OLAYINKA TAJUDEEN ADEMOYE v. THE STATE
(2013)LCN/5919(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2013
CA/C/84C/2012
RATIO
BAIL: BAIL IS A RIGHT OF AN ACCUSED PERSON EXCEPT WHERE IT INVOLVES A CAPITAL OFFENCE
Under the Nigeria Law, bail is a right of an accused person. An accused person is not usually denied bail, except where the offence is a capital offence. Bolakale vs. State (2002) 1 NWLR (Pt.962) page 507.PER UZO I. NDUKWE-ANYANWU, J.C.A.
BAIL: THE GENERAL RULE SURROUNDING BAIL
The general rule is that a person who has not been tried and convicted by a competent court for an offence known in law is entitled to be admitted to bail as a matter of course, unless some circumstances militate against his admission to bail. Ani Vs. State (2002) 1 NWLR Pt.747 page 217, Egu vs. State (1988) 2 NWLR pt.78 page 602.PER UZO I. NDUKWE-ANYANWU, J.C.A.
BAIL: BAIL IS GIVEN AT THE DISCRETION OF THE COURT
The decision to grant bail to an accused is of the discretion of the court. However, such discretion must, be exercised judicially and judiciously having regard to the right of the accused person to his liberty until he is proven guilty to the crime alleged, and the need for the society to be protected from criminal acts. Dokubo-Asari vs. FRN (2007) 12 NWLR Pt.1048 page 320, Bulama vs. FRN (2004) 12 NWLR Pt.888 page 498, Odo vs. COP (2004) 8 NWLR Pt.874 page 46.PER UZO I. NDUKWE-ANYANWU, J.C.A.
CRIMINAL LAW AND PROCEDURE: WHETHER AN ACCUSED IS ENTITLED TO GET SUBTRACTED FROM HIS SENTENCE THE TIME HE HAS SPENT IN CUSTODY DURING TRIAL
I am minded to temper justice with mercy. The length of time spent in custody during his trial would be subtracted from his sentence. The two years spent in custody ought to be deducted from the five years sentence by the trial Judge. Odeh vs. FRN (2008) 13 NWLR pt.1103 page 1; Nig. Army Vs. Iyola (2008) 18 NWLR pt.1118.PER UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES:
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
OLAYINKA TAJUDEEN ADEMOYE – Appellant(s)
AND
THE STATE – Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on the 14th July, 2011. The Appellant in this appeal was charged and arraigned on a two count charge of Forgery contrary to S.467 (2) (g) of the Criminal Code Law Cap C 16 Vol 3 Laws of Cross River State of Nigeria 2004 and uttering forged cheque contrary to S.468 of the Criminal Code Law Cap C 16 Vol. 3 Laws of Cross River State of Nigeria 2004.
At the close of the trial, the appellant was discharged and acquitted on count 1 of forgery but convicted on count 2 for uttering forged document and sentenced to 5 years imprisonment.
By the order of this court of 21 January, 2012 the Appellant was granted an extension of time to file his notice and grounds of appeal. The Appellant filed his notice and two grounds of appeal on 1st March, 2012. The Appellant filed his Appellant’s brief on 20th April, 2012 and formulated I issue for determination.
Whether the learned trial Judge at the court below upon convicting the Appellant for the offence of uttering a forged cheque should not have sentenced the appellant to a lesser term of years in view of the appellant having spent over two years in custody prior to the judgment (ground 2).
On the 21st January, 2012 when this appeal was heard, the respondent filed no brief and had nothing to urge the court.
The appellant adopted his brief and urged the court to take into consideration, the number of days the convict spent in prison custody awaiting trial. Learned counsel narrated the travails of the appellant. The appellant was arrested on 10th June, 2009 of the Banking Hall of Union Bank in Calabar. The appellant was taken into custody and remained there until he was arraigned on 13th April, 2010. The appellant was still in custody till the 14th July, 2011 when he was eventually convicted and sentenced to 5 years imprisonment. The appellant and his counsel during allocutus pleaded thus:
“We plead for leniency on behalf of the convict. The convict has been in custody since his arrest on 11th June, 2009. He is a first offender. He is a family man with 2 children. The family is in Lagos. See page 45 of the Record.
