CORAM

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MUSA DATTIJO MUHAMMAD

CHIMA CENTUS NWEZE

HELEN MORONKEJI OGUNWUMIJU Helen

ADAMU JAURO

TIJJANI ABUBAKAR

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PARTIES

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JOHN YUSUF YAKUBU

APPELLANTS 

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FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, ACTION, COURT, EVIDENCE, CRIMINAL LAW AND PROCEDURE

 

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SUMMARY OF FACTS

Following an application dated the 28th March, 2012, the Respondent was granted leave by the High Court of the Federal Capital Territory, to prefer a charge against the Appellant and 7 other Defendants. Consequently, the Appellant and the other Defendants were charged on a 16 Count Charge of criminal breach of trust, criminal misappropriation, and unlawful conversion of funds belonging to the Police Pensions Fund dated 27th March, 2012. However, in the course of proceedings at the trial Court, plea bargain was contemplated and executed between the Appellant and the Respondent, pursuant to which the charge was amended with the leave of the trial Court on the 28th day of January, 2013, of the 20 Counts contained in the amended Charge before the trial Court, counts 18, 19 and 20 were preferred against the Appellant. The three (3) counts border on conversion of property. When the three Counts were read to the Appellant, he pleaded guilty thereby admitting to have committed the offences punishable under Section 309 of the Penal Code Act, Cap. 532, Laws of the Federal Capital Territory, Abuja, 2007. The Appellant was convicted on the aforesaid 3 (three) counts and sentenced to 2 (two) years imprisonment on each count, with an option of fine in the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) on each count.

The Respondent became nettled by the outcome of the plea bargain, particularly the sentence imposed on the Appellant by the trial Court, the Respondent therefore initiated an appeal to the Court of Appeal (the “lower Court”) vide a notice of appeal filed on the 29th day of April, 2013 containing five (5) grounds of appeal. At the lower Court, the Appellant as Respondent, in addition to his brief of argument filed a notice of preliminary objection challenging the competence of the appeal on the ground that the notice of appeal was not filed within the time prescribed by the Court of Appeal Act.

The Court of Appeal (Coram Aboki; Agim; and Mustapha, JJCA) unanimously dismissed the Appellant’s preliminary objection and allowed Respondent’s appeal, thereby substituting the sentence imposed on the Appellant by the trial Court. In its stead, the lower Court sentenced the Appellant to 2 (two) years imprisonment on each count, terms of imprisonment to run consecutively. The lower Court also imposed additional fines of N20,000,000,000.00 (Twenty Billion Naira), N1,400,000,000.00 (One Billion, Four Hundred Million Naira), and N1,500,000,000.00 (One Billion, Five Hundred Million Naira) in respect of counts 18, 19 and 20, respectively, upon which the Appellant was convicted and sentenced.

Aggrieved by the judgment of the lower Court delivered on the 21st day of March, 2018, the Appellant appealed to this Court via notice of appeal dated and filed on the 28th day of March, 2018.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the Court of Appeal was not right when it held that the Respondent’s appeal before it was competent and valid?

Whether the Court of Appeal was not right in quashing the sentence of the trial Court and substituting it with a more severe sentence?

 

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RATIONES DECIDENDI

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INTERPRETATION OF STATUTE – DUTY OF A COURT WHEN INTERPRETING WORDS IN A STATUTE

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“Rightly, in the interpretation of a statute, the duty of the Court is not to avoid its consequences; rather, the duty of the Court is limited to interpreting the words contained in the statute and not to go outside the clear intention of the words in search of an interpretation which is convenient to the Court or the parties. See AROMOLARAN v. AGORO (2014) LPELR-24037 (SC) 25, paras. B-F.” – Per ABUBAKAR, JSC

 

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INTERPRETATION ACT – WHETHER THE PROVISION OF THE INTERPRETATION ACT REGARDING COMPUTATION OF TIME IS APPLICABLE TO THE RULES OF COURT

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Attractive as the submissions of learned Counsel may seem to appear, I am unable to accept that, the submissions made by the learned Counsel for the Appellant that the Interpretation Act cannot be resorted by the lower Court in interpreting provisions of its enabling Act, particularly in relation to the period prescribed for taking a step in a process.

