ISHAKA v. STATE
(2022)LCN/16911(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/AS/397C/2018
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
MR. LUCKY ISHAKA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
FACTORS TO BE CONSIDERED BY THE COURT WHEN REVIEWING A SENTENCE
The first complaint under this issue is that the sentence imposed on the appellant by the lower Court is completely wrong and against the principles and policies which should guide the Courts in imposing sentences particularly Section 413 (2) of the ACJL of Delta State which provides that:
“In exercising its discretion of sentencing or review of sentence, the Court shall take into consideration the following factors, in addition to the provisions of Section 401 of this law:
(a) Each case shall be treated on its own merit;
(b) The objectives of sentencing, including the principles of reformation, shall be borne in mind in sentencing a convict;
(c) An Appeal Court may, in a proper case, reduce the sentence imposed by the trial Court, especially where it is excessive or based on wrong principles, or an Appeal Court may increase the sentence imposed by the trial Court especially where it is inadequate;
(d) A trial Court shall not pass the maximum sentence on a first offender;
(e) The period spent in prison custody awaiting or undergoing trial shall be considered and computed in sentencing a convict;
(f) Trial Court shall conduct an inquiry into the convict’s antecedents before sentencing;
(g) It may be desirable to adjourn for sentencing in order to have time to consider any evidence adduced at the sentencing hearing in accordance with Section 311 of this Law;
(h) Where there is doubt as to whether the defendant or convict has attained the age of 18, the Court should resolve the doubt in his favour;
(i) A defendant may not be given consecutive sentences for two or more offences committed in the same transaction;
(j) An Appeal Court may not increase the sentence of a lower Court beyond the maximum number of years the lower Court has power to impose; and
(k) Sentencing to a term of imprisonment shall apply only to those offenders who should be isolated from society and with whom other forms of punishment have failed or is likely to fail.” PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT A STATUTE CAN BE CONSTRUED TO HAVE A RETROSPECTIVE OPERATION
However, it is a settled general principle that no statute should be construed to have a retrospective operation unless the terms of the statute say so in clear and unequivocal language. See ADESANOYE & ORS V. ADEWOLE & ANOR (2000) LPELR-142(SC) AT 18-19 (B-C). SPDC V. ANARO & ORS (2015) LPELR-24750(SC) AT 64 (C-G). MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE V. COMPACT DISC TECHNOLOGY LTD & ORS (2018) LPELR-46353(SC) AT 32-33(E-F). ZUBAIR V. KOLAWOLE (2019) LPELR-46928(SC) AT 36 (C-G). Statutes are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. The provisions of ACJL cannot be applied in the instant case which came into existence before the law was passed when the legislature clearly and unequivocally stated the date of the commencement of the operation of the law. See BALOGUN V. FRN (2018) LPELR-44099(CA) AT 12-16 (B-B). PER BOLAJI-YUSUFF, J.C.A.
THE POSITION OF LAW ON WHEN A SENTENCE IS SAID TO BE EXCESSIVE
A sentence is said to be excessive when a trial Court imposes a sentence more than or in excess of the term allowed by law. See DAVID VS COMMISSIONER OF POLICE (2019) 2 NWLR (PT 1655) 178. ELIYA & ANOR V. STATE (2020) LPELR-50318(CA) AT 55-56 (G-E). EMMANUEL V. FRN (2019) LPELR-47925(CA) AT 16-17 (E-E). For clarity I reproduce the provisions of Sections 364 (2), 406 and 516 of the Criminal Code Law of Delta State under which the appellant was charged and convicted for conspiracy to commit a felony, kidnapping and demanding with menaces:
Section 364(2)
“Any person who-
Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned, is guilty of a felony, and is liable to imprisonment for ten years.”
Section 406:
“Any person, who with intent to steal anything, demands it from any person with threats of any injury or detriment of any kind to be caused to him, either by the offender or by any other person, if the demand is not complied with, is guilty of a felony, and is liable to imprisonment for three years.”
