3PLR – USEN FRIDAY EKPO V THE FEDERAL REPUBLIC OF NIGERIA
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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USEN FRIDAY EKPO
V
THE FEDERAL REPUBLIC OF NIGERIA
IN THE SUPREME COURT OF NIGERIA
18th JUNE, 1982
S.C. 77/1979
LN-e-LR/1982/42 (SC)
OTHER CITATIONS
(1982) All N.L.R 146
(1982) 6 S.C. 10
BEFORE THEIR LORDSHIPS
SOWEMIMO, JSC
IDIGBE, JSC
ESO, JSC
ANIAGOLU, JSC
UWAIS, JJ .S.C.
REPRESENTATION
- Ekong Bassey for the Appellant.
Mrs C. I. Onuogu (State Counsel, Federal Ministry of Justice, Lagos) for the Respondent.
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:- Financial crimes – Uttering and being in possession of counterfeit notes – Evidence – counterfeit currency offence-presumption that currency notes are counterfeit-whether court can dispense with expert opinion in ascertaining genuineness of currency-Counterfeit Currency (Special Provisions) Act, 1974 s. 5 (2).
CHILDREN AND WOMEN LAW:- Young persons and Justice administration – 18 year old offender awarded maximum sentence of 21 for uttering of counterfeit currencies – Propriety – Failure of counsel to appeal sentence – Effect – Prerogative of Mercy of President/Governor – Need to have recourse to same
CHILDREN AND WOMEN LAW:- Young persons and Justice administration – Principle of reformation of criminals and salvaging of young people from the direction of the crime to the path of rectitude – Need to be court’s paramount preoccupation in criminal proceedings
JURISPRUDENCE AND PUBLIC LAW:- Lacuna in the law – Where it leads to excessive sentencing especially of first time offenders or young people – Attitude of court thereto – Use of prerogative of mercy in such situations
JURISPRUDENCE AND PUBLIC LAW:- Justice administration – Criminal proceedings and sentencing policy of court – Principle of reformation of criminals and salvaging of young people from the direction of crime to the path of rectitude – Need to be court’s paramount preoccupation.
CONSTITUTIONAL LAW:- Prerogative of mercy – President’s power to interfere with sentencing of a convicted criminal – Qualifying cases – First time offenders/young persons given harsh/maximum sentences
ETHICS – LEGAL PRACTITIONER:- Negligent representation – Failure to appeal excessive sentencing of a young person or first time offender – Effect – Attitude of court thereto
PRACTICE AND PROCEDURE – EVIDENCE:- counterfeit currency offence-presumption that currency notes are counterfeit – whether court can dispense with expert opinion in ascertaining genuineness of currency – Counterfeit Currency (Special Provisions) Act, 1974 s. 5 (2).
PRACTICE AND PROCEDURE – EVIDENCE:-Evidence-confession-voluntariness of-duty of court to call evidence to ascertain voluntariness.
PRACTICE AND PROCEDURE – COURT:- Sentencing – Reasons for awarding maximum sentence – Desirability of giving reasons for sentence.
PRACTICE AND PROCEDURE – APPEALS:- Sentencing – Powers of the Supreme Court to interfere therewith – Limits and procedure for activating same – Whether Supreme Court has inherent power to interfere suo motu with unfair or excessive sentence.
