ALHAJI LASISI APAMADARI AND ANOR v. THE
STATE
CITATION: (1996) LPELR-21461(CA)
In The Court of Appeal
(Ibadan Judicial Division)
On Monday, the 2nd day of December, 1996
Suit No: CA/I/69/90
Before Their Lordships
ALOMA MARIAM MUKHTAR
MURITALA AREMU OKUNOLA
DALHATU ADAMU
Justice, Court of Appeal
Justice, Court of Appeal
Justice, Court of Appeal
Between
ALHAJI LASISI
APAMADARI AND
ANOR
Appellant
And
THE STATE
Respondent
RATIO DECIDENDI
1
1 WORDS AND PHRASES - "BONA FIDE
AND "GOOD FAITH": Definition of "bona
fide" and "good faith"
"For the purpose of liability or responsibility
under the law, the terms bona fide and good
faith are used synonymously - see the
definition of "bona fide" given in Blacks Law
Dictionary 6th Edition, page 117. According to
the definition of the term it also connotes that
the act or omission was done "innocently".
The definition reads:- "Bona fide In or with
good faith, honestly, openly and sincerely
without deceit or fraud etc ....Innocently....."
"Good faith" is also defined in the dictionary
inter alia to mean the "absence of malice and
the absence of design to defraud or to seek an
unconscionable advantage........" (see page
693) (Italics mine)" Per ADAMU, J.C.A. (Pp.
12-13, paras. F-C) - read in context
2 EVIDENCE - BURDEN OF PROOF: On whom
lies the burden of proof in a criminal matter
"It is trite that under our adversary system of
criminal justice an accused person is
presumed to be innocent until he is proved
guilty by the prosecution and the burden is on
the prosecution throughout the trial. See
sections 137(2) and J40 of Evidence Act
1990; Queen v. Ogunbiyi (1961) 1 All NLR
453; Umeh v. The Stare (1973) 2 SC 9;
Uhunnu v. State (1977) 3 SC; Karimu v.
2
State (1989) 1 NWLR (Pt. 96.) 124; and
Okechukwu v. State (1993) 9 NWLR (Pt. 315)
78." Per ADAMU, J.C.A. (P. 18, paras. A-C) read in context
3 EVIDENCE - BURDEN OF PROOF: Exception
to the general burden of proof placed on the
prosecution
"The general burden or onus of proof placed
on the prosecution is however not without
statutory exceptions. Where an accused
person seeks to rely on a particular defence
provided by the law, it is his duty to establish
by evidence the set of facts constituting that
defence. Thus the onus placed on the
prosecution can be discharged by it once it
establishes the essential ingredients (or
elements of the offence charged). See
S.140(1) of the Evidence Act (cap 62) Laws of
the Federation of Nigeria 1990. The provision
of the section is as follows: "140(1) where a
person is accused of any offence the burden of
proving the existence of circumstances
bringing the case within any exception or
exemption from or qualification to the
operation of the law creating the offence with
which he is charged is upon such person." Per
ADAMU, J.C.A. (Pp. 18-19, paras. D-A) - read
in context
3
4 COURT - DISCRETION OF THE COURT:
Whether the court has the discretion in
imposing the type or extent of punishment
provided by the law
"In sentencing the accused person, the trial
Judge has a discretion in imposing the type or
extent of punishment provided by the law
against an accused person who has been
convicted on the offence charged. The
discretion like other types of discretions must
be exercised judicially and judiciously - see
section 382(1) of Criminal Procedure Law of
Oyo State, Okechukwu v. State (1993) 9
NWLR (Pt.315) 78 at p.94 -95; Udoye v. The
State (1967) NMLR 197; and Ebhohimien v.
State (1996) 1 NWLR (Pt. 422) 44. " Per
ADAMU, J.C.A. (Pp. 21-22, paras. F-A) - read
in context
5 COURT - POWER OF COURT: Whether the
court can impose fine where the statute or
section of the law creating or defining the
offence expressly prescribes that there is no
option of fine
"The position of the law is that where the
statute or section of the law creating or
defining the offence expressly prescribes that
there is no option of fine, the court cannot
impose fine. Where however the statute is
silent, even if it only mentions imprisonment
and is silent on the fine, the courts have
4
discretion to impose a fine in lieu of
imprisonment See section 382(1) of C.P.L.
