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

MUSTAPHA v. F.R.N. & ORS

(2020)LCN/14414(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/G/337/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

AHMED MUSTAPHA APPELANT(S)

And

1. THE FEDERAL REPUBLIC OF NIGERIA 2. BUKAR ABUBAKAR GANA 3. MUSA SALIHU 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).
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.” PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is a sister appeal to Appeal Nos. CA/G/338/C/2018: Bukar Abubakar Gana 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 then 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, the Appellant filed Notice of Appeal containing five (5) grounds of appeal inclusive of the omnibus ground of appeal on 28/5/2018. The record of appeal was compiled and transmitted on 7/08/2018. Counsel proceeded to file their briefs of argument. The Appellant’s brief of argument, settled by A. S. Badagubi, Esq. was filed on 17/08/2018. The Respondent’s brief of argument filed on 8/6/20 was deemed properly filed and served on 25/06/2020.

When the appeal came up for hearing on 20/7/20, the Appellant’s Counsel was not in Court despite service of hearing notice on him. Therefore, pursuant to Order 19 Rule 9(4) of the Court of

Appeal Rules 2016, the Appellant’s brief of argument was deemed duly argued.

The Respondent’s brief of argument was adopted by its Counsel A. U. Ringim Esq. He urged us to dismiss the appeal and affirm the Judgment of the trial Court.

In the Appellant’s brief of argument, two issues were formulated for determination.
The issues are:
1. Whether or not the two years sentence and a fine of N400,000.00 or in default of payment to still serve another two years terms imprisonment was in conformity with the provision of Section 97(2) of the Penal Code Law Cap. 102 Laws of Borno State of Nigeria, 1994 (Distilled from ground 2 and 3).
2. Whether or not the trial Court was right to hold that the prosecution has established the offences of conspiracy and cheating pursuant to Section 97(1) (a)and 322 of the Penal Code Law Cap. 102 Laws of Borno State having regard to the review of the facts of the case. (Distilled from ground 1, 4 and 5).

In the Respondent’s brief of argument, a lone issue was formulated for consideration, and that issue is:
“Whether or not by the plea of guilt entered by the Appellant in

this case, the trial Court can convict them as charged.”

The issue formulated by the Respondent does not address the Appellant’s complaint in grounds 2 and 3 contained in his Notice of Appeal. Therefore, the issues formulated by the Appellant are more appropriate for the determination of this appeal. I hereby adopt the two issues formulated by the Appellant for the determination of this appeal.
I will therefore proceed to determine this appeal based on those issues seriatim.

Issue one
Whether or not the two years sentence and a fine of N400, 000.00 or in default of payment to still serve another two years terms imprisonment was in conformity with the provision of Section 97(2) of the Penal Code Law Cap. 102 Laws of Borno State of Nigeria, 1994 (Distilled from grounds 2 and 3).
In arguing this issue, Appellant’s Counsel points out that the trial Court convicted the Appellant for the offence of conspiracy to cheat contrary to Section 96 of the Borno State Penal Code law, Cap 102, and punishable under Section 97 of the same law. It is submitted that the sentence of 2 years imprisonment and a fine of N400,000.00 and, a

further 2 years imprisonment in default of payment of the said fine is contrary to the combined provisions of Sections 97(1) and 97(2) of the Penal Code. It is submitted that the offence is within the provision of Section 97(2) of the said Penal Code, and not Section 97(1) of the same law. That the sentence is in excess of what Section 97(2) of the law states, which is that the punishment shall be imprisonment not exceeding 6 months. That the use of the word “shall” conveys a command, which means that the imprisonment cannot exceed 6 months. It is further submitted that the duty of the Court is to expound the law, and not expand it. It is further submitted that the duty of the Court is to bring to the fore, the intention of the legislature as expressed in the statute and nothing more. To buttress this submission, Counsel cites the case of Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 227 (SC), (2008) LPELR-446 (SC). Also cited are Aromolaran vs. Agoro (2014) LPELR-24037 (SC) p. 25 paras B – F; Adewumi vs. A.G Ekiti State (2002) 2 NWLR (Pt. 7511) 474.
Counsel urges the Court to resolve this issue in favour of the Appellant.