PRACTICE AND PROCEDURE – COURT:- Sentencing of first time offenders and young persons – Exercise of discretion of court in the award of maximum sentence – Proper attitude of court
PRACTICE AND PROCEDURE – COURT:- Lacuna in the law – Where it precipitates unfair decisions of the court or fetters exercise of court discretion unduly – Attitude of court thereto
MAIN JUDGMENT
IDIGBE, J .S.C.-
In these proceedings the facts in support of the case for the prosecution rightly, in my view, accepted by the trial court which justify the conviction of the appellant for the offences with which he was charged-i.e. (a) uttering of two counterfeit notes, an offence punishable under section 5(1) (a) of the Counterfeit Currency (Special Provisions) Act 1974, and (b) being in possession of eighteen counterfeit bank notes knowing them to be counterfeit, an offence punishable under section 5 (1) (b) of the Counterfeit Currency (Special Provisions) Act 1974-are, briefly, as follows: On the 11th day of February, 1976, at the close of the business of the day at the Sub-Treasury at Etinan in Cross River State the Treasury Cashier, Kenneth Aniebok (P.W. (2)), handed over to Okon Etukudo (P.W. (1)), for final check both the cash book and the amount of money collected earlier that day, by way of revenue from members of the public, by the appellant-a Revenue Clerk in the Sub-Treasury at Etinan. The money had earlier been handed over to the cashier (P. W. (2)) by the appellant to whom the duty of revenue collection for the day had been assigned.
In the course of the final check, which was carried out by P . W. (1) in the presence of P. W. (2), two counterfeit currency notes, each of ten Naira denomination, (Exhibits A and A (1)) were discovered. When the attention of the appellant was drawn to this discovery, he not only confirmed that the notes were counterfeit but also admitted that he received them, among other currency notes, from a man who came from Ubiom in Cross River State to pay his revenue dues. He further requested that P . W. (2) should go with him to Ubiom in search of this man; his request, however, was not granted and on the insistence of P. W. (1) he replaced exhibits A and A (1) with two genuine currency notes each of ten Naira denomination. Thereafter, the matter was reported by P. W. (1) to the police authorities.
When arrested, by the police, the single-room accommodation of the appellant was searched and in an envelope placed underneath a pile of newspapers located at the lower platform of a “centre table” in the room, the police in the presence of the appellant discovered another eighteen counterfeit currency notes each of ten Naira denomination and bearing the same serial number-DA/70/617431-as Exhibits A and AI. The above facts represent the non-controversial evidence.
I should, however, make reference to some other aspects of the trial which deserve particular attention in view of the fact that considerable argument was directed to them both in the Federal Court of Appeal (hereinafter referred to as “The Court of Appeal”) – which dismissed the appeal of the appellant from his conviction by the trial court – and in this court.
According to George Lekam, (P. W. (3) who was present when, after being charged and duly cautioned, the appellant volunteered a statement (Exhibit F) to the police officer Asuquo Johnson who has since the incident leading up to these proceedings been dismissed from the police force, Exhibit F was counter-signed in his presence by Asuquo Johnson whose signature he recognised. Learned Counsel for the appellant objected to the admission in evidence of Exhibit F when it was tendered by P. W. (3) on the grounds that it had not been voluntarily made “in that the accused (i.e. the appellant) was detained (in custody) and the statement (was) written down and he was forced to sign”. The learned trial Judge failed to hold a trial within a trial in respect of Exhibit F and admitted the same in evidence. In Exhibit F, the appellant admitted that Exhibits C-C17 were found in his room in his presence; that they were “all counterfeit” and that he was “the owner of these counterfeit notes” (Exhibits C-C17).
In his defence, the appellant resiled from his statement in Exhibit F although he admitted that Exhibits C-C17 were found in his room, he added that the notes were “lighter in colour than the normal notes” (i.e. genuine notes); in any event, he denied the charges against him. He claimed that the police officer Asuquo Johnson was dismissed from the police force because he demanded the sum of N1,000 from his (the appellant’s) father in order to suppress or frustrate the present proceedings. In his judgment, the learned trial Judge made reference to certain portions of Exhibit F and accepting the facts in support of the case for the prosecution earlier set out by me in this judgment, he disbelieved the defence of the appellant whom he convicted as earlier stated. This appeal is from the dismissal by the Court of Appeal of the appellant’s appeal from the said conviction.
The two principal complaints in this appeal are:
(1) that the Court of Appeal should have allowed the appeal since
(a) The learned trial Judge erred in admitting Exh. F in evidence without holding a trial within a trial and,
(b) it was not satisfactorily proved that Exh. F was voluntarily made by the appellant, the prosecution having failed to produce Asuquo Johnson who recorded Exh. F to testify.
