(ABUJA DIVISION)
TUESDAY 25th JULY, 2017.
COUNSEL FOR PARTIES
B. I. Dakun Esq. for the Appellant.
Dr. A. Izinyon (SAN) with
C.G Fagbemi and
C.C Adah (Miss), for the Respondent.
BEFORE THEIR LORDSHIPS
- ABUBAKAR D. YAHAYA, (Presiding) JCA
- TAM YUSUF HASSAN, JCA
- MUHAMMED MUSTAPHA, JCA
APPEAL Ibis is an appeal against the judgment of the Federal High Court Abuja, Coram Hon. Justice 6.0 Kolawale, wherein the appellant was convicted of having prior knowledge of the l October, 2010 bombing close to the Eagle Square) Federal Capital Territory Abuja, during Nigeria's Golden Jubilee celebration, leading to the death and injury of several people, as well as destruction of properties and failure to divulge information on same to relevant authorities contrary to section 40(b) of the Criminal Code Act and thereby sentenced to life imprisonment.
ISSUES OF LAW INVOLVED
CRIMINAL LAW AND PROCEDURE: The purport of the provisions of Section 40(b) of the Criminal Code Act-Effect
EVIDENCE: Evaluation of evidence by the trial Court
PRACTICE AND PROCEDURE: Exercise of discretion by the trial Court-when appellate court can interfere.
PRACTCE AND PROCEDURE: Proof beyond reasonable doubt-meaning
PRACTICE AND PROCEDURE: Sentencing of an accused person-Court to consider the facts and circumstances of the case
STATUTE: Section 40(b) of the Criminal Code CAP C 38, Laws of the Federation of Nigeria (LFN) 2004 how construed
WORDS AND PHRASES: Meaning of 'Conviction' and 'Sentence'
ISSUES FOR DETERMINATION
a. Whether from the evidence available at trial, the Respondent proved the charges against the Appellant beyond reasonable doubt.
b. Whether the sentence of life imprisonment was too harsh.
SUMMARY OF THE FACTS OF THE CASE
The Appellant herein was charged along with 3 others by an amended charge dated 10th day of January, 2011 with an 8 count charge, but only counts 2, 3 and 4 relate to the appellant. On the *7th day of March, 2012, the appellant applied to the trial court to be tried separately which application was granted accordingly.
In proof of its case, the prosecution called a total of 6 witnesses and tendered 6 Exhibits while the Appellant testified on his own behalf. At the end of the trial, the court delivered judgment and convicted the Appellant for the offence charged and sentenced him to life imprisonment subject to parole after 32 years from the date of the appellant's arrest on the 3 day of October, 2010.
The Appellant being dissatisfied with the decision of the trial court appealed to this Court vide an amended notice of appeal dated and filed on the 15th day of November, 2016.
HELD (Unanimously dismissing the appeal):
- Proper intendment and interpretation of Section 40(b) of the Criminal Code Act is not linking the accused with other accused persons. The ingredient to be proved there is "knowledge of intention"
PER EKO, JSC [RATIO 1]
ABOUT THE INTENDMENT OF S.40(b) CC
Section 40(b) of the criminal Code Act in accordance with which the appellant was charged states as follows: "Any person who..
(b) knowing that any person intends to commit treason, does not give information thereof with all reasonable dispatch to the president or governor of the State or peace officer or use reasonable endeavor to prevent the commission of the offence, is guilty of a felony and is liable to imprisonment for life."
It is clear from this provision, as rightly held by the trial court, at page 362 of the record of appeal, that the offence in section 40(a) is by reason of the semi colon appearing before the word 'or' intended to be independent of the provision in paragraph (b), thus section 40(a) on its own can stand as a viable criminal indictment; especially when section 201 of the Evidence Act is taken into account, because this section clearly shows that the issue of overt act and accessory before or after the fact, does not apply to this case, contrary to the submissions of learned counsel to the appellant.
The rationale for arriving at this conclusion is not farfetched, it is grounded in the wordings of the section itself; it provides, for the avoidance of doubt that:
"Sub section (1) of this section does not apply to cases in which the overt act of treason alleged is the killing of the president or a direct attempt to endanger the life of or injure the person of the president"
PER EKO, JSC [RATIO 1a]
ON NECCESSARY INGREDIENT THAT PROVES S.40(b) CC
Contrary to the contention of learned counsel for the appellant, conviction under section 40(b) does not require linkage with other accused persons, the operative word is 'knowledge of intention', and failure to report to the categories of persons listed therein. The appellant from the evidence at the trial not only knew, but failed to report; the findings of the trial court are beyond reproach in this regard.
