Court name
Court of Appeal
Case number
L 233 of 2015

Modu v Federal Republic of Nigeria (L 233 of 2015) [2016] NGCA 49 (05 May 2016);

Law report citations
Media neutral citation
[2016] NGCA 49
 
 
In the Court of Appeal
Holden at Lagos

 

Between

Appellant

ALI MOHAMMED MODU

and

Respondent

FEDERAL REPUBLIC OF NIGERIA

 

Judgement

(DELIVERED BY YARGATA BYENCHIT NIMPAR)
    This is an appeal against the Judgment of the Federal High Court delivered on the 30th day of September, 2014 wherein HONOURABLE JUSTICE IBRAHIM N. BUBA found the Appellant guilty, convicted and sentenced him to varying terms of imprisonment which were to run consecutively.  The Appellant dissatisfied with the conviction and sentence filed a Notice of Appeal dated 23rd December, 2014, filed on the same day and setting out 2 grounds of appeal.  The Appellant sought the following relief:
“To allow the appeal, set aside the judgment of the Court below convicting the Appellant for offences under the Terrorism (Prevention) (Amendment) Act 2013; quashing the conviction and sentences of terms of imprisonment, for offences for which the Appellant was not convicted and discharging and acquiring the Appellant.”    
The facts leading to this appeal are that the Appellant along three others were arraigned before the court below for the offences of conspiracy to commit a felony, i.e. terrorism, concealing information about acts of terrorism, committing acts preparatory to or in furtherance of acts of terrorism and being in possession of prohibited firearms and ammunition. Initially about 17 persons were arraigned but along the way 13 others were discharged and trial proceeded against 4 amongst whom was the Appellant.  The charge sheet reads as follows:

COUNT 1:
That you ALI MOHAMMED MODU ‘M’, ADAMU ALI KARUMI ‘M’, AND IBRAHIM USMAN ALI ‘M’, on or about the 21st day of March, 2013 at plot 5, Road 69, Lekki phase 1, Housing Estate, Lagos, No. 24, Oyegbemi Street, Ijora Oloye, Apapa, Lagos and at a bungalow house (unnumbered) on Oyegbemi street, behind Celestial Church, Ijora Oloye, Apapa, Lagos, within the jurisdiction of this Honourable Court did conspire amongst yourselves to commit a felony, to wit: acts of terrorism by having in your possession explosive substances, namely: -   (a) three (3) packs of explosive construction pipes; (b) fifteen (15) detonators; (c) eleven (11) AK – 47 rifle magazines loaded with 30 rounds of live ammunitions each; (d) two hundred (200) rounds of 7.62mm live ammunitions; (e) one (1) AK – 47 rifle; (f) two AK – 47 rifle magazines with 3 rounds of live ammunitions each; (g) two (2) suit cases containing  explosives; (h) one (1) water container containing explosives; (i) one (1) bag containing explosives; (j) fourteen (14) explosive canisters; (k) one (1) tin of chemical; (l) one (1) plastic drum containing explosives; (m) one (1) HP Laptop; (n) five (5) Nokia handsets and (o) one (1) red Volkswagen Golf Car, with Registration Number, SMK 427 AZ (Lagos), meant to transport the explosives and other items to the place or places of terrorism and thereby committed an offence contrary to section 17 of the Terrorism (prevention) (Amendment) Act, 2013 and punishable under section 17 (b) of the same Act.
 
COUNT 2:
That you ALI MOHAMMED MODU ‘M’, ADAMU ALI KARUMI ‘M’, AND IBRAHIM USMAN ALI ‘M’, on or about the 21st day of March 2013, at plot 5, Road 69, Lekki phase 1, Housing Estate, Lagos, No. 24, Oyegbemi Street, Ijora Oloye, Apapa, Lagos and at a bungalow house (unnumbered) on Oyegbemi Street, behind Celestial Church, Ijora Oloye, Apapa, Lagos within the jurisdiction of this Honourable Court did knowingly conceal information about acts of terrorism by keeping in your possession and hiding explosive substances, to wit: (a) three (3) packs of explosive construction pipes; (b) fifteen (15) detonators; (c) eleven (11) AK – 47 rifle magazines loaded with 30 rounds of live ammunitions each; (d) two hundred (200) rounds of 7.62mm live ammunitions; (e) one (1) AK – 47 rifle; (f) two AK – 47 rifle magazines with 3 rounds of live ammunitions each; (g) two (2) suit cases containing  explosives; (h) one (1) water container containing explosives; (i) one (1) bag containing explosives; (j) fourteen (14) explosive canisters; (k) one (1) tin of chemical; (l) one (1) plastic drum containing explosives; (m) one (1) HP Laptop; (n) five (5) Nokia handsets and (o) one (1) red Volkswagen Golf Car, with Registration Number, SMK 427 AZ (Lagos), meant to transport the explosives and other items to the place or places of terrorism and thereby committed an offence contrary to section 8 (1) of the same Act.  

