PRINCEWILL v. C.O.P
(2020)LCN/15365(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, September 15, 2020
CA/A/03C/2020
RATIO
COMPETENCE OF COURT: WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE DISCRETION EXERCISED BY A TRIAL COURT
The law is settled that where the decision of a trial Court is substantially based on the exercise of discretion, an appellate Court will not interfere with the discretion unless the trial Court failed to exercise its discretion judiciously or judicially. In the instant case, the exercise of trial Court’s discretion with regard to the sentence it passed was neither frivolous nor arbitrary. Since discretion is always unfettered, this Court cannot take steps to fetter such discretion, except for good and substantial reasons. See ACME Builders Ltd vs K.S.W.B. (1999) 2 (Pt.590) 288; Chigbu vs Tonimas (Nig.) Ltd (1999) 3 NWLR (Pt. 593) 115; University of Lagos vs Olaniyan (No.1) (1985) 1 NWLR (Pt.1) 156; Hamza vs Kure 2010) 10 NWLR (Pt. 1203) 630. For the reasons I have alluded to herein, I decline to interfere with the sentence imposed on the appellant.”
Furthermore, Eko, JSC, in David v. COP, Plateau State Command (2018) LPELR – 44911 (SC), captured the law as follows:
…my lord Rhodes-Vivour, JSC, stated in Rhodes-Vivour, JSC stated in OGUNSANYA v. THE STATE (2011) 12 NWLR (pt. 1261) 401 at 438: An appellate Court is always reluctant to interfere with the way a trial judge exercised his discretion but would be compelled to do so if – a. the discretion was wrongly exercised; b. the exercise of the discretion was tainted with some illegality or substantial irregularity; c. there is miscarriage of justice, or d. it is in the interest of justice to interfere. It behoves the Appellant, complaining that the discretion was wrongly exercised, to show or establish in what ways or manner the discretion exercised in his regard was wrongly exercised. It is not enough for him to loudly whine and whimper, and submit rather sentimentally that the ends of justice demand that the sentence of life imprisonment be reduced to a lesser term of imprisonment. This is a Court of law, and also of justice. It is trite that sentiments command no place in judicial deliberations: EZEUGO v. OHANYERE (1978) 6 S.C. 17; MOHAMMED IIDRISU v. MODUPE OBAFEMI (2004) 11 N.W.L.R. (pt. 884) 396 at 409. Fabiyi, JSC said it all in STATE v. JOHN (2013) L.P.E.L.R. that “a judex should avoid sentimental adjudication” and must call a spade a spade. PER STEPHEN JONAH ADAH, J.C.A.
CRIMINAL PROCEEDING: BURDEN OF PROOF
Generally, in criminal trial the prosecution has a duty to prove its case “beyond reasonable doubt”, and reasonable doubt is the “doubt that prevents one from being firmly convinced of a defendant’s guilt or the belief that there is a real possibility that the Defendant is not guilty”. This phrase “proof beyond reasonable doubt” is the standard used to determine whether an accused person is guilty. It stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. See Musa vs. State (2009) 15 NWLR (Pt. 116) 567; Bakare vs. The State (1987) 3 SC 1.
I must re-emphasize the fact that it is trite law that in all criminal trials, the burden of providing the guilt of an accused person rests on the prosecution which has to prove the case beyond reasonable doubt. What does proof beyond reasonable doubt mean? It simply means establishing the guilt of an accused person with compelling and conclusive evidence. The prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. It does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. In Miller v. Minister of Pensions (1947) 2 All ER, 372, it was held that “proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence, “of course it is possible”, the case is proved beyond reasonable doubt”. See also Nwaturuocha v. The State (2011) 6 NWLR (Pt. 1242) 170, (2011) LPELR – 8119 (SC), Akinlolu v. The State (2015) LPELR – 25986 (SC), Oseni v. The State (2012) 5 NWLR (Pt. 1293) 351, Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112, Abdullahi v. The State (2008) 17 NWLR (Pt. 1118) 203, Jua v. The State (2010) 4 NWLR (Pt. 1184) 217”. See further the cases of Ayinde v. State (2019) LPELR – 43835 (SC), Ofordike v. State(2019) LPELR – 46411 (SC), Chukwunyere v. State per Okoro, JSC, and Section 135 (2) of the Evidence Act, 2011. PER STEPHEN JONAH ADAH, J.C.A.