Oyo State (supra). In passing its sentence on
a convicted accused person, the trial court
takes into consideration many factors as
addressed to it by the defence counsel in the
process of a plea for leniency (or allocutus)."
Per ADAMU, J.C.A. (P. 22, paras. B-D) - read
in context
6 LAND LAW - SURVEY PLAN: Whether a
survey plan can be used to prove an area of
land in issue
"In law where an area of land is in issue its
boundaries must be strictly proved and
ascertained and where possible with a survey
plan - see Atanda v. Ajani (1989) 3 NWLR
(Pt.111) 511 and Onu v. Agu (1996) 5 NWLR
(Pt. 451) 652." Per ADAMU, J.C.A. (P. 20,
paras. C-D) - read in context
7 LAND LAW - TRESPASS TO LAND: Whether
a person in actual possession of land has a
right to exclude others (including the true
owner of the land) from trespassing into the
land
"...in law a person in actual possession of land
has a right to exclude others (including the
true owner of the land) from trespassing into
the land and he can successfully maintain an
action in trespass against them. See Ibrahim
5
v. Mohammed (1996) 3 NWLR (Pt.437) 453 at
469-470; I. Olagbemiro v. Ajagungbade III
(1990) 3 NWLR (Pt. 136) 37; Oluwi v. Eniola
(1967) NMLR 339." Per ADAMU, J.C.A. (P. 14,
paras. B-C) - read in context
8 LAND LAW - TRESPASS TO LAND:
Conditions for any person who committed an
offence against property to enjoy the benefit
of the defence
"Thus the two ingredients or conditions for
any person who committed an offence against
property to enjoy the benefit of the defence
under the section are: (a) The claim of right
under which the accused person acted was a
lawful claim, (b) the accused person acted
honestly and innocently without any malice or
ulterior motive." Per ADAMU, J.C.A. (P. 15,
paras. B-C) - read in context
ADAMU,
J.C.A.
(Delivering
the
Leading
Judgment): The appellants along with 7 other
accused persons were jointly charged before the
chief Magistrate Court Oshogbo on 16/11/83 on a
six count charge for various offences including
conspiracy, wilful and unlawful damage to
properties and threat to life. All the accused
persons (including the appellants) pleaded not
guilty to the charge. They were granted bail by the
6
Chief Magistrate who also tried them summarily. At
the trial, the prosecution called 8 witnesses while
the 1st accused (now deceased) gave evidence in
defence of himself and other accused persons. At
the end of the trial and in a judgment delivered on
21/11/84, all the accused persons (including the
appellants) were convicted by the Chief Magistrate
and sentenced to jail terms. Being dissatisfied with
the judgment, the appellant and 5 other accused
persons appealed to the High Court, Oshogbo. The
appeal was heard by the High Court which
delivered its judgment on 16/7/87. In the said
judgment the High Court affirmed the convictions
and sentences passed on all the appellants on
counts 3 and 4 while their conviction on count 2
under section 451(1)(a) of the Criminal Code were
quashed but substituted with convictions under
section 451 of the same code. They were each
sentenced to 2 years IHL. The appellants have now
appealed to this Court against the judgment of the
appellate High Court.
The prosecution's case against the appellants is
that on 6/11/83 the appellants together with 7
other accused persons wilfully and unlawfully
damaged a three storey building, three bungalow
buildings, one armoury and the fence surrounding
Woleola Estate, Oshogbo, property of one Alhaji
Jimoh Lawal Woleola.
The appellants' case at the trial court was that by a
deed of transfer (tendered as exhibit 13) the land
upon which the properties mentioned above were
erected was conveyed to the 1st accused
7
person/appellant (now deceased) by the said Alhaji
Jimoh Lawal Woleola. The appellants both at the
trial court and at the appellate High Court raised
the defence of bona fide claim of right under
section 23 of the Criminal Code which was rejected
by the two courts. Hence they brought this appeal.
When the appeal came up for hearing, the
appellants' counsel informed this Court that only
the 4th and 6th appellants whose names are given
above (i.e. Alhaji Lasisi Apamadari and Ewuola
Agboola) are the only appellants now before this
Court in the appeal. The 1st appellant, Busari
Olawepo Lawal is now deceased while the other
appellants in the case were not granted bail
pending appeal and they have since finished
serving their jail terms. Thus only the 4th and 6th
appellants whose names are given above are now
the only appellants before this Court.
