Yakubu V. Frn (2022)
LAWGLOBAL HUB Lead Judgment Report
TIJJANI ABUBAKAR, J.S.C.
Following an application dated the 28th day of March, 2012, the Respondent was granted leave by the High Court of the Federal Capital Territory, to prefer a charge against the Appellant and 7 (seven) other Defendants. Consequently, the Appellant and the other Defendants were charged on a 16 Count Charge of criminal breach of trust, criminal misappropriation, and unlawful conversion of funds belonging to the Police Pensions Fund dated 27th March, 2012. However, in the course of proceedings at the trial Court, plea bargain was contemplated, and the Appellant and the prosecution agreed to perfect the bargain, and following the execution of a plea bargain agreement between the Appellant and the Respondent, the charge was amended with the leave of the trial Court on the 28th day of January, 2013, of the 20 Counts contained in the amended Charge before the trial Court, counts 18, 19 and 20 were preferred against the Appellant. The three Counts against the Appellant read as follows:
COUNT 18:
“That YOU ESAI DANGABAR, ATIKU ABUBAKAR KIGO, AHMED INUWA WADA, MRS. VERONICA ULONMA ONYEGBULA, SANI HABILA ZIRA, MRS. UZOMA CYRIL ATTANG, CHRISTIAN MADUBUKE and JOHN YUSUFU YAKUBU between January 2008 and June 2011 at Abuja in the Abuja Division of the High Court of the Federal Capital Territory converted to your own use certain property, to wit: the sum of N20,154,728,660.18 (Twenty Billion, One hundred and Fifty-Four Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Sixty Naira, Eighteen Kobo) belonging to Police Pension office domiciled in its account with First Bank of Nigeria Plc and YOU hereby committed an offence punishable under Section 309 of the Penal Code Act, Cap. 532, Laws of the Federal Capital Territory, Abuja, Nigeria 2007.
COUNT 19:
That you JOHN YAKUBU YUSUFU between 27th January, 2009 and 25th November, 2010 at Abuja in the Abuja Division of the High Court of the Federal Capital Territory converted to your own use certain property, to wit: the sum of N1,364,285,419.95 (One Billion, Three Hundred and Sixty Four Million, Two Hundred and Eighty-Five Thousand, Four Hundred and Nineteen Naira and Ninety Five Kobo), belonging to Police Pension Office domiciled in its account with First Bank of Nigeria Plc and you thereby committed an offence punishable under Section 309 of the Penal Code Act, Cap. 532, Laws of the Federal Capital Territory Abuja, Nigeria 2007.
COUNT 20
That you JOHN YAKUBU YUSUFU between 25th November, 2010 and 20th April, 2011 at Abuja in the Abuja Division of the High Court of the Federal Capital Territory converted to your own use certain property, to with the sum of N1,749,257,956.83 (One Billion, Seven Hundred and Forty-Nine Million, Two Hundred and Fifty-Seven Thousand, Nine Hundred and Fifty-Six Naira and Eighty-Three Kobo) belonging to the Police Pension Office domiciled in its account with First Bank of Nigeria Plc and you thereby committed an offence punishable under Section 309 of the Penal Code Act, Cap. 532, Laws of the Federal Capital Territory, Abuja, Nigeria 2007.”
When the three Counts were read to the Appellant, he pleaded guilty. The three (3) counts border on conversion of property, to wit: the sums of N20,154,728,660.18 (Twenty Billion, One Hundred and Fifty-Four Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Sixty Naira, Eighteen Kobo); N1,364,285,419.95 (One Billion, Three Hundred and Sixty-Four Million, Two Hundred and Eighty-Five Thousand, Four Hundred and Nineteen Naira, Ninety-Five Kobo); and N1,749,257,956.83 (One Billion, Seven Hundred and Forty-Nine Million, Two Hundred and Fifty-Seven Thousand, Nine Hundred and Fifty-Six Naira, Eighty-Three Kobo), by his plea of guilty, the Appellant admitted committing the offences punishable under Section 309 of the Penal Code Act, Cap. 532, Laws of the Federal Capital Territory, Abuja, 2007. The Appellant was convicted on the aforesaid 3 (three) counts and sentenced to 2 (two) years imprisonment on each count, with an option of fine in the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) on each count.
The Respondent became nettled by the outcome of the plea bargain, particularly the sentence imposed on the Appellant by the trial Court, the Respondent therefore initiated an appeal to the Court of Appeal (the “lower Court”) vide a notice of appeal filed on the 29th day of April, 2013 containing five (5) grounds of appeal. At the lower Court, the Appellant as Respondent, in addition to his brief of argument filed a notice of preliminary objection challenging the competence of the appeal on the ground that the notice of appeal was not filed within the time prescribed by the Court of Appeal Act.
The Court of Appeal (Coram Aboki; Agim; and Mustapha, JJCA) unanimously dismissed the Appellant’s preliminary objection and allowed Respondent’s appeal, thereby substituting the sentence imposed on the Appellant by the trial Court. In its stead, the lower Court sentenced the Appellant to 2 (two) years imprisonment on each count, terms of imprisonment to run consecutively. The lower Court also imposed additional fines of N20,000,000,000.00 (Twenty Billion Naira), N1,400,000,000.00 (One Billion, Four Hundred Million Naira), and N1,500,000,000.00 (One Billion, Five Hundred Million Naira) in respect of counts 18, 19 and 20, respectively, upon which the Appellant was convicted and sentenced. This appeal is therefore against the Judgment of the Court of Appeal Abuja Division delivered on the 21st day of March, 2018.
