AYI v. FRN (2020)

AYI v. FRN

(2020)LCN/14688(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, October 09, 2020

CA/LAG/CR/210/2019

RATIO

APPEAL: EFFECT OF A HOLDING NOT CHALLENGED ON APPEAL

A holding not challenged on appeal stands vide Sanmi v. State (supra) at page 502. PER IKYEGH, J.C.A.

TRIAL: ADVANTAGES OF SUMMARY TRIAL AND CONVICTIONS

The advantages/virtues of summary trial and conviction are shown to favour the respondent as the prosecutor and the appellant as the defendant in the case of Baalo v. F.R.N. (2016) 13 NWLR (pt.1530) 400 at 426 – 427 following Omoju v. F.R.N. (2008) 7 NWLR (pt.1085) 38 where the Supreme Court held inter-alia that summary trial avoids prolonged, full-blown trial and the rigours associated with it and is in that wise not only beneficial to the Court, but also of immense benefit to the defendant; that the advantage of summary trial is that it speeds up the trial thereby saving cost and time; that by pleading guilty to the charge rule defendant has willfully made easy and light the task on the prosecution to lead evidence to prove the offence beyond reasonable doubt as required by law. It was further held by the Supreme Court that a defendant who pleads guilty should be exposed to the possibility to enjoy some degree of indulgence with regard to leniency and/or less stringent sentence, since by the early plea of guilty he had relieved the Court of the tedium of a protracted and complicated trial which should all weigh in favour of lesser sentence where the sentence is not mandatorily imposed by law which was not argued in the appeal as arguments were not made on Section 337 of the Criminal Law of Lagos State to the effect that the sentence of seven (7) years in prison stipulated therein is not mandatory. PER IKYEGH, J.C.A.
PLEA BARGAIN: ESSENCE OF A PLEA BARGAIN

Plea bargain was amply explained by the Supreme Court in the case ofPML- (Nig.) Ltd. v. F.R.N. (2018) 7 NWLR (pt.1619) 448 at 480 – 481 per the lucid lead judgment prepared by the quintessential Jurist, His Lordship, Augie, J.S.C., that plea bargain is a negotiation between a defendant and the prosecution in which the defendant agrees to plead guilty to some crimes in return for reduction of the severity of the counts of the charge or dismissal of some of the counts and the prosecution’s undertaking or willingness to recommend a particular sentence or other benefits to the defendant. And that the essence of a plea bargain is not just to conclude a trial but that there must be a negotiated agreement between the prosecution and the defendant whereby the latter agrees to plead guilty to a lesser or to some of the multiple counts of the charge in exchange for some concession by the prosecution, which is usually a more lenient sentence or a dismissal of the other counts of the charge, which was not the case here. PER IKYEGH, J.C.A.
AFFIDAVIT: EFFECT OF UNCHALLENGED EVIDENCE OF AFFIDAVIT

Unchallenged pieces of affidavit evidence are accepted as establishing the deposition contained therein vide Obande Obeya v. First Bank of Nigeria Plc (2012) All FWLR (pt.636) 544 following Unanganga v. M.G., Imo State (1987) 3 NWLR (pt.59) 123. PER IKYEGH, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

NSA AYI APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering The Leading Judgment): The appeal challenges the decision of the High Court of Justice of Lagos State (the court below) sentencing the appellant to a term of seven (7) years in prison, now correctional centre, to run concurrently from the date of his remand in prison and for the simultaneous order of restitution and/or confiscation of the appellant’s assets wherever found for the eleven (11) count offence of fraudulent false accounting aggregating to N700 million contrary to Section 335(a) of the Criminal Law of Lagos State, 2011.

Based on the auspices of a plea bargain the appellant pleaded guilty to the charge. The respondent thereafter made a statement of the facts of the case culminating in the institution of the case. The respondent also tendered documents marked Exhibits 2 — 27 in support of the case.

Counsel for both parties thereafter urged the Court below to find the appellant guilty and convict him as charged. The Court below thereafter enquired from the appellant whether his plea of guilty was as to the facts presented by the respondent to which the appellant

answered in the affirmative. The appellant was thus convicted as charged. The sentence of the appellant was deferred to enable the parties agree on the terms of the plea bargain. However, the plea bargain was botched because the respondent’s side did not accept the terms of repayment proposed in addition to the two (2) real property of the appellants already seized.

