SENTENCING

Learning Outcomes
a. What is Sentencing?
b. The goal of sentencing
c. Guidelines and principles of sentencing
d. Analysis of factors that shape sentencing in nigeria1
e. Principles guiding the sentencing functions of appellate courts
f. Types of sentences
g. Sentences in the case of juvenile offenders
h. The extent and limitations of the discretion of the court in
pronouncing sentences
i. The role of Allocutus in sentencing

A. WHAT IS SENTENCING
Sentencing is the judicial determination of a legal sanction to be imposed
on a person found guilty of an offence. It is the pronouncement by a court
upon the accused person, after his conviction in criminal trial, imposing
punishment to be inflicted. Sentencing also means the prescription of a
particular punishment by a court to someone convicted of a crime. Thus
after an accused person has been found guilty during trial or prosecution
process, the court then enters judgment of conviction and thereafter
comes sentencing. 2
A criminal sentence refers to the formal legal consequences associated
with a crime. Sentences could be probation, fines, incarceration, life
imprisonment, payment of restitution to the victim, home and hospital
confinement, community service, death penalty depending on the degree
of harm. It is a process that involves the treatment of suspects and
offenders in the process of investigation, trial and punishment.

B. RATIONALE, GOAL AND OBJECTIVES OF SENTENCING

Sentencing generally aims at the protection of the society through
prevention of crime or reform of the offender which may be achieved by
means of deterrence, elimination or rehabilitation of the offender. 3 4 (One
can say that the specific purposes for which a sentence may be imposed
1
Onuh-Agbo Eyianmanu Maria, (2018) Influencing Factors In Sentencing And Their Effects On The Control Of
White-Collar Crime In Nigeria Baze African Journal Of Management And Social Sciences VOL. 1 (1), January,
2018
2
Leonard C. Opara, ‘The Law And Policy In Criminal Justice System And Sentencing In Nigeria’, International
Journal of Asian Social Science,2014.
3
9A.A. Adeyemi. ‘The challenge of criminology in a developing country: a case study of Nigeria’, International
Annals of
Criminology, Special Number of Non Institutional Treatment of offenders, 1971 vol 10 pg 172 in Ikenga
[Link], M. V. C. OZIOKO Chinyere Osim (2019), ‘Nature And Principles Of Sentencing In
Criminal Jurisprudence In Nigeria’, International Journal of Innovative Legal & Political Studies 7(3):29-42, July-
Sept., 2019
1|Page
 are the theories of punishment). The justification is that imposing the
penalty will reduce the future incidence of such offences by preventing the
offender from carrying out the act or omission again or correcting the
offender so that the criminal inclination is removed and by discouraging or
educating other potential offenders.
The Court of Appeal per Oshintokun Oshisanya 5 in determining the essence
of sentencing and punishment held as follows: “The essence of
imprisonment is to meet the legitimate expectation of society of
retribution, where the society strikes back at the offenders to
deter potential offenders and make the commission of the crime
unattractive, protect the public and society by ensuring that dare
devil criminals and recalcitrant offenders are taken out of
circulation to provide interregnum for dangerous criminals to
reflect pending their rehabilitation to normalcy.”
The purpose of sentencing also is to contribute along with crime
prevention initiatives to respect for the law and maintenance of a just,
peaceful and safe society by imposing just sanctions that have one or
more of the following effect:
a.) To denounce unlawful conduct
b.) To deter the offender and other persons from committing offences
c.) To separate offenders from the society where necessary
d.) To assist in rehabilitating offenders
e.) e) To provide reparations for harm done to victims or to the
community.

[Link] AND PRINCIPLES OF SENTENCING

Sentencing guidelines are designed to indicate to judges the expected
sanction for particular types of offences. They are intended to limit the
sentencing discretion of judges and to reduce disparity among sentences
given for similar offences. Although statutes provide a variety of
sentencing options for particular crimes, guidelines attempt to direct the
courts to more specific actions that could be taken. The Court of Appeal in
Doripolo v state,6 per Saulawa JCA, holds as follows: “It is trite that
due to the complex and rather controversial nature thereof,
sentencing is arguably the most important area of justice system.
Ironically it is the most incoherent. Regrettably, very often than
not, sentences are passed by trial courts not on the basis of
established principles and rules but in accordance sentimental
disposition of judges. The main reason for the rudimentary state
of sentencing law is the absence of a rationale for punishment. If
we do not know why punishment is justified and what is sought to
4
Anyebe P A (2004). Sentencing in Criminal Cases in Nigeria and the Case for Paradigmatic Shifts NIALS Journal
on Criminal Law and Justice 1( 2), 18-33; 151-199.
5
Ali v. FRN 2016 LPELR 40472 CA
6
2012 LPELR 15415.
2|Page
 be achieved by it, there is no prospect of developing meaningful
sentencing, objectives and principles”.
A sentence must be proportionate to the gravity of the offence and the
degree of responsibility of the offender. In this regard therefore, a court
that imposes a sentence shall take into consideration the following
principles governing sentencing at the trial court:
1. Separate offences charged together must each receive a
separate sentence but if they all form part of the same criminal
action, the sentence will be concurrent. The Court of Appeal per
Ariwoola JCA (as he then was) in Garba v COP (2007) 7 held thus: “One of
the principles of sentencing is that where the counts relate to
one act or set of facts, sentences should not be ordered to run
consecutively. Where there are several counts on the same
information, separate verdicts must be delivered in respect of
the several counts. In other words, a trial court must pronounce
its sentences separately on all counts of the offences in a case,
otherwise the entire proceedings is certainly liable to being set
aside on appeal”.8

