YAHAYA HARUNA v. THE STATE
(2019)LCN/13357(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/YL/129C/2018
RATIO
ROBBERY: THE OFFENCE OF ROBBERY AS PROVIDED FOR UNDER SECTION 3(1) OF THE ROBBERY AND FIREARMS( SPECIAL PROVISIONS) ACT 2004
Section 3 (1) of the Robbery and Firearms (Special Provisions) Act 2004 provides as follows:
Any person having a firearms in his possession or under his control in contravention of the firearms Act or any order made thereunder shall be guilty of an offence under this Act and shall upon conviction under this Act be sentenced to a fine of twenty thousand Naira or to imprisonment for a period of not less than 10 years or to both.PER JAMES SHEHU ABIRIYI, J.C.A.
THE SENTENCING POWER OF A JUDGE IS PREDICATED ON HIS DISCRETIONARY POWER
The sentencing power of a Judge is predicated on his discretionary power which must be seen to have been exercised judicially and judiciously. In most cases the law fixes an upper limit and leaves the Judge with the power to fix the sentence appropriately within the limit which may vary from fine and imprisonment depending on the judge’s view of the circumstances of the case.PER JAMES SHEHU ABIRIYI, J.C.A.
A JUDGE IS BOUND TO CONSIDER SOME FACTORS BEFORE SENTENCING A CRIMINAL
However a Judge is bound to consider factors such as the seriousness or otherwise of the offence; the prevalence of the offence, whether the convict is a first offender and the prevailing attitude of the populace to the offence. Whether the convict is a first offender is an extenuating circumstance. The facts of a particular case should be considered.PER JAMES SHEHU ABIRIYI, J.C.A.
THE TRIAL JUDGE IN SENTENCING SHOULD STATE THE FACTORS THAT INFLUENCED ITS DECISION
It is desirable that in exercising its jurisdiction to sentence a convict, the trial Court should state the factors that influence its decision.PER JAMES SHEHU ABIRIYI, J.C.A.
APPEAL: WHEN AN APPELLATE COURT CAN INTERFERE IN THE SENTENCING OF THE TRIAL COURT
An appellate Court should not interfere with a sentence on appeal merely because it would have passed a different sentence had it heard the case at first instance. See the decisions of this Court in Zacheous V. People of Lagos (2015) LPELR -24531 CA Per Augie JCA (as he then was),Adekoya V. State (2014) LPELR 22933 Per Tsamani, JCA, Agbanyi V. State (1994) LPELR-14108 CA Orah JCA and the Supreme Court decision in Tanko V. State (2009) LPELR 3136 SC. An appellate Court has jurisdiction to set aside or reduce a sentence if it finds in the record substantial evidence of mitigating circumstances in favour of the convict. See Agbanyi V. State (supra).PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
YAHAYA HARUNA Appellant(s)
AND
THE STATE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A.(Delivering the Leading Judgment): This appeal is against the sentence of the Appellant to a prison term of ten years on 5th May, 2018 by the High Court of Taraba State holden at Jalingo for illegal possession of firearms contrary to Section 3 (1) of the Robbery and Firearms (Special Provisions) Act 2004. The information or charge against the Appellant in the High Court (the Court below) is at page 1 of the record. It reads thus:
STATEMENT OF OFFENCE
Illegal possession of firearms punishable under Section 3(1) of the Robbery and Firearms (special provisions) Act 2004.
PARTICULARS OF THE OFFENCE
That you Yahaya Haruna on or about 15th day of February, 2018 at Jedi Garba Chede Village Bali L.G.C. of Taraba State within the Jalingo Judicial Division committed an offence to wit; you are (sic) found in possession of 5 guns which include, One (1) pamp (sic) altion(sic) rifle with registration Number NEK-6393, (2) Two borrowing Pistols, (3) Three Locally made Pistol (sic)(4) one locally made rifle and (5) 44 round (sic) of different calibre of ammunition without license(sic).
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When the above charge was read and explained to the Appellant on the 28th March, 2018, he pleaded guilty. The plea in his own words is clear and simple. It is reproduced immediately hereunder:
?I understand the charge. I am guilty of the offence against me. I was found in possession of the firearms listed in the charge and I have no license to possess them. I am in the business of repairing rifles. The police in Garba Chede are aware of this. Whenever a client brings any rifle for repairs I normally report to the police who will take down such person’s name.
The matter was then adjourned to 19th April, 2018 for judgment and the Appellant was ordered to be remanded in prison custody till then.
