Blessing Toyin Omokuwajo V. Federal Republic Of Nigeria (2013)
LAWGLOBAL HUB Lead Judgment Report
JOHN AFOLABI FABIYI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Sokoto Division (court below) delivered on 10th November, 2010. Therein, the conviction of the appellant by the Federal High Court, Sokoto (trial court) for offences under Sections 15(a) and 16 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 (as amended) was affirmed. The court below, in affirming the conviction of the appellant, also varied her sentence, suo motu, by increasing it from two years in respect of each count to run concurrently from the date of the appellant’s arrest as ordered by the trial court to 7 and 5 years respectively, also to run concurrently from the date of the appellant’s arrest which was on 21/02/2010.
The facts leading to this appeal are not in dispute. The appellant was arrested by Officers of the Nigerian Immigration Service (Anti-Human Trafficking Unit) on February 21, 2010 at Yauri in Kebbi State of Nigeria. She was handed over to Officers of the National Agency for the Prohibition of Traffic in Persons and Other Related Matters (NAPTIP) on February 23, 2010.
The appellant was thereafter arraigned on a six (6) count charge before the trial court on 16th March, 2010 for offences touching on human trafficking contrary to Sections 15(a) and 16 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003 (as amended). As extant on page 25 of the records, the appellant, on 16th March, 2010 pleaded guilty to all the six counts after the court noted at page 25 of the record thus;- ‘Charge read to accused who understand it and pleaded as follow.’ She was consequently summarily found guilty, convicted and sentenced to two (2) years imprisonment on each of the six counts contained in the charge; with an order that sentence should run concurrently with effect from the date of the appellant’s arrest.
The appellant felt dissatisfied and appealed to the court below which dismissed the appeal as lacking merit. The conviction was affirmed. The learned justices of the court below, suo motu, varied the appellant’s sentence to seven (7) and five (5) years imprisonment to run concurrently from the date of the appellant’s arrest (21-2-2010).
The appellant felt unhappy with the stance of the court below and appealed to this court vide a Notice of Appeal dated 10th November, 2010 which was accompanied by seven (7) grounds of appeal.
On 10th January, 2013 when the appeal was heard, learned counsel on each side of the divide adopted and relied on the brief of argument filed on behalf of his/her client. The appellant’s counsel urged that the appeal be allowed. The respondent’s counsel, on the other hand, urged that the appeal be dismissed.
The five (5) issues formulated for the due determination of the appeal by the appellant, as contained in pages 4-5 of her brief of argument, are as follows:-
“(a) Whether the learned justices of the Court of Appeal were right in law to have affirmed the conviction and sentence of the appellant by the trial court when there was nothing in the records to show strict compliance with Section 215 of the Criminal Procedure Act. (Relates to ground 6 of the ground of appeal).
(b) Were the learned justices of the Court of Appeal correct in law to have affirmed the conviction and sentence of the appellant by the trial court by way of summary trial when there was failure to explain the consequence of a plea of guilty to the appellant (Relates to ground 5 of the grounds of appeal)
(c) Whether the learned justices of the Court of Appeal were right to have suo motu raised the inadequacy of sentence and conviction of the appellant and varying same in the absence of a cross appeal and opportunity to address the court below by the parties (Relates to grounds 2 & 3 of the grounds of appeal).
(d) Whether the learned justices of the Court of Appeal can be said to have given the appellant a fair hearing throughout the duration of the appeal (sic) heard and determined when it failed to determine the issues formulated by the appellant or respondent in their respective briefs of argument nor formulated any issue for its determination before arriving at its decision (Relates to grounds 1 & 4 of the grounds of appeal).
(e) Was the decision of the learned justices of the Court of Appeal correct in law (This relates to ground 7 of the grounds of appeal).”
On behalf of the respondent, the two issues decoded for a proper determination of the appeal read as follows:-
“(i) Whether the Court of Appeal rightly upheld the arraignment of the appellant as being proper and in accordance with Section 215 of the Criminal Procedure Act and Section 36(6) of the 1999 Constitution
(ii) Whether the Court of Appeal rightly increased the appellant’s sentence suo motu.”
I need to say it here that the issues formulated on behalf of the appellant appear prolix and repetitive; in the main. The two (2) issues duly crafted on behalf of the respondent are crisp and to the point as they contain in a very precise manner the complaints strenuously advanced by the appellant. She did not need to employ a legion of issues most of which are hardly comprehensive, to prop her complaints in the appeal.