COUNT 3:
That you ALI MOHAMMED MODU ‘M’, ADAMU ALI KARUMI ‘M’, AND IBRAHIM USMAN ALI ‘M’, on or about the 21st day of March 2013, at plot 5, Road 69, Lekki phase 1, Housing Estate, Lagos, No. 24, Oyegbemi Street, Ijora Oloye, Apapa, Lagos and at a bungalow house (unnumbered) on Oyegbemi Street, behind Celestial Church, Ijora Oloye, Apapa, Lagos within the jurisdiction of this Honourable Court knowingly did acts preparatory to or in furtherance of acts of terrorism by having in your possession explosive substances, to wit: (a) three (3) packs of explosive construction pipes; (b) fifteen (15) detonators; (c) eleven (11) AK – 47 rifle magazines loaded with 30 rounds of live ammunitions each; (d) two hundred (200) rounds of 7.62mm live ammunitions; (e) one (1) AK – 47 rifle; (f) two AK – 47 rifle magazines with 3 rounds of live ammunitions each; (g) two (2) suit cases containing  explosives; (h) one (1) water container containing explosives; (i) one (1) bag containing explosives; (j) fourteen (14) explosive canisters; (k) one (1) tin of chemical; (l) one (1) plastic drum containing explosives; (m) one (1) HP Laptop; (n) five (5) Nokia handsets and (o) one (1) red Volkswagen Golf Car, with Registration Number, SMK 427 AZ (Lagos), meant to transport the explosives and other items to the place or places of terrorism and thereby committed an offence contrary to section 1 (2) (b) of the Terrorism (Prevention) (Amendment) Act, 2013 and punishable under the same Section of the Act.

COUNT 5:
That you ALI MOHAMMED MODU ‘M’, ADAMU ALI KARUMI ‘M’, AND IBRAHIM USMAN ALI ‘M’ MOHAMMED A. MOHAMMED ‘M’, BALA HARUNA ‘M’, IDRIS ALI ‘M’, MOHAMMED MURTALA ‘M’ MUSTAPHA DAURA ALHASSAN ‘M’, ABBA DUGUNI ‘M’, SANNI ADAMU ‘M’ DANJUMA YAHAYA ‘M’, MUSA AUDU BALA ‘M’, BALA MATI DAURA ‘M’, FARUK HARUNA ‘M’, ABDULAZIZ ZULADAINI ‘M’ and KADRI MUHAMMED on or about the 21st day of March, 2013 at Plot 5 and Plot 22, respectively, Road 69, Lekki phase 1, Housing Estate, Lagos, No. 24, Oyegbemi Street, Ijora Oloye, Apapa, Lagos and at a bungalow house (unnumbered) on Oyegbemi street, behind Celestial Church, Ijora Oloye, Apapa, Lagos within the jurisdiction of this Honourable Court did conspire amongst yourselves to commit a felony, to wit: by having in your possession or control some prohibited firearms without a license and thereby committed an offence contrary to section 516 of the Criminal Code Act, Cap c. 38, Laws of the Federation of Nigeria, 2004 and punishable under the same section of the Act.
The Respondent called evidence, six witnesses testified and tendered 34 exhibits in its case against the Appellant while the Appellant testified for himself. At the end of trial, the court found Appellant guilty, convicted and sentenced him thus this appeal.
The Appellant’s brief of arguments dated 14th April, 2015 filed on the same date was settled by Nwuke C. H. of Gracean Solicitors. It was adopted at the hearing of this appeal. The Respondent’s brief settled by Ade Ipaye, is dated 27th May, 2015 and filed on the 5th day of June, 2015 but deemed as properly filed and served on the 12/2/16.
The Appellant distilled 2 issues for determination as follows;
1.    Whether the learned trial Judge was right when he sentenced the Appellant for offences and charges for which the Appellant was not convicted
2.    Whether the learned trial Judge was right when he convicted the Appellant under the Terrorism (Prevention) Amendment Act 2013
The Respondent on his partalso formulated 2 issues for the determination by the Court in the following manner:
i.    Whether the learned trial judge was not right in convicting the Appellant under the Terrorism (Prevention) (Amendment) Act 2013?
ii.    Whether the constitutional right to personal liberty of the Appellant has been breached?
The issues formulated by the Appellant are more encompassing and therefore the court shall adopt issues formulated by the Appellant for resolution in this appeal.

