Bature Manya V. State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE J.C.A. (Delivering the Leading Judgment)

On July 29, 2009, at the Jalingo Division of the High Court of Taraba State, the appellant and three other accused persons were charged with the offence of illegal possession of firearms under section 5 (b) and 3 (1) of the Robbery and Firearms (Special Provisions) Act, 1990. On that day, only the pleas of three accused persons were taken. The fourth accused person was absent.

Above all, only the second accused person was represented by counsel. In effect, the appellant and the first accused person were unrepresented when the court [coram: Adamu Aliyu CJ] took their plea. The court convicted them on their plea of guilty. The learned trial Chief Judge, thereafter, sentenced the appellant to ten years imprisonment without an option of fine.

Dissatisfied with the outcome of the proceedings, he appealed to this court. Six issues were formulated on his behalf for the determination of this appeal. They were framed thus:

1. Whether the High Court of Justice of Taraba State is vested with jurisdiction to try the appellant, when it was apparent on the face of the records and or processes before the learned Chief Judge that the offence was committed wholly in Abinsi District of Guma Local Government Area of Benue State, outside the jurisdiction of the Taraba State High Court;
2. Whether the arraignment of the appellant was not invalid not having been served with the charge and proof of evidence;
3. Whether the learned Chief Judge was right in trying and convicting the appellant when the fourth accused with whom he was jointly charged was absent;
4. Whether the sentence of the appellant in breach or violation of the mandatory provision of sections 197 and 198 of the Criminal Procedure Code is not invalid;
5. Whether the learned Chief Judge was right in considering extraneous materials in coming to the determination of the sentence imposed on the appellant;
6. Whether the learned Chief Judge was right in engaging and or utilising his own knowledge or opinion about the nature of the firearms in coming to the determination of the sentence imposed on the appellant.

The respondent formulated three issues which were framed in the following terms:

1. Whether or not Grounds 1, 2 and 3 of the appellant’s Grounds of appeal which are an attack on jurisdiction and alleged invalid arraignment of the appellant in the Court below which are fresh issues raised for the first time in the Court of Appeal without leave are competent and arguable;
2. Whether or not the appellant who was convicted by the trial court under section 187 (1) and (2) of the Criminal Procedure Code on his own voluntary plea of guilty in a non-capital offence suffering (sic) any miscarriage of justice for an alleged non-compliance with the provisions of section 197 and 198 of the Criminal Procedure Code which are of relevance in a full trial;
3. Whether or not the learned Chief Judge of the court below considered extraneous materials in sentencing the appellant and others on count 11 to a term of ten years imprisonment without an option of fine.

REFORMULATION OF THE ISSUES FOR DETERMINATION

We have, painstakingly, read the entire proceedings contained in the record. We have, also, pondered over the real grouse of the appellant as can be gleaned from the Grounds of Appeal. We are of the humble view that this is one case where this court, having properly examined the facts, should be at liberty to reformulate the issues that would resolve the main question in controversy. This is notwithstanding that the parties had formulated issues for determination, Enekwe v IMB (Nig) Ltd (2006) 19 NWLR (pt 1013) 146, 170, subject to the qualifications that the re-formulated issues must be rooted in the evidence led before the court, Musa Sha (Jnr) and Anor v Darap Kwan and Ors (2000) 5 SC 178, 189; Lebile v Registered Trustees of CSCZ and Ors (2003) 1 SC (pt 1) and must derive from the grounds of appeal, Akinlagun v Oshoboja (2006) All FWLR (pt 325) 53, 74.

Against this background, we take the humble view that issues one and two in the appellant’s brief and issues ‘A’ and ‘B’ in the respondent’s brief are sufficient to dispose of the main agitation of the appellant as contained in the Grounds of Appeal. After all, the propriety or otherwise of the sentence on the appellant [issues 4; 5 and 6 in the appellant’s brief and issue ‘C’ in the respondent’s brief] is, wholly, contingent on the question whether the lower court was right in assuming jurisdiction to try him, in the first place. So, the issues that will guide this court in the determination of this appeal are:

1. Whether the High Court of Taraba State is vested with the jurisdiction to try an accused person for an offence committed, wholly, in Benue State
2. Whether the arraignment of the appellant was not invalid on the ground that he was not served with the charge and proof of evidence
3. Whether Grounds 1, 2 and 3 of the Grounds of Appeal alleging want of jurisdiction and invalid arraignment of the appellant are fresh issues which can only be raised with the leave of court
4. Whether the appellant who was convicted on his voluntary plea of guilty suffered any miscarriage of justice as to entitle him to appeal.

ARGUMENTS OF COUNSEL

ISSUE ONE

Whether the High Court of Taraba State is vested with the jurisdiction to try an accused person for an offence committed wholly in Benue State

When this appeal came up for hearing on February 29, 2012, learned counsel for the appellant, adopting and relying on the appellant’s brief of argument and the reply brief, contended that jurisdiction is the blood that donates life to the exercise of any judicial power. He noted that because of its fundamental nature, the issue of jurisdiction can be raised at any time even at the apex court. Cases were cited in support of these views.

Learned counsel, further, pointed out that it is an established principle that a suspect is only triable in the place or state where the initial element, part or essential ingredient of the offence took place, Ibori v FRN (2009) All FWLR (487) 159, 192. He drew attention to the printed record where the appellant was charged with the offence of being “in possession of assorted firearms i.e machine guns, one rocket propeller, two rocket launchers, SSBG/single barrel short gun, AK 47 rifle, two grenade M36 and ammunitions without licence” on or about February 8, 2009. The record, also, showed that the firearms were recovered from the appellant at the Abinsi Riverside, Guma Local Government Area of Benue State outside the jurisdiction of the Taraba State High Court.

Attention was, equally, drawn to pages 10; 11; 12; 13; 20; 21 and 22 of the records: pages which point, conclusively, to the fact that the said firearms were recovered from the appellant at the Abinsi Riverside, Benue State. Counsel maintained that there is nothing on the record linking the appellant with the possession of firearms in Taraba State. He cited section 8 (1) of the Act (supra) as amended by the Robbery and Firearms (Special Provisions) Act [No 62] of 1999: an Act which stipulates that any offence committed under the Act shall be triable in the High Court of the State where the offence was committed, Momodu v State (2008) All FWLR 67, 102 and section 134 of the Criminal Procedure Code.