Where consecutive sentences are however imposed, the combined

sentence should not be unduly long or harsh.

2. A sentence should be increased or reduced to account for any relevant

aggravating or mitigating circumstances relating to the offence or the
offender.
3. A sentence should be similar to sentences imposed on similar
offenders for similar offences committed in similar circumstances.
4. An offender should not be deprived of liberty, if less restrictive
sanctions may be appropriate in the circumstances.
5. All available sanctions other than imprisonment that are reasonable in
the circumstances should be considered for all offenders, with
particular attention to the circumstances of young and vulnerable
offenders.
6. A fine must not be too heavy for the offender to pay. 9 Separate fines
imposed on different counts at the same trial are to be cumulative but
the aggregate must be within the Court’s jurisdiction. 10
7. The court must put into consideration some factors like the age of the
convicted person,11 whether the accused is a first offender, 12 the
seriousness of the offence,13 the prevalence of the particular offence, 14
7
ALL FWLR (Pt 384) p.260 at 283
8
3 Ikenso v state 2016 LPELR 41041
9
Akite Gbila v C.O.P(1965) N.N.L.R 67.
10
Fashusi v. Police(1953) 2 N.L.R.126.
11
Odidika v. State (1977) 2 S.C.1.
12
7 R. [Link] 12 W.A.C.A. 194.
13
R.v Okeke 1936 3 W.A.C.A 1.
14
Ali v FRN 2016 LPELR 40472 CA
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 the non-repentant attitude of the offender and the adverse effect of
the offence on the victim to determine whether sentence may be
mitigated or aggravated.
A school of thought argues that the belief that sentences should vary
according to the seriousness (individual and social injury) of the crime
and the dangerousness of the offender, is not right. They argue that
where administrators enjoy such discretion even in the application of
guidelines, disparity and unfairness will continue to occur such that
undermine the whole essence of sentencing and crime control. Treating
offenders differently based on a legally defined ground without regard to
the social injury of the crime may amount to injustice and myth in the
entire process of crime control. Different treatment based on any factor
that is irrelevant to the rules and purposes of sentencing is fruitless in
crime control.

D. PRINCIPLES GUIDING THE SENTENCING FUNCTIONS OF

APPELLATE COURTS
The Supreme Court has laid down some basic principles guiding the
sentencing functions of appellate courts in Nigeria. Some of these
principles are as follows:
1. An Appellate Court should not interfere with a sentence which
is the subject of an appeal merely because the judges of the
Court of Appeal might have passed a different sentence if they
had tried the case in the first instance.15 This establishes that
mere difference of opinion does not suffice for an Appeal Court to
reverse the sentence of a lower Court. The trial court has discretion in
matters of sentencing which cannot be disputed and it is also settled
that an appellate court will not readily interfere with the sentence.
However, there are circumstances under which an appellate Court will
interfere with the sentence imposed by the trial Court. This is where it
is manifestly excessive16 or wrong in principle. 17 The Court of Appeal
per Nimpar JCA18 in quoting Ademola CJN (of blessed memory) in
Adeyeye v The State held as follows: “It is trite that ordinarily,
an appellate Court will not interfere with the sentence imposed
by a trial court unless it is manifestly excessive in the
circumstances or wrong in principle. It is only when a sentence
appears to err in the principle that this court will alter it. If a
sentence is excessive or inadequate to such an extent as to
satisfy this court that when it was passed there was a failure
to observe the right principles, then this court will intervene.

15
Adeyeye & Anor v The State (1968) 1 ALL NLR 239
16
Ali v FRN 2016 LPELR 40472 CA 22
17
Ilyasu Sumaila v The State.
18
3 Karumi v FRN 2016 LPELR 40473 CA
4|Page
 The appellant therefore has a duty to establish necessary
conditions to warrant interference”.

