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AUWAL v. FRN (2022)

AUWAL v. FRN

(2022)LCN/16319(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, March 30, 2022

CA/G/120C/2021

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

MOHAMMED NAZIR AUWAL APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON A CHARGE BAD FOR DUPLICITY

A charge is said to be bad for duplicity when it offends Section 212 of the Criminal Procedure Code which provides:
“212. For every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 213, 214, 215, 216 and 221.”
PER SANKEY, J.C.A.

THE CONSEQUENCES OF FAILNG TO CHARGE DISTINCT OFFENCES SEPARATELY IN A CHARGE

However, the law has been established that the failure to charge distinct offences separately will not be fatal unless the accused has been prejudiced thereby.
The Criminal Procedure Code has made adequate provision for how charges against an accused person may be filed. It may therefore not be out of place to set them out at this stage in order to be properly guided thereby. Sections 202, 203 and 206 of the CPC provide –
“202. The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom, or thing, if any, in respect of which, it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.”
“203. Where the accused is charged with criminal breach of trust or criminal misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of a single offence.”

“206. No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission or it has occasioned a failure of justice.”
The first indigenous Chief Justice of Nigeria, Sir Adetokunbo Ademola, JSC in Mohammadu V COP (1969) LPELR-25419(SC) 4, B-C, held thus on the issue of the duplicity of a charge:
“The question of duplicity is clearly an error in the progress of the case. Section 206 of the criminal Procedure Code does not regard such an error “as material, unless the accused was in fact misled by such error or omission and it has occasioned a miscarriage of justice.”
In the locus classicus on the issue of the duplicity of a charge, to wit: State V Gwonto (1983) LPELR-3220(SC) 7-8, F-A, Nnamani, JSC held –
“It is well settled that a Court of Appeal will not interfere on the issue of duplicity if it is clear from the record of proceedings that the accused knew what charge he was to face, was neither embarrassed no prejudiced and there is no miscarriage of justice.”
To put the final nail in the coffin, in Ogbomor V State (1985) 1 NWLR (Pt. 2) 223 Oputa, JSC, the Philosopher Jurist, speaking on when a defect or error in a charge will not be a ground for quashing the conviction on the charge, held:
“The important thing about “the charge” in any criminal case is that it must tell the person accused enough so that he may know the case alleged against him and prepare his defence for “the fact that a charge is made equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled” … The charge must not therefore have defects or errors which could mislead the accused. The emphasis is not, on whether there are or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omissions could and did in fact mislead the defence. Subject to the above, a defect, error or omission which does not prejudice the defence is no ground for quashing the conviction on a charge for a known offence.”
See also John V State (2019) LPELR-46936(SC) 18-19, E-C, per Augie, JSC and Awusa V Nigerian Army (2013) LPELR-22618(CA) 28-29, E-B.
PER SANKEY, J.C.A.

THE PRINCIPLES TO BE FOLLOWED BY THE APPELLATE COURT WHERE THERE IS AN APPEAL AGAINST SENTENCE

In the case of Adeyeye V State (1968) LPELR-25500(SC) 2-3, A, Ademola, (JSC, CJN) stated the following as the principles to be followed by an appellate Court where there is an appeal against sentence:
“Having regard to the facts of this case, we deem it appropriate to restate the principles which must guide a Court of Appeal in deciding to interfere with the sentence passed by a lower Court… The principles can be briefly put under three heads –
1. That an appeal Court should not interfere with a sentence which is the subject of an appeal merely because the Judges of the Court of Appeal might have passed a different sentence if they tried the case.
2. To consider the facts of the case.
3. To review only a sentence which is manifestly excessive or inadequate or wrong in principle.”
See also Omokuwajo V FRN (2013) LPELR-20184(SC) 59, C-G, per Aka’ahs JSC, Uwakwe V State (1974) LPELR-3447(SC) 4-5, B-C, per Sowemimo, JSC.

When there is a trial, the Judge who presides over it and has the advantage of personal observation, has a better opportunity of determining the sentence. This Court will therefore be reluctant to interfere with sentences which do not seem to it to be wrong in principle, though they may appear heavy to individual Judges.
PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is predicated on the judgment of the Borno State High Court of Justice in Charge No. BOHC/MG/CR/60/2021 delivered on July 12, 2021, by F. Umaru, J.

