ABUBAKAR MOHAMMED v. THE STATE (2013)

ABUBAKAR MOHAMMED v. THE STATE

(2013)LCN/5899(CA)

In The Court of Appeal of Nigeria

On Friday, the 8th day of February, 2013

CA/YL/35C/2011

RATIO

CRIMINAL LAW AND PROCEDURE: ARMED ROBBERY: PERIOD WITHIN WHICH POLICE INVESTIGATION RELATING TO ARMED ROBBERY SHALL BE COMPLETED WITHIN SEVEN DAYS

“Section 12(5) & (6) of the Robbery and Firearms (Special Provisions) Act provides as follows:- “12(5) Police investigation into cases relating to any person caught committing an offence under Section 1(2) of this Act shall be concluded not later that seven days after the arrest of the offender and the file containing particulars of such investigation shall be sent to the Attorney-General of the State concerned or, where there is no Attorney-General, to the Solicitor-General of the State, not later than seven days after the conclusion of the investigation. (6) Failure to comply with any of the provisions of subsection (5) of this section and of Sections 8(3) and 9 of this Act shall not affect the validity of any prosecutions under this Act.” Per AKA’AHS, J.S.C.

CRIMINAL LAW AND PROCEDURE: COMPETENCE TO FILE AN INFORMATION IS FUNDAMENTAL TO A MATTER

“…Before proceeding further, it is the law that the issue of competence to file an information and institute criminal proceedings is fundamental and when such competence is not established this Court will declare the trial a nullity. See: Queen v. Owoh (1962) 1 ALL NLR 659.” Per AKA’AHS, J.S.C.

JURISDICTION: TRIAL OF OFFENCES UNDER THE ROBBERY AND FIREARMS ACT: WHICH COURT HAS JURISDICTION

Section 9 of the Robbery and Firearms (special provisions) Act, Laws of the Federation of Nigeria, 2004 provides thus:-
“Trial of offences under this Act shall be triable in the High Court of the State concerned”
Similarly, Section 270(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:-
“There shall be a High Court for each State of the Federation”
Furthermore, by the provisions of Section 272(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a High Court in any of its judicial division can hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.PER SOTONYE DENTON-WEST, J.C.A.

SECTION 3(1) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT, 2004: PUNISHMENT FOR A PERSON HAVING FIREARMS IN HIS POSSESSION
Section 3(1) of the Robbery and Firearms (special provision) Act, 2004 provides thus:-
“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 both”.
From the above provision, there is no doubt that payment of fine appears first followed by alternative punishment of imprisonment in case of any convict under the above section. Also both punishments can be imposed at the same time depending on the circumstances of the case as they appear to the trial court. What this means in essence is that in imposition of penalty under the said Section 3(1) of the Robbery and Firearms (special provision) Act, 2004 and other similar provisions, the court has a discretionary power and will be exercised taking into cognizance of the facts and circumstances of the case.
See Okusi & Anor. v. Board of Custom & Excise (1980) FNR 439 at 443.PER SOTONYE DENTON-WEST, J.C.A.

INTERPRETATION OF STATUTES: MEANING OF THE WORD “OR” IN A STATUTE

APPEAL: WHEN AN APPELLATE COURT WILL INTERFERE WITH THE DISCRETION OF THE TRIAL JUDGE
In the Supreme Court decision in the case of Anyah V. A.N.N. Ltd. (1992) NWLR (Pt.247) 319, it was stated per Wali, JSC (as he then was) (Pp.20 – 21, paras. G – A) thus:-
“It is not in all cases that an appeal court will interfere with the exercise of discretion by a trial Judge, simply because it did not favour one of the parties litigating before him. The court will not interfere with the exercise of the discretion in the absence of proof that it was wrongly exercised. You cannot lay down hand and fast rules as to the exercise of judicial discretion by a court for the moment you do that the discretion is fettered”
See also Jones v. Curling 13 QBD 262.PER SOTONYE DENTON-WEST, J.C.A.

JUSTICES

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

IGNATUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria

Between

ABUBAKAR MOHAMMED Appellant(s)

AND

THE STATE Respondent(s)

