Sentence

Sentence is the last stage of the trial. If the court finds the accused guilty, it should either pass sentence on him or make an order – section 248 of the CPA, and the court may adjourn the case to some future day for this purpose.

For every distinct count of which the accused is convicted in a separate sentence should be imposed – Adesina v. Police (1956) 1 FSC 55, and until a sentence is passed, the trial of court of count has in effect not been completed by the court. So where the trial judge found the accused guilty on certain counts in the charge but failed to pass any sentence on any of these counts, the Supreme Court declined to uphold the convictions – Aigbe 7 Anor. v. The State (1976) 1 NMLR 184. If the sentence imposed for the distinct counts are imprisonment, they may be ordered to run currently.

The sentence which is passed must be recorded in the record of proceedings – Okpo v. The State (1972) 2 SC 26. A judge sitting at an Assizes (that is, a session of a court), may at any time during the same Assizes or Session, before a sentence passed him has been entered on the record, alter that sentence and substitute it for another – Oyediran & Ors. v. The Republic (1967) NMLR 122. Thereafter, that is, after the end of the Assizes or Session, he may not alter the sentence for he is functus officio, although in a proper case a Court of Appeal may reverse or amend the sentence.

POWER TO CONVICT FOR AN OFFENCE NOT EXPRESSLY CHARGED

As a general rule, an accused can only be found guilty in respect of the offence for which he is charged, that is, the offence to which he has pleaded not guilty, and in respect of which the onus is on the prosecution to establish the charge beyond reasonable doubt.

There are however provisions in the principal enactments which permit a magistrate or a judge to convict for such kindred offence for which the accused was not arraigned before the court, if the evidence adduced at the trial shows that the accused person committed an offence other than the offence charged. The justification for empowering the courts to convict an accused for offence not expressly charged has been stated as one of public policy in order to bring litigation to finality – Babalola v. The State (1989) 4 NWLR (Pt. 115) 264 at 285.

A judge or a magistrate can convict an accused person for an offence not expressly charged in the following circumstances –

1.      Where an accused is charged with a substantive or full offence, but the evidence establishes an attempt to commit the substantive or full offence, he may be convicted of the attempt, although the attempt was not expressly charged – section 169 of the CPA; section 219 of the CPC.

2.      Where an accused is charged with stealing, but the evidence established that he received the thing allegedly stolen knowing the same to have been stolen, he may be convicted for receiving stolen property – section 173 of the CPA.

3.      Where an accused is charged with any of the following offences – burglary, housebreaking, entering into a dwelling house, breaking into a building and committing a felony therein, breaking into a building with intent to commit a felony therein, breaking into a place of worship with intent to commit a felony. The accused may be convicted of any of these offences, if established by evidence, other than the offence charged – section 174(1) of the CPA.

4.      Where an accused is charged with stealing and the evidence established the offence of obtaining property by false pretences with intent to defraud, he may be convicted of obtaining property by false pretences with intent to defraud – section 174(2) of the CPA.

5.      Where an accused is charged with obtaining property by false pretences with intent to defraud, and the evidence established the offence of stealing, he may be convicted of stealing – section 174(3) of the CPA.

6.      Where an accused is charged with the offence of rape or defilement of a girl under the age of 11, and the evidence revealed an offence of unlawful carnal knowledge of an imbecile or an idiot or of the offence of indecent assault, he may be convicted of any such offence – section 175 of the CPA.

7.      Where an accused is charged with the murder of any child or of infanticide, and the evidence establishes the offence of concealment of birth of a child, he may be convicted of the offence of concealment of birth of a child – section 177 of the CPA.

8.      Where an accused is charged for the murder of her newly born child, and the evidence revealed the offence of infanticide, manslaughter or concealment of birth, she may be convicted of any such offence – section 178 of the CPA.

9.      Where an accused is charged with an offence, and there is a doubt as to which particular offence was committed by the accused, he may be convicted of any offence, other than the offence with which he was charged, if it appears from the evidence that he committed that offence – section 217 of the CPA.

10.  Where an accused is charged with a grave offence, he may be convicted of a lesser offence, where the offence charged consists of several particulars and a combination of some of the particulars constitutes a complete lesser offence, and if the lesser offence is proved by the evidence adduced and the remaining particulars are not proved – section 179(1) of the CPA; section 218 of the CPC.