The facts leading to the appeal are that the Appellant and one Musa Sani, were arraigned before the trial Court on 08-07-21 on a one-count Further Amended Charge, which read as follows:
“That you MOHAMMED NAZIR AUWALU, SANI MUSA, sometime between September 2010 to April 2018 at Maiduguri, Borno State within the jurisdiction of this Honourable Court, dishonestly converted to your personal use the sum of Twenty Five Million, Seven Hundred and Eighty-Eight Thousand Thirty Naira Eight Kobo (N25,780,000.38) only received from PENSION TRANSITIONAL ARRANGEMENT DIRECTORATE (PTAD) while you are not at pensionable age and thereby committed an offence contrary to Section 308 and punishable under Section 309 of the Penal Code Cap. 102 Laws of Borno State respectively.”

When the charge was read and explained to each of the two accused persons, they both pleaded guilty without any reservation. Thereupon, the Respondent stated the facts of the case against the Appellant and his co-accused through PW1, an operative of the Economic and Financial Crimes Commission (EFCC). This procedure is provided for in Section 274(1) (b) of the Administration of Criminal Justice Act, and is referred to as “reviewing the evidence” on a guilty plea in common parlance.

The witness presented the facts of the case against the accused persons following his investigations upon the complaint received in a petition from Polaris Bank; and the role played by the 1st accused, now Appellant, in misappropriating Pension Funds to the tune of N14, 730, 944.27 belonging to the Pensions Transitional Arrangement Directorate (PTAD) through their accounts within the period between 2010 to 2018. The statements of the Appellant as the 1st accused person, the letter from the Head of the Civil Service of the Federation, the letter from the Pension Directorate, the letters from Polaris Bank, UBA Plc, Guaranty Trust Bank Plc and the statements account of the Appellant/1st accused person were all admitted in evidence and marked Exhibits A series, Exhibit C, D & E series. Under cross-examination by Counsel for the 1st accused person, PW1 stated that the 1st accused person had refunded the money credited to his account.

Based on the guilty plea of both accused persons, buttressed by the presentation of the detailed facts of the case by PW1 along with the exhibits admitted in evidence, the trial Court entered judgment against both accused persons on July 12, 2021 finding them guilty as charged and convicting them for the offence of criminal misappropriation under Section 309 of the Penal Code Law Cap. 102, Laws of Borno State, 1994. The matter was thereafter adjourned to 14-07-21 for sentencing.

On the said date, the learned trial Court passed sentence against the convicts as follows:
“I have considered the evidence on character adduced by the 2nd convict, the plea of the counsel for the convicts and the provisions of Section 309 of the Penal Code Law Cap 102 Laws of Borno State of Nigeria 1994. I have equally considered the fact that the acts of the convicts that gave rise to this case spanned from 2010 to 2018. It is neither a spontaneous nor single act. Consequently, the Court order as follows:
1. “The Court hereby sentence you Mohammed Nazir Auwalu and Sani Musa to two (2) years imprisonment each and a fine of one million Naira (N1,000,000.00k) each for the offence of criminal misappropriation under Section 309 of the Penal Code Law Cap 102 Laws of Borno State of Nigeria 1994.
2. You are each ordered to serve two years imprisonment in default of the payment of the fine of one million Naira (N1,000,000.00k).
3. The prison term for the offence of criminal misappropriation shall run from today the 14th day of July, 2021.
4. The one (2) years jail term in default of payment of fine shall run consecutively if the convict(s) fail to pay the fine.”

Aggrieved by this decision, the Appellant filed an appeal vide his Notice of Appeal on 18-08-21, wherein he complained on four (4) grounds. He subsequently filed an Amended Notice of Appeal on 11-02-22 which, by the leave of this Court, was deemed duly filed and served on 02-03-22. In the Amended Notice of Appeal, the Appellant complained on five (5) grounds. Thereafter, he sought the following relief from this Court:
“An order allowing the appeal, setting aside the conviction and sentence by the trial lower Court and thereby discharge and acquit the Appellant or order for retrial before [a] different Judge.”

The appeal is therefore predicated on the Amended Notice of Appeal, even though parties did not subsequently amend their briefs of argument which had earlier been filed to further synchronize their arguments with the Grounds. Consequently, a few disparities are noticed.

At the hearing of the appeal on 02-03-22, learned Counsel for the Appellant, Yusuf A. Ali. Esq., holding the brief of J.T. Gunda Esq., adopted the submissions in the Appellant’s brief of argument filed on 18-01-22, deemed filed on 02-03-22, and settled by J.T. Gunda Esq., in urging the Court to allow the appeal, set aside the judgment of the trial Court and discharge and acquit the Appellant.

On his part, learned Counsel for the Respondent, Mukhtar Ali Ahmed Esq., Principal Detective Superintendent (PDS) with the EFCC, also adopted the arguments in the Respondent’s brief of argument in urging the Court to dismiss the appeal and affirm the judgment of the trial Court with substantial costs.