Aggrieved by the judgment of the lower Court delivered on the 21st day of March, 2018, the Appellant appealed to this Court via notice of appeal dated and filed on the 28th day of March, 2018, containing five (5) grounds of appeal.
Learned Counsel for the Appellant, Maiyaki Theodore Bala, Esq. filed the Appellant’s brief of argument on the 16th day of May, 2018, in the Appellant’s brief of argument, learned Counsel nominated and argued two (2) issues for determination, the issues are reproduced as follows:
- “Whether the Court of Appeal was right in dismissing the Appellant’s Notice of Preliminary Objection on the grounds that Section 15(2)(b) of the Interpretation Act overrides the express provisions of Section 24(2) of the Court of Appeal Act
- Whether the Court of Appeal was right in quashing the judgment of the trial Court and substituting same with more punitive and severe sentences in total disregard of the plea bargain reached between the Appellant and the Respondent whereby 32 properties and the sum of N325,187,867.18 (Three Hundred and Twenty-Five Million, One Hundred and Eighty-Seven Thousand, Eight Hundred and Sixty- Seven Naira, Eighteen Kobo) were forfeited to the Federal Government as refund of the N3,000,000,000.00 (Three Billion Naira) misappropriated by the Appellant?”
On the part of the Respondent, Learned Counsel Oluwaleke Atolagbe, ACIArb (UK), filed the Respondent’s brief of argument on the 18th day of February, 2019 on behalf of the Respondent. The learned Counsel for the Respondent nominated the following corresponding 2 (two) issues for discourse:
- “Whether the Court of Appeal was not right when it held that the Respondent’s appeal before it was competent and valid?
- Whether the Court of Appeal was not right in quashing the sentence of the trial Court and substituting it with a more severe sentence?”
ISSUE ONE
Learned Counsel for the Appellant submitted that by virtue of Section 24(2) (b) of the Court of Appeal Act, appeals from the decision of the trial Court must be filed within 90 (ninety) days “from the day of the decision”. Learned Counsel said, the lower Court was in error when it relied on the provisions of Section 15 of the Interpretation Act to interpret the clear and unambiguous provision of Section 24(2)(b) of the Court of Appeal Act, learned Counsel relied on the decision in ABACHA V. FRN [2014] 6 NWLR (Pt. 1402) 43 at 92, paras C-E to submit that where the provisions of a statute are clear, the duty of the Court is simply to interpret the provisions by giving the plain words their natural and ordinary meaning. It was also submitted by learned Counsel that the intention of the lawmakers with respect to Section 24(2)(b) of the Court of Appeal Act is that the reckoning of time of appeal starts from the day of a decision.
It was further submitted by learned counsel that Section 15 of the Interpretation Act does not apply to Section 24(2)(b) of the Court of Appeal Act since the latter enactment provided that the computation of time to appeal starts from the day of the decision. Reference was made to Section 1 of the Interpretation Act and the decision in OKECHUKWU V. INEC & ORS (2014) SCNJ 48 at 78. Learned Counsel also submitted that since the lower Court is a creation of Section 237 of the Constitution of the Federal Republic of Nigeria and regulated by the Court of Appeal Act and the Court of Appeal Rules, the Interpretation Act will not apply to it. Learned Counsel said that since the judgment of the trial Court was handed down on the 28th day of January, 2013, the 90 (ninety) days period stipulated by Section 24(2) of the Court of Appeal Act expires on the 27th day of April, 2013; therefore, the Respondent’s notice of appeal filed on the 92nd day after the judgment was delivered – on 29th April, 2013, is incompetent and the lower Court lacks jurisdiction to hear and determine the Appellant’s appeal. Learned Counsel further submitted that the decision of the Supreme Court in the case of AKEREDOLU V. AKINREMI [1985] 2 NWLR (Pt. 10) 787 was wrongly applied by the lower Court to the instant case; that the import of the decision in that case is that where a statute expressly so provides that a fraction of a day is equal to a whole day, it must be interpreted as such without resorting to external aid to defeat the intention of the lawmakers. Counsel finally submitted that the lower Court misinterpreted the provision of Section 15(3) of the Interpretation Act and that the said provision only applies to instances where an act is to be done on a particular day and that day falls on a public holiday and not where an act is to be done within a specified period of 90 days.
On the part of the Respondent, learned Counsel submitted that the Appellant’s submission that the Interpretation Act does not apply to the Court of Appeal because it is a creation of the Constitution has no basis in law. Counsel submitted that even the Constitution can be interpreted by the Interpretation Act, citing Section 318 (4) to submit that the Interpretation Act shall apply for the purpose of interpreting the provisions of the Constitution. Learned Counsel submitted that this Court in SARAKI V. FRN [2016] 3 NWLR (Pt. 1500) 531 at 591 relied on the said provisions of the Constitution to have recourse to Section 28 of the Interpretation Act in interpreting the provision of the Constitution. Learned Counsel submitted that in view of Section 1 of the Interpretation Act, the lower Court rightly applied the Act to the factual circumstances of the instant case and that the cases including OKECHUKWU V. INEC & ORS. (supra) relied on by the Appellant are irrelevant and inapplicable to criminal appeals.
