Did the Supreme Court Exceed Its Jurisdiction in Mohammed V AGF?

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By Justice Beyond Hashtags Foundation

The recent decision of the Supreme Court in the case of Mariam Mohammed (a.k.a Mama Blessing) V Attorney General of the Federation reported as Mohammed v. A-G, FED (2020) LPELR-52526(SC) and Mohammed v A.G Fed (2021) 3 NWLR PT 1764 pg 397 wherein the Apex Court affirmed the conviction of the Appellant who was charged with offence of human trafficking for prostitution and increased the sentence imposed by the trial Court has stirred up debates among legal practitioners and scholars. References to excerpts of the reported judgment in this article shall be to the Law Pavilion Electronic Law Report (LPELR).

The Apex Court in its lead judgment delivered by the Noble Lord Kekere-Ekun JSC increased one of the sentences passed on the unsuccessful Appellant by the trial Court from 3 years imprisonment to 10 years. This has been bemoaned as being ‘ultra vires’  in some quarters, as some practitioners are of the opinion that the Apex Court exceeded its jurisdiction when it set  aside a sentence dished out by the trial Court and affirmed by the Court of Appeal on the premise that the sentence was not appealed against by any of the parties involved.

It has become necessary to examine the facts, holding and reasoning of the Apex Court in this case, to determine whether the contention of critics are indeed correct, or whether the Apex Court acted within its jurisdiction in dishing out its judgment.

The facts which gave rise to this appeal are not convoluted. The Appellant and her co-accused were charged before the Federal High Court, Ikeja Judicial division for allegedly involving in the trafficking of a victim, one Mary Joseph from Lagos to Libya where she was sold and coerced into the prostitution. The Accused persons were charged on three counts of offences namely:  Procurement of the victim for prostitution contrary to section 15(a) of  the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003; organization of foreign travel for the victim for the purpose of prostitution contrary to section 16 of the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003; and deceitful inducement of the victim contrary to section 19(b) of the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003 respectively. The Accused persons pleaded not guilty at the trial.

The material section to our discourse, Section 19(b) of the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003 provides that:

“(1) Any person who

 (b) by force compels or by any deceitful means – induces any person to go from any place, commits and offence and is liable on conviction, to imprisonment for ten years or to a fine not exceeding N200,000.00 or both.”

At the conclusion of the trial, the trial Court found the Appellant guilty on all counts while her co-accused was found guilty on counts 1 and 3 only.  On 5/10/2011, the trial Court sentenced the Appellant to 14 years imprisonment without the option of fine on count 1, 10 years imprisonment without the option of fine and on count 2, and 3 years imprisonment on count 3. The sentences were to run concurrently.  The Appellant was “dissatisfied with her conviction and sentence and appealed” to the Court of Appeal (please see page 3 of the LPELR).  The Court of Appeal dismissed the appeal and affirmed the judgment of the trial Court on the 18th July, 2014. The Appellant appealed to the Supreme Court on 10/12/2014 vide a Notice of Appeal containing 5 grounds of appeal.

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When forensic hostilities were joined at the Apex Court, the Appellant formulated 4 issues for determination from its grounds of appeal and abandoned its 5th ground of appeal. For ease of reference, issues formulated by the Appellant were:

“a. Whether, having regard to the totality of evidence adduced, the prosecution had sufficiently proved the ingredients of the offence charged against the appellant beyond reasonable doubt as required by law as to warrant the conviction of the appellant by the trial Court and affirmation of same by the Court below; (Distilled from Ground 1)

  1. Whether the Court below was right in affirming the decision of the trial Court when the decision was not supported by enough evidence, but filled with inconsistencies and contradictions; (Distilled from Ground 2).
  2. Whether the Court below was right in affirming the decision of the trial court based on the hearsay evidence of PW1 and PW2, which said evidence were inadmissible and unsustainable in law to ground the conviction of the Appellant; (Distilled from Ground 3)
  3. Whether, considering the circumstances of the case, the learned Justices of the Court below were justified in affirming the sentence passed on the Appellant. (Distilled from Ground 4) (emphasis ours).

The Respondent adopted the same issues formulated by the Appellant but the Apex Court in its resolution of these issues, condensed issues 1, 2 and 3 into a single issue and treated issue 4 as a stand-alone issue.

The focus of this article is not on issues 1, 2, 3 – treated as issue 1 by the Apex Court. It is on the second issue – original issue 4 distilled by the Appellant. This issue which has been reproduced above (with emphasis added) shows that the Appellant distilled same from Ground 4 of its Notice of Appeal. Although the learned Justices did not reproduce the contents of the grounds of appeal in its judgment, it is the law that every issue for determination before an appellate court must arise from a valid ground of appeal. An appellate court is not permitted to entertain any issue which cannot brook its provenance to an existing valid ground of appeal in the Notice of Appeal. Please see Elemchukwu Ibator & ors v Chief Beli Barakuro & Ors (2007) LPELR 1384 (SC) and Ideh v The State (2019) LPELR -46899(SC).

This issue – “Whether, considering the circumstances of the case, the learned Justices of the Court below were justified in affirming the sentence passed on the Appellant” – clearly shows that the gravamen of the Appellant’s discontentment with the decision of the Court of Appeal is the sentence passed by the trial Court and affirmed by the Court of Appeal.

The Respondent adopted the same issues as the Appellant, meaning that both parties requested the Supreme Court vide this issue to determine if considering the circumstances, the Court of Appeal was justified in affirming the sentence of the appellant. The word justified according to Merriam Webster dictionary means ‘having or have a right or reasonable basis’ while ‘Whether’ according to Merriam Webster Dictionary is defined an indirect question involving stated or implied alternatives.