PER EKO, JSC [RATIO 2]
ATTITUDE OF SC TO CONCURRENT FINDINGS OF LOWER COURTS; MEANING OF PROVE BEYOND REASONABLE DOUBT
All these pieces of evidence were clearly evaluated by the trial court, brick by brick, before arriving at the conclusion that the appellant knew about the plot at Eagle Square Abuja....The evidence of the prosecution at the trial clearly proved beyond reasonable doubt the guilt of the accused person; the standard of proof required it should be noted is not proof beyond any shadow of doubt, because absolute certainty is not the requirement of the law in criminal justice; and in any event the absolute truth is not the prerogative of the human Judge. See GBITI V. THE NIG. NAVY (2007) LPELR 4893 CA
PER EKO, JSC [RATIO 3]
ON WHETHER THE SENTENCE OF COURT IS TOO HARSH
It therefore follows that where a felon is sentenced upon conviction, the question whether the sentence is harsh or not is subjective. The accused appellant feels the sentence of life, as passed by the trial court is harsh, he has every right to feel so, but try telling that to the victims of the bomb explosion or surviving members of the deceased family. The families of the dead and wounded expect justice and deserve justice. These are the considerations the trial court had the task of weighing, with the provisions of the relevant laws in mind. The trial courts before passing the sentence in this case took precious time to not only appraise the circumstances that led to the conviction and sentence but also the situation of the appellant... The trial court was surely influenced by the evidence before it, as well as the surrounding circumstances in passing the sentence of life on the appellant; I do not for one moment believe the issue here is whether the trial court can impose a lighter sentence, of course, he could, if he chose to exercise his discretion in that direction, but he chose not to.
PER EKO, JSC [RATIO 4]
CONSEQUENCE OF FAILING TO CROSS-EXAMINE A WITNESS
If he knew and didn't tell, as the evidence of PW6, who was not cross-examined shows, he has ran afoul of section 40(b) of the Criminal Code; and it has to be kept in mind that, because failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness; see GAJI V. PAYE (2003) LPELR -- 1300 - SC, and ADESULE V. MAYOWA (2011) LPELR -- 3691 -- CA.
- When a witness states one thing and again says another thing which contradicts what he said earlier he is taken to be speaking from both sides of his mouth, and upon such manifest contradiction the court will resolve that issue of fact against the party.
PER EKO, JSC [RATIO 5]
This court cannot help but note that the appellant in one breath stated that he informed "highly placed people in society" of the plot, see page 4 of Exhibit 1, and in another that the threat he reported was actually against him, and his family, which he claimed to have reported to the PW6; that to my mind is akin to speaking from both sides of his mouth, and not merely 'vague expression of displeasure' as submitted on his behalf, which he admitted knowing. It is clear from the evidence that what the appellant knew, he clearly didn't tell the people he ought to have told, as required by section 40(b), and what he told, if he did, is not the plot he knew.
- It is required that the exercise of discretion must be done judiciously and judicially by the trial court, and once it is seen that it did indeed so exercised its discretion, the appellate court would not lightly disturb its decision, whether of conviction or sentencing.
PER EKO, JSC [RATIO 6]
ON EXERCISE OF DISCRETION BY TRIAL AND WHEN APPELLATE COURT MAY INTERFERE
The trial court exercised its discretion judiciously, in the circumstances, and discretion properly exercised by a trial court, will not be lightly interfered with by this court, even if this court is of the view that it might have exercised the discretion differently. It would have been different, if the trial court exercised its discretion under a wrong principle or mistake of law or under a misapprehension of the facts took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice; fortunately this is not the case here; see KUDORO V. ALAKA (1956) SCNLR 255 at 257; SOLANKE V. AJOBOLA (1968) NSCC VOL. 5 page 40 at 44 -- 46, (1968) 1 ALL NLR 46; AWANI V. EREJUWA (1976) 11 SC 307.
PER EKO, JSC [RATIO 7]
MEANING OF CONVICTION AND SENTENCE
Conviction and sentence go hand in hand; Conviction is nothing more than a finding of guilt; see MUHAMMED V. OLAWUNMI (1990) NWLR (Pt. 133) pg 458. A sentence on the other hand is a formal pronouncement after conviction awarding a punishment, for the offence.
