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Re Mohammed v. AGF {2021}: When an Appellate Court May Alter the Sentence Passed by a Trial Court – By Carrington Osarodion Omokaro

Re Mohammed v. AGF {2021}: When an Appellate Court May Alter the Sentence Passed by a Trial Court.

By Carrington Osarodion Omokaro

In the Nigerian Weekly Law Report, March 2021 PART 1764, there was a decided case which sparked different reactions from different legal Scholars. It was the case of MARIAM MOHAMMED (A.K.A MAMA BLESSING) V. ATTORNEY GENERAL OF THE FEDERATION which can be abbreviated thus as Mohammed v. A.-G., Fed. (2021) 3 N.W.L.R PART 1764 PAGE 397. The major reason why there were so many reactions was because of the Leading Judgment of KEKERE-EKUN J.S.C where she set aside the sentence imposed by the trial court which the court of appeal had affirmed.

Let me at this juncture state the facts of the case;

The appellant and one Eunice Owoyele were alleged to have engaged in the trafficking of some persons to Libya where they were sexually molested, sold, and forced into prostitution. They were charged with different counts of offences relating to inducement, procurement, organizing travel for prostitution, and thereby committed offences contrary to the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003 (as amended) and punishable under the same act. The appellant as the 2nd accused and the co – accused person at the trial court pleaded not guilty to each of the three counts. At the conclusion of the trial, the appellant was found guilty on all the counts. Aggrieved with her conviction and sentence, the appellant appealed to the court of appeal, which dismissed the appeal. Still aggrieved, the appellant appealed to the Supreme Court. In considering the appeal, the Supreme Court considered the provisions of Section 15(a), 16 and 19(b) of the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003 (as amended).

Permit me to reproduce the aforementioned sections.

“15. any person who –

(a) Procures, uses or offers any person for prostitution or production of pornography, or for pornographic performance commits an offence and is liable on conviction to imprisonment for fourteen years without an option of fine.

16. Any person who organizes or promotes foreign travels which promotes prostitution of any person or encourages such activity commits an offence and is liable on conviction to imprisonment for ten years without an option of fine.

19(1) any person who –

(a) By force compels or by any deceitful means – induces any person to go from any place, commits an offence and is liable on conviction to imprisonment for ten years or to a fine not exceeding N200, 000.00 or both.

On appeal to the Supreme Court, the appellant formulated four issues for determination which was adopted by the Respondent.

The Supreme Court however stated that issues 1, 2, 3 can be condensed in one issue while issue 4 will be treated as issue 2. Issue 1 was whether the prosecution established its case against the appellant beyond reasonable doubt, while issue 2 was whether considering the circumstances of the case, the learned justices of the court of appeal were justified in affirming the sentence passed by the appellant?

At the trial court, in respect of count 1 which was contrary to Section 15(a), the appellant was sentenced to 14 years imprisonment while in respect of count 2 which was contrary to section 16, the appellant was sentenced to 10 years imprisonment. The interesting and should I say ironic thing about this story is that in respect of count 3 which was contrary to Section 19b, the trial court sentenced the appellant to 3years imprisonment of which same sentence was affirmed by the court of appeal. on appeal by the appellant to the supreme court though not expressly stated but impliedly for a supposed reduction of the sentence, the Apex court in the leading Judgment delivered by Kekere-Ekun J.S.C set aside the 3 (Three) year sentence in respect to count 3 and sentenced the appellant to a term of 10 (ten) years imprisonment. His Lordship refused to interfere with the sentences imposed by the trial judge on counts 1 and 2 of the charge which was also affirmed by the Lower court (Court of appeal) because the sentence stipulated in the statute were mandatory and the trial judge not having a discretion to exercise in the matter sentenced them accordingly as stipulated by the statute.

His Lorship at Page 432 Para E-H stated thus ‘With regard to count 3, section 19(b) of the Trafficking act provides that a person found guilty of an offence under the sub section “is liable upon conviction to imprisonment for ten years or to a fine not exceeding N200,000.00 or both”. To my mind, the only discretion conferred on the learned trial judge in this regard is as follows;

(a) To impose a mandatory term of ten years imprisonment

(b) To impose a fine not exceeding N200,000.00 in lieu of the custodial sentence; or

(c) To impose a mandatory term of ten years in addition to the fine, which must not exceed N200,000.00.

The learned trial judge sentenced the appellant to a term of three years imprisonment on count 3, The term of years prescribed in section 19(b) mandatory, just as the term of years in sections 15(a) and 16 of the Act are mandatory. I am therefore of the considered view that the learned trial judge erred in imposing a term of three years. He had no discretion to do so and the court below (court of appeal) erred in affirming the sentence of count 3. The said sentence is hereby set aside. I affirm the appellants conviction on count 3 and sentence her to a term of ten years imprisonment. All the sentences are to run concurrently.