In response to this issue, it is submitted for the Respondent that by virtue of Section 271(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the High Court has unlimited jurisdiction to try all criminal offences such as criminal conspiracy offences, as in the instant case.

Needless to state, as it is crystal clear that this argument does not address the argument canvassed under the Appellant’s issue one, which in a nutshell is that the punishment imposed on the Appellant for the offence of criminal conspiracy is in excess of what Section 97(2) under which the Appellant was convicted and sentenced provides.
Be that as it may it behoves this Court to consider the merit of the arguments canvassed by the Appellant’s Counsel on the issue. 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 is 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.

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 State, which is an exclusive preserve of the legislature. The Court cannot do that.
In the premise of the foregoing I resolve issue one in favour of the appellant.

Issue Two
Whether or not the trial Court was right to hold that the prosecution has established the offences of conspiracy and cheating

pursuant to Section 97(1) and 322 of the Penal Code Law Cap. 102 Laws of Borno State having regard to the review of the fact of the case. (Distilled from ground 1, 4 and 5).
It is submitted for the Appellant that the trial Court failed to advert its mind to the reviewed facts of this case. Specifically, Counsel refers to the facts as reviewed by one Sani Tilde, who told the Court how he investigated the case, as to how the Appellant conspired with two others to cheat Airtel of a promo which was won by one Ali Baba in the sum of N3 Million. He refers the Court to page 30 lines 1 – 3 of the record of appeal. Counsel points out that under cross-examination, PW1 told the Court that Ali Baba does not exist. We are referred to page 32 line 5 of the record of appeal. Counsel defines the offence of obtaining by false pretence under Section 320 of the Penal Code of Borno State and submits that nowhere was the Appellant proved to have fraudulently and dishonestly induced Airtel to either issue a promo or to give out the promo that was won, as the essence of the promo is to attract customers. It is further submitted that no property was given to the Appellant

by Airtel, or that the Appellant intentionally induced Airtel or Ali Baba to part with their money. In short, the submission is to the effect that the ingredients of the offence were not proved in so far as PW1 told the Court that Ali Baba does not exist. We are urged to resolve this issue in favour of the Appellant.

For the Respondent, it is submitted that the evidence of the prosecution witness, inclusive of the statements of the Appellant which were tendered and admitted in evidence without objection from the Appellant as well as the Appellant’s plea of guilty established the elements of the charge against the Appellants. Counsel refers the Court to page 28, lines 10 – 35 and page 29 lines 5 – 15 of the record of appeal. Counsel therefore urged the Court to dismiss the appeal and affirm the Judgment of the trial Court.

There is no doubt that the Appellant clearly admitted the offence of obtaining money by false pretence contrary to Section 320(a) and punishable under Section 322 of the Penal Code law of Borno State Cap 102 of Borno State laws. On the Appellant’s plea of guilty, the trial Court adopted the procedure laid

down in Section 274(1) of Administration of Criminal Justice Act which provides thus:
“274(1) where a defendant pleads guilty to an offence with which he is charged, the Court shall:
(a) Record his plea as nearly as possible;
(b) Invite the prosecution to state the facts of the case
(c) Enquire from the defendant whether his plea of guilty is to the fact as stated by the prosecution.”
The trial Court recorded the Appellant’s plea of guilty exactly as slated by the Appellant. The second stage was to ask the prosecution to state the fact of the case. Rather than do that the Court instead allowed the prosecution to call a witness and to tender the statements of the Appellant, and that of other Appellants in the two sister appeals, and to be cross-examined.
The next and last stage was to enquire from the Appellants whether their plea of guilty is to the fact stated by the prosecution. This was however not done, rather, the Court called the Appellant and the others to enter their defence. The Appellant and the other two did not give any evidence in their defence but called evidence as to character.
Now, with what