STATUTE AND RULES OF COURT REFERRED TO IN THE JUDGMENT
(a.) Section 40(b) of the Criminal Code CAP C 38, Laws of the Federation of
Nigeria (LFN) 2004.
(b.)Section 201 of the Evidence Act 2011
CASES REFERRED TO IN THE JUDGMENT
Abatcha V. The State 11 NWLR (Pt. 779) 431
Adesina V. State (2012) 14 NWLR (Pt. 1321) 448
Adesule V. Mayowa (2011) LPELR-3691 (CA)
AG Ferrero & Co. Ltd V. Nnamani (2006) ALL FWLR (Pt. 339) 990
Agbo V. State (2006) 8 NWLR (Pt. 823) 605
Arnoshima V. State (2011) 14 NWLR (Pt. 1268) 530
Awani V. Erejuwa (1976) 11 SC 307
Okewu V. FRN (2010) 9 NWLR (Pt. 1305) 321
Gaji V. Paye (2003) LPELR-1300 (SC)
Galadima V. State (2012) 18 NWLR (Pt. 1333) 610
Gbiti V. The Nig. Navy (2007) LPELR-4893 (CA)
Isaac J. Boro V. The Repubkc (1967) NMLR 163
Kudoro V. Alaka (1956) SCNLR 255 at 257
Michael Adedepo Omisade & Ors. V. The Queen (1964) 1 ALL NLR 233 at 294
Muhammed V. Olawunmi (1990) NWLR (Pt. 133) 453
Odogwu V. State (2013) 14 NWLR (Pt. 1373) 126
Oforite V. State (2000) 12 NWLR (Pt. 681)
Solanke V. Ajibola (1968) NSCC Vol. 5 pg. 40 at 44-46
State V. Njoku (2010) 1 NWLR (Pt. 243) 243 at 282
JUDGMENT
Delivered by MOHAMMED MUSTAPHA, JCA
This appeal is against the Judgment of the Federal High Court Abuja, Coram Hon. Justice G.O. Kolawole, delivered on the 25th day January, 2013.
Facts in Brief
The appellant herein was convicted of having prior knowledge of the 1st October, 2010 bombing close to Eagle Square Federal Capital Territory Abuja, during Nigeria's Golden Jubilee Celebration leading to the death and injury of several people, as well as destruction of properties and failure to divulge information on same to relevant authorities and thereby sentenced to life imprisonment.
Investigation commenced after the incident revealed that the appellant was in constant contact with one Henry Okah, who was planning attacks because of grievances he had against the federal government of Nigeria.
At trial the appellant was charged along with three others by an amended statement of claim dated 10th January, 2011 and filed on the 1 1tb of January, 2011 with an 8 count charge, but only counts 2, 3 and 4 of those charges relate to the appellant. The said counts read as follows:
Count Two
That you Edmund Ebiware "m" between the months of September, 2010 and October, 2010 both months inclusive in the Federal Capital Territory Abuja, within the jurisdiction of the court, knowing that Henry Okah (now in South Africa) intended to commit treason did not give information thereof with all reasonable dispatch to the President of the Federal Republic of Nigeria and thereby committed an offense contrary to section 40 (b) of the Criminal Code CAP C38, Laws of the Federation (LEN) 2004.
Count Three
That you Edmund Ebiware 'm' between the months of September, 2010 and October, 2010 both months inclusive, in the Federal Capital Territory Abuja within the jurisdiction of the court, knowing that one Henry Okah (now in South Africa) intended to commit treason did not use reasonable means to prevent the commission of the offence and you thereby committed an offense contrary to section 40(b) of the Criminal Code CAP C38, LAW of the Federation LEN 2004.
Count Four
That you Edmund Ebiware 'm' between the months of September, 2010 and October, 2010, both months inclusive, in the Federal Capital Territory Abuja within the jurisdiction of the court, knowing that one Henry Okah (now in South Africa) intended to commit treason did not give information thereof with all reasonable dispatch to a peace officer and you thereby committed an offence contrary to section 40(b) of the Criminal Code CAP C of the Federation of Nigeria (LFN) 2004.