Learned Counsel for the Appellants framed four issues for the determination of the appeal, thus:
1. “Whether the ‘Further Amended Count Charge’ under which the Appellant alongside one other were charged, convicted and sentenced is competent and does not equally subject the Appellant to an offence not committed by him? (Additional Ground of Appeal)
2. Whether the Criminal Procedure Law Cap 42, Laws of Borno State 1994 which governs the proceedings of the trial lower Court empowers the Court to embark on review of facts of the case at hand? (Ground 1)
3. Was the lower Court right in holding that based on the evidence adduced, the prosecution (now respondent) has proved beyond reasonable doubt an offence of criminal misappropriation of the sum charged against the appellant? (Grounds 2 and 4)
4. Whether the trial lower Court’s sentencing of the appellant to consecutively serve additional two (2) years imprisonment in default to pay the fine of One Million Naira in addition to the maximum period of two (2) years jail term as provided by the relevant section was not excessive, inadequate and wrong in principle? (Ground 3)

The Respondent’s Counsel on his part, also framed four (4) issues for determination as follows:
1. “Whether the further one Count Amended Charge dated 08-07-2021 under which the Appellant was convicted and sentenced was competent and subjected the Appellant to an offence committed by him.
2. Whether the learned trial Judge was right to have ordered for the review of facts pursuant to the Criminal Procedure Law, Cap 42, Laws of Borno State 1994.
3. Whether the learned trial Judge was not right in holding that the Prosecution have (sic) proved its case beyond reasonable doubt of an offence of criminal misappropriation, to have warranted the lower Court to convict and sentenced (sic) the Appellant to two (2) years jail term.
4. Whether [the] learned trial Judge was not right to in convicting the Applicant summarily base[d] on his plea of guilt and subsequently sentenced him to imprisonment for 2 (two) years, and two years’ imprisonment in default in default of the payment of the fine of One Million Naira (N1,000,000.00).

The two sets of issues are virtually identical in content. Therefore, the issues framed by the Appellant are adopted in the determination of the appeal. This is more so as the Respondent did not tie his issues to the Grounds of Appeal. However, all the issues shall be taken together.

ARGUMENTS
Under issue one, learned Counsel for the Appellant submits that the Further Amended Charge under which the lower Court convicted and sentenced the Appellant is defective on the basis of duplicity and misjoinder of offences and offenders. He contends that in the petition written against the Appellant, the sum involved is N14,730,944.27 (Fourteen Million, Seven Hundred and Thirty Thousand, Nine Hundred and Forty-Four Naira) only. That by Exhibits F and F2, the sum of N11,049,944.11 (Eleven Million, Forty-Nine Thousand, Nine Hundred and Forty-Four Thousand Naira, Eleven Kobo) was attributed to the Appellant’s co-accused, Musa Sani. However, instead of charging the Appellant for the sum attributed to him, the Respondent lumped the two offences together into a single count of charge.

Counsel submits that in the absence of any nexus linking the Appellant to the sum of N11,049,944.11 (Eleven Million, Forty-Nine Thousand, Nine Hundred and Forty-Four Thousand Naira, Eleven Kobo) only misappropriated by his co-accused, Musa Sani, he ought not to have been joined and charged along with the said Musa Sani in the same count. Counsel contends that by joining the Appellant to the same count of charge as Musa Sani, he was made to bear the brunt of an offence committed by another, making him vicariously liable which is not allowed in criminal law. He relies on Ogbu V State (2017) 7 SCM 172, D-E. Counsel therefore submits that this has occasioned a miscarriage of justice to the Appellant. He urged the Court to quash the charge under Section 222(2) of the Criminal Procedure Law, Cap 42, Laws of Borno State, 1994.

Under issue two, learned Counsel for the Appellant refers to pages 10-11 of the printed Record to submit that the lower Court, upon reading the Further Amended Charge to him and Musa Sani, they both pleaded guilty. However, instead of convicting them based on their respective pleas as provided under Section 187 of the CPL which governs the procedure of the trial Court, it called for a review of the facts of the case allowing the prosecution to adduce evidence through PW1. Counsel submits that Section 380 (h) of the CPL vitiates proceedings embarked upon by a Court without any authorization.