This point was noted by this court which also noted
an earlier application to substitute the names of the
two appellants in place of all the appellants in the
case which was granted on 17/2/94. Also at the
hearing of appeal on 5/11/96, the respondents did
not appear though there was a proof of service on
them of the hearing notice. They also did not file
any brief of argument after service of appellant's
brief on them since 8/3/93. The learned counsel for
the appellant Mr. Ogunwole after drawing our
attention to these facts urged us to proceed with
the hearing of the appeal in default of the
respondents' appearance and or filing their brief.
We considered the oral application by the
8
appellants' counsel and upon ascertaining that the
respondents were served with the appellants' brief
since 1993 and they failed to file their brief, we
granted the application under order 6 rule 9 of the
Court of Appeal Rules 1981 (as amended). The
appellants' counsel then adopted their brief of
argument filed on 5/3/93. The appeal was thus
heard in default of respondents' brief.
The appellants filed 5 (five) grounds of appeal with
their notice (see pages 229-231 of the record). In
the appellant brief the following 3 (three) issues for
determination are also formulated:ISSUES FOR DETERMINATION
"3.01 Whether under section 23 of the Criminal
Code the appellants are entitled to an acquittal of
the charge brought against them.
3.02 Whether the burden of proof is on the 1st
appellant that all the land in exhibit 12 has been
transferred to him.
3.03 Whether the learned appellate Judge of the
High Court was right in giving the appellants the
maximum punishment provided under section 451
of the Criminal Code without considering the option
of fine."
The appellants' brief also states that issue No. 3.01
relates to grounds 2 and 3; issue no. 3.02 relates
to ground I, while issue no. 3.03 covers ground 4.
On the 1st issue the main thrust of the argument in
the appellants' brief is that both the trial Magistrate
and the appellate High Court did not give proper
consideration of the defence of bona fide claim of
right (under s. 23 of Criminal Code) which the
9
appellants (particularly the 1st appellant) put up
before the said Courts. It is pointed out that the 1st
appellant who gave evidence at the trial raised the
defence in his testimony (at page 69 of the record)
when he stated that:"As a matter of fact, the houses were built on my
land. I came from the U.K. in 1972 to buy the land,
I bought the land through my said senior brother
(P.W.1)."
Apart from the above evidence given by the 1st
appellant, the brief states, he also tendered
Exhibits 12, 13, 14, 15, 16, 16A, 17, 17A and 18 to
show that he is the owner of the land on which the
buildings demolished stood. It is submitted that by
the evidence of 1st appellant and the exhibits
tendered, the defence of a bona fide claim of right
was established. Reference is also made in the brief
to both provisions of sections 23 and 451 of the
Criminal Code where both the offence of wilful
damage to property and the defence of a bona fide
claim of right in an offence relating to property are
defined. Section 23 of Criminal Code provides that:
"A person is not criminally responsible, as for an
offence relating to property, for an act done or
omitted to be done by him with respect to any
property in the exercise of an honest claim of right
and without intention to defraud."
Section 451 of Criminal Code on the other hand
states as follows:
"451. Any person who wifully and unlawfully
destroys or damages any property is guilty of an
offence, which unless otherwise stated, is a
10
misdemeanour, and is liable if no other punishment
is provided to imprisonment for two years."
It is contended that from the above definition of the
offence under section 451 of Criminal Code, the
operative words are "unwilfully" and unlawfully"
and it is submitted that once an accused person can
show that he is entitled to the defence of bona fide
claim of right under section 23 of the Criminal
Code, the operative word "wilfully" and "unlawfully"
which are the mens rea in the offence under
section 451 are thereby negatived - see Ohonhamu
v. C.O.P (1990) 6 NWLR (Pt. 155) 201. It is also
submitted that the phrase "an honest claim of
right" under section 23 of the Criminal Code
presupposes that (a) an accused person was acting in the exercise of
his legal right in relation to the property damaged;
and
(b) an accused person was acting under a supposed
exercise of a legal right.
