Between
EGBELE AUSTIN EROMOSELE
and
FEDERAL REPUBLIC OF NIGERIA
JUDGMENT
(Delivered By CHINWE EUGENIA IYIZOBA, JCA)
The appellant and two others were arraigned in the lower court on an amended charge which read as follows:
COUNT ONE:
That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 manufactured an adulterated drug to wit: MY PIKIN BABY TEETHING MIXTURE AND YOU THEREBY COMMITED AN OFFENCE CONTRARY TO Section 1(a) of the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C34 Laws of the Federation of Nigeria, 2004 and punishable under Section 3 of the same Act.
COUNT TWO
That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 distributed an adulterated drug to wit: MY PIKIN BABY TEETHING MIXTURE to Roca Pharmacy of 34 Balogun Road, Agege, Lagos and you thereby committed an offence contrary to Section 1(a) of the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C34 Laws of the Federation of Nigeria, 2004 and punishable under Section 3 of the same Act.
COUNT THREE
That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 did conspire among yourselves to sell 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 and punishable under Section 1(18) (a)(ii); 1(18) (b)(ii) and 3 of the same Act.
COUNT FOUR:
That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the 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 and punishable under Section 1(18) (a)(ii); 1(18) (b)(ii) and 3 of the same Act.
COUNT FIVE:
That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 did conspire among yourselves to adulterate a drug to wit: MY PIKIN BABY TEETHING MIXTURE and you thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(18) (a) (i) and 3 of the same Act.
COUNT SIX:
That you Adeyemo Abiodun, Egbeie Austine Eromosele and Sarewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 adulterated a drug to wit: MY PIKIN BABY TEETHING MIXTURE so as to change materially the quality or efficacy of the same without notice to the purchasers, knowing that same will be sold as a drug and you thereby committed an offence contrary to Section 1(18) (a) (i) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(18) (a)(i) and 3 of the same Act.
Trial proceeded before Okeke J of the Federal High Court, Lagos Division. The Prosecution called seven witnesses. The Appellant as the 2nd accused person testified as DW1 and is the only witness for the Defence; exhibits were tendered and admitted in evidence. Final addresses were filed and duly adopted. In its judgment delivered on 17/05/13, the lower Court discharged and acquitted the Appellant and the two other accused persons on Counts 1, 2, 5 and 6 but convicted them on Counts 3 and 4. They were sentenced to seven years imprisonment on each of counts 3 and 4, the terms to run concurrently. The Court ordered that the assets of the 3rd accused Barewa Pharmaceuticals Ltd be wound up and forfeited to the Federal Government of Nigeria.
Dissatisfied with the judgment, the Appellant and his co-accused filed separate notices of appeal on 3/7/13. It is pertinent at this point to mention that judgment had earlier been delivered by this court in this appeal on the 31st day of December, 2013 coram S.D. Bage, S.J Ikyegh and Tijjani Abubakar JJCA affirming the judgment of the lower court. All the Appellants appealed to the Supreme Court. It turned out that the judgment was based on an abandoned Notice of Appeal filed on 26/6/13 instead of the valid Notice of Appeal filed on 3/7/13. The Supreme Court consequently declared the judgment a nullity and remitted the appeal back to this Court for hearing de novo on the valid Notice of Appeal filed on 3/7/13.
The Notice of appeal of 3/7/13 has 13 grounds of appeal. Briefs of argument were filed and exchanged. The Appellant's brief of argument da-fed and filed 5/7/13 was settled by O.E.L Ideh Esq. From the 13 grounds of appeal they distilled the following 7 issues for determination.
1.Whether the Appellant can be convicted in the absence of strict scientific evidence that the drug "My Pikin Baby Teething Mixture" was dangerous: Ground 10.
2.Whether the learned trial Judge was right in convicting the Appellant on the basis of unsubstantiated, unreliable and contradictory evidence. Grounds 3, 5, 6, 7 and 9
3.Whether the learned trial Judge was right in failing to consider and evaluate the evidence of the defence tendered by DWI. Grounds I and 2
4.Whether the learned trial Judge was right in failing to consider relevant evidence that could establish the innocence of the Appellants. Ground 4
5.Whether the iearned trial Judge was right in convicting and sentencing the Appellant upon a finding of failure to follow proper test procedures when the charge before the Court was for manufacture and sale of adulterated/dangerous drugs. Grounds 8,11, and 14
6.Whether there was any evidence of conspiracy to sell dangerous drugs. Ground 12
7.Whether the sentence of seven years imprisonment against the Appellant was justif ied in the circumstance of the case.Ground 13
The Respondent's brief of argument dated 28/10/13 and filed on 29/10/13 was settled by Charles Omosohwofa Esq of Chief Mike Ozekhome SAN's Chambers and therein they formulated three issues for determination as follows:
1.Whether the lower Court made a finding, based on scientific evidence that the drug "My Pikin Baby Teething Mixture" with Batch No 02008 was dangerous which therefore support the conviction of the appellants.
