They do say the law is an ass, but should it be so?
Can a trial court judge rewrite the law on rape sentence?
This girl’s name was Iruoghene Ogodo, an 11-year-old, and the Appellant was Mr. Afor Lucky, on 7th April 2012 he sent her to buy ‘pure water’ (sachet water) for him, thereafter he lured her into his room and forcibly had sex with her. An innocent child; bleeding from a torn hymen and injured vaginal wall, as confirmed by PW3 (the chief medical officer). a girl at that age can’t, in our criminal corpus juris, give consent, as ordained in section 30 of the Criminal Code and a similar provision in section 39 of the Penal Code.
Mr Lucky was charged and arraigned at the Delta State High Court on one count charge of rape under section 358 of the criminal code Law of Delta state, 2006. He didn’t deem it appropriate to plead guilty in order to expedite the proceeding, perhaps he felt he could get away with it. So he pleaded not guilty of course, like almost every defendant, and even raised alibi (claiming he wasn’t even there on 7th April 2012). Prosecution called Four Witnesses proving forceful penetration; PW3 satured the Virginal wall injury, ruling out other causes like bicycle riding as sheepishly claimed by the defendant to be a cause among the causes of virginal injury, he counter called two witnesses to establish his innocence. At this point, some questions are certainly inevitable. Would a trial judge, faced with such barbaric evidence against an 11-year-old, impose 5 years imprisonment with hard labor OR N300,000 fine? A girl that in law cannot give consent?After plea of allocutus, can mitigation rewrite life imprisonment under section 358 to 5 years imprisonment?
This is what happened in the case of LUCKY V. STATE (2016) 13 NWLR (Pt. 1528) 128.
The Delta State High Court, found him guilty as charged. After the plea of allocutus seeking for mitigation of his sentence, he was consequently given a sham sentence of 5 years with hard labour or N300,000 fine instead of life imprisonment. And the question was: does the trial judge actually rewrite the law? Because section 358 of the Criminal Code Law of Delta State, 2006, under which he was charged, provides for life imprisonment. What was his plea of allocutus about to warrant such mitigation? And if they were so compelling, can it be just to the victim and even de jure for them to be considered in such a magnitude offense? After all, justice is a three-way traffic.
Surprisingly, Mr Lucky protested, he was unhappy with even that leniency, and appeal to court of Appeal on 17th November 2014, the appeal was dismissed. The learned wise men called it ridiculous, however, they said their hands were tied since state didn’t cross-appeal, as such can’t temper with the sentence. Supreme Court in 2016 also affirmed the conviction; lamented the ‘contumacious violation’ of law, but resisted tampering with the sentence since no appeal was made against it by the state. Justices like Ngwuta, Okoro, Galadima JCS called it mockery, attack on justice, yet law is an ass.
I have read the case before, when I wrote my article titled: ‘Is the plea of Allocutus a right or a privilege in Nigerian criminal proceedings?’ but not meticulously like this. Upon reading it again today, I am not in total agreement with the decisions of the Court of Appeal and Supreme Court that they can’t temper with the sentence in the absence of the appeal. Can they really not invoke powers under sections 16 & 22 Court of Appeal Act and Supreme Court Act respectively to correct the error? I read the case over and over, erudite justices in pain, quoting Nafiu Rabiu v. State, but where then did they get the restraint from?On rape punishment? Section 358 provides: ‘any person who commits the offence of rape is liable to IMPRISONMENT FOR LIFE.’ No discretion, no option of fine.The above provision is clear and unambiguous, life for rape. In this case, where then did the trial court get 5 years from? Of course, I am not unaware of the position that pursuant to section 311 of ACJA (2015) Judges are enjoined to consider mitigating factors while sentencing, but can the said power be exercised in the offense of this magnitude considering even the circumstances of this case? Or should we safely say courts upheld an ass?
In my humble view, both the Court of Appeal and Supreme Court could have invoked their general powers pursuant to sections 16 and 22 of the Court of Appeal Act and Supreme Court Act respectively to correct the error. The sections respectively give them jurisdiction of the court of first instance; that’s to act as if the case was initiated or prosecuted before them to correct or amend, inter alia, errors; specifically this case being errors of law, awherend any other order the lower court could have made. This enormous power was given judicial recognition and duly applied in the celebrated case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 427, per Niki Tobi, JSC( as he then was) who delivered the lead judgment,affirmed the act of the trial court in granting reliefs sought in the substantive matter even though those reliefs were not part of the grounds of appeal before the Court. The case reached the Court of Appeal by way of an interlocutory appeal, solely to determine whether the trial court had jurisdiction to entertain the matter. Upon resolving that issue in the affirmative, the Court of Appeal refused to remit the case back to the trial court and proceeded to determine the substantive suit, relying on section 16 of the Court of Appeal Act. This approach was endorsed by Niki Tobi, JSC, and the majority of the Justices of the Supreme Court, with the exception of Oguntade, JSC,(As he then was) who dissented.
For emphasis, section 16 of the Court of Appeal Act provides as follows:
‘The Court of Appeal may, from time to time, MAKE ANY ORDER NECESSARY FOR DETERMINING THE REAL QUESTION IN CONTROVERSY in the appeal, and may AMEND ANY DEFECT OR ERROR in the record of appeal, and may DIRECT the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may MAKE AN INTERIM ORDER or grant any injunction which the court below is authorised to make or grant and may DIRECT ANY NECESSARY INQUIRIES or accounts to be made or taken and GENERALLY SHALL HAVE FULL JURISDICTION OVER THE WHOLE PROCEEDINGS AS IF THE PROCEEDINGS HAD BEEN INSTITUTED IN THE COURT OF APPEAL AS COURT OF FIRST INSTANCE and may RE-HEAR THE CASE in whole or in part or may REMIT it to the court below for the purpose of such re-hearing or may GIVE SUCH OTHER DIRECTIONS as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in that court’s appellate jurisdiction, ORDER THE CASE TO BE RE-HEARD by a court of competent jurisdiction.’[Capitalizations mine,for emphasis]
Section 22 of the Supreme Court Act contains similar and equally expansive provisions, empowering the Supreme Court to exercise the jurisdiction of a court of first instance where justice so demands. So no harm will be done if I refuse to qoute it.
Hey, you, yes you!Hold back your dagger, I am merely saying this in the light of the wordings of the sections and the judicial pronouncement. I hope I am right. It wouldn’t be terrible even if I am wrong, but I believe the courts could have fallen back to the provisions to ensure the ungodly and ungrateful perpetrator of the heinous act faces the wrath of the law accordingly. And on that; I say no more.
Isah Bala Garba is a level 300 student from Faculty of Law, Bayero University, Kano. He can be reached for comments or corrections on: LinkedIn: https://www.linkedin.com/in/isah-bala-garba-301983276 Facebook: https://www.facebook.com/isah.bala.garba
isahbalagarba05@gmail.com or on 08100129131