After two further adjournments, the Court below heard the allocutus or plea for mercy and in mitigation of sentence/punishment for being a first offender and the express willingness of the appellant to pay back the remainder of the money. The appellant added to his allocutus that the two (2) real property he voluntarily surrendered to the respondent were valued at N 100 million and that he had shares and stock which if released from prison custody would be used to repay the sum of money involved. The appellant rounded up by urging the Court below to impose less sentence on him to ensure his early repayment of the money.

On the other hand, the respondent urged the Court below to sentence the appellant to the maximum imprisonment as a deterrence to others so as to discourage them from

committing similar offence(s). The respondent also urged the Court below to order restitution as the money involved belonged to depositors.

The Court below then proceeded to determine sentence by stating that the provision of the law under which the appellant was convicted admitted of no discretion on sentence. The Court below thereupon sentenced the appellant to seven (7) years in prison, (now correctional centre) on all the eleven (11) counts to run concurrently from the date of the appellant’s remand in prison. The Court below further ordered restitution in that all the assets and property traceable to the appellant be forfeited and confiscated in satisfaction of the amount involved in the crime.

The appellant was dissatisfied with the decision of the Court below and filed a notice of appeal with two (2) grounds followed with a brief of argument dated 15.11.19 and filed on 18.11.19 but deemed as properly filed on 25.05.20. The respondent was reported to have been served the appellant’s brief of argument on 02.09.20. The respondent had 10 days from the date of service to file its brief of argument in

accordance with clause or Paragraph 8(5) ofthe Court of Appeal (Fast Track) Practice Directions No.40 of 2014, it being a corruption case. The respondent neglected or failed to do so. The appeal was therefore heard on the appellant’s brief alone after the respondent was put on notice of the hearing date vide Order 19 rule 10 of the Court of Appeal Rules 2016 (the Rules of the Court).

The appellant formulated a single issue for determination for the two (2) grounds of appeal to the effect that whether considering the totality of the facts and circumstances of the case the Court below was right to have imposed the maximum sentence to run from the day the appellant was remanded in prison while it simultaneously ordered forfeiture and confiscation of all assets and property traceable to the appellant.

The appellant argued that although the phrase ‘detention’ is not defined by Section 315 and 371 of the Administration of Criminal Justice Law (ACJL) 2015, the language used in the sections being simple, its meaning should be deducible from the language used to achieve the object of discovering the intention of the drafts person and that when so interpreted, the meaning of the phrase ‘detention’

gathered from Black’s Law Dictionary Seventh Edition 459, New International Webster’s Comprehensive Dictionary (Encyclopaedic Edition) 349 and the cases of Izedonmwen v. U.B.N. Plc (2012) 6 NWLR (pt.1295) 1, NDIC v. Okem Enterprises Ltd. (2004) 4 NWLR (pt.1131) 43 (on deducing the intention of the draftsperson from the language used in a piece of legislation) the phrase ‘detention’ means the act of holding a person in custody, confinement,. ‘detention’ should be construed as meaning from the time of arrest and remand in custody, so urged the appellant.

The appellant then referred to pages 281 and 287 of the record of appeal (the record) showing the appellant was arrested and detained by the Economic and Financial Crimes Commission (EFCC) on 30.10.2017 and had been refused bail by the Court below on 26.02.18 to contend that the period of detention of the appellant for the purpose of Section 315 of the ACJL started on 30.10.2017, upon which the appellant contended that the Court below misapprehended the facts by computing the period of detention of the appellant from 17.01.2018 instead of 30.10.17, thus leaving out a period of not less than six months or

almost a year of the prison computation term; consequently, the appellant advocated that the Court below having acted under a misapprehension of fact by omitting to take into account relevant matters, the Court should interfere with the exercise of discretion by the Court below vide University of Lagos v. Aigoro (1985) 1 NWLR (pt.1) 143, Waziri v. Gumel (2012) 9 NWLR 185, F.H.A. v. Kalejaiye (2010) 19 NWLR (pt.1226) 147, Ngwu v. Onuigbo (1999) 13 NWLR (pt.636) 512, University of Lagos v. Olaniyan (No.1) (1985) 1 NWLR (pt.1) 156.

