GANA & ORS v. F.R.N (2020)

GANA & ORS v. F.R.N

(2020)LCN/14465(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/G/338/C/2018

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

BUKAR ABUBAKAR GANA 2. AHMED MUSTAPHA 3. MUSA SALIHU APPELANT(S)

And

THE FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT HAS THE POWER TO IMPOSE A SENTENCE HEAVIER THAN THAT IMPOSED BY LAW

Again, I must state it, and very categorically that the Court has no power to impose a sentence heavier than that imposed by law: see on this the cases of Gambo Aliyu Wanzam vs. Federal Republic of Nigeria (2019) LPELR-480006 (CA), and Sabiyu Garba vs. Federal Republic of Nigeria (2019) LPELR-480007 (CA). PER ABUNDAGA, J.C.A.

AMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is a sister appeal to Appeal Nos. CA/G/337/C/2018: Ahmed Mustapha vs. Federal Republic of Nigeria & 2 Ors, and CA/G/339/C/2018: Musa Salihu vs. Federal Republic of Nigeria.

The Appellants in the three appeals were charged on two count amended charge which reads:
“AMENDED CHARGE
COUNT 1
That you, AHMED MUSTAPHA, BUKAR ABUBAKAR GANA and MUSA SALIHU sometimes in October, 2016 at Maiduguri, Borno State within the jurisdiction of this Honourable Court did agree among yourselves to do an illegal act, to wit: Conspired to commit cheating and thereby committed an offence contrary to section 96 of the Borno State Penal Code Law CAP 102 and punishable under section 97 of the same law.
COUNT 2
That you, AHMED MUSTAPHA, sometimes in October, 2016 at Maiduguri Borno State within the jurisdiction of this Honourable Court and pursuant to your agreement with Bukar Abubakar Gana (2nd Accused) and Musa Salihu (3rd Accused) did obtained (sic) the sum of N3, 000,000.00 (Three Million Naira) from Airtel Network Limited as price under the false pretence that you

are the bonafide winner of the said promo, which facts you knew to be false and thereby committed an offence contrary to Section 320(a) of the Borno State Penal Code Law CAP. 102 and punishable under section 322 of the same law.”

All the Appellants pleaded guilty to the charges against them. While the Appellant herein, and the Appellant in Appeal No. CA/G/339/C/2018 pleaded guilty to the charge of criminal conspiracy only preferred against them, the Appellant in Appeal No. CA/G/337/C/2018 pleaded guilty to the charge of criminal conspiracy and obtaining by false pretence preferred against him alone. All the Appellants were during their plea represented by counsel. The prosecution proceeded to call a witness, an EFCC detective who conducted investigation of the case by the name Sani Adamu Tilde to review the facts of the case. He testified as PW1. He gave evidence of the investigation he carried out in the case, and tendered the Appellants’ voluntary statements in evidence. He was at the end of his evidence cross-examined by counsel to the Appellants. Thereafter, the prosecution closed its case. The Appellant herein and the Appellants in the

other two sister appeals applied for a date to call evidence of character. They called six witnesses in proof of character. They themselves did not testify. (I refer to pages 32 – 35 of the record of appeal for the evidence of character). At the close of the evidence of character, Counsel addressed the Court, after which the Court adjourned for Judgment; in which the Appellant herein and the Appellants in the other sister appeals were convicted and sentenced accordingly. Not satisfied with the Judgment of the Court, the Appellant herein, filed his notice of appeal containing one ground of appeal on 4th June, 2018. The Record of Appeal was compiled and transmitted on 7/8/2018. On 14/08/2018, the Appellant filed Additional two grounds of appeal, apparently without leave of Court. On 3/10/18, the Appellant filed his brief of argument, settled by A. A. Modu, Esq. The said brief of argument was deemed properly filed and served on 1/11/2018. It was further amended by inserting 1st Appellant therein on 8/6/20. The Respondent’s brief of argument settled by H. Abdukadir, Esq. with the Economic and Financial Crimes Commission Maiduguri was filed on 8/6/20.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Meanwhile, on 3/6/2019 Appellant’s Counsel A. A. Modu, Esq., filed a motion on notice for leave to amend the Appellant’s notice of appeal. It was filed along with an amended Notice of Appeal which upon the grant of the leave to amend the Notice would be deemed properly filed and served. When on 11/6/2020, the Appellant’s Counsel was not in Court to move the said motion despite service of hearing notice on him, the motion was struck out for want of diligent prosecution. It was struck out along with the amended Notice of Appeal which as earlier mentioned, was filed along with the motion for leave to amend the Notice of Appeal.