Counsel submitted that the
“The purpose of punishment of a criminal offender is to reform and not destroy or ruin the offender because if an individual is ruined, the larger society will be at the receiving end.”
The learned counsel submitted that the appellant was a first offender and is urging the court to put into consideration the number of months appellant spent in custody from his arrest to sentencing.
I agree that a custodial sentence is to punish an offender, help to reform him, and also to serve as a deterrent to others.
The appellant is appealing to this court to exercise its discretionary powers. It is a notorious fact that the wheel of our criminal justice grinds very slowly. The charge against the appellant are bailable offences which could have afforded the appellant his liberty after arrest and before his arraignment.
Under the Nigeria Law, bail is a right of an accused person. An accused person is not usually denied bail, except where the offence is a capital offence. Bolakale vs. State (2002) 1 NWLR (Pt.962) page 507.
The general rule is that a person who has not been tried and convicted by a competent court for an offence known in law is entitled to be admitted to bail as a matter of course, unless some circumstances militate against his admission to bail. Ani Vs. State (2002) 1 NWLR Pt.747 page 217, Egu vs. State (1988) 2 NWLR pt.78 page 602.
The decision to grant bail to an accused is of the discretion of the court. However, such discretion must, be exercised judicially and judiciously having regard to the right of the accused person to his liberty until he is proven guilty to the crime alleged, and the need for the society to be protected from criminal acts. Dokubo-Asari vs. FRN (2007) 12 NWLR Pt.1048 page 320, Bulama vs. FRN (2004) 12 NWLR Pt.888 page 498, Odo vs. COP (2004) 8 NWLR Pt.874 page 46.
The appellant was not granted bail by the Police before arraignment. After his arraignment he was still remanded in prison custody throughout his trial. The learned counsel to the appellant submitted that if the court does not consider the time spent awaiting his trial, the appellant would be incarcerated for over 7 years.
Usually during allocutus the accused and his counsel would proffer information that would work on the mind of the trial court before sentencing. In this case the trial Judge said
“I have listened to the passionate plea of Ademola Esq of learned counsel for the accused/convict. I have also noted the length of time he (accused/convict) has been in custody. But I note also that the offence committed is by definition a felony which carries heavy punishment upon convict; not to forget the amount of money he would have defrauded an innocent business man. In all I consider that it is in the best interest of society that such an offender be punished for the crime”
After this the trial Judge went ahead and sentenced the appellant to five years in prison.
I am aware that the Law prescribes a maximum sentence for any crime. In some cases the law goes as far as giving the minimum sentence.
Apart from the range of minimum to maximum sentence every other variable is at the discretion of the court. This discretion is to be exercised judicially and judiciously. The trial Judge had considered the plea of leniency by the accused and sentenced him to five years. The trial Judge did not specifically note whether he considered the fact that the appellant had been in custody since his arrest on the 10th June, 2009 till the 14th July, 2011 when he was sentenced. This is a period of 25 months.
The sentence of 5 years is not excessive for the charge convicted on. I agree that the society must be protected from such felons. However, the appellant is a first offender and has begged for forgiveness. He also has a very young family. I agree with the counsel that:
“The purpose of punishment of a criminal offender is to reform and not destroy or ruin the offender because if an individual is ruined, the larger society will be at the receiving end.”
I am minded to temper justice with mercy. The length of time spent in custody during his trial would be subtracted from his sentence. The two years spent in custody ought to be deducted from the five years sentence by the trial Judge. Odeh vs. FRN (2008) 13 NWLR pt.1103 page 1; Nig. Army Vs. Iyola (2008) 18 NWLR pt.1118.
