Where a law prescribes a mandatory sentence in clear terms, courts cannot impose anything less
EZEANI v. FRN (2019) LPELR-46800 (SC)
In the Supreme Court of Nigeria
ON FRIDAY, 15TH FEBRUARY, 2019
Suit No: SC.622/2015
Before Their Lordships:
WALTER SAMUEL NKANU ONNOGHEN, JSC
MUSA DATTIJO MUHAMMAD, JSC
KUMAI BAYANG AKA’AHS, JSC
JOHN INYANG OKORO, JSC
SIDI DAUDA BAGE, JSC
ELVIS EZEANI – Appellant
FEDERAL REPUBLIC OF NIGERIA – Respondent
LEAD JUDGMENT DELIVERED BY JOHN INYANG OKORO, J.S.C.
FACTS OF THE CASE
By information filed on 23rd February, 2015 before the High Court of Lagos State, the Appellant was charged with the offences of conspiracy to obtain money by false pretence contrary to Section 8(a) and 1(3) of the Advance Fee Fraud and Other Related Offences Act No.14 of 2004; obtaining money by false pretences contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related offences Act Cap 46, Laws of the Federation of Nigeria, 2004; obtaining money by false pretences contrary to Section 1(1) (a) and 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act Cap A6, Laws of the Federation of Nigeria, 2004.
The gist of the Respondent’s case is that the Appellant in concert with both John Obiamalu and Joseph Morah had some time in May, 2006 approached one Auwalu Abdulrahman, the PW1, a Bureau De Change Operator with an offer to sell to him $500,000 which they claimed they had for sale but was in the custody of their agent, one Nurudeen in Ghana. Auwalu Abdulrahman was interested in the deal but wanted to buy only the sum of US$250,000 and after due negotiation, the parties arranged to meet in Auwalu Abdulrahman’s Lagos office. On the agreed date, they met at UBA Plc., Marina Branch, Auwalu’s bank and the sum of N13, 500, 000 was withdrawn by him and paid in cash to the Appellant and the two other persons, Joseph Morah and John Obiamalu.
However, Auwalu Abdulrahman was also to pay and actually paid to them the sum of US $143,620 cash as part of the payment for the US $250,000 in addition to the cash of N13, 500, 000 also paid to them. The agreement was that a nominee of Auwalu Abdulrahman one Mahadi Ahmed would stay with them until Auwalu Abdulrahman received confirmation from his brother and agent in Ghana that the sum of $250,000 has been handed over by the seller’s agent in Ghana. Unfortunately, when Auwalu Abdulrahman’s brother/agent arrived in the Ghana office, he discovered that there was no sign of the seller’s agent or the promised US dollars to collect. In the meantime, the Appellant and his confederates were able to get away from the presence of Mahadi Ahmed after pushing him out of the Taxi Cab they were all in and left with the monies in the car.
On his part, the Appellant denied the allegation of the Respondent and stated that he merely acted as a commissioned agent in the transaction at the request of one Mr. Tunde Ogunsetan, a Bank Manager and was paid his agency fees of N750, 000. At the conclusion of trial at the High Court of Lagos State, the learned trial judge found the Appellant guilty on all the three counts and sentenced him to ten years imprisonment on each count and ordered same to run concurrently commencing from 28th April, 2015 being the date of the Appellant’s remand in prison custody by the learned trial judge. Dissatisfied with the stance of the learned trial judge, the Appellant appealed to the Court of Appeal, Lagos Division, which after hearing argument from both sides, dismissed the appeal and affirmed the conviction and sentence of the appellant. The appellant is again not satisfied with the judgment of the Court of Appeal further appealed to the Supreme Court.
ISSUES FOR DETERMINATION
The Apex Court determined the appeal on the following issues:1. Whether the Court below was right when it affirmed the judgment of the trial Court to the effect that the Respondent proved its case against the Appellant beyond reasonable doubt on each of the three counts of the information and therefore convicted him accordingly.
2. Whether the Court below was right when it held that the sentence of the Appellant to 10 years imprisonment respectively on the three counts of the information under the Advance Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004 by the trial Court with effect from date of his remand in prison custody by the Court was in accordance with Section 315 of the Administration of Criminal Justice Law, 2011.