2.Whether the argument canvassed vis-a-vis the evidence adduced by the Respondent was not credible enough to support the conviction of the Appellants.
3.Whether the trial Court was right in convicting the 3rd Appellant and consequently ordering that it be wound up and its asset forfeited to the Federal Republic of Nigeria.
The Appellant's Reply brief is dated 7/11/13 and filed on 8/11/13.
At the hearing of the appeal on 13/4/16, O.E.L. Ideh Esq learned counsel for the appellant in adopting the Appellant's briefs urged the Court to allow the appeal while Chief Mike Ozekhome SAN for the Respondent in adopting the Respondent's brief urged us to dismiss the appeal.
I shall in the determination of this appeal adopt the Respondent's issues 1 and 2 and the Appellant's issue 7 as the 3rd issue. Respondent's issue 3 is not relevant in the instant appeal. The Appellant's issue one is basically same as the Respondent's issue one. Appellant's issues 2, 3, 4, 5 and 6 will be subsumed under the Respondent's issue 2. Appellant's issue 7 will be the 3rd issue.
APPELLANTS ARGUMENTS:
ISSUE ONE;
Whether the lower Court made a finding, based on scientific evidence that the drug "My Pikin Baby Teething Mixture" with Batch No 02008 was dangerous which therefore support the conviction of the appellants.
Learned counsel for the appellant on their issue one, relying on the cases of Adisa v. The State (1991)1 NWLR (Pt.168) 490 at 504. paras. G-H; 510. paras.B-O; Inspector-General of Police v. Oguntade (1971) 2 All N.L.R. 11; Yanor v. State CI965) NMLR 337 and Akinfe v. State (1988)3 NWLR (Pt.85) 729 submitted that the burden is on the Prosecution to prove the guilt of the accused person beyond reasonable doubt; that the burden does not shift and where there is any doubt in the evidential chain of proof as to the guilt of the accused person, the trial Judge is under a duty to hold that the Prosecution has not proved its case and to discharge and acquit the accused person. Counsel submitted that in the case of scientific evidence the task of the prosecution is even more onerous. He argued that the Prosecution must lead strict scientific evidence that the drug "My Pikin Baby Teething Mixture" was indeed dangerous as that is the offence with which the Appellant was charged; and that no other type of evidence; not even a confession will suffice. He relied on Federal Republic of Nigeria v. Daniel (2012) All FWLR (Pt. 627) 687.
Learned counsel further submitted that the Prosecution must establish an unbroken link in the chain beginning from the collection of the alleged offensive substance or article from the accused person's possession to the point of scientific/laboratory analysis and to the point of presenting the result of the analysis in Court. In other words, the Prosecution must guarantee the integrity of the entire process in order to secure a conviction. He cited Sunmola Ishola v. The State NMLR (1) 1969; CAW/25/67; Sunday Sosimi v. Commissioner of Police reported in (1975) (6/CCHCJ 881 at 883. Learned counsel submitted that the case against the Appellant (and other accused persons) was that the drug "My Pikin Baby Teething Mixture" (Batch 02008) manufactured by the accused persons, was adulterated/contaminated with Diethylene Glycol; the alleged adulterant and that the drug was dangerous. Counsel argued that in convicting the Appellant (and the other accused persons), the lower Court placed reliance on the evidence of PW4, PW5, PW6 and PW7 without analyzing same. He set out the evidence of PW4 and submitted that the testimony was fraught with legion of unexplained gaps and as such, most unreliable to use as a basis for the conviction of the accused persons on Counts 3 and 4 of the amended Charge. Counsel submitted that:
i. There was no evidence showing that what PW4 collected from "wholesalers around" was indeed what he had actually sold to them. The "wholesalers around" could probably have purchased the product from sources other than Roca Pharmacy Limited (PW4's company);
ii. Also, there was no scintilla of evidence as to the identity of these "wholesalers around" from whom PW4 had retrieved various Batches of "My Pikin Baby Teething Mixture"; their names, their addresses etc.
iii. More importantly, there was no Collection identification and sampling of the drugs against the "wholesalers around" to whom Roca had sold the drugs. In other words, PW4 could have collected any drug from anywhere and simply claimed that it was the same drug he sold to the "wholesalers around".