Section 516. PER BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against judgment of the High Court of Delta State delivered in charge no. EHC/58C/2012. The appellant and three other persons were arraigned and tried on five counts charge of conspiracy to commit kidnapping, conspiracy to commit armed robbery, kidnapping of Mrs. Mercy Ezoukumo, kidnapping of Mrs. Priscilla Elogie and demanding money with menaces contrary to Sections 364 (2), 406 and 516 of Criminal Code Law, Cap C21 Volume 1, Laws of Delta State, 2006. On 4/12/2014, the appellant was convicted and sentenced to a total of 37 years imprisonment on all the five counts with an order that the sentences are to run consecutively.
Pursuant to an extension of time granted by this Court on 20/3/2018, the appellant filed a notice of appeal against the sentences only on 18/4/2018. The three grounds of appeal without their particulars are as follows:
“GROUND ONE
The learned trial Judge misdirected himself in law when he held as follows:
“Accordingly, I hereby order as follows: in count I, which is the offence of conspiracy to kidnap, each and every one of the four (4) accused persons is hereby sentenced to seven (7) years imprisonment. In count II, for the offence of kidnapping under Section 364 (2) of the Criminal Code, each of the accused persons is hereby sentenced to imprisonment for 10 years each with hard labour. In count III, as in Sections 364 (2) of the Criminal Code, each and every one of the accused persons is hereby sentenced to 10 years imprisonment with hard labour. In count IV as in Section 406 of the Criminal Code, each of the four accused persons is sentenced to prison for three (3) years as specified in the code. In count V, for conspiracy to commit armed robbery as in Section 516 of the Criminal Code, the four (4) accused persons are sentenced to seven (7) years imprisonment each with hard labour…The 3rd and 4th accused persons are sentenced in the whole to a total of 37 years each. As the count do not run concurrently.”
GROUND TWO
The learned trial Judge erred in law in that the sentence of 37 years imposed on the 4th accused person/appellant is excessive in all circumstances of the case.
GROUND THREE
The learned trial Judge erred in law in imposing a sentence of 37 years on the 4th accused person/appellant when there are no wholly exceptional circumstances to do so.”
The appellant’s brief of argument was settled by Chief I.O. Itebu. It was filed on 6/8/21. The respondent’s brief of argument was settled by P.A. Okoh, Assistant Director, Ministry of Justice, Delta State. It was filed on 31/1/22. The two briefs were deemed as properly filed and served on 9/2/22. The appellant formulated the following issues for determination:
1. Whether the trial Court was right in law in imposing sentences for the offences of conspiracy to commit kidnapping, conspiracy to commit armed robbery, kidnapping and demanding money with menaces, offences which were committed in the same transaction and which related to the same set of facts and ordered the sentences to run consecutively.
2. Whether the trial Court was right in law in imposing multiplicity of short consecutive sentences, adding up to a substantial sentence, for a number of similar offences forming a series of transactions.
3. Whether the maximum sentence imposed on the appellant by the trial Court on all the five Courts is not excessive in the circumstances of the case.
The respondent formulated the following issues for determination:
1. Whether the trial Judge exercised its discretion judiciously and judicially in sentencing the appellant.
2. Whether the sentence on the appellant by the trial Judge is excessive in view of the evidence before the Court.
I have considered the issues formulated by counsel to both parties. The following in my view are the issues for determination in this appeal:
a. Whether the sentences imposed on the appellant by the trial Court in respect of all the five offences for which he was convicted are excessive in the circumstances of the case.
b. Whether the trial Court was right to order that the sentences should run consecutively.
On issue 1, the appellant’s counsel contends that though the Administration of Justice Law (ACJL), 2016 of Delta State came into force in 2016, since it is a procedural law, it applies to this appeal. He referred to AZI V. FRN (2019) LPELR-46430(CA). DAUDU V. FRN (2018) LPELR-43637(SC). ROSSEK V. ACB (1993) 8 NWLR (PT.312) 382. He submitted that the lower Court erred in law when it went against the sentencing guidelines set down in Section 413 (2) of the ACJL, 2017. He argued that since conspiracy to commit kidnapping, conspiracy to commit armed robbery, kidnapping and demanding money with menaces relate to one act or same set of facts, the imposition of separate sentences amounts to punishing the appellant two times for the same act. He referred to CLARK V. STATE (1986) 4 NWLR (PT.35) 381 AT 403-404. DAYO OSHOKOYA & ORS. V. THE STATE (1986) 2 C.A. (PT. 1) 422. JOHN & ANOR. V. THE STATE (1967) NMLR 101. He submitted that all the five counts should have been regarded as alternative charges by the lower Court. He referred to OLOWOSALE V. CUSTOMS EXCISE BOARD (1981) 2 NCR 401 AT 412-413 (25-40).