(2) that there was not sufficient proof that Exhs. C-CI7 were, indeed, counterfeit currency notes, there being no satisfactory evidence from the Government analyst on this issue. It was therefore, not proved that the appellant was in possession of counterfeit notes nor that he uttered them knowing them to be counterfeit.
The simple answer to the second complaint is that even if one were to disregard the admission of the appellant in Exh. F to the effect that Exhibits C-CI7 were not genuine notes, there are the following facts, accepted by the learned trial Judge, the cumulative effect of which points conclusively to the fact that Exhbs. A and AI, C-CI7 were counterfeit notes; and these are:
(1) the admission by the appellant to P. W. (1) and P. W. (2) that the notes are not genuine.
(2) the evidence of P. W. (1) and P. W. (2) that the notes are counterfeit.
(3) the fact that the notes (a) are of different quality and colour from the genuine notes and (b) that they each bear the same serial number DA/70/617431.
In the circumstances, there is no need for the evidence of the specialist i.e. the Government Analyst or officer of the Nigerian Security Printing Company Limited. Further, sections 5 (2), 5 (3) and 12 of the Counterfeit Currency (Special Provisions) Act 1974, provide:
“5 (2) where a person has 10 or more Counterfeit bank notes . . . the Court before whom such person is tried may presume knowledge that they are counterfeit bank notes and also an intention to utter any of them unless he proves the contrary”.
“5 (3) For purposes of this section a person shall be deemed to have uttered a counterfeit bank note .if he has tendered any such bank note to another person as if it were genuine legal tender”.
“(12) Where a person is charged with an offence under this Decree the fact that a bank note produced in evidence against him is false or counterfeit may be proved by the evidence of any credible witness, and it shall not be necessary to prove the fact by evidence of an officer of the Central Bank of Nigeria or the Nigerian Security Printing and Minting Company Limited”.
Nothing favourable to the argument in support of the appellant, therefore, turns on this ground of complaint. With regard to ground (1) (b) of the appellant’s complaint, however, I agree with their Lordships of the Court of Appeal that Exh. F should have been excluded on the grounds that (1) the learned trial Judge failed to hold a trial within a trial and (2) that Asuquo Johnson was a material witness on the issue of the voluntary nature of Exh. F; and that there was no satisfactory evidence on the reason for failure to produce Asuquo Johnson. With regard to ground (1) (a) it is pertinent here to repeat the statement of the Federal Supreme Court in The Queen v. Igwe (1960) 5 F.S.C. 55 at p. 56 with which I am in respectful agreement:
“It is now too late to question the rule whether voluntariness or otherwise of a confession must be decided by the Judge before its admission even where the Judge is sitting without a Jury, since the Courts of this country have applied that rule for many years”. [See also R. v. Onabanjo 3 W.A.C.A. 43.]
The learned trial judge was, therefore in error in making references to portions of the appellant’s statement in Exh. F. However, as I pointed out earlier even if Exh. F were to be disregarded completely, there is sufficient evidence to justify the conviction of the appellant in respect of the two counts relating to the offences of (a) uttering counterfeit currency notes knowing them to be counterfeit and (b) being in possession of counterfeit currency notes knowing them to be counterfeit.
The appeal, therefore, lacks merit.
My learned brothers on the panel with me on this appeal have been equally disturbed as I am with the sentence meted to the appellant. The unchallenged evidence on record is that he is a young man of eighteen years and, also, a first offender. He received the maximum sentence under the sections of the Act-i.e. the Counterfeit Currency (Special Provisions) Decree (now, Act) 1974; it was a special enactment by the Military Regime who, rightly, at the time felt it was necessary to provide for stiffer sentences than those provided before the coming into force of the Decree, under the Criminal Code for similar offences. It is not, however, being suggested that counterfeit offences should be treated lightly by the Courts. No reasons however, were given by the trial court for the award of the maximum sentence. Admittedly, there is no obligation on the part of a trial Court to give reasons for punishment; but it is possible in this case that the court felt it was obligatory on its part to award the maximum sentence. The punishment clause of the relevant section (i.e. 5) reads:
“shall be guilty of an offence under this Decree and upon conviction thereof shall be liable to imprisonment for 21 years.”