Under issue three, learned Counsel for the Appellant submits that the learned trial Judge in his appraisal of the evidence, believed that the Appellant remitted all the funds that were credited into his account to one Uncle Salisu – page 23 of the record. That being the case, that there was no evidence to prove that the Appellant misappropriated the money in question. Therefore, that it cannot be said that the Appellant committed the offence of criminal misappropriation. Counsel submits that an offence is only proved when all the ingredients of an offence has been proved beyond reasonable doubt. He relies on Section 135 of the Evidence Act, and Ifaramoye V State (2017) 4 SCM 1, 38, I, among other cases.

Under issue four, learned Counsel for the Appellant refers to Section 309 of the Penal Code Cap 102, Laws of Borno State, 1994 for the punishment for the offence of criminal misappropriation. He submits that the penalty is limited to a maximum of two (2) years imprisonment or both and fine. However, in addition to sentencing the Appellant to the maximum of two (2) years imprisonment, the lower Court imposed a fine of N1,000,000.00 (One Million Naira) only against the Appellant, and further sentenced him to serve an additional two years imprisonment in default of payment of the fine, which sentence shall run consecutively. Counsel submits that this amounts to sentencing the Appellant to a term of four (4) years imprisonment which is beyond the maximum jail term of two years provided by law and contrary to the requirement of law in Section 74 of the Penal Code. Arising from this, Counsel submits that the lower Court has no power to inflict a punishment more severe than what is prescribed in law. Reliance is placed on Okoma V Udoh (2002) 1 NWLR (Pt. 748) 438; Garba V Com. of Police (2007) All FWLR (Pt. 348) 260, 283 per Ariwoola JSC (as he then was).

Counsel also submits that considering the financial incapability of the Appellant to pay the sum of One Million Naira, being a petty trader as disclosed in Exhibit A, such a sentence is excessive and was not judicially and judiciously passed. It was improper in principle, having regard to the law convicting the Appellant. He relies on Ikenso V State (2016) LPELR-41041 and Ali V FRN (2016) LPELR-40472. Counsel therefore urged the Court to exercise its power to interfere with the sentence, relying on Eromosele V FRN (2017) 1 NWLR (Pt. 1545) 55, 106, E-F, Mbleli V Com. of Police (1965) NNLR 65 per Hurley CJ and Karumi V FRN (2016) LPELR-40473(CA). He finally urged the Court to resolve all four issues in favour of the Appellant, allow the appeal, set aside the decision of the lower Court, and discharge and acquit the Appellant.

In response to the Appellant’s submissions under issue one, learned Counsel for the Respondent submits that the Further Amended Charge was read and explained to the Appellant to his understanding as to the nature of the offence and to the satisfaction of the lower Court, in line with Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He was thereafter convicted and sentenced accordingly. To further ensure compliance with Section 36(6) of the Constitution (supra), the prosecution produced and tendered documentary evidence to support its case against the Appellant.

Counsel however submits that the appropriate time to object to a formal defect in a charge is as soon as the charge has been read to an accused and before he pleads to it, not after. In this case, the further amended charge was read to the Appellant to his understanding and to the satisfaction of the lower Court, before he pleaded to it. The Appellant did not raise any objection to the charge at the trial Court. He relies on Alintah V FRN (2008) LPELR-3788(CA).

Notwithstanding this submission, Counsel submits that the Further Amended charge was neither defective nor misleading and so, no miscarriage of justice was occasioned to the Appellant by his conviction. He also submits that the charge is not bad for duplicity or misjoinder of offences or offenders. A charge would be bad for duplicity where two or more offences are lumped together in a charge or count of charge. Reliance is placed on Uket V FRN (2008) All FWLR (Pt. 411) 923. In the instant case, only one offence was contained in the one count charge against the Appellant.

Counsel however submits that, assuming without conceding that the Further Amended charge was bad for duplicity, a conviction based on same shall not be set aside unless there is proof that there was a substantial miscarriage of justice occasioned thereby. 

He relies on Orumah V Medical Officer of Health (1967) NMLR 258. In addition, where it is shown from the record of appeal that the Appellant knew what charge he was facing, even where it is bad for duplicity, the appellate Court will not interfere. Thus, the proper time to raise an objection to a charge on the ground of duplicity is at the trial, and not on appeal. He relies on State V Gwonto (1983) 3 SC 62; Guduf V COP (1960) NRNLR 69.

Counsel further submits that the prosecution laid evidence before the trial Court that unequivocally linked the Appellant to the charge. He refers to the petition against the Appellant which actually triggered the investigation. Based on this, he submits that the Appellant was rightly and legally joined with the co-accused in the charge for criminal misappropriation.

