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Abubakar Mohammed V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

This is an appeal from the decision of the Court of Appeal, Yola Division delivered on 8th February, 2013 which affirmed the judgment of the learned tried Judge which convicted the Appellant alongside 3 others for the offence of conspiracy and unlawful possession of firearms contrary to Section 5 (6) and 3 (1) of the Robbery and Firearms (Special Provisions) Act 2004. The three other persons with whom the Appellant was charged pleaded guilty and were summarily convicted by the learned trial Judge on 29th July 2009. Being dissatisfied with the decision of Court below, the Appellant filed a notice of appeal dated 12th April 2013 and filed on 15th April, 2013.

SUMMARY OF FACTS:

The Appellant was arraigned alongside three others before the Chief Judge of Taraba State on two counts of conspiracy contrary to Section 5 (6) of the Robbery and Firearms (Special Provisions) Act 2004 punishable under same and illegal possession of firearms contrary to Section 3 (1) of the Act. When arraigned, on 29th July, 2009 before the learned

trial Judge, the Appellant and the other 3 with whom he was charged all pleaded guilty to the charges and were summarily convicted and sentenced to N20,000.00 fine in respect of the offence of conspiracy contrary to Section 5 (b) and 10 years imprisonment in respect of the offence of illegal possession of firearms contrary to Section 3 (1) of the Robbery and Firearms (Special Provisions) Act 2004.

Being dissatisfied with the judgement of the trial Court, the Appellant filed an appeal at the Court of Appeal, Yola Division vide a Notice of Appeal dated August 2009. The Court below also dismissed the appeal in its judgement of 8th February, 2013. Still being dissatisfied with the judgment of the Court below, the Appellant filed this appeal vide a Notice of Appeal of four grounds dated 12th April, 2013.

ISSUES FOR DETERMINATION:

The Appellant filed his Brief of Argument dated 30th May 2013 which was deemed properly filed and served on 20th December, 2018 and formulated two issues for determination before this Court. The issues formulated by the Appellant as contained at page 2 of the Appellant’s brief are:

“1) Whether the Court of Appeal was right in law when

it affirmed the conviction and sentence of the Appellant, notwithstanding the fundamental legal error committed by the trial Court by considering and utilising alleged weapons which were never tendered as exhibits by the prosecution.

2) Whether the Court of Appeal was right in law when it held that the trial Court had jurisdiction to try the appellant for the offences of criminal conspiracy and illegal possession of firearms, notwithstanding that, by the particulars of the charge, the alleged offences were not committed within the territorial jurisdiction of the trial Court.”

On its part, the Respondent also formulated two issues for determination, thus:

“1) Whether the learned Justice of the Court below were wrong to have affirmed the judgement of the trial Court which imposed a 10 year sentence on the appellant without option of fine for the offence of illegal possession of firearms contrary to Section 3 (1) of the Robbery and Firearms (Special Provisions) Act 2004.

2) Whether the learned Justices of the Court below were wrong to hold that the Taraba State High Court sitting in Jalingo had jurisdiction to try the

appellant who committed offences in Wukari Judicial Division of the State.

CONSIDERATION AND RESOLUTION OF ISSUES:

The crux of Appellant’s contention on issue one is that the trial Court considered materials which were not tendered as evidence before the Court in sentencing and convicting the Appellant of the offence for which he was charged. The Appellant gave a factual narrative of how the trial Judge stood down the matter after the Appellant had pleaded guilty to the offence for the Commissioner of Police to produce the weapons allegedly used for inspection. Upon inspection, the trial Court proceeded to sentence the Appellant to 10 years imprisonment.

The Appellant conceded that although he had pleaded guilty, but nonetheless argued that it was wrong in law for the trial Court to have considered materials which were not tendered and admitted as legal evidence before the Court.

The Appellant relied on the case of OMEGA BANK (NIG) PLC VS O.B.C. (2005) All FWLR (Pt.249) 1964 where this Court held that “a Court can only act upon evidence that is legally admissible”. The Appellant then urged this Court to

hold that the inspection of the weapons by the trial Court as well as the observation made thereof by the trial Court which influenced the imposition of the sentence of imprisonment, instead of the option of fine, was wrong in law, as the said weapons were never tendered in evidence.