On behalf of the appellant, learned counsel on issues (a), (b), (d) and (e) submitted that the short summary trial which was employed by the trial court is governed by Section 215 of the Criminal Procedure Act. Learned counsel observed the requirements of the law have been judicially considered and endorsed in many decisions of this court. He cited the cases of Sunday Kajubo v. The State (1988) 19 NSCC (Pt.1) page 475; Godwin Josiah v. The State (1985) 7 NWLR (Pt.1) 125; (1985) 1 SC 406 at 416; Ogbodo Beni v. The State (1990) 7 NWLR (Pt.160) 113; Sanmabo v. The State (1969) NMLR 314; Akpiri Ewe v. The State (1992) 6 NWLR (Pt.246) 147 and Okon v. The State (1991) 8 NWLR (Pt.210) 424.
Learned counsel for the appellant observed that the provision of the stated Section 215 of the Criminal Procedure Act cannot be read in isolation. He maintained that for it to have an effective meaning, it must be read along with Section 36(6) (a) of the Constitution of the Federal Republic of Nigeria, 1999. Learned counsel observed that the stated Sections of the Act and the Constitution demand that at the trial of the appellant, the charge against her should be read over and explained to her to the satisfaction of the court by an official of the court. Thereafter, the accused shall be called upon to plead instantly thereto. Learned counsel submitted that it is mandatory that the trial court must explain the charges to the accused and ensure that she understood it before taking a plea from her. He maintained that the records of the trial court did not show that it caused the charges to be read and explained to the appellant by an officer of the court. He felt that such failure materially affected the trial of the appellant before the trial court and rendered same null and void. He asserted that the court below wrongly affirmed the stance of the trial court.
Learned counsel further maintained that the trial court did not explain the consequence of the plea of guilty to the appellant and that the court below was wrong to have affirmed the conviction and sentence of the appellant by the trial court. He contended that the court below did not give the appellant a fair hearing.
Learned counsel further submitted that there was nothing before the court below in the records to show that there were other ascertainable facts consistent with the statement of the appellant which have been established. He contended that there was no independent corroborative evidence to show that the statement of the appellant – Exhibit ‘C’ was true so as to warrant conviction being based on it. He cited the case of Olalekan v. The State (2002) FWLR (pt.91) 1631.
Learned counsel for the appellant strenuously urged that issues (a), (b), (d) and (e) be resolved in favour of the appellant.
Learned counsel to the respondent, with adequate precision, rightly in my view, answered the points raked up on behalf of the appellant in respondent’s issue 1. She submitted that all the requirements for a valid arraignment, as dictated by Section 215 of the criminal procedure Act and Section 36(6) (a) of the Constitution of the Federal Republic of Nigeria 1999, were complied with as rightly indicated, in summary, by the learned trial judge at page 25 of the record, as follows:- ‘Charge read to the accused who understood it and pleaded as follows.’ She cited the cases of Toby v. The State (2001) 10 NWLR (pt.720) 23; Effiom v. The state (1995) 1 NWLR (Pt.373) 507; and Adeniji v. The State (2001) FWLR (Pt.57) 809.
Learned counsel submitted that no provision exists in the Criminal Procedure Act requiring that a note should be made in the record of proceedings of the name, designation or other particulars of the person who read and explained the charge to the accused or for the judge to make a note that the reading and explanation of the charge to the accused was done to the judge’s satisfaction. She observed that to state otherwise would be tantamount to stretching the provisions of the law to the point of absurdity. She cited the cases of Amako v. The State (1995) 6 NWLR (pt.399) 11 at 26; Adeniji v. The state (2001) 13 NWLR (Pt.730) 375 at 390.
Learned counsel observed that the record of the trial court at page 23 indicates clearly that the appellant speaks the English Language which is the language of the courts in Nigeria. She submitted that where an accused person speaks or understands the English Language, such dispenses with the need for an interpreter. She again referred to Adeniji v. The State (supra) at page 390 and further cited the case of Durwode v. The State (2000) 15 NWLR (Pt.691) 467 at page 480.
