by Legalnaija | Feb 2, 2022 | Uncategorized
Every lawyer before the appellate court craves for a consensus from the judges in the panel, this is the norm and dissent is a departure from what is conceived to be the norm. Dissent is not a concept unique only to the legal system, it is part of our daily lives which is why the famous writer Mark Twain said:
“Whenever you find yourself on the side of the majority, it is time to pause and reflect.”
I have on few occasions witnessed the delivery of dissenting judgments and though I am not in agreement with all of them yet I admire the courage to dissent even in the face of probably offending colleagues and those who expect a consensus judgment.
This topic of dissent has always been an enigma to me and as I set on this journey to research on how far and how much our appellate courts have embraced it, I shall first endeavor to address the views of distinguished authors on dissenting judgments.
Former Chief Justice of the United States of America Harlan F. Stone in a letter to the Columbia University in 1928 described dissent in the following manner:
“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error in which the dissenting judge believes the court to have been betrayed
Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognised than that unanimity should be secured through its sacrifice.[2]”[Emphasis Mine]
I agree with the Learned Chief Justice and as I have seen in cases with dissenting judgment, the dissent points out to the losing party that the judgment may be an error and may be worth another try in a higher court and if not possible, hope that the law will change in the future to reflect the dissent as held by the dissenting judge. A consensus does not give that hope.
Louis Blom-Cooper and Gavin Drewry in their 1972 article Final Appeal – ‘A study of the House of Lords in its judicial capacity’[3] described dissent of a final appeal as:
“the most apparently poignant judicial tragedy in a legal system founded upon the dramatic conventions of certainty and unanimity”.
A strong condemnation indeed, certainly from advocates of unanimity but I do not agree with the view that a dissent signals a judicial tragedy. Their views may seem to my mind to be nothing short of an endorsement of the herd mentality.
Justice White in the American Supreme Court case of Pollocks v Farmers Loan and Trust Co. (1895)[4] said:
“[the] only purpose which an elaborate dissent can accomplish, if any, is to weaken the effect of the opinion of the majority, and thus engender want of confidence in the conclusion of courts of last resort”.
In the case of Liversidge v Anderson and another [1942][5], the majority of the Law Lords gave a judgment by applying a subjective interpretation to the Defence (General) Regulations 1939 thus allowing the Secretary of State to exercise broad powers by detaining anyone he reasonably believes to be a threat to national security.
Lord Aitkin disagreed and he gave us what we now have as the most popular dissenting judgment in the commonwealth legal system in the following words:
“I view with apprehension the attitude of judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive. Their function is to give words their natural meaning, not, perhaps, in war time, leaning towards liberty…’ in a case in which the liberty of the subject is concerned, we ‘cannot go beyond the natural construction of the Statute.
In this country amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of Kings Bench in the time of Charles I.
I protest, even if I do it alone, against a strained construction put upon words with the effect of giving an uncontrolled power of imprisonment to the Minister. To recapitulate. The words have only one meaning: they are used with that meaning in statements of the common law and in statutes; they have never been used in the sense now imputed to them: they are used in the defence regulations in the natural meaning: and when it is intended to express the meaning now imputed to them, different and apt words are used in the defence regulations generally and in this regulation in particular.” {Emphasis Mine]
Not swayed by popular opinion or by the persuasion of those who have read his draft[6] and armed with the breastplate of independence, he delivered a dissenting judgment believing he was doing the right thing.
He was justified 38 years later, confirming the words of Chief Justice Stone with regards to the hope that someday in the future a later decision may correct the error of the law as the dissenting judge may have opined.
Lord Diplock delivering the judgment in Inland Revenue Commission v Rossminister & Others (1980)[7] said:
“For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.” [Emphasis added]
For some practitioners, there is no need to bother with dissenting judgments but I believe a better approach is to read the judgments as a whole and to form your views on the opinion of the Learned Justices. Every Practitioner will understand the beauty of this advice when faced with the dilemma in the case of The Estate of Khalilu Jabbie v Skye Bank (SL) Ltd MIsc. App 45/2014 SLCA (unreported)[8].
I am sure many will agree with me that our present legal system is in desperate need of dissenting judgments. Has that been the case? Have we had enough such dissents to qualify the system to be reflective of judicial independence, freedom of expression and a transparent decision-making process? These are all the questions I might provide answers to in the succeeding parts of this article for we must all agree that the right to disagree is a right that brooks no dissent.