2. The courts need to consider the facts of a particular case. This

principle proposes that a Court does not necessarily have to adopt a
sentencing approach that has been adopted in an earlier case. This
principle falls partially within the Individualization of sentencing school
of Thought.19 This school of thought believes that the result of the
hasty sentencing by the courts is that most of the offenders punished
return to society to indulge in criminality with greater fury and finesse.
This inefficacy of punishments to serve the purpose of either
deterrence or reformation indicated that they do not fit the individual
needs of offenders but only the requirements of judicial precedents or
demands of prosecution for punishment. Therefore, if punishments
awarded by courts are to be meaningful and serve any useful purpose,
they will have to be geared to such individual needs in accordance with
a rational sentencing policy.20

Individualization of sentencing therefore proposes the following:

i. That the courts make individual case studies of every offender based
on formation covering his family, social background, physical and
mental conditions, antecedents, character and above all the chances
of reform.

ii. The courts should select the most appropriate sentencing and social
measures that will serve the interest of both society and the
offender. It presupposes not only knowledge on the part of the
judges of the existence of correctional measures in relation to
different categories of criminals but also their effectiveness and
suitability for the individual needs of offenders. Thus
individualization of punishment demands that judges should look
more to the criminal than to the crime. Secondly, treat every
offender according to his individual need rather than apply
punishments on a tariff system and thirdly be guided not by
hunches, guesses or intuitions but by scientific investigations and
evaluations of those personal and social stresses which are the
contributing factors in the commission of crime.

E. TYPES OF SENTENCES
We shall consider the different types of sentences which are obtainable in
our Nigerian Courts, where they are applicable and the different courts
which have jurisdiction to pronounce them. Some of the sentences
19
4 Peter A. Anyebe, ‘Sentencing in Criminal Cases in Nigeria and the Case for Paradigmatic Shifts’, NIALS
Journal on Criminal Law and Justice Vol. 1 2011.
20
5 Individualization of sentencing: A Nigerian Experience 01/06/2017 11:23am.
5|Page
 include; death sentence, imprisonment, fine, caning, forfeiture, haddi-
lashing, deportation etc.
I. Death Sentence This is a mandatory sentence for a capital offence and
leaves the judge with no discretion.21 It is only the High Court that can
pass such a sentence as capital offences are only triable by Magistrate’s
Courts. The capital offences which carry a death sentence include:
- Murder (section 319, Criminal code cap 38)
- Culpable homicide punishable with death (Penal code section 221)
- Treason (section 37, Criminal Code (CC), section 411, Penal code).
- Treachery (section 49A (1), CC)
- Armed Robbery section 1(2), Robbery and firearms (special provisions)
Act 1990 cap 398
- Directing or controlling or presiding at an unlawful trial by ordeal from
which death results (section 208 CC)
- Giving or fabricating false evidence on account of which an innocent
person suffers death
- Instigating invasion of Nigeria (section 38 CC)
- Abatement of suicide of a child or insane person. (Section 277, Penal
Code).
The punishment of death is usually inflicted by hanging the offender by
the neck until he be dead. A death sentence is pronounced thus; ‘the
sentence of this court upon you is that you be hanged by the
neck until you be dead and may the Lord have mercy on your
soul’.22 However a death sentence for offences created by the Robbery
and Firearms Act may also be by firing squad. Anyone who is found
guilty of a capital offence shall face a death sentence as the court
has no discretion to vary the sentence. There are however certain
individuals who are exceptions to the above rule, who are not subject to a
death sentence. These are pregnant women and young persons.

Persons a death sentence cannot be passed on

A death sentence cannot be passed on a pregnant woman. Section
368(2) of the Criminal procedure Act provides thus; ‘where a
woman found guilty of a capital offence is found in accordance
with the provisions of section 376 of this Act to be pregnant, the
sentence of death shall not be passed on her but in lieu thereof
shall be sentenced to imprisonment for life’. Therefore, if a woman
can establish or the court establishes that she is pregnant at the time of
conviction, she shall not be sentenced to death but imprisonment for life.
Where a woman convicted of a capital offence alleges that she is
pregnant, it then becomes the duty of the court to determine whether she