ISSUE ONE:
Whether the learned trial Judge was right when he sentenced the Appellant for offences and charges for which the Appellant was not convicted
    It is the submission of the Appellant that since an accused can only be sentenced for an offence for which he was convicted, the trial Judge erred in sentencing the Appellant on six charges whereas the Appellant was only convicted on four counts, thus violating the Appellants constitutional rights to personal liberty. Appellant submitted that the sentences passed on him on count 6&7, offences for which he was never charged nor convicted, are unconstitutional and should be set aside.
    However, the Respondent submitted that it was mere inadvertence of the court to sentence the Appellant on the said count 6&7 but that despite the error, the Appellant’s right to personal liberty has not been breached since the sentences under counts 5, 6 & 7 run concurrently and the term of imprisonment on all the offences are unaffected by error.

RESOLUTION:
The Appellant challenges the decision of the learned trial judge sentencing him on counts 6 & 7 whereas the Appellant was only found guilty and convicted on counts 1, 2, 3& 5.  It is trite that a person cannot be sentenced or punished for an offence he was not tried and found guilty for. Clearly, from the records of appeal, the Appellant was never arraigned for the offences in counts 6 & 7, neither was he convicted of the said offences. The offences for which the Appellant was arraigned have been reproduced above while the trial judge found the Appellant guilty of the following offences:
i.     Conspiracy to commit a felony, to wit, acts of terrorism contrary to Section 17 and 17 (b) of the Terrorism (Prevention) (Amendment) Act, 2013.
ii.     Concealing information about acts of terrorism contrary to Section 8 (1) of the Terrorism (Prevention) (Amendment) Act, 2013
iii.     Committing acts preparatory to or in furtherance of acts of terrorism contrary to section 1 (2) (b) of the Terrorism (Prevention) (Amendment) Act, 2013; and
iv.    Conspiracy to commit a felony under section 516 of the Criminal Code Act
A valid arraignment is a condition precedent to a proper trial, conviction and sentence.  This condition is so paramount that both the 1999 Constitution and the Criminal Procedure Act makes provision for it. Section 215 of the Criminal Procedure Act, Cap 80, Laws of the Federation of Nigeria, 1990 reads as follows:
"215.    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 officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to services 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 therein."
This provision is reinforced in Section 36(6)(a) - (e) of the 1999 Constitution (as amended).  Here, the Appellant was never charged, arraigned nor convicted for the offences in counts 6 &7; consequently he cannot be punished for them.  It was a grave error on the part of the trial judge to sentence him as such.  In the case of USHIE V. THE STATE (2012) LPELR – 9705(CA), this Court per NDUKWE – ANYANWU, J.C.A. held as follows:
“A conviction is an act of a court of competent jurisdiction adjudging a person to be guilty of a punishable offence. There cannot be sentence without a conviction.”
Furthermore in the case of RAJIDAT KOLEOSHO v. THE FEDERAL REPUBLIC OF NIGERIA (2014) LPELR – 22929(CA), the court held:
“Normally, a conviction and sentence go hand in hand.  A 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.  The award of punishment implies in my view, that there has been a conviction.  It is my view therefore that the absence of a conviction before a sentence is more of irregularity.”
Consequently, despite the error made by the trial judge, the entire proceedings cannot be declared null and void.  This is because the Appellant was properly tried and sentenced on some counts on the charge sheet.  The issue is hereby resolved in favour of the Appellant and I set aside the sentence of the Appellant at the lower court on the said counts 6 & 7.  The offences on counts 1, 2, 3, 5 for which the Appellant was validly charged, arraigned, convicted and sentenced will remain binding on the Appellant.  More so, since the sentences are to run concurrently, the effect of quashing the sentences on counts 6 & 7 has no effect on the total length of sentence asthe total years of imprisonmentpronounced by the trial judge still remains 25 years term of imprisonment for the counts.