An accused person who acted under the above two
situations is entitled under section 23 to a complete
defence to any charge relating to property. The
cases of Nwakire v. C.O.P. (1992) 5 NWLR (Pt. 241)
289 at p.303; Dahierin & Anor v. The State (1968)
1 All NLR 138; I.G.P. v. Emeozo & Ors (1957)
WRNLR 213 and Ibeziako v. State (1989) 1 CLRN
123 are cited in the brief in support of the above
submission. It is also stated in the brief that in the
present case at the trial court, apart from the
testimony of 1st appellant and the exhibits
tendered in support of his claim of ownership of the
11
damaged property, the 1st P.W. whose property
was said to have been damaged by the appellants
also gave evidence admitting that he sold or
transferred part of his land in Woleola estate to the
1st appellant (see page 11 lines 17-23 of the
record). Finally we are urged in the appellants'
brief to hold that in the above circumstances of the
case the defence under s. 23 of the Criminal Code
should have availed the 1st appellant and a verdict
of not guilty should have been entered in favour of
all the appellants on counts 2, 3, and 4.
I have duly considered the above submissions in
the appellants' brief. I am however unable to accept
the said submissions in so far as they relate to the
mental element (mens rea) of the offence created
or defined in section 451 of the Criminal Code.
While I agree that the terms "wilfully" and
"unlawfully" as they appear in the provision refer to
the state of mind (mental element) of the accused
person I do not however accept the proposition of
the appellant in his submission that from the
accepted facts of this case such mental element
(mens rea) has been negatived. In my view the
provision of section 23 of the code which affords a
defence of bona fide claim of right only applies to a
person who acted or omitted to act in respect of the
property if he has done so or omitted to do so in
good faith. For the purpose of liability or
responsibility under the law, the terms bona fide
and good faith are used synonymously - see the
definition of "bona fide" given in Blacks Law
Dictionary 6th Edition, page 117. According to the
12
definition of the term it also connotes that the act
or omission was done "innocently". The definition
reads:"Bona fide In or with good faith, honestly, openly
and sincerely without deceit or fraud etc
....Innocently....."
"Good faith" is also defined in the dictionary inter
alia to mean the "absence of malice and the
absence of design to defraud or to seek an
unconscionable advantage........" (see page 693)
()From the above definition of the two terms bona
fide and good faith and even going by the two
suppositions made in the appellants' brief - it
cannot be said that the appellants are entitled to
avail themselves of the defence provided in section
23 of the Criminal Code. According to the appellant,
an honest claim of right under the section
presupposes that:- "
(a) an accused person was acting in the exercise of
his legal right, and
(b) an accused person was acting under a supposed
legal right see Nwakire v. C.O.P (supra).
Even if the above propositions are accepted the
question that arises is whether the actions of the
accused persons in the present case are covered
under any of the above two situations. The simple
answer to the first situation is or should be in the
negative. The mere fact that part of the land upon
which the properties damaged were erected was
owned or purchased by the appellant does not
entitle him to forcibly enter the buildings and
destroy them. In my view the action of the
13
appellants was illegal and amounted to taking the
law into their hands by their forcible entry and
damage or destruction to the property which was
then in possession of P.W.1. On this point even if it
is accepted that the 1st appellant was the true
owner of the land, he has no right of entry into it
as it was then in the possession of P.W.1. I must
state that in law a person in actual possession of
land has a right to exclude others (including the
true owner of the land) from trespassing into the
land and he can successfully maintain an action in
trespass against them. See Ibrahim v. Mohammed
(1996) 3 NWLR (Pt.437) 453 at 469-470; I.
Olagbemiro v. Ajagungbade III (1990) 3 NWLR (Pt.
136) 37; Oluwi v. Eniola (1967) NMLR 339.Thus
the appellants entry into the property was illegal
and their demolition of the said property was a
criminal act and a wanton disregard to the rights of
others. When the appellants claimed to be
exercising their right and they entered and
destroyed the building of P.W.1 they did not do so
through the due process of law. Their acts were
consequently illegal and unlawful (or wilful as used
in section 451). It is pertinent here to recall the
jurisprudential concept that wherever there is right
there is also a corresponding duty. In the present
case apart from their duty towards P.W.I (i.e. in not
trespassing upon and damaging his properties) they
also have a public duty to be law abiding citizen
and to maintain peace and order in the society.