Counsel argued that even though there is no obligation on the part of a trial Court to give reasons for imposing the maximum sentence on all counts, the lower Court should have done so in the circumstances of this case. He referred to EKPO V. STATE (1982) 1 NCR 34. He contends that the maximum sentence and 37 years imprisonment imposed on the appellant by the lower Court is manifestly excessive, against the principles and policies on sentencing particularly the provisions of Section 413 (2) of ACJL and public interest which guide the Court in imposing sentences. He referred to EGUNJOBI V. FRN (2002) FWLR (PT.105) 896 AT 937-938 (E-C). He further contends that the lower Court did not exercise its discretion properly in sentencing the appellant as it did not hear evidence of or consider the antecedents and character of the appellant and did not take into consideration the fact that the appellant is a first offender and had been in custody from 18/4/2012 when he was arrested until 4/12/2014 when judgment was delivered. He referred to OSAYEME V. THE STATE (1966) NMLR 388. KWALE V. STATE (2003) FWLR (PT.159) 1504 AT 1530 (F-G). OYENEYE V.COP (1983)1 NCR 245. NJOKU V. STATE (2013) ALL FWLR (PT. 689)1072 AT 1091(B-C).
He finally submitted that this Court has the jurisdiction to reduce a sentence if it finds substantial evidence in the record of appeal mitigating circumstances in favour of the appellant and if the sentence is excessive as to satisfy the Court that when it was passed there was failure to apply the right principles. He referred to ADEYEYE V. STATE (1968) NMLR 48. EKE V.FRN (2013) ALL FWLR (PT.702) 1748 AT 1793 (F-A).
In response to the appellant’s argument on the application of ACJL to the instant case, the respondent’s counsel submitted that the procedural law in operation at the time the case is instituted governs a case and criminal law does not take a retrospective effect. He further submitted that failure of the trial Court to give reasons for the sentence imposed will not vitiate conviction as the appellate Court is in a position to review the sentence if it is excessive or inadequate. He referred to IORTIM V. THE STATE (1997) 2 NWLR (PT. 490) 771.
On the alleged failure of the lower Court to take into consideration the antecedents and character of the appellant, counsel submitted that the appellant was represented by counsel and allocutus was delivered before the appellant was sentenced. On the purpose and effect of allocutus, he referred to EDWIN V. STATE (2019) LPELR-46896(SC). STATE V. BABANGIDA (2013) LPELR-20590(SC). ODUNAYO V. THE STATE (2013) LPELR-21459(CA). He posited that it is a notorious fact that kidnapping is a serious offence which leaves the victim traumatized and in some cases, death and the victims in the instant case suffered both emotional and psychological trauma which influenced the Court in the exercise of its discretion in passing sentence. He referred to SALEH V. THE STATE (2015) LPELR-40399 (CA).
He finally submitted that Section 381 of Criminal Procedure Law, Cap C22 Volume 1, Laws of Delta State, 2006, provides that a sentence of imprisonment takes effect from the date on which it is pronounced and where no discretion regarding sentence is to be exercised, the period of incarceration before conviction cannot be taken into consideration when sentence is passed as there is no law which stipulates that a sentence should commence from the date an accused was arrested. He finally submitted that no miscarriage of justice has been occasioned by the conviction and sentencing of the appellant as the lower Court acted within the ambit of the law. He referred to AFOLABI V. THE STATE (2013) 54 NSCQR 822 AT 864-865.
