YUNUSA v. STATE
(2021)LCN/15907(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, June 17, 2021
CA/S/20C/2020
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
AWWAL YUNUSA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
A TRIAL COURT MUST PRONOUNCE SEPARATE SENTENCES FOR SEPARATE OFFENCES
Having considered all the submissions of learned counsel made on this point in the respective briefs of argument, I cannot agree less with the learned counsel for the appellant. A trial Court must pronounce separate sentences for separate offences where there is conviction on those offences. This I think is the intendment of Section 269 of the Criminal Procedure Code (CPC). Section 269 (2) of the Criminal procedure Code in particular provides thus:-
“If the judgment is a judgment of conviction it shall specify the offence of which and the Section of the penal code or other law under which the accused is convicted and the punishment to which he is sentenced.”
The appellant herein was found guilty and convicted of two offences. Wise counsel and indeed the law requires of the trial Court, in line with Section 269 (2) of the Criminal Procedure Code to pronounce sentence on each of those offences he was convicted; refer to the decision of this Court in Camilius Ikenso v. The State (2016) LPELR-41041 (CA) at pages 37-38. That is the right thing to do. There cannot be collective sentence as done in this case where the trial Court lumped up sentences in respect of two (2) offences into a single sentence, and expect that, all is well by that? Certainly not. In any case, Subsection 2 of Section 269 of the Criminal Procedure Code like other Sub-sections under that provision, was framed in mandatory language hence the Courts have no discretion of their own to exercise when it comes to the issue of sentencing vis a vis the offences in which the accused was convicted. The language used is “shall” and thus the Courts must specify the nature of the offence to which conviction was entered and the sentence or punishment relative to that given offence. SAIDU TANKO HUSSAINI
THE NECESSITY OF AN IDENTIFICATION PARADE
Given this scenario, I do not think the holding of an identification parade is necessary where the victim or witness saw or was in close contact with his attacker whose abode is also known to him. See Balogun v. Att-Gen, Ogun State (2002) 6 NWLR (pt. 763) 572. Identification parade only becomes necessary where there is real doubt as to who was seen committing the offence. See further, Ogoala v. State (1991) 2 NWLR (pt. 175) 509. P.W. 4, having thus recognized his assailant and promptly made that known to the police, renders the holding of identification parade unnecessary. See: Ndukwe v. State (2009) 4 NCC 1; an identification parade should hold where the victim merely suspects the accused as the perpetrator of the criminal act: Botu v. state (2014) LPELR – 23225 (CA). See further, the decision in Adebayo v. State (2014) LPELR–22988 (SC), citing with approval the English case in R. vs. Turbal(1976) 3 E.R. 349 or (1977) Q.B. 224; 228-231. SAIDU TANKO HUSSAINI
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The appellant was convicted and sentenced to a term of imprisonment of seven (7) years on or over a two count charge preferred against him at the High Court of Kebbi State vide the judgment delivered on the 27th June, 2018 in case No. KB/HC/15C/2017. Before the commencement of trial at the High Court, the accused/appellant had entered a plea of “not guilty” to the two count charge. The charge(s) read thus: –
CHARGE 1
“That you Awwal Yunusa “M’ on or about the 9th day of August, 2016, at about 1800 hrs in a bush between Faratu and Aliero town, in Aliero Local Government Area and within the jurisdiction of the Kebbi State High Court of Justice did attempt to commit armed robbery against one Abdullahi Usman ‘M’ an Okada rider when you pretended to be a passenger and used a sickle to stab him on his head and neck in order to snatch his motorcycle and thereby committed an offence under Section 95 of the Penal Code which is punishable under Section 298(c) of the Penal Code.”
CHARGE 2
That you Awwal Yunusa “M’ on or about the 9th day of August, 2016, at about 1800 hrs in a bush between Faratu and Aliero town, in Aliero Local Government Area and within the jurisdiction of the Kebbi State High Court of Justice did commit the offence of voluntarily causing hurt grievous hurt in that you used a sickle to stab one Abdullahi Usman ‘M’ on his head and neck as a result he sustained serious injuries and thereby committed an offence punishable under Section 247 of the Penal Code.
In the bid to prove their case, the prosecution called evidence of four (4) witnesses and tendered certain items as Exhibits and closed their case. The accused/appellant also gave evidence in his own defence. He denied the allegation made against him.