Counsel submitted that the Police was under a duty to investigate the chain between Roca Pharmacy and the "wholesalers around" and in return, between "wholesalers around" and Roca Pharmacy; and that the "wholesalers around" ought to have been called to give evidence of what Roca Pharmacy sold to them and what in turn Roca Pharmacy collected from them.
Counsel impugned the evidence of PW5 on the basis that he admitted that no investigation was carried out on receiving information about the death of some infants after taking the suspected adulterated product. Counsel contended that PW5 confirmed receiving the samples on 28/11/08 but the packaging and sampling was not done until 14/01/09; 44 days after the products were received without any explanation for the delay. This he submitted undermined the integrity of the entire process and raised doubt as to whether it is the same sample that was taken or collected from the accused person that was eventually analyzed.
Learned counsel complained that PW6 did not conduct the analysis himself and could not say how the product arrived in the laboratory of NAFDAC at Oshodi for further analysis. He contended that the evidence given by PW6 was hearsay as he admitted under cross-examination that he was not responsible for the conduct of the laboratory analysis but merely signed the laboratory report Exhibit T when it was forwarded to him for signing. Counsel submitted that one Adekunle Segun Olawale who conducted the analysis was not called to give evidence and no explanation was given for the failure to call him. He also found fault with the evidence of PW7 Anikoh Musa Ibrahim, an analyst in the Oshodi Laboratory of NAFDAC. He had confirmed the presence of a contaminant called Diethylene glycol in the sample of "My Pikin baby teething Mixture Syrup Batch 02008 but he was not sure as to who received the products in his laboratory and what was in fact received. Counsel submitted that this is a fundamental gap in the case of the prosecution. He further contended that the lower Court erred in law in finding the Appellant (and other accused persons) guilty on Counts 3 and 4 on the strength of the confirmation by the Appellant (2nd accused person) of the five cartons of My Pikin Baby Teething Mixture" (Batch 02008) recovered from Roca Pharmacy. Counsel submitted that the prosecution did not achieve even the minimum standard of proof that the drug "My Pikin Baby Teething Mixture" was dangerous and ought not to have convicted the appellant on counts 3 and 4.
ISSUE TWO:
Whether the argument canvassed vis-a-vis the evidence adduced by the Respondent was not credible enough to support the conviction of the Appellants.
On their issue two, whether the learned trial Judge was right in convicting the Appellants on the basis of unsubstantiated, unreliable and contradictory evidence, learned counsel pointed out the contradictions in the evidence of the prosecution witnesses and submitted that the learned trial Judge ought to have considered these contradictions and resolved same in favour of the Appellant. Counsel referred to the cases of Harb v F.R.N (2008) ALL FWLR (Pt 430) 705 and Ikemson v. State (1989) 3 NWLR (PL 110 455 at 466.
On issue three, whether the learned trial Judge was right in failing to consider and evaluate the evidence of the defence tendered by DWI. Counsel opined that the learned trial judge failed to consider and evaluate the evidence led by DWI; the only witness for the defence. He submitted that his lordship rather referred to and relied wholly upon the unsworn statement of DWI; which said statement; though tendered as Exhibit 01 by PW5 during his examination in chief, did not in itself offer evidence of its truth for the purpose of arriving at the conclusion reached by the learned trial Judge. Counsel referred to the case of Tegwonor v State (2008) 1 NWLR (Pt. 1069) 630 at 664 where the court held:
A trial court must review all the evidence before it. it is the totality of the evidence that has to be evaluated and assessed together. A trial court cannot pick and choose the evidence to be assessed. Thus a proper evaluation of evidence is absolutely important, for in order to determine a case and come to a just conclusion the trial Judge must assess and appraise all evidence before him."
Counsel submitted that the failure of the learned trial Judge to consider the evidence and evaluate same occasioned a grave miscarriage of justice.