I pause however, to observe that some of the earliest sections of this Military Decree (now, ‘Act’)-e.g. sections 1(1),1(2), 3(1)-dealing severally with falsely making notes and coins resembling notes and coins which are legal tender in Nigeria, and also importing materials or contrivances for making or forging current bank notes and coins which are legal tender in Nigeria, provide for death penalty; one therefore, can see how readily a trial Court may run to the conclusion albeit erroneously, that the punishment clause under section 5 intends a maximum award of 21 years. As this is one of the Decrees of the Military Regime extant in our statute books, I feel that special reference should be made to this aspect of the matter in this appeal, particularly more so, as the appellant filed a ground of appeal complaining on the “severity of the sentence” passed upon him. In this court, his attention was drawn to the fact that since he failed to lodge an appeal against his sentence it was not open to him to file or argue any ground of complaint over his sentence. Learned Counsel for the appellant, however, submitted that since this is the final Court of Appeal, it has inherent power to deal with the issue of sentence on an appeal against conviction adding that it was the practice of the former West African Court of Appeal and the former “Appeal Court”-(the full Court) to deal with the issue of sentence in similar circumstances.
The court is, indeed, disposed to entertain argument on the issue of sentence in this appeal had it the power to do so. I am not impressed by the submission that this court has any such inherent power. This court derives its powers from the provisions of the Supreme Court Act No. 12 of 1960; and its powers in respect of appeals in criminal cases from the Court of Appeal, are set out in Part IV of the said Act. The relevant provisions under this part are sections 26, 27 and 28. It is clear from its provisions that sub-sections (1) and (2) of section 26 deal with appeals against conviction. Section 27 deals with “special cases”,-e.g. (a) where on an appeal against conviction this court sustains an order of the lower court in respect of part of the judgment but rejects its order in respect of other portion thereof, and in which circumstances it may become necessary to adjust or ‘interfere’ with the award of sentence; an adjustment or some interference on the basis of adjustment will be made notwithstanding the fact that the appeal is NOT against sentence but merely against conviction; (b) where the lower court has upon conviction sentenced an appellant to death but upon his appeal from his conviction this court is of the view that the evidence justifies an order of “guilty but insane”, the sentence of death will be interfered with. Sub-section (3) of section 26, however, is the only section which deals with powers of the court to interfere directly, on appeal, with the award of sentence by the trial court; it clearly provides for power of interference only (1) if there is an appeal against sentence or (2) if the provisions of section 27 become applicable. It is my view that the expression “subject to the Special provisions of this Act” in sub-section (3) of section 26 of Act No. 12 of 1960 refers only to the special provisions of sub-sections (1), (2), (3) and (4) of section 27 thereof.