The facts giving rise to the case on appeal are quite simple and straight forward and the same can be recounted thus:- it all started when appellant beckoned on his victim one Abdullahi Usman, a commercial motorcyclist who was plying his trade when at that material time the appellant invited him to convey him to a place called FARAKU. Abdullahi Usman obliged and both of them negotiated for the price and they took off.
In the course of the journey, the appellant pulled out a sickle with which he hit and cut the cyclist on the head, hand and neck in his bid to dispossess him of the motorbike. The cyclist was forced to a complete halt hence the duo engaged themselves in a scuffle. Sensing that the cyclist would over power him, the appellant abandoned the fight and escaped through the bush path leaving the cyclist standing there and bleeding profusely. The cyclist who later testified as P.W. 4 (the victim of the crime) managed himself and rode his motorbike back to the town from where he was taken to hospital for treatment.
Meanwhile, reports of the incident had reached the police who also reached out to the cyclist. He made a statement to the police. In the course of further investigation the police effected the arrest of the appellant and took statements from him and later charged him to Court.
In the judgment delivered as aforesaid, the Court found the accused/appellant guilty as charged, and accordingly, convicted and sentenced him for the offence of attempt to commit robbery and of causing grievous hurt contrary to Sections 298 and 247 of the Penal Code.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Section 298 of the Penal Code is the provision for the punishment of the offence of robbery and armed robbery. It is not the provision for the punishment of the offence for attempt to commit robbery or armed robbery, which is a separate and distinct offence from those of robbery or armed robbery under Section 298 of the Penal Code. The distinctive nature of the offence of attempt to commit an offence (robbery and armed robbery) is discernible from Section 95 of the Penal Code which provides thus:-
“Whoever attempts to commit an offence punishable with imprisonment or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence shall, where no express provision is made by this Penal Code or by any other ordinance or law for the time being force in for the punishment of such attempt, be punished with imprisonment for a term which may extend to one half of the longest term provided for that offence or with such fine as is provided for the offence or with both.
Charge No. 1 preferred against the appellant is one for attempted armed robbery and not “armed robbery,” simpliciter. There is thus, a significant difference between the offence of attempt to commit robbery or armed robbery and the actual offence of robbery or armed robbery. Evidence required to establish a case of attempted robbery or armed robbery may be similar to those for robbery or armed robbery but they are certainly not the same. In matters where the Court is confronted with a case brought under Section 95 of the Penal Code, the trial Court would expect the prosecuting authorities to lead all relevant evidence to prove his case, falling short only of evidence of the last act to complete the main offence or crime. Thus, in the case of: Osetola v. State (2012) 17 NWLR (pt. B) 251, 285, the Court held thus:-
“When an accused person is prevented from committing the complete offence a conviction for attempt to commit the offence may be sustained. To succeed on a charge to commit armed robbery the prosecution must lead evidence to show the steps taken by the accused person to commit armed robbery. The last act by the accused person immediately before the main act that would have resulted in the commission of the armed robbery is an attempt to commit robbery provided the step(s) taken by the accused person are proved beyond reasonable doubt. Put in another way, the last overt act of an accused person proximate to the commission of an offence is an attempt to commit the offence.”
See further the case of Jegede vs. State (2001) 14 NWLR (pt. 733) 264, 275-276.
In order to constitute the offence of attempt to commit an offence, the act in question must be closely connected with the particular offence charged and must be something that goes beyond the confines of intention or preparation towards the commission of the offence in question. See Ozigbo v. Commissioner of Police (1976) all NLR 109, 115 or (1976) 2 SC 67.
This Court in Rufus vs. State (2014) LPELR-22797(CA) has held that the offence of attempt to commit a c rime is said to have been proved against an accused person when the perpetrated acts are such as would show that he had gone the whole hog and did all that he needed to do to complete the unlawful deed before he was rudely stopped, so to say, by the intervention/interruption from unexpected quarters.
It follows therefore that an accused person who stood trial for an attempt to commit a crime (armed robbery) cannot be convicted and punished for the full or main under Section 298 of the Penal Code offence unless there was evidence on record to dictate otherwise. Even at that, such will entail some procedural adjustments that needed to be made to the charge or count. Given the observation as above, I am at a loss why the trial Court should predicate the conviction of the appellant on Section 298 C of the Penal Code and not Section 95 under which the first head of count was framed.