When this fundamental duty of the appellants is
weighed against their purported claim of right
14
(which had not been declared through due process
of law) the wilfulness or unlawfulness of their
action will be glaringly seen. Consequently the
appellants cannot be helped by the defence under
section 23 of Criminal Code. The defence therein
only assists an innocent person. Thus the two
ingredients or conditions for any person who
committed an offence against property to enjoy the
benefit of the defence under the section are:
(a) The claim of right under which the accused
person acted was a lawful claim,
(b) the accused person acted honestly and
innocently without any malice or ulterior motive.On
the second situation provided in the appellants'
brief namely that the defence under S. 23 will avail
an accused person even where he acted in exercise
of a supposed claim of legal right, I think this must
necessarily depend on the social standard or status
of the accused person concerned. This is also an
objective rather than subjective consideration or
test based on the perception of a reasonable
person. Accordingly, based on the admitted facts in
the present case, the appellants who are city
dwellers and not brought up from a rural or
primitive background will be expected by a
reasonable man to go to the law courts and pursue
their claim of right to the properties in question
against P.W.1. It should be noted that the 1st
appellant is of high social or educational standard
that he was living in United Kingdom (see his
testimony as quoted in the brief). It is also possible
since both the 1st appellant and P.W.1 are
15
brothers, any dispute between them can be settled
at a family meeting. In view of all the above, I am
of a firm view that the 1st appellant in the
circumstances and facts of the present case acted
wilfully in bad faith and with intent to gain
unconscionable advantage against P.W.1. The
defence of bona fide claim of right does not
therefore avail the said 1st appellant. As for the
other appellants (including the 4th and 6th
appellants who are pursuing this appeal) their role
in the case was only as thugs or supporters (alias
area boys) to the 1st appellant. They were not
claiming any ownership or right (actual or
supposed) in the property destroyed but they only
participated in the damage or destruction of the
property. Consequently their action was more
dastardly than that of the 1st appellant. They
cannot therefore join the 1st appellant in enjoying
the defence under s.23 of Criminal Code. Their
conduct if properly assessed can amount to no less
than a Criminal mischief simpliciter which can carry
a heavier punishment and they would have no
defence to rely upon had they been prosecuted for
that offence. It would then no longer be a
misdemeanor but felony with higher degree of
moral turpitude than that of the 1st appellant. The
1st issue in the appellants' brief together with the
corresponding grounds of appeal have no merit.
The issue must therefore be resolved against the
appellant.
On the 2nd issue the main submission of the
appellant is against the holding of the learned trial
16
Judge at p.217 of the record that although exhibit
12 shows that all the parcel of land had been
conveyed to 1st appellant and P.W.1 had admitted
that he had transferred a portion of the land to 1st
appellant, it was then the duty of the 1st appellant
to adduce evidence to show the exact area of the
land in dispute. It is argued in the brief that the
burden of proof in the present case was on the
prosecution rather than an accused person to show
the absence of a claim of right. Reference is made
in the brief to the evidence of P.W.1 in which he
stated that he had transferred a portion of the land
to 1st appellant. Also reference is made to the 1st
appellant's claim that the portion of land
transferred to him was the one in which the
properties damaged stood. It is submitted in the
brief that on the authority of Nwakire v. State
(supra) it is the duty of the prosecution to prove
that the damaged properties did not fall within the
area transferred to the appellant. It is stated that
in the present case the prosecution failed to prove
that aspect. The case of Iheziako v. The State
(supra) is also cited in support of the submission.
Finally it is pointed out that since the prosecution
in the present case failed to prove the absence of a
claim of right made bona fide by the appellant, the
decision of the learned trial Judge in shifting that
burden on 1st appellant was therefore wrong and
occasioned a miscarriage of justice. We are urged
in the brief to hold so.
While I accept and agree with the first part of the
appellants' submission on the issue of burden of
17
proof which is always placed on the prosecution to
prove the charge against the accused person
beyond reasonable doubt, I find it rather difficult to
accept the appellant's other submission on the 2nd
issue. It is trite that under our adversary system of
criminal justice an accused person is presumed to
be innocent until he is proved guilty by the
prosecution and the burden is on the prosecution
throughout the trial. See sections 137(2) and 140
of Evidence Act 1990; Queen v. Ogunbiyi (1961) 1
All NLR 453; Umeh v. The Stare (1973) 2 SC 9;
Uhunnu v. State (1977) 3 SC; Karimu v. State
(1989) 1 NWLR (Pt. 96.) 124; and Okechukwu v.