On 19th April, 2018, the Appellant was convicted of the offence of illegal possession of firearms contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act 2004.
The matter was adjourned after conviction on 19th May, 2018 to 2nd May, 2018 for ?sentencing hearing? and the Appellant was granted bail in the sum of N250,000.00 and a surety in the same amount.
On the 2nd May, 2018 at the sentencing
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hearing?, the prosecution produced before the Court the firearms and live ammunition found in possession of the Appellant that the Court ordered it on 19th April, 2018 to produce. These are:
1. Maghum pump action;
2. Three (3) locally made pistols;
3. A locally made submachine gun SMG and forty-four (44) rounds of live ammunition.
The Court below heard evidence of character from Usman Abubakar called by Appellant. This is part of the character evidence on behalf of the Appellant:
I have known him as a blacksmith for over 20 years. All the time I know the convict he is of good character. I have never known the convict to be associated with any terrorist organization neither has he been convicted of offence of illegal possession of firearms. Apart from being a blacksmith I do not know him with any other occupation. I am however aware that he repairs firearms for the police and vigilante groups. The convict has three wives and about 20 children.
Cross-examined, the character witness stated thus:
To my knowledge the convict is the only blacksmith in Garba Chede. I don’t know the type of guns he
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repairs for the police and vigilante group. I don?t know whether the guns which were found in his possession were brought to the Court by the police or vigilante group for repairs.?
At the conclusion of the sentencing hearing the Court below delivered ruling titled ?sentence?. See page 17 ? 19 of the record. At page 19 of the record the Court made the following pronouncement:
I have carefully considered evidence of character called by the convict. I have also considered the number and the calibre of the arms found in possession of the convict. The social circumstances of the state and country in general ought to weigh in the mind of the Court in imposing sentence on a convict. With the present state of insecurity in this country where terrorism, kidnapping and polifiration of arms have become a cause of concern particularly in the North-East Zone of the country the Courts may not be reticent in dealings decisively with perpetrators of dastardly acts like illegal possession of firearms particularly where the convict pleaded guilty. In view of the above and the security threat now prevalent in Taraba
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State and the country at large, I hereby sentence the convict Yahaya Haruna to a prison term of Ten (10) years?
The Appellant has appealed to this Court against the sentence of ten years imprisonment. The notice of appeal is dated and filed 8th May, 2018. The notice of appeal contains two grounds of appeal. Appellant formulated one issue from Ground 1 of the grounds of Appeal. Ground 2 from which no issue is formulated is hereby struck out.
The lone issue presented by Appellant for determination is reproduced immediately hereunder:
WHETHER in the circumstance of this case it was just and suitable to sentence the Appellant to a term of imprisonment of ten (10) years on the charge of illegal possession of firearms without regard to the option of fine as provided for in the Robbery and Firearms (Special Provisions) Act, 2004. (Distilled from Ground One of the Appeal).
The Respondent presented the following lone issue for determination:
Whether the Court below was right in law when he sentenced the Appellant to 10 years imprisonment for the offence of illegal possession of firearms, punishable under Section 3
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(1) of the Robbery and Firearms (Special provisions) Act, 2004.? Distilled from ground one (1) of the appellant ground (sic) of appeal.
Arguing the appeal, learned counsel for the Appellant submitted that the essence of punishment is to reform the convict and not to punish. The Court was referred to Lawrence V. F.R.N. (2018) LPELR -44510 CA and Ikyegh V. The State (2010) LPELR-9077 CA.
The Court was referred to the plea of guilt by the Appellant reproduced earlier in the judgment wherein he told the Court below that he is a blacksmith and therefore repairs guns for both the police and vigilante members in Garba Chede.
It was submitted that Section 3 (1) of the Robbery and Firearms (Special Provisions) Act, 2004 first provides for an option of a fine which must be judiciously considered before an alternative sanction by the trial Court. The Court, it was submitted, is enjoined to exercise its discretion judiciously and judicially.
Learned counsel for the Appellant maintained that payment of fine appears first in the provision of Section 3(1) of the Robbery and Firearms Act. What this means, it was submitted, is that the Court has a
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discretionary power that should be exercised, taking into consideration the facts and circumstances of the case. The Court was referred to Abubakar Mohammed v. The State (2013) LPELR-20840 CA page 38-39 and Onah V. FRN (2017) LPELR-433.35 CA page 21-22.
It was submitted that the Court below has discretion to impose sentence after conviction but that the discretion must be exercised judiciously and judicially. The Court was referred to Okpogo V. FRN (2018) LPELR-44271 CA page 20.