Learned Counsel further submitted that the computation of time done by the learned Counsel for the Appellant for the filing of the notice of appeal is wrong and not in accordance with the law, in view of the decision of this Court in AKEREDOLU V. AKINREMI (supra), which was followed by the lower Court in this case and in the case of THE NIGER INS. CO. V. NAL MERCHANT BANK [1996] 2 NWLR (Pt. 430) 370 at 375.
Learned Counsel said that the correct calculation of the number of days within which the notice of appeal shows that the same was filed 91 days after the judgment of the trial Court was delivered, and by the provision of Section 15(2)(b), (3) and (5) of the Interpretation Act, since the 90th day for the filing of the Respondent’s notice of appeal falls on a Sunday- the 28th day of April, 2013, which is statutorily declared to be a public holiday, the 91st day (the 29th day of April, 2013) will be reckoned as the 90th day for the purpose of filing the notice of appeal, relying on the decision in KAUGAMA V. NEC [1993] 3 NWLR (Pt. 284) 681 at 709-710; BALOGUN V. ODUMOSU [1999] 2 NWLR (Pt. 592) 590; M.V. “CAROLINE MAERSK” V. NOKOY INVEST LIMITED [2000] 7 NWLR (Pt. 666) 5871 and ANIE V. UZORKA [1993] 8 NWLR (Pt. 309) 1. Learned Counsel finally urged the Court to hold that the Respondent’s appeal before the lower Court is competent, even though the notice of appeal was filed on the 91st day after the judgment of the trial Court was delivered. Learned Counsel contended that the last day, the 90th day of the period within which it ought to have been filed was a holiday and it was filed the next following day which is not holiday i.e. 20th April, 2013 and it satisfies the requirements of the law. Counsel urged this Court to hold that the Respondent’s appeal at the Court below was competent, he urged this Court to so hold.
RESOLUTION:
ISSUE ONE
This issue borders on the interpretation of the phrase “ninety days from the decision appealed against” as contained in the provisions of Section 24(2) of the Court of Appeal Act, and its application to the peculiar factual circumstances of the instant case. Section 24(2)(b) of the Court of Appeal Act contains provisions with respect to the time within which an aggrieved person may file his notice of appeal against a decision of the trial Court in criminal cases. The Section reads as follows and I quote:
24 “(2) The period for the giving of notice of appeal or notice of application for leave to appeal are-
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.”
The learned Counsel for the respective parties in this appeal are both in agreement, based on the above provisions of the law, that the period for filing notice of appeal against the decision of a trial Court is 90 (ninety) days. However, as noted from the submissions of Counsel, the pith of their ferocious disagreement revolves around the period to be reckoned with in the computation of the 90 (ninety) days. Rightly, in the interpretation of a statute, the duty of the Court is not to avoid its consequences; rather, the duty of the Court is limited to interpreting the words contained in the statute and not to go outside the clear intention of the words in search of an interpretation which is convenient to the Court or the parties. See AROMOLARAN v. AGORO (2014) LPELR-24037 (SC) 25, paras. B-F. While considering the issue at hand, the lower Court at page 1074 of the records, held as follows:
“It appears that Section 24(2)(b) of the Court of Appeal Act by describing the prescribed period of days as “ninety days from the date of the decision appealed against”, intended that the 90 days period should be reckoned from the date of the judgment. But Section 15(2)(a) of the Interpretation Act specifically provides for how to reckon provisions that state that the prescribed period of days commences from the date of a particular event. It states that the prescribed period of days shall exclude the day on which the event occurs… “(Underlining mine)
Apparently, the above reasoning of the lower Court does not seem to go down well with the learned Counsel for the Appellant, who strenuously and ferociously argued that the learned Justices of the lower Court erred when they applied the provisions of Section 15(2)(a) of the Interpretation Act to interpret the phrase – “ninety days from the date of the decision appealed against”. The opposition of learned Counsel is erected on (a) that the Court of Appeal is a creation of the Constitution and therefore not subject to the Interpretation Act; (b) that Section 24(2) (b) of the Court of Appeal Act is clear and unambiguous as to when time starts to run in criminal appeals; (c) that Section 24(2)(b) of the Court of Appeal Act is sacrosanct and not subject to Section 15(2) (b) of the Interpretation Act; and (d) that criminal appeals are to be filed within 90 days from the day of the decision and not on a particular day as envisaged by the Interpretation Act.
Attractive as the submissions of learned Counsel may seem to appear, I am unable to accept that, the submissions made by the learned Counsel for the Appellant that the Interpretation Act cannot be resorted by the lower Court in interpreting provisions of its enabling Act, particularly in relation to the period prescribed for taking a step in a process.
Generally, the Interpretation Act is always the law to resort to, in order to interpret the provisions of the Constitution or any other statute creating a statutory body. See Section 318(4) of the Constitution; SARAKI V. FRN (supra). Be that as it may, the application of the Interpretation Act in instances of computation of time is subject to only two limitations, one contained in the Act itself and the other is based on case law.