On issue 4, whether the learned trial Judge was right in failing to consider relevant evidence that could establish the innocence of the Appellants, learned counsel submitted that the lower court failed to consider relevant evidence that could have disproved the guilt of the accused. For example, failure of PW2 to obtain and tender in evidence the report of the analysis of the sample of "My Pikin Baby Teething Mixture" which allegedly killed the child of one Njoku Chidi Bright; failure to consider the effect of the 44 days delay in conducting the sampling procedure on the suspected adulterated products already in the custody of NAFDAC; failure to consider the import of Exhibit CI & C2 (Certified True Copy of Punch Newspaper cut-out dated November 26th 2008. Learned counsel submitted that the learned trial Judge erred in finding the Appellant guilty on counts 3 & 4 when there was such a gaping hole in the investigation of the case.
On issue 5, learned counsel submitted that the lower court erred in convicting and sentencing the Appellant upon a finding of failure to follow proper test procedures when the charge before the Court was for manufacture and sale of adulterated/dangerous drugs. Counsel opined that the material charge before the Court (as in Counts 3 and 4 of the amended Charge) borders on conspiracy to sell and selling dangerous drug; and that the Appellant (and the other accused persons) were never charged with failing to follow test procedures or manufacturing below certain quality/standard. Counsel argued that the Charge upon which the plea of the Appellant (and the other accused persons) was taken and upon which they were tried is at variance with the offence of failing to follow test procedure or manufacturing drug below certain quality.
On their issue 6 whether there was any evidence of conspiracy to sell dangerous drugs, counsel submitted that in order to establish the offence of conspiracy, the apex Court held in numerous cases, Abdullah/' v. The State (2008)17 NWLR (Pt.1115)203 at 221, paras. F-H; Kaza v. The State (2008)7 NWLR (Pt. 1085)125, Ishola v. The State (1972)10 S. C. 63 at 76-77; Haruna v. The State (1972) 8-9 S.C. 174; Oladejo v. State (1994)6 NWLR (Pt. 348)101 at 127, 6badamosi & Others v. The State (1991)6 NWLR (Pt. 196)182 that it is the duty of the Prosecution to adduce evidence to establish the following ingredients:
i.An agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means; and
ii.That an illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality.
Counsel submitted that proof of conspiracy is generally a matter of inference. He opined that there was no evidence of complicity, or agreement between the Appellant and the other accused persons to sell dangerous drug to Roca Pharmacy or any other person. Counsel submitted that the learned trial Judge misdirected himself gravely in finding the accused persons guilty of conspiracy when the prosecution did not even attempt to lead evidence to show conspiracy.
On their issue 7, whether the sentence of seven years imprisonment against the Appellant was justified in the circumstance of the case, learned counsel submitted that even if the conviction of the appellant was valid, that the sentence of seven years imprisonment was excessive because the Appellant was a first time offender and the prosecution led no evidence to show that the Appellant had the mens rea to commit the offence. He posited that the learned trial Judge should have exercised his discretion judicially and judiciously to impose a lesser sentence rather than a sentence that was close to the maximum penalty of ten years imprisonment for each offence.
Counsel finally urged us to resolve all the issues in favour of the Appellant and reverse the decision of the lower Court with an order of discharge and acquittal.
RESPONDENTS ARGUMENTS:
On issue one, learned senior counsel for the Respondent submitted that some of the arguments and complaints by the Appellant are completely obtuse, inflated and totally unrelated to the issues as to whether scientific evidence was adduced to prove that the drug 'My Pikin batch 02008' was dangerous. He submitted that there was clear evidence based on the certificates emanating from NAFDAC laboratory report on test carried out on samples "of batch 02008 received from the -3rd Convict (Barewa Pharmaceutical Ltd) through the Establishment Inspectorate Department of NAFDAC (EID) on the 25th November 2008 that the sample was contaminated with the contaminant Diethylene Glycol.
Learned senior counsel referred to Sections 55 (1) and (2) Evidence Act, 2011 which allows the production of a certificate by certain Government officials to be taken as sufficient evidence of facts stated therein. Counsel submitted that it was established in evidence that the Appellants lacked the capacity to conduct the necessary tests to determine the wholesomeness of its raw material or its finished product. On the other hand, it was not in dispute that the Respondent has the capacity to conduct the test on the samples of "My Pikin" which on the basis of the findings reported on the certificate issued by the appropriate officers of the Respondent, showed conclusively that the product batch 02008 was contaminated with Diethylene Glycol. Counsel submitted that PW1 a qualified and registered pharmacist testified that Diethylene Glycol is very poisonous and that this piece of scientific evidence was never rebutted by the Appellants and DWI who is a Chemist and the Quality Assurance Officer of the Appellants at the time. Counsel further submitted that once it is shown that Diethylene Glycol is present in a drug as a contaminant; such drug is without more unwholesome and very dangerous as in the case with Batch 02008.