Attempt to commit an offence as provided for under Section 95 of the Penal Code is a complete offence of its own. It is a penal provision upon which an accused person can be convicted and sentenced if found guilty. It is not a definition section and not being a provision defining the offence but one creating the offence, it is wrong for the trial Court to convict and punish a case of attempt to commit a crime as if it were the main offence, as done in this case.
I say this just by the way hoping that the message is taken and the same will serve as a guide in dealing with cases of this type, in future.
The appellant in filing his Notice of appeal has predicated this complaints on three (3) grounds. I shall endeavor to reproduce all the three (3) grounds of appeal in full together with their particulars as follows:
GROUND ONE
The learned trial judge erred in law when he held that:
“In the case at hand, victim said he knows the accused facially and he knows the village he comes from as they live all within the vicinity of Aliero, is only that he does not know the name of the accused person, secondly, the incident happened in the evening time when the visibility was still clear, that they had encounter with the accused, they scuffled and wrestled, that there was nothing to obstruct his vision as accused did not put on blinds. I hold in this type of situation identification parade is not seen quo non not necessary”.
PARTICULARS OF ERROR
1. The trial Court accepted the evidence of PW4 that the attempted robbery and causing grievous hurt for which the Appellant was charged and convicted happened in the evening and that PW4 knew the identity of the Appellant.
2. The mere fact that the victim (PW4) sustained injuries as exhibited in Exhibit C is not conclusive proof that the Appellant inflicted the injuries on him.
3. The burden of proof in criminal cases rest on the prosecution to prove the guilt of the accused and not for the Appellant to prove his innocence.
4. The object (Exhibit A) allegedly used to commit the grievous hurt was not recovered from the Appellant.
5. The Police officer (PW3) did not give sufficient particulars of how the investigation was conducted and when he recovered the object of the assault (Exhibit A) and the link of Exhibit A to the Appellant.
6. The testimony of PW4 that he does not know the Appellant by name but knows him facially ought to have necessitated the need for identification parade.
GROUND TWO
The learned trial Judge erred in law when he held and pronounced that
“Accused is sentenced to 7 years’ imprisonment for the whole offence”.
PARTICULARS OF ERROR
1. The trial Court ought to pronounce a sentence on each count the Appellant was found guilty.
2. The sentence of 7 years pronounced by the trial Court is unknown to law.
3. The penal code has provided a penalty for each offence that are contained therein.
GROUND THREE<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The learned trial Judge erred in law when he attached so much weight to the retracted confessional statement to ground the conviction of the Appellant.
PARTICULARS OF ERROR
1. The Appellant, while testifying at DW1 denied that he did not make any statement at the State CID office.
2. PW3 Police officer in charge of investigation testified that he visited the victim at the General Hospital Aliero, where he was receiving treatment then proceeded to the scene of the crime where he recovered Exhibit A.
From the said three grounds of appeal, the appellant in his brief of argument filed on the 22/7/2020 raised two issues for determination of Court, namely:-
1. “Whether the Appellant was duly and properly identified from the evidence on record as the person that attempted to commit robbery and caused grievous hurt on the victim”. (Ground one and three).
2. “Whether the trial Court was right by not pronouncing a sentence for each offence the Appellant was convicted of”.
(Ground Two)
Respondent on their part filed their brief of argument on 23/4/2020 wherein they adopted issue No. 1 identified by the appellant and proceeded to raise issue No. 2 hence, the two (2) issues put up by the respondent for determination are as follows:
1. Whether the appellant was duly and properly identified from the evidence on record as the person that attempted to commit robbery and cause grievous hurt on the victim (Ground one and three)
2. Whether the trial Court was right in sentencing the appellant to 7 years imprisonment after convicting him for the two (2) offences with which he was charged? (Ground 2).
The two questions referred to above have been addressed by the respective counsel in their briefs of argument.
Issue No. 1, on the question whether the appellant was properly identified at all given the evidence on record, is a question which in my view goes to the very foundation of all Criminal prosecutions. Unless the alleged perpetrator of the Criminal act was known and properly identified as that person who committed the offence, the proceedings initiated against him is doomed to fail from the very beginning, hence, the burden duty is thus cast on the prosecuting authorities to first and foremost, establish the identity of the offender.