Generally, the Interpretation Act is always the law to resort to, in order to interpret the provisions of the Constitution or any other statute creating a statutory body. See Section 318(4) of the Constitution; SARAKI V. FRN (supra). Be that as it may, the application of the Interpretation Act in instances of computation of time is subject to only two limitations, one contained in the Act itself and the other is based on case law.

​The first limitation is where a contrary intention appears in the Act whose provision is sought to be construed, as contemplated by Section 1 of the Interpretation Act, which states that the “Act shall apply to the provision of any enactment except in so far as the contrary intention appears in this Act or enactment in question.” For the second part, we have seen cases where there seem to be no intention in the Interpretation Act or the Act (whose provision is sought to be construed) to exclude the former in the interpretation of the latter but the case law makes it clear that the Interpretation Act is not applicable in the interpretation of the provision of such Act. A classic example is in relation to election matters, wherein this Court held in a plethora of decisions including OKECHUKWU V. INEC & ORS (supra) relied upon by the Appellant, that due to the sui generis nature of election petitions, the Interpretation Act on computation of time does not apply to the requirement of time under the Electoral Act. See PDP v. ACCORD & ORS (2019) LPELR-49032. To the extent that the instant appeal is not springing from election or in any way related to an election and in the absence of any intention contained in the Court of Appeal Act, to the contrary, I cannot subscribe to the view that the Interpretation Act cannot be applied in the computation of the time prescribed for the filing of an appeal against a decision in a criminal case under Section 24(2)(b) of the Court of Appeal Act.”- Per ABUBAKAR, JSC

 

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TIME TO APPEAL – ON WHEN TIME STARTS TO RUN IN CRIMINAL APPEALS AT THE COURT OF APPEAL

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Now, Section 15 of the Interpretation Act provides as follows and I quote:

“(1) A reference in an enactment to the time of day is a reference to the time which is one hour in advance of Greenwich mean time.

(2)  A reference in an enactment to a period of days shall be construed-

(a)where the period is reckoned from a particular event, as excluding the day on which the event occurs;

(b)where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.

(3) Where by an enactment any act is authorised or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.

(4) Where by an enactment any act is authorised or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period.

(5) In this section “holiday” means a day which is a Sunday or a public holiday.”

​It is obvious from the above provisions of Section 15(2)(a) of the Interpretation Act that in the computation of time for the doing of an act under a statute, where the period is reckoned from a particular event, the day on which the event occurs shall be excluded. By necessary implication therefore, in relation to Section 24(2)(b) of the Court of Appeal Act, in the computation of the period for the filing of a notice of appeal against the decision of the trial Court, the day the judgment was handed down, shall be excluded. This is in accord with the line of thought expressed by this Court, per my law lord ANIAGOLU, JSC in AKEREDOLU V. AKINREMI (supra) where my lord held as follows:

“The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance. Maxwell on Interpretation of Statutes 12 Ed. Page 309, citing Lester v. Garland (1808) 15 Yes. 248 and Re North Ex parte Hasluck (supra), has it thus:

“Where a statutory period runs “from” a named date “to” another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of Parliament as gathered from the statute, generally, the first day of the period will be excluded from the reckoning, and consequently, the last day will be included.”

​In this case, the lower Court rightly considered the state of the law when it held that the day judgment was delivered at the trial Court cannot be reckoned with in the computation of the time for the purpose of filing the notice of appeal by the Respondent. Thus, since judgment was delivered by the trial Court on the 28th day of January, 2013, time for filing notice of appeal will begin to run from the 29th day January, 2013 up until the 90th day, which is the 28th day of April, 2013. However, in the instant case, the notice of appeal filed by the Respondent to challenge the decision of the trial Court was filed on the 29th day of April, 2013, being the 91st day after the judgment was delivered. Nevertheless, as the learned Justices of the lower Court rightly held, since the last day of the 90 days period is a Sunday (which is statutorily declared to be public holiday and by virtue of Section 15(5) of the Interpretation Act), the period for the filing of the notice of appeal extends till the next day in view of the provision of Section 15(2)(b) and (3) of the Interpretation Act. It is therefore clear that the date of the event is excluded from the computation of time, and the last day being a dias non juridicus cannot also be taken into reckoning in the computation of time, see: ETSAKO WEST LOCAL GOVT COUNCIL V. CHRISTOPHER (2014) LPELR-23023 (SC). Where this Court held as follows:

“There are identical rules for computation of time so stipulated or prescribed in the uniform High Court Rules, Edo State High Court [Civil Procedure] Rules etc. Such rules are substantially identical with the provisions on the same subject matter in Section 15 of the Interpretation Act, Cap 378 LFN 1990 [Cap 123, 2004, LFN] and the corresponding Sections in the Interpretation Laws of the various States of the Federation. It is provided in the Rules, that, where by any written law or any special order made by the Court in the course of any proceedings, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding and such time is not limited by hours, the following rules, among others, in the computation of time shall apply: [a] the limited time does not include the day of the date of or the happening of the event, but commences at the beginning of the day next following that date. [b] the act or proceeding must be done or taken at least on the last day of the limited time; [c] where time limited is less than six days, no public holiday or Sunday shall be reckoned as part of the time, [d] when the time expires on a public holiday or Sunday, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards not being a public holiday or Sunday. To put it more succinctly, Section 15 of the Interpretation Act provides: A reference in an enactment to a period of days shall be construed: [a] where the period is reckoned from a particular event, as excluding the day on which the event occurs; [b] where apart from this paragraph the last day of the period is holiday, as continuing until the end of next following day which is not holiday. [3] Where by an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be duly done if it is done on the next following day which is not a holiday. [4] Where by an enactment any act is authorized or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period. [5] In this Section “holiday” means a day which is a Sunday or a public holiday.” It is to be specifically noted that the day of the happening of an event is excluded where a period is reckoned from that event. The computation starts from the next day after the event. The principle is of general acceptance as established by this Court in the case of AKEREDOLU & ORS V. AKINREMI (1985) 11 SC 74 at page 93” (underlining mine)

The notice of appeal filed by the Respondent to challenge the decision of the trial Court, albeit filed 91 days after the judgment of the trial Court was delivered is deemed by law to be filed within 90 days of the judgment since the date of the event is not taken as constituting an integral part of the days for the purpose of computation of time; it is therefore competent. In the circumstance therefore, the decision of the lower Court cannot be faulted; I endorse it and order that parties in this appeal queue behind the decision as it is sound and represents the correct and settled application of the state of the law to the case.” – Per ABUBAKAR, JSC

 

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SENTENCING – WHETHER SENTENCING IS AT THE DISCRETION OF THE TRIAL COURT – ATTITUDE OF THE APPELLATE COURT TO THE EXERCISE OF DISCRETION BY THE TRIAL COURT IN IMPOSING SENTENCE

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“It is elementary law that the sentence to be imposed upon conviction for an offence is at the discretion of the trial Court. Every trial Judge is endowed with the discretion to impose punishment provided by law on a convict. The discretion must however be exercised judiciously and judicially. See OKECHUKWU V. STATE [1993] 9 NWLR (Pt. 315) 78 at 94-95; EROMOSELE V. FRN (2018) LPELR-43851 (SC). Therefore, in order to demonstrate that the discretion was judicially and judiciously exercised, a trial Judge must state the factors that influenced his decision in imposing sentence. See IORTIM V. THE STATE [1997] 2 NWLR (Pt. 490) 771.

​Nevertheless, failure to give reason for the sentence will however not vitiate the conviction, but put the appellate Court in a position to review the sentence if it is found to be excessive or utterly inadequate. Thus, an appellate Court is always reluctant to interfere with the way a trial Judge exercised his discretion, but would be compelled to so interfere if the discretion was wrongly exercised; if the exercise of discretion was tainted with some illegality or riddled with substantial irregularity; if there is a miscarriage of justice; or if it is in the interest of justice to interfere. See OGUNSANYA V. THE STATE [2011] 12 NWLR (Pt. 1261) 401 at 438 and the decision of this Court in ADEYEYE V. THE STATE (1968) 1 ALL NLR 231 at 241 where ADEMOLA, CJN (of blessed memory) held that:

“It is only when a sentence appears to err in the principle that this Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was failure to apply the right principles, then this Court will Intervene.”

