WALA v. FGN
(2020)LCN/15921(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 20, 2020
CA/A/392C/2019
Before Our Lordships:
Adamu Jauro Justice of the Court of Appeal
Tinuade Akomolafe-Wilson Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
IBRAHIM GARBA WALA APPELANT(S)
And
FEDERAL GOVERNMENT OF NIGERIA RESPONDENT(S)
RATIO:
EFFECT OF LACK OF COMPETENCE TO INSTITUTE A CRIMINAL PROCEEDINGS
It is indeed trite law that competence to file an information and institute criminal proceedings is fundamental and when such competence is not established, this Court will declare the trial a nullity. See QUEEN VS. OWOH (1962) 1 ALL NLR 659. PER MOHAMMED BABA IDRIS, J.C.A.
WHETHER A MANDATORY SENTENCE IMPOSED BY LAW CAN BE ALTERED
It is also the law that discretionary power to alter a mandatory sentence impose by law is only permitted when a statute provides a statutory minimum for an offence, a trial Judge is not permitted to impose a sentence below the statutory minimum. The discretion of a trial Judge in sentencing operates only when the statute provides for a statutory maximum in sentencing. In such a case, there is a degree of flexibility in the range of the sentencing pendulum between a discretionary minimum and a maximum sentence that could not be exceeded. See AYOMITAN VS. STATE (2018) LPELR – 45700 (CA). PER MOHAMMED BABA IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal by notice of appeal dated and filed on the 23/04/2019 appealed against the decision/judgment of the High Court of the Federal Capital Territory, Abuja in Charge No. FHC/HC/CR/096/2018 delivered on the 15th of day of April, 2019 delivered by Honourable Justice Yusuf Halilu wherein the trial Judge found the Appellant guilty of three of the counts initiated against him.
The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the Appellant was charged on an Amended Information dated the 25th of February, 2017 with the offences of Membership of an unlawful society, Public Incitement, Criminal Intimidation and Criminal Defamation contrary to Sections 97B, 114 and 391 of the penal Code Act Cap 532 LFN 1990.
The Respondent as a Complainant at the trial Court alleged that the Appellant between the months of September and December, 2017 did threaten the reputation of one Abdullahi Muktar, the Chairman of National Hajji Commission through his Facebook Account by referring to him as a corrupt person who embezzled public funds. At the trial, the prosecution called three witnesses and tendered four Exhibits A – D. The Appellant then filed a Notice of Preliminary Objection striking out the Charge for want of Jurisdiction on the day stated for judgment which the trial Court ruled on and then after in its judgment the trial Court ruled the Appellant guilty as charged of three of the Counts.
The Appellant being dissatisfied with the decision of the trial Court sought leave of the Court to Appeal against the decision. In accordance with the rules of Court, parties filed and adopted their respective briefs of arguments at the hearing of the appeal.
In the Appellant’s brief, three (3) issues were distilled for the determination of this appeal:
1. Whether the Prosecution proved any or all of the essential ingredients of the offences of Management or Membership of unlawful society, Public Incitement and Criminal Defamation? (from grounds 1, 2, 4 and 6)
2. Whether the trial Court was right when the Court assumed jurisdiction to entertain Counts 4 and 5 in charge despite the fact that the prosecuting authority is not “a person aggrieved” as envisaged under Section 391 of the Penal Code Act Cap 532 LFN 1990 applicable to the Federal Capital Territory (from grounds 2)
3. Whether the learned Judge was right when he sentenced the Appellant to the maximum punishment for the offences charged in the light of provisions of Section 416(2) of the Administration of Criminal Justice Act? (from ground 5)
In support of issue one, learned counsel for the Appellant argued that by the provisions of Section 97B of the Penal Code Act the ingredients the Prosecution must prove to secure a conviction for the offence of Management or Membership of an unlawful society are:
(a) That the accused managed or is a member of the society.
(b) That the society has been declared by law to be a society dangerous to the good governance of the Northern Region or ally part thereof.
Counsel then submitted that throughout the trial the Prosecution never produced any order or declaration by the Federal Government or any other authority that “Citizen Action to Take Back Nigeria” has been proscribed by a proscription Order. Additionally, Counsel relied on YUSUF SANI VS. STATE (2016) LPELR- 42917 (CA) to state that the burden of proof in criminal trial is always on the Prosecution and it has to discharged beyond reasonable doubt. The Appellant therefore concluded that prosecution has not proved the ingredients of the offence as what the Respondent did is to state that the Appellant’s non-governmental organization (CATBAN) is not registered with the Corporate Affairs Commission as seen in Exhibit C. From the foregoing, Counsel for the Appellant submitted that the reasoning of the trial Court is perverse as there is no offence for non-registration of association as the right to associate is a fundamental right enshrined in the Constitution. Counsel further submitted that the right to associate can be exercised without registration and that the there are no provisions in the Companies and Allied Matters Act that criminalize non-registration of associations not any other enactment in Nigeria.
