, that Indian Hemp (cannabis sativa)
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does not belong to the category of narcotics listed in Section 11(c) of the NDLEA Act, 2004.
Stare decisis et non quela movera, which means standing by what has been decided and not to disturb and unsettle things already established, is a doctrine employed in adjudication to promote consistency and certainty in the law: ADIS ABABA V. ADEYEMI (1976) 12 SC 51 AT 58 59; ADESOKAN V. ADETUNJI (1994) 5 NWLR (P.345) 540 AT 577 578; CLEMENT V. IWUANYANWU (1989) 3 NWLR (Pt.107) 39. In my firm view, and contrary to the erroneous view of the Appellants counsel, the offence created in Section 11(c) of the NDLEA Act, 2004 includes unlawful dealing in cannabis sativa (otherwise known as Indian Hemp). This point was so solemnly declared in OKEWU v. FRN (supra) by this Court as the law contained in Section 10(h) of the NDLEA Act, 1989, in pari materia with Section 11(c) of the NDLEA Act,2004. Until this Court has been successfully moved to depart therefrom the law espoused in OKEWU v. FRN (supra) also remains the law as regards Section 11(c) of the NDLEA Act, 2004. For the records, and the purposes of stare decisis the phrase: the drugs
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popularly known as cocaine, LSD, Heroine or other similar drugs in Section 10(h) of the NDLEA Act, 1989 interpreted in OKEWU v. FRN (supra) are also repeated in Section 11(c) of NDLEA Act, 2004. Accordingly, I do not subscribe to the interpretation, different from that espoused in OKEWU v. FRN (supra), of the words and phrases that are ipssima verba in the 1989 and 2004 NDLEA Acts.
The learned Appellant’s counsel seems to argue that the Respondent ought not, from the facts, to have preferred the charge under Section 11(c) of the NDLEA Act, 2004. He argues that the only rational explanation for the omission of cannabis sativa from the provisions of Section 11(c) of the NDLEA Act under which the charge against the Appellant herein was preferred in the trial Court, was that same was the obvious intendment of excluding it from the offence created under that Section. He premised his argument on Section 20(1) (b) of the NDLEA Act which creates the separate offence of engaging in the cultivation of cannabis plant for the purpose of production of narcotic drugs. I think it has to be borne in mind that the choice of the charge to prefer against the
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accused person on a given set of facts is the prerogative of the prosecutor. Neither the Court nor the accused person can interfere with the prerogative of the prosecutor in this regard. From a line of cases, including YONGO v. COMMISSIONER OF POLICE (1992) 8 NWLR (Pt.257) 36; ALAKE v. THE STATE (1992) 9 NWLR (Pt.265) 260; CHIMA IJIOFFOR v. THE STATE (2001) 4 SC (Pt.II) 1; (2001) NWLR (Pt.718) 371, the Courts recognize and respect this prerogative of the prosecutor to prefer any charge from the facts at his disposal. Thus as Achike, JSC, stated in IJIOFFOR v. THE STATE (supra) the prosecutor’s –
prosecutorial responsibility is to establish (his) case beyond reasonable doubt in order to secure the conviction of the (accused person).
How he gets about discharging this is entirely his business. Under no circumstance will the accused person dictate to the prosecution what charge shall be preferred or what witness(es) shall be fielded against him in discharge of the prosecutor’s prosecutorial responsibilities.
My final word on the sole issue: whether in view of the information, the trial Federal High Court was seised of the requisite jurisdiction to
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entertain the charge preferred; I am of the firm view that Section 26(1) of the NDLEA Act, 2004 is very clear and unambiguous in its provisions that “the Federal High Court shall have exclusive jurisdiction to try offences under” the NDLEA Act. That jurisdiction is not shared with the Magistrate’s Court whether or not the charge is under Sections 11(c) or 20(1)(b) of the NDLEA Act, 2004.
The offence, that is dealing in 10kg of cannabis sativa (Indian Hemp) a narcotic drug similar to cocaine, heroine, or L.S.D. etc. contrary to and punishable under Section 11(c) of the NDLEA Act, 2004, is one directly within the jurisdiction expressly vested in the Federal High Court by the NDLEA Act, 2004.
I observe that it is not the contention of the Appellant, through his counsel, that he was misled by the charge. He cannot say that he was misled by the charge. He was represented by a counsel, Dolapo Asalu, Esq. when he pleaded guilty to the charge on 2nd February, 2012 at the Federal High Court, Ilorin. The learned counsel for the Appellant, as the accused person, did not raise any objection to the charge. The appropriate time to complain or object to a charge as
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drawn up, is at the time it is being read and before the plea: OKEWU v. FRN (supra) at page 353 per Ariwoola, JSC. Clearly, the sole issue in this further appeal is nothing but a belated preliminary objection, which by conduct the Appellant had waived at the trial Court.
The appeal lacks substance I do not have any hesitation dismissing it, and it is hereby dismissed in its entirety. The decision of the Court of Appeal affirming the conviction and sentence of the Appellant by the trial Court is hereby affirmed.
SC.472/2013