Before Our Lordships:
Abdu Aboki Justice of the Court of Appeal
Stephen Jonah Adah Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
APOSTLE BASIL PRINCEWILL APPELANT(S)
And
COMMISSIONER OF POLICE RESPONDENT(S)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal queries the judgment of the High Court of the Federal Capital Territory, Abuja, hereinafter referred to as “trial Court”, coram judice, Yusuf Baba J., delivered on the 25th June, 2019, in Charge No: FCT/HC/CR/150/2012, convicting the defendant, Apostle Basil Princewill now Appellant, for the offence of rape and attempt to cause miscarriage contrary to Section 283 and 95 of the Penal Code Law and was sentenced to term of 7 years imprisonment accordingly.
The amended charge sheet reads as follows:
Count One
“That you Apostle Basil Princewill ‘Male’ 33 years of No.5 Movers Avenue Nyanya, Abuja on or about 27th July, 2011 to 31st December, 2011 at Mountain Mover Fire Ministry International and your house in Nyanya, Abuja within the jurisdiction of this Court raped one Miss Favor Iwuoha ‘female’ 14 years by forcefully having sexual intercourse with her against her consent having put her in fear of hurt and when you impregnated her, you gave her drugs to take and abort the pregnancy but when the drug caused her bleeding, you took her to Fountain Head Medical Centre, Nyanya where you paid Dr. Felix Ogunlade to procure abortion on her and thereby committed an offence contrary to Section 282 and punishable under Section 283 of the Penal Code.”
Count Two:
That you Apostle Basil Princewill ‘Male’ 33 years of No.5 Movers Avenue Nyanya, Abuja on or about 27th July, 2011 at Fountain Head Medical Centre, Nyanya, Abuja within the jurisdiction of this Court falsely impersonated that you are Favor Iwuoha’s Father when you took her to her to the Medical Centre to procure abortion on her, you thereby committed an offence contrary to Section 179 of the Penal Code Law.”
Count Three:
“That you Apostle Basil Princewill ‘Male’ 33 years of No.5 Movers Avenue Nyanya, Abuja on or about 27th July, 2011 at Abuja within the jurisdiction of this Court attempted to cause miscarriage when you gave Miss Favor Iwuoha ‘female’ 14 years drugs to take and abort the pregnancy you gave her which resulted to her bleeding with knowledge that miscarriage will be the consequence of your act and thereafter you took her to Fountain Head Medical Centre, Nyanya where you paid money and miscarriage was carried out on her, you thereby committed an offence contrary to Section 95 of the Penal Code.”
Count Four:
“That you Apostle Basil Princewill ‘Male’ 33 years of No.5 Movers Avenue Nyanya, Abuja on or about 23rd January, 2012 at Fountain Head Medical Centre, Nyanya Abuja within the jurisdiction of this Court abetted the commission of offence of causing miscarriage by taking one Miss Favour Iwuoha, ‘female’ 14 years to Fountain Head Medical Centre, Nyanya, where you paid money to the Doctor to cause miscarriage on her, which miscarriage was committed in consequence of your abetment, you thereby committed an offence contrary to Section 85 of the Penal Code.”
After the amended charges were read to the appellant as defendant, he pleaded not guilty and consequently, trial in the case commenced. The prosecution called a total of five witnesses, and tendered Exhibits P1, P1A, P2, P3, P4 and P5 which were all marked accordingly.
At the end of the prosecution’s case, the appellant opened his defence and testified for himself as DW1.