On 6/7/2020, the Respondent’s Counsel, Khalid Sanusi, Esq., filed a Notice of Preliminary Objection challenging the competence of the appeal. Having earlier sought and obtained leave of Court to support the Notice of Preliminary Objection with a written address, the Preliminary Objection was accordingly supported with a written address signed by him.

The appeal came up for hearing on 20/7/20. The Appellant’s Counsel, despite the service on him of the Notice of Preliminary Objection and hearing notice

was once again not in Court. The Respondent’s Counsel A. U. Ringim proceeded to move the Respondent’s Notice of Preliminary Objection and adopted the written address in support, and urged the Court to dismiss the appeal.

In regard to the substantive appeal, the appellant’s brief of argument filed on 3/10/18 and deemed properly filed and served on 1/11/2018, and further amended on 8/6/20 was deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016. A. U. Ringim, Esq. Counsel for the Respondent adopted the submissions contained in the Respondent’s brief of argument which was filed on 8/6/20 and urged the Court to dismiss the appeal and affirm the Judgment of the lower Court.

DETERMINATION OF THE NOTICE OF PRELIMINARY OBJECTION
The Notice of Preliminary Objection seeks to terminate the appeal in limine, and will therefore be accorded priority in the determination of this appeal.

The grounds upon which the Notice of Preliminary Objection is predicated are as stated in the body of the said notice. In a nutshell, the objection is predicated on the ground that even though Appellant alone is appealing

he placed three parties as “Appellant” in the notice of appeal and the record of appeal.

In the written address, a lone issue was formulated for determination; and the issue is, “whether a defective Notice of Appeal can render the whole appeal incompetent.”

The Notice of Preliminary Objection, in my view can be determined on this issue. Therefore, I adopt it for the determination of the Notice of Preliminary Objection.

In his submission, Counsel for the Respondent submits that it is settled law that a Notice of Appeal in the process of appeal is the foundation of an appeal. That if it is defective the appellate Court must strike it out on grounds of incompetence and in violation of Order 17 Rule 3(1) of the Court of Appeal Rules, 2016. In aid of his submission, Counsel relies on the following cases:- Odofin vs. Agu (1992) 3 NWLR (Pt. 229) 350, FRN vs. Dairo (2015) 6 NWLR (Pt. 1454) 141 at 116/117 (SC) per Nweze JSC, and Nonye Iwunze vs. FRN (2015) 6 NWLR (Pt. 1404) 580 SC.

Counsel therefore submits that the incompetence of the Notice of Appeal has robbed this Court of the requisite jurisdiction to proceed with this

appeal. The Court is therefore urged to strike out the appeal.
The Appellant did not respond to the Notice of Preliminary Objection.

Now, looking at the Notice of Appeal, which can be located at pages 46 – 48 of the record and on the face of the record of appeal, can it in substance be said that it is incompetent? Even though the names of the Appellants in the two sister appeals are reflected along with that of the Appellant herein in the Notice of Appeal the arrow points to Bukar Abubakar Gana as the Appellant. The Notice of Appeal at page 46 of the record of appeal thus states:
“I Bukar Abubakar Gana having been convicted for the offence of criminal conspiracy contrary to Section 96 and punishable under Section 97 of the Penal Code Law, Cap 102 Laws of Borno State of Nigeria, and now being a prisoner at the New prison Yard Maiduguri do hereby give Notice of Appeal against my conviction, particulars of which hereinafter appear, to the Court on the following Grounds and also state that at the hearing of the Appeal I do not desire to be present …”
The appearance of the Appellants in the sister appeals; Ahmed Mustapha

