SALIHU v. FRN
(2020)LCN/15322(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, July 28, 2020
CA/G/339C/2018
Before Our Lordships
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Muhammed Mustapha Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
MUSA SALIHU APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FORMUATED FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL FILED
It is important to point out that the issue as formulated by the Respondent does not address the complaints in the two grounds of appeal. This is because the grounds of appeal put together do not question the propriety of the conviction but the sentence. Issues formulated for determination must arise from the grounds of appeal filed and related to the Judgment challenged. See Nwanezie vs. Idris & Anor (1993) LPELR-2104 (SC), Modupe vs. The State (1988) LPELR-1888 (SC), and Akilu vs. Fawehinmi (No. 2) (1988) LPELR-339 (SC). PER ABUNDAGA, J.C.A.
WHETHER OR NOT THE COURT HAS POWERS 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-48006 (CA), and Sabiyu Garba vs. Federal Republic of Nigeria (2019) LPELR-48007 (CA). PER ABUNDAGA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Borno State delivered by his Lordship, Hon. Justice F. Umaru on 15th May, 2018 in Suit No. BOHC/MG/CR/3/2016.
The Appellant and two others, Ahmed Mustapha and Bukar Abubakar Gana who are themselves Appellants in two sister appeals – CA/G/337/C/2018 and CA/G/338/C/2018, respectively were arraigned for alleged offences of criminal conspiracy contrary to and punishable under Sections 96 and 97 of the Borno State Penal Code Law, Cap 102 respectively, while Ahmed Mustapha alone was arraigned on a single count charge of receiving under false pretence the sum of N3, 000, 000.00 from Airtel Network Ltd as promo price pursuant to the conspiracy between him and Bukar Abubakar Gana and Musa Salihu (the appellant herein), an offence contrary to Section 320(a) of the Borno Penal Code and punishable under Section 322 of the same law.
When the charges were read to them, they each pleaded guilty thereto and were subsequently convicted and sentenced.
The Appellant finds the sentence not satisfactory and decided to lodge an appeal before this Court, by filing a notice of appeal which contains two grounds on 31st May, 2018. The grounds of appeal together with their particulars are hereunder reproduced for case of reference:
“GROUND OF APPEAL NO. 1
The learned trial judge erred in law when he sentenced the Appellant to two years imprisonment, and a fine of N400, 000 or two years in default of payment of the said fine of N400, 000 even though the law provides for a sentence not exceeding six (6) months imprisonment or with fine or with both.
PARTICULARS OF ERROR
Whilst the Penal Code Laws of Borno State (Cap. 102) in S.97 (2) provides as follows:
“whoever is a party to criminal conspiracy other than criminal conspiracy to commit an offence punishable as aforesaid shall not exceeding (sic) six months with fine or with both.”
In view of the fact that the Penal Code prescribes a punishable not exceeding six months for offence of conspiracy, the trial judge sentenced the Appellant to two (2) years imprisonment and another fine of N400, 000 or two years in default is excessive, unwarranted and cannot be supported by law.
GROUND OF APPEAL NO. 2
The learned trial judge erred in law when he sentenced the Appellant excessive and unwarranted sentence, which exceeds the mandatory punishment sanctioned by the Penal Code.
PARTICULARS OF ERROR
The sentence given by the trial judge is excessive and unwarranted and cannot be supported by the law. Whereas the Penal Code Law prescribed punishable (sic) not exceeding six months, the trial judge prescribed (sic) a sentence of two years imprisonment and another two years in default of fine of N400, 000.”
By the appeal, the appellant seeks an order allowing the appeal, setting aside the conviction and sentence imposed on the Appellant and an order of discharge and acquittal of the appellant.
At the hearing of the appeal on 11th June, 2020, the Appellant’s counsel even though served the hearing notice was absent. Therefore, the appellant’s brief of argument, settled by M. A. Gazali and filed on 4/9/2018 was deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016. Thereafter, Khalid Sanusi, adopted the amended Respondent’s brief of argument settled by Haruna Abdulqadir, dated 5/6/2020 and filed on 8/6/2020.
The Appellant distilled a lone issue in his brief of argument, thus:
“Whether or not the sentence of two (2) years and a fine of N400, 000 (Four Hundred Thousand naira) only and in default the Appellant should serve an additional two (2) years imprisonment was in conformity with the provisions of Section 97(2) of the Penal Code, Laws of Borno State, 1994.”
On his own part, counsel to the Respondent who differed from the Appellant’s solitary issue, also distilled a solitary issue for determination. It reads:
“Whether or not by the plea of guilt entered by the Appellant in this case, the trial Court can convict as charged.”
It is important to point out that the issue as formulated by the Respondent does not address the complaints in the two grounds of appeal. This is because the grounds of appeal put together do not question the propriety of the conviction but the sentence. Issues formulated for determination must arise from the grounds of appeal filed and related to the Judgment challenged. See Nwanezie vs. Idris & Anor (1993) LPELR-2104 (SC), Modupe vs. The State (1988) LPELR-1888 (SC), and Akilu vs. Fawehinmi (No. 2) (1988) LPELR-339 (SC).
Now, since the issue formulated by the Respondent is not related to the grounds of appeal, I shall discountenance it.
The appeal will therefore be decided on the appellant’s issue which addresses the complaints in the two grounds of appeal. I hereby adopt the appellant’s issue as mine for the determination of this appeal.
ARGUMENTS ON THE ISSUE
The entirety of the submission of the appellant’s counsel on the lone issue amounts to this:
That the sentence of 2 years or N400, 000 fine and a further 2 years imprisonment in default of payment of fine for a conviction for the offence of Criminal Conspiracy Contrary to Section 96 of the Penal Code Law of Borno State and punishable under Section 97(2) of the same law is not in conformity with the provisions of the law which provides a maximum sentence of 6 months imprisonment or with fine or both.
It is further submitted for the appellant that the primary duty of a Judge is to expound and not to expand the law. Cited in support of this argument is the case of Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 227 (SC), (2008) LPELR-446 (SC), and the case of Adewunmi vs. AG Ekiti State (2002) 2 NWLR (Pt. 7411) 474 at 512. It is further submitted that in view of the decisions of the Supreme Court, the sentence passed by the lower Court on the Appellant is void and of no effect.
Counsel proceeds to urge the Court to allow the appeal, and to discharge and acquit the appellant.
RESOLUTION OF 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 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 Adewunmi 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-48006 (CA), and Sabiyu Garba vs. Federal Republic of Nigeria (2019) LPELR-48007 (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 State; 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.
Now, the appellant in his conclusion urged this Court to discharge and acquit the appellant. This prayer is not in congruent with his complaint in this appeal. His appeal as contained in the two grounds of appeal is against sentence and not conviction. This is what he also canvassed in his sole issue for determination which is culled from the two grounds of appeal. Therefore, the relief prayed for by the appellant is not grantable and hence refused.
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 license donated by the provision, I will replace the sentences, 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.
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.
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 consequence, I also find the appeal meritorious and it is hereby allowed. I abide by the orders made therein.
MUHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading beforehand the judgment just delivered by my learned brother Hon. Justice James Gambo Abundaga, JCA. Having resolved the issue in favour of the Appellant against the Respondent. I agree with the conclusions arrived at and adopt them as mine. I abide by the consequential orders.
Appearances:
A. Gazali, Esq. For Appellant(s)
Haruna Abdulqadir, Esq. For Respondent(s)