21
6 J A Agaba, Criminal Litigation, 1st edition p.824
22
section 367(1), Criminal Procedure Act, section 273, Criminal Procedure Code
6|Page
 is pregnant or not.23 This shall be determined by the court on such
evidence presented before it by the woman or the prosecution, which
shall be to the satisfaction of the court. 24 Where it is found that the
woman is not pregnant, death sentence shall be pronounced on her. 25
The second category of persons who death sentence cannot be passed
on is that of the children and young persons. When a child or an infant is
found guilty of a capital offence, he shall not be sentenced to death nor
will the sentence be recorded against him instead the offender shall be
ordered to be detained at the pleasure of the president if the offence is a
federal offence or of the Governor in the case of an offence against a state
law. According to Section 368(2) of the Criminal Procedure Act, this
exception covers persons who have not attained the age of seventeen (17)
years at the time the offence was committed.26
II. Imprisonment: This is a very common type of sentence which is served in
a government prison until the expiration of the term of imprisonment. The
Prisons Act, laws of the Federation of Nigeria defines sentence of
imprisonment as ‘any sentence involving confinement in a prison
(whether or not it is combined with labour of any kind) and
includes a sentence given by way of commutation as well as an
original sentence passed by a court’. The Minister of Internal Affairs
may, by order in the Federal Gazette, declare any building or place in
Nigeria to be a prison and by the same or a subsequent order specify the
area for which the prison is established. 27 Imprisonment may be with or
without hard labour and when the court is silent on this, it is deemed to be
one with hard labour.28 In most cases where a sentence of imprisonment is
passed, the court either pronounces it with hard labour or be silent on it.
Since a sentence of imprisonment is deemed to be with hard labour while
the court is silent on it, it seems therefore that every sentence of
imprisonment in Nigeria goes with hard labour. There has not been a
specific definition of Hard labour as was provided in the Nigerian laws.
Hard labour may however be defined as a heavy physical labour in
addition to imprisonment imposed upon convicts sentenced for serious
crimes or for misconduct while in prison. The Prisons Act 29 however
provides thus ‘Subject to this section, the effect of a sentence of
imprisonment with hard labour passed upon a prisoner shall be that the
prisoner shall be imprisoned for the period of the sentence and during his
imprisonment shall work at such labour as may be directed by the
superintendent’. This implies that the level of hard labour to be carried out
by the prisoner is determined by the Superintendent in charge of the
prison.
23
section 376(1), Criminal Procedure Act
24
s 376(2), Criminal Procedure Act
25
s. 376(3), Criminal Procedure Act
26
s. 270 and 272, Criminal Procedure Act
27
section 2(1), Prisons Act, Laws of the Federation of f Nigeria,2004
28
Criminal Procedure Act section 377
29
section 4(1), Prisons Act, Laws of the Federation of Nigeria, 2004
7|Page
 A sentence of imprisonment may be concurrent or consecutive. A
sentence is said to be concurrent when after conviction for more than one
offence, the sentence is ordered to be served at the same time as another
sentence imposed at the proceeding or at an earlier proceeding. Simply
put, the convict is sentenced to more than one imprisonment and all the
sentences are running at the same time. On the other hand, a court may
pronounce that sentences of imprisonment may run consecutively.
This is a sentence that is ordered to begin after the expiration of a term
imposed either at the proceeding or at an earlier proceeding. 30 The
Criminal Procedure Act31 provides thus:
“Where a sentence of imprisonment is passed on any
person by a court the court may order that the sentence
shall commence at the expiration of any other term of
imprisonment to which that person has been previously
sentenced by any competent tribunal in Nigeria so however
that where two or more sentences passed by a magistrate's
court are ordered to run consecutively the aggregate term
of imprisonment shall not exceed four years or the limit of
jurisdiction of the adjudicating magistrate whichever is the
greater.”
The Criminal Procedure Code32 has a similar provision and it provides that
where the court is competent to inflict distinct punishments, such
punishment shall commence after the expiration of the other as the court
may direct, unless the court orders that such punishment should run
concurrently. Therefore, where a court convicts an accused person for
more than one offence and sentences the convict for each offence but is
silent on whether it is to run concurrently or consecutively, they are
deemed to run consecutively. It should be noted that a sentence of
imprisonment takes effect from and includes the whole of the day of the
date on which it was pronounced.33
III. Fine: This is the payment of money as a punishment. Some offences are
expressly declared to be punishable by fine. The court also has a general
power to fine a convict in lieu of sentencing him to imprisonment even
where the law creating the offence does not specifically provide for
imposition of fine.34 The Criminal Procedure Act provides thus; ‘Subject
to the other provisions of this section, where a court has
authority under any written law to impose imprisonment for any
offence and has not specific authority to impose a fine for that
offence, the court may, in its discretion, impose a fine in lieu of
imprisonment’. This provision however has some restrictions attached.