In his submission on issue two, the Appellant challenged the legality of the trial Court which sat in Jalingo to assume jurisdiction over the Appellant for an offence allegedly committed within the Wukari Judicial Division. The Appellant cited Section 134 of the Criminal Procedure Code to buttress his contention to the effect that it is only a Court within the territorial jurisdiction of the criminal Court that has the competence and jurisdiction to try such offences.

The Appellant contended that a Court is only competent to assume jurisdiction in a matter where the case before the Court is initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction, see GOVERNMENT OF AKWA IBOM STATE VS POWERCOM NIG. LTD (2004) 6 NWLR (Pt.868) 202 at 218-219; MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341.

The Appellant further contended, by relying on

MADUKOLU VS NKEMDILIM (Supra) that where a Court lacks the requisite territorial jurisdiction to determine a matter, the proceedings no matter how well conducted is a nullity, as question of jurisdiction is the cornerstone and livewire of all litigation. The Appellant further submitted that the Chief Judge of Taraba State sitting over the case as he did in Jalingo Judicial Division did so in error as the proper venue for the trial and determination of the case ought to be High Court of Justice in Wukari and not High Court No.1 Jalingo. The Appellant relied on the case of ODOCK VS THE STATE (2007) 7 NWLR (Pt.1033) 369, at 394-395, Para H-E and IBORI VS FRN (2009) 3 NWLR (Pt.1128) 283, 383-323, Para H-B.

In his closing submission, the Appellant remarked that the decision in ODOCK VS THE STATE and IBORI VS FRN (Supra) have clearly shown that the error of conducting criminal trial in a wrong division cannot be merely cured or validated by the argument that judicial division are for ease and convenient purposes or the usual argument that there is only one High Court in a State. The Appellant then urged this Court to allow the appeal and quash his conviction and

sentence or in the alternative substitute the sentence for fine of N20,000.00 (Twenty Thousand Naira) in place thereof.

In its response, the Respondent contended that by virtue of Section 3(1) of the Robbery and Firearms (Special Provisions) Act, the trial Court has the option or judicial discretion of imposing a fine of Twenty Thousand Naira or imprisonment for a term of not less than 10 years or both. The Respondent submitted that the Court will not interfere with the exercise of judicial discretion unless it was wrongly exercised, see ANYAH VS AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) NWLR (Pt.247) 319 at 334.

On the issue of inspection of the arsenal found in possession of the Appellant, the Respondent contended that inspection or lack of it does not in any way affect the learned trial Judge’s discretion to impose whatever sentence he deems fit. Moreso, the Appellant had pleaded guilty unequivocally to the possession of those dangerous weapons. The Respondent contended that the trial Judge was obliged to inspect the weapons if only to order for their disposal as he is empowered to do so under Section 357(1) of the Criminal Procedure Code.

On issue two, the Respondent submitted that the High Court in Jalingo and Wukari are different sides of the same coin as there is only one High Court in every State divided into divisions for administrative convenience and to create easy access to justice for all litigants. The Respondent contended further that by virtue of the provisions of Section 270 (1) of the Constitution of the Federal Republic of Nigeria (as amended), “there shall be a High Court for each State of the Federation”. Similarly, Section 272 (1) confers jurisdiction in the High Court of a State to determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

The Respondent contended that even the case of ODOCK VS THE STATE (Supra) relied upon by the Appellant is unhelpful as it also acknowledges that judicial divisions are for administrative convenience. In closing, the Respondent relied on the case of SHELL PETROLEUM DEVELOPMENT COMPANY LTD VS CHIEF TIGBARA EDAMKUE & ORS (2009) LEDLR 6 at Page 28-29, ODOCK VS THE STATE (Supra) and urged this Court to dismiss this appeal and hold

that the Court below was right to have upheld the decision of the trial Court as the trial Court had an unfettered discretion by virtue of Sections 270(1) and 272(1) of the Nigerian Constitution (as amended).

