INAH vs. INSPECTOR GENERAL OF POLICE(2022)LCN/16859 (CA).
PRINCIPLE:
“The judgment of the lower Court is on pages 142-158 of the Record of Appeal. It ended with the signature and name of the trial Judge and the date of delivery. I. E. OSIAGOR J. signed and it was dated 13/7/2020. Immediately after the sentencing and before the signature the trial Court wrote “This is the judgment of the Honourable Court.”
After the signing off, the Court proceeded to record as follows:
“APPEARANCE
Defendant present
S. E. Onyemauche – Prosecutor
N. B. Louis for the Defendant”
Onyemauche: I apply under Section 321 (1) (b) for the Hon. Court to make an order of restitution of the sum of N24.9 Million to victims of Ibeh Trading Company Ltd.
Miss Louis: I object to the application. It lacks jurisdiction to entertain.
Court: In addition to the sentencing, I hereby order the Defendant to immediately restitute the sum of N24.9 Million to the normal Company, Ibe Trading Company Ltd.
This is the Judgment of the Honourable Court.
Sgd
D. E. OSIAGOR
JUDGE
13/7/2020
“APPEARANCE
Defendant present
S. E. Onyemauche – Prosecutor
N. B. Louis for the Defendant”
The Appellant’s Counsel submitted that when a Court delivers its ruling or judgment, the Court becomes functus officio and has no powers to review, set aside or revisit any issue dealing with that matter. He referred to the case of Remawa V. NACB LTD. (2007) 2 NWLR (Pt. 1017) 155 where the Court held that where the trial Court had given its judgment in a case on merit, it becomes functus officio in relation to the case once judgment is pronounced. Counsel argued that no Court has no power review, set aside or revisit its case in which judgment has been delivered. Referred to the case Dingyadi V. INEC (2010) 18 NWLR (Pt. 1224)1.
In making the application for an order of restitution, the prosecution relied on Section 321(1)(b) of the Administration of Criminal Justice Act, 2015 which provides:
- A Court after conviction may adjourn proceeding to consider and determine sentence appropriate for each convict.
(b) Order for the restitution or compensation for the loss or destruction of the victim’s property and in so doing the Court may direct the convict.
(i) To return the property to the owner or to a person designated to be the owner.
Undoubtedly, the Court under the above provisions is empowered to order for restitution or compensation for the loss or destruction of the victim’s property, however, this can only be done after the conviction of the Defendant and before sentence is imposed on the convict.
In the case under appeal, the Appellant had been convicted and sentence determined and imposed and judgment signed and dated after which the application for an order of restitution was made and granted by the trial Court. Clearly, the order was made after sentence of the Appellant and judgment fully delivered and pronounced.
There is no doubt, the Appellant was convicted when the Court pronounced as follows:
“I have no hesitation in finding the Defendant guilty as charged in Count I, Count II, Count III and Count IV”
Consequentially, the Court imposed the sentences on the Defendant (Appellant) as follows:
“Count I: I sentence the Defendant to 3 years imprisonment.
Count II: I sentence the Defendant to 3 years imprisonment.
Count III: I sentence the Defendant to 3 years imprisonment
Count IV: I sentence the Defendant to 2 years imprisonment.
The sentences are to run concurrently with the Defendant spending a maximum of 3 years imprisonment.
This is the judgment of the Court.
Sgd
D. E. OSIAGOR
JUDGE
13/7/2020.
(See page 158 of the Record).
Following the provision of Section 321, the order can only be made after conviction and before imposing sentence on the Defendant.
Page 159 of the Record clearly shows that the application was made and granted after conviction, sentence and the signature of the trial Judge marking the full pronouncement of the judgment. This is not in tandem with and contrary to the provision of Section 321 of the ACJA. It is a clear breach of this statutory provision.
It is settled law that where a statute provides clearly for a particular way, failure to perform the act as provided will not only be interpreted as deliquent conduct but will be interpreted as not complying with the statutory provision. See Corporate Ideal Insurance Ltd. V. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (Pt. 1405) 165 at 193.
In Ahmed V. Abu & Anor. (2016) LPELR-40261 (CA). It was held that where a statutory requirement for the exercise of a legal authority is laid down, it is expected that the public body invested with such authority would follow the requirement to the details. The non-observance in the process of reaching any decision renders the decision itself a nullity.
The corollary of the decision of the lower Court in not following the provision of Section 321 of the ACJA and the authorities cited above is to the effect that the trial Court failed to comply with the statutory provision. The consequential effect of this is that the decision reached or order made thereby, that is the order of restitution in respect of the sum of N24.9 Million in favour of Ibe Trading Company is a nullity and subject to being set aside.
Further, it is conclusive that the lower Court became functus officio of the action having delivered and pronounced its judgment. In Buhari V. INEC & Ors. (2008) 19 NWLR (Pt. 120) 246 at 375-376 the Supreme Court Coram Tobi, JSC, said: “Functus officio ordinarily means a task performed; having fulfilled function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. See Black’s Law Dictionary, 6th Edition page 673…
In our context, a Judge who has decided a question brought before him is functus officio and cannot review its decision.”
Applying the above to the case in hand, the trial Judge could no longer make an order pursuant to Section 321(1) (b) of ACJA having sentenced the Appellant. He became functus officio having convicted, imposed the punishment of sentencing to terms of imprisonment and signed off marking the delivery of the judgment. He could no longer proceed to make the order of restitution under Section 321(1) (b) of ACJA which order he should have made after conviction of the Defendant/Appellant and before sentencing. In the light of this, the order is rendered null and void by this Court.” Per BOLA, JCA.