EZE BOB UBIARU v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13563(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/OW/85C/2017
RATIO
SENTENCING: THE COURTS MUST ACT WITHIN THE BOUNDS OF THE LAW WHEN SENTENCING A PERSON ALTHOUGH IT HAS ITS OWN DISCRETION
First and foremost it is to be noted that the issue of sentencing or sentence is at the discretion of the Courts of trial which discretion must both be exercised judicially and judiciously. In the exercise of such discretion the trial Courts are enjoined to be conscious of the bounds within which they are kept by the law and must therefore not exceed same. The trial Courts must not, and will never pass any sentence in excess of the terms of years or amount of fine stipulated by the law. However trial Courts can pass sentences lesser in terms than those stipulated in the statutes regard being had to the facts and circumstances of each case, being mindful of stating the factors which influence the exercise of their discretions. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUDGMENT AND SENTENCING: MANDATORY SENTENCING: WHETHER THE COURT CAN EXERCISE IT’S DISCRETION IN THIS INSTANCE
Where a statute prescribes a mandatory sentence the trial Courts are without jurisdiction to go out of the provisions either above or below the mandatory prescription, for instance, Section 1 (2) of the Robbery and Firearms (Special Provision) Act. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUDGMENT AND SENTENCING: WHAT A TRIAL COURT CAN CONSIDER WHEN THERE IS A TERM OF IMPRISONMENT
Where a term of imprisonment is prescribed the trial Court can consider extenuating factors like age of the convict, his being a first offender, etc. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
COURTS: DISCRETION TO IMPOSE FINE: MUST BE EXERCISED JUDICIOUSLY AND JUDICIALLY
Where there is discretion in the trial Court to impose fine, then the discretion must be exercised both judicially and judiciously, stating the factors which influence the exercise of its discretion in that regard. See NWUDE VS. F.R.N. (2015) LPELR-25858(CA). PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
APPEAL: WHEN THE APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURTS
As decided in NWUDE VS. F.R.N. (2015) supra, it is not the practice of the Appellate Court to tamper with the findings, conviction and sentencing of a convict by trial Court except where the sentence is excessive or inadequate in the circumstances of the case or where it is wrong in principle. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
STEALING UNDER SECTION 270(1) OF THE ABIA STATE CRIMINAL LAW PROCEDURE LAW
Now Section 270 (1) of the Abia State Criminal Procedure Law provides:-
270 (1) where any person is convicted of having stolen or having received stolen property, the Court convicting him MAY order that such property or part thereof be restored to the person who appears to it to be the owner thereof, either on payment or without payment by the owner to the person in whose possession such property or part thereof then is, of any sum raised in such order. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
COURTS: WHEN AN APPELLATE COURT WILL NOT INTERFERE IN THE DISCRETION OF THE TRIAL COURTS
Also,since it has not been shown that the trial Judge?s findings are perverse, or the conviction was wrong or the exercise of his discretion in imposing sentence was wrongly done, it will be improper for this Court to temper with the exercise of his discretion. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
EZE BOB UBIARU – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the Judgment in Suit No. HU/36C/2013 of the High Court of Abia State, Umuahia Judicial Division, presided over by the Honourable Justice Agwu Umah Kalu, delivered on the 29th day of September, 2016 in which the lower Court convicted the Appellant of stealing under Section 383 (1) punishable under S. 390 (a) of the Criminal Code, Cap 80, volume 5, Laws of the Abia State, 2005, sentencing him to a fine of N3,000,000.00 (Three Million Naira) or in default of payment, two years imprisonment. The Appellant paid the said fine. The Lower Court further ordered that the N10 Million out of the N40 Million allegedly stolen and put in a time deposit account by the Appellant be released to Ipupe Community Development Association. It was further ordered that the stocks/shares allegedly bought with part of the money be disposed of and the proceeds paid over to Ipupe Autonomous Community. See page 482 of the Record of Appeal, hereinafter referred to as ?the Record?.