In response to the submissions under issue two, Counsel submits that going by Section 187(1) of the Criminal Procedure Code Cap 42, Laws of Borno State, the Judge has an unfettered discretion to order for the review of facts in order to further prove the guilt of the Appellant. Where such evidence adduced links the Appellant to the offence, he must be convicted, otherwise he would be discharged for want of evidence and failure of the prosecution to link the Appellant to the charge.

In response to the submissions under issue three, Counsel submits that the prosecution, conscious of the burden on it to prove the guilt of the accused person beyond reasonable doubt, placed both oral and documentary evidence through PW1 before the lower Court. It tendered numerous documents, i.e., Exhibits A, A1-A5 and Exhibits E, F and F2. Counsel therefore submits that from these pieces of evidence, the prosecution established the ingredients of the offence of criminal misappropriation against the Appellant.

Finally, in response to the submissions under issue four, Counsel submits that after the Appellant pleaded guilty to the charge, the lower Court proceeded as provided under Section 187(1) & (2) of the Criminal Procedure Code to summarily convict and sentence him accordingly. Reliance is placed on Simon V FRN (2020) 12 NWLR (Pt. 1739) 544-545. He therefore submits that the conviction and sentence were in accordance with the law.

RESOLUTION OF ISSUES ONE TO FOUR
Under issue one, the Appellant complains that the one-count charge against the Appellant and the co-accused, Musa Sani, was bad for duplicity, as well as for misjoinder of offences and offenders. A charge is said to be bad for duplicity when it contains two or more charges. This is neither the complaint nor the factual position of the charge. The instant charge contains only one count and also one charge, which is misappropriation punishable under Section 309 of the Penal Code.

Rather, from his submissions, the substance of the Appellant’s complaint under this issue is that the exact sum he is said to have misappropriated was not specified, instead it was totaled along with the sum that the 2nd accused was alleged to have misappropriated. Whether he was misled thereby is another issue.

A charge is said to be bad for duplicity when it offends Section 212 of the Criminal Procedure Code which provides:
“212. For every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 213, 214, 215, 216 and 221.”

However, the law has been established that the failure to charge distinct offences separately will not be fatal unless the accused has been prejudiced thereby.
The Criminal Procedure Code has made adequate provision for how charges against an accused person may be filed. It may therefore not be out of place to set them out at this stage in order to be properly guided thereby. Sections 202, 203 and 206 of the CPC provide –
“202. The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom, or thing, if any, in respect of which, it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.”
“203. Where the accused is charged with criminal breach of trust or criminal misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of a single offence.”
“206. No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission or it has occasioned a failure of justice.”
The first indigenous Chief Justice of Nigeria, Sir Adetokunbo Ademola, JSC in Mohammadu V COP (1969) LPELR-25419(SC) 4, B-C, held thus on the issue of the duplicity of a charge:
“The question of duplicity is clearly an error in the progress of the case. Section 206 of the criminal Procedure Code does not regard such an error “as material, unless the accused was in fact misled by such error or omission and it has occasioned a miscarriage of justice.”
In the locus classicus on the issue of the duplicity of a charge, to wit: State V Gwonto (1983) LPELR-3220(SC) 7-8, F-A, Nnamani, JSC held –
“It is well settled that a Court of Appeal will not interfere on the issue of duplicity if it is clear from the record of proceedings that the accused knew what charge he was to face, was neither embarrassed no prejudiced and there is no miscarriage of justice.”
To put the final nail in the coffin, in Ogbomor V State (1985) 1 NWLR (Pt. 2) 223 Oputa, JSC, the Philosopher Jurist, speaking on when a defect or error in a charge will not be a ground for quashing the conviction on the charge, held:
“The important thing about “the charge” in any criminal case is that it must tell the person accused enough so that he may know the case alleged against him and prepare his defence for “the fact that a charge is made equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled” … The charge must not therefore have defects or errors which could mislead the accused. The emphasis is not, on whether there are or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omissions could and did in fact mislead the defence. Subject to the above, a defect, error or omission which does not prejudice the defence is no ground for quashing the conviction on a charge for a known offence.”
See also John V State (2019) LPELR-46936(SC) 18-19, E-C, per Augie, JSC and Awusa V Nigerian Army (2013) LPELR-22618(CA) 28-29, E-B.