SOTONYE DENTON-WEST, J.C.A. (Delivering the leading Judgment): The appeal stems from the Judgment of Honourable Justice Adamu Aliyu, the Chief Judge State delivered on 29th July, 2009.
The Appellant and three others were arraigned before the court for the offences of criminal conspiracy and illegal possession of firearms contrary to and punishable under Sections 5(6) and 3(1) of the Robbery and Firearms (Special Provisions) Act, 2004 respectively and the trial commenced on 21st day of July, 2009 when the court granted the prosecution the right to prefer a two count charge against the Appellant and others. The Appellant and other accused persons pleaded guilty to the charge and were accordingly convicted by the trial court by virtue of Section 187(2) of the Criminal Procedure Code.
Consequently, the Appellant and others were sentenced to a fine of N20,000.00 each on the first count and 10 years imprisonment on the second count without option of fine.
The Appellant dissatisfied with the said Judgment filed Notice and grounds of appeal to this court.
The Appellant in his brief of argument dated and filed on 12th day of July, 2011 formulated three (3) issues for determination to wit:-
1. Whether the court had jurisdiction to try the case (ground one).
2. Whether the learned Judge was right to have sentenced the Appellant to 10 years imprisonment without option. (Grounds two and three).
3. Whether the Appellant was given hearing before being sentenced to term of imprisonment (Ground four).
The Respondent in its own brief of argument dated 8th September, 2011 and filed on 15th September, 2011 submitted the following three (3) issues for determination:-
1. Whether the learned trial Chief Judge of Taraba State of Nigeria had jurisdiction to entertain the case and subsequently commit the Appellant and two others.
2. Whether the way and manner in which the Appellant and two others were tried and convicted by the learned trial Chief Judge of Taraba State of Nigeria accord with the requirements of the law.
3. Whether the sentences imposed on the Appellant and two others on conviction by the learned trial Chief Judge of Taraba State of Nigeria was proper and accord with the requirements of the law.
I have taken a cursory look at the issues submitted by both parties and they refer to similar principles of law in view of the circumstances of the appeal. Thus, the issues formulated by the Appellant will be the reference angles of this court and the determination of this appeal. Therefore the issues for determination in this appeal are:-
1. Whether the Court had jurisdiction to try the case (Ground one).
2. Whether the learned Judge was right to have sentenced the Appellant to 10 years imprisonment without option of fine (Grounds two and three).
3. Whether the Appellant was given hearing before being sentenced to term of imprisonment (Ground four).
ISSUE ONE
Whether the court had jurisdiction to try the case?
The learned Counsel for the Appellant, L. O. Yabura Esq. Submitted that a court is said to be competent and has jurisdiction when the case before the court is initiated by due process of law and upon fulfillment of any condition precedent to the exercise of its jurisdiction. The cases of Government of Akwa Ibom State v. Power Com Nig. Ltd (2004) 6 NWLR (Pt. 865) 202 at 218 – 219 and Madukolu v. Nkemdilim (1962) 2 SCNJ 341 were referred to.
It was also submitted that where a court lacks jurisdiction, the proceedings no matter how well conducted is a nullity. This is because the question of jurisdiction is the cornerstone and livewire of all litigations. The cases of Onwudiwe v. FRN (2006) 257 at 282 and 298 Olutola v. Unilorin (2004) 18 NWLR (Pt. 905) 416 at 458 para. H, H. R. Ltd. v. F. Inv. Ltd. (2007) 5 NWLR (Pt. 1027) 326 at 342.
On the principle of law that jurisdiction can be raised for the 1st time even on appeal with or without leave, the cases of Gaje v. PAYE (2003) 107 LRCN 875, 883, 884, Elligbe v. Omokhale (2004) 18 NWLR (Pt. 905) 319, 334 para. C. were referred to.
It was argued that from the charge preferred against the Appellant and other accused persons at the trial, it is clear that the offence of conspiracy and illegal possession of firearms were said to have been committed in Wukari within the Wukari Judicial Division in Taraba State. That by virtue of Section 134 of the Criminal Procedure Code Laws of Taraba State, the proper court to try the said offence was the court where the offence was wholly or partly committed i.e. Wukari judicial Division. Therefore according to the learned Counsel, the Chief Judge of Taraba State sitting over the case as he did in Jalingo Judicial Division did so in error. That the proper venue for the trial and determination of the case of the accused persons is the High Court of Justice in Wukari and not the High Court No. 1 Jalingo. The case of Odock v. State (2007) 7 NWLR (Pt. 1033) 369, 394 – 395 (Para. H – E) was referred to where the court held:-
“By virtue of Section 64 of the Criminal Procedure Law of Cross Rivers States, which is in pari materia with the Criminal Act, an offence shall be tried by a court having jurisdiction in the division or district where the offence was committed.
When a person is accused of the commission of any offence by reason of anything which he has done or if anything which has omitted to be done, and any consequence which has ensured such offence may be tried by a court having jurisdiction in the division or district in which any such thing has been done or any such consequence has ensued.”
The court further at page 400 para E – G in Odock v. State (supra) held thus:-
“There is only one High Court in each state of the Federation and the Federal Capital Territory Abuja. However, for ease and convenience in administration of justice, each High Court is by its own rules, divided into a number of judicial divisions. Ordinarily, cases emanating in a judicial division ought to be heard in that division or the division where the act is done or where the consequences of the act ensues.”
It was submitted that this court rightly and properly took a similar stand in the case of Ibori v. FRN (2009) 3 NWLR (pt.428) 283, 323 – 324 para. H – B where it was held in part:-
“It is not right, proper and fair for either the prosecution or the accused person to pick, choose, dictate, elect or select which court or Judge should hear and determine a matter in which it is involved. The venue or place of commission of an offence must be given adequate consideration where a charge is be filed in criminal prosecution. Such consideration must be given or weighed alongside other laid down factors or parameter. Thus, mostly and invariably, an accused should be tried either at the place of commission of the alleged offence or at a place which is the most proximate to the place of commission of the alleged offence”.
Moreso, it was submitted that the correct position of the law as it relates the place of trial of criminal cases is as above and a departure from this settled and trite principle in our procedural law will amount to causing destruction and a breach to the long established principle in our criminal jurisprudence and the rule governing Judgment precedents and its application in Nigeria. The case of Ogugu v. The State (1994) 9 NWLR (Pt. 366) 1 at 48 – 49 was referred to.
This court was urged to hold that the trial Judge had no jurisdiction to try the offences for which the Appellant and other accused persons were tried in Jalingo outside the place of commission of the crime and also hold that the conviction of the Appellant by the court and the sequent sentence was done without jurisdiction.