At the close of trial, learned counsel at the trial Court adopted their respective final written addresses filed on behalf of the parties. In a reserved judgment delivered by the trial Court on the 25th June, 2019, the appellant was found guilty of count one and three, and consequently sentenced to 7 and 5 years imprisonment respectively.
Upset by the finding, conviction and sentence of the trial Court, the appellant appealed to this Court vide Notice of Appeal dated and filed on the 12/9/2019. The notice of appeal which is at pages 374 – 378 of the record of appeal, was transmitted to this Court on the 07/01/2020. It is to be noted that, the Respondent too filed Notice of Cross-Appeal on the 24/9/2019 against part of the judgment of the trial Court for not convicting the appellant of the offence of abetment of miscarriage, and also to vary the sentence of 7 years to 14 years or life imprisonment. The Respondent/Cross Appellant’s argument is already incorporated in the Respondent’s brief in respect of the main appeal.
Appellant’s brief of argument distilled only one issue for determination from the grounds of Appeal. To wit: “Sole Issue:
Whether viz-a-vis the evidence led before the trial Court, the prosecution discharged the onus of proof beyond reasonable doubt placed on him by the law to warrant a conviction on the offence of rape and attempt to cause miscarriage.
Respondent/Cross Appellant’s brief of argument filed on 9/4/2019 adopted the sole issue as formulated by the Appellant/Cross Respondent’s counsel.
The appeal was taken on the 22/06/2020. While Learned Appellant/Cross Respondent’s counsel urged us to allow the appeal and set aside the judgment of the trial Court, and discharge and acquit the appellant, the Respondent/Cross Appellant’s counsel urged us to dismiss the appeal and to even vary the judgment of the trial Court by meting a maximum punishment against the Appellant/Cross Respondent.
Arguing the sole issue, learned appellant’s counsel submitted that generally in legal parlance to establish commission of an offence, the prosecution is duty bound to prove the actus reus and mens rea of the offence. Learned counsel cited Sunday Jegede v. The State (2001) FWLR (Pt.66) 722 S.C. Counsel argued that the appellant was convicted of the offence of rape and attempt to cause miscarriage contrary to Section 283 and 95 of the Penal Code. The essential elements for the offence of rape, learned counsel further submitted, have been enunciated in the case of Popoola v. State (2013)17 NWLR (Pt.1382) @96 thus:
“Rape is unlawful carnal knowledge of a girl or woman without her consent, by force, fear or fraud. It is the essential ingredient of the offence that the intercourse must be without the woman’s consent”.
To prove rape, learned Appellant’s counsel further quoted the Court in Popoola v. State (supra) as follows:
“Medical evidence of rape will only be relevant if there is denial of the offence by the accused. However, it is not correct that once there is denial of the offence, no other corroborative evidence will suffice…..what is required is that once there is denial, the Court is encouraged to look for a medical report showing injury to the private part of the prosecutrix or any other part of her body.”
Appellant’s counsel submitted that the Appellant denied the offence of rape at the Court below (page 145 of the Record of Appeal), and the prosecution failed to place any reliance on medical report to prove his case as held in the case of POPOOLA, the Courts have held in a line of different Authorities that corroboration must be cogent, direct, compelling and not hearsay. He cited the case of Ogunbayo v. State (2007) 8 NWLR (Pt.1035) at pg.157. The essence of corroboration in a rape case cannot be undermined to say the least. He relied on the case of Iko v. State (2001) 35 W.R.N. 1.