It was submitted that before the appellate Court alters a sentence passed by a trial Court, the factors it will consider are: The gravity of the offence, the punishment prescribed for the offence and the circumstance of the offence to see if there are grounds for mitigating the punishment. The Court was referred to Ogbodu V. The State (2017) LPELR -43402 CA 20-23.
It was submitted that the offence for which the Appellant was convicted does not carry the death penalty and the circumstances are such that should mitigate the sentence passed on the Appellant.
It was submitted that where the sentence prescribed upon conviction is a term of imprisonment then some
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extenuating factors such as the age of the convict whether he is a first offender etc can be taken into consideration in passing sentence.
The Appellant, it was submitted, is a first offender and it was proper if the Court below gave him an option of a fine. The Court was referred to Adebayo v. The State (2017) All FWLR (Pt. 365) 498 at 522 in which there was no option of a fine.
The Court below, it was submitted, ought to have considered the fact that the Appellant was a first offender. The Court was referred to Zacheous V. People of Lagos State (2015) LPELR -24531 CA p. 49.
The Court was finally referred to case No. TRSJ/20C/2018 State V. Abdullahi Haruna in which the same trial Judge convicted an accused and gave him an option of fine of N20,000.00. Learned counsel for the Appellant submitted that the quantity of firearms for which the accused is convicted should not determine the punishment.
It was submitted that there were circumstances in this case which ought to have been taken into consideration by the Court below in mitigation of sentence. The Appellant, it was argued, voluntarily and honestly pleaded guilty. He also called
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evidence of character. Above all, the Appellant was a first offender.
Learned counsel for the Respondent referred the Court to a portion of the sentence of the Court below already reproduced above and Section 3(1) of the Robbery and Firearms (Special Provisions) Act, 2004.
Section 3 (1) of the Robbery and Firearms Act, 2004, it was submitted, imposes a fine of twenty thousand Naira or imprisonment for a period of not less than ten years or both. Therefore the sentence of ten years imprisonment, it was submitted, is within the ambit of the law. It is neither excessive nor erroneous, it was submitted.
It was submitted that there is no law that requires that where payment of fine appears first in a statute or law the Court must first consider it before the alternative punishment of imprisonment is considered.
It was submitted that where a judicial discretion is exercised, bona fide uninfluenced by any irrelevant consideration, it cannot be arbitrarily interfered with. The Court was referred to Ebe V. Commissioner of Police (2008) 1 SC (Pt. II) 194 at 222.
It was submitted that the exercise of discretion by the Court below was based on
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honesty, bona fide and uninfluenced by any irrelevant consideration.
It was submitted that an appellate Court will not interfere with the sentence imposed by a trial Court unless it is manifestly excessive in the circumstances or wrong in principle. The Court was referred to Adeyeye & Anor V. The State (1968) All NLR 239 at 241.
It was submitted that unless the exercise of discretion by the trial Court leads to injustice and miscarriage of justice, the appellate Court will not normally set aside or interfere with the exercise of discretion of the trial Court once it is clear that it was exercised on just and legal reasoning, that is, judicially and judiciously. The Court was referred to Saraki V. Kotoye (1990) 4 NWLR (Pt. 143 144 at 151.
It was submitted that the ten years imprisonment handed down by the Court below on the Appellant is not erroneous, excessive nor based on wrong principle of law.
Section 3 (1) of the Robbery and Firearms (Special Provisions) Act 2004 provides as follows:
Any person having a firearms in his possession or under his control in contravention of the firearms Act or any order made thereunder
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shall be guilty of an offence under this Act and shall upon conviction under this Act be sentenced to a fine of twenty thousand Naira or to imprisonment for a period of not less than 10 years or to both.?
The sentencing power of a Judge is predicated on his discretionary power which must be seen to have been exercised judicially and judiciously. In most cases the law fixes an upper limit and leaves the Judge with the power to fix the sentence appropriately within the limit which may vary from fine and imprisonment depending on the judge?s view of the circumstances of the case. However a Judge is bound to consider factors such as the seriousness or otherwise of the offence; the prevalence of the offence, whether the convict is a first offender and the prevailing attitude of the populace to the offence. Whether the convict is a first offender is an extenuating circumstance. The facts of a particular case should be considered. It is desirable that in exercising its jurisdiction to sentence a convict, the trial Court should state the factors that influence its decision.An appellate Court should not interfere with a sentence on appeal merely
11
because it would have passed a different sentence had it heard the case at first instance. See the decisions of this Court in Zacheous V. People of Lagos (2015) LPELR -24531 CA Per Augie JCA (as he then was),Adekoya V. State (2014) LPELR 22933 Per Tsamani, JCA, Agbanyi V. State (1994) LPELR-14108 CA Orah JCA and the Supreme Court decision in Tanko V. State (2009) LPELR 3136 SC. An appellate Court has jurisdiction to set aside or reduce a sentence if it finds in the record substantial evidence of mitigating circumstances in favour of the convict. See Agbanyi V. State (supra).