This duty to prove the identity of the offender is implicit in all penal provisions, given the fact that it is only the person shown or identified as having committed the offence that can be prosecuted for it,
In Ndidi v. the State (2007) 13 NWLR (pt. 1012) 633, 651 the Court held that:- “In Criminal cases, the crucial issue is not ordinarily whether or not the offence was committed. More often than not the controversy always rages over the identification of the person or persons alleged as the actual perpetrator of the offence charged. It follows that identification evidence is that evidence which tends to show that the person charged is the same person who was seen committing the offence. To ascribe any value to the evidence of an eyewitness regarding identification of a criminal, the Court in guarding against cases of mistaken identity, must meticulously consider the following issues:
(a) Circumstance in which the eyewitness saw the suspect or defendant.
(b) The length of time the witness saw the suspect or defendant.
(c) The lighting conditions
(d) The opportunity of close observation.
(e) The previous contact between the two parties.
The standard of proof required of the prosecution under those circumstances is thus, proof beyond reasonable doubt: Bozin vs. State (1985) 7 SC 450.
Learned appellant’s counsel referred us to the evidence on record elicited from prosecution witnesses i.e. PW1-PW4, especially evidence of PW4 to submit that the identity of the appellant was not established as required by law to make him (appellant) culpable and guilty of the offence for which he was convicted and sentenced. He referred us to a number of cases, including: Botu v. State (2018) 3 NWLR (pt. 1607) 431; Mohammed v. State (2014) 2 NWLR (pt. 1390) 44, 72 (CA); Ikemson v. State (1989) 3 NWLR (pt. 110) 445. Learned appellant’s counsel further contended that nowhere throughout the trial was the appellant identified by PW 4 as his assailant. He went ahead to submit that the law recognizes, that where an eyewitness fails at the earliest opportunity to mention the name of persons known to him, who he claims committed the offence, such evidence of identification at a later date ought to be taken with caution. He relied on Bozin v. State (supra).
Speaking on this point, the learned respondent’s counsel in his brief has argued that identification of the perpetrator of crime can be done in more ways than one i.e. by visual identification, voice identification, identification parade. He argued that an identification parade will hold or can be conducted where the victim of offence did not know the accused person before and was only confronted by the offender for a short time and did not have full opportunity to observe the features of the accused person. Then in that circumstance, there was real doubt as to the person he saw in connection with the person committing the offence. In that regard it is argued, that an identification parade become imperative. He relied on Balogun v. Attorney General (Ogun State) (2002) 6 NWLR (pt. 763) (512). He argued further, stating that it was not the position in this case, where the appellant was known to P.W. 4 even before the date of the incident as a person from, Kashin Zama village and therefore holding identification parade was not necessary. He argued that the appellant was known to P.W. 4 facially before the encounter. He cited and relied on the case Adejumo v. Ayantegbe (1989) 3 NWLR (pt. 110) 417. Nwabuoku v. Ottih (1961) 2 SCNLR 232.
The said two cases above referred to by the respondent’s counsel are civil appeal cases which in any case did not address the question under which they were cited and relied upon by them. Nonetheless, learned respondent’s counsel urged us to hold that the decision in Mohammed vs. State (2014) 2 NWLR (pt. 1390) 44, Ikemson v. State (1989) 3 NWLR (pt. 110) (pt. 1052) 622, 657 relied upon by the appellant to submit that the appellant was not sufficiently identified by PW 4, do not apply to the case on hand hence we were urged to hold that:-
(i) That the appellant was known to P.W. 4 even before the incident took place.
(ii) That the two (2) extra-judicial confession of appellant in Exhibits B-B1 and D-D1 both corroborate the evidence of P.W. 4.
(iii) That the conditions listed in Ndidi v. State (supra) do not apply to this case, since the appellant was already known to P.W 4.
Learned respondent’s counsel submitted finally that the question of whether an accused person was properly identified as the offender is a question of fact to be considered by the trial Court based on evidence before it, hence, where there is visual and positive identification of the accused at the scene of crime, the appellate Court ought not to disturb the finding. He relied on Ndukwe v. State (2009) 2-3 SC (pt. 11) 35; Musa Ikaria v. the State (2012) 12 SC (pt. vi) 1. We were urged to affirm the findings of the trial Court on this point.