This court was urged to hold that the conviction and sentence of the Appellant by the trial court is a nullity.
The learned Counsel for the Respondent A. Y. Shitta Esq. in response submitted that Section 9 of the Robbery and Fire Arms (special provisions) Act Laws of the Federation of Nigeria, 2004 provides:-
“Trial of offences, under this Act shall be triable in the High Court of the State concerned”.
Furthermore, that it is not in dispute that the court below is a High Court in Taraba State of Nigeria and therefore has the jurisdiction to have tried and convicted the Appellant and two others for offences of criminal conspiracy and illegal possession of firearms created by Section 6(6) and 3(1) of the Robbery and Firearms (special provisions) Act, 2004. That it was in the exercise of this jurisdiction vested in the court below that the learned trial Chief Judge of Taraba State of Nigeria, Hon. Justice Adamu Aliyu proceeded to try the Appellant and two others for the said offences and subsequently convicted them based on their plea of guilty having satisfied himself that the contents of the information have been read and explained to them.
It was further submitted that there is only one High Court for each State of the Federation and that Judicial Divisions for such a High Court are only created for administrative convenience and not to divest the High Court of a State of its jurisdiction. Section 270(7) of the Constitution of the Federal Republic of Nigeria (as amended) was cited and it provides thus:
“There shall be a High Court for each State of the Federation”
It was submitted based on the above provisions that a state High Court in any of its Judicial Divisions can hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. Section 272(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) was referred to.
It was also argued that the provision of Section 134 of the Criminal Procedure Code is in conflict with the express provisions of the Constitution of the Federal Republic of Nigeria and to that extent the same should be declared null and void and of no legal effect whatsoever as provided for in Section 1(3) of the said Constitution.
It was further canvassed that the cases of Odock v. State (2007) 7 NWLR (Pt. 103) 369, 394 – 395 para. H – E, Ibori v. FRN (2009) 3 NWLR (Pt. 1128) 283, 323 – 324, para. H – B and Obiugu v. The State (1994) 9 NWLR (Pt. 366) 1 at 48-49 cited and relied on by the Appellant makes the decision of which Judicial Division within a State in which an offence has been committed is to be tried discretionary and not mandatory. That these cases were decided based on advisory rather than strict sense of the law, that all throughout the length and breath of the said decision, the words, “may”, “should” and ought” were used in the ratio decidendi cited and relied upon by the Appellant. Also that Section 18 of the interpretation Act defines the words “may”, “should” and ought” to mean discretionary and not mandatory. That the cases cited by the Appellant strengthen the submission of the Respondent on this issue.
It was submitted that a court of law has no right to act outside the four walls of the record of appeal placed before it. Thus, according to the Counsel, this appeal cannot legitimately be made on a point that did not form part of the case argued and decided by the court below. Therefore, the issue of jurisdiction was never taken and argued before the court below and therefore an appeal on this part is incompetent.
The case of Veepee Industries Limited v. Cocoa Industries Limited (2009) 169 LRCN 127 at 132-133 ratios 13, 14 and 15, was relied upon.
This court was urged to dismiss this appeal and resolve this appeal in favour of the Respondent.
RESOLUTION OF ISSUE ONE:
Section 9 of the Robbery and Firearms (special provisions) Act, Laws of the Federation of Nigeria, 2004 provides thus:-
“Trial of offences under this Act shall be triable in the High Court of the State concerned”
Similarly, Section 270(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:-
“There shall be a High Court for each State of the Federation”
Furthermore, by the provisions of Section 272(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a High Court in any of its judicial division can hear and 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 above provisions of our laws especially the Constitution do not oust or limit the jurisdiction of the High Court by mere divisions. The whole essence of judicial divisions to my mind is for the purposes of administrative convenience. See Odock v. State (2007) 7 NWLR (Pt. 1033) 369, at P. 400 para E – G where the court held thus:-
“There is only one High Court in each State of the Federation and the Federal capital Territory, Abuja. However, for ease and convenience in administration of justice, each High Court is by its own rules, divided into a number of judicial divisions. Ordinarily cases emanating in a judicial division ought to be heard in that division or the division where the act is done or where the consequences of the Act ensures”
See also Egbo v. Agbara (1997) 1 NWLR (Pt. 481), Merchants Bank of Africa v. Owoniboys Tech. Services Ltd. (1994) 8 NWLR (Pt.365) 705 at 715 – 716, S. O. Ukpai v. U. O. Okoro & Ors. (1983) 2 SC. NLR 380 (1983) 11 SC 231 at 264.
In the case of the Shell Petroleum Development Company of Nigeria Limited v. Mr. Reuben Etekoh (2011) LPELR 50207, this court held thus:-
“It is trite both in law and practice that, there is only one High Court in each state of Nigeria. However, judicial divisions are created for administrative convenience to enable the wheels of justice run speedily and smoothly at that. Therefore, judicial divisions are not separate or distinct courts, but rather, they are branches of one stem, the High Court. See the cases of:-
1. Aliyu v. Ibrahim (1992) 7 NWLR (pt. 253) P. 361.
2. Merchant Bank of Africa v. Owoniboys Technical Services Ltd. (1994) 8 NWLR (Pt. 365) P.705;
3. Ogagie v. Obivan (1997) 10 NWLR (Pt. 524) P.179 and
4. Egbo v. Agbara (1997) 1 NWLR (Pt. 481) P. 2931. This court in the case of:- Olaniyan v. Oyenole (2008) 5 NWLR (Pt. 1079) P. 114 at 133, paras. D – E, restated the point that matters of transfer orders, judicial divisions, fiat, etc., are strictly administrative, here, they do not go to jurisdiction”
Per Omoleye, JCA (P.18, paras. A – E).
Our apex court in the case of Shell Petroleum Development Company Nigeria Limited v. Chief Tigbara Edamkue & Ors. (2009) LPELR 3048 (SC) per Ogbuogu, J.S.C. (as he then was) (Pp. 28 – 29, paras. G – C) held thus:-
“I am aware that there is only one High Court in a State with judicial divisions, created for administrative convenience, or purposes. The Judges of the Federal High Court, sit in different States or separate courts as in the Federal Capital Territory both courts are bound by one statutory rule of court. See the cases of S.O. Ukpai v. Okoro & Ors. (1983) 2 SC. NLR 380 at 388, 390, 391; Skenconsult Nig. Ltd. v. Ukey (1981) 1 SC. 6 ….”
In the fight of the above holding of the court and the provision of 134 of the Criminal Procedure code laws of Taraba State. Vis-a-vis the 1999 Constitution (as amended), it is my humble view that ordinarily, cases within the jurisdiction of the High Court should be tried in the judicial division where such offence was wholly or partly committed except there are reasons to the contrary based on the circumstances and for the best and just determination of the case.
