The Implications of the Mandatory Sentences in the Penal Code Law of Kaduna State 2017 (as amended) on the Jurisdiction of Criminal Courts in Kaduna State


Emmanuel J. Samaila, Esq.


One of the determinants of the efficacy or otherwise of a criminal justice system is the nature of punishment meted out on a convict. Every crime carries a stipulated sentence which is adjudged to be sufficient for the attainment of the objectives of criminal justice. In this article, two kinds of sentences are considered: mandatory and discretionary sentences. It is established that the express provision of one form of sentence automatically excludes the other and a court is bound to follow the law as it is, not as it wishes it is. The discourse concludes with the identification of an exception to the general rule.

Keywords: sentences, mandatory, discretionary, criminal justice, Penal Code.


In every penal law, provision is made for the kind of sentence to be imposed upon a convict. The sentence may either take a mandatory or a discretionary form. In this article, the term ‘Court’ is defined as ‘Customary Courts presided over by legal practitioners, Shari’a Court, Magistrates’ Court, and State High Court’.[1] The Penal Code Law of Kaduna State 2017 (as amended), hereafter referred to as “the ACJL”, further specified the classes of criminal courts in Kaduna State.[2]

Two Kinds of Sentences

There are two kinds of sentences contained in almost every penal law. These are: the mandatory and discretionary sentences. It is unarguable that the draughtsman intentionally made this distinction in order that the ends of justice will be adequately served and be seen to be served.

A mandatory sentence is always indicated by the phrasal constrict: “not less than”.[3] It also contains an irreducible minimum term of imprisonment or fine. For instance, the offence of Voluntarily Causing Hurt Without Provocation[4] attracts a prison term of “not less than Five years” and a fine of “not less than N50,000”. The discretion a court may exercise while imposing a punishment for such an offence is only as to what increase it may choose to make above the stipulated minimum. The court cannot impose any lesser term of imprisonment or fine if it lacks the jurisdiction to impose the expressly stated irreducible minimum.

Conversely, discretionary sentences are always preceded by the phrasal construct: “which may extend to”.[5] They always contain a maximum term or fine which cannot be exceeded. For instance, Section 383 of the Kaduna State Penal Code Law 2017 (as amended) provides for a term of imprisonment “which may extend to One month” or a fine “which may extend to Ten Thousand” for the offence of Drinking Alcoholic Drink. The Court may exercise its discretion while imposing a punishment for such an offence by giving any term of imprisonment or fine either less than or up to the stipulated maximum, depending on the circumstances of the case and the consideration of mitigating factors such as the convict not being a recidivist.

It is noteworthy that the Penal Code[6] makes a special provision for instances where no fixed sum is stipulated to which a fine may extend to. It provides thus:

Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited but shall not exceed the jurisdiction of the Court imposing it and shall not be excessive. (Emphasis supplied)

In the case of Yusuf v. FRN[7], the Court while considering the issue of whether a court has a discretionary power to alter a mandatory sentence imposed by law, stated thus:

Where a fixed or minimum punishment is expressly stated in the law, it must be imposed as the law so provides. The Court has no power to reduce such sentence. It will otherwise amount to something else than the law.

The same Court in the leading judgment[8] (quoted below in extenso) held thus:

The position of the law is governed by Section 8(a) of the Advanced Fee Fraud and Other Related Offences Act 2006 which provides that any persons who conspires with, aids, abets or counsels any other person to commit an offence under the Act, commits the offence, is liable on conviction to the same punishment as is prescribed for that offence under the Act. Section 1(3) of the same Act, provides for a sentence of not less than seven (7) years imprisonment without an option of fine for any person convicted of obtaining property by false pretences. What this positions translates in essence is that the learned trial Judge had no discretion in the matter for which the law had prescribed a mandatory term of imprisonment of not less than seven (7) years. A mandatory sentence is one which a judicial officer is required to impose regardless of the circumstances of the offense. In other words, the judicial officer has no discretion to impose a higher or lower sentence depending upon the nature of the crime. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison. Learned Cross Respondent’s Counsel had insisted that the learned trial judge had the discretion to impose a lesser punishment as sentencing is essentially a matter of the discretion of Court. The point, however, has to be made here that sentencing involves a lot of discretion especially on the part of judges, but that where the exercise of that discretion is ridiculously low and a flagrant disregard for mandatory laws as in the instant case then that discretion will be set aside without the slightest hesitation. The sentence therefore imposed by the learned trial judge is with, all due respect a violation of the provisions of the Sections 8(a) and 1(3) of the Advanced Fee Fraud and Other Related Offences Act, 2006. His Lordship did not state the source of his authority for rewriting the penal Section of the Act by imposing a miserly term of imprisonment of six (6) months in place of the mandatory imprisonment of not less than seven (7) years and without an option of fine. See the case of LUCKY v. STATE (2016) LPELR-40541 (SC). Learned Cross Appellant’s Counsel had urged the Court to invoke Section 15 of the Court of Appeal Act in re-visiting the issue of the punishment imposed with a view to effecting the necessary corrections and imposing the appropriate punishment to serve as a deterrent to others who may want to go the way of the Appellant in their dealings with fellow citizens. In the final analysis, the Cross Appeal succeeds and the lower Court’s sentence of six (6) months in Count one and another six (6) months in count two, both sentences running concurrently, is hereby set aside and it its place a term of seven (7) years imprisonment is imposed in count one and another seven (7) years imprisonment in count two is imposed both sentences to run concurrently with no option of fine. (Emphasis supplied)

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Similarly, on the question of whether a court of law can ignore the provisions of a statute which are mandatory or obligatory, the Court of Appeal, per Obaseki-Adejumo, J.C.A. in the case of AGF v. Jones[9] held thus:

I simply wish to emphasize the settled position of the law where the provisions of a statute are mandatory, a Court of law cannot legitimately brush the provisions aside; it must ensure that the provisions of the statute are mandatorily complied with. See C.C.T. & C.S. LTD. v. EKPO (2008) 6 NWLR (PT. 1083) 362 SC. In AMAECHI v. INEC (2008) 5 NWLR (PT. 1080) 227 SC; (2008) LPELR-446 (SC), the Supreme Court of Nigeria, per MOHAMMED, JSC held: “It is certainly not the duty of a Judge to interprete a statute to avoid its consequence. The consequences of a statute are those of the legislature, not the Judge. A Judge who regiments himself to the consequences of a statute is moving outside the domain of statutory interpretation. He has by that conduct engaged himself in morality which may be against the tenor of the statute and therefore not within his judicial power.” In KRAUS THOMPSON ORG. v. N.I.P.S.S (2004) 17 NWLR (PT. 901) 44; (2004) LPELR-171 (SC) pp. 11-12, paras G-B, the Apex Court, per TOBI, JSC (of blessed memory) reiterated thus: “Where provision of a statute or rule of Court is clear, the duty of the Court is to interprete the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of a Court of law to sympathise with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. That is not the function of the Court. That is rather the function of the legislature.

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In fact, the decision of the Supreme Court in Ezeani v. FRN[10] is more illuminative on the issue of mandatory sentence. The Court, per Okoro, J.S.C., held thus:

“Let me say quickly that issue of reduction of sentence does not arise as the punishment section of the law under which the appellant was charged makes 10 years the minimum sentence he could get in the circumstance. Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act Cap A6 Law of the Federation of Nigeria, 2004, 2004 provides: “(3) A person who is guilty of an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine.”

Clearly, the above provision, by the use of the words “not less than 10 years”, prescribes the lowest limit of the term of imprisonment upon conviction for conspiracy and obtaining by false pretence. As was observed by the learned counsel for the Respondent, this undoubtedly fetters the discretion of the Court from sentencing any person convicted under the Act, including the appellant, for any of the said offences to any term of imprisonment less than 10 years. It is trite law that where a law prescribes a mandatory sentence in clear terms, the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised. See Amoshima v. The State (2011) 14 NWLR (Pt. 1268) 530 at P. 530 paragraphs A – C, Afolabi v. The State (2013) 13 NWLR (Pt. 1371) 292, (2013) LPELR – 20700 (SC).

The submission of counsel for the appellant and the cases cited and relied by him are in relation to where a Court has discretion in reducing sentence. This is not the case here.

The fact that a punishment is deemed to be harsh for a given offence is not a reason for the Court to suo motu water down the effect and intendment of the draughtsman. In the case of Amoshima v. The State[11], the Court, per Fabiyi, J.S.C., held as follows:

The appellant’s counsel should be reminded of the doctrine of separation of powers as enshrined in the 1999 Constitution. The legislature is to enact laws while it is the duty of the judiciary to interpret the laws as enacted. And where a mandatory sentence is provided as in this matter, same must be pronounced without any reservation. There is no escape route.