As it relates to the count regarding inciting the public, Counsel for the Appellant submitted that to prove the offence, the prosecution must place before the Court the following:
(a) The act of the defendant caused a breach of public peace.
(b) The alleged breach of peace caused by the defendant shall be proved to the Court to enable the Court determine if the act of the defendant is capable of inciting the public.
Learned counsel from the foregoing submitted that not a single member of the public was presented before the Court to show that the act of the Appellant was capable of breaching public peace. Similarly, counsel argued that from the testimonies of the Prosecution witnesses none of them stated that the act of the Appellant breached the peace of the public. Again Counsel for the Appellant argued that it is trite that where the element of an offence, the Prosecution have the bounden duty to prove all element in order to succeed.
In relation to the third count for criminal defamation under Section 391 of Penal Code Act, the Appellant argued that the Prosecution must prove that:
(a) The words or acts allege to constitute defamation.
(b) It was the defendant that conveyed the defamatory words or acts
(c) The defamation was directed at the Complainant.
Counsel for the Appellant argued that it is trite that the requirement of proof of the offence of defamation is the same as the requirement of proof of defamation in tort. Counsel also argued that the offence of defamation cannot be sustained in the absence of any evidence to show that the nominal complainant was defamed. Additionally, that defamation is not proved by the reputational opinion of the nominal complainant has of himself but is proven by opinion of third parties as to the reputation of the nominal compliant. Counsel then argued that no ordinary man was presented to the Court to show that he saw the publication and had the view that the publication was defamatory of the reputation of the nominal complainant. In conclusion, counsel argued that the trial Court was wrong when he came to the conclusion that the prosecution had proved its case beyond reasonable.
On issue two, counsel to the Appellant argued that the Criminal Defamation which the Appellant was charged and convicted falls under the purview of Chapter XXIII of the Penal Code, hence by virtue of Section 141 of the Criminal Procedure Code Act the trial Court has been robbed of its jurisdiction to entertain the charge in view of the absence of the prosecutor’s capacity to prosecute the offence. The Appellant counsel further argued that the Honourable Attorney General of the Federation cannot under the powers in Section 174 of the Constitution prosecute a person for criminal defamation, that it is only Abdullahi Muktar Mohammed that has the right to maintain the action as decided in the case of ADAM SKIWA VS. BORNU NATIVE AUTHORITY (1963) 66. Additionally, the Appellant argued that in the event that it is argued that the Criminal Procedure Code has been repealed by the Administration of Criminal Justice Act (ACJA) there is nowhere the law makers repealed Criminal Procedure Code.
The Appellant also relied on Section 277(4) of ACJA which reads:
“Nothing in this section shall prevent a defendant from pleading that, by virtue of some other provision of law, he is not liable to be prosecuted or fried for an offence with which he is charged.”
The Appellant further argued that they raised a preliminary objection in the trial Court which the trial Court did not render a decision but merely directed that the issue should be raised at the Court of Appeal in view that the matter was adjourned for judgment. Counsel then maintained that the trial Court erred when it failed to determine the issue of jurisdiction contained in the Preliminary Objection thereby infringing on the right of fair hearing of the Appellant, In conclusion, the Appellant argued that the trial erred in law which occasioned a miscarriage of justice when he assumed jurisdiction in spite of the fact that criminal prosecution of the Appellant for the offence contained in Count 4 and 5 of the charge are not prosecuted by the “person aggrieved”.
As it relates to issue three, counsel for the Appellant submitted that the trial Court erred in law in sentencing the Appellant to the maximum punishment of the three offences the Appellant was found guilty of. Counsel argued that all the offences had an option for payment of fines and gives the Court to sentence up to the maximum sentence by the use of word “may”. The Appellant relied on a plethora of cases Section of ACJA including; Sections 1, 2 and 416(2)(d) which provides “argue that a trial Court shall not pass the maximum sentence on a first time offender” to show that the trial Court erred in law. Counsel argued that the word “shall” in Section 416(2)(d) ACJA means it is mandatory to comply. In conclusion, the Appellant argued that the trial Court sentenced the Appellant in breach of Section 416(2) of ACJA and as such the sentencing and conviction should be set aside and the Appellant be entitled to compensation for the time spent in prison.