RESOLUTION
The first complaint under this issue is that the sentence imposed on the appellant by the lower Court is completely wrong and against the principles and policies which should guide the Courts in imposing sentences particularly Section 413 (2) of the ACJL of Delta State which provides that:
“In exercising its discretion of sentencing or review of sentence, the Court shall take into consideration the following factors, in addition to the provisions of Section 401 of this law:
(a) Each case shall be treated on its own merit;
(b) The objectives of sentencing, including the principles of reformation, shall be borne in mind in sentencing a convict;
(c) An Appeal Court may, in a proper case, reduce the sentence imposed by the trial Court, especially where it is excessive or based on wrong principles, or an Appeal Court may increase the sentence imposed by the trial Court especially where it is inadequate;
(d) A trial Court shall not pass the maximum sentence on a first offender;
(e) The period spent in prison custody awaiting or undergoing trial shall be considered and computed in sentencing a convict;
(f) Trial Court shall conduct an inquiry into the convict’s antecedents before sentencing;
(g) It may be desirable to adjourn for sentencing in order to have time to consider any evidence adduced at the sentencing hearing in accordance with Section 311 of this Law;
(h) Where there is doubt as to whether the defendant or convict has attained the age of 18, the Court should resolve the doubt in his favour;
(i) A defendant may not be given consecutive sentences for two or more offences committed in the same transaction;
(j) An Appeal Court may not increase the sentence of a lower Court beyond the maximum number of years the lower Court has power to impose; and
(k) Sentencing to a term of imprisonment shall apply only to those offenders who should be isolated from society and with whom other forms of punishment have failed or is likely to fail.”
That argument is absurd and preposterous. The offences for which the appellant was convicted and sentenced were committed on 16/4/2012 and 17/4/2012. Judgment was delivered on 4/12/2014 and sentences were passed on the same day. It is clearly stated in Section 1 of The ACJL that the law “shall come into force on the 15th March, 2017. That is more than two years after the appellant had been sentenced to the mandatory terms of imprisonment provided in Sections 364(2), 406 and 516 of the Criminal Code Law. It is accepted that the Legislature is competent to make retrospective laws.
However, it is a settled general principle that no statute should be construed to have a retrospective operation unless the terms of the statute say so in clear and unequivocal language. See ADESANOYE & ORS V. ADEWOLE & ANOR (2000) LPELR-142(SC) AT 18-19 (B-C). SPDC V. ANARO & ORS (2015) LPELR-24750(SC) AT 64 (C-G). MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE V. COMPACT DISC TECHNOLOGY LTD & ORS (2018) LPELR-46353(SC) AT 32-33(E-F). ZUBAIR V. KOLAWOLE (2019) LPELR-46928(SC) AT 36 (C-G). Statutes are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. The provisions of ACJL cannot be applied in the instant case which came into existence before the law was passed when the legislature clearly and unequivocally stated the date of the commencement of the operation of the law. See BALOGUN V. FRN (2018) LPELR-44099(CA) AT 12-16 (B-B).
The second complaint is that the sentences imposed on all the five counts charge is manifestly excessive in the circumstances as the Court did not even consider an option of fine in lieu of imprisonment. A sentence is said to be excessive when a trial Court imposes a sentence more than or in excess of the term allowed by law. See DAVID VS COMMISSIONER OF POLICE (2019) 2 NWLR (PT 1655) 178. ELIYA & ANOR V. STATE (2020) LPELR-50318(CA) AT 55-56 (G-E). EMMANUEL V. FRN (2019) LPELR-47925(CA) AT 16-17 (E-E). For clarity I reproduce the provisions of Sections 364 (2), 406 and 516 of the Criminal Code Law of Delta State under which the appellant was charged and convicted for conspiracy to commit a felony, kidnapping and demanding with menaces:
Section 364(2)
“Any person who-
Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned, is guilty of a felony, and is liable to imprisonment for ten years.”
Section 406:
“Any person, who with intent to steal anything, demands it from any person with threats of any injury or detriment of any kind to be caused to him, either by the offender or by any other person, if the demand is not complied with, is guilty of a felony, and is liable to imprisonment for three years.”
Section 516
“Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Nigeria would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such lesser punishment.”
These are the sentences imposed on the appellant upon conviction for those offences. There is no option of fine for any of the offences for which the appellant was convicted. From the language of the relevant sections of the Criminal Code Law, the stipulated sentences are mandatory. The lower Court had no discretion to exercise in the matter. A Court cannot impose anything less than the mandatory sentence prescribed by a statute. See YUSUF V. FRN (2017) LPELR-43830(SC) AT 18-19 (A-A). On the duty of the Court to impose mandatory sentence, the Supreme Court in AMOSHIMA V. STATE (2011) 14 NWLR (PT. 1268) 530 AT 561 (A-B) his Lordship Fabiyi, JSC held thus:
“Where a mandatory sentence is provided as in this matter, same must be pronounced without any reservation. There is no escape route.”