RESOLUTION OF ISSUE NO. 1
Was the appellant properly identified by P.W. 4 as to render an identification parade unnecessary? That is the question. I think we need to revert to the evidence of the only eyewitness to the incident on this point. The evidence of P.W. 4 is at pages 31-32 of the record of appeal. I will endeavor to reproduce same thus:-
“My name is Abdullahi Usman. I am an Okada man; I live at Mamawa village Gwandu Local Government. I know the accused person. On the 9th day of August, on Tuesday, I was from Mamawa Aliero, I lifted the accused person on the motor machine, we bargained on the amount to be paid, I told him to give me N200.00, he said I should take him to FARATU he was sent, he said his motorcycle spoiled. On our way I asked him of the specific place, he brought out sickle and cut me on my neck, hand and head. I released the machine and we started fighting. I queried him that you from Kashin Zama do a person from Mamawa like this, he ran away. I was bleeding seriously, I managed to climb my motorcycle to the town. When I was going, I became unconscious and my brother carried me and took me to Aliero General Hospital. I was treated and stitched, I told the people and the police. I told them it was somebody from Kashim Zama.”
P. W. 4 also speaking under cross-examination stated thus:
“I know him I don’t know his name. it happened in the evening, I was not the one that took him to the Police Station. It was the police who did not bring the accused to me in the hospital; police came to my house and asked us questions. They did not bring the accused to me, since then I did not see the accused till today.”
From the evidence of P.W. 4 above, it can be discerned that the appellant was known to him (P.W. 4) even though he did not know him by name. The appellant is known to P.W. 4 as a person from Kashim Zama P.W. 4 hails from Mamawa. Kashin Zama and Mamawa are two communities within the same locality. What is more, P.W. 4 had close contact with the appellant when the latter beckoned on him to give him a ride. They had conversion and negotiated for a price. While on their way, the appellant attacked his victim (P.W.4) with a weapon, a sickle and both of them engaged in a fight. There is therefore close contact between the two of them such that one can recognize the other. Even then, the incident took place at evening time, a time when visibility was still clear and good. P.W. 4 at the earliest opportunity, was compelled to narrate the circumstances surrounding the attack on his person and by whom.
Given this scenario, I do not think the holding of an identification parade is necessary where the victim or witness saw or was in close contact with his attacker whose abode is also known to him. See Balogun v. Att-Gen, Ogun State (2002) 6 NWLR (pt. 763) 572. Identification parade only becomes necessary where there is real doubt as to who was seen committing the offence. See further, Ogoala v. State (1991) 2 NWLR (pt. 175) 509. P.W. 4, having thus recognized his assailant and promptly made that known to the police, renders the holding of identification parade unnecessary. See: Ndukwe v. State (2009) 4 NCC 1; an identification parade should hold where the victim merely suspects the accused as the perpetrator of the criminal act: Botu v. state (2014) LPELR – 23225 (CA). See further, the decision in Adebayo v. State (2014) LPELR–22988 (SC), citing with approval the English case in R. vs. Turbal (1976) 3 E.R. 349 or (1977) Q.B. 224; 228-231.
Generally, an identification parade will become necessary only in the following situations of visual identification, namely
(i) Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence.
(ii) Where the victim was confronted by the offender for a very short time and
(iii) Where the victim due to time and circumstances might not have had the full opportunities of observing the features of the accused. See Idowu Okanlawon vs. the State (2015) LPELR -22838 (SC).
The aforementioned situations do not apply in the instant case on appeal by reason, among others, that the appellant was known to the victim before the date of the incident. Additionally, the fact that the appellant comes from a village called kashin Zama are facts, all known to P.w.4, and this is evidence of the identity of the appellant to make the holding of an identification parade unnecessary. Issue No. 1 is thus resolved against the appellant.
Having therefore resolved the issue of the identity of the appellant, as I did in favour of the respondents, the question necessarily arises as a follow-up, whether the Court below was right when it returned a verdict of guilty on each and every count in the two count – charge preferred against the appellant.