I have also examined two of the cases in which it does appear that the West African Court of Appeal and the former “Full Court” interfered with the sentence meted on an appellant by the lower court and it is clear in each case that the courts acted under the special statutory provisions applicable to them at the time; and the cases, therefore, do not avail the appellant in these proceedings. The first of these cases is Rex v. Benson Eson (1933) 11 N.L.R. 29. The accused in that case was charged with forgery under Section 467 of the Criminal Code in force in Nigeria in 1933 and the maximum punishment under the general section was imprisonment for three years. There were sub-sections of Section 467 authorising increased punishment but the accused was charged under the general section. The lower court sentenced him to five years, the evidence at the trial indicated clearly that the offence committed came within the special sub-section which provided for punishment of seven years. The accused appealed by “Case Stated” to the Full Court, (which then was the court to which appeals lay from decisions of the “Divisional Courts”). On appeal, it was held (a) that the lower court ought not, in sentencing the accused, to have acted under the provisions of the special sub-section and (b) that by its powers under Section 171 of the Criminal Procedure Ordinance the Full Court could amend the sentence to one of three years which could rightly have been imposed by the Divisional Court. Now, under the Criminal Procedure Ordinance [Cap. 20 of the 1923 Edition of the Laws of Nigeria, Volume (1)], the powers of the Appeal Court (i.e. the Full Court) were set out in Section 171 and it clearly had no power to deal with sentence in an appeal by way of “Case Stated”. However, when the Judgment in the (ESON) appeal was delivered, the Criminal Procedure (Amendment No.2) of 1933, Ordinance No. 48 of 1933 had come into force and Part IX of Cap. 20 dealing with appeals was amended, giving the Appeal Court powers on an appeal from conviction (a) “to reverse the finding and sentence” of the lower court [see Section 171 (1) (i)], (b) “to alter the finding maintaining the sentence, or with or without altering the finding, reduce or increase the sentence” [see Section 172 (1) (ii)]. (o) “with or without such reduction or increase alter the nature of the sentence” [see Section 172 (1) (iii)]. The other case which deserves consideration is the case of Rex v. George C. Thomas (1942) 8 W.A. C.A. 135. In this case, the appellant was convicted in the Supreme Court of Sierra Leone upon three counts of defamatory libel. He was sentenced to 12 months WITH hard labour on each count. Appellant appealed against conviction alone but in his grounds of complaint he stated that under the Law of Freetown, which at the date of his trial was the same as the Law in England, a first offender in defamatory libel could not be sentenced to imprisonment WITH hard labour. The West African Court of Appeal observed [see 8 W.A.C.A. at p. 139]:
“In a subsequent communication the appellant has stated clearly ‘this is an appeal against my conviction and not against sentence’; and he has contended that the sentence cannot be reduced or modified.
Clearly this court cannot foist upon the appellant an appeal against sentence against his will, and strictly speaking there is not power to alter the sentence upon an appeal against conviction only. Any alteration of the sentence must therefore wait until the appellant’s wishes are known as to whether or not he desires to appeal against sentence.
The appeal against conviction fails upon all points and is dismissed.
Subsequently the appellant appealed with leave against SENTENCE.
– JUDGMENT-”
The sentence passed at the trial is quashed, and in substitution therefore the appellant is sentenced to twelve months’ imprisonment WITHOUT hard labour ” (emphasis and capitals by me).
Now, in 1942, when this appeal came up for hearing, the powers of the West African Court of Appeal were similarly fettered, in an appeal against conviction only, as that of this court is today (see Section 10 (1) of the West African Court of Appeal Ordinance No. 47 of 1933); and the West African Court of Appeal could interfere with sentence only if there was an appeal against sentence (see Section 10 (3) of the West African Court of Appeal Ordinance No. 47 of 1933]. I have also considered if this court can, as did the West African Court of Appeal in George C. Thomas (Supra), allow the appellant herein to appeal by leave of this court against his sentence in order that we may hear his argument on, and possibly deal with the issue of, his sentence by the trial court. I am of the view that we cannot. In George C. Thomas (Supra) the appellant’s application for leave to entertain his appeal against sentence was heard by the West African Court of Appeal because of the provisions of sub-paragraph (c) of Section 9 of the West African Court of Appeal Ordinance No. 47 of 1933 which allows a person convicted by the lower court to appeal to the Appeal Court “with leave of the Court of Appeal against the sentence passed on his conviction unless the sentence is one fixed by law”. There is no corresponding provision in favour of an appellant under the current relevant law, the 1979 Constitution of the Federation of Nigeria which provides in Section 213 (3) thereof as follows:
“Subject to the provisions of sub-section (2) of this section an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court with the leave of the Federal Court of Appeal or the Supreme Court”.