The Court can only exercise discretion in sentencing where the statute provides for either the minimum sentence or the maximum sentence to be imposed. In such instance, the Court can rightly give the minimum sentence and not exceed the maximum or give less than the maximum. See AMOSHIMA VS. STATE (supra) AT PAGE 553 (A-C). In MOHAMMED V. A-G, FED (2020) LPELR-52526(SC), the Supreme Court interpreted Section 19 (b) of the Trafficking Act which provides that a person found guilty of an offence under the Sub-Section “is liable upon conviction to imprisonment for ten years or to a fine not exceeding N200,000.00 or both”. The Court Per KEKERE-EKUN, J.S.C AT 35 (A-G), held that:
“Earlier in this judgment, I reproduced the provisions of Sections 15 (a), 16 and 19 (b) of the Trafficking Act. Any person found guilty under Section 15 (a) of the Act is “liable on conviction to imprisonment for fourteen years without an option of fine”. Any person found guilty under Section 16 of the Act is “liable on conviction to imprisonment for ten years without an option of fine.”
The provisions are clear and unambiguous. The sentences are mandatory. The trial Judge has no discretion to exercise in the matter. The issue of discretion only arises where the law provides for a minimum or maximum sentence or an alternative sentence, in which case the Court has discretion not to impose less than the minimum and not more than the maximum sentence or to impose the alternative sentence in lieu of or in addition to the custodial sentence. See: Musa Yusuf vs FRN (2017) 8 NWLR (Pt. 1622) 502; (2017) LPELR-43830 (SC) AT 38 – 40 F – A.”
Per OKORO, J.S.C AT 37-38 (G- D) held that:
“Sections 15(a), 16 and 19(b) of the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003 under which the Appellant was charged give no discretion to the Judge to mitigate sentence. Having found the accused guilty under those Sections of the Trafficking Act, the Court was bound to impose mandatory sentence. Where a statute prescribes a mandatory sentence in clear terms, the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised. Rather, it is a duty imposed by law and the sentence must be pronounced without any reservation. See Joseph Amoshima v The State (2011) 6-7 SC (pt. 111) 1, The State v Babangida John (2013) LPELR-20590 (SC). The Courts below were therefore wrong to impose and affirm a sentence of 3 years imprisonment for count 3 whereas the statute prescribes a mandatory term of 10 years imprisonment or fine which must not exceed N200,000.00 or both.”
Thus it is settled that: 1) Where a statute prescribes a mandatory sentence in clear terms as in the instant case, the Court is without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised. 2) Where the statute gives the Court discretion in sentencing, the appellate Court will not interfere with the exercise of discretion by the lower Court unless the sentence imposed is manifestly excessive in the circumstances or wrong in principle. 3) The fact that the accused is a first offender and his age may be some of the factors that may be taken into consideration where the statute gives the Court discretion in sentencing. These factors are of no assistance to an accused where the statute stipulates a mandatory sentence for an offence. The sentences imposed on the appellant for each offence is within the provisions of the law. The complaint that the sentences imposed on the appellant are excessive is misconceived.
The appellant’s counsel also posited that the lower Court did not take into consideration the fact that the appellant is a first offender, his age and the fact that he and his wife committed the offences hence the imposition of punishment of crushing severity will make their children to suffer which is not in the interest of the public. My view is that the interest of the public is squarely against the appellant considering the seriousness and prevalence of the offences committed and the attitude of the society to the crime. One only needs to listen to or read the news, be it in the newspapers, electronic media or social media to appreciate the enormity of the violence and fear to which the citizens are subjected to. The society is under siege by men and women who have chosen to unleash brute force on the society by way of armed robbery and kidnapping as a way of getting rich quick rather than labour in dignity. The appellant who chose to set up a joint criminal enterprise with his spouse and unleash violence, fear, psychological trauma and untold financial hardship on the victims of their crimes and their families are not entitled to any favourable consideration particularly where the law has stipulated mandatory sentences for their crimes. It is in fact in the interest of the society to keep the appellant away from the society for as long as the law permits. In LUCKY V. STATE (2016) LPELR-40541 (SC) AT 39-41 (F-A) NGWUTA, J.S.C stated the purpose of punishment as follows:
“On the purpose of punishment imposed by the Court, Samuel Johnson said:
“Since revenge for its own sake cannot be justified, it will follow that the natural justice of punishment, as of every other act of man to man, must depend solely on its utility, and that its only lawful end is some good more than equivalent to the evil which it necessarily produces.”