APPELLANT’S COUNSEL SUBMISSIONS
Learned Counsel submitted that notwithstanding the apparent material inconsistencies and uncorroborated evidence as to who owns the money and how much was involved, and why did the PW1 and PW2 not report such incident to the police immediately and PW1’s failure to report the matter to Alhaji Saliu Ibrahim over a month after it happened but had to wait for him to write a petition to the Inspector General of Police, it was wrong for the Court of Appeal to affirm the judgment of the trial Court. According to him, there was doubt in the prosecution’s case, which ought to have been resolved in favour of the appellant.
In his argument on the second issue, the learned counsel for the appellant raised two issues, first being that the sentence of 10 years imposed on the appellant ought to have been reduced and secondly that the date of commencement of imprisonment ought to be when he was arrested and detained by the police and not when he was remanded by the Court on arraignment.
RESPONDENT’S COUNSEL SUBMISSIONS
In his response, the learned counsel for the Respondent submitted that the issues of inconsistencies, doubts, speculations etc. alleged by the Appellant’s counsel in his argument are fanciful and irrelevant. That the issues of ownership of the money, the actual amount of money involved, how much was actually given by PW1 in exchange for the dollars, what corroborates the allegation that N13.5 million and $143, 620 was given out by PW1 at the same time is akin to ploughing the sand.
He contended that if the money or any part of it did not belong to PW1, the appellant did not lay any claim or lead any evidence to show that it belonged to him or any of his confederates. On issue of contradictions, learned counsel submitted that they were not material contradictions. That for contradictions in the evidence of the prosecution witness to be material and capable of rendering the evidence unreliable, it must relate to the material ingredient of the offence charged. He submitted that inaccuracies and discrepancies that do not touch the justice or substance of the case is not a sufficient ground to disturb the judgment, relying on Silas Sule v. The State (2007) LPELR – 8901, P1 at PP 5 -6; Onubogu v. State (1974) 9 SC. 1.
RESOLUTION OF ISSUES
In resolving the first issue, the Court stated the position of the law that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion, which is consistent with a high degree of probability. See Nwaturuocha v. The State (2011) 6 NWLR (Pt. 1242) 170, Akinlolu v. The State (2015) LPELR – 25986(SC) Oseni v. The State (2012) LPELR – 7833 (SC); Miller v. Minister of Pensions (1974) 2 ER P. 372. The Court went further to state that conspiracy is an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. See Njovens v. The State (1973) All NLR 371, Kayode v. The State (2016) LPELR – 40028 (SC), Chibuzor Nkem Bouwor v. The State (2016) LPELR- 26054 (SC).
The Court held that as conspiracy is always not able to be proved by tendering some evidence, Courts do infer conspiracy from the acts of the parties, which tend to actualize a common purpose in aid of the agreement. There is no doubt that ingredients of conspiracy abound in the entire presentation between the appellant and his confederates. On the whole, the Court agreed with the Court of Appeal that the Prosecution proved the charge against the appellant beyond reasonable doubt and that the appellant failed to lead credible evidence to show that the prosecution’s evidence was doubtful. Thus, the first issue was resolved against the appellant.
Resolving issue two, the Court stated that the issue of reduction of sentence does not arise as the punishment Section of the law under which the appellant was charged makes 10 years the minimum sentence he could get in the circumstance. Citing Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act Cap A6 Law of the Federation of Nigeria, 2004, the Court held that by the use of the words “not less than 10 years”, prescribes the lowest limit of the term of imprisonment upon conviction for conspiracy and obtaining by false pretence. The Court stated the trite principle of law that where a law prescribes a mandatory sentence in clear terms, the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised. See Amoshima v. The State (2011) 14 NWLR (Pt. 1268) 530 at P. 530 paragraphs A – C. Afolabi v. The State (2013) 13 NWLR (Pt. 1371) 292, (2013) LPELR – 20700 (SC). Accordingly, issue two was also resolved against the appellant.
Having resolved all the issues against the appellant, the Court found no merit in the appeal and it was accordingly dismissed.
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