EBIJIMI v. STATE OF LAGOS (2021)

EBIJIMI v. STATE OF LAGOS

(2021)LCN/15026(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 26, 2021

CA/LA/CR/834/2019

RATIO

CRIMINAL LAW: EFFECT OF AN AGREEMENT TO A THING WITHOUT VIOLATION OF THE LAW

Section 297 (1)
“A person who commits the offence of robbery shall on conviction be sentenced to imprisonment for not less than twenty-one (21) years.” PER JAMES SHEHU ABIRIYI, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

BARNABAS EBIJIMI APPELANT(S)

And

THE STATE OF LAGOS RESPONDENT(S)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 26th March, 2019 in the High Court of Lagos State in the Lagos Judicial Division, holden at Lagos.

In the High Court (the Court below), the Appellant and one other accused person were charged with conspiracy to commit armed robbery and armed robbery, offences contrary to Sections 299 and 297 (2) (a) and (b) of the Criminal Law of Lagos State.

The two accused persons initially pleaded not guilty to the charge against them and the matter proceeded to trial. After hearing had commenced, the Appellant applied to the Attorney General of Lagos to be allowed to explore the option of plea bargaining with the state.

The prosecution and the Appellant on the 8th of January, 2019 entered into a “Plea and Sentence Agreement.” The highlight of the plea and sentence agreement was that the Appellant would be charged with the lesser offences of conspiracy to commit robbery and robbery as against the weightier ones for which they were initially charged. That the Appellant would plead guilty to the lesser offences upon which he

would be charged and be sentenced to fourteen (14) years imprisonment.

The charge was accordingly amended and the Appellant pleaded guilty and was sentenced to twenty-one (21) years imprisonment instead of the 14 years imprisonment agreed by both the prosecution and the Appellant.

Sensing that the plea and sentence agreement was breached or not given effect to by the Court below, the Appellant approached this Court by a notice of appeal filed on 16th May, 2019. The notice of appeal contains two grounds of appeal. From the two grounds of appeal, the Appellant presented the following lone issue for determination in an Appellant’s brief dated and filed on 20th August, 2019:
Under the ACJL of Lagos State a Court is obligated to first inform a defendant if the Court decides to impose a sentence higher than that agreed by the parties in a plea and sentence agreement. The trial Court imposed a higher sentence than was agreed between the appellant and respondent without first informing the appellant. Was the trial Court right to sentence the appellant to 21 years imprisonment without first informing the appellant?

The Respondent also submitted

a single issue for determination in the Respondent’s brief filed on 22nd June, 2020 but deemed duly filed and served on 11th December, 2020. The issue is reproduced immediately hereunder;
Whether the Court below was right to have sentenced the Appellant to a term of imprisonment which is more than the recommended term of imprisonment contained in the Plea and Sentence Agreement between the Appellant and the Respondent? This issue covers all the grounds of Appeal.

Learned counsel for the Appellant referred the Court to Section 77(8) and (9) of the Administration of Criminal Justice (Repeal and Re-Enactment) Law of Lagos State and contended that a perusal of the lower Court’s record of proceedings of 19th March, 2019 will show that the Court below did not inform the Appellant of the intention of the Court to increase the agreed sentence from 14 years to 21 years imprisonment which the Court below considered appropriate. The Court was referred to pages 41 – 45 of the record. The Court below, it was submitted, was compelled to inform the Appellant about the 21 years imprisonment which the Court below considered to be the appropriate

sentence. This the Court below did not do.

It was submitted that the Appellant had a right to accept or refuse the 21 years imprisonment imposed on him by the Court below but the Court below did not give the Appellant the opportunity to accept or reject the heavier sentence of 21 years imprisonment.

It was submitted that failure to inform the Appellant of the heavier sentence of 21 years imprisonment which the Court below considered appropriate amounted to a breach of the Appellant’s right to fair hearing enshrined in Section 77 (9) of the Administration of Criminal Justice (Repeal and Re-Enactment Law and the 1999 Constitution FRN (as amended).

It was submitted that the lower Court’s failure to inform the Appellant of the heavier sentence of 21 years imprisonment before sentencing him rendered the sentence a nullity.

It was submitted that the Court below having failed to comply with the mandatory provisions of Section 77 (8) and (9) of the Administration of Criminal Justice (Repeal and Re-Enactment) Law before increasing the sentence of the Appellant from 14 years to 21 years imprisonment rendered the heavier sentence of 21

years imprisonment null and void.

The Court was urged to quash the sentence of 21 years imprisonment and substitute it with a prison term of 14 years.