I have carefully considered the arguments respectively made in this appeal by the Appellant and Respondent. As far as issues formulated by parties for the purpose of determining this appeal are concerned, I’m persuaded that the real issues in contention are as clearly formulated by the Respondent, thus:

“1) Whether the learned Justice of the Court below were wrong to have affirmed the judgment of the trial Court which imposed a 10 year sentence on the appellant without option of fine for the offence of illegal possession of firearms contrary to Section 3 (1) of the Robbery and Firearms (Special Provisions) Act 2004.

2) Whether the learned Justices of the Court below were wrong to hold that the Taraba State High Court sitting in Jalingo had jurisdiction to try the appellant who committed offences in Wukari Judicial Division of the State.”

RESOLUTION OF ISSUE ONE:

The starting point is to reproduce the exact provisions of Section 3 (1) of the Robbery and Firearms (Special Provisions) Act 2004. It states thus:

“3) Punishment for illegal possession of firearms”

“1) Any person having a firearm in his possession or under his control in contravention of the Firearms Act or any order made there under shall be guilty of an offence under this Act and shall upon conviction under this Act be sentenced to a fine of twenty thousand naira or to imprisonment for a period of not less than ten years, or to both.”

There is no pretension that the law intends that an offender found guilty under the above provisions is liable to ten years imprisonment with an option of fine of Twenty Thousand Naira, or both. This is one offence in respect of which the

Appellant had unequivocally pleaded guilty. The contention of the Appellant that the trial Court considered materials which were not tendered as evidence before the Court in convicting and sentencing the Appellant of the offence for which he was charged is, in my view, misplaced. The commission of the offence is not disputed by the Appellant who had pleaded guilty to the offence.

What formed the basis of the conviction of the Appellant is not the weapon but his admission of guilt. The inspection of the weapon was only an opportunity to view the magnitude of the threat to security or peace of the State or Federation that those objects constitute. As observed by the Court below, the sentences imposed on the Appellant and two others by the trial Court was substantially the same and in accordance with the mandatory provisions of the law as quoted above. The case of OMEGA BANK (NIG) PLC VS O.B.C. (2005) All FWLR (Pt.249) 1964 relied upon by the Appellant is irrelevant here. The Appellant pleaded guilty, but nonetheless contended that it was wrong in law for the trial Court to have considered materials which were not tendered and admitted as legal evidence before the Court.

The law is settled. After a plea of guilt by an accused person in non-capital offence, the Court must formally proceed to the conviction of the accused without calling upon the prosecution to prove the commission of the offence. See R VS WILSON (1995) SCNLR P. 462, SUMMANYA ISSAH TORRI VS NATIONAL PARK SERVICE OF NIGERIA (2008) LPELR 8475, at Pages 44-45. See also Section 187 of the Criminal Procedure Code on guilty plea.

Admission of guilt on the part of the accused would have satisfied the required burden of proof. The Appellant did not deny or challenge the allegation against him. It is therefore absolutely ludicrous to expect a mere slap on the palm by imposing only a fine of Twenty Thousand Naira when the trial Court, in its wisdom, and in fair and just exercise of its judicial discretion which is not in any way fettered by the self-admission of the Appellant, had carefully decided to abide by the statutory 10 year jail term.

Therefore, I hold that by virtue of Section 3(1) of the Robbery and Firearms (Special Provisions) Act, the trial Court has the option or judicial discretion of imposing a fine of Twenty Thousand Naira or imprisonment for a

term of not less than 10 years or both. The trial Court has exercised its judicial discretion fairly and justly giving the circumstances of the case and severity of the offence to which the Appellant had already pleaded guilty, it will be inappropriate for this Court to interfere with the exercise of judicial discretion unless it was wrongly exercised, which is not the case in this case. See ANYAH VS AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) NWLR (Pt.247) 319 at 334.

In view of the above analyses, I have no hesitation in resolving issue one in favour of the respondent.

