Punishment For Naira Abuse: Between The ACJA And Judicial Discretion – By MBANG CONFIDENCE, ESQ

INTRODUCTION

Recently, the enforcement of the law that criminalizes naira abuse has gained momentum. The Economic and Financial Crime Commission, have been very active prosecuting offenders, even for events that happened months ago. This subject matter gained traction due to the arrest, prosecution, and sentence of Okuneye Idris Olanrewaju, popularly known as Bobrisky for six months imprisonment without an option of fine. While commentators continue to ponder on sundry issues, it is our resolve that this issue can comfortably be laid to rest, if we understand the nature of judicial discretion of the court, and of course, the provisions of the Administration of Criminal Justice Act, 2024 relating to sentencing. Currently, the prosecution of popular businessman, Pascal Okechukwu, known as Cubana Chief Priest has sent a strong message to citizens that the law enforcement agency is not operating selective justice as many perceived and protested. The arrest and prosecution of Bobrisky ‘’herein referred to as Bob’’, was trailed with mixed reactions from Nigerians. Many believed that it was lack of priority to prosecute naira abusers, while others believed that Bob was a victim of circumstance. Whatever the case maybe, it has happened, and Bob like every Nigerian should know that the law is a respecter of no man.  In fact, many believed that Bob ought to have been charged for other offences other than naira abuse, since he is not the first to abuse the naira. However, the granting of bail by the court to Cubana Chief Priest exposes the fact that there are different approaches to conduct a criminal defence in our procedural law and practice. Let’s take a look at the trial in both cases.

THE TRIAL AND PROCEDURES

Before the Federal High Court, the charge against Bob contained four counts, the first read thus;

“that you, Okuneye Idris Olanrewaju, on the 24th day of March 2024, at Imax Circle Mall, Jakande, Lekki, within the jurisdiction of this Honourable Court whilst dancing during a social event tampered with the total sum of N400,000.00 (four hundred thousand naira) notes issued by the Central Bank of Nigeria by spraying same and you thereby committed an offence contrary to and punishable under section 21(1) of the Central Bank Act, 2007.’’

On the other hand, the charge against Cubana Chief Priest contained 3 counts, the first reads thus:

“That you, Okechukwu Pascal on 13th Feb. 2024, at Eko Hotel, within the jurisdiction of the court, while dancing during a social event, tampered with funds in the denomination of N500 (Five Hundred Naira) issued by the Central Bank of Nigeria by spraying same for two hours, and you thereby committed an offence, contrary to and punishable under Section 21(1) of the Central Bank Act 2007”.

For purposes completeness, section 21 of the Central Bank of Nigeria Act, 2007 provides that:

(1). A person who tampers with a coin or note issued by the Bank is guilty of an offence and shall on conviction be liable to imprisonment for a term not less than six months or to a fine not less than N50,000 or to both such fine and imprisonment. (2). A coin or note shall be deemed to have been tampered with if the coin or note has been impaired, diminished or lightened otherwise than by fair wear and tear or has been defaced by stumping, engraving, mutilating, piercing, stapling, writing, tearing, soiling, squeezing or any other form of deliberate and willful abuse whether the coin or note has or has not been thereby diminished or lightened.

(3). For the avoidance of doubt, spraying of, dancing or matching on the naira or any note issued by the Bank during social occasions or otherwise howsoever shall constitute an abuse and defacing of the naira or such note and shall be punishable, under subsection (1) of this section.

(4). It shall also be an offence punishable under subsection [1] of this section for any person to hawk, sell or otherwise trade in the naira note, coins or any other note issued by the Bank.

(5). In this section :
i. “matching” includes spreading, scattering or littering of any surface with any naira notes or coins and stepping thereon, regardless of the value, occasion or intent;
ii. “spraying” includes adorning, decorating or spraying anything or any person or any part of any person or the person of another with naira notes or coins or sprinkling or sticking of the naira notes or coins in a similar manner regardless of the amount, occasion or the intent.