The appellant further argued that having regard to the facts and circumstances of the case to the effect that he never wasted the time of the Court below in changing his plea of not guilty to that of guilty at the proceedings of 2602.2018 and 06.03.2018 vide pages 287 and 291 of the record; that he had no record of previous conviction and had shown remorse by taking steps to restitute the victim of the crime by forfeiting two (2) of his real property valued at NI00 million vide pages 299 and 301 of the record the sentence of 7 years in prison was excessive considering the facts and circumstances together with the relevant law on

the matter vide Nwude v. F.R.N. (2016) 5 NWLR (pt.1506) 471, Omokuwajo v. F.R.N. (2013) 9 NWLR (Bt.1359) 300, Adeyeye v. State (1968) SCNL 336, Musa v. State (2012) 3 NWLR 59.

The appellant concluded by urging that the appeal should be allowed and the sentence commencing from 17.01.18 be set aside and in its place the sentence be back-dated to 30.10.2017.

In the light of the fact that the appeal was heard and argued on the appellant’s brief alone, it is desirable to start with the grounds of appeal and the sole issue for determination. The grounds of appeal are contained in the notice of appeal in pages 323 — 325 of the record as follows —
“GROUND ONE
1. The Learned Trial Judge erred in Law and came to a wrong conclusion leading to miscarriage of Justice when the lower Court held at page 4 of its judgment as follows:
“The Defendant is accordingly sentenced to 7 years imprisonment to run concurrently from the date of his remand in prison. It hereby also ordered that the Defendant shall forfeit and the Court hereby confiscate all the assets and properties of the Defendant where so even traced to until the total sum of

N700 million (seven hundred million naira) alleged and proved to have been fraudulently gotten by the Defendant is fully recovered and restored to the victim which is coronation Merchant Bank Limited pursuant to Exhibit 1.
2. The judgment is against the weight of the evidence adduced by the prosecution particularly the credibility and reliability (probative value) which ought to be attached to the admitted Exhibits.”

Ground two (2) of the notice of appeal (supra) states inter alia that the judgment is against the weight of evidence. This is not a valid ground of appeal in a criminal appeal vide the cases of Sanmi v. State (2019) 13 NWLR (pt.1690) 551 at 572, Adio v. State (1986) 2 NWLR (pt.24) 581, Aladesuru v. Queen (1955) 3 W.L.R. 515 to the effect that the general or omnibus ground of appeal in a criminal appeal must be framed that the judgment-is-unreasonable and unwarranted having regard to the evidence not ‘weight’ of evidence.

The issue for determination in the appeal did not complain that Section 337 of the Criminal Law of the Lagos State under which the appellant was convicted did not stipulate a mandatory sentence of seven (7) years imprisonment.

For clarity, Section 335(a) of the Criminal Law of Lagos State reads —
“Any person who, being a clerk or servant, or being employed or acting in the capacity of a clerk or servant, does any of the following acts with intent to defraud —
(a) Destroys, alters, mutilates, or falsifies any book, document, valuable security, or account, which belongs to or is in the possession of his employer, or has been received by him on behalf of his employer, or any entry in such book, document, or account, or is privy to any such act;
(b) Makes, or is privy to making any false entry in such book, document, or account; or
(c) Omits, or is privy to omitting entry from any such book, document, or account, commits or felony, and is liable on conviction to imprisonment for seven (7) years”.
The Court below held in part of its judgment in page 311 of the record that Section 337 of the Criminal Law of Lagos State (supra) admits of no discretion on the part of the Court below to lessen or otherwise increase the term of imprisonment even fora first offender.
There is no ground of appeal attacking the above holding that

Section 337 of the Criminal Law of Lagos State (supra) is mandatory. A holding not challenged on appeal stands vide Sanmi v. State (supra) at page 502. The consequence is that there is no discretion in the sentencing Court to reduce mandatory term of imprisonment or sentence said to be imposed by law even where allocutus could turn the tide in favour of the convict vide the cases of Yusuf v. F.R.N. (2018) 8 NWLR (pt.1622) 502 at 518 and 526, State v. Babangida John (2013) 5 S.C.N.J. 30, Amoshima v. State (2011) 14 NWLR (pt.1268) 530 at 553 and 556.

