Commissioner Of Police V. Anthony Aburime (1978)

LawGlobal-Hub Lead Judgment Report

IRIKEFE, JSC. 

Before the Benin Judicial Division of the High Court of Bendel State, the applicant herein was prosecuted on an information framed as hereunder:- At the sessions holden at Benin on the 19th day of January, 1977 the court is informed by the Director of Public Prosecutions of Bendel State of Nigeria on behalf of the State that ANTHONY ABURIME is charged with the following offence:-   Statement of offence Official corruption, contrary to Section 82A (1) (a) of the Criminal Code, Cap.28 Volume I Laws of the former Western State of Nigeria 1959, applicable in the Bendel State of Nigeria.  

Particulars of Offence ANTHONY ABURIME on or about the 28th day of August, 1976, in the premises of the State C.I.D., Benin City, corruptly gave the sum of N200.00 in N10.00. Nigerian Currency notes as a gift for coke to one Joseph Akinyemi, a public official to wit; an Assistant Superintendent of Police attached to the Force C.I.D. Nigeria Police, Lagos, on account of favour to be afterwards shown by him to you, to wit: to help you and save your name from being tarnished which meant that he should either refrain from further investigation of or act corruptly and partially in the investigation being conducted by him as a police officer into allegations against you of official corruption in relation to a case of armed robbery in which one late Chief Solomon Ogiemwenken was involved.”  

After hearing the evidence in support of the above charge, the court of trial (Ovie-whiskey, CJ.), found the applicant guilty, convicted and sentenced him to a fine of N600.00 or imprisonment for 2 years in lieu thereof.   An appeal by the applicant against his conviction to the Federal Court of Appeal was allowed and the verdict set aside on the ground that the said conviction had contravened Section 22 (10) of the Constitution of the Federation of Nigeria, 1963 which prescribes that no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law. The Federal Court of Appeal in arriving at its decision had taken the view that the charge as brought against the applicant did not satisfy the requirements prescribed under the section of the constitution quoted.   Thereafter, the Director of Public Prosecutions of Bendel State acting through a Legal Adviser in the Ministry of Justice of the State, filed what purports to be a notice of appeal (or application for leave to appeal) against the decision of the Federal Court of Appeal to this court.

The said notice, a copy of which was annexed to the applicant’s affidavit reads thus:-     “COMMISSIONER OF POLICE  V ANTHONY ABURIME   TO THE REGISTRAR OF THE FEDERAL COURT OF APPEAL, BENIN CITY. I, MICHAEL EDUN AGIBEE (LEGAL ADVISER) of the Ministry of Justice, Benin City acting on behalf of the Director of Public Prosecutions of the Bendel State, the Prosecutor in the above case and being desirous of appealing against the decision under Section 21 of the High Court Law Cap. 65 Vol. III of the Laws of BENDEL STATE, 1976.    

Do hereby give notice of appeal for application for leave to appeal on the following grounds:- (1) The learned appellate Justices erred in law by failing to consider adequately, if at all, that the Criminal Code, Cap. 28 Laws of the former Western State of Nigeria, 1959, Volume 1 (then applicable in the Bendel State of Nigeria) and S.82 thereof are equivalents of, identical, similar to or same as the Criminal Code, Cap. 42, Laws of the Federal Republic of Nigeria, 1958, Vol II, and its, S.98 respectively because this is so from all intents and purposes, having regard to the preface and conversion table of chapters to the Criminal Code, Cap.28, and the conversion table at the beginning of the Criminal Code, Cap.28, and having regard to all relevant laws including S.12 of the Revised Edition of the Laws (No.6 of 1959) at p.19 of the said Volume I. (2) The learned appellate justices erred in law in holding that there was no mention of S.82(a) (i) (a) by the Law Revision (Miscellaneous Amendments) Edict 1976, Edict No.3 of 1976 (of the Bendel State of Nigeria), in that the said S. 82 A (i) (a) and S.98 (A) (a) were mentioned or referred to in the Edict.  