Learned counsel for the Respondent submitted that the Court below was right in sentencing the Appellant to 21 years imprisonment despite the contents of the plea and sentence agreement entered into between the Appellant and the Respondent. Learned counsel for the Respondent pointed out that the Appellant pleaded guilty to conspiracy to commit robbery and robbery contrary to Sections 299 and 297 (1) of the Criminal Law of Lagos State 2015.

It was submitted that under these provisions of the Law, a person found guilty under either must be sentenced to a term of imprisonment not less than 21 years. That the Court can impose more than 21 years but cannot impose less than 21 years imprisonment. The law is trite, it was submitted, that parties cannot through a contract waive the provisions of a statute. The Court was referred to Olufeagba v. Abdur-Raheem (2009) 18 NWLR (pt. 1173) 384. Parties, it was submitted, cannot by conduct or consent alter the constitution or a statute.

In his reply brief, the Appellant contended that the Appellant is not seeking the waiver of the provision of any law but compliance with the law and therefore Olufeagba v. Abdur-Raheem (supra) is not applicable to this case.

I will reframe the issue for determination thus: Was the Court below right in sentencing the Appellant to a prison term of twenty-one years instead of the fourteen years imprisonment agreed by the Respondent and the Appellant.

An agreement to do a thing which cannot be done without a violation of the law is void. See Attorney-General of Bendel State v. Attorney-General of the Federation (1981) LPELR – 605 SC p.39 – 40.
Sections 299 and 297 (1) of the Criminal Law of Lagos State 2015 under which the Appellant was convicted provide as follows:
Section 299
“Any person who conspires to commit an offence under Section 296 of this Law whether or not he is present when the offence is committed or attempted to be committed shall be deemed to be guilty of the offence as a principal offender and shall be punished accordingly.”
Section 297 (1)
“A person who commits the offence of robbery shall on conviction

be sentenced to imprisonment for not less than twenty-one (21) years.”
In sentencing the Appellant, the Court below at page 49 of the record stated as follows:
The 2nd defendant herein is charged with one charge of conspiracy and 4 counts of robbery contrary to Section 297 (1) of the Criminal Law of Lagos State 2015. That Section states:
“Any person who commits the offence of robbery shall on conviction be sentenced to imprisonment for not less than twenty-one years.”
In applying the Sentencing Guidelines, the Court would first determine whether the statute allows for the exercise of discretion in sentencing for the offence under consideration. Where the statute does not permit the exercise of discretion, the Court shall apply the punishment prescribed. In the instant case, the language of the lawmakers used in the section does not appear to leave room for any discretion. The language used is clear and does not lend itself to any ambiguity whatsoever – it says not less than 21 years.
The learned counsel for the Appellant made heavy weather of the Administration of Criminal Justice (Repeal and Re-Enactment)

Law of Lagos State which is a Procedural Law without a whimper on the reason given by the Court below for sentencing the Appellant to twenty-one years imprisonment rather than the fourteen years agreed upon by the Appellant and the Respondent. The agreement between the parties for a sentence of fourteen years could not be enforced without violating Sections 299 and 297 (1) of the Criminal Law of Lagos State 2015 which is a substantive law. The Court below was therefore on firm ground when it imposed the minimum sentence of twenty-one years imprisonment on the Appellant. It was not the intention of the Court below to increase the prison term from fourteen years to twenty-one years imprisonment as contended by learned counsel for the Appellant. The Court below merely complied with the law. There is also no evidence that the twenty-one years imprisonment was the sentence that the Court below considered appropriate as learned counsel for the Appellant argued. Having complied with the provisions of the law reproduced above, there is no basis for the argument of learned counsel for the Appellant that the sentence of twenty-one years imprisonment was rendered null

and void for failure to comply with the void agreement between the Appellant and the Respondent that the Appellant be sentenced to 14 years.

The only issue for determination is therefore resolved against the Appellant and in favour of the Respondent and the appeal dismissed.
The judgment of the Court below is affirmed by me.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity to read the draft of the leading judgment, in this appeal, just delivered by my learned Brother, JAMES SHEHU ABIRIYI, J.C.A.

For the reasons stated in the said leading judgment, which I adopt as mine, I equally hold that the appeal is devoid of merits and dismiss it accordingly.
The judgment of the trial Court in this matter is therefore affirmed by me.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, JAMES SHEHU ABIRIYI, J.C.A. and I am in agreement with the reasoning and conclusions in dismissing this Appeal as lacking in merit. I subscribe to the consequential orders made in the lead judgment.

Appearances:

Kelechi Okeke, Esq. For Appellant(s)

A. Azeez, Esq., Assistant Chief State Counsel Directorate of Public Prosecutions Lagos State Ministry of Justice. For Respondent(s)