This appeal is meritorious and therefore allowed. The sentence of 5 years by the trial Judge is to be reduced by two years the appellant had spent in custody awaiting his trial. The appellant sentence is reduced to three years imprisonment.
JOSEPH TINE TUR, J.C.A.: I had the privilege to read an advance copy of the judgment delivered by my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I do agree with the reasoning for interfering with the sentence passed by the learned trial Judge. The two counts upon which the appellant was arraigned before the High Court of Justice, Calabar, Cross River State on 13th day of April, 2010 reads as follows:
“STATEMENT OF OFFENCE – COUNT (1) FORGERY: Contrary to Section 467(2)(g) of the Criminal Code Law Cap.C16 Vol.3 Laws of Cross River State of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLAYINKA TAJUDEEN ADEMOYE on or about the 10th June, 2009 at the Bank Hall of the Union Bank of Nigeria Plc, Calabar Road Branch in the Calabar Judicial Division did forged a Union Bank Cheque No.00102348 with intent to steal the sum of N3,259,257.574 owed by Anasamora International Company.
STATEMENT OF OFFENCE (II)
UTTERING FORGED CHEQUE contrary to Section 468 of the Criminal Code Law Cap C16 Vol.3 of Cross River State of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLAYINKA TAJUDEEN ADEMOYE on the 11th day of June, 2009 at the Bank Hall of the Union Bank Plc, Calabar Road Branch in the Calabar Judicial Division uttered and forged Union Bank Plc Cheque No.00102348 on account No.15181060001 for the sum of N3,259,257.00 by presenting same for payment knowing it to be forged with intent to defraud Anasamora International Company owner of the account.”
The appellant was discharged on count one (forgery) but convicted and sentenced on count two (uttering a cheque) contrary to Section 468 of the Criminal Code Law Cap C16 Vol.3 Laws of Cross River State of Nigeria, 2004 which reads as follows:
“468. Uttering false documents and counterfeit seals: Any person, who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.”
It is immaterial whether the false document, or writing, or counterfeit seal, was made in the state or else where.
The appellant is not challenging the evidence nor the findings of the learned trial Judge but only the sentence of five years without option of fine. In determination of the appropriate sentence to be meted on a person found guilty of the offence of uttering, recourse has to be had to Section 467 of the Code (supra) which reads as follows:
“467. Punishment of forgery in general:
Any person who forgees any document, writing, or seal is guilty of an offence which unless otherwise stated, is a felony, and is liable, if no other punishment is provided, to imprisonment for three years.”
But count 2 alleged that the appellant uttered and forged a Union Bank Plc Cheque No.00102348 on account No.15181060001 for the sum of N3,259,257.00 by presenting same for payment knowing it to be forged with intent to defraud Anasamora International company the owner of the account. What was uttered by the appellant was a check or cheque which is a “draft document signed by the maker or drawer, drawn on a bank, payable on demand and unlimited in negotiability”. See Black’s Law Dictionary, 9th edition, page 269.
Section 467(2) of the Code (supra) provides that:
“Securities title, registers, etc.
(2) If the thing forged purports to be, or is intended by the offender to be understood to be or to be used as, any of the following things:-
xxxxxxxxx
(g) a bank note, bill of exchange, or promissory note, or an acceptance, endorsement, or assignment, of either;
the offender is liable to imprisonment for fourteen years.”