RESOLUTION OF ISSUE TWO

“2) Whether the learned Justices of the Court below were wrong to hold that the Taraba State High Court sitting in Jalingo had jurisdiction to try the appellant who committed offences in Wukari Judicial Division of the State.”

The applicable law, the Robbery and Firearms (Special Provisions) Act provides for the place of trial. Section 9 states clearly that: “Offences under this Act shall be triable in the High Court of the State concerned”.

The above is a clear provision as to where the offence in question ought to be tried.

The offence was committed in Taraba State. Both Wukari and Jalingo are in Taraba State. The law has not provided for trial in any specific judicial division. Section 272(1) of the Constitution of the Federal Republic of Nigeria (as amended) provides for a High Court for each State of the Federation, including Taraba State. There is only one High Court of Taraba State. I’m in total agreement with the position of the Court below that:

“The above provisions of our laws especially the Constitution do not oust or limit jurisdiction of the High Court of a State by mere divisions. The whole essence of judicial divisions is for the purposes of administrative convenience. See Odock VS State (Supra). It is therefore trite that, there is only one High Court in each State of Nigeria. However, judicial divisions are created for administrative convenience to enable the wheel of justice run faster and speedily or smoothly and all divisions are bound by the same Rules. See Shell VS Tiagbara Edamkue (Supra). See also S.O. Ukpai VS Okoro & Ors (1983) 2 SCNLR 380 at 388, 390 and 391; and Sken consult Nig Ltd Ukey (1981) SC, at 6.”

The judicial divisions of a High Court are mere branches of the same tree, the High Court of the State and under one administrative head, who is the Chief Judge of that State. This appeal presents an interesting twist. This Court must not let the opportunity slip by without setting the law on the right path and in the right perspectives. The trial Judge in this appeal is the Chief Judge of Taraba State. The Nigerian Constitution provides that the alter ego of a State High Court is the Chief Judge of that State. I hereby reproduce the relevant section of the Nigerian Constitution, thus:

PART II: State Courts

A – High Court of a State 270.

“1) There shall be a High Court for each State of the Federation

2) The High Court of a State shall consist of ”

“a) a Chief Judge of the State; and

b) such number of Judges of the High Court as may be prescribed by a Law of the House of Assembly of the State.”

The Chief Judge of a State has no specific or fixed judicial divisions. The Chief Judge sits as the Chief Judge of that State in any civil or criminal matter. He or she superintends the entire judiciary of the State, and may sit to

assume jurisdiction to try or hear a civil or criminal case in any of the branches of the Court under his or her watch irrespective of nomenclature as ‘division’, ‘zone’, or characterisation of such Court as ‘family Court’, ‘commercial Court’, ‘criminal Court’ and others. These are permissible arrangements for administrative convenience and prompt, effective dispensation of justice.

A Chief Judge is not Chief Judge for fun. It is constitutional, legally and judicially or procedurally improper to confine the judicial and administrative function of the Chief Judge to a particular division, especially the needless restriction of judicial functions of the chief Judge to State capitals. The Chief Judge sits as Chief Judge in any division of the State, and does not sit as ‘Chief Judge of a division’ but of the entire judicial architecture of a State.

In this case, the Chief Judge sat and decided the case as Chief Judge of the entire Taraba State. The severity or sensitivity of the particular case often makes this expedient for a Chief Judge to sit over some cases, and should be able to do so in any of the judicial division or segment of that

State. In view of the foregoing, I resolve issue two in favour of the Respondent. There is no “High Court of Wukari” but ‘High Court of Taraba State sitting in Wukari, or Jalingo’. The Chief Judge is that of Taraba State which includes Wukari, Jalingo and other divisions.

It is in view of the foregoing that the two issues in this appeal are resolved in favour of the Respondent. This appeal fails in whole. This appeal lacks merit and is accordingly dismissed. The conviction and sentence of the Appellant by the Court below are hereby reconfirmed.

SC.225/2013

Abubakar Mohammed V. The State (2019) LLJR-SC

Abubakar Mohammed V. The State (2019)

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