Counsel referred this Court to the holding of the trial judge at pages 349 and 351 of the record of Appeal. He submitted that it is trite law that the prosecution is not under any obligation to call any number of witnesses. He cited the case of Afolahan v. State (2012) 13 NWLR Pt. 1316 pg.185 @ 205 and Sale v. State (2016) 3 NWLR (Pt.1499) pg.392 @415. Furthermore, relating to the Evidence of PW1 and PW3 on the record it could be tantamount to Hearsay evidence in the circumstance of this case which is inadmissible. He cited the case of Osho v. State (2012) 8 NWLR (Pt.1302) P.243 CA. Hearsay evidence does not derive its value solely from the credit given to the witness himself, but rests also in part on the veracity and competence of some other persons. He cited the case of Arogundade v. State (2009) 6 NWLR (Pt.1136) 165 and Ojiako v. State (1991) 2 NWLR (Pt.175) 578. The testimony of PW3 is on allegation of rape of the prosecutrix by the perpetrator of the act. PW3 in his testimony did not make any allusion to rape as he was not a competent witness on the subject matter. The prosecutrix was just taken to his clinic by the Appellant and he allegedly posed as her father.
Counsel submitted that the evidence of PW3 was insufficient, vague, nebulous and inchoate. The testimony of PW3 as accepted by the Court and relied upon was not sufficient enough.
Counsel urge this Court to allow the appeal and set aside the judgment of the appellant.
Arguing per contra, learned counsel to the respondent/cross appellant submitted that from the totality of evidence adduced during trial, the charges against the appellant were proved beyond reasonable doubt especially on counts one and three of the charge sheet. Learned counsel listed the three ways of proving criminal case. These are:
1. By evidence of confession;
2. Circumstantial evidence;
3. By evidence of eye witness.
He cited the cases of Onitillo v. The State (2018) NWLR Pt.1603 P.239 at 257, and State v. Buhari (2019) 10 NWLR Pt. 1681 PG.583 at 596. Counsel highlighted that the prosecution has been able to establish the case against the Appellant beyond reasonable doubt through the concrete evidences presented before the Court below. He cited the case of Igabele v. State (2006) 25 NSCQR page 321 at 350 and Nwaturuocha v. State (2011) 6 NCC page 462 at page 480. Arguing further, counsel drew our attention to the purport of Section 283 of the Penal Code and the case of Ahmed v. Nigerian Army (2010) LPELR 8969 CA., on the meaning of ‘RAPE’ as espoused therefrom.
Counsel for the respondent maintained that proof beyond reasonable doubt as required of the prosecution does not mean proof beyond all shadow of doubt. He referred to Nwaturuocha v. State (2011) 6 NCC page 462 at page 480, Osuagwu v. State (2013) 5 NWLR part 1347b page 386 and State v. Buhari (2019) 10 NWLR 1681 page 583 at 596. That in the instant case, there was direct evidence of eye witness, the victim of the crime, PW2 (Miss Favour Iwuoha), the confessional statement made by the appellant i.e Exhibits P2 and P5 respectively and the circumstantial evidence of PW1, Ngozi Ofor, mother of the victim, PW3, Dr. Felix Ogunlade and P4, ASP Salisu Usman, the Investigating Police Officer. Counsel submitted that the prosecution proved beyond reasonable doubt that the appellant committed the alleged offences as charged. Moreso, that from the totality of the evidence before the trial Court, it was not in dispute that the PW2 was raped by the appellant. Counsel submitted that the prosecutrix who testified as PW2 gave a vivid account of how the appellant raped her under threat which resulted to her pregnancy.
On attempt to cause miscarriage, relied on the evidence of PW2 who testified that when she informed the appellant that she had missed her period, the appellant bought drug (postanol) and forced her to abort the pregnancy and that when she took the drug it resulted her bleeding. Counsel submitted that the act of the appellant giving drugs to PW and forcing her to swallow in order to abort the pregnancy or cause miscarriage is clearly an attempt to cause miscarriage which was eventually completed when the appellant took PW2 to Fountain Head Medical Centre and procured abortion on her. That same evidence was corroborated by the PW3, the Doctor in-charge of the Medical Centre. Counsel referred to Christopher Dibia v. State 2017 ELC 2365 SC pg. 1. That with the testimony of PW1, PW2 and PW3 and Exhibits P1 and P1A, there is no doubt that the prosecution proved beyond reasonable that the appellant committed the offence of attempt to cause miscarriage on PW2. He urged the Court to affirm his conviction of the offence in attempt to cause miscarriage.