The Appellant in this case was clearly not misled by the way and manner in which the charge was framed. His complaint is simply that, instead of his being charged for the exact amount he was alleged to have misappropriated, to wit: N14,730,944.27k (Fourteen Million, Seven Hundred and Thirty Thousand, Nine Hundred and Forty-Four Naira, Twenty Seven kobo), it was lumped together with the sum the 2nd accused was also alleged to have misappropriated in the same transaction, i.e., N11,049,944.11 (Eleven Million, Forty-Nine Thousand, Nine Hundred and Forty-Four Thousand Naira, Eleven Kobo) only; and the total sum of N25,780,888.38k was reflected in the charge. This complaint is completely puerile in that the Appellant, knows fully well the extent of the amount he misappropriated from the Pension Transitional Arrangement Directorate(PTAD), in concert with the 2nd accused person, as he confessed in his extra-judicial statements, the Exhibit A series, and when he readily pleaded guilty to the charge.

However, taking no chances, the Respondent/prosecution doubled down, and despite the guilty plea, presented detailed facts to the lower Court which were cogent and cohesive through PW1, an EFCC operative. The facts established that the Appellant misappropriated the sum of N14,730,944.27k from PTAD when he received pension funds, which he was not entitled to, through his accounts with Polaris Bank from 2010 to 2018. The total amount was not only paid into his various accounts with the Bank, but he continuously withdrew the monies. It is therefore apparent that the Appellant was in no way misled by the fact that the charge upon which he was convicted did not specify the actual amount that he alone misappropriated which was added to the sum misappropriated by the 2nd accused person since they acted together in the same series of transactions, and charged both of them for a lump total. Clearly, no miscarriage of justice was occasioned thereby and the Appellant has failed to show otherwise.

Finally, even if the charge was bad for duplicity, which it is not, the place of such an error when established and found to exist as stated by the Supreme Court is that duplicity is a matter of procedure that will not affect a decision unless a miscarriage of justice is occasioned. In Onakoya V FRN (2002) LPELR-2670(SC 39-40, Kalgo JSC held –
“Duplicity is a matter of procedure or form not evidence… It is covered by Section 156 of the Criminal Procedure Act which provides in part:
“For every distinct offence with which any person is accused there shall be a separate charge…”
It is therefore a matter of procedure and not law. This Court in the case of Nwosu V Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688, 717 had this to say:-
“As we have stated several times, the days when parties pick their way in this Court through naked technical rules of procedure, the breach of which does not occasion a miscarriage of justice are fast sinking into the limbo of forgotten things. The Court now takes the view that not every slip is fatal to the cause of justice. Justices are not omniscient robots, which never deviate from a programmed course. They sometime slip. But only those slips that have been shown to have affected the decision appealed against will amount to a substantial misdirection which will result in the appeal being allowed.”

It is also settled law that an accused person who has an objection to any charge for any formal defect on the face thereof or for any perceived irregularity relating to procedure, ought to make his objection immediately after the charge has been read to him, and not later. Therefore, it is the duty of Counsel in particular, or of an accused person who is defending himself personally, to promptly take any objection to every perceived irregularity to the charge, including the type of objection in respect of the said charge in the instant case. Therefore, where the Appellant, as in this case, failed to show that he was misled by what he perceived to be a defect in the charge read to him at the trial, he does complain too late at the appeal stage. See FRN V Adewunmi (2007) LPELR-1273(SC) 21-22, F-C, per Ogbuagu, JSC; Egunjobi V FRN (2012) LPELR-15537(SC) 55-56, E, per Peter-Odili, JSC.

On the contention that there is a misjoinder of offenders, nothing could be further than the truth. The facts of the offence as disclosed from the evidence adduced through the PW1 including the documentary evidence discloses that the offence was committed over a long period, from 2010 to 2018, during which time the Appellant, in conjunction with the 2nd accused person, Musa Sani, siphoned pension funds from PTAD, into their several accounts, withdrew them and used them to their benefit as well as to the benefit of others not entitled to it. In committing the offence, both the Appellant and the 2nd accused person acted in concert. Section 221 of the CPC provides for joinder of offenders inter alia as follows:
“221. The following persons may be charged and tried together, namely –
(a) Persons accused of the same offence committed in the course of the same transaction;
(e) persons accused of offences which include theft, extortion or criminal misappropriation and persons accused of receiving and retaining or assisting in the disposal or concealment of property, the possession of which has been transferred by the first named persons, or of abetment of or attempting to commit any of the last named offences.”
Such accused persons may be jointly charged in one head of charge. Separate trials will not be ordered in the absence of an application there for or any manifest embarrassment or prejudice to any of the accused persons. See Olayioye V CPO (1964) NNLR 7 and Mailayi V State (1968) 1 All NLR 116.

For all the above reasons, I find that the charge was neither bad for duplicity nor for misjoinder. However, even if it was, the Appellant was not misled thereby and no miscarriage of justice has been occasioned. Therefore, the Further Amended Count Charge under which the Appellant alongside one Musa Sani were charged and convicted is competent.