The Notice of Appeal filed on 28/10/2016 contains 24 grounds (pages
1
486?507 of the Record).
From these grounds the Appellant formulated 13 issues for determination.
The Respondent cross appealed, submitting two issues for determination. I shall come to this later.
The appeal was heard on 28/3/19 on which date Sir A. O. Ugwa Esq., leading C. O. Ndukwe (Mrs.), U. E. Nwosu Esq. and N. B. Okezie (Miss) for Appellant, and A. I. Raheem, Assistant Director ICPC for the Respondent adopted their respective briefs of argument which were filed on 20/7/18 and 29/10/18 respectively both of which were deemed properly filed and served on 1/11/18.
The lead Appellant?s learned Counsel Sir A. O. Ugwa (KJW) who settled the Appellant?s brief argued the issues in groups thus:-
(a) Issues 1, 2, 4, 6, 8 and 13 together
(b) Issue 3 argued alone
(c) Issues 5, 7 and 12 argued together
(d) Issues 10 and 11 argued together
(e) Issue 9 argued alone.
I shall take the issues in the order as argued.
ISSUES 1, 2, 4, 6, 8 and 13
1. Was the Learned trial Judge right when he held that the Appellant deployed the N40m for his personal purpose as opposed to a purported relocation
2
of shrines (Grounds 1, 2 and 7).
2. Was the trial Court right when it held that the Appellant used Emedhem B. S. as a conduit pipe to steal and or dishonestly convert the N13.5m to his personal use? (Grounds 3 and 18)
4. Whether upon a calm view, the decision of the trial Court that the Appellant never paid any of the withdrawals made to the none existent Lekia but stole or converted them is justified having regard to the evidence adduced before it. (Grounds 5, 8, 13 and 14).
6. Whether the charge of stealing against the Appellant was proved beyond reasonable doubt as required by law (Grounds 12 and 20).
8. Was the Learned trial Judge right when he held that the Appellant did not discharge the burden of proof imposed on him by S.140 of the Evidence Act (Grounds 16).
13. Whether the conviction of the Appellant can be supported having regard to the evidence adduced in the case (Ground 24)”
Sir A. O. Ugwa (KJW) submitted that the burden of proof rests squarely on the prosecution to prove all the essential ingredients of the alleged offence of stealing against the Appellant as required by Section 139 (1) of the Evidence Act, 2011(as amended).
3
Learned Counsel referred to the cases of PATRICK IKEMSON & 2 ORS VS. THE STATE (1989) 1 CLRN 1 R. 1 and ADEBAYO ADEYEMI VS. THE STATE (1989) 1 CLRN 60 at 62 R. 3 and submitted that the prosecution woefully failed to prove the offence of stealing against the Appellant. He argued that there was no scintilla of evidence of an animus furandi, that is, a fraudulent intent or fraudulent conversion of the N40 Million Naira by the Appellant as alleged, again referring to MONICA MAKWE VS. C.O.P. (1989) 1 CLRN 92 at 95 R. 4.
Sir Ugwa argued that the live issue in this case is whether or not the Appellant deployed the N40 Million for the relocation of the shrines. He stated that while the prosecution alleged that the Appellant did not, the Appellant on the other hand maintained that he engaged the services of one Lekia (a Juju priest from Ogoni) and paid him to relocate the shrines. He submitted that the evidence of PW8 (I.P.O) and PW10 settled this vexed issue, referring to page 369 lines 8-9 and 13-17 of the Record; that the decision of the lower Court that the Appellant used one Emedhem B.S. (also referred to as Emedhem
4
P.S. in the Record) as a conduit pipe to steal N13.5 Million for his personal use was not supported by evidence and therefore unsustainable, and afortiori the conviction of the Appellant, urging us to resolve these issues in favour of the Appellant and against the Respondent.