It follows that, in the light of the above provisions, any application for leave to appeal in an appropriate case should be made in the first instance to the Court of Appeal. However, the issue here is not one of appeal from a sentence, or an order relating to sentence, by the Court of Appeal. We are concerned here with an appeal from a sentence by the High Court, and the relevant provisions are to be found in section 221 (1) of the 1979 Constitution which states that,
“Subject to the provisions of section 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Federal Court of Appeal with leave of that High Court or the Federal Court of Appeal”.
Again, an application for leave to appeal from a sentence (in criminal or quasi-criminal matters) should go to the High Court in the first instance, and upon refusal by that Court another application should be made to the Court of Appeal; when refused by the Court of Appeal, an appeal from the order of refusal by the Court “of Appeal should be lodged in this Court. This was not the case; it follows, therefore, in my view, regrettably that this Court cannot deal with the issue of sentence. [See also Nabiu Rafiu v. The State (1980) 9-11 S.C. 130 at 229.]
SOWEMIMO J .S.C.–
When this appeal came before this court and was heard, it lacked merit and no doubt should be dismissed. In this wise, I agree with the judgment just delivered by my brother, Idigbe, J .S.C.
It does appear that the learned trial judge in awarding a sentence gave the 18 year old appellant the maximum sentence of 21 years. The appellant is a first offender and for reasons best known to his counsel no appeal was lodged against the sentence in the Federal Court of Appeal.
I agree with my learned brother Idigbe J .S.C. that it is not obligatory for a trial judge to state his reasons for awarding severe punishment. It is however desirable, where the sentence is not mandatory, that indication may be given as to why a first offender of a tender age, is being given a maximum sentence.
For reasons set out in the judgment of Idigbe J.S.C., I will not interfere with the sentence, but it is hoped that a trial judge who is in a good position to determine an appropriate punishment, may in cases he awards, severe or maximum sentences give indications as to why these were done.
The appeal will therefore be dismissed and the judgment of the lower court affirmed.
KAYODE ESO, J .S.C.–
I have had the privilege of reading in draft the judgment just read by my learned brother, Idigbe, J.S.C. I completely agree with the reasoning and conclusion of my learned brother.
My learned brother has set out in an admirable detail the facts of the case. In so far as conviction is concerned the only thing that could be said in favour of the appellant is the wrong admission of Exhibit F, the so called confessional statement; but as it has been rightly pointed out in that judgment, even if Exhibit F is excluded from the case, there is ample evidence on record to justify the conclusion of the trial Court and the finding of the Federal Court of Appeal that the appellant was guilty of the offence charged.
What gives me great concern is the sentence of 21 years passed on the appellant. The undisputed facts are-
- the appellant was a young man of eighteen years &t the time of commission of the offence;
- he was a first offender with no adverse record against him;
- the sentence of 21 years was the maximum the court could pass; and
- the sentence of 21 years was not mandatory.
I concede that an Appeal Court will 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 the first instance. I am also satisfied that as the law stands, there is no provision for this Court to interfere with sentence except there is an appeal before it against sentence. In this case there is not such appeal.
My learned brother has spotlighted the provision of sub-paragraph ( c) of Section 9 of the West African Court of Appeal Ordinance 1933, No. 47 which allowed a person convicted by the lower court to appeal to that court with leave of the court against sentence passed on his conviction unless it is a sentence fixed by law. That provision is absent in the 1979 Constitution of the Federation of Nigeria and also the Supreme Court Act No. 12 of 1960 under which the Supreme Court derives its power. It would appear to me with respect that there is a serious lacuna in the law which should be remedied.
As the matter stands therefore, the only way which would appear open to the appellant, in what would appear to be a savage sentence, is that the President might wish to consider the appellant’s case under s. 161 of the Constitution of the Federation after consultation with the Council of State under sub-section (2) of the section for the purpose of exercising his prerogative of mercy on the appellant.
ANIAGOLU, J .S.C. –
I am in entire agreement with the judgment just read by my learned brother, Idigbe, J.S.C., the draft of which I had earlier been privileged to read. I agreed that the appeal against conviction should be dismissed as unmeritorious and that, as the law stands, there is nothing we can do for the appellant on sentence, by reason of the failure of the appellant to appeal against sentence, which is the only aspect of this appeal deserving sympathy.