In other words, the job which both parties requested the Supreme Court to perform vide this issue, was to determine one way or the other  if:

  1. the Court of Appeal was right or had reasonable and legal basis to have affirmed the sentence of 3 years imprisonment imposed by the trial Court on Count 3 which is an offence mandatorily punishable by 10 years imprisonment or the alternative sentence of N 200,000:00 or both; or
  2. if the Court of Appeal was wrong to have to affirmed the sentence of 3 years imprisonment of the Appellant instead of the mandatory 10 years imprisonment or the alternative sentence of N 200,000:00 or both upon conviction of the Appellant of the charged offence under Section 19 of the Act.
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Interestingly, in their arguments on this issue, as reported in the judgment of the Apex Court, the Appellant’s Counsel argued that the trial Court failed to exercise its discretion to impose a lesser sentence when the law imposes a maximum sentence, especially when the allocutus of the accused person is put in perspective. Counsel argued that the trial Court was wrong to have refused to consider the mitigating factors such as the fact that the offender was a first time offender, in imposing the maximum sentence on the Appellant. The Respondent’s Counsel, on the other hand, argued that the trial Court was right to have imposed the maximum sentence on the Appellant especially when considering the age of the victim and the seriousness of the offence.

It is indeed the law that a Court is bound by the issues which are submitted to it for determination. But nothing in our jurisprudence suggests that a Court is limited to only the arguments which the parties make before it. The Court has never been limited to only the arguments – and authorities cited in support – of Counsel. The Court is at liberty to make its own research on issues and authorities presented to it for determination. Please see the case of ORUGBO v UNA (2002) 9-10 S.C. 61 and ACCESS BANK v. AGEGE LOCAL GOVT & ANOR (2016) LPELR-40491(CA).

The Supreme Court therefore acted within its jurisdiction when it properly interpreted section 19(b) of the Trafficking in Persons Prohibition Law Enforcement and Administration Act, 2003, which is the legislation/authority the Appellant was said to have breached. The courts have a fundamental duty to interpret the law – EPEROKUN & ORS v. UNILAG (1986) LPELR-1150(SC). The trial Court had wrongly exercised its duty by imposing a lesser sentence when legislation calls for mandatory sentence. The Apex Court had a duty to interpret and apply the correct law and it discharged this duty when the Noble Lord Kekere-Ekun JSC held thus:

“Earlier in this judgment, I reproduced the provisions of Sections 15 (a), 16 and 19 (b) of the Trafficking Act. Any person found guilty under Section 15 (a) of the Act is “liable on conviction to imprisonment for fourteen years without an option of fine”. Any person found guilt under Section 16 of the Act is “liable on conviction to imprisonment for ten years without an option of fine.” The provisions are clear and unambiguous. The sentences are mandatory. The trial Judge has no discretion to exercise in the matter. The issue of discretion only arises where the law provides for a minimum or maximum sentence or an alternative sentence, in which case the Court has a discretion not to impose less than the minimum and not more than the maximum sentence or to impose the alternative sentence in lieu of or in addition to the custodial sentence. See: Musa Yusuf Vs FRN (2017) 8 NWLR (Pt. 1622) 502; (2017) LPELR-43830 (SC) @ 38 – 40 F – A.

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Thus, this Court cannot and will not interfere with the sentences imposed by the learned trial Judge on counts 1 and 2 of the charge, as affirmed by the lower Court. With regard to count 3, Section 19 (b) of the Trafficking Act provides that a person found guilty of an offence under the sub-Section “is liable upon conviction to imprisonment for ten years or to a fine not exceedingN200,000.00 or both”. To my mind, the only discretion conferred on the learned trial Judge in this regard is as follows:

  1. to impose a mandatory term of ten years imprisonment;
  2. to impose a fine not exceeding N200,000.00 in lieu of the custodial sentence; or
  3. to impose a mandatory term of ten years imprisonment in addition to a fine, which must not exceed N200,000.00.

The learned trial Judge sentenced the appellant to a term of three years imprisonment on count 3. The term of years prescribed in

Section 19 (b) is mandatory, just as the term of years in Sections 15 (a) and 16 of the Act are mandatory. I am therefore of the considered view that the learned trial Judge erred in imposing a term of three years. He had no discretion to do so and the Court below erred in affirming the sentence in count 3. The said sentence is hereby set aside. I affirm the appellant’s conviction on count 3 and sentence her to a term of ten years imprisonment.”

Hence, the Supreme Court should therefore be applauded for the role it played in ensuring that the law is properly applied. The Court of Appeal failed to note the error of the trial Court. The Supreme Court has by this judgment, demonstrated why it is the Apex Court, composed of the brightest legal luminaries in our judiciary, with the ability and wisdom to see and reason beyond the intelligence of the trial courts and the court of appeal.

In conclusion, the prevalence of human trafficking has so adversely affected not just the lives of its victims or their families but the society at large that if not curbed in the strictest way possible, portends a grave danger for Nigeria’s youthful population, particularly its female folk. According to International Organization of Migration report in 2017, there is a 600 percent increase in the number of potential sex trafficking victims to Italy by sea – with most arriving from Nigeria. While 80 percent of women and children arrive from Nigeria. Between July 2003 and December 2019, NAPTIP has reportedly rescued 14,688 victims of human trafficking. Against this backdrop, the well-considered lead judgment of the Noble Lord Kereke-Ekun JSC imposing the mandatory sentence provided by law has helped shape the stance and policy of the Nigerian Judiciary towards the nefarious, bestial and barbaric act of human trafficking.

*Justice Beyond Hashtags Foundation is a group of lawyers who provide legal support to victims of sexual offences and advocate for legislative and policy changes in the fight against sexual offences. JBH can be reached through their email address: justicebeyondhashtag@gmail.com

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