Therefore, although the alleged offence culminating in this appeal was wholly committed in Wukari judicial division, the determination of the commission of the alleged offence done by the High Court sitting in Jalingo Judicial Division was not of out of jurisdiction. Judicial divisions in the eyes of the law are merely for convenience and quick dispensation of justice.
Nevertheless, there is no circumstance of any case that would confer on either the prosecution or the accused person the right to pick, choose, dictate, elect or select which Court or Judge should hear and determine a matter. See Ibori v. FRN (2009) 3 NWLR (Pt. 1128) 283, 323-324 para. H-B.
On Section 134 of the Criminal Procedure Code from Taraba State being inconsistent with Section 272(1) of the 1999 Constitution of Nigeria, I hold the view that there is no inconsistency strict sensu in the circumstances of this case as to declare the said Section 134 CPC Taraba State null and void. It is rather subordinate in a way to the Constitution.
On Appellant’s submission that the record of the lower court does not contain issue of jurisdiction and should not be considered in this court, I hold the view that owing to the fundamental and paramount nature of jurisdiction, it can be raised even on appeal without necessarily be raised first at the lower or trial court. See Egharevba v. Eribo & Ors. (2010) 9 NWLR (Pt. 1199) 411 SC where it was held thus:-
“The issue of jurisdiction being fundamental can be raised and challenged at any stage of the proceedings in the lower court, in the Court of Appeal or even for the first in the Supreme Court. The issue of jurisdiction being so pivotal can be raised suo motuo by the court so long as the parties are accorded the opportunity to react to the issue”.
See also Nwankwo v. Yar’adua (2010) 12 NWLR (Pt.1209) 518 S.C., First City Merchant Bank Ltd. & 4 Ors. v. Abiola & Sons Bottling Co. Ltd (1991) 1 NWLR (Pt.165) 14 at 27 C.A., Nalsa & Team Associates v. NNPC (1996) 3 NWLR (pt.439) 621 at 633; (1996) 3 SCNJ 50, 61, Chief Ukwu & 3 Ors. v. Chief Bunge (1997) 8 NWLR (Pt.678) 527 at 541, 542, 544; (1997) 7 SCNJ. 262 at 273, Galadima v. Alhaji Tambai & 11 Ors. (2000) 6 SCNJ 190 at 200, 203, Jeric Nig. Ltd. v. Union Bank of Nigeria PLC (2000) (Pt. 691) 12 SCNJ 184 at 193.
In view of the foregoing, this issue is hereby resolved against the Appellant.
ISSUE TWO:
Whether the learned Judge was right to have sentenced the Appellant to 10 years imprisonment without option of fine?
The Appellant’s Counsel submitted on this issue that Section 3(i) of the Robbery and Firearms (special provision) Act, 2004 provides thus:
“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 both”.
It was submitted that for refusing or neglecting to follow the above provision of the law, by imposing the term of imprisonment without first giving the punishment of fine is in breach of the law creating the offence.
It was submitted that a court of law is duty bound by the provisions of the law creating the offence and ought not to go outside the provision of the statute. Moreso, that it is the same statute that gives the court the power to try the said offence. That since Section 3(i) of the Act provides first for a fine of N20,000.00 and the trial court by the judicial precedents as it relates to punishment ought to have been guided by law.
Furthermore, that where a statute provides for punishment for fine first and then a term of imprisonments, the fine first and not otherwise.
The case of Okusi & Anor. v. Board of Custom & Excise (1980) FNR 439 at 443 was referred to where it was held thus:-
“When the penalty has been prescribed for the offence charged the Act said “he shall be liable to a fine of five hundred pounds or to imprisonment for two years or both”. After a court in a criminal case has convicted an offender the trial Judge has a discretion to a fine in lieu of or in addition to dealing with him any other way in which the court has power to deal with him, unless for an offence whose sentence has been forced by law. But the courts are always guided through allocutive and the wordings of on Act in imposing appropriate sentence. By the wordings of section 1(1) (a) of custom and Excise Management Act, 1958, the trial court has been left to exercise its discretion on sentence, However, since the Act itself mentioned a fine first before imprisonment it could be a guiding factor for the trial court to consider the fine as a more appropriate sentence especially in case like this one, where no serious injury had occurred. I am of the view that the sentence of 18 months without any alternative payment of fine is harsh and excessive”.
It was submitted that the case cited is on all fours with the instant case as the law in both cases provided first punishment for fine, then term of imprisonment. Moreover, that the trial Judge has powers under section 382(1) of the Criminal Procedure Code to impose a fine. Thus, that the imposition of punishment by fine where same is provided is the proper step which the court ought to have embarked upon. That failure of the trial Judge, so to do is an error in law. And that it is trite law that in the process of adjudication, the court must do so in accordance with the settled principle of law. The case of Nigeria Army v. Iyela (2009) 4 WRN 1 at 27 – 28 was relied upon.
It was further submitted that though a court is placed with the discretion when it has to pass sentence, such discretion must be exercised with fairness and it must accord with the spirit of the law. That it is now settled law that where a statute provides for a particular method or process of performing a duty that method or process and not otherwise must be adopted. The case of Tanko v. The State (2009) 169 LRCN 65 (pt. 87 – 88) was referred to.
This court was urged to resolve this issue in favour of the Appellant.
On his own part, the Respondent’s Counsel submitted that Section 3(1) of the Robbery Firearms (special provisions) Act (Cap. 1211) Laws of the Federation of Nigeria, 2004 provides:-
“Any person having a firearm in his possession or under his control in contravention of the Firearms Act or any order 4 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 both imprisonment for a period of not less than ten years or to both”
It was submitted with all respect that the court below had no discretion but to impose same based on the above provision. Further that the only option open to the trial court upon conviction of the Appellant and two others for the offences was for court to have imposed a higher term of imprisonment i.e. above ten years which he declined to do. Moreso, that in passing the sentence the court below took into account the nature of the heavy arms that were found in possession of the Appellant and two others.
That the arms are of such magnitude as to constitute security threat to the peace, orderliness and lives in the State or the Federation. And that the sentences imposed on the Appellant and two others by the trial court was substantially regular and in accordance with the mandatory provisions of the law which the trial court had no discretion to reduce same. The following authorities were referred to Aminu Tanko v. The State (2009) 2 SCNM 192, Torri v. National Park Services of Nigeria (supra) P. 170 para. G, 171 paras. A – D and Section 150(1) of the Evidence Act.
It was submitted that the sentence imposed on the Appellant and two others by the court below was not manifestly excessive in view of the circumstances of the case or based on wrong principle of the law for this court to interfere. The case of Kenneth Clark v. The State (1986) 4 NWLR (Pt. 35) 381 was referred to.
This court was urged to resolve this issue in favour of the Respondent.