The Respondent also adopted the same three issues for determination as distilled by the Appellant. In respect of issue one counsel for the Respondent reproduced Sections 97B, 114 and 391 of the Penal Code and referred the Court to the case of EMEKA VS. THE STATE (2001) 14 NWLR (PT. 736) 666 which states that there are three ways of proving an accused guilt:
(a) By reliance on the confessional statement of the accused person voluntarily made; or
(b) Circumstantial evidence; and
(c) By the evidence of eye witness.
Counsel further argued that a combination of any of the two or all of the above means can be used to prove guilt. Counsel then submitted that applying this principle of law the Appellant made a voluntary confessional statement stating that he was the National convener of Citizens Action to Take Back Nigeria (CATBAN) to the police which was admitted as Exhibit B. In addition, PWI tendered a letter from the Corporate Affairs Commission to the effect that CATBAN is not a registered association.
From the foregoing, counsel submitted that the confessional statement of the Appellant before the Court was voluntary, cogent, direct, positive and unequivocal. Additionally, counsel submitted to case of ISAH VS. STATE (2007) NWLR (PT. 1049) 582 and AMOSHIMA VS. STATE (2009) 4 NCC 296 where it was stated that the weight attached to a confessional statement are:
(a) Is there anything outside the confessional to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements of facts made in it true as far as can be tested?
(d) Was the accused one who had the opportunity to commit the offence?
(e) Is the confession possible?
(f) Is it consistent with other facts which have been ascertained?
Counsel then submitted that from the evidence adduced before the trial Court all the above questions are answered in the affirmative. Counsel also argued that Exhibit D shows the various inciting post and video made by the Appellant on social media inciting the public against NAHCON and its chairman. Counsel submitted that PW2 analysed the social media accounts of the Appellant which he showed as social media post made with the intention to incite the public against the Nominal Complainant and that these posts elicited negative responses.
Counsel for the Respondent submitted that in proving defamation of character that PW3 testified to the fact that the Appellant defamed him with publications on social media.
Furthermore, that PW1, PW2 and PW3 corroborate the confessional statement of the Appellant on his social media to write things about NAHCON and its chairman. Counsel submitted that the posts lowered his reputation in the eyes of right thinking members of the public and that the Appellant testified in his defence but on cross examination could not distance himself from the Exhibit D. Finally, that the Respondent has discharged the burden of proving the case beyond reasonable doubt.
On issue two, Respondent’s counsel argued that on the 15th of April, 2019 when the Court resumed for hearing, the Appellant drew the attention of the Court to a motion filed the same morning and insisted the motion must be taken. The Court in its magnanimity and keeping with the principle of fair hearing ruled on the motion. Further, Respondent counsel argued that by virtue of Section 174 of the 1999 Constitution, the Attorney General is saddled with the power to institute, take over and discontinue criminal proceedings. Additionally, Counsel submitted that by Section 2 of ACJA, ACJA is the law that governs procedure in criminal trials for offences established by an Act of National and other offences punishable in the Federal Capital Territory, Abuja. Counsel also argued that by Section 106 of ACJA, the Attorney General can prosecute all offence in any Court or law. In conclusion, counsel submitted that the objection to jurisdiction by the Appellant has been overtaken by the provision of Section 221 of ACJA.
On issue three, counsel submitted that trial was stood down for 30 minutes for allocutus only for the Appellant to upload a new video on social media and the attention of the Judge was drawn to it by the Respondent and the Appellant confirmed that it was done by him. Counsel then submitted that looking at the punishments stated in the section, the Court did not give the Appellant the maximum sentence has it did not impose both imprisonment and a fine on the Appellant. The Respondents urged the Court to dismiss the appeal.
RESOLUTION OF THE ISSUES
The Appellant formulated three issues for determination and I shall adopt these issues for the determination of this appeal. The issues distilled by the Appellant again are:
1. Whether the Prosecution proved any or all of the essential ingredients of the offences of Management or Membership of unlawful society Public Incitement and Criminal Defamation?
2. Whether the trial Court was right when the Court assumed jurisdiction to entertain Counts 4 and 5 in Charge despite the fact that the prosecuting authority is not “a person aggrieved” as envisaged under Section 391 of the Penal Code Act Cap 532 LFN applicable to the Federal Capital Territory?
3. Whether the Learned Trial Judge was right when he sentenced the Appellant to the maximum punishment for the offences charged in the light of provisions of Section 416(2) of the Administration of Criminal justice Act?
