Joseph Daniel V. Federal Republic Of Nigeria (2015)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Lagos division delivered on the 18th day of January, 2011 by the Hon Justice Saulawa, JCA.

The appellant had been arraigned on 14/05/2008 before the trial Federal High Court, Lagos Judicial Division, holden at Lagos, charged as follows:-

“That you JOSEPH DANIEL Male on or about the 4th day of December, 2007 at No.21 Otun Street, Waterside, Kirikiri, Lagos without lawful authority dealt in 2.6 kilogrammes of Indian hemp otherwise known as Cannabis Sativa, a drug similar to Cocaine, Heroine, LSD and you thereby committed an offence contrary to and punishable under Section 10(c) of the National Drug Law Enforcement Agency Act, Cap. 253, Laws of the Federation of Nigeria, 1990.”

The charge was read to the accused in the presence of both Counsel – Mrs F. N. Ajagu for the prosecution and Mrs Lilian Omotunde for the accused. The accused pleaded guilty to the charge and the prosecutor proceeded with the facts. She tendered various documents including the Statement of the accused and the recovered substance. They were admitted by the court and marked as Exhibits A, B, C, D, E, F and G respectively.

However, after admitting the documents and materials tendered by the prosecution, the trial Judge ruled that there being no search warrant for the search which was conducted in the accused person’s house, the said search was unconstitutional and therefore the recovered substance cannot be used against the accused. The charge was dismissed with a consequential order that the recovered substance be destroyed by burning, and the accused was accordingly discharged.

The prosecution was dissatisfied with the decision of the trial court hence proceeded with an appeal on four grounds. Both parties filed and exchanged briefs of argument. In its reserved considered judgment, the Court of Appeal allowed the appeal by setting aside the decision of the trial Federal High Court. Accordingly, the case was remitted to the Chief Judge of the Federal High Court, Federal Capital Territory, Abuja for reassignment to another Judge of the Court for trial on merits de novo.

The decision of the Court of Appeal did not go down well with the respondent, and that led to the instant appeal via a Notice of Appeal which was filed on 24/7/2012 upon three Grounds of Appeal, sequel to the leave of court granted to enable the appellant appeal out of time against the said judgment on 5th October, 2011. Briefs of argument were later filed and exchanged by both parties.

In the appellant’s brief of argument which was settled by Emeka Okpoko, Esq. the following sole issue was formulated by the appellant from the three grounds of appeal contained in the Notice of appeal.

Issue for determination

“Whether the Court of appeal was right in declining to make a determination on the Issue of discretion provided under Section 218 of the Criminal Procedure Act not to convict if there shall appear sufficient cause to the contrary and thereby occasioned a miscarriage of justice.”

In its own brief of argument which was settled by Andrew C Igboekwe, Esq. the following sole issue was distilled by the respondent from the three grounds of appeal earlier filed by the appellant.

“Whether from the facts and circumstances of this case, the Court of Appeal was right in not taking a decision on the issue of discretion provided under Section 218 of the Criminal Procedure Act.”

There is no doubt, that both sole issues of the appellant and respondent respectively were distilled from only ground three (3) of the three grounds of appeal earlier filed by the appellant. Each party has merely couched his and its issue differently but saying the same thing.