Fixing Functional Justice in Courts’ Judgment During Sentencing: State V. Osigbemhe & Anor – State as Case Study – Davidson Edieya


State V. Bolivia Osigbemhe  And Ndewenu Posu V. The State as a case study 


On ‘meaning of justice’ and ‘interest of justice’, Per Eso J.S.C[1] stated as follows;

Before dealing with the issue of the Rules of Court, I would like to state that the phrase ‘interest of justice’ is not a carte blanche or licence for an unimpeded exercise of power, even against the Rules, in the guise of interest of justice. Justice as a concept is not easy to define despite postulates by great jurists from time immemorial even to Roscoe Pound who dwelt extensively on this concept. It is perhaps for the reason of the difficulty in an objective definition of justice that it has been considered safest to regard justice to be done once it is according to law; and law must necessarily include the procedure laid down for its attainment . To leave the attainment of justice at large, and ignore the rules is to establish a subjective course of action which could lead to judicial tyranny and the omnipotence of individual judges. Surely, such course will end in chaos and certainly not an attainment of interest of justice according to the law of the land.

From the forgoing the sole aim of the court is to seek justice according to law. As to what amount to justice depends on the author and his state of mind. The aim of this paper is not to engage on the voyage of defining what justice means generally but to examine it in line with the role of judges in sentencing an accused person during judgment. The final responsibility to be performed by every judge in a criminal trial after conviction is sentencing. In passing sentence the judge is bound to consider the interest of justice in that circumstance. Justice is a three way traffic i.e justice for the accused person, justice for the state and justice for the society. The writer is not unaware of the fact that mandatory minimum sentence prohibit judges from handing down sentences that fall below a predetermined floor, however where there is no mandatory minimum punishment in the criminal laws the judge may exercise discretion and this discretion is expected to be exercise judicially and judiciously in order not to make a mockery of the entire system.


The both case study are decisions arising from the offence of rape which many have seen as a violation of rule of law by the judiciary as against its primary role of promoting rule of law against the rule of men. Judicial discretion is an essential component of the inherent powers of the courts as contained in the Constitution of the Federal Republic of Nigeria[2]. However, there are times when its exercise is seen in the eyes of the public as an assault by the court on the rule of law. Some of the worst examples of this are cases involving the exercise of judicial discretion in sentencing for rape.

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This is a judgment of the High Court of Justice, Edo State in charge No. HAU/10C/78. The point of the decision which draws the debate on fixing functional justice in courts’ judgments during sentencing rests on the ridiculous sentence of the defendant for a proved case of rape.

The case of the prosecution was that the defendant drove to a motor park in the night and met two stranded girls. He offered to give them a ride in his pick- up van to their sister’s residence, assuring them of their safety. Rather than take them to their destination he drove them into the bush and at gun point raped the girls one after the other, repeatedly. The girls managed to jump out of the van as he drove sustaining injuries. The defendant drove off with their belongings. The defendant was convicted of rape but the sentence was ridiculous. On passing sentence the judge, Amissah J. remarked-

The behavior of the accused is outrageous and disgraceful and should be seriously deprecated by any decent society. I will be failing in my duty if the accused is not made to suffer for his barbaric act. It is obvious that his insatiable appetite for sex made him to commit the offence. However, I have been moved by the passionate plea for leniency made on behalf of the accused by the counsel. I sincerely hope that he has learnt his lesson. I will show mercy and give him an option of fine.

(Underlining is mine)

The judge proceeded to impose a fine of N600.00(Six Hundred Naira) for the first offence of rape on the first girl and N400.00( Four Hundred Naira)  for the first offence of rape on the second girl. For the second round of rape he cautioned and discharged the accused[4].


On Friday, the 4th day of February, 2011, the Supreme Court entered judgment dismissing the defendant appeal against the concurrent decision of both the trial court and Court of Appeal for the offence of rape. In this case D1, D2 and P were walking along a road at 7:30 one evening when they met V, a girl known to them. D1 told her that he had been looking for her for a long time and he had finally caught her. He slapped her, fell her to the ground, tore her dress and pant and raped her while D2 held her hands. When P tried to stop them, D2 gave him a slap. When D1 finished D2 took his turn and raped her. D1 and D2 were convicted for conspiracy and for rape and sentenced to one year for conspiracy and three years for rape. The Supreme Court dismissed the appeal but decried the light sentence. Per Mohammed JSC remarked-

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I have been privileged before today of reading in draft the judgment of my learned brother Galadima JSC which has just been delivered. I agree with him that there is no merit at all in this appeal. I may in fact go further to say that the appeal is frivolous.The fact the Appellants, in a rather militant manner and reckless circumstances, had sexual intercourse by force in turn with the prosecutrix, PW2 without her consent, is quite plain from the oral evidence of PW1 and PW2, the torn pants and dress of the prosecutrix removed by force by the Appellants, Exhibits A and B and the medical evidence showing laceration on the inner thighs, bruises at the entrance to the vagina and semen in the vulva of the prosecutrix. My only concern is the manner with which the trial court treated the Appellants who committed this very serious offence by giving them very light sentences. All the same, in the absence of any appeal against the sentence there is nothing that can be done.

(Underlining is mine for emphasis)

In her own judgment Per Adekeye, JSC[6] stated-

I cannot but remark that the sentencing policy of judicial officers needs to be revisited. The purpose of the criminal law is to prevent harm to the society. The offence of rape is by every standard a grave offence which often leaves the victim traumatised and dehumanised. A light sentence as in the case of the appellants must never be imposed. This may have the unsavoury effect of turning rape into a past-time by our flippant youths.

(Underlining is mine for emphasis)

It should be borne in mind that justice is the critical element of any good judgment. No one can propose a better idea of a judgment without justice. In these cases, the accused may have been seen to have justice or little justice but in the eyes of the society this judgments bears no justice

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From the forgoing it is safe to say that there should be uniform sentencing guidelines to aid judges and magistrates in order to check the abuse of the rule of law through ridiculously lenient sentencing and punishment. This will also help to check the wide disparities in sentencing for the same or similar offences by different judges and magistrates. When widely differing sentences are imposed on convicts for the same or similar offence, one lenient and the other very harsh then, in the eyes of the public, justice has not been done. This makes a mockery of the rule of law.

In aggravating or mitigating the sentence, the court should also look and assess the extent of harm which the acts of the convicts have occasioned. In terms of these issues the court should be careful so that it does not impose a sentence which makes the whole proceedings leading to the conviction to be like a “circus show”. The court must not indulged itself in some “fanciful philosophical postulations” that may send wrong signals to those who are involved in any acts of criminality.

Each judgment of our courts must illustrate and project the iron-cast verities that ignite them to drive the wagon of a necessary revolution in this land. The courts must promise hope for a change. They must earn deserving victory for a forlorn people that good nature has berthed in prosperity but which have languished in the dark burrows of oppression and intimidation. This generation is the frontier of redemption from timeless captivity. Our courts are the last defenders of legal values and the last protectors of functional justice.

[1] Willoughby v. I.M.B. Ltd (1987)1 NWLR (Pt.48) 105 at 118

[2] See s.6 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended)

[3] HAU/10C/78, (Unreported decision of the High Court Auchi ) Amissah .J

[4] To my knowledge as at when writing this paper, there has not been any appeal by the state against the judgment.

[5] (2011) 3 NWLR (Pt 1234) 393

[6] At pages 417-418

OSARENOMA Davidson Edieya, ESQ
Legal practitioner at Samuel Zibiri SAN & Co


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