I have addressed this question at the onset in dealing with the question as to what it takes to make an attempt to commit an offence and the differences between such offences and the main offence. Be it noted that in a case of attempt to commit an offence under Section 95 of the Penal Code, the prosecution would be required to prove facts as to:-
(i) An attempt by accused to commit a given offence or that the accused attempted to abet the commission of that offence.
(ii) That the accused, in the attempt did some act not of an ambiguous kind directly towards the commission of the offence. See Notes on the Penal Code Law (Fourth Edition) at page 75. On this point, the evidence of P.w. 4 is most relevant.
In relation to offences created by Section 247 of the Penal Code, i.e. for causing grievous hurt, the prosecution is expected to lead evidence to show:-
(a) That the accused caused hurt or inflicted injury on his victim.
(b) That the accused intended or knew that he was likely to cause grievous hurt to his victim.
(c) That the accused did so voluntarily.
Again, the testimony of P.W 4 is invaluable on that point. That is not all. The prosecution in any case can prove his case by any one (1) of three (3) methods indicated below, that is by:-
(a) Confessional Statement of the accused person,
(b) Circumstantial evidence,
(c) Evidence of eyewitness (direct evidence) or a combination of two or more of the methods stated above. See: Ilodigwe v. State (2012) LPELR–9342 (SC), Abirifon v. The State (2013) LPELR–20807 (SC); Emeka vs. State (2001) 14 NWLR (pt. 734) 666, 683, Oladipupo vs. The State (1993) 2 NWLR (pt. 590) 253.
The prosecution in the bid to prove her case did not only call oral evidence of witnesses, the prosecution in addition tendered the confessional statements as ascribed to the appellant in terms of Exhibits B-B1 and D-D1. By Exhibit B1, the English version of Exhibit B, the appellant is on record as stating, among others that:-
“Then I stop one motorcyclist and bargain from Aliro to Faratu at the rate of N150.00. after the condolence, I asked him to take me to bush and ease myself and on our way I cut him on the head with my sickle and we started battling with him and I notice he would over power me I run away.”
That was the statement recorded at the State C.I.D. office. There is also the statement recorded from the appellant at Aliero Divisional Police Office wherein the appellant is on record as stating in Exhibit D-D1 as follows:-
“From here I removed a sickle from my pocket and cut him with it on his head and neck and the motorcycle fell with us then I and him started fighting and he fell me on the ground and he said my life has finished.”
Although, attempts were made by the appellant to retract those statement(s) the Court below nonetheless and rightly too admitted them in evidence and marked the statements as such. Given the record of judgment at the Court below, I am satisfied; that there has been sufficient compliance with the principle enunciated in the English case in R v. Sykes (1913) 8 CAR 223 as adopted and applied by our Courts including the decision in Oche v. the State (2006) 15 NWLR (pt. 1027) 214. The evidence of P.W. 4 indeed is corroborative of the confessional statement made by the appellant in exhibit B-B1 and D-D1. As rightly observed by the Court below, the two confessional statements ascribed to the appellant unequivocally point to the appellant as the person who committed those offences over which he was arraigned and the Court below in my view rightly returned a verdict of “guilty” on the appellant and convicted him accordingly. An accused person can be convicted on his own confessional statement if direct and positive.
The next question is on the issue of sentencing. Was the trial Court right in sentencing the appellant to a term of 7 years imprisonment for the two offences jointly under Sections 298 and 247 even though these are distinct and separate offences i.e. assuming that the conviction of appellant under Section 298c of the Penal Code was proper? Expectedly learned counsel for the appellant has argued that such an approach as done at the trial Court was improper. Calling in aid the provisions of Section 269 of the Criminal Procedure Code, learned appellant’s counsel has argued that the trial Court ought to have made pronouncements of sentence on each and every count or offence, in respect of which the guilt of the accused appellant was pronounced. He argued, stating that the trial Court has no power to lump or fuse sentences together in respect of two offences of which there is conviction. We were urged to declare the sentence imposed at the trial Court, a nullity.
In response to those submissions it was argued for the respondent that there is nothing either in Section 272(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) or Section 269 of the Criminal Procedure Code which makes it mandatory of the trial Court to pronounce separate penalty or sentence for each offence. He argued that it may be desirable to make such pronouncement of sentence for each offence but that, same was not the strict requirement of the law. Relying therefore on the case or Lakpobiri v. Ogola (2016) 3 NWLR (pt. 1499) 328 and Section 269 (2) Criminal Procedure Code he argued that the trial Court was only required to specify the offence and the Section of the Penal Code or other law under which the appellant was convicted and the punishment to which the appellant is sentenced. He argued further stating that the trial Court has complied with the requirements set out under Section 269 (2) of the Criminal Procedure Code on the issue of sentence.