The sentence which his Lordship Kekere-Ekun J.S.C set aside from three to ten years led to many comments. Some Legal Scholars seemed to express displeasure with what His Lordship had done for some reasons stated below

  1. The Prosecution did not cross appeal the sentence.
  2. None of the parties prayed for a higher sentence

Hence, they postulated that His Lordship Kekere Ekun J.S.C was without jurisdiction to do so. Also reiterating that the court is not a father Christmas. So therefore, her interpretation ought to have been an obiter.  The case of Nafiu Rabiu v. The State (1980) 1 LRLR Vol 1 page 128 was cited to support the assertion that an appellate court does not have the vires to interfere with a sentence, no matter how undesirable the sentence might seem unless there is a specific challenge to the sentence. Also reiterating that failure of the respondent to cross appeal made his Lordship lack the vires to alter the sentence.

From the above it can be deduced that the only circumstance when His Lordship will have the vires to alter a sentence given by the trial court was if the respondent had cross appealed simpliciter. It goes further to mean that irrespective of whether there was an appeal on the sentence by the appellant which was made an issue for determination and a ground of appeal, His Lordship would lack the vires to alter the sentence as seen in the instant case. Is that really the law ??? I do not think so.

Before I go into the issue above, let me say this… It is trite that the court is not a father Christmas however, the court though not a father Christmas; has discretion to grant or make orders that will justify the case before it. Gone are the days when judges were zombies. A judge can use his discretion for a good course. I refer to GLOBAL SOAP DETERGENT IND. LTD V. NAFDAC (2011) JELR 38897 (CA). Discretion of judges in relation to sentencing must be exercised judicially and judiciously. In the circumstance, can the substitution of 3 years for 10 years as stated by the law be said to have been judiciously exercised. I do not think so and that was why the apex court pronounced otherwise. The law is expressly stated. It is apposite to note that if our judicial system was one which practiced judicial activism, the discretion of the learned trial judge and court of appeal justices would have been justified. But in Nigeria ours is Judicial Restraint – a concept of a judge not injecting his or her own preferences into legal proceedings and rulings. Though I have my reservations as to whether the word ‘is liable’ amounts to been mandatory. However, since the Learned Justice of the Apex court has stated it to be so, it is what it is.

The case of Nafiu v. Rabiu (supra) been a popular case on this issue, prompted me to read the facts and decision which I would summarize… The appellant at the trial court was acquitted of culpable homicide punishable with death (what we know as murder in the south). The prosecution appealed the acquittal and the court of appeal in allowing the appeal erroneously convicted the appellant of culpable homicide Not punishable with death (What we know as manslaughter in the south) even when such fact was not in the case neither was that the case of the prosecution.

Asides the issue of whether an acquittal falls under the meaning of the word “decision” pursuant to the then 1979 constitution, on the issue of conviction in the just concluded paragraph, it was respectfully submitted by learned counsel to the appellant that section 20(4) of the decree (court of appeal act) enables the court to substitute a verdict of conviction in lieu of a verdict of acquittal of the offence charged. It does not enable the court to substitute a verdict of conviction for another offence. The supreme court stated that the proper verdict which was open to the court of appeal when it reversed the verdict of Jones C.J, was indeed one of culpable homicide punishable with death (not culpable homicide not punishable with death).

When the court drew attention of counsel on both sides to this point, Mr. Sofola, learned counsel for the respondent said that the prosecution no longer wished to pursue its cross appeal. Learned counsel for the appellant, Chief Williams, realizing the likely result which further insistence by him on this ground of appeal would bring, said that he had filed that particular ground of appeal because the prosecution had filed a cross appeal; since the prosecution was no longer pursuing its cross appeal, he no longer was pursuing that ground of appeal.

IDIGBE, J.S.C. (Delivering the leading judgement) Ended by saying “In the event, My Lords, I would dismiss this appeal for the grounds stated in this judgement and will not disturb the verdict of the court of appeal. There been no appeal or Cross-appeal against the sentence, this court ought not to interfere with the sentence passed by the court of appeal. My Lords, I would, therefore, like to make it clear that it is with considerable regret that I am unable to disturb the sentence of 4 years imprisonment for this offence which appears to me to call for a much more severe punishment. The appeal is hereby dismissed and the judgement and sentence of the court of appeal are hereby affirmed.