Now let me begin the consideration by stating what the law is. Generally, in criminal trial the prosecution has a duty to prove its case “beyond reasonable doubt”, and reasonable doubt is the “doubt that prevents one from being firmly convinced of a defendant’s guilt or the belief that there is a real possibility that the Defendant is not guilty”. This phrase “proof beyond reasonable doubt” is the standard used to determine whether an accused person is guilty. It stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. See Musa vs. State (2009) 15 NWLR (Pt. 116) 567; Bakare vs. The State (1987) 3 SC 1.
I must re-emphasize the fact that it is trite law that in all criminal trials, the burden of providing the guilt of an accused person rests on the prosecution which has to prove the case beyond reasonable doubt. What does proof beyond reasonable doubt mean? It simply means establishing the guilt of an accused person with compelling and conclusive evidence. The prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. It does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. In Miller v. Minister of Pensions (1947) 2 All ER, 372, it was held that “proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence, “of course it is possible”, the case is proved beyond reasonable doubt”. See also Nwaturuocha v. The State (2011) 6 NWLR (Pt. 1242) 170, (2011) LPELR – 8119 (SC), Akinlolu v. The State (2015) LPELR – 25986 (SC), Oseni v. The State (2012) 5 NWLR (Pt. 1293) 351, Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112, Abdullahi v. The State (2008) 17 NWLR (Pt. 1118) 203, Jua v. The State (2010) 4 NWLR (Pt. 1184) 217”. See further the cases of Ayinde v. State (2019) LPELR – 43835 (SC), Ofordike v. State(2019) LPELR – 46411 (SC), Chukwunyere v. State per Okoro, JSC, and Section 135 (2) of the Evidence Act, 2011. This position of law was rightly reiterated by the trial Court when it held at page 111 to 112 of the record as follows:
“However, the fact that the defendant made a confessional statement does not mean that the burden of proof on the prosecution is lifted. As it was held recently by the Supreme Court in the case of Mohammed vs. State (2017) 13 NWLR (Pt.1583) 386 at 421 to 422 – per Augie, JSC that: ‘it is an ironclad principle that the prosecution must prove its case beyond reasonable doubt and this remains so even if the accused admits in his statement to the police that he committed the crime’.”
What then constitutes the essential elements or ingredients of the offence with which the appellant was charged under Section 282 of the Penal Code Law, and for which the appellant was convicted and sentenced by the trial Court?
For a passionate answer to the above solemn question, I shall produce the provision of the said Section as follows:
“S.282 (1) Penal Code
A man is said to have committed rape who, save in the case referred to in subsection 2 has sexual intercourse with a woman in any of the following circumstance:
(a) Against her will;
(b) Without her consent;
(c) With her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(d) With or without her consent when she is under fourteen years of age or of unsound mind”.
Marrying the above enunciated elements of the offence with the facts of the case giving rise to the instant appeal, it is evident on record that the Appellant, an acclaimed man of God, invited PW2 to his office on several occasions, and forcefully had canal knowledge of her to the extent that she became pregnant. More to it, the PW2 is fourteen years which goes to show that she is a minor. Therefore, the unchallenged testimonies of the prosecution witnesses indicate that the prosecution/Respondent have proved its case beyond reasonable doubt to warrant the conviction and sentence of the Appellant by the Court below.
Flowing from the above, the sole issue for determination is thus resolved against the Appellant, and in favour of the Respondent. The end result is that the appeal now fails. The conviction and sentence of the appellant by the trial Court are affirmed.
CROSS APPEAL:
The Respondent/Cross-Appellant also appealed against part of the judgment vide a notice of cross-appeal dated 23rd September, 2019 and filed on the September, 2019 seeking an order of Court convicting the appellant of the offences for abetment of miscarriage and also to vary the sentence of 7 years to life imprisonment or 14 years imprisonment for rape.
Learned counsel for the Cross-Appellant relied on the record of appeal already transmitted in this appeal by the appellant.