RESOLUTION OF ISSUE TWO
Section 3(1) of the Robbery and Firearms (special provision) Act, 2004 provides thus:-
“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 both”.
From the above provision, there is no doubt that payment of fine appears first followed by alternative punishment of imprisonment in case of any convict under the above section. Also both punishments can be imposed at the same time depending on the circumstances of the case as they appear to the trial court. What this means in essence is that in imposition of penalty under the said Section 3(1) of the Robbery and Firearms (special provision) Act, 2004 and other similar provisions, the court has a discretionary power and will be exercised taking into cognizance of the facts and circumstances of the case.
See Okusi & Anor. v. Board of Custom & Excise (1980) FNR 439 at 443.

In view of the word “or” as used in Section 3(1) of the Robbery and Firearms (special provision) Act 2004, this court in the case of Dr. Fayemi & Anor v. Adebayo Oni & Ors. (2010) LPELR 4145 (CA) held thus:-
“It is trite law that whenever the word “or” is used in a statute, it bears a distinctive meaning. Section 18(3) of the Interpretation Act is relevant. The use of the word “or” is therefore a separating factor of preceding provisions from the one coming under, and thus giving a sense of complete and an independent identity. See the cases of Obasse v. National Judicial Counsel (2008) All FWLR (Pt.434) 1637 at 1657 and Rim v. Emefo (2007) FWLR (Pt. 66) 792 at 813″
per Salami, P.C.A (as he then was) (P.90, paras. D – F).
I wish to state that by the provision of the law in respect of the issue here, I do not think that courts are duty bound to impose fine first before any term of imprisonment. It does not matter which one is considered first by the court. It all depends on the discretion of the court looking at what is before the court. I therefore find it difficult to agree with the submission of the Appellant’s Counsel at paragraph 4.05 of his brief of argument.
The prime factor in every circumstance seems to be the judicial and judicious exercise of the discretion.
In the Supreme Court decision in the case of Anyah V. A.N.N. Ltd. (1992) NWLR (Pt.247) 319, it was stated per Wali, JSC (as he then was) (Pp.20 – 21, paras. G – A) thus:-
“It is not in all cases that an appeal court will interfere with the exercise of discretion by a trial Judge, simply because it did not favour one of the parties litigating before him. The court will not interfere with the exercise of the discretion in the absence of proof that it was wrongly exercised. You cannot lay down hand and fast rules as to the exercise of judicial discretion by a court for the moment you do that the discretion is fettered”
See also Jones v. Curling 13 QBD 262.
Therefore, I agree with the submission of the learned Appellant’s Counsel at paragraph 4.06 of the brief of argument, that though a court is placed with the discretion when it has to pass sentence, such discretion must be exercised with fairness and it must accord with the spirit of the law. And that it is now settled law that where a statute provides for a particular method or process of performing a duty that method or process and not otherwise must be adopted. Nevertheless, Section 3(1) of the Robbery and Firearms (special provisions) Act, only prescribes punishment to be imposed in case of any conviction under the section, but does not provides and prescribe the manner and way the imposition is to be given since there is no particular and peculiar circumstances under consideration. As I stated earlier, the way and manner of the imposition depends on the material evidence before the court. It was therefore the materials and circumstances of the case culminating in this appeal that prompted the holding of the court below. In essence, it is my humble view that this holding ought not to be disturbed by this court.
I am therefore obliged to resolve this issue against the Appellant.
ISSUE THREE:
Whether the Appellant was given hearing before being sentenced to term of imprisonment.
The Appellant’s learned Counsel submitted that the live issue to be canvassed here is that the learned trial Judge failed to accord the Appellant fair hearing before passing sentence on the Appellant. That it is the correct and perfect statement to say that the court before passing sentence or a conviction must consider and take certain factors into consideration. These factors according to the Counsel include issues not limited to the fact that the accused person is a first offender, age of the accused, severity of the offence committed, whether injury was caused in the course of the commission of the offence etc. That the court in on doing so must act within the confines and legally admitted evidence and materials placed before the court. That the court cannot and ought not to go outside to fish for evidence or material to be used in sentencing the convict.
It was submitted that the trial Judge in this case after convicting the Appellant as recorded at page 19 of the record of proceedings, stood down the matter to 1p.m. for the Commissioner of Police to produce the Exhibits. That thereafter, the court sentenced the Appellant to 10 years imprisonment based on what he has seen and there is no evidence on record of the weapons the learned Judge described as “highly and arsenals which are a threat to peace in the state as well as in the country”. Also that there is no evidence on the record to show that these exhibits seen by the learned Judge are one and the same weapons recovered by the police from the Appellant and others. Moreso, that it is true that what the court saw at the scene where the said weapons are kept and his observations are not recorded as provided under section 77(a) (ii) and it is clear that these Exhibits were not before the court when the Appellant pleaded guilty.
It was submitted that the Appellant was not given the opportunity either to admit or dispute the Exhibits produced by the police before the trial Judge. That the procedure where the court convicts an accused person and then goes around to shop for the materials to be used in sentence is a gross violation of the Appellant’s right to fair hearing guaranteed by Section 36 of the 1999 Constitution as amended. That a criminal case can only be said to be completed when sentence is imposed on the accused person at the end of the case.