State (1993) 9 NWLR (Pt. 315) 78.
The general burden or onus of proof placed on the
prosecution is however not without statutory
exceptions. Where an accused person seeks to rely
on a particular defence provided by the law, it is his
duty to establish by evidence the set of facts
constituting that defence. Thus the onus placed on
the prosecution can be discharged by it once it
establishes the essential ingredients (or elements
of the offence charged). See S.140(1) of the
Evidence Act (cap 62) Laws of the Federation of
Nigeria 1990. The provision of the section is as
follows:
"140(1) where a person is accused of any offence
the
burden
of
proving
the
existence
of
circumstances bringing the case within any
exception or exemption from or qualification to the
operation of the law creating the offence with which
18
he is charged is upon such person."The above
provision is based on the principle of criminal law
that every person is responsible for his action or
omissions. In the present case the 1st appellant
who claimed to be acting along with other
appellants in exercise of his honest claim of right
against P.W.1 in respect of the properties destroyed
had a duty after the prosecution has established its
case of wilful damage to property, to adduce
evidence to show that he acted honestly and in
good faith. Even exhibit 12 upon which the 1st
appellant heavily relied upon is more in favour of
P.W.1 because it is a deed of conveyance to the
P.W.1. Thus the 1st appellant did not adduce any
evidence similar to exhibit 12 at the trial to show
that he had a rightful claim on the properties in
question. He merely relied on the said exhibit 12
and the testimony of P.W.1 who agreed that he had
transferred a parcel of the property in dispute to
the 1st appellant. The said 1st appellant can rely on
the evidence of the prosecutions as he has done.
See Karimu v. State (supra). However the evidence
so adduced by the prosecution on the issue was not
conclusive in showing the innocent or good faith of
the 1st appellant in his action. It was not clear
whether properties damaged stood on the parcel of
and transferred to the appellant or not. In any case
even assuming that the said properties were on the
land transferred to the 1st appellant the question
that arises in determining the availability of the
defence under section 23 of Criminal Code to the
said appellant is does that give right to the 1st
19
appellant to enter and destroy the said properties
without recourse to the law court? The answer is
clearly in the negative. This has negatived the good
faith and honesty of the appellant in the case as
envisaged in section 23 of the Criminal Code. The
passage from the judgment of the learned trial
Judge quoted in the appellants' brief is therefore
only stating the obvious and the right principle of
law rather than misplacing the burden of proof as
asserted in the brief. It must be noted that the 1st
appellant described the land transferred to him by
P.W.1 and even gave its area as 117.8 acres of
land. Thus he has raised the issue of the area of
the land he bought from the P.W.1 in his defence.
In law where an area of land is in issue its
boundaries must be strictly proved and ascertained
and where possible with a survey plan - see Atanda
v. Ajani (1989) 3 NWLR (Pt.111) 511 and Onu v.
Agu (1996) 5 NWLR (Pt. 451) 652.
In the present case which is criminal rather than
civil and which can require a higher standard of
proof the learned trial Judge was even more liberal
in demanding that the appellant should tender only
the deed of transfer in his favour (rather than both
the deed and the survey plan). The passage quoted
in the appellants' brief where the court made
pronouncement in the case of Ibeziako v. The State
(supra at p.135) is not in conflict with the holding
of the learned trial Judge as the court in that case
also emphasized on the honesty of the claim of the
person making a bona fide claim of right in respect
of wilful damage against property. In the result of
20
my consideration of the 2nd issue in the appellants'
brief, it must also be resolved against the
appellant.
The 3rd issue is on the appellants complain against
the sentence passed on the appellants by the
learned trial Judge. The complain is that section
451 under which the appellants were convicted
provides a maximum sentence of two years term of
imprisonment. It is argued in the brief that the
learned trial Judge failed to consider that the
appellants are first offenders and to give them an
option of fine. It is also contended that the offence
under s.451 is a misdemeanour. The power of the
learned trial Judge in giving an option of fine is said
in the brief to be in section 17 of the Criminal Code
of Oyo State. It argued that bearing in mind the
antecedents of the appellants' case the appellate
High Court Judge should have exercised his
discretion judiciously and judicially by giving the
appellants an option of fine. The case of Queen v.
