Anastatius Uwakwe V. The State (1974)

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S. SOWEMIMO, J.S.C.

In this appeal the court quashed the sentence imposed by the lower court as being excessive and substituted one year for the three years’ .

The appeal against the conviction on a charge of dangerous driving of a motor vehicle which caused the death of a person, contrary to section 17(2) of the Road Traffic Law Cap. 116 in Volume 6 of the Laws of Eastern Nigeria, 1963, now applicable in the East Central State of Nigeria, was dismissed.

The issues which arose and which were argued before us dealt with the severity of the sentence and were:

(1) That the appellant was a first offender;

(2) That he was a learner driver of three months duration under the statutory guidance of a qualified driver;

(3) That the evidence of the dangerous driving was that he (the appellant) swerved from the tarmac without reason, on to the grass verge thereby colliding with a cyclist, who later died from injuries sustained.

The learned trial judge, in determining the sentence to inflict, had this to say:

“Court:-I take into account the passionate plea of counsel for the accused for leniency but I cannot over-look my duty to discourage the rampant destruction of lives of other road users by motor drivers. The penalty of this court is that the accused will go to prison for 3 years with hard labour…”

By giving the above reasons, the learned trail judge’s decision to treat a first offender in the way he had done was based on the rampant fatal injuries caused by qualified drivers. We were of the opinion that no consideration was given to the instant case, in which the appellant was a learner driver with only three months’ experience and was at the material time under the guidance of a qualified driver. We were of the view that, if consideration had been giving to the fact that (a) the appellant was a learner driver, (b) that he was at the material time a learner driver under the control and guidance of a qualified driver, and that (c) besides the vehicle involved in the accident there was no other vehicle on the road at the material time, the learned trial judge might have considered whether in the circumstances of the case, a sentence of three years’ imprisonment with hard labour out of the maximum sentence of 5 years’ punishment fixed for the offence was appropriate.

There are cases in which the West African Court of Appeal had given reason for enhancement or reduction of sentence on appeals before it. The Supreme Court of Nigeria is invested with similar powers. The power of Supreme Court of Nigeria to hear appeals on sentences is set out in section 26(3) of the Supreme Court Act.

That sub-section reads:

“On an appeal against sentence or, subject to the special provisions of this Act, on an appeal against conviction, the Supreme Court shall if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and if not of that opinion shall, in the case of an appeal against sentence, dismiss the appeal.”

Section 4(3) of the Criminal Appeal Act 1907 Cap. 23 (England) is in pari materia with the above provisions.

In R. v. JAMES NUITAL 1 CAR. page 180 the principle governing a Court of Appeal which desires to reduce a sentence on appeal is set out in the judgment of the Court by CHANNELL J. thus:

“These cases of reduction of sentence give some little trouble. When there is a trial, the judge who presides at it, and has the advantage of personal observation, has a better opportunity of determining the sentence. This Court will then be reluctant to interfere with sentences, which do not seem to it to be wrong in principle, though they may appear heavy to individual judges. The Lord Chief Justice has laid this canon down. But the remark does not altogether apply when a prisoner pleads guilty, though even in that case there may be some special consideration, such as local circumstances. It is impossible to lay down any universal principle. But the Court desires, as far as possible, to standardise sentences where it has the facts before it and can judge them as well as the Court below. In this case the Chairman reports to us that he simply acted on the previous convictions. We are, therefore, in the same position to judge as he was. He has evidently increased the last sentence the prisoner suffered. If there has been a deliberate return to crime that might have been right, but here there was evidence that the prisoner was drunk when the offence was committed, and that the shirt stolen was openly exposed in the marketplace. Those facts were no excuse for crime, but were elements to consider in a case of this kind. If it had not been for his previous convictions he might never have been sent for trial, but might have been dealt with summarily. The sentence was too severe, and must be reduced to six months’ hard labour.”

In R. VS. KUGE 3 W.A.C.A. 82, the West African Court of Appeal in its judgment on an appeal against sentence stated as follows:

“The offence in this case is a serious one, and it is necessary for a heavy sentence to be imposed in order to check the defrauding of native administrations. But there are no previous convictions and the case is not so flagrant as to justify the maximum sentence prescribed by law.

“The appeal against the sentence is accordingly allowed. The sentences passed at the trial are quashed and in substitution therefore the appellant is sentenced to four years’ imprisonment with hard labour on each count of the twelve counts upon which he was convicted. The sentences to run concurrently.”

In this case in view of certain considerations referred to earlier, we were of the view that the sentence of 3 years imprisonment with hard labour passed on the appellant was severe. The appellant is a first offender. He is a learner driver under the management of a qualified driver. The highway where the accident occurred does not appear to be frequently used by traffic. In these circumstances, the sentence of 3 years’ imprisonment was quashed and, instead, a sentence of 1 year’s imprisonment with hard labour was substituted. For the above reasons, we gave this judgment at the hearing.

Other Citation: (1974) LCN/1905(SC)