It was further submitted that the term fair hearing as provided for under Section 36 of the 1999 Constitution contemplates that parties must be treated equally before the court. The cases of Ofapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 at 605 and Ndukaubo v. Kolomo (2005) 21 NSCQR 10 at 26 – 27 were relied upon.
The learned Counsel further contended that it goes without saying that it is settled law that where there is lack of fair hearing by a court or tribunal the proceeding is a nullity. That where as in this case, the prosecution only brought materials or evidence for the purposes of sentence and which evidence the court relied heavily on to sentence the Appellant cannot be said to be within the confines of the principle of fair hearing.
That in the case of Emengor v. State (2009) 31 NRN 66, at 122 the Court of Appeal held that a fair hearing involves a fair trial and fair trial of a case consists of the whole hearing and that the lack of fair hearing is the impression of a reasonable man who was present at the trial, whether from his observation Justice has been done in the case.
It is quite obvious that no reasonable man will say the Appellant was given a fair hearing when sentence was pronounced on the Appellant before inspection.
It was further contended that the learned trial Judge by his act has overstepped his limits and acted outside the powers or discretion to sentence as it does not carry with it the spirit of the law that govern trials of accused persons. That the sentence passed on the Appellant due to the observation of the Judge of the Exhibit was done without fair hearing.
It was submitted that fair hearing according to law envisages that the court or tribunal hearing the parties’ case should be fair and impartial and must give both parties opportunity without hindrance from the beginning to the end. The case of Newswatch Ltd. v. Ibrahim Atta (2006) 26 (pt. 1) NSCQR 438 at 475 was referred to.
This court was urged to resolve this issue in favour of the Appellant.
In their own argument, the learned Counsel for the Respondent submitted that the learned trial Chief Judge acted properly and within the confines of the law when he proceeded to try the Appellant and two others summarily and convicted them. That the Appellant and two others were arraigned before the learned trial Chief Judge based on a valid and subsisting information filed by the Attorney-General of Taraba State of Nigeria and that the Appellant and two others were properly arraigned before the court below.
It was submitted that section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus:-
“Every person who is charged with criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence”.
Furthermore, it was argued that it is not in doubt that when the Appellant and two others were arraigned before the learned trial Chief Judge on 29th day of July, 2009, the contents of the two count charge were read, explained and interpreted to each of them in Hausa Language to the satisfaction of the trial court to which each of them understood and pleaded guilty separately to each of the counts in substantial compliance with the provisions of Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), sections 161, 187 and 242(1) of the Criminal Procedure Code and the decisions in the following cases:-
i. Emmanuel Olabode v. The State (2009) 7 SCM 96.
ii. Osgunye v. The State (1999) 1 NWLR (pt. 604) 548.
iii. Dike v. The State (1996) 5 NWLR (pt. 450) 553.
iv. Onuoho Kalu v. The State (1998) 13 NWLR (pt. 583) 531.
v. Emma Amanchukwu v. The Federal Republic of Nigeria (2009) 8 NWLR (pt. 1144) 475.
It was submitted that at all material time of the proceedings, the Appellant was represented by the same Counsel in the trial High Court now before this court. Pages 17 – 18 of the record of proceedings were referred to.
Further that based on the plea of guilty to both counts by the Appellant and the two others, they were convicted. That since the Appellant and two others pleaded guilty to both counts, the burden of proof placed on the Respondent then the prosecutor in the trial court, became light, shortened the distance and brought in some proximity between the offences and the mens rea or actus reus of the accused making it easier for the court below to have located the causation or causer sine qua non of the said offences and convicted them.
The case of Samuel Ayo Omojo v. The Federal Republic of Nigeria (2008) 7 NWLR (pt. 1085) 38, was relied upon.
It was argued that the court below was right when it exercised its discretion under Section 187 of the Criminal Procedure Code to convict the Appellant and two others based on their plea of guilty. The provision of Section 187 Criminal Procedure Code were reproduced as below:-
“When the High court is ready to commence the trial, the accused shall appear or be brought before it and the charge shall be read out in court and explained to the accused and he shall be asked whether he is guilty or not guilty of the offence or offences charged. If the accused pleads guilty, the plea shall be recorded and he may in the discretion of the court be convicted there on unless the offence charged is punishable with death when the presiding Judge shall enter plea of not guilty on behalf of the accused”.
It was submitted that the trial High Court is required to substantially comply with the provisions of Section 161 of the same Criminal Procedure Code, when exercising its discretion under this Section. Pages 17 – 20 of the record of proceedings were referred to.
Also that it is not in doubt that the contents of the two counts charge and the entire proceedings was read, interpreted and explained to the Appellant and the two others in Hausa Language by Ezekiel Dadulum, the Court clerk in compliance with Section 242(1) of the Criminal Procedure Code. Page 18 of the record of the proceedings was referred to.
It was further argued that the offences for which the Appellants and two other were arraigned, tried, convicted and sentenced are not capital offences, that being the case, that the court below was right in convicting them based on their plea of guilty.
The case of Torri v. National Park Services of Nigeria (2011) Vol. 5 – 7 (pt. 1) M.J.S.C. 153 at 156 – 157 ratio 4 & 5 (pt. 167 – 168) para. G and P. 168 paras. A-E, was referred to.
This court was urged to hold that the Appellant was represented by Counsel of his choice at the court below. That the court below duly discharged the legal burden placed on it in compliance with the constitutional and procedural requirements.
On the whole, this court was urged to dismiss this appeal as lacking in merit and affirm the conviction and sentence of the Appellant.

