EYO NSA v. FEDERAL REPUBLIC OF NIGERIA (2017)

EYO NSA v. FEDERAL REPUBLIC OF NIGERIA

(2017)LCN/9465(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of February, 2017

CA/C/200/2015

RATIO

COURT: THE PRINCIPLE GUILDING EXERCISE OF DISCRETION BY COURT
InHACO LTD v. BROWN (1973) 4 SC (REPRINT) 103, IRIKEFE JSC held that:
“Discretion must be exercised on fixed principles that are according to rules of reason and justice not according to private opinion. (See SHARPE vs. WAKEFIELD (1891) AC 175, 179; WURNO v. U.A.C. LTD. (1956) (FSC 33, 34).
Similarly, the exercise of this discretion must not be affected by questions of benevolence or sympathy.”
In the case of ODUBA v. HOUTMANGRACHT (1997) 6 NWLR (PT. 508) 185, IGUH, JSC held emphatically that a Court’s exercise of its discretion without adverting to all the peculiar facts and circumstances of the particular case before it has been said to be as bad as its exercise upon a wrong principle. See LEONARD OKERE v. TITUS NLEM (1992) 4 NWLR (PT. 234) 132 per Nnaemeka-Agu, JSC. And if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of an appellate Court to have it reviewed. PER STEPHEN JONAH ADAH, J.C.A.

PROCEDURE: WHEN IS THE APPROPRIATE TIME TO CLAIM THE RIGHT TO INTERPRETATION
It is now settled that where an Appellant was represented at the trial Court, his counsel ought to raise the issue of interpretation at the trial if that was necessary. In MADU v. STATE (1997) 1 NWLR (pt. 492) 386, the Supreme Court held that if a counsel does not raise or claim the right to interpretation at the appropriate time he may not be able to have a valid complaint afterwards for example, on appeal. See also the case of OKORO v. THE STATE (2012) LPELR-7846 (SC). PER STEPHEN JONAH ADAH, J.C.A.

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

EYO NSA Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): On 2nd of April, 2013, the Appellant Eyo Nsa was arraigned before the Federal High Court, Calabar Division in Charge No.FHC/CA/CR/25/2013 for the offence of dealing in 450 grammes of Cannabis Sativa a narcotic drug similar to Cocaine Heroin and LSD contrary to and punishable under Section 11(C) of the National Drug Law Enforcement Agency Act, Cap. N30, LFN, 2004.

The prosecution called three witnesses while the Appellant as the accused person solely testified for himself. At the end of the trial, the Lower Court found the Appellant guilty of the offence. He was therefore convicted and sentenced to a term of ten years imprisonment on the 18th of May, 2015.

Aggrieved by his conviction and sentence, the Appellant appealed to this Court vide his notice of appeal filed on 30th day of July, 2015.

The Record of Appeal was transmitted to this Court on the 20th day of October, 2015. The Appellant’s brief was filed on the 11th day of April, 2016 but deemed 6th June, 2016. The Respondent’s brief was filed on the 11th day of July, 2016.

?The Appellant’s Notice of

Appeal contains four grounds of appeal.
These grounds shorn of the particulars are drawn up as follows:
GROUND 1
The learned trial judge erred in law when he convicted the Appellant of the offence of dealing without lawful authority in 450 grammes of cannabis sativa a narcotic drug similar to Cocaine, Heroin and LSD contrary to and publishable under Section 11(c) of the National Drug Law Enforcement Agency Act Cap. N30 LFN when there was no proper evidence of the nature of the substance before the Honourable Court.
GROUND 2
The Appellant was denied fair hearing.
GROUND 3
The sentence of 10 years without option of the fine passed on the Appellant by the trial Court is excessive.
GROUND 4
The judgment is unreasonable and cannot be supported having regard to the evidence.

From these four grounds of appeal, the Appellant formulated two issues for determination while the Respondent formulated two Issues similar to the ones formulated by the Appellant. These issues formulated by the Appellant are as follows:
(a) Whether the sentence of 10 years without an option of fine passed on the Appellant by the trial Court

is not excessive? Ground 3.
(b) Whether failure to provide the service of an interpreter did not amount to the Appellant being denied fair hearing? Ground 2.

The issues as distilled by the Respondent are couched as follows:
(a) Whether considering the nature of the offence for which the accused was charged and all the surrounding circumstances of this case, the learned trial judge acted judicially and judiciously in the exercise of his discretion in sentencing the Appellant to 10 years imprisonment without an option of fine.
(b) whether in the circumstances of this case where the Appellant was represented by counsel throughout the trial, and whose counsel failed to request for an interpreter on the basis that the Appellant does not understand the language of the Court, the Appellant can complain of denial of fair hearing on appeal.