From the above, it can be deduced that his lordship avoided the need to make pronouncement on the sentence because there was no appeal or cross appeal on it. Looking at the third line in the just concluded paragraph, it is safe to say that Either an appeal or a cross appeal on a sentence allows his lordship to make pronouncement on the sentence. So, the notion that it only has to be a cross appeal with due respect is quite misconceived. Looking at the last four lines, we can see that his lordship was not comfortable and was so eager to make pronouncement on the sentence but there was neither an appeal nor a cross appeal on the sentence. In the Instant case decided by Justice Kekere-Ekun the appellant appealed the sentence which was made an issue for determination (issue 4 precisely) and it was a ground of appeal (Ground 4 Precisely). I do not see what stopped his lordship from making pronouncement on the sentence especially when both the trial and lower court exercised discretion where they ought not to. Let me give this example, Murder pursuant to Section 319 of the criminal code states “shall be sentenced to death” if a trial court erroneously gives a sentence of 20 years and same is affirmed by the court of appeal, on further appeal against the sentence to the supreme court, will it be right to say that the supreme court cannot alter the sentence just because the respondent did not cross appeal the sentence. I do not think so. An appeal on the sentence from whoever, coupled with the fact that the sentence was excessive or wrong in principle allows the Appellate court to alter such sentence. Remember that the function of a judge is Jus Dicere (To declare the law) not Jus Dare (To make law).

WHEN WILL AN APPELLATE COURT INTERFERE /ALTER THE SENTENCE PASSED BY A TRIAL COURT?

It is trite that a sentence not appealed against cannot be altered no matter how annoying/irritated the appellate justices are. I refer to Lucky v. State (2016) 13 NWLR Part 1528 page 128 and Nafiu Rabiu v. State (Supra). In Lucky v. State (supra) The case bothered on rape and pursuant to section 358 of the criminal code which prescribed the punishment to be life imprisonment, the trial judge sentenced the accused to a term of imprisonment of five (5) years with hard Labour or with an option of three hundred thousand (N 300,000.00) … There were five issues for determination but non made reference to the sentence. NWALI SYLVESTER NGWUTA, J.SC. (Delivering the leading judgement) stated I was tempted to revisit the sentence in this case but that would have violated the principle that an appellate court cannot disturb a sentence imposed unless there is an appeal against the sentence. He Further stated that “The Law is an Ass”.

However, where the sentence is made an issue in the appeal be it by the appellant or a cross appeal by the respondent, the position is different. Now, when is a sentence deemed appealed against, under what circumstance will the appellate court alter the sentence. Is it;

  1. When the appellant appeals the sentence simpliciter?
  2. When the respondent cross appeals based on an increment simpliciter?
  3. When in the circumstance, the trial court gave a sentence which was manifestly excessive or wrong in principle???

It seems to me that either number 1 or 2 is applicable but must be in conjunction with number 3.

CASE LAW AUTHORITIES

An appellate court will not Interfere with the sentence imposed by the trial court unless it is manifestly excessive or wrong in principle- Stephen v. The state (2008) LCN/2989(CA) the appellant was charged for Armed robbery contrary to S. 3(1) of the robbery and firearms act which states shall upon conviction be sentenced to a fine of twenty thousand naira or to imprisonment for a period of not less than ten years or both. The appellant was sentenced to 10years imprisonment. On appeal against the sentence to the court of appeal, the court of appeal stated that it was not excessive.

In Adeyeye v. State Suit no : SC 54/1968, reference was made to the case of R v. Ball 1951 35 Cr. App. R. 164 Where it was stated thus “In the first instance, this court does not alter a sentence which is the subject of an appeal merely because the members of the court might have passed a different sentence…if a sentence is excessive or inadequate as to satisfy this court that when it was passed, there was a failure to apply the right principles, then this court will intervene.

In the present case decided by KEKERE-EKUN J.S.C, she did not interfere with the sentence imposed by the trial judge in respect of count 1 and 2 since the trial judge made the sentence pursuant to what the statute specified. But in count 3 contrary to section 19b, the trial judge prescribed a sentence contrary to what the statute provides. Hence the Learned justice of the supreme court was satisfied that when the sentence was passed by the trial judge, there was a failure to apply the right principle. This, coupled with the fact that the appellant appealed the sentence clearly falls under the instance where she could alter it because the right principle was not applied. It is apposite to state that the appellant raised the issue of sentencing and canvassed argument as to why the court of appeal was not right in affirming the sentence passed on her so also did the respondent canvass his own argument before his lordship gave her judgement. This settles the notion that the appellant was not afforded an opportunity to address the point. 

CONCLUSION

An appellate court will interfere/alter a sentence passed by a trial court not only when the respondent cross appeals on the sentence simpliciter but also when the appellant appeals his or her sentence coupled with the fact that the sentence imposed by the trial judge was excessive or wrong in principle. Trial judges ought to be very mindful and guided by the wordings in a statute and should exercise their discretion within the ambits of what the law provides. Also, appellants via their counsel should be very mindful when appealing a sentence because it may allow the appellate court to take another look at the decision of the trial court and even increase the sentence imposed by the trial judge which will certainly be heartbreaking and devastating.

CARRINGTON OSARODION OMOKARO, Benin City, Edo State, Nigeria. Omokarocarrington@yahoo.com 07088432549, 08129427602 (WhatsApp)

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