and Musa Salihu without any indication as to their capacity is to my mind as good as their names not appearing in the Notice of Appeal. This is not different from instances in some appeals where convicted co-accused persons are reflected as respondents, like in Appeal No. CA/G/337/2018 where the Appellants in the sister appeals are reflected as Respondents. It may also be argued that it is not proper to reflect them as Respondents since the Appellant therein has no complaint against them, they not being the body or organ that prosecuted them… I think that the safer procedure to take without any room for arguments on technicality as in the instant appeal is that an Appellant in a joint trial, apart from filing his separate Notice of Appeal should only reflect his name as the Appellant leaving out the other co-convicts or co-accused persons, even if to assign no capacity to them; and reflect the prosecuting agency against which it has complaints as the only Respondent. I want to believe that Appellants such as in the instant appeal reflect the names of other parties even if they are not part of the appeal out of abundance of caution for fear of being

caught up with the trite position of the law that an appeal is a continuation of the trial at the trial Court, therefore the same parties at the trial Court must be reflected at the Appellate Court. I think the law is misconstrued. The law is intended to ensure that only parties at the lower Court are reflected at the Appellate Court to obviate the unwholesome practice in which parties that did not participate in the proceedings at the trial Court are sometimes made parties in the appeal. The untenable excuse given sometimes is that they want such parties to be bound by the outcome of the appeal. This has been the case in some appeals in which Deputy Chief Sheriffs who did not participate in the proceedings at the trial Court are made parties in the Appellate Court on the ground that unless they are joined, they may deal with the object property before the determination of the appeal. While I do not accept the contention of the Respondent that the Notice of Appeal herein is defective, it is my sincere admonition to Counsel to avoid this kind of controversy in future by reflecting only the name of the Appellant in the Notice of Appeal. The Notice of Appeal in

my view is not incompetent. Therefore, the authorities cited by the Respondent’s Counsel even though good law for what they decided, are not applicable in the instant appeal. The preliminary objection therefore lacks merit and is hereby dismissed.

DETERMINATION OF THE SUBSTANTIVE APPEAL
In the Appellant’s brief of argument, two issues were formulated for determination.
The issues are:
1. Whether the trial Court was right to sentence the Appellant to two years imprisonment and a fine of (N400, 000.00) or in default of payment serve another two years imprisonment was proper and in line with the provision of Section 97(2) of the Penal Code Law Cap 102 Laws of Borno State of Nigeria, 1994. (Issue one is distilled from ground one of the original ground of Appeal).
2. Whether the trial Court was right to hold that the prosecution has established and proved the offence of criminal conspiracy beyond reasonable doubt as required by law. (Issue two is distilled from grounds two and three of the additional grounds of appeal).

On its part the Respondent formulated a lone issue for determination, and that issue is, “whether

or not the plea of guilt entered by the Appellant in this case, the trial Court can convict him as charged.”

In the introductory part of this Judgment, I noted that the additional grounds of appeal filed on 14/8/2018 was filed without leave of this Court sought and obtained. Therefore, the additional grounds of appeal is incompetent and must therefore be discountenanced. It therefore follows that issue two formulated from grounds two and three of the additional grounds of appeal must therefore be discountenanced, as it is incompetent. See the following cases: – Umanah vs. NDIC (2016) LPELR-42556 (SC) per Rhodes-Vivoir, JSC (pp. 17 – 18, para C), Agbaka & Ors vs. Amadi & Anor (1998) LPELR-231 (SC) per Ogwuegbu, JSC (p. 8 paras C – E), Ikwunne & Ors vs. The State (1999) LPELR-10241 (CA) per Olagunju, JCA (pp. 18 -19, paras E – D), Agundo vs. Gberbo & Anor (1999) LPELR-6644 (CA) per Mangaji, JCA (pp. 9 – 10, paras B – E).