Learned counsel further observed that the appellant made confessional statement – Exhibit C to the officials of NAPTIP wherein she admitted the offence for which she was arraigned. The trial judge at page 25 of the records depicted his satisfaction that the accused understood the charge and pleaded thereto. Learned counsel asserted that it would be stretching the provisions of the law to the point of absurdity and impeaching the integrity of the trial judge to suggest that the judge must record that the charge was explained to the accused to his satisfaction before taking his plea.
Learned counsel opined that the attempt by the appellant to invalidate her conviction on the basis of the absence in the record of the language in which the charge was read, the officer of the court who read the charge, the sworn interpreter as well as lack of explanation of the consequences of pleading guilty to the offences is little more than a cynical attempt to employ technicalities as a means for subverting substantive justice. She referred to the case of Solola v. The State (2005) 2 NWLR (Pt.937) 460 at page 483.
Learned counsel further observed that the phrase ‘satisfaction of the court’ under Section 215 of the Criminal Procedure Act is subjective; not objective and the statement ‘understood it’ as contained in page 25 of the record is a confirmation of the fulfillment of the requirements of Section 215 of the Criminal Procedure Act that the court should be satisfied with the plea of the accused person. She cited the case of Ogunye v. The State (1999) 5 NWLR (Pt.604) 548 at page 567.
Learned counsel further opined that the court below duly treated the issue touching on compliance with the dictates of Section 215 of the Criminal Procedure Act and buttressed same by reproducing the appellant’s cautioned statement in extenso. Learned counsel maintained that the contention that the court below failed to determine or pronounce on the issues formulated before it is not supported by the facts as well as the record of the court below and same equates to ‘a pathetic attempt to create an arguable issue on appeal where none exists.’
Learned counsel finally, on the issue, maintained that the appellant was clearly given an opportunity to be heard by the court below and she was indeed heard. She submitted that to turn around and cling to fair hearing as a basis of setting aside her conviction is merely a desperate gambit by an appellant who has no valid or meritorious grounds of appeal. She cited the case of Adebayo v. The Attorney-General Ogun State (2008) Vol.4 M.J.S.C. 89 at 96. She urged that issue 1 be resolved in the affirmative.
Section 215 of the Criminal Procedure Act provides as follows:-
“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officers of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”
Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999 reads as follows:-
“(6) Every person who is charged with a criminal offence shall be entitled to (a) be informed promptly in the language that he understands and in detail of the nature of the offence.”
From a combined reading of the above provisions of the applicable laws, this court has set out the requirements for a valid arraignment of an accused person in the decisions in Toby v. The State (supra) Effiom v. The State (supra) as well as Adeniji v. The State (supra). The requirements are as follows:-
- The accused must be placed before the court unfettered unless the court shall see cause otherwise to order.
- The charge or information must be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court.
- It must be read and explained to the accused in the language he understands.
- The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith.
It should be stated right away that no provision exists in Section 215 of the Criminal Procedure Act which requires that a note should be made in the record of proceedings of the name, designation or other particulars of the official of the court who read and explained the charge to the accused person in the language understood by the accused or requiring the judge to make a note of same to depict that it was done to his satisfaction. To state otherwise would be stretching the provisions of the law to the point of absurdity. See Amako v. The State (supra) at page 26;
Effiom v. The State (supra); Akpan v. The State (1992) 6 NWLR (Pt.248) 439.
It has been variously held that the requirements for arraignment must be satisfied and nothing should be left to speculation. After all, the object of the Constitution is to safeguard the interest and fair trial to those arraigned before the court. See: Kajubo v. The State (supra); Erekanure v. The State (1993) 5 NWLR (Pt.294) 385 and Eyorokoromo v. The State (1979) 6 – 9 SC 3. There is nothing in the law which says that the trial judge must depict it in the record that he is satisfied that the charge has been read over and explained to the accused and he pleaded before the case proceeded to trial it can be presumed that everything was regularly done and that the judge was satisfied. The test with regard to this requirement is subjective; not objective. See Ogunye v. The State (supra) at page 567. In the main, to capitalise on the absence of a record of the explanation of the charge is to cling to unnecessary technicality to defeat the ends of justice.
One should state the obvious that where an accused person speaks English Language which is the official language of Superior Courts of Record in Nigeria, point relating to interpretation of the charge is of no moment.