The first limitation is where a contrary intention appears in the Act whose provision is sought to be construed, as contemplated by Section 1 of the Interpretation Act, which states that the “Act shall apply to the provision of any enactment except in so far as the contrary intention appears in this Act or enactment in question.” For the second part, we have seen cases where there seem to be no intention in the Interpretation Act or the Act (whose provision is sought to be construed) to exclude the former in the interpretation of the latter but the case law makes it clear that the Interpretation Act is not applicable in the interpretation of the provision of such Act. A classic example is in relation to election matters, wherein this Court held in a plethora of decisions including OKECHUKWU V. INEC & ORS (supra) relied upon by the Appellant, that due to the sui generis nature of election petitions, the Interpretation Act on computation of time does not apply to the requirement of time under the Electoral Act. See PDP v. ACCORD & ORS (2019) LPELR-49032. To the extent that the instant appeal is not springing from election or in any way related to an election and in the absence of any intention contained in the Court of Appeal Act, to the contrary, I cannot subscribe to the view that the Interpretation Act cannot be applied in the computation of the time prescribed for the filing of an appeal against a decision in a criminal case under Section 24(2)(b) of the Court of Appeal Act.
Now, Section 15 of the Interpretation Act provides as follows and I quote:
“(1) A reference in an enactment to the time of day is a reference to the time which is one hour in advance of Greenwich mean time.
(2) A reference in an enactment to a period of days shall be construed-
(a) where the period is reckoned from a particular event, as excluding the day on which the event occurs;
(b) where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.
(3) Where by an enactment any act is authorised or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.
(4) Where by an enactment any act is authorised or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period.
(5) In this section “holiday” means a day which is a Sunday or a public holiday. ”
It is obvious from the above provisions of Section 15(2)(a) of the Interpretation Act that in the computation of time for the doing of an act under a statute, where the period is reckoned from a particular event, the day on which the event occurs shall be excluded. By necessary implication therefore, in relation to Section 24(2)(b) of the Court of Appeal Act, in the computation of the period for the filing of a notice of appeal against the decision of the trial Court, the day the judgment was handed down, shall be excluded. This is in accord with the line of thought expressed by this Court, per my law lord ANIAGOLU, JSC in AKEREDOLU V. AKINREMI (supra) where my lord held as follows:
“The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance. Maxwell on Interpretation of Statutes 12 Ed. Page 309, citing Lester v. Garland (1808) 15 Yes. 248 and Re North Ex parte Hasluck (supra), has it thus:
“Where a statutory period runs “from” a named date “to” another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of Parliament as gathered from the statute, generally, the first day of the period will be excluded from the reckoning, and consequently, the last day will be included.”
In this case, the lower Court rightly considered the state of the law when it held that the day judgment was delivered at the trial Court cannot be reckoned with in the computation of the time for the purpose of filing the notice of appeal by the Respondent. Thus, since judgment was delivered by the trial Court on the 28th day of January, 2013, time for filing notice of appeal will begin to run from the 29th day January, 2013 up until the 90th day, which is the 28th day of April, 2013. However, in the instant case, the notice of appeal filed by the Respondent to challenge the decision of the trial Court was filed on the 29th day of April, 2013, being the 91st day after the judgment was delivered. Nevertheless, as the learned Justices of the lower Court rightly held, since the last day of the 90 days period is a Sunday (which is statutorily declared to be public holiday and by virtue of Section 15(5) of the Interpretation Act), the period for the filing of the notice of appeal extends till the next day in view of the provision of Section 15(2)(b) and (3) of the Interpretation Act. It is therefore clear that the date of the event is excluded from the computation of time, and the last day being a dias non juridicus cannot also be taken into reckoning in the computation of time, see:ETSAKO WEST LOCAL GOVT COUNCIL V. CHRISTOPHER (2014) LPELR-23023 (SC). Where this Court held as follows:
“There are identical rules for computation of time so stipulated or prescribed in the uniform High Court Rules, Edo State High Court [Civil Procedure] Rules etc. Such rules are substantially identical with the provisions on the same subject matter in Section 15 of the Interpretation Act, Cap 378 LFN 1990 [Cap 123, 2004, LFN] and the corresponding Sections in the Interpretation Laws of the various States of the Federation. It is provided in the Rules, that, where by any written law or any special order made by the Court in the course of any proceedings, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding and such time is not limited by hours, the following rules, among others, in the computation of time shall apply: [a] the limited time does not include the day of the date of or the happening of the event, but commences at the beginning of the day next following that date. [b] the act or proceeding must be done or taken at least on the last day of the limited time; [c] where time limited is less than six days, no public holiday or Sunday shall be reckoned as part of the time, [d] when the time expires on a public holiday or Sunday, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards not being a public holiday or Sunday. To put it more succinctly, Section 15 of the Interpretation Act provides: A reference in an enactment to a period of days shall be construed: [a] where the period is reckoned from a particular event, as excluding the day on which the event occurs; [b] where apart from this paragraph the last day of the period is holiday, as continuing until the end of next following day which is not holiday. [3] Where by an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be duly done if it is done on the next following day which is not a holiday. [4] Where by an enactment any act is authorized or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period. [5] In this Section “holiday” means a day which is a Sunday or a public holiday.” It is to be specifically noted that the day of the happening of an event is excluded where a period is reckoned from that event. The computation starts from the next day after the event. The principle is of general acceptance as established by this Court in the case of AKEREDOLU & ORS V. AKINREMI (1985) 11 SC 74 at page 93” (underlining mine)
The notice of appeal filed by the Respondent to challenge the decision of the trial Court, albeit filed 91 days after the judgment of the trial Court was delivered is deemed by law to be filed within 90 days of the judgment since the date of the event is not taken as constituting an integral part of the days for the purpose of computation of time; it is therefore competent. In the circumstance therefore, the decision of the lower Court cannot be faulted; I endorse it and order that parties in this appeal queue behind the decision as it is sound and represents the correct and settled application of the state of the law to the case. This issue is resolved in favor of the Respondent against the Appellant.