30
4 J.A Agaba, Criminal Litigation, 1st edition, p. 832.
31
s. 380. Criminal procedure Act Cap C 41
32
S. 24, Cap 42
33
s. 381, Criminal Procedure Act Cap C 41
34
s. 382, Criminal Procedure Act Cap C 41 and s. 23(1) of the Criminal Procedure Code
8|Page
 In the case of a conviction in the High Court, the amount of the fine shall
be in the discretion of the court, and any term of imprisonment imposed
in default of payment of the fine shall not exceed two years. 35 In the case
of a conviction in a magistrate's court, the amount of the fine is at the
discretion of the court and must not exceed the maximum fine authorized
by or under the law by virtue of which the magistrate was appointed. 36
Again where a statute expressly precludes the option of fine and provides
a minimum period of imprisonment to be imposed as punishment for an
offence, when the convict is unable to pay the fine, he may be ordered to
be imprisoned.37 The Act38 provides thus: “Where by any written law
the court is empowered to impose a penalty for a summary
conviction offence it may, in the absence of express provision to
the contrary in the same or any other written law, order a
defendant who is convicted of such offence, in default of payment
of the sum of money adjudged to be paid by the order, either
forthwith or at the time specified in the order, as the case may
be, to be imprisoned, with or without hard labour, in accordance
with the scale set forth in this section. However in imposing a
sentence of fine, the court must have regard to the ability of the convict
to pay. The Criminal Procedure Act provides that ‘a court in fixing the
amount of any fine to be imposed on an offender shall take into
consideration, amongst other things, the means of the offender
so far as they appear or are known to the court’.39

IV. Caning: This is another type of sentence available both in the Northern
and Southern part of Nigeria even though it is not available against all
types of offenders. This sentence cannot be passed on a woman or on a
man that has attained the age of 45 years and above. 40 Caning shall be
with light rod or cane or birch, and the number of strokes shall be
specified in the sentence and shall not exceed twelve and where a person
is convicted of one or more offences at one trial the total number of
strokes awarded shall not exceed twelve. 41 When any person is convicted
of any offence for which he is liable to imprisonment for a period of six
months or more the court may, if it thinks fit, having regard to the
prevalence of crime within its jurisdiction or to the antecedents of the
offender, sentence such offender to caning either in addition to or be in
lieu of any other punishment to which the offender is liable. 42

V. Haddi–lashing: This type of sentence is prescribed under the Criminal

Procedure Code and is peculiar to these CPC states with respect to

35
s. 382(2) Criminal Procedure Act Cap C 41
36
Criminal Procedure Act Cap C 41 section 382(3)(a)
37
Dada v Board of Customs and Excise Management
38
Criminal Procedure Act Cap C 41 Section 390
39
53 Criminal Procedure Act Cap C 41 Section 391
40
Criminal Procedure Act Section385, Criminal Procedure Code Section 308(4)
41
5 Criminal Procedure Act Cap C 41 section 386(1)(2)
42
Criminal Procedure Act Cap C 41 Section 387
9|Page
 offence bordering on immorality which is only applicable to Muslim men. 43
The offences in which this sentence may be imposed include adultery,
defamation, injurious falsehood and drunkenness. This sentence is not
necessarily to inflict pain as in the case of caning rather it is meant to
disgrace the convict. It is therefore merely a symbolic sentence. 44

VI. Forfeiture: This sentence has to do with seizure of property as a

punishment for a person’s offence. Forfeiture may be more in the nature
of an ancillary order made after conviction than a substantive sentence. It
is usually imposed in respect of offences bordering on property illegally
acquired or illegally produced or used for illegal production, bribe. Section
19 of the criminal code provides that the court may in addition to or in
lieu of any penalty which may be imposed order the forfeiture to the State
of any property which has passed in connection with the commission of
the offence of bribery.

VII. Deportation:45 This sentence usually applies in relation to a foreigner in

a state or country who commits an offence. It may apply to both Nigerian
citizens and non-Nigerian citizens. It may be imposed in addition to any
other sentence or it may be a sole sentence. Deportation when imposed
against a Nigerian citizen may mean to remove the convict from the place
where the offence was committed to any other part of the country in the
interest of justice. In the case of a foreigner to Nigeria, where he is found
to be engaging in dangerous conducts and acts considered to constitute a
threat to the society, he may be deported. It should be noted that
deportation as a punishment is not ordered by the court as the court does
not have power to deport a foreigner. What the court does is to
recommend to the Minister of Internal Affairs that a certain convicted
person should be deported. The Minister who has the power of
deportation may, based on the recommendation order the deportation of
the foreigner.