Learned respondent’s counsel however argued in the alternative with reference to Section 382 of the Criminal Procedure Code to urge us not to alter the decision of the trial Court on grounds of error, omission or irregularity of judgment where miscarriage of justice was not shown as having been occasioned. He cited the case of Chukwuma v. Federal Republic of Nigeria (2007) 2 NCC 628, among others.
Having considered all the submissions of learned counsel made on this point in the respective briefs of argument, I cannot agree less with the learned counsel for the appellant. A trial Court must pronounce separate sentences for separate offences where there is conviction on those offences. This I think is the intendment of Section 269 of the Criminal Procedure Code (CPC). Section 269 (2) of the Criminal procedure Code in particular provides thus:-
“If the judgment is a judgment of conviction it shall specify the offence of which and the Section of the penal code or other law under which the accused is convicted and the punishment to which he is sentenced.”
The appellant herein was found guilty and convicted of two offences. Wise counsel and indeed the law requires of the trial Court, in line with Section 269 (2) of the Criminal Procedure Code to pronounce sentence on each of those offences he was convicted; refer to the decision of this Court in Camilius Ikenso v. The State (2016) LPELR-41041 (CA) at pages 37-38. That is the right thing to do. There cannot be collective sentence as done in this case where the trial Court lumped up sentences in respect of two (2) offences into a single sentence, and expect that, all is well by that? Certainly not. In any case, Subsection 2 of Section 269 of the Criminal Procedure Code like other Sub-sections under that provision, was framed in mandatory language hence the Courts have no discretion of their own to exercise when it comes to the issue of sentencing vis a vis the offences in which the accused was convicted. The language used is “shall” and thus the Courts must specify the nature of the offence to which conviction was entered and the sentence or punishment relative to that given offence.
Thus, the sentence imposed by the trial Court as held at page 53 of the record of appeal that:
“Accused is sentence (sic) to 7 years imprisonment for the whole offence” is not only ambiguous, it is arbitrary and not in accordance with the requirements of the law under Section 269 of the Criminal Procedure Code, and Section 95 of the Penal Code. Neither does it accord with Section 298 C of the Penal Code. In such a situation, this Court can, I think intervene and do the needful in the exercise of the powers bestowed on it under Section 15 of the Court of Appeal Act, 2004 (as amended), and impose a sentence that is appropriate in the circumstances, in line with the law. See the decision in Uche Obidiozo vs. The State (1987) LPELR–2170 (SC) page 14-15 (A-C).
Accordingly, the wrong sentence imposed by the trial Court on the appellant for a term of 7 years for both offences is hereby quashed and in its place, it is hereby substituted with the sentence as follows:
(1) In respect of the conviction of the appellant for attempted robbery or armed robbery, the appellant is sentenced under Section 95 of the Penal Code to 7 years imprisonment.
(2) In respect of the conviction under Section 247 of the Penal Code the appellant is sentenced to seven (7) years imprisonment and a fine of N20,000.00. Both sentences are to run concurrently. Given this my order, the appeal necessary fails in respect of issue No. 2 as well, hence, the appeal is dismissed.
Subject to the variations as already discussed in this discourse, the judgment delivered at the High Court of Justice, Kebbi State on 27/06/2018 in case No. KB/HC/15C/2017 is affirmed and this appeal, consequently, is dismissed.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now, the lead judgment of my learned brother Hussain, JCA. I fully agree with the well-considered views, reasoning and conclusions of His Lordship. I adopt them as mine to also dismiss this appeal for lacking in merit.
MOHAMMAD BABA IDRIS, J.C.A.: I agree.
Appearances:
CHRIS OHENE, Esq. with him, SOLOMON BERNARD, Esq., AND YAKUBU BERNARD Esq., and MARGARITA ESSIEN, Esq. For Appellant(s)
OSITA MBAMALU (LLM) Esq., with him, K. O. UDEMEZUE, Esq., and J.C. UMEH, Esq. For Respondent(s)