It is extant on page 23 of the record that it is recorded that the accused speaks ‘English.’ On page 25, the trial judge’s record reads – ‘Charge read to accused who understood it and pleaded as follows:-‘ The appellant was thereafter recorded as having pleaded ‘Guilty’ to counts 1 – 6 respectively. There was no complaint by the appellant to the court in the record that she did not understand the charges read to her. With respect to the appellant’s counsel, submissions made to the contrary rest on nothing.
Since it is extant in the record that the charge was read over to the appellant who understood it and subsequently pleaded to it, one can safely presume that same was done to the satisfaction of the trial judge and in compliance with the provisions of Section 215 of the Criminal Procedure Act and Section 36(6) (a) of the 1999 Constitution. I agree with the learned counsel to the respondent that the attempt by the appellant to invalidate her conviction on the basis of the absence in the record of the language in which the charge was read, the officer of the court who read same, the sworn interpreter as well as lack of explanation of the consequences of pleading guilty to the offences is little more than a cynical attempt to employ technicalities as a means of subverting substantive justice. See Solola v. The State (supra) at page 483.
It must be noted here that the appellant’s counsel raised an obscure issue that the court below failed to consider the issue raised before it. Learned counsel for the appellant, who tried to criticize the mode of writing the judgment by the court below should appreciate that judgment writing is an art. Each judge employs his own style. In as much as all the desired attributes are contained in the judgment, it does not fall within the province of counsel to unnecessarily deride the mode of writing same. The court below duly treated the issue touching on compliance with the dictates of Section 215 of the Criminal Procedure Act and buttressed same by reproducing the appellant’s cautioned statement – Exhibit ‘C’ in extenso. I agree with the respondent’s counsel that the contention of the appellant that the court below failed to determine or pronounce on issues formulated before it, is not supported by the facts in the record of the court below. The appellant’s stance equates ‘to a pathetic attempt to create an arguable issue on appeal where none exists’.
Learned counsel for the appellant tried to cling tenaciously to fair hearing principle. He maintained that the appellant was not given an opportunity to be heard. With respect to consideration of due arraignment by the court below, the appellant was given an opportunity of hearing. The brief of argument filed on her behalf was considered along with her cautioned statement wherein she made a clean breadth admission of the offences charged. I agree with the respondent’s counsel that to turn around and cling to fair hearing as a basis for setting aside her conviction is merely a desperate gambit by the appellant who has no valid or meritorious ground of appeal on this score. The case of Adebayo v. The Attorney-General Ogun State (supra) at page 96 cited by learned counsel to the respondent herein is apt. This is not a good case where fair hearing provisions of the Constitution can be invoked. It is not available just for the asking. It should only be called into action at appropriate times.
In short, issues (a) and (b) and other ancillary issues raked up by the appellant in respect of arraignment under Section 215 of the Criminal Procedure Act and Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999; duly covered by issue 1 of the respondent are resolved against the appellant. The respondent was right when it maintained unequivocally that the appellant was properly arraigned; duly tried and convicted.
The next issue for consideration is issue ‘C’ decoded by the appellant. It is the equivalent of the respondent’s issue (ii) which is ‘whether the Court of Appeal rightly increased the appellant’s sentence suo motu’
Arguing this issue, learned counsel for the appellant observed that none of the grounds of appeal filed by the appellant before the court below raised the issue of the adequacy or inadequacy of the sentence passed by the trial court. Learned counsel maintained that the grounds of appeal only questioned the non-conformity with the provisions of the law relating to the summary trial of the appellant, culminating to her conviction and sentence.
Learned counsel further observed that there was no cross appeal filed by the respondent relating to the adequacy or inadequacy of the sentence passed on the appellant. As well, no application was made by the respondent to vary the sentence passed on the appellant.
Learned counsel maintained that it is evident that the issue of variation of sentence was raised for the first time by the court below. He opined that in law, a court should not embark on an exercise in excess of what it is called upon to determine between the parties. The case of American International Insurance Co. v. Ceekay Traders (1981) 5 SC 8 at Page 110 was cited.
Learned counsel further submitted that it is not open to an appellate court to raise an issue which was not raised by either of the parties at the trial court or on appeal. He cited the cases of Board of Customs & Excise v. Barau (1982) 10 SC 48 at 106; and Kuti v. Balogun (1978) 1 SC 53 AT 59 – 60.