Eyo & Ors (1962) 1 All NLR where the Supreme
Court considered some mitigating factors is cited in
support of the submission. Finally it is submitted
that the failure of the appellate Judge to give an
option of fine to the appellants had occasioned a
miscarriage of justice.
In sentencing the accused person, the trial Judge
has a discretion in imposing the type or extent of
punishment provided by the law against an accused
person who has been convicted on the offence
charged. The discretion like other types of
discretions must be exercised judicially and
21
judiciously - see section 382(1) of Criminal
Procedure Law of Oyo State, Okechukwu v. State
(1993) 9 NWLR (Pt.315) 78 at p.94 -95; Udoye v.
The State (1967) NMLR 197; and Ebhohimien v.
State (1996) 1 NWLR (Pt. 422) 44.
The position of the law is that where the statute or
section of the law creating or defining the offence
expressly prescribes that there is no option of fine,
the court cannot impose fine. Where however the
statute is silent, even if it only mentions
imprisonment and is silent on the fine, the courts
have discretion to impose a fine in lieu of
imprisonment See section 382(1) of C.P.L. Oyo
State (supra). In passing its sentence on a
convicted accused person, the trial court takes into
consideration many factors as addressed to it by
the defence counsel in the process of a plea for
leniency (or allocutus). In the present case, there
was such a plea for leniency by the learned counsel
representing the appellants at the trial Magistrate
Court (see pages 100-102). Also it was found by
the learned Magistrate that none of the accused
persons had a previous conviction against him and
it is not in dispute that the learned Magistrate had
the discretion to give option of fine to the convicted
accused persons including the appellants. However,
the learned Magistrate in sentencing the accused
persons gave his reason for imposing the maximum
punishment on them (at page 102 of the record) as
follows:
"Before passing the sentence, I have put into
22
consideration the fact that each accused is a first
offender
I
have
considered............I
have
considered more seriously the serious nature of this
crime and the circumstances of the case.............
but somebody was injured and he and others who
fell with the demolished building narrowly escaped
death . ................. .I have watched the
demeanours of the accused persons especially the
1st accused in the witness box, the accused persons
have shown no sign of remorse. The accused
persons are callous and wicked individuals who
should be kept away at least for a season from any
decent society.......... "
The learned magistrate finally sentenced the
appellants to imprisonment terms without option of
fine in order to deter others from committing
similar crime. In my view since the learned trial
Magistrate had duly considered the plea of the
appellants for leniency and the fact that they were
1st offenders, his sentence on them based on the
seriousness of their offence and the other reasons
given is in order. Thus he has exercised the
discretion judiciously by taking all relevant matters
into consideration. It would be otherwise if he failed
to give due consideration to the plea and to the fact
that the appellants were first offenders. In the
circumstances, the reasons given by the learned
Magistrate for imposing his sentence on the
appellants based on the circumstances of the case
cannot be faulted The 3rd issue in the appellants'
brief and its relevant ground of appeal (ground 4)
have therefore also failed.
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Finally with all the issues formulated in the
appellants' brief (and their relevant grounds)
having failed the appeal of 4th and 6th appellants
must also fail. In the result I hereby dismiss the
appeal while affirming the conviction and sentence
passed on the appellants (particularly 4th and 6th
appellants) by the trial Magistrate Court. I also
hereby affirm the decision of the learned Judge of
the lower court in the appeal before him from the
judgment of the trial Magistrate Court.
MUKHTAR, J.C.A.: I have read in advance the lead
judgment delivered by my learned brother Adamu,
J.C.A. and I am in full agreement with him that the
appellants cannot avail themselves of the defence
under section 23 of the Criminal Code. I also
dismiss the appeal.
OKUNOLA, J.C.A.: I agree.
Appeal dismissed.
Appearances
R.O. Ogunwole, Esq (with him, L.
For Appellant
Owolabi Esq)
Respondent absent and
unrepresented
For
Respondent
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