It is clear from Section 3 (1) of the Robbery and Firearms Act 2004 reproduced elsewhere in this judgment that the Appellant was slammed with the highest prison term of ten years provided for by the law. It is therefore not surprising that he has approached the Court for its intervention or interference inspite of the factors which the Court below stated influenced its decision.
The Court below on the face of the record considered two factors in sentencing the Appellant to ten years imprisonment. One of them according to the Court below was the calibre of arms found in the
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possession of the Appellant and the general state of insecurity in the state and country. The weapons which Mohammed Hassan an officer of the DSS displayed in the Court below are Magnum pump action, three locally made pistol, a locally made submachine gun and 44 rounds of live ammunition. It is clear therefore that the weapons were essentially local weapons. There is therefore nothing spectacular about the calibre of weapons found in the possession of the Appellant. As for the other factor, that is, the insecurity of the country; this factor cannot stand in the light of the bail granted to the Appellant after his conviction pending his being sentenced. Surely if the Appellant was a security risk the Court below would not have granted him bail on the 19th April, 2018 after conviction pending sentence on the 2nd May 2018.
I had earlier in the judgment reproduced salient facts of this case, which in my view the Court below should have considered relevant factors in sentencing the Appellant. At the earliest opportunity, the Appellant admitted that those weapons were found in his possession and he did not have a licence. He said he repairs rifles. That the
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police in Garba Chede were aware of this. That whenever a client brought a rifle for repairs, he reported to the police who took down the name of the person. The Appellant called a character witness before he was sentenced. The witness said that the Appellant was a blacksmith of good character. The character witness said that the Appellant repairs police weapons and those of vigilante groups.
It should be noted that the weapons found in the possession of the Appellant were tendered by a DSS officer and not a police officer. This is proof of the truth of the assertion by the Appellant and the character witness that he was repairing rifles to the knowledge of the police in Garba Chede. That he was also repairing rifles for the police and vigilante groups.
It is clear from the foregoing that the Appellant saw himself doing a yeoman?s job by helping both the police and the vigilante groups. Apparently, the present state of insecurity called for his service. There is no evidence that the police ever rebuked him for repairing their guns, the guns of the vigilante or other people who brought rifles to him for repairs whose names he gave to the police
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before he proceeded to effect the repairs. The character witness had known the Appellant as blacksmith in Garba Chede for over twenty years. It is unfortunate that he diversified his business into repairs of rifles. As he was assisting the police and vigilante groups to repair their rifles, the Court below should not have seen him as contributing to the insecurity in the country. The Appellant was very cautious even in respect of rifles he repaired for other people other than the police or the vigilante groups since he always reported such people to the police and the police took down their names. Above all the appellant is a first offender.
It is clear from the foregoing that I should interfere with the sentence of ten years imprisonment passed on the appellant.
The only issue for determination is resolved in favour of the Appellant and against the Respondent.
The appeal is allowed.
The sentence of ten years imprisonment slammed on the Appellant is hereby set aside by me.
In its place is entered a fine of twenty thousand Naira (N20, 000) only. In default of payment of the twenty thousand Naira, the Appellant shall serve a prison
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term of two years commencing from 2nd May, 2018 when he was sentenced to ten years imprisonment.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA. I agree with his reasoning and conclusion arrived at in allowing the appeal, I allow same and hold that the appeal is meritorious for the reasons given in the leading judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
I. A. Jalo, Esq. with him, A. T. Chior and U. N. Murtala
For Appellant(s)
Hamidu Audu (DPP Taraba State) with him, C.M. Samuel (SC II), R. Shaki (SC II) Mohammed Umar (SC I) and J. Bala (SC I)For Respondent(s)
Appearances
I. A. Jalo, Esq. with him, A. T. Chior and U. N. MurtalaFor Appellant
AND
Hamidu Audu (DPP Taraba State) with him, C.M. Samuel (SC II), R. Shaki (SC II) Mohammed Umar (SC I) and J. Bala (SC I)For Respondent