ISSUE TWO
Learned Counsel for the Appellant contended that the lower Court was wrong in quashing the judgment of the trial Court and substituting same with more severe and punitive sentences. According to learned Counsel, the Court failed to take into consideration the judgment of the trial Court granting a final forfeiture order of 32 properties and the sum of N325,187,867.18 (Three Hundred and Twenty-Five Million, One Hundred and Eighty-Seven Thousand, Eight Hundred and Sixty-Seven Naira, Eighteen Kobo). Learned Counsel for the Appellant submitted that out of the three Counts in respect of which the Appellant pleaded guilty, he was charged alongside other Defendants in respect of Count 18 which relates to misappropriation of the sum of N20,154,728,660.18 (Twenty Billion, One Hundred and Fifty-Four Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Sixty Naira, Eighteen Kobo); therefore, Appellant’s admission of guilt in relation to that count is that he and seven others jointly misappropriated the amount in question, for which they are all meant to account for and not that he misappropriated the said sum alone. Learned Counsel submitted that the lower Court was in error when it held that the Appellant alone misappropriated the sum in question, thereby imposing stiffer penalty on the Appellant.
Relying on the decision in OMOKUWAJO V. FRN [2013] 9 NWLR (Pt. 1359) 300 at 328, paras A-B; 332, para F, learned Counsel contended that the lower Court raised the issue of Twenty Billion Naira which was not what it was called upon to decide on; rather, the sole issue raised by the Respondent for determination by the lower Court only relates to the sum of Three Billion Naira. It is the submission of learned Counsel that there was no legal basis for the imposition of outrageous fine against the Appellant who refunded the proceeds of crime, far and above the Three Billion Naira, he misappropriated. Counsel submitted that since the plea bargain is a negotiated agreement between the parties, one of them cannot be allowed to renege on it and the Courts are mandatorily enjoined to observe the agreement. Learned Counsel said the lower Court erred when it failed to take into account, the properties and monies forfeited by the Appellant; that, even though no value was attached, the lower Court ought to have taken judicial notice of the value of the forfeited properties located in Abuja.
Submitting further, learned Counsel for the Appellant said the excessive and punitive sentence imposed by the lower Court on the Appellant amounts to double jeopardy, since the Appellant had already forfeited properties and monies to the Federal Government; and it was therefore wrong for the lower Court to assume that the Appellant was left by the trial Court to enjoy the proceeds of the crime committed. Learned Counsel relied on the decision inFRN V. NWOSU [2016] 17 NWLR (Pt. 1541) 226 at 305-305, paras H-G to submit that what the lower Court did was to conduct another trial on Count 18 and consequently imposed a stiffer and harsher sentence, especially since there is nowhere in the proof of evidence where it was stated or alleged that the Appellant alone misappropriated the sum of Twenty Billion Naira. Counsel submitted that the sum of N20,154,728,660.18 (Twenty Billion, One Hundred and Fifty-Four Million, Seven Hundred and Twenty-Eight Thousand, Six Hundred and Sixty Naira, Eighteen Kobo) as stated in the proof of evidence was linked to other persons – Esai Dangabar, Atiku Abubakar Kigo and Ahmed Inuwa Wada, while only the sum of N3,113,543,376.78 (Three Billion, One Hundred and Thirteen Million, Five Hundred and Forty-Three Thousand, Three Hundred and Seventy-Six Naira, Seventy-Eight Kobo) only was alleged to have been misappropriated by the Appellant.
Learned Counsel relied on the decision in VAB PETROLEUM INC. V. MOMAH [2013] 14 NWLR (Pt. 1374) 284 at 318, para E, to urge the Court to set aside the judgment of the lower Court and restore the judgment of the trial Court. After submitting that the lower Court failed to take the plea bargain into consideration, learned Counsel referred to the views expressed by the lower Court in its judgment that the sum imposed as fines by the trial Court is paltry and unreasonably low, to submit that the views were based on sentiments and did not represent the true and correct facts of this case, relying on the decision in OGUONZEE V. THE STATE [1998] 5 NWLR (Pt. 551) at 564; FRN V. WABARA [2013] 5 NWLR (Pt. 1347) 331 at 357, paras A-C.
In his response, learned Counsel for the Respondent submitted that the crux of the Appellant’s appeal is the propriety and legality of the lower Court imposing excessive sum as fine on the Appellant, by this therefore it clearly shows that the Appellant has no grouse against the custodial sentence imposed on him by the lower Court. Learned Counsel said a person found guilty of an offence under Section 309 of the Penal Code Act is liable to a term of imprisonment for two years with an option of fine or both such imprisonment and fine; that the Courts have discretion to determine the adequate punishment to be imposed on an accused under that Section, relying on the decision in STATE V. OZUZU [2009] 3 NWLR (Pt. 1128] 247 at 261, paras C-D; A.C.B LIMITED V. NNAMANI [1991] 4 NWLR (Pt. 186) 486 at 494-495.
