Ojo & Another v. The Republic [1999-2000] 1 GLR 169

Material Facts:

The appellant was arrested and detained for two years in connection with narcotic drug offences. He was found guilty by the National Public Tribunal and sentenced to the mandatory ten years. He appealed against his conviction on the sole ground that in imposing the sentence, the Tribunal, contrary to Article 14(6) of the 1992 Constitution, did not consider the two years he had spent in lawful custody.

Issue:

Whether or not by virtue of Article 14(6) of the 1992 Constitution , the appellant’s ten-year sentence should have begun to run from when he was arrested and kept in lawful custody.

Arguments of the Appellant:

1. That if the provision was taken into account, the sentence imposed would have begun to run from the date they were first taken into lawful custody, which in their case was 14 February 1991.
2. That the trial court must say that it has taken this constitutional provision into account in imposing the sentence. Otherwise, it is deemed to not have taken the time spent in lawful custody into consideration.

Arguments of the Respondent:

1. That by virtue of Section 315(2) of the Criminal Procedure Code, 1960 (Act 30), which provides that “a sentence of imprisonment shall commence on and include the whole of the day on which it is pronounced,” the court cannot impose a retroactive sentence.
2. That the narcotic offence with which the appellants were charged has a minimum sentence of ten years, and the trial court had no discretion in the matter other than to impose a minimum sentence of ten years from the date of their conviction. The appellant’s two years in lawful custody could not be factored in to make his sentence eight years.

Holding:

Even if the trial court takes the time spent in lawful custody into account, the sentence can only run from the day it is imposed, in light of Section 315 of Act 30.

Ratio Decidendi:

In the opinion of their lordships, while Section 315 of Act 30 prevents a court from backdating a sentence, Article 14 (6) only requires that in imposing a sentence, the time spent in lawful custody be taken into consideration. Taking the time spent into lawful custody does not mean the court should backdate the sentence, as doing so would violate Section 315 (supra). Rather, if the court was to impose six months and the appellant had already spent two months in lawful custody, the court will be said to have taken Article 14 (6) into consideration if he imposes only four months (6 months – 2 months in lawful custody).

In the present case, the minimum sentence that could be imposed was 10 years. The court could not have imposed 10 years on the appellant and say it should run from when he was arrested two years ago. Similarly, the court could not have also imposed just 8 years to run from the date of the sentence, as doing so would equally violate the enactment that provided that the minimum sentence for the appellant’s offence is 10 years.

In concluding, their lordships advise that trial courts should state expressly in the record of proceedings when they take a period of prior incarceration into account in imposing terms of imprisonment. This should be incorporated in the record and read out or announced before the precise period to be served in prison has been announced publicly by the trial judge. However, the failure of the trial court to state that it had considered Article 14(6) of the Constitution before imposing a sentence is not fatal.

Principles in Case:

1. In imposing a sentence, the court should take into account the period spent in lawful custody.

2. It is desirable for the court to expressly state the period spent in lawful custody has been taken into account in imposing a sentence. However, failing to expressly state this is not fatal.

3. Where an enactment provides for the minimum sentence for an offence, time spent in lawful custody cannot be used to impose a sentence which is lower than the minimum sentence provided by the enactment.

4. A sentence cannot be imposed retrospectively.