11.  Where an accused is charged with an offence, and facts proved which reduce it to a lesser offence, he may be convicted of the lesser offence even though he was not expressly charged for the lesser offence – section 179(2) of the CPA; section 218(2) of the CPC.

TYPES OF PUNISHMENTS

These are also known as sentence or penalty. After an accused person is convicted for an offence, the magistrate or judge must pass a sentence on him.

The types of punishments are –

1.      Death sentence – section 367 of the CPA.

2.      Imprisonment – section 377 of the CPA.

3.      Fine – section 389 of the CPA.

4.      Caning – section 387 of the CPA.

5.      Haddi lashing – section 307 of the CPC.

6.      Forfeiture – section 359 of the CPC.

DEATH SENTENCE

The death sentence is the prescribed punishment for persons convicted of capital offences. It is only a High Court that can pass such a sentence as capital offences. They are not triable by the Magistrate Courts.

The death sentence is mandatory, therefore, the court does not have the discretion to impose any other penalty or a lesser penalty upon conviction.

When pronouncing a death sentence, the judge is robed in red gown and black cap. The punishment of death is inflicted by hanging the offender by the neck till he be dead – section 367 of the CPA, and the sentence is pronounced in this form –

‘The sentence of the court upon you is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul’. – section 367(2) of the CPA.

It is the duty of the judge under the law to state the statutory direction as to the manner of death. But where he merely pronounces it without indicating the manner it is to be carried out, death by hanging should be presumed as that is the only mode of execution known to the law – Gano v. The State (1969) 1 NMLR 317. In such a case, the omission is to be brought to the notice of the judge for rectification. He is not functus officio to correct the error himself – Dass v. The State (1971) 1 NMLR 304. In Ayodele Adetokunbo v. The State (1972) 2 SC 26; (1972) 1 All NLR 89, the trial judge after convicting the appellant for murder merely recorded “sentence of death pronounced”. The Court of Appeal, on the issue of sentence, thought that the trial judge did not pronounce the sentence of death in the prescribed form. In a further appeal to the Supreme Court, it was held that the sentence, as recorded by the trial judge, was sufficient to infer that he pronounced the sentence of death in the stipulated terms of the Criminal Procedure Act. The court however, opined that it was desirable that the sentence as provided for in the Act be recorded verbatim.

In Kalu v. The State (1998) 11-12 SC 14 at 49; (1998) 13 NWLR (Pt. 583) 531, the Supreme Court opined that the death sentence is lawful in Nigeria and cannot be regarded as a degrading or inhuman treatment.

Where a death sentence is pronounced, the judge who pronounces it issues under his hand and seal a certificate to the effect that such a sentence has been pronounced upon the accused named therein and such a certificate is a sufficient and full authority for the detention of the offender in safe custody until the sentence can be carried into effect.

EXCEPTIONS TO THE DEATH SENTENCE

There are two exceptions to death sentence, as it cannot be passed upon the following persons upon conviction of a capital offence –

1.      Pregnant women; and

2.      Young persons.

PREGNANT WOMEN

The sentence cannot be passed on a woman found to be pregnant at the time of conviction but in lieu of it, the woman should be sentenced to imprisonment for life – section 368(2) of the CPA; sections 270 and 300 of the CPC. Where, therefore, a woman is convicted of a capital offence alleges that she is pregnant or where the trial court convicts her thinks fit so to do, the court should, before passing sentence, first determine the question of whether or not she is pregnant – section 376(1) of the CPA; sections 271(1) and 300 of the CPC. The court should find her not pregnant unless it is satisfactorily and affirmatively proved that she is pregnant – section 376(2) of the CPA; section 271(4) of the CPC. If she is found not pregnant, the death sentence must be passed – section 376(3) of the CPA. But an appeal lies against such a finding and if the appeal court sets it aside, it will quash the death sentence and substitute therefore a sentence of imprisonment for life – section 376(4) of the CPA.

YOUNG PERSONS

The death sentence cannot also be passed on an offender, who, in the opinion of the court, has not attained the age of seventeen (17) years. In such a case, the death sentence is not pronounced or recorded but instead, the offender is ordered to be detained at the pleasure of the President if the capital offence is against a Federal law or of the Governor if it is against a State law – section 368(3) of the CPA.