While saying so as a matter of law, I wish to place it on record that I have much sympathy for the appellant on the severity of sentence passed on him. He is a young man of eighteen years of age and a first offender, and if the principle of reformation of criminals has any place in the sentencing policy of our courts, the salvaging of this young man from the direction of the crime to the path of rectitude, should be our paramount preoccupation.
I am satisfied that although he did not say so in his judgment, the learned trial judge (who gave no reasons for passing the sentence he did) regarded the passage “shall be liable to imprisonment for 21 years” in Section 5 of the Counterfeit Currency (Special Provisions) Act, 1974, as depriving him of the discretion, as to sentence, which the High Court undoubtedly possesses under the Criminal Procedure Act, and as imposing on him the mandatory obligation of passing on the appellant a sentence of 21 years imprisonment. Had he been clearly aware that his said discretion remained unimpaired in spite of the passage aforementioned, he might not necessarily have passed the sentence of 21 years imprisonment.
It is to be hoped that based upon the sacred legal principle of ubi jus ibi remedium, and in the face of the fettered jurisdiction of this Court, some way can be found for an amelioration of the circumstances of the appellant towards a just sentence.
UWAIS, J.S.C. –
I have had the advantage of reading in draft the judgment read by my learned brother Idigbe, J .S.C.. I agreed with the reasons and conclusions therein and I too will dismiss the appeal.
However, I would like to add the following on the issue of sentence.
The appellant was represented by counsel, in fact the same counsel, throughout the journey of this case from the High Court to the Federal Court of Appeal and finally to this Court. So that learned counsel had been well aware of the heavy sentence passed on the appellant by the learned trial judge. It is therefore surprising that no complaint was made to the Federal Court of Appeal against the sentence and the point was not raised as a ground of appeal in the notice of appeal filed in this Court. The first time the complaint was brought to our notice was in the appellant’s written brief prepared and filed by learned counsel for the appellant. It was stated at the tail end of the brief that the leave of this Court would be sought to argue an additional ground of appeal, namely that the sentence passed by the trial court was excessive. Surely this is not a matter that should have been raised in the appellant’s brief. For a written brief is a clear statement of a party’s argument in the appeal.
Secondly, it is mandatory under Order 8 rule 3 (1) of the Supreme Court Rules, 1977 that notice of application for leave to appeal must be given on a prescribed form (Criminal Form 4). Thirdly, by section 213{3) of the Constitution of the Federal Republic of Nigeria, 1979 an appeal to this Court against sentence can only lie from the decision of the Federal Court of Appeal by leave of that Court or this Court. As the issue of sentence was not raised before the Federal Court of Appeal there was no decision on the point by that court on which an appeal can lie to this Court. Hence our refusal to hear learned counsel for the appellant on the question of the severity of the sentence passed on the appellant by the trial court.
However, this notwithstanding it seems to me that the sentence was clearly excessive. By section 5 sub-section (1) of the Counterfeit Currency (Special Provisions) Acts, 1974 the appellant, following his conviction, was “liable to imprisonment for 21 years”. Having been a first offender and quite young, as the plea in mitigation revealed, and taking into consideration the fact that the trial court was not bound to pass the maximum sentence but free to exercise its discretion in that regard; I am, with respect, of the view that the learned trial judge ought not in principle to have passed the maximum sentence on the appellant: Udoye v. The State, 1967 N .M.L. R. 197.
By virtue of the provisions of section 26(3) of the Supreme Court Act, 1960 this Court can reduce or increase sentence if there is an appeal before it against sentence or subject to the special provisions of the Act, on an appeal against conviction (See Uwakwe v. The State [1974] All N.L.R. (Part II) 1 at p. 3). But in the present case there is firstly, no appeal before us against the sentence and secondly, none of the special provisions of the Act have been shown to apply. Pitifully, it follows that we do not have the power to interfere suo motu with the sentence, desirable though that may appear.