transpired at the lower Court as stated in brief above, can it be said that there is any substance in the submission of Appellant’s Counsel that the elements of the offence were not established?
By calling PW1 to testify and tender the statements made by the Appellant to him in the course of investigation, the prosecution took upon itself more burden as required of it under Section 274(1) (a) of the Administration of Criminal Justice Act which only requires the prosecution to simply state the fact of the case. In his evidence PW1 told the Court what it did in the course of investigation in which the Appellant made Confessional Statements admitted in evidence without objection by the Appellant, which were admitted in evidence as Exhibits “A”, “B”, and “C”.
The said Exhibits are categorical, unequivocal, and direct admission of the offence by the Appellant. The law is trite that a Court can convict solely on the Confessional Statement of an accused person. See Adeyemi vs. State (2013) LPELR-20337 (SC) per Onnoghen, JSC (p. 11 para B), FRN vs. Kayode (2019) LPELR-48997 (SC) per Galumje, JSC (p. 26, paras A

– D), Manu Galadima vs. The State (2012) LPELR-15530 (SC) per Ogunbiyi, JSC (p. 21 paras B – F).
Instead of the trial Court proceeding under Section 274(1) (c) of the Administration of Criminal Justice Act, to enquire from the defendant whether his plea of guilty is to the fact, it called on them to enter their defence. However, the Appellant was who ably represented by Counsel did not complain, and one would expect that if from the evidence adduced and the Exhibits tendered and admitted in evidence the Appellant was mistaken on his plea of guilty and desired to resile from it, he would have called evidence in his defence to show that he was not indeed guilty of the offence charged. He did not do that. All that he did was to call evidence as to character, a clear indication that he maintained his plea of guilty, and was only trying to impress upon the Court that he was a person of good character in order to get a light sentence.
When in its Judgment the trial Court convicted the Appellant for the offence of obtaining by false pretence under Section 320(a) of the Penal Code Law of Borno State, Cap 102 Laws of Borno State and punishable

under Section 322 of the same law; the Court, without expressly stating so proceeded under Section 274(2) of the Administration of Criminal Justice Act which provides:
“Where the Court is satisfied that defendant intends to admit the truth of all the essential elements of the offence which he has pleaded guilty, the Court shall convict and sentence him or make such order as may be necessary, unless there shall appear sufficient reason to the contrary.”
With what transpired on record as earlier analyzed in this Judgment, the trial Court cannot be faulted. The step taken by the trial Court is right, I hold.
Premised on the foregoing I resolve issue two in favour of the Respondent and against the Appellant.

However, issue one having been resolved in favour of the Appellant, it therefore behooves this Court to consider the proper order to make in respect of the term of imprisonment handed down to the Appellant in respect of the charge of criminal conspiracy for which he was also convicted. Section 19(3) of the Court of Appeal Act, 2004 comes to the rescue. For ease of reference, I reproduce the said provision hereunder;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“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 in that case 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 run from 15th May, 2018. See page 45 of the record of appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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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.

In effect, the Appeal succeeds in part. The appeal against the term of imprisonment for criminal conspiracy is allowed, while the appeal against conviction for the offence of cheating under Section 320(a) of the Penal Code Law of Borno State and punishable under Section 322 of the same law lacks merit and is hereby dismissed.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the lead Judgment of my learned bother, Abundaga, J.C.A.
My lord has thoroughly addressed all the salient issues arising in the Appeal.

I am in agreement with his reasoning and conclusion that

the Appeal succeeds in part in respect of the Appellant’s conviction for conspiracy, which was not proved.

However, in respect of the conviction of the Appellant for the offence of obtaining money by false pretences punishable under Section 322 of the Penal Code Law of Bornu State, same is affirmed. Accordingly, the Appeal is without merit and is dismissed.

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 am in complete agreement with the reasoning and conclusion reached therein.

In consequence, I equally find that the appeal succeeds in part. The appeal against the term of imprisonment for criminal conspiracy is allowed and that against the conviction for the offence of obtaining money by false pretence cannot be allowed as it lacks merit. It is hereby accordingly dismissed.

Appearances:

S. Badagubi For Appellant(s)

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