ISSUE TWO
Whether the learned trial Judge was right when he convicted the appellant under the Terrorism (Prevention) Amendment Act 2013.
The Appellant contended that the learned trial judge erred in convicting the Appellant under Terrorism (Prevention) Amendment Act 2013 as the offences for which he was charged was non – existent, cited GEORGE V FRN (2014) ALL FWLR (PT 718) 879 @ 894 – 895, OLIEH V FRN (2005) ALL FWLR (PT 281) 1746 @ 1765.  The Appellant further submitted that since the commencement date is not indicated on the face of the Terrorism Act, 2013, the omission would make the commencement date take effect from the 24th day of May, 2013, the date the Boko Haram Sect was proscribed as a terrorist organization and brought to the notice of the public/the Appellant who is to be affected by it. Consequently, that the Act cannot be applicable because the Appellant was arrested on the 21st of March, 2013 before the Act came into effect.  Furthermore, that the trial judge ought not to have relied on the Interpretation Act to find that the commencement date can begin from the date the Act was signed into law by the President because such reasoning can only be applicable to civil legislation conferring benefit and not a criminal legislation like the Terrorism (Prevention) Amendment Act which has heavy penalties, he relied on JOHNSON V SARGANT & SONS (1918) 1 KB 101.  According to the Appellant, he was convicted for actions which at the time of carrying them out did not constitute criminal offences, thereby, violating the Appellant’s constitutional right under S. 36 (8) of the 1999 constitution, relied on FRN V IFEGWU (2003) ALL FWLR (PT 167) 703.  He urged the court to resolve the issue in his favour.
    In reaction, the Respondent submitted that a statute comes into effect when it is duly passed by the National Assembly and assented to by the President, referred to AG BENDEL STATE V AG FEDERATION & ORS (1981) ALL NLR 85.  He therefore urged the court to invoke the provisions of S. 2 of the Interpretation Act and conclude that the applicable commencement date of the Terrorism Act is the date the President assented to it which is February 21, 2013 about a month before the date the Appellant was arrested. He submitted that the argument of the Appellant cannot hold sway because the Appellant was charged under the Terrorism Act already in force and its provisions relate to offences that are committed by “any person” and not necessarily a “proscribed organization”.  And that such offences for which the Appellant was charged with, do not require activation through the Terrorism (Prevention) (Proscription Order) Notice 2013.

RESOLUTION:
    The issue here is the appropriateness of the conviction under the Terrorism Act (Prevention) Amendment Act 2013 by the trial court.  The trial court had recourse to the Interpretation Act to determine when the Act came into operation.  The Act has no commencement date but had been assented to by the President on the 21st February, 2013. This was about a month before the arrest of the Appellant. The Appellant’s contention is that he cannot come under the provisions of the said Act. The basic question is how does an Act of the National Assembly come into effect or when is its commencement date?  Commencement simply means the beginning, the starting point, genesis, birth, kickoff, onset, initiation and dawning of a thing.  For a statute or legislation, the commencement or coming into force refers to a process by which legislation, regulation and such related matters or processes and legal instruments come in to effect.  Generally, it includes the publication of the legislation.  It is not therefore uncommon to find a legislation not mentioning its commencement date.  It can be made contingent to the happening of an event.  Occasionally, no date is mentioned and commencement is not made subject to an event or Act and when that happens, it is trite that recourse is had to the Interpretation Act.  The Appellant’s contention is that the trial judge was wrong to have relied on the Interpretation Act in determining when the Terrorism (Prevention) (Amendment) Act 2013 came into effect.
    It is the tradition and practice to refer to the Interpretation Act for a number of issues touching on Legislations or Statutes.  The applicability of the Interpretation Act is clearly spelt out in section 1 of the Act and it states as follows:
“1. This Act shall apply to the provisions of ANY enactment except in so far as the contrary intention appears in this Act or the enactment in question.”
(bold and capitalized letters are for emphasis).
The Interpretation Act applies to all legislations in the areas covered by the extant provisions.  Therefore, the Terrorism (Prevention) Amendment Act is a legislation that is covered by the Act.  It also provides for situations where a commencement date is not named in the legislation and how to decipher a commencement date.  Section 2 of the Act states:
“(1)    An Act is passed when the President assents to the Bill for the act whether or not the Act then comes into force.
(2)    Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, come into force-
(a)    In the case of an enactment contained in an Act of the national Assembly, on the day when the Act is passed;
(b)    In any other case, on the day when the enactment is made.
(3).    Where an enactment is expressed to come into force on a particular day, it shall be construed as coming into force immediately on the expiration of the previous day.”