Speaking of prison terms for crimes committed, Michael Howard at Conservative Party Conference of October, 1993 said:
“Prison works. It ensures that we are protected from murders, muggers and rapists and it makes many, who are tempted to commit crime think twice.” For both, see Alex McBride’s Defending the Guilty, page 194.”
The third complaint is that the lower Court did not take into consideration the fact that as at 4th December, 2014 when the sentences were passed, the appellant had been in prison custody for more than thirty (30) months awaiting trial. Section 381 of CPL specifically provides that “a sentence of imprisonment takes effect and includes the whole of the day of the date on which it was pronounced.” It is settled by a plethora of cases that where a mandatory sentence is prescribed by law as in the instant case, the Court has no discretion to reduce or to go backwards to the commencement of the term of imprisonment in which the period spent awaiting trial up to the judgment day could be factored. See AFOLABI VS. STATE (2013) 13 NWLR PAGE 292 at 326(F-G). ABDULLAHI V. STATE (2015) LPELR-25928(CA AT 20-21 (A-A). In view of the clear and unambiguous words of Section 381 of CPL on when a sentence of imprisonment takes effect, the lower Court could not have for any reason impose a lesser sentence in respect of any of the offences for which the appellant was convicted or consider the period of his detention as a factor for sentencing as all the offences carry mandatory sentences.
The fourth complaint is that the Court failed to state the reasons for imposing the sentences stipulated by the law. The law is that general sentencing is a matter within the discretion of the trial Court and like any other discretion, it must be exercised judicially and judiciously within the law. That is why it is desirable that the trial Judge state the factors that influenced his decision. However, failure to give the reasons for the sentence will however not vitiate the conviction. See EKPO V. STATE (1982) 1 NCR 34. IORTIM v. THE STATE (1997) 2 NWLR (Pt. 490) PAGE 771. In any case, the lower Court at pages 147-148 of the record of appeal stated that:
“This punishment shall serve as a lesson to other wicked members of our society who takes delight in choosing to do evil and thriving in wickedness. The four (4) accused persons met their waterloo and got caught up finally having lived in continuous wickedness until that faithful day.”
Even if the lower Court had not stated the above fact, the failure would not affect the sentences imposed on the appellant in respect of each of the offences for which he was convicted. This is because the sentences are mandatory sentences stipulated by law. Issue 1 is resolved against the appellant.
Issue 2 is whether the trial Court was right to order that the sentences should run consecutively. Counsel contends that the sentences imposed by the Court should not have been ordered to run consecutively because the offences were committed in the same transaction and the prosecution relied on the same set of facts to prove the five counts charge.
In response, the respondent’s counsel submitted that the evidence on record shows that the offences do not relate to the same acts as the victims were kidnapped at different times and from different locations. PW1 was kidnapped on 16/4/12 while PW2 was kidnapped on 17/4/12. He also submitted that the law allows the trial Court to sentence an accused after conviction and to order that the sentence imposed should run concurrently or consecutively depending on the circumstance of each case. He referred to ALFRED V. STATE (2017) LPELR-42612. OKECHUKWU V. STATE (1993) 9 NWLR (PT.315) 78 AT 94-95.
RESOLUTION
Counts 1, 2 and 5 relates to conspiracy to kidnap, conspiracy to commit armed robbery and kidnapping of Mrs. Mercy Ezeukumo on 16/4/2012. Count 4 relates to demanding a sum of N10,000,000.00 (Ten million Naira) from Mr. Ezeukumo with threat to kill Mrs. Ezeukumo if the demand was not complied with. Count 3 is in respect of kidnapping of Mrs. Priscilla Elogie. These are two separate and distinct crimes committed on two different dates against different victims. The contention that the facts upon which the prosecution relied to prove the five counts charge relate to one act or one set of facts is misconceived. However, in deciding whether sentences should run concurrently or consecutively, the Court should be guided by the provisions of the relevant statute. Since the appellant was charged, tried and sentenced under the Criminal Code Law of Delta State before the coming into force of ACJL, the provisions of Criminal Procedure Law of Delta State should guide the Court on when to order that sentences of imprisonment should run consecutively. Section 380 of the Criminal Procedure Law of Delta State provides that:
“Where a sentence of imprisonment is passed on any person by a Court, the Court may order that the sentence shall commence at the expiration of any other term of imprisonment to which that person has been previously sentenced by any competent Tribunal in Nigeria so however that where two or more sentences passed by a magistrate’s Court are ordered to run consecutively the aggregate term of imprisonment shall not exceed four years or the limit of jurisdiction of the adjudicating magistrate whichever is the greater.”