Having read the charge and the law violated, it important to stress that criminal trial commences upon arraignment which includes taking of plea. A defendant may pea not guilty, guilty, or guilty with reason(s). Where a defendant pleads guilty, the court would proceed to convict and sentence the defendant after his plea of clemency (allocutus) is taken, In this circumstance, the court is always very considered because the defendant did not waste its time, and other factors would be considered before conviction. But where the defendant pleads not guilty, the matter would be set down for hearing and full blown trial. The defendant may be granted bail in this circumstance till the completion of trial unless otherwise. If at the end of he trial the defendant is found to be guilty, the court would proceed to convict and sentence. In this circumstance, the punishment may be more than a defendant who pleaded guilty, took allocutus and handed over his fate to the court to decide.

As we all know, Bob never wasted the precious time of the court, he pleaded guilty to all counts, and was convicted and sentenced. Although many expected the court to pronounce an option of fine, but hopes were dashed when the term of six months imprisonment was pronounced without an option of fine. To many, it was too harsh a punishment for spraying and tampering with naira, but the learned judge noted that it meant to serve as deterrent to the public.

On the other hand, Cubana Chief Priest pleaded not guilty to all the charges, applied for bail and was granted same. The matter would proceed to trial, and if he is found guilty, the court may pronounce a longer term of imprisonment than the six months. So, the public is advised the events depends on the approach adopted by the lawyers after a careful examination of the facts. The mere fact that Bob pleaded guilty does not makes his lawyer less productive, may be from a critical analysis of the facts, the evidence against Bob was overwhelming, and so in order not incur the rot of the court by wasting its time, they decided to choose the guilty plea. The fact that Cubana pleaded not guilty means that he is ready to defend the charges.

At this stage, we can only sit and watch how the proceedings unfolds.

NAVIGATING THE ACJA 2015, ALONGSIDE THE NATURE OF JUDICIAL DISCRETION

May God bless the drafters of the ACJA, the Act is far-best-one of the most detailed and comprehensive. Kudos to the National Assembly. One of the major innovations of the Act is on sentencing; introduction of non – custodial sentences, and decongestion of prisons.

In this light, a replication of sections 401 and 416 is quite expedient.

Section 401 of the ACJA, 2015 dealing with construction of provisions relating to punishments, provides as follows:

(1) Subject to the provisions of a law relating to a specific offence or class of offence and to the jurisdiction conferred on any court or on a person presiding over the court, the provisions in this part shall apply to sentences of death, imprisonment, fine, and non-custodial sentences.

(2) In determining a sentence, the court shall have the following objectives in mind, and may decide in each case the objectives that are more appropriate or even possible:
(a) prevention, that is, the objective of persuading the convict to give up committing offence in the future, because the consequences of crime is unpleasant;

(b) restraint, that is, the objective of keeping the convict from committing more offence by isolating him from society;

(c) rehabilitation, that is, the objective of providing the convict with treatment or training that will make him into a reformed citizen;

(d) deterrence, that is, the objective of warning others not to commit offence by making an example of the convict;

(e) education of the public, that is, the objective of making a clear distinction between good and bad conduct by punishing bad conduct;

(f) retribution, that is, the objective of giving the convict the punishment he deserves, and giving the society or the victim revenge; and

(g) restitution, that is, the objective of compensating the victim or family of the victim of the offence.

As a complement to section 401 of the law, section 417 dealing with Court to determine term of imprisonment, provides as follows:

(1) On conviction, a court may sentence the convict to a term of imprisonment as prescribed by the law.