The appellant's application of the 27th of March 2012, to be tried separately was granted on the 3rd of May, 2012, see page 240 of the record of appeal. In proof of its case the persecution called six witness and tendered 6 Exhibits, while the appellant testified on his own behalf; at the end of which judgment was delivered sentencing the appellant to life imprisonment, subject to parole after 32 years from the date of the appellant's arrest on the 3 October, 2010, see pages 313 to 387 of the record of appeal.
Dissatisfied with the decision of the trial Court, the appellant appealed to this court vide an Amended Notice of Appeal dated and filed on the 15th day of November 2016; on the following grounds, shorn of their particulars:
GROUND ONE
The Learned Trial Judge erred in law when he held: "the conclusion I have reached is that, the Accused person who by early September, 2010 had become aware of the plan of Mr. Henry Okah to "strike and cause mayhem" in Nigeria, took no step to give the information to any of the persons prescribed in section 40(b) of the Criminal Code Act."
GROUND TWO
The Learned Trial Judge erred in law when he held that: "it is my conclusion that the prosecution by the evidence led and documentary and real exhibits, tendered by both parties had proved the case on the three (3) counts in the amended charge dated 10/11/2011 and filed on the 11/1/2011 against the accused person beyond reasonable doubt.
GROUND THREE
The Learned Trial Judge erred in law when he convicted appellant based on the communication between him and Henry Okah.
GROUND FOUR
The sentence was harsh.
GROUND FIVE
The Judgment of the Federal High Court Abuja is unreasonable and unwarranted and cannot be sustained having regards to the evidence.
From these grounds the following issues were formulated for determination of this appeal by the appellant in the brief settled by Festus Keyamo dated and filed on the 14th day of February, 2017; thus:
Whether from the totality of evidence adduced at the trial court,
the appellant had foreknowledge of the 1st October, 2010 bombing.
Whether the prosecution proved its case beyond reasonable doubt.
Whether the sentence of the appellant to life imprisonment (32 years) was not too harsh?
In response, the respondent in the brief settled by Dr. Alex lzinyon, SAN, filed on the 3 day of April 2017 but deemed properly filed on the 2 day of May 2017; formulated two issues for the determination of this appeal, thus:
Whether from the oral and documentary evidence before it, the trial court was right in law to have held that the Respondent had proved the three (3) counts in the amended charge filed on 11th January, 2011 against the Appellant, beyond reasonable doubt. (Distilled from grounds 1, 2, 3 and 5).
Whether in view of the evidence before it, the facts and circumstances surrounding this case, the sentencing of the Appellant to life imprisonment by the trial court was too harsh.
The respondent's issue one adequately subsumes the appellant's issues one and two, while issue three of the appellant and two of the respondent are identical. The appeal will conveniently be determined on the issues formulated for the respondent, but reframed for brevity and clarity as follows:
Issue One
Whether from the evidence available at trial, the respondent proved the charges against the appellant beyond reasonable doubt.
Issue Two
Whether the sentence of life imprisonment was too harsh.
Issue One
Whether from the evidence available at trial, the respondent proved the charges against the appellant beyond reasonable doubt.
It is submitted for the appellant on this issue that there was no proof that the appellant had prior knowledge of the attack on 1st of October, 2010, or that Henry Okah was actually planning to bomb the ceremony at Abuja, beyond merely knowing that some persons were not happy with the government, and that the disenchantment of Okah, communicated to the appellant did not take place within September to October 2010 as charged but between the months of February 2010 and July 2010, as confirmed by the appellant in his statement.
That also the threat by Okah which the appellant told others was the threat against the appellant and his family and not threats to bomb Abuja; especially as it was not established that he knew or had foreknowledge of the character of the thing done; learned counsel referred this court to OKEWU V. FRN (2010) 9 NWLR part 1305 page 321 ISAAC J BOR V. THE REPUBLIC (1967) NMLR 163, MICHAEL ADEDAPO OMISADE & ORS V. THE QUEEN (1964) 1 ALL NLR 233 at 294 and ABATCHA V. THE STATE 11 NWLR part 779 page 431.
Learned counsel further submitted that there was no linkage between the appellant and the other co-accused persons who were charged with committing terrorist acts, especially as at the time of the appellant's conviction there was no evidence that the said Henry Okah was convicted for treason; he referred this court to ABATCHA V. STATE supra at 505.