 

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SENTENCING – FACTORS A COURT SHOULD CONSIDER IN PERFORMING ITS SENTENCING FUNCTION

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“Section 311(2) of the Administration of Criminal Justice Act, 2015 sets out four factors that the Court should invariably consider in performing its sentencing function. The Section reads as follows:

“(2) The Court shall, in pronouncing sentence, consider the following factors in addition to Sections 239 and 240 of this Act

(a)the objectives of sentencing, including the principles of reformation and deterrence;

(b)the interest of the victim, the convict and the community;

(c)appropriateness of non-custodial sentence treatment in lieu of imprisonment; and

(d)previous conviction of the convict.”

 

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SENTENCING – WHAT A TRIAL COURT MUST CONSIDER WHEN SENTENCING A CONVICT

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“It is beyond doubt that the menace of corruption and its associated vices including misuse of public office and mismanagement of public funds remains a major scourge ravaging this country. There must be concerted efforts especially on the part of the Courts to send the right signals to managers of public funds that it is no longer possible and tolerable to squander public funds and continue basking in affluence, such conduct must be made unattractive, shameful and condemnable our Courts must ensure that the spirit and letter of extant laws are implemented. As the lower Court rightly noted, in sentencing a convict in respect of a crime that has gained notoriety and is prevalent in the community, it is incumbent on the Court to impose a severe sentence in order to deter the convict and the general community from further committing the crime. It is worth stating that the values of the elite constitute the dominant value that drives the wider values of the society. Where the elites, who are found wanting, are made to face the wrath of the law, so doing will serve as deterrent to others. The Appellant in this appeal abused public office and public trust, he became an attractive and admirable public figure in the society commanding undeserved respect and influence because he mismanaged public funds, the conduct of the Appellant and people in his position, gang and enterprise send wrong signal to the society that corruption is a way of life and pays, we have a duty as a Court to stop this negative trend and drift, public office must be shown to be public trust, public office holders must be made to understand that they must give account of their service, holding public office is more of a burden than an instrument of oppression, regression and arrogant display of affluence. Public officers must not be allowed to have sound sleep after squandering public funds, abuse of power, trust and responsibility must attract serious condemnation, and penalty, public officers engaged in mismanaging public affairs must be ostracized and made to cough out all proceeds of crime acquired as a result of abuse of public trust.” – Per ABUBAKAR, JSC

 

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PLEA OF GUILTY – DUTY OF THE COURT WHERE AN ACCUSED PERSON PLEADS GUILTY

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“Let me understand the grievance of the Appellant in this appeal, he opted for plea bargain, he consciously without any intimidation opted to plead guilty to Counts 18, 19 and 20 of the amended charge, his major quarrel is that the lower Court varied his sentence on counts 18, 19 and 20, Appellant pleaded guilty to the three Counts. It is the law, that after a plea of guilty by an accused person before the Court, the Court must formally proceed to conviction without calling upon the prosecution to prove the commission of the offence, this is because the admission of guilt on the part of the accused has fully satisfied the burden of proof, see: DONGTOE V. CIVIL SERVICE COMMISSION PLATEAU STATE & ORS, ​(2001) LPELR-959 (SC), R V. WILSON (1959) SCNLR 462. At pages 938-939 when the charge was read to the Appellant he pleaded guilty, and the implication of plea of guilty is that the Court is justified in proceeding to convict and sentence.” Per ABUBAKAR, JSC

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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1999 Constitution of the Federal Republic of Nigeria (as amended)

Interpretation Act

Penal Code Act, Cap. 532, Laws of the Federal Capital Territory, Abuja, 2007

Court of Appeal Act

 

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