In the words of Justice Ginsburg of the US Supreme Court who is known to have written few dissents in a 2009 speech said:
“My experience teaches that there is nothing better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation.”
Bernard Eldred Jones Esq is a Barrister and Solicitor in Sierra Leone. He holds a Master of Laws in Banking and Finance Law (UOL), Post Graduate Diploma In Commercial and Corporate Law, Bachelor of Social Sciences specializing in Economics from Fourah Bay College University of Sierra Leone and Bachelor of Laws (LLB) Hons (London)
He was called to the Sierra Leone Bar in 2009. He is a private practitioner.
by Legalnaija | Jan 20, 2022 | Uncategorized
On 15th March 2011, one Ifeanyi Blessing was arrested at a motor park in the village of Ojo- gbonro Kanbi in Ilorin East Local Government Area of Kwara State with a bag containing dried weed suspected to be Cannabis sativa. On 21st March 2011, Ifeanyi Blessing was arraigned before the Federal High Court, Ilorin on a three-count charge for unlawfully dealing with 2.4 kilograms of Indian Hemp and unlawful possession of 15.4 kilograms of Indian Hemp. She pleaded not guilty to each count. The Trial Court, in its judgment, discharged and acquitted Ifeanyi Blessing on Counts 1 and 3 which bordered on unlawfully dealing in Indian Hemp but was found guilty on Count 2 which bordered on unlawful possession of the substance and sentenced to fifteen (15) years imprisonment. This decision was upheld by both the Court of Appeal and the Supreme Court.[1]
The presence of the British in Nigeria for centuries has left an indelible mark on our legislative and judicial system. Nigeria’s legal framework has a long history, dating back to the British colonization of the nation in the early 1900s when Nigeria became a British Protectorate. During this period, they promulgated laws and established correctional facilities and mediums based on their judicial system. The Received English law is made up of rules of Common Law, Doctrines of Equity and Statutes of General Application. Enactments, such as the Wills Act of 1837, Fatal Accident Act of 1864, among others, are examples of Statutes of General Application.
The British colonial administration did not consider the Nigerian social, cultural and economic background before imposing their laws on the Nation. After independence, the composition of the Nigerian legislature became fully indigenuous and the expectation was that the legislature would review received foreign laws and enact laws to reflect the realities of the Nigerian society.
It is worthy of note that one of the key attributes of a good law is that it must be dynamic and evolve to meet the growing and emerging curves in human civilization and cross-interaction. Hence, it is expected that Nigerian laws would similarly grow with time, and reflect international best practices. The United States of America for example, being a former colony of the United Kingdom themselves, has taken steps over the years to improve and change its laws to reflect its realities and represent international best practices.
In the 20th Century, it was believed that undesirable behaviours could be eliminated by rigorous law enforcement. This led to the criminalization of some personal behaviours including some sexual practices, gambling, gun possession, and the use of alcohol and drugs which were previously beyond the reach of the law; the most noteworthy example being the prohibition of alcoholic beverages in the United States from 1919 to 1933. However, starting from the 21st Century, the bans on these activities were lifted, and most of them were decriminalised.
In 1937, through the Marijuana Tax Act, Cannabis production was prohibited in the United States of America[2]. However, today, 16 States, including Washington D.C have legalised the use of Marijuana for adults, while 36 States have legalised its medical use[3]. This change was influenced by the prevalence of its use in America and globally.[4]
This article focuses on the laws regulating or rather, criminalising the cultivation and processing of Cannabis in Nigeria. It interrogates Nigeria’s legislative growth regarding drugs, particularly Cannabis, and questions whether there is need for a change in the way we approach the topic. It ends by highlighting the costs of these laws, considering the human capital and potential economic activities involved.
2.0 THE LEGAL FRAMEWORK FOR CANNABIS REGULATION IN NIGERIA
British colonial authorities engaged in small-scale Cannabis cultivation from as early as the 1930s[5] in their colonies, including Nigeria, whilst its cultivation, use, processing and importation had been banned in the United Kingdom by virtue of the Dangerous Drugs Act of 1926 that included Cannabis as a dangerous drug[6]. In 1935, the Dangerous Drugs Act came to force in Nigeria, criminalising the use of Cannabis in Nigeria.