ISSUE ONE
This issue is divided into three as it relates to whether the prosecution proved any or all of the essential ingredients of the offences of Management or Membership of unlawful society, Public Incitement and Criminal Defamation. I will start with the offence of Management or Membership of unlawful society which is an offence under Section 97B of the Penal Code. The Section reads:
“Whoever manages or is a member of an unlawful society shall be punished with imprisonment for a term which may extend to seven (7) years or with fine or with both.”
The trial Judge in his judgment on page 258 of the records of appeal held that to prove the offence of Management or Membership of an unlawful society, prosecution must show that:
1. That the accused managed or is a member of the society;
2. That the society has been declared by law to be a society dangerous to the good governance of the Northern Region or any part thereof.
To settle the first ingredient above, the trial judge on page 261 of the record of appeal relied on EMEKA VS. THE STATE (2001) 14 NWLR (PT. 736) 666, where the Court held that there are 3 ways of proving the guilt of an accused person which are “by reliance on the confessional statement of the accused person voluntarily made; or 2, Circumstantial evidence; or 3 By the evidence of an eye witness”. He then held that Exhibit B proves that the Appellant was the National Convener of Coalition of Civil Society Organization known as CATBAN. See also EZE VS. FRN (2017) LPELR- 42097(SC); IGBIKIS VS. STATE (2017) LPELR-41667(SC) and NWABUEZE VS. THE PEOPLE OF LAGOS STATE (2018) LPELR-44113(SC). The trial judge came to this reasoning because the statement contained in Exhibit B was a confessional statement made by the Appellant in front of his lawyer as it was direct, positive and unequivocal. Similarly, the trial judge held that from the evidence gotten through cross examination and Exhibit C (a letter from CAC) “it is obvious that the accused person operated and managed an unregistered association”. To this extent, I agree with the reasoning of the trial judge.
However, the trial judge concluded on page 264 of the record of appeal that:
“The prosecution has been able to establish the offence of managing an unlawful society contrary to Section 97B of the Penal Code. Accordingly, accused person is hereby convicted as charged.”
Here, I do not agree with the decision of the trial judge. Yes, the Prosecution has established that the Appellant was a member of the unregistered society but where is the evidence that the society is unlawful? the second ingredient listed above to prove Section 97B as stated by the trial judge himself reads: “that the society has been declared by law to be a society dangerous to the good governance of the Northern Region or any part thereof” and this ingredient has not been proven.
Again I ask, where is the evidence that the society has been declared by law to be a society dangerous to the good governance of the Northern Region? More importantly, if one looks at Section 97A of the Penal Code which is located above Section 97B, you will find that it explains what an unlawful society is. Section 97A reads:
“A society is an unlawful society if declared by an order of the President to be a society dangerous to the good government of the Federation or any part thereof.”
This Section is in tandem with the second ingredient listed by the trial judge above. The question then becomes was there an order made by the President which declared the society to be dangerous to the good government of the Federation? I have painstakingly gone through the record of appeal and I have not found any such orders made by the President. I therefore agree with the argument of the Appellant that Exhibit C which is the letter from CAC stating that the Appellant’s non-governmental organization is not registered with the CAC is not proof that the society was unlawful. The Appellant’s argument that there is no offence for non-registration of an association is right.
Now, it is trite law that in criminal cases the prosecution must prove its case beyond reasonable doubt. The Supreme Court has affirmed this principle in a plethora of cases including the recent case of OGUNLEYE TOBI VS. THE STATE (2019) LPELR- 46537 (SC) where it was held that:
“It is now very well settled that the principle of criminal law is that the burden of proving a crime rests squarely on the prosecution with a standard of proof that is beyond reasonable doubt which in effect means that every ingredient of the offence must be established to that standard of proof without leaving any reasonable doubt as to the guilt of the accused in the case.
See also EDUN & ANOR VS. FRN (2019) LPELR-46947 (SC); POSU & ANOR VS.THE STATE (2011) LPELR-1969 (SC) and FRN VS. UMEH & ANOR (2019) LPELR-46801(SC).
In view of the burden or proof placed on the prosecution and from the cases cited above it is paramount that the prosecution proves all ingredients of the offence which they have failed to do. Furthermore, by Section 40 of the Constitution every Nigerian has the right to associate. Section 40 provides thus:
“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests…”
The Court of Appeal in THE REGISTERED TRUSTEES OF ASSOCIATION OF TIPPERS AND QUARRY OWNERS OF NIGERIA VS. YUSUF & ORS (2011) LPELR-5024 (CA) interpreted Section 40 produced above when they held that:
“Every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests. Provided that the provision of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which the commission does not accord recognition.