Therefore, being a cheque that the appellant uttered the learned trial Judge had the discretion to have sentenced the appellant to a term of fourteen years without option of fine under Section 467(2)(g) and 467 of the Criminal Code Law Of Cross River State. The question is whether this Court should interfere with the sentencing powers conferred on the learned trial Judge in this given circumstances. The learned trial Judge gave reasons why the appellant deserved five years imprisonment without taking into account the period of his remand in prison custody. There is nothing to show that an application was made for the bail of the appellant upon his arrest and detention by the police and subsequently, upon arraignment in court. But on 15th day of March, 2010 when the case came up in the court below, the appellant was absent. Learned State Counsel intimated the Court that he understood the appellant to be on bail. The matter was adjourned to 13th April, 2010 for plea. On that day the appellant took his plea of not guilty and was remanded in prison custody by the learned trial Judge “pending application for bail. “See page 10 lines 31 to 32 of the printed record. On 30th April, 2010 the appellant expressed the desire to engage counsel and the case was adjourned to 24th and 27th May, 2010 for hearing. Actual hearing commenced on 24th May, 2010. Dere Ademola, Esq. represented the appellant throughout the duration of the trial. At no time did the learned counsel apply for the bail of the appellant and the learned trial Judge refused the application. One does not understand why the learned counsel to the appellant in the court below did not see good cause to apply for the bail of the appellant while the case was before the trial Court. The maximum sentence as I have shown on conviction for uttering a cheque is fourteen years.
The lawmaker did not indicate that an offender may be given an option of fine upon conviction. That is understandable. The lawmaker considered the magnitude or enormity of the offence and probably its prevalence in society coupled with the loss that usually follows or accompanies such cases if the offence were complete, to fix the punishment without option of fine. It is left to the discretion of the learned trial Judge to determine the sentence that is most appropriate in any given circumstance. I refer to the evidence of Pw1 Sylvanus Imo (Inspector of police) on 24th May, 2010 which shows that the appellant belongs to a syndicate of 419 men as follows:
“PW1: Sworn on Bible and states in English Language. My name is Sylvanus Imo (Inspector) attached to Anti Fraud section, State C.I.D., Calabar.
I know the accused person.
On 11/6/2009, I was on duty in my office when we received a distress call from Mr. Assan Akpan, the Manager of Union Bank, Calabar Road Branch, Calabar, that a syndicate of 419 men were sported out in the Bank hall to defraud the Bank. Myself and a team left for the Bank. At the scene we were shown the suspect now accused) Mr. Olayinka Tajudeen Ademoye. The accused was in the process of getting away with the sum of N3,259,257.00. We there and then arrested him and the cash was recovered immediately from him and returned to the Bank because of the quantity involved. We took the accused to the police station where he was charged and cautioned. He made his statement which I recorded in writing. Before he made his statement we also recovered an international passport bearing his name and photograph which he had tendered to the bank as his identification to enable them release the cash to him. In his statement he stated that he came with 3 others from Lagos. He confirmed that the other 3 escaped from the Bank hall when he was arrested. That he neither knew their names nor their addresses in Lagos but that they all came together from Lagos the previous day and slept in a hotel. I had said that I recorded his statement in English language.”
The appellant testified in his defence as follows:
“DW1 – affirmed by the Quran and speaks in English language.
My name is Olayinka Tajudeen Ademoye. I live at No. 49, Okesuna Street, Obalende, Lagos. I am a printer. I can read and write. I made a statement to the police. I wanted to write my statement myself but the police refused and so the police did the writing and I signed at the end.
I know why I am in court. On 28th May, 2009 I was in my office in Lagos, one Mr. Sayi Odu and one Mr. Wasiu a mutual friend came into my office. Mr. Sayi said he wanted to make a business card and calendar and hand bill. We discussed and agreed on a price. He then told me that he is working with Anasamora Company Nig. Ltd in Calabar. He showed me his ID card. He said he wanted to open his own company that was why he needed the business card and other items. He said he was going into beer distribution business. I told him that I had a friend in Nigerian Breweries Ltd. (NBL). After that he left with his friend. On the third day he came back to my office. He told me he was coming to Calabar and that I should arrange to meet him here. I later joined him here. Here in Calabar he brought out a cheque booklet and wrote a cheque that morning. I endorsed the cheque at the back. I brought my international passport to identify myself. The cheque and the passport were accepted from me and I was asked to sit down and wait. To my surprise, the Manager called me to his office and while there he informed me that the cheque was forged. The Bank I am talking about is Union Bank here in Calabar. After that I saw a policeman come into the Manager’s office while I was there and told me that I was under arrest. The police took me to State C.I.D.