Nigeria’s current laws, both received and enacted after independence, criminalize the possession, transaction, and use of Cannabis. Some of the laws expressly addressing this under Nigerian law include:
- The National Drug Law Enforcement Agency Act, Cap N30 Laws of the Federation, 2004. (“NDLEA Act”).
Section 11 of the NDLEA Act provides for the offence of production, processing, sale, and importation of hard drugs, which includes Cannabis. It also provides that upon conviction, the accused person is liable to be sentenced to life imprisonment.
The section also provides for the offence of possession and the use of Cannabis. The accused person upon conviction is liable to imprisonment for a term not less than fifteen years but not exceeding twenty-five years.
Furthermore, Section 19 of the NDLEA Act states that anybody in possession of Cannabis without valid permission is guilty of an offence under the Act and faces a penalty of imprisonment of not less than fifteen years and not more than twenty-five years, if convicted.
- Dangerous Drugs Act, Cap. D1, Laws of the Federation, 2004 (“DDA”).
Section 2 of the DDA defines Indian Hemp thus:
- Any plant or part of a plant of the genus cannabis; or
- The separate resin, whether crude or purified, obtained from any plant of the genus cannabis; or
- Any preparation containing any such resin, by whatever name that plant, part, resin, preparation may be called.
Section 10 of the DDA, includes Indian Hemp as a kind of dangerous drug.
The DDA, in general, governs and regulates the licensing and importation of drugs classified as dangerous under the Act. The Act also establishes penalties for violations or non-compliance with the regulations contained in the Act.
- Indian Hemp Act, Cap.I6, Laws of the Federation, 2004 (“IHA”).
According to Section 5 of the IHA, any person guilty of possessing and smoking Indian hemp shall be liable on conviction to imprisonment for a term of not less than four years without the option of fine.
Section 7 of the IHA makes it illegal to utilize a premises for the sale, procurement, processing, manufacturing, or smoking of Indian hemp. According to the section, anybody who occupies such premises and consents to the use of the premises for the sale, procurement, processing, cultivation, or smoking of Indian hemp is guilty of an offence and liable upon conviction to a ten-year sentence without the option of a fine.
There are also, a plethora of decided cases of the Supreme Court, convicting persons for the unlawful possession, transaction of, and use of Cannabis (Indian hemp). For instance, the case of Chukwudi Oyem v. the Federal Republic of Nigeria delivered in April 2019, and reported in [2019] 11 N.W.L.R Part 1683, where the appellant was charged at the lower court on one count charge, of transporting 103.1 kilograms of Indian hemp (Cannabis Sativa). After the trial at the trial court, he was convicted and sentenced to 5 years’ imprisonment. He appealed to the Court of Appeal, where his appeal failed, and thereafter to the Supreme Court which also dismissed his appeal. Also, in the case of Blessing v. FRN[7], the Court, per K.M. Kekere- Ekun JSC reiterated the ingredients for convicting a person under the NDLEA act thus:
“1. That the substance was in the possession of the accused;
2.That it was knowingly in his possession;
3.That the substance is proved to be Indian Hemp (cannabis sativa); and
4.That the accused was in possession of the substance without lawful authority.”
Similarly, in the cases of the Federal Republic of Nigeria v. Faith Iweka (2013) 3 N.W.L.R. Part 1341; Umar v. FRN (2018) LPELR-46336(SC); and Nwadiem v. FRN, (2018) LPELR-44506(CA), the Court convicted and sentenced the appellants for the offence of possession of Cannabis.
It was reported by the National Drug Law Enforcement Agency (NDLEA) that a total of 126 Nigerians across 14 states in Nigeria were sentenced to various jail terms for drug-related offences between January and February 2021.[8] Also on the 7th of February, 2021, the NDLEA reportedly intercepted marijuana worth an estimated N1.4billion. The question therefore is – “Could the country have properly injected the N1.4 billion worth of Cannabis in our own pharmaceutical industry?”
The above examples depict the cost of maintaining these Cannabis laws by the Government, and ensuring their efficacy. This is so as monies, time and labour expended in tracking, fighting and prosecuting Cannabis related crimes are enormous. The cost also continues when the government has to take care of these convicted persons using taxpayer money for long durations. In a 2011 report by the Transform Drug Policy Foundation , it was reported that an estimated $100 billion was spent globally on drug law enforcement[9]. Although there are no readily available estimates in Nigeria, it is obviously conceivable that the costs would run into billions of naira.