Thus the right to freely associate is unfettered except with regard to political parties not accorded recognition by the Independent National Electoral Commission (INEC)…. It is the right of every citizen to decide which association or group of persons are in the best position to protect his interests.”
It therefore stands that the Appellant has a right to associate and belong to an association as long as it does not breach Section 45 of the 1999 Constitution which relates to restriction and derogation of fundamental rights. I thus find the Appellant not guilty of this count relating to Management and Membership of an unlawful society contrary to Section 97B of the Penal Code.
The next count relates to public incitement contrary to Section 114 of the Penal Code. Section 114 provides as follows:
“Whoever does any act with intent to cause or which is likely to cause a breach of the peace or disturb the public peace shall be punished with imprisonment which may extend to three years or with fine which may extend to Six Hundred Naira or with both.” To prove the offence mentioned above, the prosecution must show that the accused did an act intending to cause or which was likely to cause a breach of peace or disturb public peace. This offence is thus one that punishes a person for doing an act likely to cause or with the intent of causing a breach of peace. From the evidence contained in Exhibit B which for all purposes is a confessional statement, the Appellant has admitted to being, the convener of CATBAN. Similarly, from the evidence adduced from all the Prosecution witnesses particularly, that of PW2 who is a computer forensic expert who tendered Exhibit D, I agree with the trial judge that the Appellant made the statements on the Facebook account. Appellant’s effort at the trial Court to distance himself from Exhibit D was futile to say the least.
Now the next question is whether the act in this case, the post was one that was intended or likely to have breached the peace? It is clear when one reads the posts in Exhibit D that they were intended to incite the public and breach the peace. The trial judge summed it perfectly when he reasoned that:
“The National Hajj Commission amongst other things, coordinates the yearly movement of Muslim’s Pilgrims from Nigeria to the Kingdom of Saudi Arabia with the chairman as the arrow head who liaises closely with the Kingdom of Saudi Arabia. Making allegations of corruption without any shred or atom of evidence to justify such an allegation, can only be construed as an attempt to create chaos and incite the general public against the said nominal complainant unjustifiably.”
In fact, one just need read Appellant’s Facebook posts and the comments of his followers/friends to see that he intended to incite the public. For example, one post on page 302 of the record of appeal reads thus: “CORRUPTION IN HAJJ COMMISSION! Official documents made available to CATBAN reveals that the Chairman of NAHCON after the 2017 Hajj operations makes not less than N3Billion for himself… ” While some comments on the post by friends/followers of the Appellant on Facebook located on page 303 of the records of appeal included the following; Musa Hassan Tom – “stealing in the name of Allah” and Kabiru Musa – “Its better to reshuffle NAHCON, they are corrupt. May God revealed their evil plot.”
The Appellant on the other hand in his brief of argument before this Court submitted that not a single member of the public was presented before the Court to show that the act of the Appellant was capable of breaching public peace. Additionally, that from the testimonies of the Prosecution witnesses none of them stated that the act of the Appellant breached the peace of the public. Now, to the best of my understanding, for an offence to be established under Section 114 of the Penal Code, it is not necessary that an actual disturbance or breach of the peace should take place as a result of the act It therefore means that Appellant argument regarding this count is of no moment. It is enough proof that the Appellant intended to incite the public and breach the peace with his Facebook posts. I therefore find the Appellant guilty of inciting public peace contrary to Section 114 of the Penal code.
The last count pertains to criminal defamation of character contrary to Section 391 the Penal Code. The Section provides the following:
“Whoever by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that the imputation will harm the reputation of that person, is said, except in the cases hereinafter excepted, to defame that person.”
It is instructive to note that the expectations provided by the Penal Code include; anything that is true, expression in good faith and to publish a substantially true report. Additionally, from the explanations given within Section 391 of the Penal Code, it is clear that the section is one that protects a person’s reputation. The imputation made must therefore be one that caused or intended or believed to likely amount to injury to the reputation of the person defamed, Similarly, the imputation must directly or indirectly in the estimation of others lower the moral or intellectual character of that person or lower the character of that person in respect of his calling or lower the credit of that person or causes it to be believed that the body of that person is in a loathsome state or in a state generally considered as disgraceful.
The trial judge on page 271 of the record of appeal defined defamation when he held that: “Two vital organs of a human being play a very vital role in an action founded on defamation of character. They are the eyes and the ears. WINDFIELD AND JOLOWCZ ON TOST, 1975 10TH EDITION, PAGE 240 defines defamation as the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which make them show or avoid that person. I need to mention at this juncture the basis of defamation which is that every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society of his fellow citizens. Therefore, anybody who publishes anything injurious to that good name, reputation commits the offence of slander. I rely on UJAM VS ONYIA & ANOR (2013) LPELR-22581 CA.”