From the words of Section 380 of CPL, the Court can order that terms of imprisonment shall run consecutively where the convict is already serving another sentence previously imposed by a competent Court or Tribunal for a different offence. Where an accused is tried and convicted for different offences whether based on the same act or different acts or facts in one single trial as in this case, the Court should not order that the sentences of imprisonment in respect of the offences should run consecutively. I am of the firm view that the principle of INTERPRETATION OF STATUTE “EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS RULE” should be applied in the interpretation and application of Section 380 of CPL. In BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR-812(SC) AT 20(B-E), the Supreme Court explained how the principle of expressio unius est exclusio alterius is applied in construction of statute as follows:
“The principle is well settled that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This is the expressio unius est exclusio alterius rule, meaning that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication. See Ogbunyiya v. Okudo (1979) 6-9 SC 32; Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt. 304) 139.”
See also AG ONDO STATE V. AG EKITI STATE (2001) LPELR-622(SC) AT 65-66 (G-G). An order that terms of imprisonment imposed in respect of different counts in a charge should run consecutively amounts to unwittingly increasing the maximum or mandatory sentence stipulated by law. More so when Section 381 of CPL provides that “a sentence of imprisonment takes effect and includes the whole of the day of the date on which it was pronounced.” See OKPOGO V. FRN (2018) LPELR-44271(CA) AT 21-22 (B). NZEGBUNE V. STATE (2020) LPELR-49670(CA) AT 53-55(E).
The law is settled that the discretion of the Court must at all times be exercised not only judiciously but judicially. An appellate Court is always reluctant to interfere with the way a trial Judge exercised his discretion but would be compelled to do so if the discretion was wrongly exercised or the exercise of the discretion was tainted with some illegality or substantial irregularity. See DAVID V. CP, PLATEAU STATE COMMAND (2018) LPELR-44911(SC) AT 11-16 (E). EROMOSELE V. FRN (2018) LPELR-43851(SC) AT 24-26 (C). ABIODUN V. FRN (2018) LPELR-43838(SC) AT 24-26(D). In the instant case, the order that the sentences imposed on the appellant should run consecutively is a wrong exercise of discretion in view of the provisions of Section 380 of CPL. Issue 2 is resolved in favour of the appellant.
Having resolved issue 2 in favour of the appellant, the appeal succeeds. The order of the lower Court that the sentences imposed on the appellant shall not run concurrently is hereby set aside. In its stead, it is hereby ordered that the sentences imposed on the appellant on all the five counts shall run concurrently effective from 4th December, 2014 when the sentences were imposed.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege of a preview of the lead judgment of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered. I agree with the reasoning and conclusion therein which I adopt as mine in holding that the appeal succeeds in part. I abide by the consequential orders made in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft judgment of my lord MISITURA OMODERE BOLAJI-YUSUFF, JCA just delivered before now, and I agree with the reasoning and conclusion therein and wish to only state in addition that:
An accused who is tried and convicted for different offences whether based on the same act or different acts in one single trial, the Court should not order that the sentences of imprisonment in respect of each offence should run consecutively, this, the lower Court failed to do.
For this and other reasons in the lead judgment, I join his lordship in allowing the appeal. I abide by the consequential order(s) in the lead judgment.
Appearances:
B.O. Ogboru holding the brief of Chief R. O. Itebu For Appellant(s)
P.A. Okoh, Assistant Director, with him, O. Eyesio, Senior State Counsel and I. E. Okoli, Pupil State Counsel, Ministry of Justice, Delta State For Respondent(s)
