Guardian

IT is no longer news that the National Judicial Council (NJC) has suspended Hon. Justice Mohammed Talba for one year without pay. What may linger for a long time to come is the controversy, which this action has generated.

On Monday, January 28, 2013, an FCT High Court presided over by Hon. Justice Mohammed Talba convicted John Yesufu, who was accused of stealing and or converting to his personal use a whopping sum of about N32 billion and sentenced him to two years’ imprisonment.

The said convict was given an option to pay a fine of N750,000 in lieu of imprisonment. Naturally, the convict paid the fine and regained his freedom.

The uproar generated by this conviction was not only unprecedented but also deafening. In fact, to say that the sentence and conviction attracted strident condemnation from the public is simply saying the obvious.

The reasons for the public outcry are not far- fetched. Official corruption in Nigeria has wreaked untold havoc in the polity and impoverished the citizens. The result is that in a country that has so much money, abject poverty holds sway among the citizenry.

Those slammed with corruption charges take refuge under legal technicalities and sundry lapses in our legal and political system to wriggle out of such charges. Thus, official corruption thrives in Nigeria with impunity.

When, therefore, the convict in the instant case pleaded guilty to the charges slammed on him, Nigerians’ expectation was that drastic punitive measures would be taken against the convict to at least, serve as a deterrent to others. It was the absence of such drastic punitive measure and a sentence considered by many as a slap on the wrist that gave rise to the unprecedented public outcry witnessed soon after the judgment.

While I, as a person, abhor and condemn corruption in all its ramifications, I strongly believe that the public outcry was totally misplaced or misdirected.

The judge who presided over the case became a prime suspect, as many people believe that he must have been settled. It was apparently in response to the public outcry that the national judicial council (NJC) instituted an inquiry to ascertain the veracity or otherwise of the allegations levelled against the judge.

At this juncture, it is pertinent to critically examine some factors that may have influenced the decision taken by that honorable court.

The first and most important is the law under which the accused person was convicted to wit, the Penal Code Act, cap 532 laws of the Federation of Nigeria (Abuja) 2007. It is on record that out of the 20 charges slammed on the convict in the instant case, he pleaded guilty to the last three charges (i.e. counts 18, 19 and 20) wherein he was alleged to have conspired with other accused persons to steal various sums of money at various times. The alleged offence is punishable under section 309 of the Penal Code.

What does Section 309 of the Penal Code provide: whoever commits criminal misappropriation shall be punished with imprisonment for a term, which may extend to two years or with fine or with both from the section quoted above, it is not difficult to see that the court acted within the law in convicting the accused person. This is because the said section 309 specifically provides that an offender should be punished with imprisonment for a term, which may extend to two years.

In my humble view, the phrase which may extend means that in deserving or appropriate cases, the court can even award a lesser punishment, say a year or six months. But in the instant case, the court awarded the maximum punishment prescribed by the law i.e. two years.

Another important point to note is that section 309 of the penal code gives the judge the discretion to sentence the offender to a fine without imprisoning him. Thus, in the instant case, the court could simply have sentenced the convict to a fine without saying anything about imprisonment. This would have been absolutely in order because the law allows it.

Again on the issue of fine, it is note worthy that section 309 of the penal code does not stipulate any specific amount of money, which the court should impose as fine. This gives a court the latitude or discretion to impose any amount it pleases as fine. This will however depend on the circumstances of each case.

In the instant case, the honourable court, I’m sure must have taken into account the allocotus (plea for mercy) made by learned counsel for the accused person in exercising its discretion to impose a fine of N750,000.

In criminal trials, it is normal for an impartial court to call for allocotus before passing a sentence on a person who has been found guilty of a crime. In my humble view, therefore, there is no reason on earth why the court in the instant case should be expected to have acted differently. Indeed, once the allocotus is made as in the instant case, an impartial court whose mind is ab initio not made up against an accused person ought to consider it in passing its sentence. If therefore it was the allocotus made by learned counsel to the accused in the instant case that influenced the court’s decision to impose two years’ imprisonment or fine of N750,000, the court was absolutely right in doing this.

•Maraizu is an Abuja-based lawyer

•TO BE CONTINUED