Learned Counsel submitted that the Appellant never appealed against the decision of the trial Court which also imposed a total fine of N750,000.00 on the Appellant, but only argued that the fine imposed by the trial Court which he had already paid be sustained while the excessive fine imposed by the lower Court be set aside. Learned Counsel relied on the decision in DAVID V. COMMISSIONER OF POLICE, PLATEAU STATE (2018) LPELR- 44911 (SC) to submit that where a sentence is within the provisions of the law, it cannot be regarded as excessive. Counsel made a distinction between the definition of fine and restitution relying on NWUDE V. FRN [2016] 5 NWLR (Pt. 1506] 471 at 511, he argued that the forfeiture of assets traced to the crime for which the Appellant was convicted would only qualify as restitution of the property which he was never entitled to and wrongly acquired. Learned Counsel submitted that the reliance of Learned Counsel for the Appellant on the decision inFRN V. NWOSU (supra) on the principle of double jeopardy vis-a-vis the provisions of Section 36(9) of the Constitution is not helpful to the case of the Appellant, because the circumstances of the instant appeal do not fall within the scope of application of the principle of double jeopardy. He submitted that the principle applies to trial and is not applicable to sentencing; and is applicable to cases where there is more than one trial, unlike in the instant case, where there was only a single trial.
Learned Counsel for the Respondent relied on the decision in SOBAKIN V. STATE (1981) 5 SC 375 and AMASIKE V. REG. GEN., CAC [2010] 13 NWLR (Pt. 1211) 386, to submit that this Court will not disturb a concurrent finding of facts except same is shown to be perverse. The learned Counsel for the Respondent contended that the facts before the trial Court and the lower Court show that the value of the properties forfeited by the Appellant is not ascertained and it was on this basis that the lower Court found that there is no evidence of the monetary value of the properties and the Appellant who has the duty of establishing their monetary value failed to so do; that the Appellant cannot therefore at this stage invite this Court to interfere with the findings of the lower Court. Learned Counsel for the Respondent therefore urged this Court to affirm the decision of the lower Court.
RESOLUTION
From the argument canvassed by the learned Counsel for the Appellant under this issue, it will appear that the grievance of the Appellant is principally revolving around the thin issue relating to the imposition of the sum of N20,000,000.00 (Twenty Billion Naira) as additional fine on the Appellant in respect of Count 18 where the Appellant when the charge was read and explained to him pleaded guilty. As earlier set out in this judgment, pursuant to a plea bargain reached by the Appellant and the Respondent, the Appellant pleaded guilty to Counts 18, 19, and 20 of the Amended Charge. Consequently, the Appellant was convicted by the trial Court and the cumulative sum of N750,000 (Seven Hundred and Fifty Thousand Naira) was imposed on him as fine in lieu of imprisonment; and the Appellant also forfeited the sum of N325,187,867.18 (Three Hundred and Twenty-Five Million, One Hundred and Eighty-Seven Thousand, Eight Hundred and Sixty-Seven Naira, Eighteen Kobo) and about thirty-two (32) properties to the Federal Government of Nigeria.
The Respondent Economic and Financial Crimes Commission became peeved by the conviction and sentence and therefore filed an appeal, the lower Court, the Court of Appeal Abuja Division quashed the sentence imposed by the trial Court on the ground that the sum imposed as fine in lieu of imprisonment for a term of 2 years on each count is “unreasonable, unjust, unfair, irrational, arbitrary and contrary to judicially established principle and is not the result of a judicious and judicial exercise of the trial Court’s sentencing discretion”. See pages 1108 to 1109 of the records.
It is elementary law that the sentence to be imposed upon conviction for an offence is at the discretion of the trial Court. Every trial Judge is endowed with the discretion to impose punishment provided by law on a convict. The discretion must however be exercised judiciously and judicially. See OKECHUKWU V. STATE [1993] 9 NWLR (Pt. 315) 78 at 94-95; EROMOSELE V. FRN (2018) LPELR-43851 (SC). Therefore, in order to demonstrate that the discretion was judicially and judiciously exercised, a trial Judge must state the factors that influenced his decision in imposing sentence. See IORTIM V. THE STATE [1997] 2 NWLR (Pt. 490) 771.
Nevertheless, failure to give reason for the sentence will however not vitiate the conviction, but put the appellate Court in a position to review the sentence if it is found to be excessive or utterly inadequate. Thus, an appellate Court is always reluctant to interfere with the way a trial Judge exercised his discretion, but would be compelled to so interfere if the discretion was wrongly exercised; if the exercise of discretion was tainted with some illegality or riddled with substantial irregularity; if there is a miscarriage of justice; or if it is in the interest of justice to interfere. See OGUNSANYA V. THE STATE [2011] 12 NWLR (Pt. 1261) 401 at 438 and the decision of this Court inADEYEYE V. THE STATE (1968) 1 ALL NLR 231 at 241 where ADEMOLA, CJN (of blessed memory) held that:
“It is only when a sentence appears to err in the principle that this Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was failure to apply the right principles, then this Court will Intervene.”
Section 311(2) of the Administration of Criminal Justice Act, 2015 sets out four factors that the Court should invariably consider in performing its sentencing function. The Section reads as follows:
“(2) The Court shall, in pronouncing sentence, consider the following factors in addition to Sections 239 and 240 of this Act
(a) the objectives of sentencing, including the principles of reformation and deterrence;
(b) the interest of the victim, the convict and the community;
(c) appropriateness of non-custodial sentence treatment in lieu of imprisonment; and
(d) previous conviction of the convict.”