It is also necessary to underscore the fact that an allocutus, no matter how very touching or persuasive it is, cannot avail a convict an escape route from the imposition of a mandatory sentence which the offence he is convicted for carries. In other words, an allocutus cannot operate as a mitigating factor to deflect the Court from imposing a mandatory sentence.[12]

The only option open to the Court is either to impose the sentence as it is or to utilize any of the available alternative sentences in applicable circumstances.

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The Exception

As with every other issue in law, the imposition of the mandatory or discretionary sentence upon a convict is not without an exception. The only exception to the imposition of a mandatory sentence is where an alternative sentence exists as an imposable penalty.[13] It is noteworthy that the draughtsman made provisions, in deserving cases, for the imposition of alternative sentences. The intendment of the draughtsman is to achieve the overall goal of criminal justice which includes the ‘protection of the rights and interests of the suspect, the defendant (qua convict, where applicable) and the victim.’[14] While the law seeks to adequately punish the convict, it also gives room for deserving convicts, considering certain factors, to be subjected to a less grievous punishment. Although the alternate punishment may be less intense than the stipulated sentence, the end of justice is still served as the guilty is punished and is seen to be punished, though with a milder sentence. This is done with a view of reforming or giving the convict an opportunity to amend his ways. Of course, such magnanimity of the law will not be available to a recidivist who will be made to suffer the full wrath of the law with a view to deterring him from becoming a habitual criminal.



The imposition of a lesser sentence by a court where a mandatory sentence is stipulated is a flagrant disregard of the law. Such an act is tantamount to injustice to the society, the victim and the convict. While the necessary effect is not given to a societal law, the grievance of the victim will not be adequately assuaged as the convict does not get a punishment which is commensurate to the gravity of his crime. Such purported exercise of discretion cannot be said to be done judicially and judiciously and is inevitably bound to be set aside on appeal.

Jurisdiction is such a radical thing. It is either a Court possesses it or it does not. It cannot be assumed. It is always statutorily provided for in the law establishing a Court. It is trite law that any act done by a Court bereft of the requisite jurisdiction is a nullity.

In the administration of criminal justice, acts done without the requisite jurisdiction will not only occasion a miscarriage of justice but also have adverse ripple effects, some of which may either take longer and cumbersome processes of appeal to correct. Unfortunately, some of the effects may never be corrected, especially in situations where the victim of such judicial excesses does not have the means to appeal against the unjust and unjustifiable decision of the court. These and other reasons should nudge a court endowed with punitive powers to ensure that its pronouncements are premised upon relevant and applicable penal laws, not on its whims and caprices.

HW Emmanuel J. Samaila, Esq. – Upper Customary Court, Gwantu, Sanga LGA, Kaduna State.


[1]   ACJL 2017 s3

[2]     ibid s8

[3]     PC 2017 ss53, 56, 59, 66, 68, 71, 80, 83, 99, 100 etc.

[4]     ibid s221

[5]     ibid ss54, 91, 122, 233, 271, 280, 383, 384(b), 387(2), etc.

[6]     ibid s34

[7]     (2016) LPELR-41811(CA), P33, Paras B-C

[8]     ibid Pp 30-32, Paras B-E, per Oho, J.C.A.

[9]     (2017) LPELR-43551 (CA) Pp 24-26, Paras F-A

[10]   (2019) LPELR-46800 (SC) Pp 26-27, Paras B-D. See also: Ahamefula v State (2018) LPELR-46687(CA) P 13, Para A; Ayomitan v State (2018) LPELR-45700 (CA) Pp 39-49, Paras A-C; Yusuf v FRN (2017) LPELR-43830 (SC) Pp 18-19, Paras A-A

[11]   (2011) 14 NWLR (Pt 1268) 530 at 561

[12]   Edwin v State (2019) LPELR-46896 (SC) Pp 26-28, Paras C-A. See also Lawrence v FRN (2018) LPELR-44510(CA) Pp 6-19, Paras F-E

[13]   PC ss32, 33 & 40(1); ACJL s424 and PART XLIV, particularly s457

[14]   ACJL s4


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