Learned counsel further submitted that it has long been held by this court that to permit an appellate court to increase a sentence of a person who submitted to summary trial is to set the right of appeal as a trap for an unwary convict. Learned counsel cited the case of Aremu v. Inspector General of Police (1965) 1 ANLR 217 at 218. He maintained that same was exactly what the court below did as it gave the appellant an unsolicited “Greek Love or Offer.”
Learned counsel also submitted that an appeal court would not be justified to substitute a sentence it would have considered right to pass on an accused were it to have tried the accused at first instance. An appellate court is not at liberty to merely substitute its own exercise of discretion for the discretion already exercised by the trial court. The cases of Ekpo v. The State (1982) 6 SC 22 at 41 and Kikiri v. Uli & 2 Ors. (1970) MSNLR 229 at 232 were cited.
Learned counsel observed that what is more disturbing in this appeal is the fact that even though the issue of inadequacy of sentence was suo motu raised by the court below, no opportunity was given to counsel to address that court on same. He cited the cases of Ajao v. Ashiru & 3 Ors. (1973) 1 SC 23 and Ogundele v. Agiri (2009) 18 NWLR (Pt.1173) 219 at 248 – 249. It was observed that the procedure to suo motu raise the issue of inadequacy of sentence was grossly irregular and outside the provisions of Order 4 Rules 1(4) & (5), 4 and 19 of the Court of Appeal Rules. Learned counsel cited the case of Atanda & Ors. v. Lakanmi (1973) 11 SC 23 at 40. He opined that where an appellate court intends to make an order different from the reliefs sought in the Notice of Appeal, both sides should be asked by the court to address on the order proposed as a court should confine itself to the materials before it and not make a case for any of the parties where none exists. Learned counsel cited that case of Olufeagba & Ors. v. Abdulraheem Ors. (2009) 18 NWLR (Pt.1173) 384 at 446.
Learned counsel urged the court to resolve the issue in favour of the appellant.
Learned counsel for the respondent submitted that the court below, under Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2007, has wide powers to, inter alia, affirm or vary the decision of a trial court on any issue which it considers worthy in any appeal, irrespective of whether a notice of appeal or respondent notice exists, raising such issue before the court. The cases of Yaro v. The State (2007) 18 NWLR (Pt.1066) 215 and Odeh v. FRN (2008) All FWLR (Pt.424) 1590 were cited.
Learned counsel observed that ordinarily, an appellate court will not interfere with a sentence imposed by a trial court, unless it is manifestly excessive in the circumstances or wrong in principle. She cited the case of Adeyeye & Anor. v. The state (1968) 1 All NLR 239 at 241.
Learned counsel felt that even if the court below did not have the power to consider the issue of the adequacy of the appellant’s sentence suo motu, she felt that contrary to the position of the appellant, it is not in all cases where a court raises an issue suo motu that the decision will be liable to be reversed on appeal. She cited the case of S.P.D.C Nig. Ltd. v. X.M. Fed. Ltd. (2006) 16 NWLR (Pt.1004) 189.
Learned counsel observed that the appellant has failed to show how the issue taken suo motu by the court below led to a miscarriage of justice against her. She felt that the court below acted in the right direction.
Let me start with that which appears obvious and gradually progress to fairly intricate areas of the law on this issue.
Ordinarily, a court should not to set up for parties a case different from the one set up by the parties themselves. If it is otherwise, the court may be accused of jumping into the arena of conflict to support one of the parties and may be rubbished in the process. See: Oniah v. Onyiah (1989) 1 NWLR (Pt.99) 514; Ojo-Osagie v. Adonri (1994) 6 NWLR (Pt.349) 131; Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566 and Akinterinwa v. Oladunjoye (2000) 5 NWLR (Pt.695) 92.
It is generally accepted that a court should not award to a party that which was not claimed. This is because a court is not a charitable organisation and the judge who personifies it is not a Father Christmas. See: Egonu v. Egonu (1978) 11 – 12 SC 111 at 133; Babatunde Ajayi v. Texaco Nig. Ltd. (1978) 9 – 10 SC 1 at 27; Etim Ekpenyong v. Inyang Nyong (1975) 2 SC 71 at 80; and Edebiri v. Edebiri (1997) 4 SCNJ 177; (1997) 4 NWLR (Pt.498) 165.