In respect of the second issue which complains on the procedure adopted by the lower Court in which even after the Appellant pleaded guilty, the Respondent proceeded to present facts to the lower Court before the Appellant and 2nd accused person were convicted on their guilty plea. He complains that this procedure contravenes Section 187 of the Criminal Procedure Law Cap 42, Laws of Borno State 1994. This is an odd complaint coming from the Appellant. The Appellant is not disputing the fact that he pleaded guilty to the offence as charged. His complaint is that the lower Court embarked on a time-wasting venture in permitting “a review of the evidence” before proceeding to convict him. The Appellant is right though that this is not a requirement in the CPC. It is an importation of the procedure in Section 274(1) (b) of the Administration of Criminal Justice Act (ACJA).

By Section 187(1) and (2) of the CPC which governs procedure in the lower Court, it is provided thus –
“187(1) When the High Court is ready to commence trial the accused person shall appear or be brought before it and the charge shall be read out in Court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged.
(2) If the accused pleads guilty, the plea shall be recorded and he may in the discretion of the Court be convicted thereon unless the offence charged is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused.”
In the case of Garba V State (1978) NNLR (FCA), this Court held that the High Court should substantially comply with the provisions of Section 161 of the CPC when exercising its discretion under this Section. Section 161(1) and (2) thereof provide –
“161. (1) If the Court is of the opinion that the offence is one which having regard to Section 160 it should try itself, the charge shall then be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make.
(2) If the accused pleads guilty, the Court shall record the plea and may in his discretion convict him thereon.” (Emphasis supplied)
Thus, by these provisions, the Court may either instantly convict or he may not. 

In this case, the lower Court in its wisdom did not instantly convict, but permitted the Respondent to present some basic facts to establish the allegations in the charge to which the Appellant had pleaded guilty. This, the Respondent did by calling PW1, an EFCC operative who investigated the petition sent to it by the Appellant’s Bankers, Polaris Bank, to testify and tender numerous documents including: the Appellant’s statements, Exhibit A series, the petition and bank documents, inclusive of the statements of account pertaining to the Appellant’s accounts used in siphoning the pension funds from PTAD, Exhibits C, D and F series. I therefore do not see the infraction committed by the lower Court in the procedure adopted in the exercise of its discretion, or how this procedure prejudiced the Appellant. The Appellant is obviously merely grasping at straws here by throwing up issues which are highly technical, as opposed to being substantial.

The third issue is whether the lower Court was right in holding that based on the evidence adduced, the prosecution proved the offence of criminal misappropriation of the sum charged against the Appellant beyond reasonable doubt. The substance of the Appellant’s complaint under this issue is that since the evidence adduced through the PW1 disclosed that he had since refunded the amount he misappropriated, then the ingredients of the offence of misappropriation were not proved. This is yet again, another bizarre submission. This is a case where, over the span of eight (8) years, the Appellant, by his own admission, using his Bank accounts with Polaris Bank, misappropriated a sum of money in excess of N14 Million Naira being pension funds belonging to PTAD, and dishonestly withdrew same, converting the monies into his own use and for the use of others. Yet, because he refunded the money upon being caught, he expects that such would make him less culpable? Well, that is not how the law works. In the first place, the Appellant unhesitatingly pleaded guilty to the offence charged. Secondly, when PW1 took the stand and tendered documents which comprised of the petition from his Bank, Polaris Bank, to the EFCC, his statements confessing to having committed the offence and statements of account in respect of the accounts he maintained with Polaris Bank, Exhibit C, A series and E series and F series, there was no objection whatsoever to their admission in evidence. Indeed, contrary to the Appellant’s warped thinking, his refund of the monies misappropriated to the owner constitutes a further admission of the offence. It is akin to a thief stealing a Generator, and when he is caught with it but before he is tried in Court, he produces the Generator and returns it to the owner. That does not make it any less theft. 

Finally, the Appellant was tried summarily in line with the CPC and convicted on his plea of guilty. Therefore, the issue of having to prove the ingredients of the offence charged beyond reasonable doubt did not arise in this case. It was his prerogative, and he chose to plead guilty, thereby short-circuiting his options in the process.

Finally, on whether by sentencing of the Appellant to consecutively serve an additional two (2) years imprisonment in default of payment of the fine of N1,000,000.00 (One Million Naira) in addition to the maximum period of two (2) years imprisonment, was in line with the penalty provided in Section 309 of the Penal Code for the offence of criminal misappropriation. The provision provides for a term which may extend to two years or with fine or with both. Therefore, the sentence is no doubt within the legal limits.