rule defendant has willfully made easy and light the task on the prosecution to lead evidence to prove the offence beyond reasonable doubt as required by law. It was further held by the Supreme Court that a defendant who pleads guilty should be exposed to the possibility to enjoy some degree of indulgence with regard to leniency and/or less stringent sentence, since by the early plea of guilty he had relieved the Court of the tedium of a protracted and complicated trial which should all weigh in favour of lesser sentence where the sentence is not mandatorily imposed by law which was not argued in the appeal as arguments were not made on Section 337 of the Criminal Law of Lagos State to the effect that the sentence of seven (7) years in prison stipulated therein is not mandatory.
Plea bargain was amply explained by the Supreme Court in the case ofPML- (Nig.) Ltd. v. F.R.N. (2018) 7 NWLR (pt.1619) 448 at 480 – 481 per the lucid lead judgment prepared by the quintessential Jurist, His Lordship, Augie, J.S.C., that plea bargain is a negotiation between a defendant and the prosecution in which the defendant agrees to plead guilty to some crimes in

return for reduction of the severity of the counts of the charge or dismissal of some of the counts and the prosecution’s undertaking or willingness to recommend a particular sentence or other benefits to the defendant. And that the essence of a plea bargain is not just to conclude a trial but that there must be a negotiated agreement between the prosecution and the defendant whereby the latter agrees to plead guilty to a lesser or to some of the multiple counts of the charge in exchange for some concession by the prosecution, which is usually a more lenient sentence or a dismissal of the other counts of the charge, which was not the case here.
Because the attempt to clinch or secure an agreement for plea bargain which commenced after the appellant was convicted failed, whereas the negotiation for the plea bargain should have taken place before the appellant pleaded guilty to the eleven (11) counts of the charge or information vide the pages 291 — 296 of the record. There was therefore no plea bargain and/or concluded an agreement on plea bargain in this case.
In short, the appellant through his senior counsel had stated in page 291 of the record

that they had agreed to change plea and to fully submit to the dictates of the Court below, and not on plea bargain.
Part 21 of the ACJL makes provision for the consequential orders of costs, compensation, damage, restitution, forfeiture, and disposition of property upon conviction and sentence of a defendant.
The total sum of money involved in the crime was N700 million upon which the Court below ordered forfeiture by confiscation of the assets and property of the appellant where-so-ever traced in Nigeria to atone for the N700 million loss the appellant’s crime caused to the victim of the crime, Coronation Merchant Bank Limited, vide page 301 of the record. Accordingly, the Court below was right to have ordered for the take-over of property of the defendant wheresoever found in Nigeria to dispose of or convert into cash and compensate the said victim of the crime for the loss of N700 million by the criminal venture of the appellant which order justly precluded the appellant from benefiting or profiting from his own crime and also demonstrated that crime does not or should not pay.
In any event, it is hard for the sentencing Court to have

ignored or overlooked the serial and culpable manner the appellant perpetrated the criminal scheme between 2014 and 2017 totalled N700 million in sentencing the appellant to a term of seven (7) years in prison and ordering that his real property wherever it may be found to be converted into cash for the N700 million loss suffered by the victims of the crime which, I think, met the justice of the case and/or was not excessive considering the circumstances of the case where the offence involved was serious in nature which made it necessary for the Court below to hand down heavy sentence in order to checkmate-the-defrauding of depositors by bank staff/employees.

Paragraph 4(a) of the further and better affidavit contained in page 281 of the record to which the appellant referred in the course of arguments in the appeal deposed that the appellant was arrested by the official(s) of the EFCC on 30.10.2017. The respondent did not challenge the said paragraph 4(a) of the further and better affidavit. Likewise, paragraph 4(a) of the affidavit in support of the summons for bail deposed to on 31.01.2018 which is contained in page 259 of the record to the effect that

the appellant was arrested by officials of the EFCC on 30.10.2017 and that since the date of his arrest he has been in the custody of the EFCC where he was detained for 78 days without arraignment. Unchallenged pieces of affidavit evidence are accepted as establishing the deposition contained therein vide Obande Obeya v. First Bank of Nigeria Plc (2012) All FWLR (pt.636) 544 following Unanganga v. M.G., Imo State (1987) 3 NWLR (pt.59) 123.