That in the absence of direct evidence of fore knowledge on the part of the appellant the evidence relied upon for conviction is not compelling enough, especially as Exhibit 6 ought not to have been admitted in the first place; learned counsel referred this court to ADESINA V. STATE (2012) 14 NWLR part 1321 at 448, STATE V. NJOKU (2010) 1 NWLR part 243 page 243 at 282, GALADIMA V. STATE (2012) 18 NWLR part 1333 page 610 and ODOGWU V. STATE (2013) 14 NWLR part 1373 page 126.
It is submitted in response that the oral and documentary evidence adduced proved beyond reasonable doubt the guilt of the appellant for the offenses charged; he referred this court to pages 364 to 386 of the record of appeal, which showed the painstaking evaluation of the evidence before the court arrived at the conclusion it did.
That the first message on page of Exhibit 6 and page 9 of Exhibit 1 as well as the appellant's admission during cross examination show that he was aware of the planned mayhem.
Learned counsel further submitted that the failure of the appellant's counsel to cross examine PW2 means the said evidence is deemed accepted as the truth; he referred this court to OFORLTE V. STATE (2000) 12 NWLR part 681, AGBO STATE V. (2006) 6 NWLR part 977 page 545 and GAJI V. PAYE (2003) 8 NWLR part 823 at 605.
That also the appellant knew by his conduct the bombing of the event because he told the PW4 who complained about orchestration of the bombing by Henry Okah that it was good idea, because only few people benefited from the amnesty programme of the government; and that he did not deny the bombing was carried out by Henry Okah; learned counsel referred this court to A.G. FERRERO & CO LTD V. NNAMANI (2006) ALL FWLR part 339 page 990, and further contended that the fact that the appellant reported to the people he mentioned in his statement meant he knew of Okah's intention.
Learned counsel in response to the appellant's counsel's submission that there must be overt manifest acts before the appellant could be said to have known', contended that there cannot be anything more manifest than the appellant's confession on page 7 of Exhibit 1.
That the decision of the trial court on Exhibit 6 arose from the evidence before him, as admitted by the appellant from the contents of the text messages of 2 October, 2010, thus making it unnecessary to call the service providers as contended for the appellant.
Resolution of Issue One
Section 40(b) of the Criminal Code Act in accordance with which the appellant was charged states as follows: 1
"Any person who...
(b) Knowing that any person intends to commit treason, does not give information thereof with all reasonable dispatch to the president or governor of the state or peace officer or use reasonable endevours to prevent the commission of the offence, is guilty of a felony and is liable to imprisonment for life."
It is clear from this provision, as rightly held by the trial court, at page 362 of the record of appeal, that the offence in section 40(a) is by reason of the semi colon appearing before the word 'or', intended to be independent of the provision in paragraph (b), thus section 40(a) on its own can stand as a viable criminal indictment; especially when section 201 of the Evidence Act (2) is taken into account, because this section clearly shows that the issue of overt act and accessory, before or after the fact, does not apply to this case, contrary to the submissions of learned counsel to the appellant.
The rationale for arriving at this conclusion is not far fetched, it is grounded in the wordings of the section itself; it provides, for the avoidance of doubt that:
"Subsection (1) of this section does not apply to cases in which the overt act of treason alleged is the killing of the president or a direct attempt to endanger the life or injure the person of the president."
It is not disputed by either of the contending parties, that the bombing in issue took place on the 1st of October, 2010, at the Eagle Square, Abuja, where the President, his Deputy, and other dignitaries were gathered for the Independence Day celebration. This fact is also borne out by the evidence of PW2 among others.
The trial court's finding in this regard is impeccable; see pages 378 to 379 of the record of appeal.
Now on the evidence before the trial court, the appellant was emphatic as to what he knows with regard to the plot to cause mayhem, and indeed its execution; see page 7 of Exhibit 1, where he stated at page 79 of the record of appeal that:
"in early September, 2010, Raphael Damfebo met me at Citi Park Wuse 2 Garden, he called me aside and told me that Henry Okah is planning attack against the government, his information is not new to me..."
Exhibit 5A from which Exhibit 6 was extracted is the mobile phone of the appellant; the text message extracted therefrom reads as follows:
"sori due to security rgrds d independence hurricane couldn't cal. Boy wl b ok by Gods grace. I was deeply involve shake d nation. Gud mrn."
The appellant admitted the import of this piece of evidence in his statement made on the 4th of October, 2010 at page 9 of Exhibit 1.