Personally, Kekere-Ekun, JSC’s definition of defamation in the case of CHILKIED SECURITY SERVICES AND DOG FARMS LIMITED VS. SCHLUMBERGER NIGERIA LIMITED & ANOR (2018) LPELR- 44391 (SC) hits the nail on the head. My Lord defined defamation as:
“defamation, as a tort, whether as libel or slander, has been judicially defined to consist of the publication to a third person or persons of any words or matter which tend to lower the person defamed in the estimation of right thinking members of society generally or to cut him off from society or to expose him to hatred, contempt, opprobrium or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit… Every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society. Therefore, whoever publishes anything injurious to that good name or reputation commits the tort of libel.”
Now, the Appellant in arguing that defamation has not been proved contended that the offence of defamation cannot be sustained in the absence of any evidence to show that the nominal compliant was defamed. Additionally, that defamation is not proved by the reputational opinion that the nominal complainant has of himself. The Appellant also argued that no ordinary man was presented to the Court to show that he saw the publication was defamatory to the reputation of the nominal complainant.
However, from my understanding of defamation and by CHILKIED SECURITY SERVICES AND DOG FARMS LIMITED VS. SCHLUMBERGER NIGERIA LIMITED & ANOR (supra) it is clear that the essential elements needed to prove defamation are:
i. that the defendant published a statement in a permanent form;
ii. that the statement referred to him;
iii. that the statement was defamatory of his person.
The defamatory statement must be in the sense that – (a) it lowered him in the estimation of right-thinking members of the society or (b) it exposed him to hatred, ridicule or contempt; or (c) it injured his reputation in his office, trade or profession; or (d) it injured his financial credit. Accordingly, in order to ascertain whether the Appellant has in fact defamed the nominal compliant the prosecution must prove all the ingredients listed above. I will now take these ingredients one after the other. As it relates to the first ingredient which is “that the defendant published a statement in a permanent form” Exhibit B and D come to play. It is clear from Exhibit D that defamatory words where published on Facebook where the Appellant has over 4000 contacts and many people have seen and commented on the Facebook posts. Now, by Exhibit B it has already been established and I have explained in details in the earlier part of this judgment that the Appellant has in fact made a confessional statement to the effect that he in fact wrote and published the defamatory statements on his Facebook page. Additionally, during cross-examination, the Appellant confirmed that he was the publisher of the video clip played to the Court and tendered as part of Exhibit D.
The second ingredient which states that “the statement referred to him”. By Exhibit D, it can be seen that the position and even name of the nominal compliant was mentioned in the post for the avoidance of any doubt. For example, on page 311 of the record of appeal which is part of the Exhibit D, one of Facebook posts reads:
“For 3yrs now, Alhaji Abdullahi Muktar, Chairman NAHCON used Jaiz Bank to exhort equivalent sum of N35,000 to N45,000 from all 78,000 pilgrims under the guise of Hadaya (Sacrificial Ram) on the arrangement that all the rams’ meat will be processed and frozen to be delivered to IDPs camps in Nigeria. Ever since then, no single ram was slaughtered in Makkah under this arrangement, no meat was moved to any IDP camp nor money refunded to any pilgrim.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Finally, the third ingredient is “that the statement was defamatory of his person”. By the Penal Code, any imputation made directly or indirectly which in the estimation of others lowers the moral or intellectual character of that person or lowers the character of that person in respect of his calling or lowers the credit of that person is defamatory. In the instant case, the Appellant claimed he had proof to back his claim that the nominal complainant made not less than N3 Billion from the 2017 Pilgrimage. He however failed to tender this proof to the Court effectively leading the Court to the conclusion that the Appellant intended to harm the reputation of the nominal compliant.
Ultimately, in reply to the appellant’s contention that no ordinary man called to show that in his view the publication had injured the nominal complaint’s reputation in his/her eyes. I would like to state categorically here that this case is dealing with criminal defamation as such if the imputation is prima facie defamatory no actual harm needs to be proved. This means if a statement is defamatory, the publisher is deemed to know that it will harm the reputation the person defamed. To this end, I find the Appellant guilty of defamation contrary to Section 391 of the Penal Code.
In sum, I find the Appellant not guilty of the first count which relate to management and membership of an unlawful society contrary to Section 97B. However, I find the Appellant guilty of the second and third counts which relate to Public incitement and defamation of character. This issue is partly resolved in favour of the Appellant and partly in favour of the Respondent.