Therefore, the only issue that survives of the Appellant’s issues for determination is issue one. The Respondent’s lone issue does not address the Appellant’s issue

one, and not in any way directed to the Appellant’s one ground of appeal in the Appellant’s original ground of appeal contained in his Notice of Appeal. The Respondent’s lone issue for purpose of clarity is formulated from the Appellant’s additional grounds two and three appeal which, as earlier statedis incompetent same having been filed without leave of this Court having been sought and obtained.

This appeal will therefore be determined on the Appellant’s issue one only.

In his argument on issue one, Appellant’s Counsel Points out that the Appellant was convicted by the trial Court for the offence of criminal conspiracy contrary to Section 96 of the Penal Code Law Cap 102 Laws of Borno State, and punishable under Section 97 of the same law. Counsel further points out that the Appellant was sentenced to two years imprisonment and a fine of N400, 000.00 or in default of fine, another two years imprisonment for the offence of conspiracy under Section 97(2) of the Penal Code Law, Cap 102, Laws of Borno State of Nigeria. We refer to page 44 of the record of appeal.

It is submitted that the trial Court in its

sentence of the Appellant exceeded the limit provided in the section, and that the Court ought to be convicted and sentenced to six (6) months imprisonment or with fine or both. Counsel further submits that the offence with which the Appellant was charged is within the ambit of the provision of Section 97(2) of the Penal Code Law of Borno State. It is further submitted that the operative word in Section 97(2) of the Penal Code Law of Borno State is “shall”, which shows that the clear intention of the makers of the penal code is that the Court is commanded to adhere strictly to offence of conspiracy other than the one provided in Section 97(1) of the Penal Code. In aid of Counsel’s submission that “shall” when used in a statute conveys a command, the case of Ogidi vs. State (2015) NCC p. 163 at 167, paras A – B, per A. O. Ejiwunnmi, JSC is relied on. Also cited is the case of Anyanwu vs. The State (2003) 13 NWLR (Pt. 783) 107, and the case of Josiah vs. The State (1986) 1 NWLR (Pt. 1) p. 125. Respondent’s Counsel’s submission in answer to the submission of Appellant’s Counsel on issue one does not address the

issue raised in the said issue one and the lone ground of appeal.

It is submitted for the Respondent that by virtue of Section 272(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the High Court has unlimited jurisdiction to try all criminal offence such as the offence of criminal conspiracy, as in the instant case.

Section 97(2) of the Penal Code Laws of Borno State under which the appellant was convicted provides:
“Whoever is a party to a Criminal Conspiracy other than a Criminal Conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for a term not exceeding six months or with fine or with both.”
Now, “as aforesaid” in the provision referred to in the provision in Section 97(1) of the same law which provides:
“Whoever is a party to a Criminal Conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this Penal Code for the punishment of such a Conspiracy be punished in the same manner as if he had abetted such offence.”
The appellant was charged for Conspiracy contrary

to Section 96 of the Penal Code and punishable under Section 97(2) of the Penal Code. He was convicted and sentenced under Section 97(2) of the Penal Code.
Since he was clearly and unquestionably sentenced under Section 97(2) of the Penal Code, the lower Court had no power or discretion to sentence him to a term outside what the said Section 97(2) of the Penal Code provides which in this case is “imprisonment for a term not exceeding six months or with fine or with both.”
The sentence of imprisonment of 2 years with fine of N400,000 in default of payment of the fine to a further 2 years imprisonment is without doubt contrary to what the law provides.
The wording of Section 97(2) of the Penal Code is clear and unambiguous. The trial Judge had a duty to apply it as it is, simple! See the case of Adewumi vs. AG Ekiti State (2002) (Pt. 7511) 474.
Again, I must state it, and very categorically that the Court has no power to impose a sentence heavier than that imposed by law: see on this the cases of Gambo Aliyu Wanzam vs. Federal Republic of Nigeria (2019) LPELR-480006 (CA), and Sabiyu Garba vs. Federal Republic of Nigeria (2019) LPELR-480007 (CA).