The summons for bail filed on 31.01.18 was refused on 26.02.18 vide pages 287 — 289 of the record. The appellant was thus ordered to be remanded in prison custody by the Court below until his conviction and sentence to a term of seven (7) years in prison on 04.05.18 vide pages 309 — 311 of the record. In sentencing the appellant to seven (7) years-in prison on 04.05.2018, the Court below directed that the term of imprisonment should start on the date of the appellant’s remand in prison custody by the Court below which was on 26.02.2018 vide pages 287 — 289 of the record.

Section 315 of the ACJL stipulates that a sentence of imprisonment takes effect from and includes the whole of the day of the

date on which it was pronounced provided that in reckoning the length of imprisonment, the convicting Court shall direct that any period of detention prior to conviction shall be taken into consideration. Although the phrase ‘detention’ is not defined in the ACJL, I agree with its English dictionary of restraint, custody, confinement or compulsory delay supplied (supra) by the appellant.
Thus in Banjo v. State (2013) 16 NWLR (pt.1381) 455 at pages 462 and 467 where His Lordship, Muntaka-Coomassie, J.S.C., (now of blessed memory) held in the lead judgment that it was both humane, legal and absolutely correct for the Court to direct that the sentence of 21 years in prison be back-dated to commence on 15.01.2000 when the appellant in that case lost his liberty on account of the case. Also, it was held by the Supreme Court in the case of Oruche v. C.O.P. Northern Region (1963) that the defendant if convicted could ask the convicting Court to take into account the period he lost his liberty on account of the case.
The Court below was therefore in error when it did not start the computation of the sentence of seven (7) years in prison it had imposed on

the appellant on 30.10.17 which was the time the appellant lost his liberty on account of the case. The Court below thus misapprehended the facts and the law on exercise of its discretion to direct the length of the sentence of imprisonment to include the period of detention of the appellant. The Supreme Court held in the case of Enekebe v. Enekebe (1964) NMLR 42 at 45 following the English case of Blunt v. Blunt (1943) A.C. 517 at 522 that an appeal Court can interfere with the exercise of discretion by a trial Court acted under a misapprehension of fact in that it omitted to take into account matters that are relevant and therefore based its discretion on wrong or inadequate materials. See also the series of cases (supra) cited by the appellant.

Consequently, I find substance in the appeal with respect only to the date of commencement of the sentence of seven (7) years in prison imposed on the appellant by the Court below and hereby allow the appeal only to the extent of the date of commencement of the sentence of seven (7) years in prison and set aside the commencement date of 26.02.2018, when the Court below ordered the appellant to be remanded in

prison custody and substitute therefor the date of 30.10.2017 when the appellant was detained by the respondent through the EFCC as the date of commencement of the sentence of seven (7) years imprisonment passed on the appellant by the Court below.

BALKISU BELLO ALIYU, J.C.A.: My learned brother JOSEPH SHAGBAOR IKYEGH JCA has graciously availed me with the draft of the Judgment just delivered. I agree with the reasoning and conclusion reached and I adopt same as mine in also allowing of the date of the commencement of the seven years sentence.

I abide by the consequential order made in the lead judgment.

EBIOWEI TOBI, J.C.A.: I have read in advance the leading judgment of my learned brother Joseph Shagbaor Ikeygh, JCA, and I agree with the conclusion contained therein. It has been a long standing principle of law that the appellate court will not ordinarily interfere with the exercise of discretion of the trial court, except where same was not exercised judicially and judiciously and thus perverse. In Mr. Lamidi Rabiu vs. Mr. Tola Adebajo (2012) LPELR-9709 (SC), the Apex Court held.

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“In rejecting the application, the trial Court exercised its discretion judiciously and judicially The lower Court affirmed that exercise of jurisdiction. Once discretion is exercised judicially and judiciously, this Court cannot interfere even if it would have exercised its discretion differently in the same situation. See Ogbechie vs. Onochie (1988) 1 NWLR 370.”
See also T.S.A. Industries Ltd. vs. Kema Investments Ltd. (2006) LPELR-3129 (SC); Lambert Nzekwe vs. Dominic Anaekwenegbu (2019) LPELR-49002 (SC).

In the light of the foregoing and for the fuller reason contained in the of my learned brother, Joseph Shagbaor Ikyegh, JCA, I align myself to the final conclusion contained in the judgment and have nothing more to add.

Appearances:

Mr. I. B. Muhammed For Appellant(s)

Unrepresented For Respondent(s)