In its judgment, the lower Court exhaustively considered the position of the law and settled principles in relation to sentencing, the lower Court held as follows at pages 1091 to 1093, of the records of appeal:
“It is clear that the trial Court considered two sets of facts. It considered the facts that made it feel obligated to temper justice with mercy. It then considered the facts that made it feel duty bound to impose a sentence that could serve as a correction to the convict and deterrence to other persons. But the judgment did not show how it balanced these two competing demands and how it discharged the competing duties. What is clear from the judgment is that after highlighting these two competing duties and their factual basis, it proceeded to levy the sentence without showing clearly whether the sentence was influenced by consideration of tampering justice with mercy or considerations of correction of the convict and deterrence of the community.
Without the judgment expressly stating so, the choice of punishment of 2 years with the option of N250,000.00 fine for each count of offence, an amount obviously very disproportionate to the humungous amount of over 24 Billion Naira stolen or converted by the convict, appear to have been influenced by the consideration of tampering justice with mercy and being lenient to the convict, than consideration of correcting the convict and deterring other persons. The custodial sentence of 2 years to be suffered together with a monetary sentence reasonably proportional to the sum of over 24 Billion Naira stolen or converted would have been more consistent with a deterring sentence. The sentence does not show that it was influenced by considerations of the impact of the crime on the society consideration of the nature of the crime and consideration of the person and office of the convict when the offence was committed.”
While reaching its decision to quash the sentence imposed by the trial Court, the lower Court reasoned as follows at pages 1110 to 1111 of the records of appeal:
“In reviewing the sentence of imprisonment with option to pay fine, as in this case, this Court can vary the sentence to one of both imprisonment and fine or imprisonment without option to pay fine or enhanced fine. Considering the humungous amount stolen, the nature and gravity of the crime and its destructive effect on the country and its impact on the retired police officers and the grave breach of public trust, a severe sentence that would deter the further commission of such crime and prevent the convict from retaining any part of what he stole to avoid him obtaining financial benefit from his crime should be imposed…”
It is beyond doubt that the menace of corruption and its associated vices including misuse of public office and mismanagement of public funds remains a major scourge ravaging this country. There must be concerted efforts especially on the part of the Courts to send the right signals to managers of public funds that it is no longer possible and tolerable to squander public funds and continue basking in affluence, such conduct must be made unattractive, shameful and condemnable our Courts must ensure that the spirit and letter of extant laws are implemented. As the lower Court rightly noted, in sentencing a convict in respect of a crime that has gained notoriety and is prevalent in the community, it is incumbent on the Court to impose a severe sentence in order to deter the convict and the general community from further committing the crime. It is worth stating that the values of the elite constitute the dominant value that drives the wider values of the society. Where the elites, who are found wanting, are made to face the wrath of the law, so doing will serve as deterrent to others. The Appellant in this appeal abused public office and public trust, he became an attractive and admirable public figure in the society commanding undeserved respect and influence because he mismanaged public funds, the conduct of the Appellant and people in his position, gang and enterprise send wrong signal to the society that corruption is a way of life and pays, we have a duty as a Court to stop this negative trend and drift, public office must be shown to be public trust, public office holders must be made to understand that they must give account of their service, holding public office is more of a burden than an instrument of oppression, regression and arrogant display of affluence. Public officers must not be allowed to have sound sleep after squandering public funds, abuse of power, trust and responsibility must attract serious condemnation, and penalty, public officers engaged in mismanaging public affairs must be ostracized and made to cough out all proceeds of crime acquired as a result of abuse of public trust.
Let me understand the grievance of the Appellant in this appeal, he opted for plea bargain, he consciously without any intimidation opted to plead guilty to Counts 18, 19 and 20 of the amended charge, his major quarrel is that the lower Court varied his sentence on counts 18, 19 and 20, Appellant pleaded guilty to the three Counts. It is the law, that after a plea of guilty by an accused person before the Court, the Court must formally proceed to conviction without calling upon the prosecution to prove the commission of the offence, this is because the admission of guilt on the part of the accused has fully satisfied the burden of proof, see: DONGTOE V. CIVIL SERVICE COMMISSION PLATEAU STATE & ORS, (2001) LPELR-959 (SC), R V. WILSON (1959) SCNLR 462. At pages 938-939 when the charge was read to the Appellant he pleaded guilty, and the implication of plea of guilty is that the Court is justified in proceeding to convict and sentence.
By the provisions of Section 311 (2) of the Administration of Criminal Justice Act, in imposing sentence, the Court must consider among other things, the objectives of sentencing, including the principles of reformation and deterrence; the interest of the victim, the convict and the community. Is it possible to say, the trial Court took into account, reformation and deterrence, interest of the victim, the convict and the community? The trial Court merely fulfilled its obligation of passing sentence without having regard to public interest. The lower Court apparently irritated by the conclusion reached by the trial Court at pages 1091 to 1092 held as follows:
“Let now consider the reasons the trial Court for the sentence challenged in this appeal. After considering the convict is a first offender, that he has shown remorse, that he did not waste time of the Court in the trial , that he and his parents have medical challenges, that he is the bread winner and supporter of his family, and community children, that he has forfeited assets, and held that it has a duty to temper justice with mercy, the trial Court then held thus” The Court on the other hand has a duty to do justice not only to the convict but to the State as the representative of the Nigerian Society whose norms had been breached. Nigeria is bedeviled with the canker worn of white collar crimes which has reduced its citizens to abject poverty. The standard of living of the ordinary man and woman on the street is declining day by day, with the current resultant effect of insecurity in the nation. The Court has a duty therefore to impose a sentence that Court serves as a correction to the convict and deterrence to others”
After citing the decision of the trial Court in such substantial details, the lower Court went ahead again to hold as follows and I quote:
“It is clear that the trial Court considered two sets of facts. It considered the fact that made it feel obligated to temper justice with mercy. It then considered that fact that made it feel duty bound to impose a sentence that Court serve as a correction to the convict and deterrence to other persons. But the judgment did not show how it balanced these two competing demands and how it discharged the competing duties. What is clear from the judgment is that after high lighting these two competing duties and their factual basis, it proceeded to levy the sentence without showing clearly whether the sentence was influenced by the consideration of tempering justice with mercy or consideration of correction of the convict and deterrence of the community generally.