The lower Court was therefore wrong in imposing a sentence heavier than what the law provides. This error cannot be excused on the reason given by the Court that “there is need to deter like-minded persons as the convicts from committing such acts.” By what the lower Court did, it took upon itself the duty of attempting to amend the provision of Section 97(2) of the Penal Code Law of Borno Statewhich exercise is an exclusive preserve of the legislature. The Court cannot do that.

In the premise of the foregoing, I resolve the lone issue in favour of the appellant.

It therefore behooves this Court to consider the proper order to make having resolved the sole issue in favour of the appellant, which is to the effect that the lower Court was in error in passing a sentence in excess of what the law provides against the Appellant. Section 19(3) of the Court of Appeal Act, 2004 comes to the rescue. For ease of reference, I reproduce the said provision hereunder;
“19(3): On appeal against sentence, or subject to the provisions of this Act, on an appeal against conviction, the Court of Appeal shall, if it thinks

that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and if not of that opinion shall, in the case of an appeal against sentence, dismiss the appeal.”
This provision came to light for consideration in the case of Okon Aniefiok Okon vs. The State (2019) LPELR-47460 (CA). Submitting to the provision of the Section which gives the Court the unfettered power to impose an appropriate sentence in situation as such faced by the Court in the instant appeal, the Court at pages 13 -15, paras B – C held inter alia; per Ogbuinya, JCA:
“The provision, in an unequivocal term, grants this Court, where it reaches a conclusion that a different sentence should have been passed on a convict the liberty and authority to substitute the wrong sentence, passed by the trial Court, with the one endorsed by law whether the latter is more or less. The import of this provision, with due deference, exposes the poverty of the scintillating submission of the learned appellant’s

counsel on the point. I will, without option, act according to the letter and spirit of the law as entrenched in the provision. In other words, armed with the unbridled licence donated by the provision, I will replace the sentence, in the twilight of this Judgment, to fall within the perimeter of the provision. However, for purposes of clarity, since the lower Court acted beyond the jurisdiction vested on it by Sections 451 and 210(f) of the Criminal Code and the appellant will get a lighter sentence, this issue is resolved in favour of the appellant and against the respondent.”
In view of the foregoing, I hereby set aside the sentence passed on the appellant by the lower Court. In its place, I substitute the sentence of 6 months imprisonment and a fine of N400, 000. In default of the payment of the fine, he is sentenced to a further six months imprisonment.

From the record of appeal, the prison terms started to sum from 15th May, 2018. See page 45 of the record of appeal.

If after the 6 months imprisonment, the Appellant was unable to pay the fine, his total prison term would be 12 months. In the event that this is what played out in this

case, the appellant would have served out the 12 months prison term already, and would therefore be entitled to be released from prison on that basis.

On the other hand, if he paid the fine, he would have since served out the 6 months prison term. In either case, the appellant is entitled to be released from prison (now referred to as “Correctional Centre”) forthwith. I so order.

JUMMAI HANNATU SANKEY, J.C.A.: I am in agreement with the lead Judgment of my lead brother, Abundaga, J.C.A. that this Appeal is pregnant with merit.

The lone surviving issue for the determination of the Appeal after the Additional Grounds of Appeal had been discountenanced on the ground of incompetence, is in respect of the sentence passed on the Appellant, which he contends is excessive.

I agree with the Appellant that the sentence of two (2) years imprisonment plus a fine of N400,000.00, and in default of payment, a further term of two (2) years imprisonment, passed on him by the trial Court is contrary to the provision of the law under which he was convicted for conspiracy. By Section 97(2) of the Penal Code, the penalty prescribed upon

conviction for the offence of conspiracy is “Imprisonment for a term not exceeding six months or with fine or with both.”

It is therefore for this reason that I also allow the Appeal. I abide by the consequential Orders made in the lead Judgment.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lead Judgment delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA and I agree with the reasoning and conclusion reached therein.

In the result, I find this appeal to be meritorious and is hereby allowed and I abide by the orders made therein.

Appearances:

A. Modu, Esq. For Appellant(s)

Abdulkadir, Esq. Economic and Financial Crimes Commission Maiduguri, Borno State For Respondent(s)