In the case of Adeyeye V State (1968) LPELR-25500(SC) 2-3, A, Ademola, (JSC, CJN) stated the following as the principles to be followed by an appellate Court where there is an appeal against sentence:
“Having regard to the facts of this case, we deem it appropriate to restate the principles which must guide a Court of Appeal in deciding to interfere with the sentence passed by a lower Court… The principles can be briefly put under three heads –
1. That an appeal Court should not interfere with a sentence which is the subject of an appeal merely because the Judges of the Court of Appeal might have passed a different sentence if they tried the case.
2. To consider the facts of the case.
3. To review only a sentence which is manifestly excessive or inadequate or wrong in principle.”
See also Omokuwajo V FRN(2013) LPELR-20184(SC) 59, C-G, per Aka’ahs JSC, Uwakwe V State (1974) LPELR-3447(SC) 4-5, B-C, per Sowemimo, JSC.

When there is a trial, the Judge who presides over it and has the advantage of personal observation, has a better opportunity of determining the sentence. This Court will therefore be reluctant to interfere with sentences which do not seem to it to be wrong in principle, though they may appear heavy to individual Judges.

In the instant case, the reason given by the learned trial Judge for imposing such a heavy sentence, as captured at page 24 of the record, is:
“I have equally considered the fact that the acts of the convicts that gave rise to this case spanned from 2010 to 2018. It is neither a spontaneous nor single act.”

It is therefore obvious that the deliberate and calculating act of the Appellant and 2nd accused person spanning a period of eight (8) years, resonated with the learned trial Judge and weighed heavily on his mind in passing sentence. There is no doubt that the sentence is in accordance with the punishment provision. However, since the Appellant readily pleaded guilty to the charge without wasting judicial time thereby showing remorse, and that he has refunded the monies misappropriated, it would appear to me that the learned trial Judge wielded the big stick a bit too heavily. The sentence is excessive.

For these reasons, I am of the view that this is a proper case for this Court to review the sentence, as sentencing is not only meant to punish and deter, but also to reform a convict in the hope that, at the end of serving the sentence, the convict will not return to a life of crime. The learned Author, ‘Lai Oshintokun Oshisanya in the book: “An Almanac of Contemporary Judicial Restatements” posited at pages 282-283 as follows:
“The essence of imprisonment is to meet the legitimate expectation of society for retribution, where the society strikes back at the offenders to deter potential offenders and make the commission of crime unattractive, protect the public and society by ensuring that dare devil criminals and recalcitrant offenders are taken out of circulation to provide interregnum for dangerous criminals pending their rehabilitation to normalcy.”

Hence, I am of the considered view that the sentence of N1,000,000.00 (One Million Naira) fine and an additional two (2) years imprisonment in default of payment is an over kill, the maximum sentence for the offence having been imposed and the monies involved having been refunded in full by the Appellant. Based on all the above findings, I resolve issues one, two and three against the Appellant. Issue four is however resolved in favour of the Appellant.

In the result, the appeal on the conviction of the Appellant fails, while the appeal against sentence succeeds.

Consequently, the conviction of the Appellant by the High Court of Borno State in Charge No. BOHC/MG/CR/60/21 delivered on 13-07-21 by F. Umaru, J., is affirmed.

However, the appeal against the sentence succeeds. Accordingly, the sentence passed by the High Court of Borno State is hereby reviewed, reduced and substituted with the following sentence:
The Appellant, Mohammed Nazir Auwalu, is hereby sentenced to two (2) years imprisonment with no option of fine for the offence of criminal misappropriation under Section 309 of the Penal Code Law Cap 102, Laws of Borno State of Nigeria, 1994.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading before now the erudite judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, just delivered.

My learned brother has exhaustively considered the issues presented to us for determination and I agree completely with the reasoning and conclusion arrived at therein that the appeal is devoid of any merit. It is for the reasons therein contained which I adopt as mine (with profound gratitude) that I also dismiss this appeal for lacking in merit. I also agree that the sentence imposed on the appellant is excessive. I too hereby reduced and review the sentence by the lower Court to 2 years imprisonment.

EBIOWEI TOBI, J.C.A.: My learned brother, J. H. SANKEY, JCA has afforded me the opportunity of reading in draft the lead judgment just delivered. I agree with the reasoning and conclusions reached therein. I have nothing to add.

Appearances:

Yusuf A. Ali, Esq. holding the brief of J.T. Gunda, Esq. For Appellant(s)

Mukhtar Ali Ahmed, Esq., Principal Detective Superintendent (PDS), EFCC. For Respondent(s)