F. SENTENCES IN THE CASE OF JUVENILE OFFENDERS

No child shall be subjected to the criminal justice process or to criminal
sanctions. A child alleged to have committed an act which would
constitute a criminal offence if he were an adult shall be subjected only to
the child justice system and process as stipulated in the Childs Right Act. 46
As a general rule, no child shall be sentenced to imprisonment or face a
death penalty.47
However, there are certain offences that a child may be found to have
attempted to commit, then the court shall order him to be detained for a
period of time. Where a child is found to have attempted to commit
43
Criminal Procedure Code Cap C 42 section 307
44
Agaba, Criminal Litigation, 1st edition p.836
45
Criminal Procedure Act Cap 41 section 402
46
Childs Right Act 2003.
47
Child’s Right Act Section 221
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 treason, murder, robbery or manslaughter, or wounded another person
with intent to do grievous harm, the Court may order the child to be
detained for such period of time and at any place and condition as the
court may deem fit.48
Where a child charged with an offence is tried by a court and the Court is
satisfied that the child actually committed the offence, the Court shall
take into consideration the manner in which the case should be dealt with
and may include the following:49
a.) Dismissing the charge.
b.) Discharging the offender on his entering into a recognizance.
c.) Placing the child under care order, guidance order and supervision
order
d.) Ordering the child offender to participate in group counseling
e.) Ordering the child offender to pay fines, compensation or cost
f.) Ordering the parents or guardians to pay fines compensation or cost
g.) Committing the child offender to custody in a place of detention
There are four types of recognized custodian institutions for
juvenile offenders in Nigeria. These are:
a.) Remand Homes: This is where juvenile offenders are detained 50
b.) Another is the Borstal Centre: This is a federal institution for the
detention of convicted offenders between the ages of 16 and 21
years.51
c.) Approved Schools: this is for the care and protection of juvenile
offenders
d.) Prisons or Police Cells; which are meant for the detention of young
persons who are of unruly or depraved characters. 52
G. THE EXTENT AND LIMITATIONS OF THE DISCRETION OF THE
COURT IN PRONOUNCING SENTENCES
The powers of a court in pronouncing a sentence is a discretionary one.
When a statute prescribes a sentence for a particular offence, the court,
considering certain factors, has discretion to pronounce a lesser sentence
on the convicted person. The Court of Appeal per Aderemi JSC 53 held thus:
“Where the sentence prescribed upon conviction in a criminal
charge is a term of years of imprisonment, then some
extenuating factors such as the age of the convict, whether he is
a first offender etc. can be taken into consideration by the trial
judge in passing the sentence on the convict. Indeed, the trial
48
Childs Right Act 222(1) (2).
49
3Childs right act section 223.
50
(Section 3(1)(a) of the Borstal Institutions and Remand Centres Act, Cap 38, Laws of the Federation of Nigeria
(LFN) 1990).
51
Ibid.
52
(Section 111(1) of the Children and Young Persons Act (CYPA); Article 30 of the African Charter on the Rights
and Welfare of the Child.
53
Tanko v State 2009 LPELR 3136(SC).
11 | P a g e
 judge in my view has the discretion to employ these factors to
reduce the years of sentence.”
ANALYSIS OF FACTORS THAT SHAPE SENTENCING IN NIGERIA54
While a school of thought supports Judges absolute discretion in deciding
the form of punishment (individualized approach), another school favours
prescription of certain ‘standards and limitations to guide judges
decisions on sentences to offenders (Standardization approach). Such
standard guidelines include:
1. Age: Age is a mitigating factor in sentencing in Nigeria. Opara 55 and
Aduba56 referenced two aspects of the age factor that influence
sentencing process of the Nigerian law and practice. They are young
and old age. Statutory provisions prohibit the sentencing of a young
and aging offender to death. Sentences are often reduced
considerably for older people because it is thought that they do not
constitute threat to the society. The aim of deterrence in sentencing
appears to be eroded with the application of such factor as long as the
young and old people are rational beings who know pains and
pleasure.
2. The conduct of the offender after the commission of crime: The
use of discretion and guidelines allow judges to consider how
remorseful or otherwise an offender shows after the crime has been
committed in criminal sentencing.57 Opara58 demonstrated this in the
case of (Abdu Dan Sarkin Norma V Zaria Native Authority)
where the accused was charged with causing death by dangerous
driving and his sentence was reduced to three hundred naira fine or
eight months imprisonment because he reported the accident to the
relatives of the victim and took him to the hospital. This factor partly
shaped the sentencing of Tafa Balogun (former Inspector General of
Police) who in his right senses, looted billions of public funds and was
sentenced to six months imprisonment and a fine of five hundred
thousand naira on each count charge.
3. First Offender Status: This factor mitigates sentences. Nigerian
justice administration as a matter of guidelines reduces punishment
for offenders who commit crime for the first time. This attitude is
demonstrated by the Supreme Court in Anfistah V State- a case of
death caused by dangerous driving where a sentence of three years
imprisonment was reduced to one year because he was a first-time
54
Onuh-Agbo Eyianmanu Maria, (2018) Influencing Factors In Sentencing And Their Effects On The Control Of
White-Collar Crime In Nigeria Baze African Journal Of Management And Social Sciences VOL. 1 (1), January,
2018
55
Opara L. C. (2014). The Law and Policy in Criminal Justice System and Sentencing in Nigeria. International
Journal of Asian Social Science, 4(7), 886-897
56
Aduba , J N (2005). Overcrowding in Nigeria Prisons: a Critical Appraisal. Retrieved from;
[Link] 12/10/2023
57
Aduba (2005) ibid.
58
Opara (2014) ibid
12 | P a g e
 offender.59 Tafa Balogun’s sentence among others, was also partly
influenced by this factor. A motivated criminal could hide under such
guide to commit crime even when he is fully aware of the
consequence. What is four hundred million naira fine Tafa paid
compared the social harm caused by his criminal behavior? If we want
to be sincere with the aims of sentencing and our efforts in crime
control, we must have to restrict these factor to less serious crimes as
assault, theft etc. and apply serious punishment for offences that
cause social harm to the society.
4. Plea of guilt: Pleading guilty also guides the decision of judges in
sentencing offenders. This factor has been applied to many criminal
cases including the recent case of a kidnapper-Evans Chukwudumeme
(Premium Times, Monday, November 13, [Link] that of T. Balogun,
Ibru Cecelia, Bode George. etc. as public officials. While Balogun’s
sentence was reduce to six months imprisonment or fine partly
because he pleaded guilty, Ibru’s 25 counts charge were reduced to
three and was sentenced to six months on each charge to run
concurrently. Do we believe that Nigeria’s criminal justice
administration selects the poor into the net while filtering out the rich
offenders? Those in high social positions tend to hide under these
factors to cause serious harm to the society while the poor criminals
are filtered into prisons.
5. Abuse of position of trust: One of the guiding principles of the
courts is that persons in position of trust should under no
circumstance, abuse their positions for selfish ends. This factor was
employed by a high court judge to impose a fine of N120, 000) or five
years imprisonment on a police officer who received a bribe of N100
(Aduba2005). As much as we may agree that abuse of office should be
punished, comparing the case of this police officer to the crime of
other public office holders mentioned earlier shows that the aim of
sentencing is more theoretical than practical in Nigeria’s Justice
administration. Tafa, Bode and the rest committed crimes that are far
more socially injurious but got sentences that are less befitting and
returned back to enjoy the proceeds. The application of a factor in this
kind of manner is for me a clear indication of social class biases in the
justice administration and crime control.
6. Health status: The health condition of an offender is also an
influencing factor in sentencing in Nigeria. This factor was considered
and gave Ibru (former Oceanic Bank MD) among other public officials,
the opportunity to stall cases charged against them. Ibru in particular,
hid under this factor to serve her prison term in the comfort of a
private hospital. In the words of the presiding judge: The prison
authority shall, not later than two hours after receiving the convict,
take the convict to Riddington hospital to continue her treatment until