I told the police that Sayi Odu is the Manager of Ansamora Nig. Ltd. but the police did not find out where he was. I told the police to take me to the Company and that they will find him there. I collected my passport from the immigration office in Ikeja, Lagos. I came alone from Lagos. I went to the Bank alone. This is all.”
This was a carefully planned crime by the appellant with his associates, one of whom the appellant alleged was the Manager of Ansamora Company Nig. Ltd., the Company that would have experienced a colossal loss of money at Union Bank Plc Calabar, Cross River State. The scheme was planned in Lagos but executed in Calabar. The magnitude of the offence coupled with the nature of the sentence upon conviction is what this Court should ordinarily consider in the determination of this appeal. An appellate Court ought not as a matter of course, to interfere with the sentence imposed by a trial Court in this kind of circumstance. Ordinarily the wheel of justice would have not warranted a reduction of sentence in this given circumstance. But this Court has the option to increase the sentence due to the prevalence of 419 conmen like the appellant or reduce it. See Ekpenyong vs. The state (1967) All WLR 304. However, I shall tamper justice with mercy by interfering with the sentence imposed by the learned trial Judge. The reason is that the appellant is a first offender.
When the learned counsel to the appellant pleaded for leniency and gave reasons that his client was a family man with two children, Okoi Ukam, SSC II who appeared for the State was not shown to have objected to the plea. Besides, from the evidence of the appellant in the Court of trial, that he should be taken by police to Lagos to apprehend Sayi Odu the Manager of Ansamora Nig. Ltd. who facilitated the forgery and accommodated the appellant in Calabar to commit the offences alleged was not heeded. The result is that the alleged principal perpetrator of the forged cheque is at large. For this and the fuller reasons given by my Lord in the lead judgment I also allow this appeal only on grounds of sentence. I abide by the orders made by my Lord. I believe the appellant has learnt a lesson. Next time he may not be so lucky.
ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the Judgment just delivered by my learned Brother Ndukwe-Anyanwu JCA.
The appellant was charged and arraigned on a two count charge of Forgery contrary to Section 467(2)(g) of the Criminal Code Law Cap C16 Vol. 3 Laws of Cross River State of Nigeria 2004; and, uttering forged cheque contrary to Section 468 of the Criminal Code Law Cap C16 Vol. 3 Laws of Cross River State of Nigeria 2004. Upon conclusion of the trial, he was convicted and sentenced to 5 years imprisonment. The appellant had already spent 25 months in custody before his conviction and sentence.
The appellant’s brief was filed on 20th April, 2012, while the respondent filed no brief. The sole issue raised for determination by the appellant was:
Whether the learned trial Judge at the court below upon convicting the appellant for the offence of uttering a forged cheque should not have sentenced the appellant to a lesser term of years in view of the appellant having spent over two years in custody prior to the judgment.
My learned Brother in the lead Judgment has wholly examined this issue; and, I am in agreement.
Learned counsel for the appellant has correctly submitted that the purpose of punishment of a convicted criminal offender is to reform him; and, not to destroy or ruined him. The reason being that, if an individual is destroyed or ruined, the larger society would, ultimately, be affected. Therefore while it is important to protect society from felons, the prescribed punishment for the felon must also take account of the need to give opportunity for the reformation of the felon.
The appellant, who has pleaded for leniency, is a first offender, and the father of two children. His young family is said to be resident in Lagos. He had already spent 25 months in custody before the judgment. I believe that these considerations cannot be unheeded. For these reasons; and, for the fuller reasons given by my learned Brother, Ndukwe-Anyanwu JCA, I would allow this appeal.
I abide by the Order, reducing the sentence of the appellant to three years.
Appearances
Samuel N. Agweh Esq. with him J. Idiege For Appellant
AND
O. E. Ukam Esq, Senior State Counsel, Ministry of Justice, Cross River State For Respondent