At page 277 of the record of appeal the appellant further stated during cross examination that:
"In July 2010, Mr. Henry Okah phoned me to tell to that he was angry with the president" and at page 4 of exhibit 1 also that:
"Henry Okah kept calling me to tell me that since the Federal Government don't take his proposal seriously he is going to strike and cause mayhem in Nigeria."
2 All these pieces of evidence where clearly evaluated by the trial court, brick by brick, before it arrived at the conclusion that the appellant knew about the plot at Eagle Square Abuja.
This court, like the trial court, finds it extremely unlikely that the appellant informed the plot, to any of the people he mentioned in his statement, see page 4 of Exhibit 1, much less those listed in section 40(b) of the Criminal Code as required; the belief is corroborated by the evidence of PW3, and PW2, who stated clearly at pages 247 to 248 of the record of appeal that:
"in the statements the 3 accused person made, there were names mentioned that the 3rd accused person said that when he had the foreknowledge of the mayhem as discussed with him by Henry Okah he informed some highly placed persons in the society. We contacted everybody mentioned in the statement the 3rd accused person made in order to confirm if he had any contact with them or if he had told them of anything about the incident of 1-10-10 before the said date, they all denied having any link with the 3 accused persons."
5 This court cannot help but note that the appellant in one breath stated he informed 'highly placed people in society' of the plot, see page 4 of Exhibit 1, and in another that the threat he reported was actually against him, and his family, which he claimed to have reported to the PW6; that to my mind is akin to speaking from both sides of his mouth, and not merely 'vague expressions of displeasure' as submitted on his behalf, which he admitted knowing. It is clear from the evidence that what the appellant knew, he clearly didn't tell the people he ought to have told, as required by section 40(b), and what he told, if he did, is not the plot he knew.
4 If he knew and didn't tell, as the evidence of PW6, who was not cross examined shows, he has ran afoul of section 40(b) of the Criminal Code; and it has to kept in mind that, the evidence of PW6 ought to be deemed as accepted, because failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness; see GAJI V. PAYE (2003) LPELR-1300-SC and ADESULE V. MAYOWA (2011) LPELR-.3691-CA.
Learned counsel to the appellant in a valiant effort at diminishing the worth of the confession contended in his reply brief that the confession without more cannot ground a conviction; while that may be so in law, the fact of the matter is that in this case as pointed out earlier, there is more than enough evidence not only to corroborate the confession, but to also suggest that the appellant confessed to the truth; the appellant's confession in Exhibit 1, at page 7 clearly says it all, especially when taken against the backdrop of all the other evidence available before the trial court. This court is satisfied that there is indeed proof enough for conviction.
The evidence of the prosecution at trial clearly proved beyond reasonable doubt the guilt of the accused person; the standard of proof required it should be noted is not proof beyond any shadow of doubt, because absolute certainty is not the requirement of the law in criminal justice, and in any event the absolute truth is not the prerogative of the human judge; see GBITI V. THE NIG. NAVY (2007) LPELR-4893-CA.
1a Contrary to the contention of learned counsel for the appellant, conviction under section 40(b) does not require 'linkage with other accused person(s), the operative word is 'knowledge of intention', and failure to report to the categories of persons listed therein.
The appellant, from the evidence at trial not only knew, but failed to report; the findings of the trial are beyond reproach in this regard. Learned counsel to the appellant was completely off, the mark in his contention that the trial court embarked on an interpretative voyage, because Exhibit 6 clearly arose from the evidence before the trial court, and there was absolutely neither need nor necessity to call the service providers in this case, especially as the appellant had admitted sending the text messages himself on the 2 of October, 2010, see Exhibiti page 9.
This court is satisfied that the prosecution proved the case against the accused/appellant beyond reasonable doubt, as required; accordingly this issue is resolved in favour of the respondent, against the appellant.
Issue Two
Whether the sentence of life imprisonment was too harsh.
It is submitted for the appellant on this issue that where upon conviction the punishment prescribed by statute is a term of imprisonment the court can exercise its discretion to give the maximum sentence or reduce it; learned counsel referred this court to AMOSHIMA V. STATE (2011) 14 NWLR part 1268 page 530.
That the appellant being a first time offender and a family man deserved the sympathy of the trial court, especially as the aim of punishment is deterrence.
In response it is submitted that section 40(b) specified life imprisonment on conviction, and the trial court looked at all the evidence and facts before it before exercising its discretion to sentence the appellant to life imprisonment.