ISSUE 3
Whether from the evidence adduced at the trial Court could be said that the prosecution proved beyond reasonable doubt that Lekia was a phantom created by the Appellant to cover up or hide the money from the owners and investigators. (Grounds 4, 6, 9 & 11)
Learned Counsel referred to the evidence of PW8 and PW10 and submitted that Lekia is not a phantom as erroneously held by the lower Court, and urged us to so hold and resolve this issue in favour of the Appellant and against the Respondent.
ISSUES 5, 7 and 12
5. Was the Learned trial Judge right when he held that the issue of the payment of compensation by the NDPHC/NIFP to Ipupe Autonomous Community was deliberately shrouded in secrecy and mystery by the Appellant. (Ground 10)
7. Whether on the evidence before the trial Court, the Learned trial Judge was right when he held
5
that the Appellant admitted under cross-examination the absence of the owners of the money. (Ground 13)
12. Was the trial Court right not to consider and or give effect to Exhibit A. (Ground 23)
Sir Ugwa Esq., referred to the evidence of PW1, PW3, PW8, PW10, DW1, DW3 and Exhibit A at pages 133, 392?393, 411?413, 347, 508?529 of the Record and submitted that the issue of payment of compensation was not shrouded in secrecy as held by the learned trial Judge and then urged us to resolve these issues in favour of the Appellant.
ISSUES 10 & 11
10. Whether the learned trial Judge was right in holding that the relocation of the shrines is not the issue that needs resolution. (Ground 19)
11. Whether in the face of the PW8?s evidence, the trial Court rightly held that the Sixteen shrines were not relocated, or were not shown to have been relocated (Grounds 21 & 22).”
Sir Ugwa Esq., restated the issues formulated at the lower Court by both the Appellant and prosecution at pages 426 lines 6 ? 7 and 17 ? 19 of the Record and, while conceding to the power
6
of the Court to reframe, modify or even reject issues formulated by parties, submitted that such power would only be exercised in such a manner as not to work injustice to the Appellant and must deal directly with the live issues before the Court, relying on MALUMFASHI VS. KARFI (2010) ALL FWLR (Pt. 507) 36 and urged us to resolve these issues in favour of the Appellant.
ISSUE 9
Was the Learned trial Judge right to have convicted the Appellant when there were unexplained inconsistencies, material contradictions and conflicts in the evidence of the prosecution witnesses? (Ground 17)?
Learned Counsel submitted that the prosecution?s case was tainted with and or full of inharmonious, unexplained material contradictions, conflicts and inconsistencies which rendered it unworthy of belief and therefore incapable of proving the guilt of the Appellant beyond reasonable doubt as required by law. He then highlighted the said unexplained material contradictions and or inconsistencies in the case of the prosecution thus:-
(1) Evidence of PW1; Exhibit ?A? at page 133; and Exhibit ?B? at page 531, which
7
predated Exhibit ?A?
(2) Evidence of PW1 in respect of Suit No. HU/193/2013 pages 132?133 and evidence of PW2 at page 322 of the Record respectively;
(3) Evidence of PW1 and PW2 in respect of the various amount said to have accrued to the Ipupe Community and Exhibit ?A?; evidence of PW3, Exhibits ?O? and ?Q? at pages 128, 129, 131, 319 and 320 of the Record.
(4) Evidence of PW10 at page 382, PW4 at pages 349, 360, 369 and 384 and PW8 at page 371 of the Record.
Learned Counsel then submitted that the trial Judge turned a deaf ear and or shut his eyes by overlooking the contradictions in the evidence of PW8 and PW10 whose evidence he chose, which he out not to do, relying on:-
(1) PATRICK IKEMSON & 2 ORS VS. THE STATE (1989) 1 CLRN 1 R 1.
(2) ONUBOGU & ANOR VS. THE STATE (1974) 9 SC 1 and
(3) AKOSILE VS. THE STATE (1972) 5 SC 289 G.
In conclusion, learned Counsel urged us to allow the appeal, set aside the judgmen