Issues for Determination in The Cross-Appeal:
The Cross-Appellant formulated two issues for determination, thus:
1. Whether the learned trial Court was right in failing to convict the Appellant of the offence of abetment of miscarriage as charged in count Four of the charge.
2. Whether considering the position of the Appellant as the senior pastor of the church, whether the punishment of 7years for rape of a 14-year-old girl and choir member of the church was stringent enough to serve as deterrence to other pastors.
While Respondent formulated a sole issue for the Cross Appeal:
Whether or not the judgment entered by the Lower Court is supported by evidence before this Honourable Court.
Issue One:
The learned counsel for the Cross-Appellant while arguing this issue submitted that the trial judge erred when he failed to convict the Appellant of the offence of abetment under Section 85 of the Penal Code Act having held that the prosecution proved the offence against the Appellant beyond reasonable doubt. He stated that in establishing the offence of abetment, the prosecution must prove beyond reasonable doubt the following:
(a) That the accused abetted the commission of a particular Act.
(b) That the act actually committed was done under the influence of the abetment<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(c) That the act was probable consequence of abetment. He referred to the case of USMAN KAZA V STATE (2008) 33 NSCQR page 1351 at 1359.
Furthermore, in the instance case, the prosecution relied on the evidence of PW1, PW2 & PW3 as well as Exhibit P1, P1A, P2 & P5. From the testimony of witnesses, it was proved that the Appellant took PW2 to Fountain Head Medical Centre for abortion having discovered that he impregnated PW2. It is the action of the defendant that propel the doctor into carrying out the miscarriage.
From the facts before the trial, the ingredients of the offence of abetment of miscarriage were established by the prosecution beyond reasonable doubt and the trial Court ought to have convicted the appellant as charged in Count Four of the charge.
Counsel referred this Court to the holding of the trial Court that the Appellant abetted the offence of miscarriage at page 370 of the Record of Appeal. He urges this Court to convict the Appellant of the offence of Abetment same having been established/proved beyond reasonable doubt against the Appellant.
Issue Two:
Learned counsel submitted that the sentence of 7years for the offence of Rape of a 14year old girl member of the church by the pastor is not strict to serve as deterrence to other pastors especially in recent times where rape by pastors or church members has become the order of the day. He relied on Section 283 of the Penal Code which prescribes the punishment for the offence of Rape to life imprisonment or less in passing the sentence, the Court is enjoined to take into consideration the interest of the society, the effect the crime has on the society as well as the impact on the victim. He referred this Court to the trial Court’s judgment which was reproduced at 3.57 of the Respondent/Cross-Appellants briefs at page 24 of their brief.
Counsel pointed out that the 7 years imprisonment passed on the appellant is grossly inadequate and urged this Court to increase the sentence to 14 years or to life imprisonment as provided for in Section 283 of the Penal Code.
Learned counsel for the Cross-Respondent submitted that the trial Court listened to all the testimonies of the witnesses is in the best position to determine the punishment to be meted on the parties. He cited the case of Maizako & Anor v. Superintendent-General of Police (1960) W.R.N.L.R 188 @ 189, Enahoro v. The Queen (1965) 4 N.S.C.C. 98 @115 and Udoye v. State (1967) 5 N.S.C.C. 126 @ 128; (1967) N.M.L.R 191 @199.
He maintained that the trial judge in arriving at the decision of 25/6/2019, had reviewed all the evidence, testimonies and demeanours of witnesses before entering judgment that is now sought to be set aside. Furthermore, where an act of a trial Court is discretionary, an Appellate Court will only tamper with it where the exercise of such discretion was wrong or arbitrary, there was a miscarriage of justice, and the exercise of the discretion is not supported by law. He relied on the case of Akeem v. F.R.N. (2017) All FWLR (Pt.872) 1518 at 1574 PARAS F-H.