RESOLUTION OF ISSUE THREE
I wish to humbly state that the learned trial Chief Judge acted properly and within the confines of the law when His Lordship proceeded to try and convicted the Appellant & 2 Ors. The Appellant and two others were arraigned before the learned trial Chief Judge based on a valid and subsisting information filed by the Attorney-General of Taraba State of Nigeria. See pages 1 – 2 of the records.
On 21st day of July, 2009 the learned trial Chief Judge commenced hearing and after which the learned Chief Judge was satisfied that a prima facie case was made out against the Appellant and two others. See pages 16 – 17 of the record of proceedings. On the 29th day of July, 2009, the Appellant and two others were formally arraigned before the learned trial Chief Judge wherein the contents of the information were read, and explained, to them and they all pleaded guilty and were consequently convicted. See pages 17 – 20 of the record of proceedings.
In the popular case of Summanya Issah Torri v. The National Park Service of Nigeria (2008) LPELR – 8475. This court per Omoleye, JCA at P. 44 – 45, paras. held thus:-
“The law however is that, after a plea of guilty by an accused in non-capital offence cases, the court must formally proceed to the conviction of the accused without calling upon the prosecution to prove the commission of the offence by establishing the burden of proof ordinarily required by law. This is because the admission of guilt on the part of the accused would have satisfied the required burden of proof. In the instant case, the Appellant’s plea of guilty, having been properly token thereby making his arraignment a valid one, the learned trial Judge was right to proceed to convict and sentence the Appellant as he did. It became on absolutely unnecessary exercise for the trial court to call for evidence to be adduced in the pursuit of establishing that the Appellant committed the offences with which he was charge. See the cases of: (1) Dangote v. C.S.C. Plateau State (2001) 9 NWLR (Pt.717) P. 132 and (2) R. V. Wilson (1959) SCNLR P. 462, having voluntarily pleaded guilty to the charge at trial, the Appellant cannot now be heard to make a different case on appeal. He cannot appropriate and reprobate both in the same breath, the Appellant did not deny or challenge the allegation against him, rather when the charge was read to him in Hausa Language, he pleaded guilty thereto”
It is evident from the record of proceedings that the Appellant was represented by the Counsel who equally appeared for the Appellant in this appeal. See pages 17 – 18 of the record of proceedings.
I posit that since the Appellant and two others pleaded guilty to both counts of the charge against them, the burden placed on the Respondent, then the prosecutor in the trial court, became light in terms of establishing the guilt of the accused (Appellant).
It therefore gave opportunity for summary trial of the accused (Appellant) and the consequent conviction for the alleged offences. See Samuel Ayo Omoju v. The Federal Republic of Nigeria (2008) 7 NWLR (Pt. 1085) 638.
I dare say that the court below was right when it exercised its discretion under Section 187 of the Criminal Procedure Code to convict the Appellant and two others based on their plea of guilty, for the avoidance of doubt and for the sake of emphasis, Section 187 of the Criminal Procedure Code provides:-
“When the High court is ready to commence the trial the accuse shall appear or be brought before it and the charge shall be read out in court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged.
If the accused pleads guilty, the plea shall be recorded and he may on the discretion of the court be convicted thereon unless, the offence charged is punishable with death when the presiding Judge shall enter a plea of not guilty on behalf of the accused”.
The offences for which the Appellant and two others were arraigned, tried, convicted and sentenced are not capital offences. The offences were criminal conspiracy and alleged possession of firearms not punishable with death. Thus, the trial court was right in convicting them based on their plea of guilty.
See Torri v. National Park Services of Nigeria (2011) Vol. 5 – 7 (Pt.1) M.J.S.C. 153 at 156 – 157 ratio 4 & 5 (Pp. 167- 168) para. G. and P. 168 paras. A – E where I. I. Muhammad, J.S.C. while dismissing the appeal and affirming the conviction of the Appellant based on his plea of guilty has this to say:-
“Where the offence for which an accused person is charged is not capital offence, the trial court has the discretion to convict the accused. The plea of guilty made by the Appellant is as good as a judicial confession or admission of commission of crime. Where there is an admission of guilt, the legal burden of proof, no longer arises, and no burden of proof rest on the accuser, it having been discharged by admission of the accused”.
In view of the above and the security threat now prevalent in Taraba State and the country at large, I am obliged to resolve this issue against the Appellant.
On the whole this appeal is hereby dismissed for lacking in merit. The conviction and sentence of the Appellant by the trial court is accordingly affirmed.
No order as to cost.