It is clear from the above provision, that the Interpretation Act applies to all Statutes in this country and that where no commencement date is named in any legislation then such legislation comes into effect on the day the President assents to it.  It is not in contention that, in this case, the Terrorism (Prevention) Amendment Act was assented to on the 21st day of February 2013, a month before the Appellant was arrested.  Furthermore, the argument that the Terrorism (Prevention) Amendment Act came into effect on the 24th May, 2013 is not supported by evidence.  Since assent is done once, and it was on the 21st day of February, 2013, there cannot be another assent by the President on the 21st day of May, 2013.  The Act did not say so. The fact that the group known and called “BOKO HARAM” was proscribed on the said date did not mean the Act came into effect on the said day.  The proscription was made pursuant to an official gazette of the Federal Republic of Nigeria No. 34 of 24th May, 2013 titled Terrorism (Prevention) (Proscription Order) Notice.  Going by the title it is clear that it is not an Act but an order.  The two are not one and the same.  In any case, the Appellant was not prosecuted under the Proscription Notice but the Act.  The Appellant missed it in this regard.  Consequently, the trial judge was right to apply the Terrorism (Prevention) Amendment Act, 2013 to convict and sentence the Appellant.  It is the extant legislation on Terrorism and such related Acts.
The argument that the Interpretation Act applies to civil legislations only is not only untenable but flawed.  A legislation is a legislation and there is nothing in the Interpretation Act to indicate that it only applies to civil and not criminal legislations.  Besides, the Appellant’s counsel could not support the said submission with any authority.  When it comes to commencement date, the Interpretation Act is of general application. This issue is hereby resolved against the Appellant.
    In view of the fact that issue 1 is resolved in favour of the Appellant and issue 2 against him, this appeal is partly allowed.  The judgment of HON. JUSTICE IBRAHIM N. BUBA delivered on the 30th day of September, 2014 is hereby affirmed except the sentences passed on the Appellant on counts 6 & 7 which are hereby set aside.  The Appellant remains convicted and sentenced to a total of 25 years imprisonment on counts 1, 2, 3 and 5 of the charge sheet.
No order as to cost.   

JOSEPH SHAGBAOR IKYEGH, J.C.A.:   I agree with the judgment written by my learned brother, Yargata Byenchit Nimpar, J.C.A., which I had the benefit of reading in print.
From the facts in the printed record of the court below the appellant was not tried under a non-existent law. The appellant committed the offences upon which he was convicted under the Terrorism (Prevention) Amendment Act, 2013 which is an Act of the National Assembly that was assented to by the President of the Federal Republic of Nigeria on 21-02­13, the date the Act came into force in virtue of sections 1 and 2 of the Interpretation Act Cap 123 Laws of the Federation, 2004.
Save for counts 6 and 7 which are hereby quashed, I too find no merit in the appeal and hereby dismiss it and affirm the judgment of the court below (Buba, J.).
 
TIJJANI ABUBAKAR. JCA:    My learned brother Nimpar JCA granted me the privilege to read before now, the judgment just rendered. I totally agree with the reasoning and conclusion and adopt the entire judgment as my own, with nothing useful to add.

Counsel

CHIDINWUKE NNEKA UGWU
E. I. ALAKIJA (MRS) DPP
O. A. OLUGASA (MRS)
B. AKINSETE (MRS)