Learned senior counsel submitted that the Appellant and the two other accused persons, now convicts made statements and were present when samples were packaged and sent to the laboratory and that evidence was led by the Respondent to show the various tests that were carried out with results which culminated in the certificate issued and now relied upon. With the certificate having been tendered and admitted in evidence, the burden shifted to the Appellants to adduce evidence to discredit the certificate. Counsel submitted that they failed to discharge the evidential burden. Counsel urged us to resolve issue one in the Respondent's favour, and to hold that the Respondent has proved that My Pikin Baby Teething Mixture batch no. 02008 manufactured by the accused persons was adulterated/ contaminated and/or dangerous.
On issue 2, whether the evidence proffered by the respondent was credible enough to support the conviction of the Appellants and the other convicts, learned senior counsel for the Respondent submitted that the argument proffered by the Appellant as regards conflicts in the evidence of the prosecution witnesses is misconceived. Learned silk posited that it was clear from the evidence adduced that all the initial samples recovered by PW2 were sent to the Central Drug Control Laboratory of NAFDAC for test; and that there is evidence that the investigation was later handed over to the team of PW3 and PW5 together with the 5 cartoons of batch 02008 recovered from Roca Pharmacy. He submitted that PW5 testified that he received the 5 cartoons from the team of PW2 which was the correct position and PW3 said she dispatched one set of samples to PW5 to be kept as exhibit after handing over one set to the accused persons (convicts) and the third set forwarded to the laboratory. He submitted that PW2 did not say she sent the same sample to NAFDAC. Learned silk urged us to discountenance the alleged contradictions. He opined that if there are any contradictions at all, they are inconsequential and cannot affect the culpability of the Appellant. He cited in aid the case of DIBIE V. STATE (2007) 2 NCC 475 AT PAGE 495-496. RATIO 13.
On the allegation by the appellant that certain witnesses (receptionist who received the sample at Oshodi laboratory) were not called to give evidence, learned senior counsel submitted that there is no rule of law which imposes an obligation on the prosecution to call a host of witnesses; that all the prosecution is required to do is to call enough material witnesses to prove its case. He cited the cases of OOOFIN BELLO V. THE STATE (1966) 1
ALL NLR 223 AT 230; SAMUEL AOAJE V THE STATE (1979) 6-9 SC 18 AT PAGE 28; EO. OKONOFUA & ANOR V. THE STATE (1981) 6-7 SC. 1 AT 18; OGOALA V. THE STATE (1991)2 NWLR (PT. 175). 509 AT 527; NWAMBE V. STATE (1995) 3 NWLR (PT.384) pp V 40 7-408 PARAS. E-A.
On the Appellants contention that there are discrepancies in the witness statement of PW7 to the Police (exhibit V) and the certificate of laboratory analysis (exhibit U) on what was received (My Pikin Paracetamol Syrup) and the description of the product, Learned senior counsel submitted that these are insignificant discrepancies conceivable within the province of errors in human daily transactions. Counsel submitted that a thorough perusal of exhibits U and V and other evidence before the Court shows that PW7 was referring to My Pikin Baby Teething Mixture and that this was expatiated in his evidence-in chief. Counsel posited that it is common-place knowledge that it is only the same products manufactured by the same company that can share the same brand name, content, size, batch number and NAFDAC registration number and that the particulars disclosed in exhibit U by PW7 are the same as disclosed in exhibit T, save that exhibit T mentioned My Pikin Baby Teething Mixture. Counsel further submitted that it is a matter of fact that My Pikin is a brand name for teething drugs manufactured by Barewa pharmaceutical and that no other pharmaceutical company in Nigeria bears such name as testified to by the appellant as 2nd accused person during his cross-examination.
Counsel referring to the case of AKINBISAOE V. STATE (2007)2 NCC PAGES 76 AT 88 RATIO 3, submitted that the exhibits must be considered holistically in their entirety to decipher their real import and effect and not piecemeal as the Appellants did.