IGNATUS IGWE AGUBE, J.C.A.: The erudite and lucid Judgment of my Lord the Presiding Justice, S. Denton-West, J.C.A., had been carefully read and digested in draft and I am in complete agreement with him that this Appeal is unmeritorious and should be dismissed. Ordinarily with the comprehensive manner the judgment is written, there ought to be nothing more to say. However, let me comment briefly on the first Issue which borders on the venue of trial. There is no doubt that Section 134 of the Criminal Procedure Code provides that:-
“Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction –
(a) The offence was wholly or in part committed, or some act forming part of the offence was done; or
(b) Some consequence of the offence has ensued; or
(c) Some offence was committed by reference to which the offence is defined; or
(d) Some person against whom, or property in respect of which, the offence was committed is found, having been transported thither by the offender or by some person knowing of the offence.”
In the commentary to this Section of the law, the learned Author of “CRIMINAL PROCEDURE IN THE NORTHER STATES OF NIGERIA 2ND EDITION,”J. R. Jones at page 69, posited that the term “shall ordinarily” indicates that this general rule is subject to other provisions of the C. P. C. or any other Law. As for the term ‘local limits of the jurisdiction’, section one of the C.P.C defines same as:…. “the local limits of the administrative province, division or district or judicial division or magisterial district in which the justice of the peace or Court ordinarily exercises his or its functions” .
If the provisions of this section are subject to any other law then it is necessary to read the section with the provisions of other statutes nay the Constitution in order to give these provisions their real purport. Accordingly, the learned Author of the earlier cited had submitted that section 134 of the C.P.C. is not in conflict with Section 4 of the Penal Code Law of Northern Nigeria which provides for offences against Laws of the Northern Region (now States) and re-enacts Section 12A of the Nigerian Criminal Code (Cap. 42 of the Laws of Nigerian (1958); which prescribes the territorial limits of the application of the Penal Code (or Laws) of Northern States. Besides in paragraph 3 of the commentary at page 69 the learned author has also remarked thus: – “The local limits” is defined in Section 1 of the C.P.C. The High Court and Magistrates Courts and Upper Area Courts have jurisdiction throughout the state but Area Courts have territorial jurisdiction limited for most part to the old Native Authority Districts (See Area Courts (jurisdiction) Notice K.S.L.N. No. 6 of 1968 and subsequent Amendments by K.S.L.N. 16 of 1968 and 12 and 16 of 1972).”
The Author further makes it clear that whereas Section 4 of Penal Code prescribes the territorial limits of Penal Laws, Sections 134 to 136 prescribe the territorial limits of jurisdiction of criminal Courts. He referred to the dictum of Lord Diplock in the case of Treacy v. D.P.P (1971) ALL E.R. 110 at 119; where a distinction was drawn as to the jurisdiction of the Court to try the Appellant on the charge and whether the offence with which the offender was charged amounted to an offence under the Laws of England. He also alluded to Alabi v. Commissioner of Police (1971) NWLR 104; where the Ground of Appeal like the one at hand was that “the Court had no jurisdiction to try the Appellant as the Appellant did not do the act alleged against him within the area of jurisdiction of the Court;” and the Court of Appeal held that the court below had the jurisdiction to try the case because one of the elements occurred in Kano State.
It would appear that by the submission of the learned Counsel to the Appellant herein he is interpreting the provisions of Section 134 in isolation without due regard to the provisions of other sections of the C.P.C.; and Statutes like the High Court Law of Taraba State, the Robbery and Firearms (Special Provisions) Act, 2004; the Constitution of the Federal Republic of Nigeria and even the decided authorities he has cited.
For instance as rightly held by my Lord in the lead Judgment, the Constitution of the Federal Republic of Nigeria (1999) (as amended) by Section 270(1) recognizes only “a High Court for each of the State of the Federation”. By Section 272(1) of the Constitution, a High Court of a State shall have general powers to hear Criminal as well as Civil matters in both its original and appellate jurisdictions. Above all, the Law under which the Appellant was charged is a Federal Act which provides that offences under it shall be triable in the High Court of the State concerned.
From the decision in Odock v. The State (2007) NWLR (Pt. 1039) 369 at 400 paras. E – G; Shell Petroleum Co. of Nigeria Ltd. v. Reuben Etekoh (2011) LPELR – 50207; Egbo v. Agbara (1997) 1 NWLR (Pt. 841) 7; Ukpai v. Okoro & Ors (1983) 2 S.C.N.L.R. 380; Aliyu v. Ibrahim (1992) 7 NWLR (Pt. 253) 361 and Merchant Bank of Africa v. Owoniboys Technical Services Ltd. (1994) 8 NWLR (Pt.365) 705; the Supreme Court and indeed this Court had beyond peradventure settled the Issue of territorial jurisdiction of the High Court of a State, to the effect that only one Court exists and that for administrative convenience, the Court is divided into judicial Divisions to smoothen the wheel of justice.
In the light of the above, it is therefore clear that just as any Judge can be transferred from one Judicial Division to another, so can cases be they criminal or civil subject to be transferred provided there is the fiat of the Honourable the Chief Judge of the State. To this extent even the Criminal Procedure Code recognises the fallacy of the learned Counsel for the Appellant’s submission when he construed the provision of section 134 of C.P.C. in isolation. For the avoidance of doubt, sections 137 and 138 thereof stipulate that:
“137. Whenever a question arises as to which of two or more Courts ought to inquire into or try any offence it shall be decided by the Chief Judge”.
“138 (1) The Chief Judge, may whenever it appears to him that the transfer of a case will promote the ends of Justice or will be in the interests of the public peace, transfer any case from one Court to another at any stage of the proceedings.” See also section 139 of the C.P.C.
From the foregoing provisions and avalanche of authorities cited and relied upon by my Lord in his lead Judgment, I also resolve this Issue against the Appellant.
As for Issue Number 2 which relates to sentencing the Appellant to both option of fine and imprisonment for a term of 10(ten) years; I am of the considered view that in the exercise of the Honourable Court’s discretion either to impose sentence or option of fine, the antecedents of the Accused person/convict should be taken into consideration. Moreover, the social circumstances of the State and the Country in general should or ought to weigh heavily in the mind of the Court in imposing either minimal or maximum sentences. With the present State of anomie in this country where terrorism and proliferation of arms have become a cause for concern particularly in this geographical zone, the Courts must not be reticent in dealing decisively with perpetrators of dastardly acts like illegal possession of fire arms and criminal conspiracy particularly where the Appellant had pleaded guilty.
The wordings of Section 3(1) of the Robbery and Firearms (Special Provisions) Act, 2004 are very clear and unambiguous that sentence for the offence committed by the Appellant shall either be consecutive i.e. by a fine N20,000.00 or both imprisonment for a period of not less than ten years. Accordingly, on the authorities of Tanko v. The State (2009) SCNM 192; Torri v. National Park Services of Nigeria (supra); Kenneth Clark v. The State (1986) 4 NWLR (pt. 35) 381; Olanipekun v. The State (1979) 3 L.R.N. 204; Slap v. Attorney – General of Nigeria (1968) 1 ALL NLR 22 and Usen Friday Ekpo (1982) S.C. 22 at 32 per Idigbe particularly the dictum of Wali, JSC in Anyah v. A.N.N. Ltd. (1992) NWLR (Pt.247) 319; I also hold that the Honourable Judge below took into consideration the peculiar circumstances of the case in imposing the sentence and this Court shall not interfere with the exercise of the Court’s undoubted discretion in this regard. This issue is also resolved against the Appellant.
Finally, on Issue Number 3 which is whether the Appellant was given a fair hearing before being sentenced to imprisonment; I also agree with my Lord that the authorities of Omoju v. FRN (2008) 7 NWLR (Pt. 1085) 638; Torri v. N.P.S.N. (supra) at 168 paras. A – E; per Mohammad, J.S.C.; clearly enunciated the principle underlying the provisions of section 187 of the C.P.C. in dismissing the Appeal in the Supreme Court which I also adopt herein to hold that since the Appellant pleaded guilty, the learned trial Judge in the Court below had no other duty than to proceed with imposition of sentence at his discretion when the Appellant pleaded guilty to charges preferred against him. The Appellant having pleaded guilty, it was left for the learned Counsel for the Appellant during allocutus to bring to bear facts that would have persuaded the Court below to mitigate the Appellant’s sentence if at all the law permitted him so to do. From the foregoing, and the more elaborate reasons advanced by my Lord in the lead Judgment, I shall hold that the sentence imposed on the Appellant was regularly done and same is accordingly affirmed. On the whole, this Appeal lacks merit and shall be and it is hereby dismissed. I affirm the Judgment of the learned trial Judge in its entirety.