A court of appeal should not embark on an exercise in excess of what it is called upon to determine between the parties. It cannot raise an issue which was not raised by either of the parties at the trial court or on appeal. The cases of Board of Customs & Excise v. Barau (supra) at 106 and Kuti v. Balogun (supra) at page 59, both cited by the appellant’s counsel, are of moment.
As observed by the appellant’s counsel, this court has held, a long time ago, that to permit an appellate court to increase a sentence of a person who submitted to summary trial is to set the right of appeal as a trap for an unwary convict as held in Aremu v. IGP (supra) at page 218. Such will be giving the appellant an unsolicited ‘Greek Love or Offer.’ Equally, an appellate court would not be justified to substitute a sentence it would consider right to pass on an accused were it to have tried the accused at first instance. This is because an appellate court is not at liberty to merely substitute its own exercise of discretion for the discretion already exercised by the trial court. The cases of Ekpo v. The State (supra) at page 41 and Kikiri v. Uli & 2 Ors. (supra) at page 232; both cited by the appellant’s counsel are, no doubt, apposite.
It is basic that where the Court of Appeal decides to raise a vital issue touching on the citizen’s liberty as herein suo motu, an opportunity should be given to the parties to address the court on same. This is because it relates to the realm of fair hearing as encapsulated in Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria.
See: Ajao v. Ashiru & 3 Ors. (supra) at page 23; Ogundele v. Agiri (supra) at 248.
It should be stressed that where an appellate court intends to make an order different from the reliefs sought in the Notice of Appeal, both sides should be asked to address the court on the order proposed as a court should confine itself to the materials before it and not make a case for any of the parties where none exists. Again, the case of Olufeagba & Ors. v. Abdulraheem & Ors. (supra) at page 446, cited by the appellant’s counsel, is of moment.
It is equally basic that ordinarily, an appellate court will not interfere with a sentence imposed by a trial court, unless it is manifestly excessive in the circumstances or wrong in principle. As stated in Adeyeye & Anor. v. The State (1968) 1 All NLR 239 at 241 per Ademola, CJN (of blessed memory).
“It is only when a sentence appears to err in 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.”
It must be noted that the power of the court below to act under its rules to wit: Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2007 is not in doubt. But the power to so act is not open-ended. When an issue that touched on further incarceration of the appellant and by extension, her right to fair hearing was raised suo motu, the appellant should have been heard before an order was dished out on her.
It should be noted that on page 26 of the record of appeal, the trial court, in passing sentence on appellant, had this to say –
“Convict was arraigned in court for charges under Section 15 (a) and 16 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003.
Convict pleaded guilty to offence of procuring Nwakaego Dafe, Princess Helen Monday and Peace Udoh for prostitution. Convict also confessed that she organised foreign travel which promote prostitution of the said victims.
Convict pleaded for leniency and prosecution informed the court that convict is a first offender.
I have taken the foregoing into consideration and sentence you Blessing Toyin Omokuwajo to two years imprisonment on counts 1, 2, 3, 4, 5 and 6 of the charge.
Sentence is to run concurrently and it is with effect from date of your arrest.”
The above, to my mind, was duly arrived at by the trial judge who exercised his discretion judicially and judiciously as well. He complied with the right norms touching on adequate sentencing policy. The appellant was a first offender who pleaded guilty and did not waste the time of the court.
The court below failed to consider the above salient factors. It decided to raise the issue of inadequacy of the sentence suo motu, possibly at their conference; to peremptorily increase the sentence to 7 years and 5 years imprisonment to run concurrently from the date of arrest of the appellant. The court below, no doubt, increased the sentence passed on the appellant who submitted to summary trial and thereby ‘set the right of appeal as a trap for an unwary convict.’ This was the position of things in Aremu v. IGP (supra) at page 218 cited by the appellant’s counsel. The Court below gave the appellant an unsolicited ‘Greek Love or Offer.’ In the main, all the complaints heaped against the stance posed by the court below on behalf of the appellant should be, and are hereby sustained. The issue is resolved in favour of the appellant.
In conclusion, I allow the appeal in part and it is accordingly ordered that the conviction of the appellant by the trial court which was affirmed by the court below is hereby confirmed. The order made suo motu by the court below whereby it wrongly increased the sentence of the appellant is set aside. The sentence passed on the appellant by the trial court is restored forthwith.
SC.29/2011