The Appellant from his brief of argument did not argue grounds 1 and 4 of his grounds of Appeal. This trend was also maintained in the Respondent’s brief. What this means is that, the Appellant has abandoned grounds one and four of the notice of appeal. Since these two grounds were not argued by the parties

they are incompetent and must be struck out because this Court has no jurisdiction to look into issues that are not properly raised for consideration. Grounds 1 and 4 of the notice of appeal are accordingly struck out.

Let me then take on the two issues raised and argued by the parties in their briefs.

ISSUE ONE
This issue deals with the sentence of ten years without option of fine.

The Appellant in his argument canvassed that the sentence is excessive. He admitted that sentencing is discretionary but that every case must be considered on its own merit. That over the years the Courts have evolved guidelines in matters of sentencing. One of the guidelines he said, is to consider whether there is previous criminal record of the accused. He relied on the cases of MAIZAKO v. SUPT. GENERAL OF POLICE (1960) WRNLR 189; UWAKWE vs. THE STATE (1974) 6 SC 25; OMOJU v. FRN (2008) 7 NWLR (pt. 1085) 34 AND EMMANUEL KPOOBARI V. FRN SC (Unreported).

The learned counsel for the Appellant contended that the Appellant has no record of any previous conviction. He urged the Court to hold that the sentence imposed on the Appellant is excessive.
?
The

learned counsel for the Respondent argued that the offence for which the Appellant was convicted under Section 11(c) of the NDLEA Act carries Life Sentence. That sentencing is discretionary and that the discretion must be exercised judicially and judiciously having regards to the circumstances as the case. He relied on the cases of AMOSHIMA VS. STATE (2011) ALL FWLR (PT. 597) 601, 675 AND AKINYEMI v. ODUA INV. CO. LTD. (2012) ALL FWLR (pt. 620) 1215, 1236. That the Court was put to the rigorous of trying the Appellant. That the Lower Court did not see any mitigating circumstance in favour of the Appellant. He cited the case of NJOKU v. STATE (2013) ALL FWLR (PT. 689) 1072, 1091. He contended as follows that:
“Section 11(c) of the NDLEA Act does not disseminate or make any distinction or segmentation on the basis of quantity of drug comprised in the charge against the Appellant. It is further submitted that in a charge of dealing, quantity bears little or no relevance as in that case, the law presumes that what the Appellant was arrested and charged with is the undisposed and yet to be sold residue of the initial (unquantifiable) stock. I urge the Court to

so hold.”

It is true that the law Section 11(c) of the NDLEA Act did not calibrate the quantum of the drug an accused deals in before criminalizing it. However, to postulate as the Respondent’s counsel did in the brief that the “law presumes that what the Appellant was arrested and charged with is the undisposed and yet to be sold residue of the initial (unquantifiable) stock” is with due respect nothing but a quirk or a foible of reasoning. It is not a presumption of law but an issue of fact to be established by evidence of the witnesses. It is rather unfortunate that grounds 1 and 4 of the notice of appeal were abandoned by counsel if not the Court would have looked critically to see whether there was any evidence of dealing in cannabis Sativa placed before the Lower Court before the Appellant was found guilty, convicted, and sentenced for an offence of dealing in 450 grammes of cannabis sativa. Under Section 11(c) of the NDLEA Act the offence is created as follows:
“Any person who, without lawful authority sells, buys, exposes or offers for sale or otherwise deals in or with the drugs popularly known as cocaine, LSD, heroin or any other similar

drugs shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life.”
From the language of this law, the offence of “dealing” goes beyond mere possession of illicit drugs. The basic ingredients of this offence must be proved beyond reasonable doubt as required under Section 135 of the Evidence Act, 2011. These ingredients are:
(1) Absence of lawful authority to deal in the drug;
(2) There must be proof that the person sells, buys, exposes, or offers for sale or otherwise deals in or with the drugs “deals in or with” specified here is a phrase of commerce which is to do business or trade in; or to buy and sell as a business.

From the evidence before the Lower Court, my query is simple. Is there anywhere this Appellant had been pinned down to the fact that he was selling, buying or exposing to sell or offering for sale? No where! The only faint link in the prosecution evidence was from the evidence of PW2.

Hear him:
“My name Stephen Joseph Abuks. I worked with the National Drug Agency NDLEA Cross River State. I am a superintendence of Narcotics, I know the accused in the dock. On the 10/3/2013, I

received information about the illicit area activities of their accused person. I immediately conducted surveillance on him, and confirm that he was dearly in dry beans suspected to be cannabis sativa. On 12/3/2013, said term went to the accused house at no. 3 Ephraim Street, Calabar. Sent at 18:40hrs (6:40pm) on getting to his house we saw him sitting outside the veranda of his house. We approach him and I asked him to give us the substance he was selling. He tried to deny it but we led him to his room and conducted a search there-in, we recovered a black polythene bag concealing dry weeds suspected to be cannabis sativa we asked him who is the owner of the black polythene bag and he said it is his own. Immediately arrested him in the presence of other officers and brought him to our office at Harbour Road Calabar which I immediately handed over the accused person and the exhibit to the exhibit keeper in person of Waziri Garba who immediately conducted a field test on the recovered exhibit. This was done in the presence of the accused person, myself and other officers. The field test proves positive for cannabis sativa.”