Counsel stated that, it is a trite law that Courts are empowered to either find a person guilt (or sentence accordingly) or enter a lesser sentence depending on the circumstance of the case before it. He urges this Court to dismiss the cross-appeal, as same is lacking in merit.
This cross-appeal is essentially on the sentence passed on the cross-respondent by the trial Court.
Sentencing is an exercise of discretion of the trial Court. The law is settled and clear that an appellate Court would not be justified to substitute a sentence it would consider right to pass on an accused were it to have tried the accused at first instance. An appellate Court is not at liberty to merely substitute its own exercise of discretion for the discretion already exercised by the trial Court.
In the case of Abiodun v. FRN (2018) LPELR-43838 (SC), the Supreme Court held as follows:
“In Omokuwajo v. FRN (2013) LPELR- 20184 which was cited and relied upon by learned counsel for the Respondent, this Court said:- “…the general rule is that sentencing is a matter completely at the discretion of the trial Court provided the discretion is exercised judicially and judiciously within the law. An appellate Court consequently will not interfere with the sentence imposed is manifestly excessive in the circumstances or wrong in principle.” The charge for which the Appellant was convicted carries a sentence of not more than 10 years. The trial Court imposed a sentence that is less than 10 years imprisonment. This sentence is surely within the provision of the law. It is on the basis of the fact that the sentence is within the law, that the lower Court upheld same in the following words:- “Learned counsel for the Appellant has raised no valid point as to why we should interfere with the lower Court’s discretion in imposing a sentence of seven years on count 4. The fact that the Appellant is a first offender may be one of the reasons taken into consideration by the lower Court in the exercise of its discretion to impose the sentence of seven years instead of the maximum ten years. I find no reasons whatsoever to interfere with the lower Court’s exercise of discretion in imposing a sentence of seven years with respect to count 4.” The law is settled that where the decision of a trial Court is substantially based on the exercise of discretion, an appellate Court will not interfere with the discretion unless the trial Court failed to exercise its discretion judiciously or judicially. In the instant case, the exercise of trial Court’s discretion with regard to the sentence it passed was neither frivolous nor arbitrary. Since discretion is always unfettered, this Court cannot take steps to fetter such discretion, except for good and substantial reasons. See ACME Builders Ltd vs K.S.W.B. (1999) 2 (Pt.590) 288; Chigbu vs Tonimas (Nig.) Ltd (1999) 3 NWLR (Pt. 593) 115; University of Lagos vs Olaniyan (No.1) (1985) 1 NWLR (Pt.1) 156; Hamza vs Kure 2010) 10 NWLR (Pt. 1203) 630. For the reasons I have alluded to herein, I decline to interfere with the sentence imposed on the appellant.”
Furthermore, Eko, JSC, in David v. COP, Plateau State Command (2018) LPELR – 44911 (SC), captured the law as follows:
…my lord Rhodes-Vivour, JSC, stated in Rhodes-Vivour, JSC stated in OGUNSANYA v. THE STATE (2011) 12 NWLR (pt. 1261) 401 at 438: An appellate Court is always reluctant to interfere with the way a trial judge exercised his discretion but would be compelled to do so if – a. the discretion was wrongly exercised; b. the exercise of the discretion was tainted with some illegality or substantial irregularity; c. there is miscarriage of justice, or d. it is in the interest of justice to interfere. It behoves the Appellant, complaining that the discretion was wrongly exercised, to show or establish in what ways or manner the discretion exercised in his regard was wrongly exercised. It is not enough for him to loudly whine and whimper, and submit rather sentimentally that the ends of justice demand that the sentence of life imprisonment be reduced to a lesser term of imprisonment. This is a Court of law, and also of justice. It is trite that sentiments command no place in judicial deliberations: EZEUGO v. OHANYERE (1978) 6 S.C. 17; MOHAMMED IIDRISU v. MODUPE OBAFEMI (2004) 11 N.W.L.R. (pt. 884) 396 at 409. Fabiyi, JSC said it all in STATE v. JOHN (2013) L.P.E.L.R. that “a judex should avoid sentimental adjudication” and must call a spade a spade. On