ISSUE TWO
This issue pertains to whether the trial Court was right when the Court assumed jurisdiction to entertain counts 4 and 5 in the Charge despite the fact that the prosecuting authority is not “a person aggrieved” as envisaged under Section 391 of the Penal Code Act. The contention of the Appellant is that by Section 141 of the Criminal Procedure Code Act, the offence of Criminal Defamation which the Appellant was charged with and convicted falls within the purview of Chapter XXIII of the Penal Code hence the trial Court has been robbed of its jurisdiction to entertain the charge in view of the prosecutor’s capacity to prosecute the offence. Section 141 states that: “No Court shall take cognizance of any offence falling under Chapter XXI or Chapter XXIII of the Penal Code or under Sections 383 to of the same Code, except upon a complaint made by some person aggrieved by such offence …”
The Appellant relied on AMINU VS. COMMISSIONER OF POLICE (1983) 1 NCR and ADAM SHEWA VS. BORNU NATIVE AUTHORITY (1963) NNLR 66.
The Appellant further argued that in the event that it is contended that the Criminal Procedure Code has been repealed by the enactment of the Administration of Criminal Justice Act (ACJA), then the repeal Section of the Administration of Criminal Justice Act, Section 277(4) comes to play. The repeal Section of ACJA which the Appellant is referring to reads:
“Nothing in this section shall prevent a defendant from pleading that, by virtue of some other provision of law, he is not liable to be prosecuted or tried for an offence with which he is charged.”
The Respondent on the other hand argued that by virtue of Section 174 of the 1999 Constitution, the Attorney-General is saddled with the power to institute, take over and discontinue criminal proceedings in any Court in Nigeria. Similarly, they argued that Section 106 of ACJA states:
“Subject to the provisions of the Constitution, relating to the powers of prosecution by the Attorney-General of the Federation, prosecution of all offences in any Court shall be undertaken by: (a) the Attorney-General of the Federation or a Law Officer in his Ministry or Department.”
Additionally, the Respondent argued that ACJA shall apply to criminal trials for offences established by an act of National Assembly and other offences punishable in the Federal Capital Territory, Abuja. Finally, it was argued that the objection as to jurisdiction by the Appellant has been overtaken by the provision of Section 221 of ACJA which has been remedied by Section 222(1) of the same Act.
To properly tackle this issue, we must deal with the interpretation of Section 174(1) of the 1999 Constitution. The section reads thus:
“The Attorney-General of the Federation shall have power –
(a) to institute and undertake criminal proceedings against any person before any Court of law in Nigeria, other than a Court-martial, in respect of any offence created by or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”
It is indeed trite law that competence to file an information and institute criminal proceedings is fundamental and when such competence is not established, this Court will declare the trial a nullity. See QUEEN VS. OWOH (1962) 1 ALL NLR 659. However, as it relates to the power of the Attorney-General under Section 174 to try offences the case of IGP VS. ANDREW (2014) LPELR-22310(CA) best explains the position of law. In this case, the Court held that:
“the offence for which Daniel Andrew was charged is an offence created by or under an Act of the National Assembly for which the Attorney General of the Federation has power to institute and undertake criminal proceedings against any person before any Court of law… Section 174 of the Constitution does not exempt certain categories of offences over which the Attorney General has power to prosecute, except offences that fall under the jurisdiction of Court martial.”
From the forgoing, it can be grasped that the Attorney-General of the Federation has the locus to take over any case relating to an offence created by or under an Act of the National Assembly as in this case. The nominal complainant in this matter does not have any right to initiate any criminal proceedings in its own name in relation to the said counts before this Court. The Constitution is the ground norm, it is supreme and by virtue of Section 1 its provisions have a binding force on the authorities and persons throughout the Federal Republic of Nigeria. The prosecutorial powers of the Attorney General of the Federation vested by virtue of Section 174 of the 1999 Constitution as amended which include taking over at any stage the case and filing an information in respect of any offence, is one that is discretionary but cannot be denied the office of the Attorney General. It follows therefore that the Appellant is not pushing a right argument.
Moreover, the Criminal Procedure Code law does not apply to the Federal Capital Territory with the advent of the Administration of Criminal Justice Act. Now, as it relates to Section 277(4) produced in the earlier part of this judgment, does the Appellant expect this Court to construe that subsection to mean any provision of law in Nigeria? Certainly not! The provisions of law that this subsection relates to must be laws that are applicable to the Federal Capital territory. Again I state that the Criminal Procedure Code law no longer applies to the FCT as such Section 277(4) of ACJA does not apply to it.