Under cross-examination, he said they

were 18 operators that went to the house of the accused. He said also that Bassey Etta Bassey investigated the case. Incidentally the said Bassey testified as the PW3 but there is no iota of account of his investigation that was revealed in his evidence. All he materially did was to write the statement of the Appellant down. The evidence of the PW3 is at pages 39 to 42 of the Record of Appeal. At the end of his evidence in chief, he was cross examined by the learned counsel for the Appellant. The cross-examination which is at page 42 of the record reads:
CROSS EXAMINATION BY THE DEFENSE COUNSEL
Q – What are your functions as a chief narcotic agents?
Ans. – My functions are that I am an operative and investigator.
Q – In performing your function, do you go out or you are an area chair investigator.
Ans. – If it permits I go out.
Q – In this case, the circumstance did not permit you go out.
Ans. – Yes the circumstance of the case did not permit me to go out.
Q – You failed to do your duty
Ans. – I did not fail to do my duty.
Q – The accused was force to accept the statement because you force him to thumb-print before

giving a statement.
Ans. – No he was not forced to accept the statement.
Q – Was the accused person brought to you by 18:40hrs as you stated.
Ans. – The accused was brought to me by 18:40hrs as stated.
Q – Apart from have not investigated this case what is your conclusion in this case?
Ans. – From my report, I have concluded that the matter be refer to legal unit for prosecution for unlawful position and dealing in dried weed suspected to be cannabis sativa.
Q – Your Conclusion is wrong
Ans. – No my Lord.
?
The truth therefore is that the allegation against the Appellant was not investigated. The witness who under cross-examination said he did not go out on investigation in this case had said in examination in chief, he did surveillance. The result of the surveillance was not captured as to show how or to proof the Appellant was dealing in the drugs. The learned counsel for the Appellant made a good start from his showing at the Lower Court but when he came on appeal to this Court he could not put in more efforts to reap the fruit if his efforts before the Lower Court. This was occasioned by his abandoning his grounds 1 and 4

of the grounds of appeal.

Since that is the situation in the instant case, I will not engage further in any misdirected magnanimity to cry more than the bereaved. I leave the issue at this point and go back to the issue of excessive sentencing.

In the instant case, issue one is quarrying whether the sentence of ten years imprisonment without an option of fine passed on the Appellant by the Lower Court was not excessive. Sentencing no doubt it is settled, is a matter within the domain of the discretion of the trial Court. Being this discretion no doubt must be exercised judicially and judiciously having regards to the facts and circumstances of the case. Although exercise of discretion is not subjected to stare decisis, our Courts have laid out principles to assist and guide in exercising judicial discretion. A little survey of some of these principles will suffice to guide us in this matter and particular attention is paid to the fact that an appellate Court must be warry of interfering with discretion validly exercised by a trial Court.
InHACO LTD v. BROWN (1973) 4 SC (REPRINT) 103, IRIKEFE JSC held that:
“Discretion must be

exercised on fixed principles that are according to rules of reason and justice not according to private opinion. (See SHARPE vs. WAKEFIELD (1891) AC 175, 179; WURNO v. U.A.C. LTD. (1956) (FSC 33, 34).
Similarly, the exercise of this discretion must not be affected by questions of benevolence or sympathy.”
In the case of ODUBA v. HOUTMANGRACHT (1997) 6 NWLR (PT. 508) 185, IGUH, JSC held emphatically that a Court’s exercise of its discretion without adverting to all the peculiar facts and circumstances of the particular case before it has been said to be as bad as its exercise upon a wrong principle. See LEONARD OKERE v. TITUS NLEM (1992) 4 NWLR (PT. 234) 132 per Nnaemeka-Agu, JSC. And if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of an appellate Court to have it reviewed.
The sum of these my Lords, is that it is only when the Lower Court exercised the discretion upon a wrong principle or mistake of law or under a misapprehension of facts or has taken into account irrelevant matters or on the ground that injustice could arise or has arisen that the Appeal Court will interfere. See UWAIS,

JSC (as then was) in N.A.A. vs. OKORO (1995) 6 NWLR (PT. 403) 510.

In the instant case, after the Appellant was convicted, the learned counsel for the Appellant at page 78 of the Record laid before the Lower Court this allocutus.
“We plead with the Court to temper justice with mercy. He will not be able to withstand the environmental hazards associated with imprisonment. The accused has 2 wives and 11 children. I urge this Court to caution and discharge the accused person.”