(2) In exercising its discretion of sentencing or review of sentence, the court shall take into consideration the following factors; in addition to the provisions of section 401 of this Act:
(a) each case shall be treated on its own merit;

(b) the objectives of sentencing, including the principles of reformation, shall be borne in mind in sentencing a convict;

(c) an appeal court may in a proper case reduce the sentence imposed by the trial court, especially where it is excessive or based on wrong principles; or an appeal court may increase the sentence imposed by the trial court especially where it is inadequate;

(d) a trial court shall not pass the maximum sentence on a first offender;

(e) the period spent in prison custody awaiting or undergoing trial shall be considered and computed in sentencing a convict;

(f) trial court shall conduct an inquiry into the convict’s antecedents before sentencing;

(g) it may be desirable to adjourn for sentencing in order to have time to consider any evidence adduced at the sentencing hearing in accordance with section 311 of this Act;

(h) where there is doubt as to whether the defendant or convict has attained the age of eighteen, the court should resolve the doubt in his favour;

(i) a defendant may not be given consecutive sentences for two or more offences committed in the same transaction;

(j) an appeal court may not increase the sentence of a lower court beyond the maximum number of years the lower court has power to impose; and

(k) sentencing to a term of imprisonment shall apply only to those offenders who should be isolated from society and with whom other forms of punishment have failed or is likely to fail.

The two provisions are procedural guidelines made to direct the discretion of the court in sentencing. However, let’s be careful, the opening paragraph of section 401 subjects the provisions to the law relating to a specific offence or class of offence and to the jurisdiction conferred on any court or on a person presiding over the court. In other words, the consideration of the above factors may or may not be made, but the court must always look at the substantive law creating the offence. This is why the issue of judicial discretion is sacrosanct.

According to the Black’s Law Dictionary, judicial discretion is the liberty or privilege allowed to a judge, within the confines of right and justice, but independent of narrow and unbending rules of positive law, to decide and act in accordance with what is fair, equitable, and wholesome, as determined upon the peculiar circumstances of the case, and as discerned by his personal wisdom and experience, guided by the spirit, principles, and analogies of the law. It refers to a judge’s power to make a decision based on their individualized evaluation, guided by the principles of law.

Take note, that the judge must always apply his discretion with consideration, this is why it is a judicial discretion, and it must be exercised judicially and judiciously.

In Mr Frank Yandy v. Alhaji Umar Na Alhaji Lawan & Sons Ltd, 2018, the court noted thus:

‘’it is trite that when a court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily, but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations. Firsts Fuels Ltd v. NNPC NWLR (Pt. 1018) 276… Discretion is a very fluid situation and when a court is invited to exercise its discretion one way or the other, the court has to take cognizance of the very facts of the case before it… A Court must always exercise its discretion only on the basis of the materials placed before it and not on extraneous considerations.’’

Section 21 of the CBN Act, provides for three species of punishment viz: Imprisonment for a term not less than six months; A fine of not less than N50,000:00; or, Both fine and imprisonment.

In Bob’s case, Hon. Justice Abimbola Awogboro of the Federal High Court, Lagos in his considered discretion settled and opted for the first option and sentenced Bob to 6 months imprisonment without an option of fine. This pronouncement quickly caused a divide between legal practitioners, arguing for and against the exercise of discretion by the learned judge. Many argued that being a first time offender who pleaded guilty without wasting the time of the court, the court ought to have pronounced an option of fine. On the other hand, the court was applauded for at least pronouncing the minimum sentence of imprisonment which is six months.

It is my humble opinion that whether or not the sentence was fair, depends on the reason for the exercise of discretion by the judge. The learned judge noted that the imprisonment was to serve as deterrent to the public. Many commentators have tried to label the whole event a witch-hunt (thatsix months imprisonment without an option of fine for naira abuse was given without proper consideration of discretion, even if it was the minimum).

Whatever the case may be, Bob is advised that the law is the law, the lady justicia sees no face, not even his face. It seems from a general stand point, that the only argument that can be raised against imprisonment is the fact that our prisons are already congested, so why overcrowd same?.

CONCLUSION

In essence, the main kernel of this gist is that the outcome of punishment in Bob’s and Cubana’s case depends largely on the defence approach adopted, and discretion of the court where the prosecution succeeds in proving the charge beyond reasonable doubts, or the defendant pleads guilty. However, it strongly recommended that as time goes on, section 21 of the CBN Act should be amended to include community service as one of the punishment options. This would complement the laws and programs in force geared towards decongestion of our correctional centres.

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