On issue 3, whether the sentence of seven years imprisonment imposed on the Appellant was justified in the circumstance of the case, counsel submitted that the issue of the imposition of a sentence within the bounds provided is purely within the discretionary power of the Court. Counsel argued that there is nowhere In the miscellaneous Offences Act where it is provided that the trial judge should impose a sentence below what the Act prescribed. He posited that the fact that the Appellant has not been convicted of any offence prior to that by the trial Court is not in itself, a requirement of the law for a derogation from the provision of law regarding a crime for which the Appellants has been found guilty by the trial Court. Counsel submitted that it is all within the discretion of the trial court and that the discretion must be exercised judicially and judiciously within the law.
On the conviction of the appellant on count 3 learned counsel submitted that the Respondent led evidence to show that the Appellant and his co-accused manufactured My Pikin Teething Mixture during the time they all knew they had no materials in their laboratory to guarantee the safety and/or quality of the product and also purchased unsafe Propylene Glycol from road side retailers despite their wealth of experience in drugs production and from such circumstantial evidence the Court rightly inferred conspiracy. Learned counsel urged the court in inferring conspiracy from the circumstances of this case, to lay particular emphasis on the findings of PW1 A 2 on their visit of 25th day of November, 2008, to the premises of the accused persons and the interrogations by PW3 as stated in both their oral testimonies and written statements (Exhibits E' & H) as well as the confessional statement of the 2nd accused person (Exhibit 01).
In respect of count 4, counsel submitted that the Respondent led evidence to prove beyond reasonable doubt that the Appellants sold My Pikin Baby Teething Mixture having changed materially the quality, substance or efficacy of the drug and/or rendered same dangerous or unfit by reason of the adulteration of the product. Learned senior counsel submitted that the Respondent succeeded in linking the accused persons with the six-count charge before the lower court. He submitted that the 1st accused person is the General Manager/Production Pharmacist of the 3rd accused person while the 2nd accused person is the Quality Assurance Manager for the 3rd accused person. He opined that the Appellant and his two co-accused are guilty of the offences for which they have been charged and convicted by reason of Section 3(2) of the Counterfeit and Fake Drugs and unwholesome Processed Foods (Miscellaneous provisions) Act Cap C34 Laws of the Federation of Nigeria 2004 as well as Sections 3 (l) of the Miscellaneous Offence Act, Cap. M17 LFN, 2004.
Counsel submitted that the prosecution proved its case beyond reasonable doubt. He submitted that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt relying on STATE V. ABIBANGBE (2007) 2 NCC 628 AT 687, RATIO 4 and OIBIE V. STATE (2007) 2 NWLR 475 AT PGS 495-496.
Learned senior counsel urged us to dismiss the appeal and uphold the judgment of the trial court which convicted the accused persons in counts 3 & 4,
RESOLUTION:
It is surely stating the obvious to say that the burden is on the Prosecution to prove the guilt of the accused person beyond reasonable doubt. In the instant case, the Prosecution must lead clear scientific evidence that the drug "My Pikin Baby Teething Mixture" was indeed dangerous; and that there was a conspiracy by the Appellant and his co-accused to sell the dangerous drug to Roca Pharmacy. Even where there is a confession by an accused person, it does not dispense with the requirement of scientific proof of the offence charged. See Ishola v. The State NMLR (1) 1969. As rightly submitted by learned senior counsel for the Respondent, proof beyond reasonable doubt does not however mean proof beyond the shadow of doubt. Learned counsel for the Appellant is also right that scientific proof means that the Prosecution must establish an unbroken link in the chain beginning from the collection of the alleged offensive substance or article from the accused person's possession to the point of scientific/laboratory analysis and to the point of presenting the result of the analysis in Court. The integrity of the entire process must be guaranteed. In Ishola v. The State NMLR (t) 1969 the court observed:
"it is of the utmost importance then that the plant found in the possession of an accused person is the actual one that has been analyzed by the Chemist. The prosecution therefore has a duty to prove that once the plant is taken from the possession of the accused, every possibility whatsoever of its being tampered with or its being substituted with another has been excluded. Once an opportunity exists for this, the chain snaps and a reasonable doubt would exist as to whether the plant that was taken from the possession of the accused is the one that has been analyzed...."
It must however be noted that the drug in question is the product of the 3rd accused, Barewa Pharmaceutical Ltd. The company alone manufactures products with the brand name "My Pikin" duly registered with NAFDAC. No other pharmaceutical company in Nigeria manufactures products bearing that brand name. The Appellant who gave evidence as DWI under cross-ex