Resolution of Issue Two:
7 A conviction and sentence go hand in hand; conviction is nothing more than a finding of guilt; see, MUHAMMED V. OLAWUNMI (1990) NWLR (Pt. 133) P9 458. A sentence on the other hand is a formal pronouncement after conviction awarding a punishment, for the offence.
3 It therefore follows that where a felon is sentenced upon conviction, the question whether the sentence is harsh or not is subjective. The accused appellant feels the sentence of life, as passed by the trial court is harsh, he has every right to feel so, but try telling that to the victims of the bomb explosion or surviving members of the deceased's' family. The families of the dead and wounded, expect justice, and deserve justice. These are the considerations the trial court had the task of weighing, with the provisions of the relevant laws in mind
The trial court before passing the sentence in this case took precious time; to not only appraise the circumstances that led to the conviction and sentence, but also the situation of the appellant.
At pages 309 to 310 of the record of appeal, the trial court had this to say in its general appraisal of the case before passing sentence:
I have taken into consideration, the allocutus made by learned defense counsel on behalf of the convict. I must confess again that if it lies within my power, by reason that the convict elected to be tiled separately was agood and substantial reason why this court should be lenient in terms of the punishment prescribed. But I am also mindful of the harm which the incidents of the 1st October 2010 did to the victims especially the 12 innocent lives...cut short by the explosions. If and only if the convict had reported the planned attack to any persons prescribed in section 40 (b) of the Criminal Code Act, perhaps, those people may still be alive..."
The offense for which the appellant was convicted is very heinous, one should never lose sight of that; but in spite of that, the trial court did not get carried away, it had time to consider the consequences of the sentence on the appellant. This explains the parole option granted to the appellant; this to my mind is not only an admirable sign of remorse, but proper exercise of judicial discretion.
The trial court was surely influenced by the evidence before it, as well as the surrounding circumstances in passing the sentence of life on the appellant; I do not for one moment believe the issue here is whether the trial court can impose a lighter sentence, of course he could, if he chose to exercise his discretion in that direction, but he chose not to.
I did say earlier that the question whether the sentence is harsh or not is subjective, because it depends on who is at the receiving end; this is because at the end of the day, when all is said and done, neither life imprisonment nor any sentence can be regarded as sufficient punishment for an action that leads to loss of innocent lives in this grand scale, notwithstanding the fact that the accused had remained in prison custody, married with children or chose not to waste precious time by opting for a se7arate trial from other co-accused.
6 The trial court exercised its discretion judiciously, in the circumstances, and discretion properly exercised by a trial court, will not be lightly interfered with by this court, even if this court is of the view that it might have exercised the discretion differently. It would have been different, if the trial or court exercised its discretion under a wrong principle or mistake of law or under a misapprehension of the facts took into account irrelevant or extraneous matters or excluded relevant matters thereby giving rise to injustice; fortunately this is not the case here; see KUDORO V. ALAKA (1956) SCNLR 255 AT 257; SOLANKE V. AJIBOLA (1968) NSCC VOL. 5 PAGE 40 AT 44 - 46, (1968) 1 ALL NLR 46; AWANI V. EREJUWA (1976) 11 Sc 307
The sentence of life imprisonment passed on the appellant is neither harsh nor excessive in this case, and the trial court did indeed exercise its discretion judiciously and judicially; accordingly this issue too is resolved in favour of the respondent against the appellant.
Having resolved both issues for determination in favour of the respondent, against the appellant; this appeal fails for lack of merit, it is accordingly dismissed; judgment of the trial court is hereby affirmed.
Delivered by ABUBAKAR DATII YAHAYA, JCA
I have read in draft, the leading judgment of my learned brother Mustapha JCA just delivered. With the credible evidence led, it was inevitable for the trial court to make a finding, that the appellant knew of the heinous plot before it was executed and that he did not report same to the persons he ought to have reported to. The trial court reached the correct conclusion and meted out the appropriate sentence. Nothing has been usefully urged before us, to interfere either with the conclusion or with the sentence.
In the result, this appeal lacks merit and I too dismiss it. .
Delivered by TANI YUSUF HASSAN, JCA)
I read before now the judgment delivered by my learned brother, Mohammed Mustapha, 3CA, with whose reasoning's and conclusion I entirely agree with, that the appeal being unmeritorious is also dismissed by me.