this note, without the Appellant, showing in what respects the lower Court had wrongly exercised its discretion when; upon finding that the Appellant ought to have been convicted for the offence under Section 222 (1) of the Penal Code, punishable under Section 224 of the same Penal Code; and upon convicting the Appellant for culpable homicide not punishable with death and setting aside the conviction for culpable homicide punishable with death and substituting therefore the sentence of life imprisonment, is asking us to further interfere with the discretion thus exercised in his favour. The facts of OKORO AMEH v. THE QUEEN (supra) are almost on all fours with the facts of this case. In that case, this Court, upon finding that the defence of self-defence does not avail an accused person who vengefully killed his attacker, after disarming the attacker, with the same weapon seized from him (the attacker), affirmed the conviction and sentence imposed by the trial Court. The same scenario had played out in this case. The lower Court in this case, however convicted the Appellant for a lesser offence and thereafter reduced the sentence in its discretion exercised under Section 15 of the Court of Appeal Act, 2004 read together with Section 224 of the Penal Code. If any person should complain about the manner the lower Court exercised this discretion, it should not be the Appellant, but the Respondent, as the prosecutor. The two principles regarding the exercise of discretion by the Courts, below which have been mentioned and applied in the appellate Courts in this realm, as formulated by Heward, LCJ, in SAMUEL v. GUMBS 19 C.A.R. 74 at 75, are: 1. That the appellate Court never interferes with the discretion of the Court below merely on the ground that the appellate might have passed a somewhat different sentence, and/or 2. For the appellate Court to interfere with sentence and revise it, there must be some error in principle. Taylor, J cited with approval the above authority in I.G.P. v. AKANO & ORS (1957) W.N.L.R. 103. These principles are very much now part of our jurisprudence. And I ask: what error in principle has this appellant laid before us in this appeal to warrant any interference with the sentence imposed on him by the lower Court in exercise of its discretion? None! This issue is accordingly resolved against the Appellant.”
The policy of our law from the authorities earlier cited is that the appellate Court will not for sentimental reasons or for fancy interfere with the discretion exercised by the trial Court. The appellate Court can only interfere if the discretion was wrongly exercised by the trial Court or there is a failure of justice in the exercise of such discretion by the trial Court. From the length and breadth of the argument of the cross-appellant, there is nothing to suggest that the trial Court did not exercise its discretion judiciously and judicially in sentencing the cross-respondent. The cross-appeal is therefore lacking in merit. It is therefore obvious and clear that this cross-appeal must be and it is hereby dismissed.
ABDU ABOKI, J.C.A.: I had a preview of the lead Judgment just delivered by my Learned Brother STEPHEN JONAH ADAH, JCA and I do agree with him that this Appeal, as well as the Cross Appeal, are totally lacking in merit, and must be dismissed. He dealt extensively and decisively with all the Issues raised in both Appeals, and anything I add would only detract from his sound reasoning, which I adopt as mine in its entirety, as they represent my views on all the Issues.
The end result is that I also dismiss the main Appeal as well as the Cross Appeal, and affirm the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 25th of June, 2019, in CHARGE NO: FCT/HC/CR/150/2012.
MOHAMMED BABA IDRIS, J.C.A.: I had the privilege of reading in draft the judgment just delivered by learned brother, STEPHEN JONAH ADAH, JCA and I agree with the reasoning contained therein and the conclusion arrived there at.
My brother has adequately considered the issues formulated for determination in this Appeal. I have nothing useful to add. For the same reasoning advanced in the lead Judgment which I adopt as mine, this Appeal and Cross Appeal fail.
I abide by the other orders made therein the lead Judgment.
Appearances:
G. Haruna Esq., with him, S. Tijjani Esq., C. E. Nzongwu Esq. and M. Awual Esq. For Appellant(s)
Simon Lough Esq., ACP with him, Doom Mnenga Esq. For Respondent(s)