Resulting from my findings above, I find the argument of the Appellant as to the lower Court lacking jurisdiction of no merit. The Police instituted this case and by virtue of Section 23 of Police Act, any Police Officer may conduct in person all prosecutions before any Court, whether or not the information or complaint is laid in his name. The case was then taken over by the Attorney-General in exercise of their power under Section 174 of the 1999 Constitution and Section 106 of ACJA. This issue is therefore resolved in favour of the Respondent.
ISSUE 3
This issue relates to the sentencing of the Appellant by the trial judge. The Appellant contended that the trial Judge gave the Appellant the maximum sentences for each of the count contrary to Section 416(2)(d) of ACJA which provides that “trial Court shall not pass the maximum sentence on a first offender.” The Respondent on the other hand mentioned that the Court did not impose both fine and imprisonment on the Appellant as such it does not amount to maximum sentencing.
As it relates to sentencing the Apex Court in ABIODUN VS. FRN (2018) LPELR-43838 (SC) held that:
“…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 exercise of discretion by the lower Court unless the sentence imposed is manifestly excessive in the circumstances or wrong in principle.”
Now the essence of sentencing was captured in ONAH VS. FRN (2017) LPELR- 43535 (CA) where the Court held that:
“Sentencing is the imposition of the punishment prescribed by law on the accused person by the Court. While the sentence of the Court must be in accordance with that prescribed by the statute creating the offence, a Court cannot impose a higher punishment than that prescribed for the offence neither can a Court which the statute creating the offence has not provided for. In determining the particular sentence to be imposed, the Court shall consider the nature and circumstance of the offence and the need for the sentence imposed.”
It is also the law that discretionary power to alter a mandatory sentence impose by law is only permitted when a statute provides a statutory minimum for an offence, a trial Judge is not permitted to impose a sentence below the statutory minimum. The discretion of a trial Judge in sentencing operates only when the statute provides for a statutory maximum in sentencing. In such a case, there is a degree of flexibility in the range of the sentencing pendulum between a discretionary minimum and a maximum sentence that could not be exceeded. See AYOMITAN VS. STATE (2018) LPELR – 45700 (CA).
The Sections which the sentencing relate to are Sections 114 and 392 which respectively read:
114. Whoever does an act with intent to cause or which is likely to cause a breach of the peace or disturb the public peace shall be punished with imprisonment which may extend to three years or with fine which may extend to Six Hundred Naira or with both.
392. Whoever defames another shall be punished with imprisonment for a term which may extend to two years or with fine or with both.
This Sections call for an interpretation of the word “or”. In the case of SAVANNAH BANK (NIG) LTD VS. S. I. O. CORP. (2001) 1 NWLR (PT. 693), the Court interpreted the word or. They held that:
“…in Lexicon, Webster Dictionary Vol. 1 Encyclopedia Edition 1977, the word “or” is defined to mean a particle used to connect words, phrases, or clauses representing alternatives; as this road of that; one used to connect alternative or equivalent terms. Webster Comprehensive Dictionary (International Edition) defines “or” as introducing an alternative; as ‘stop or go’, red or white; introducing an equivalent, the second alternative of a choice limited to two.”
Drawing from the precedent above and the wordings of the punishment sections above, it can be grasped that the punishment imposed on the Appellant were maximum sentences.
In view of the forgoing specifically Section 416(2)(d) of the Administration of Criminal Justice Act being a first time offender I do not think that justice would be served by imposing the maximum sentence on the Appellant. I hereby sentence the Appellant to:
i) 2 years imprisonment for the offence of public incitement under Section 114 of the Penal Code which attracts a sentence of 3 years imprisonment or fine or both.
ii) 18 months for the offence of Criminal Defamation of Character under Section 391 and punishable under Section 392 of the Penal code which attracts 2 years’ imprisonment or fine or both
iii) This sentence shall run concurrently.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA. I am in complete agreement with the reasoning and conclusion contained therein.
I adopt the said judgment as mine and hereby allow the appeal in part as contained in the leading judgment. I adopt all consequential orders made.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read the draft judgment just delivered by my learned brother, Mohammed Baba Idris, JCA. I agree with the reasoning and adopt the conclusion therein as mine.
Appearances:
A. MOHAMMED, ESQ., with him, C. N. ONYIA, ESQ., O, E. BETIKU, ESQ., and F. O. ALIYU, ESQ. For Appellant(s)
A. MUSA, ESQ. For Respondent(s)