On the whole, this disquisition argues that the limited resources devoted to this system imposed on us by antiquated laws, either directly or indirectly, should be reallocated to the development of a viable Cannabis industry for the benefit of the nation, even if we are playing catch up.
3.0 LEGALIZATION OF CANNABIS AND THE INTERNATIONAL COMMUNITY
In reviewing a series of World Health Organization (WHO) recommendations on Cannabis and its derivatives, the WHO on Narcotic Drugs (CND) zeroed in on the decision to remove Cannabis from Schedule IV of the 1961 Single Convention on Narcotic Drugs — where it was listed alongside specific deadly, addictive opioids, including heroin, recognized as having little to no therapeutic purposes.[10]
The 53 Member States of the Commission on Narcotic Drugs (the United Nation’s central drug policy-making body) voted to remove Cannabis from Schedule IV of the 1961 Single Convention on Narcotic Drugs.
Thailand, a conservative nation like ours took a huge step by enacting the Narcotics Act 2019, which currently regularizes the use and purpose of Cannabis in Thailand. It has been forecasted that Cannabis could generate about 8 Billion Thai Bhat for the Pharmaceutical industry in Thailand.[11]
4.0 THE ECONOMIC IMPLICATIONS OF THE LEGALIZATION OF CANNABIS
The economic benefits of legalizing Cannabis are boundless. It is remarkable to state that the Cannabis industry in America made a whopping $13.6 billion in 2019, with at least 340,000 jobs across its value chain, while Cannabis companies have raised $118.6 billion in the same year[12]. This number has taken a hit, due to the coronavirus pandemic, with the industry managing only $20billion worth of business in 2020[13]. However, market analysts are projecting an upward spiral, with the US market expected to generate at least $85 billion by 2030.
Similarly, the Canadian Cannabis market is projected to soar, with the legalization of its recreational use vide the Federal Cannabis Act. Canada has expanded its horizons in this regard and Canadian licensed companies are now aggressively pursuing this business in a bid to dominate the space. This indeed shows potential for immense foreign direct investment coming into Nigeria, which will have a positive bearing on our GDP.[14]
The Cannabis market continues to grow past its conventional use. A lot of products have been developed and are being developed from Cannabis, from edibles including cookies, chocolates and gummies to beverages, and combustibles used for materials, all for recreational usage, to wellness products like oils, hair creams, capsules, cosmetics, beauty and skincare products, to the more regulated medical Cannabis industry, being a feature for drugs aimed at alleviating epilepsy, glaucoma, multiple sclerosis, chronic pain, depression, and for chemotherapy among others.
It is believed that the Cannabis industry would continue to grow tremendously and that through purposive legislative, regulatory support and control, Nigeria could be a world leader in that market. Nigeria has a fertile land for the cultivation of a variety of Cannabis and a budding unemployed youth to man the factories. This would, however, require the buy-in of all stakeholders in Nigeria, particularly the Government, being regulators. The first step to the realisation of this objective would be to finance top-end research into the Cannabis potentials of Nigeria and identify the products to be developed from Cannabis. There would be a need to enact a law in this regard or overhaul the extant Indian Hemp Act, Dangerous Drugs Act, the NDLEA Act and the NAFDAC Act to move from a criminalization-based approach, which is Colonial in nature, to that of a controlled economic perspective.
Therefore, the focus should be on standardization, licensing, the distinction between medical, recreational and other ancillary usages, and product streamlining; consumer centred compliance measures from the seed to sale chain by licensed companies, and the effect on public health. Policies should be based on wide research and evidenced clinical trials.
Away from revenue generation, the Cannabis industry has proven to be a viable labour and employment system. The Cannabis value chain involves large scale farming, factory settings, dispensaries and nurseries, all potentially serving as an employment net for the Nigerian youths, a lot of whom are languishing in prisons for Cannabis related offences, induced by lack of employment.
Hence, a reconsideration of the cultivation and commercialization of Cannabis in Nigeria will be a potentially economic-booming and poverty-alleviating measure.