This plea was not countered or belied by the Respondent. The Respondent on Record confirmed that the Appellant had no previous record of conviction. The trial Court then summed up in his sentence this way:
I have considered the passionate appeal for leniency by the learned defence counsel and also the response of the prosecution that if I may say, the convict is a first time offender. However, the convict must know that the offence he has committed is a serious one, and he cannot be allowed to go scot free.
Consequently, the convict is sentenced to ten (10) year imprisonment without option of fine.

Having regard to the circumstances of this case and more

particularly that this Appellant is found to be a first offender in dealing in 450 grammes of cannabis sativa and being said to be 56 years old on the charge sheet, it is obvious that his sentence of ten years is excessive. In UWAKWE V. STATE (1974) 9 SC 5, the Supreme Court heard 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 the Court dealt with the severity of the sentence were:
(1) That the Appellant was a first offender;
(2) That he was a learner driver of three months during 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 overlook 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?”

The Supreme Court looks at the facts and the circumstances of the case and saw that the sentence was excessive. The sentence was then reduced from three years to one year. In the instant case, having found that the sentence of ten years awarded the Appellant is excessive; this Court has the capacity to reduce the sentence. This issue one, therefore, is resolved in favour of the Appellant.

ISSUE TWO
This issue deals with whether failure to provide the services of an interpreter did not amount to denial of fair hearing.

The learned counsel for the Appellant relied on Section 36(6)(e) of the 1999 Constitution and canvassed the Appellant who did not understand the language of the Court ought to have been provided with an interpreter. That since interpreter was not provided, the right of the Appellant to fair hearing was breached. He relied on the cases of:

AJAYI v. ZARIA N. A. (1963) 1 ALL NIR 169; STATE v. GWONTO (1983) 1 SCNLR 142; OKAFOR VS. A.G. ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659, AND MPAMA VS. F.B.N. PLC (2013) 5 NWLR (PT. 1346) 197.

The learned counsel urged the Court to allow this appeal.

The learned counsel for the Respondent pointed out that the Appellant was represented by a counsel all through the proceeding at the Lower Court. That it was the counsel for the Appellant who opposed adjournment request to get an interpreter for the Appellant. That the counsel for the Appellant cannot raise that issue on appeal. He urged the Court to resolve this issue against the Appellant and dismiss this appeal. He relied on the cases of STATE v. GWONTO (2000) WLR (PT. 30) 2585, 2585 AND MADU v. STATE (1999) 1 NWLR (PT. 386) 401.

On this issue, the record of appeal shows clearly that the prosecution requested for adjournment to call for interpreter but the Appellant’s counsel who was in Court insisted that the Appellant understood “pidgin” English and allowed the plea to be taken. That in itself to my mind is enough to estop the counsel for the Appellant from raising an issue of

interpreter in this appeal. It is now settled that where an Appellant was represented at the trial Court, his counsel ought to raise the issue of interpretation at the trial if that was necessary. In MADU v. STATE (1997) 1 NWLR (pt. 492) 386, the Supreme Court held that if a counsel does not raise or claim the right to interpretation at the appropriate time he may not be able to have a valid complaint afterwards for example, on appeal. See also the case of OKORO v. THE STATE (2012) LPELR-7846 (SC).
In the instant case, the Appellant was represented by a counsel. Counsel did not demand for an interpreter at the trial Court. There is nothing to suggest that the right of the Appellant to fair hearing was breached in this case. There is therefore no merit in issue 2. Issue two is accordingly resolved in favour of the Respondent.

From the foregoing consideration therefore, this appeal succeeds in part. Having resolved issue one in favour of the Appellant, the appeal against the sentence is accordingly allowed. Sentence passed by the trial Court on 18/5/2015 in Suit No. FHC/CA/CR/25/2013 is hereby quashed and in substitution therefore the Appellant is

sentenced to a term of two years imprisonment from the date of his sentence by the trial Court.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I concur with the reasoning and conclusion reached in the judgment just delivered by the Hon. Justice S. J. Adah, JCA, to the effect that the present appeal succeeds in part. I abide by the consequential order quashing the sentence passed upon the Appellant by the Court below on 18/5/2015 in charge No. FHC/CA/CR/25/2015 and substituting same with a sentence of a term of two years imprisonment.

JOSEPH OLUBUNMI KAYODE AYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein.

?Although the conviction of the Appellant was in accordance with the law and adduced evidence, the sentence imposed however failed to take cognizance of relevant facts including the criminal record of the Appellant as a first offender and the particulars of the offence as established by the prosecution at trial which render the sentence

imposed excessive.
?
I therefore also allow the appeal in part and shall abide by the reduced sentence in the lead judgment.

Appearances

B.C. Igwilo, Esq.For Appellant

AND

E.C. Ordiah (NDLEA)For Respondent