59
ibid
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 she is certified fit by the hospital authority to serve her sentence in
prison (Amokeodo & Alawiye, 2010). A record of white-collar criminals
investigated by EFCC between 2004-2014 shows that most cases have
been stalled on health ground. People amass public funds and use the
proceeds to bribe and hide under medical attention. Akoredu (former
NBA President) had maintained that law administrators are not saints
and would explore every legal loophole to their advantage and public
officials have seen the court as a stop gap. 60 This factor poses a great
challenge to sentencing and crime control in Nigeria as rightly posited
by Ribadu61. Many ex government officials have used this guide to
perpetually stall their prosecution and influence their sentences. 62
There is need therefore to review this factor if the sentencing goals
are to be achieved.
7. Membership of the same family: The police and court have
demonstrated that where parties involved in crime (both accused and
victim) are members of same family, reluctance is often exhibited in
sentence because the hardship it will bring will fall on same family.
Researches have emphasized deterrence as one of the principal goal
of sentencing. If the justice system is to be practical and sincere,
factor as membership of same family should not be a stop gap. Being
members of same family should not be a yardstick for condoning what
threatens social unity. The goal of deterrence would always be eroded
when people know that they will not be penalized because offenders
and victims are members of same family.
8. Serious Nature of the Offence: From sociological point of view, a
crime is considered serious if it constitutes social harm. In other
words, it causes harm not only to the individual victim but the society
as a whole. White-collar crimes in public service cause more serious
harm to the society yet, our public office holders who have been
accused of looting funds and those who have been sentenced hide
under sentencing loopholes to enjoy their loots. Most of them loot
enough so that on leaving office, they could use part of the proceed to
buy justice administrators who will employ these legal factors to either
stall criminal charges against them, get lenient sentences or escape it
completely while our prisons are crowded due to cases like petty
theft, assault etc. that are less serious in terms of social harm.
This discretion however, is not absolute as there are some limitations to
it. Some of these limitations may be seen as follows:
a.) Mandatory sentence: A mandatory sentence is one which must be
imposed regardless of any circumstances. Where a statute prescribes a
mandatory sentence for a particular offence, no court can pronounce a