Without the judgment expressly stating so, the choice of the punishment of 2 years imprisonment with the option to N250,000.00 fine for each count of offence, an amount obviously very disproportionate to the humongous amount of over 24 Billion Naira stolen or converted by the convict, appear to have been influenced by the consideration of tempering justice with mercy and being lenient to the convict, than consideration of correcting the convict and deterring other persons. The custodial sentence of 2 years to be suffered together with monetary sentence reasonably proportionate to the sum of over 24 Billion Naira stolen converted would have been more consistent with a deterring sentence. The sentence does not show that it was influenced by consideration of the impact of the crime”
In view of all I said therefore, I cannot in any way agree with the learned Counsel for the Appellant that the sentence imposed on the Appellant by the learned trial Judge was proper, having regard to the factual circumstances of this case. It is true that upon his plea of guilty and consequential conviction, the Appellant forfeited about thirty-two (32) properties as well as the sum of N325,187,867.18 (Three Hundred and Twenty-Five Million, One Hundred and Eighty-Seven Thousand, Eight Hundred and Sixty-Seven Naira, Eighteen Kobo) and also paid the cumulative sum of N750,000.00 (Seven Hundred and Fifty Thousand Naira) as fine in lieu of the two year imprisonment sentence imposed by the trial Court. I must say that forfeiture of proceeds of crime, the payment of fine do not constitute sufficient punishment for the heinous crime committed by the Appellant. It is the law that a criminal must not be allowed to benefit from the proceeds of his or her crime, the criminal must be stripped of all perceived proceedof crime in his possession. It is reckless, outrageous and immoral to allow a criminal fling plea bargain as an instrument for retaining proceeds of crime. I think the time has come for us as a Nation to embark on meticulous scrutiny of proceeds of crime in the hands of offenders to ensure that they go home dry with nothing, this will show that there is no incentive in stealing public funds, it is unfortunate that, all efforts to ensure total restitution is hardly achieved as acknowledged by the Legislative Guide to the United Nations Convention against Transnational Organized Crimes and the Protocols thereto, pages 140 to 141, which provides as follows and I quote
“Criminalizing the conduct from which substantial illicit profits are made does not adequately punish or deter organized criminal groups. Even if arrested and convicted, some of these offences will be able to enjoy their illegal gains for their personal use and for maintaining the operations of their criminal enterprises. Despite some sanctions, the perception would still remain that crime pays…”
As a nation, we must continue in our efforts to show that crime does not pay, we can only achieve so doing if the Court even where there is a contraption in the name of plea bargain takes proactive steps to ensure that criminals are totally and completely stripped of proceeds of crime.
Premised on the above therefore, it will appear that considering the offence for which the Appellant was convicted by the trial Court, Appellant merely got a slap on the wrist with the imposition of a meagre, paltry, insignificant, ridiculous and laughable sum of N750,000.00 (Seven Hundred and Fifty Thousand Naira) as fine in lieu of imprisonment on 3 Counts for which the Appellant was convicted. I share the same views with the lower Court that in view of the sum misappropriated by the Appellant and his clear and express plea of guilty, the nature and gravity of the crime; its destructive effect on the country and its negative impact on the beneficiaries of the funds – retired police officers and the grave breach of public trust, a severe sentence ought to have been imposed to deter the further commission of such heinous crimes. The decision of the lower Court to interfere with the ridiculous, bizarre and outrageous sentence imposed by the trial Court on the Appellant cannot be faulted. I wholly endorse it and order that parties in this appeal queue behind the decision as it is sound and revolutionary, and a note of counsel to potential criminals that it is no longer business as usual. The Appellant tried to insist that Count 18 charged him along with others, he ought to have shared the amount with them, I think this is entirely his business, he took the bull by the horn, he pleaded guilty to the said Count, he must not expect the Court to embark on mathematical calculations allocating and apportioning guilt, more so the other accused persons pleaded not guilty. It must be made very clear that victims of crime are entitled to restitution, the contributors to the police pensions fund are entitled to restitution, they must be paid the funds stolen by the convict.
I fully endorse the decision of the lower Court and hold that the Appellants appeal is totally and completely frivolous, vexatious and devoid of a scintilla of merit it therefore deserves to be dismissed, it is hereby dismissed.
The decision of the lower Court delivered on the 21st day of March, 2018 in APPEAL No: CA/A/366C/2013 is hereby affirmed.
Appeal dismissed.
SC.355/2018