It is the age of the offender at the time of his conviction and not the age at the time of the offence committed that is material and determines whether or not the death sentence shall be passed – The Queen v. Bangaza (1960) 5 FSC 1. The current law is that it is the age of the young person as at the time the offence was committed and not the age as at the time of the conviction. The court may form the opinion that the convicted person has not reached the age of seventeen (17) years from –

1.      The record of the proceedings; or

2.      Calling evidence as to age; or

3.      Ordering medical examination.

Where the court calls evidence as to age, the prosecution and the defence may call witness or witnesses. Such witnesses shall be examined, cross-examined and re-examined by either side, if need be – Jubril v. The State (1969) NMLR 71.

PREROGATIVE OF MERCY

Where the court pronounces a sentence of death on an accused person who is convicted, the court shall as soon as practicable transmit to the Minister or Commissioner designated to advice the President or the Governor on the exercise of the prerogative of mercy –

1.      A certified true copy of the record of proceedings at the trial;

2.      A copy of certificate to the effect that sentence of death has been pronounced upon the person named in the certificate; and

3.      A report in writing signed by him containing recommendations and observations (with respect to the convicted person and his trial) that he thinks fit to make – section 371(1) of the CPA; section 294(1) of the CPC.

The Minister or Commissioner, as the case may be, shall consider the report made by the trial court in respect of the convicted person.

There are Advisory Councils on the Prerogative of Mercy in each of the States of the federation. In respect of federal offences, the Council of State is the body responsible for exercising the Prerogative of Mercy.

The Attorney-General may recommend to the Governor or President after considering the report of the Advisory Council that –

1.      The sentence should be commuted to imprisonment for life; or

2.      The sentence should be commuted to any specific period; or

3.      The convicted person should be otherwise pardoned or reprieved.

Where the convicted person is not pardoned or reprieved, the death sentence pronounced upon the convict must be carried into effect – section 371F of the CPA; section 298 of the CPC.

It should be noted that the powers of the President are to be exercised by him after consultation with the Council of State, whilst the Governor’s power shall be exercised by him after consultation with the Advisory Council of the State on Prerogative of Mercy.

In Okeke v. The State (2003) 15 NWLR (Pt. 842) 25, the Supreme Court, in refusing an application for prerogative of mercy, held that –

1.      The recommendation of mercy for convicted persons are matters within the province of the on the prerogative of mercy; and

2.      It is to that body that a convicted person, if he so desires, may direct his application for consideration.

IMPRISONMENT

A sentence of imprisonment takes effect from and includes the whole of the day of the date on which it was pronounced. However, under the CPA, a court may impose a suspended sentence, however, there is no equivalent provision for suspended sentence under the CPC, in which case the sentence shall not commence immediately but shall commence on any day not exceeding 3 months after the date of sentence.

FINE

Sections 282 of the CPA; and section 23 of the CPC provides for the power of a court to impose fine in lieu of imprisonment. In Price Control Board v. Ezeama (1982) 1 NCR 7, it was held that even when the law creating an offence provides that the accused shall be ‘sentenced without option of fine’ the court still has discretion to impose a fine. But where a law provides for the minimum (not maximum) period of imprisonment to be imposed for the commission of an offence, the court cannot impose fine in lieu of imprisonment.

CANNING

This may be inflicted on the accused in addition or in lieu of any other form of punishment – section 388 of the CPA.

The following categories of persons cannot be ordered to be canned –

1.      Persons above the age of 45 years.

2.      Women.

However, where the accused has filed a notice of appeal, he cannot be canned until the appeal is heard. And the number of strokes shall not exceed 12 strokes of the cane.

HADDI LASHING

This is provided for in only the Northern States – section 307 of the CPC. It can be inflicted on a Moslem, only where the offender is guilty of any of the following offences –

1.      Adultery.

2.      Drinking alcohol.

3.      Defamation.

4.      Injurious falsehood.

It is inflicted in an enclosed place and the public is permitted to watch.

FORFEITURE

This may be imposed in addition to or in lieu of any other form of penalty prescribed for the offence – section 359 of the CPC.

RESTORATIVE JUSTICE

This is an alternative delinquency sanction that focuses on repairing the harm done, meeting the victim’s needs, and holding the offender responsible for his or her actions.

Restorative justice sanctions use a balanced approach, producing the least restrictive disposition while stressing the offender’s accountability and providing relief to the victim. The offender may be ordered to make restitution, to perform community service, or to make amends in some other way that the court orders.

By Barr. Chigozie Ezekiel +2348034997413, victorezekielc@yahoo.com

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