60
EFCC 2004
61
Ribadu N. (2004). Obstacles to effective Prosecution of Corrupt Practices and Financial Crimes Cases in Nigeria.
Retrieved from; [Link]/crime/htm. On the 14th of March, 2017.
62
EFCC, (2008) Zero Tolerance. Vol. 3, No. 4, (December) pp. 43
14 | P a g e
 lesser sentence to that effect. In Nigeria, offences such as murder,
armed robbery and treason which are capital offences carry mandatory
death sentences and the court has no discretion to pronounce a lesser
sentence. The Court of Appeal per Owoade 63 on whether where a
statute prescribes a mandatory sentence in clear terms, the courts can
impose a punishment less than the mandatory sentence held thus
‘where as in the instant case, a statute such as the robbery
and firearms Act prescribes a mandatory sentence in clear
term, the courts are without jurisdiction to impose anything
less than the mandatory sentence as no discretion exist to be
exercised in the matter. Rather it is a duty imposed by law and
the sentence must be pronounced without any reservation’.
b.) Minimum and maximum sentence: Where the law creating an
offence prescribes a minimum punishment for that offence, the
discretion of the court becomes limited. These minimum punishments
are mandatory and therefore the courts cannot pronounce a sentence
lesser than that which is already prescribed by the courts. For
example, where the statute creating an offence prescribes that the
minimum sentence is two years imprisonment, the court cannot
sentence him to six months imprisonment nor order him to pay a fine.
This also applies in cases where a statute has prescribed a maximum
sentence for a particular offence, the courts discretion to exceed the
prescribed maximum sentence become limited. This could be seen in
the case of Okoma v Udoh64 where it was held that a judge cannot
impose a penalty heavier than that imposed by the law at the time of
the commission of the offence.
c.) Capital Offences: Generally, capital offences carry corporal
punishment which is not within the discretion of the court to alter.
Allocutus in the instant case is of no effect. 65 The Court of Appeal per
Jauro JCA held as follows on whether a judge has jurisdiction to listen to
allocutus and the discretion to reduce death penalty to a term of years
once the accused person has been found guilty: “Once a judge finds
an accused person guilty of culpable homicide under section
221 of the penal code, the only sentence he can pronounce is
death. A judge has no jurisdiction to listen to allocutus and no
discretion to reduce death sentence death sentence to a term
of years once the accused person as been found guilty under
section 221 of the penal code. The sentence of 14 years
imprisonment after finding the accused guilty of culpable
homicide was wrong. It is a material irregularity in the
proceedings of the trial court and this court could remedy it so
that substantial justice might be done.”

63
Pedro v State 2015 LPELR 24547 CA.
64
2002 1 NWLR (Pt 748) 438.
65
Musa v State 2014 LPELR 22912 CA.
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H. THE ROLE OF ALLOCUTUS IN SENTENCING
Allocutus is also known as the plea of mercy. It takes place after the
conviction of the accused person but before sentencing. The court
inquires of the convict whether he has anything to say why sentence
should not be passed on him according to law. It is usually a plea for
mitigation of sentence upon the convicted person. The Supreme Court per
Ngwuta JSC66 in defining allocutus hold thus; ‘allocutus is a plea in
mitigation of the punishment richly deserved by the appellant for
the offence with which he was charged and for which he was tried
and found guilty and convicted accordingly’.
Allocutus has a statutory backup. Section 247 of the Criminal
Procedure Act provides as follows: “If the court convicts the accused
person or if he pleads guilty, it shall be the duty of the registrar
to ask the accused whether he has anything to say why sentence
should not be passed on him according to law, but the omission
of the registrar so to ask him or his being so asked by the judge
or magistrate instead of the registrar shall have no effect on the
validity of the proceedings”. There is a similar provision in the section
197(1) of the Criminal Procedure Code which provides that ‘If the
finding is guilty the accused shall, if he has not previously called
any witness to character, be asked whether he wishes to call any
such witness and after such witnesses, if any, have been heard
he shall be asked whether he desires to make any statement in
mitigation of punishment’.
Taking into consideration the above provisions, we could see that there
appears a slight variation from the two provisions. The criminal procedure
code of the Northern Nigeria provides for the convict to call witness to
character, if he has any, the provision in the criminal procedure Act is
silent on the issue of calling a witness of character, it does not therefore
make any provision for such. When allocutus is entered, the court on
hearing the accused person or his counsel and putting some factors into
consideration has discretion to mitigate the sentence of the convict.
One can rightly say that allocutus is a mockery of the discretion of the
courts as there are so many limitations. 67 Taking into consideration
mandatory sentences, minimum sentence, capital sentences and the fact
that most offences carry mostly minimum or mandatory sentences, what
more is left for the court to exercise discretion over?

66
Lucky v state 2016 LPELR 40541 SC.
67
Pedro v state 2015 LPELR 24547 CA
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