5.0 CONCLUSION
Nigeria has great potential to dominate the Cannabis market continentally and amongst other countries outside Africa by growing with the trends. The world is changing, nations of the world are opting for clean energy, and over-reliance on oil in the nearest future could have a negative impact on the economy. Currently, the Nigerian Government expends a huge sums of money and resources to investigate, raid, arrest and prosecute persons associated with the cultivation, transaction or possession of Cannabis in Nigeria. According to the National Bureau of Statistics, a minimum of 9,284 persons were arrested in 2018 adding to the already brimming and chock-a-block correctional centres in Nigeria.
It is thus our considered view that it is high time the government, through its legislative arm, reconsidered the costs of enforcing the laws which criminalise the possession and/or use of Cannabis (among others) in Nigeria against the potential benefits of Cannabis and its cultivation in Nigeria. Where it finds that the latter outweighs the former, after a holistic consideration, the government can develop and build a sustainable legal framework for the regularization of Cannabis usage in Nigeria. We believe that it is much more profitable for the Country as a whole to consider the issue of Cannabis from a commercial perspective than to be stuck in a Colonial state of mind and be left to catch up with the rest of the world.
[1] Blessing v. FRN [2015] 13 NWLR 5.
[2] Nick , J., ‘American Weed: A History of Cannabis Cultivation in the United States’ (2019) 48 EchoGeo < http://journals.openedition,org/echogeo/17650 > Accessed 22 October, 2021.
[3] Jeremy Berke , Shayanne Gal , and Yeji Jesse Lee, ‘ Marijuana Legalization Is Sweeping The US. See Every State Where Cannabis Is Legal’<https://www.businessinsider.com/legal-marijuana-states-2018-1?IR=T > Accessed 22 October, 2021.
[4] Saurav Bhola, ‘Sociological School of Jurisprudence’, <https://blog.ipleaders.in/sociological-school-of-jurisprudence/ > Accessed 28 July, 2021.
Sociological jurisprudence is a term coined by the August Comte (1798-1857) to describe his approach to the understanding of the law. This philosophical approach to law stresses the actual social effects of legal institutions, doctrines, and practices. It examines the actual effects of the law within society and the influence of social phenomena on the substantive and procedural aspects of law. This is also known as sociology of law
[5] “Assessing-Nigeria’s-Drug-Control-Policy” (PDF). Count the Costs. https://en.wikipedia.org/wiki/Cannabis_in_Nigeria#:~:text=Cannabis%20in%20Nigeria%20is%20illegal,Oyo%20State%20and%20Ogun%20State Accessed: 30th July 2021.
[6] Porter, Bernard. ‘Empire Ways: Aspects of British Imperialism’. I.B.Tauris. pp. 58–. ISBN 978-0-85773-959-9.
[7] (2015) 13 NWLR (PT. 1475) 1
[8] NAN, ‘NDLEA Secures 126 Convictions in 2 Months’ < http://www.guardian.ng/news/ndlea-secures-126-convictions-in-2-months-official/ > Accessed 27 July, 2021.
[9] Transform Drug Policy, ‘The Alternative World Drug Report’ < https://transformdrugs.org/assets/files/PDFs/alternative-world-drug-report-summary-2016.pdf > Accessed 27 October, 2021.
[10] David Gabrić ‘UN Commission Reclassifies Cannabis, Yet Still Considered Harmful’ <https://news.un.org/en/story/2020/12/1079132 > Accessed 2 December, 2021.
[11] Thai PBS World’s Business Desk, ‘ Multipurpose Marijuana Could Light Up Another Economic Engine For Thailand’ < https://www.thaipbsworld.com/multipurpose-marijuana-could-light-up-another-economic-engine-for-thailand/ > Accessed 5 May, 2021.
[12] Deborah D’Souza ‘The Future of the Marijuana Industry in America’ <https://www.investopedia.com/articles/investing/111015/future-marijuana-industry-america.asp > Accessed 7 December, 2021.
[13] George Mahaffey, ‘Why Banks are Finally Nearing a Green Light on Medical Cannabis’ < https://www.citybiz.co/article/47131/why-banks-are-finally-nearing-a-green-light-on-medical-cannabis/ > Accessed 7 December, 2021.
[14] Ibid.
(Author: O. M. Atoyebi S.A.N, Contributors: Ibrahim Wali, John Oladipo, Charles Ali).
Babatunde Johnson is a law graduate from the University of Sierra Leone, Fourah Bay College and he is currently awaiting admission to the Sierra Leone Law School. He is also a legal content creator and Co- Founder at Salone Law Centre.