(3) The learned appellate Justices erred in law when they held that there was no amendment of S.82 of the Criminal Code (Cap.28) and consequently that the accused/respondent was not charged under any existing law, as that section was duly amended and the accused properly charged under S.82 A (i) (a) of the same code. (4) The learned appellate Justices erred in law in their view that the Law Revision (Miscellaneous Amendments) (Amendment) Edict 1977, Edict No.17 of 1977, did not apply to the accused/respondent, since this Edict made for the avoidance of doubt, if any, is intra vires the legislative authority, was valid and was properly made retrospective as was conceded in the judgment complained of and since the Edict was deemed to have been made with effect from 31st December, 1975 before the charge was preferred.   

(5) The learned appellate Justices erred in law in holding that the Edict Nos. 3 of 1976 and 17 of 1977 were made solely for revising the laws of Bendel State of Nigeria when they were made to amend, adopt, modify or incorporate relevant laws, including the Criminal Code Cap. 28 particularly S.28 thereof for all intents and purposes and this was apparently conceded in the judgment in respect of amendments relating to Sections 16 and 17 of the Criminal Code, Cap.28.   (6) The learned appellate Justices erred in law in holding that the Edict Nos.3 of 1976 and No. 17 did not adopt, modify or incorporate S. 98 (A) (i) (a) of the said Criminal Code, Cap. 42, spelt out in Schedule 1 to the Criminal Justice (Miscellaneous Provisions) Decree 1966, Decree No. 84 of 1966.

(7) The learned appellate Justices erred in law in holding that S.22(10) of the Constitution of the Federation of Nigeria (No.20 of 1963) was infringed for charging the accused/respondent under a non-existing law, since he was properly charged under S.82(a) (i) of the Criminal Code. Cap.28.   (8) The learned appellate Justices erred in law in quashing the conviction of the accused/respondent, annulling his sentence and acquitting him when there was no basis for doing so and when he was duly tried, found guilty, convicted and sentenced.”   On being served with the notice and grounds of appeal set out above, the applicant who was the successful party at the end of the proceedings before the Federal Court of Appeal, through his counsel, brought this motion seeking an order that the said notice of appeal be struck out.  

The grounds upon which the order is sought are: “(i) There were no proceedings between the respondent on the one hand and the appellant on the other before the Federal Court of Appeal. (ii) The purported Notice of Appeal was not signed by the appellant as required by law. (iii) Section 21 of the High Court Law Cap.65 of the Laws of Bendel State (1976 Edition) confers a right of appeal as of right from the decision of a judge to acquit or discharge the accused person in criminal proceedings. But such a right is a right of appeal from the High Court to the Federal Court of Appeal and not a right of further appeal from the Federal Court of Appeal to the Supreme Court.

(iv) It is not competent for the legislature of Bendel State to confer a right of further appeal from the Federal Court of Appeal to the Supreme Court. (v) Even if (which is not conceded) it is permissible for the appellant to treat his ineffective Notice of Appeal as a Notice of Application for leave to appeal, this Honourable Court cannot entertain it save after a prior application to the Federal Court of Appeal had been refused.”

In support of the application, it was argued that this court has an inherent power to strike out a notice of appeal where an appeal is plainly incompetent and we were invited to do so in this case. The case of Aviagents Ltd. v. Balstravest Investments Ltd. (1966) 1 WLR p.150 was cited as authority for this proposition.    

It was also submitted that the proceedings in the High Court were between the State, as prosecutor, and the applicant, as the accused. At no time, counsel argued, was the Commissioner of Police a party to the proceedings as the purported notice of appeal shows. If the Commissioner of Police was not a party to the proceedings at any stage, it was argued, he could not be a party aggrieved by the decision of the Federal Court of Appeal in this matter.  

Finally, it was argued that a prosecutor, such as the respondent herein, cannot appeal as of right to this court against a decision on appeal of the Federal Court of Appeal in a criminal matter heard by the High Court sitting as a court of first instance. Such further appeal to this court, said counsel, can only lie with the leave of either the Federal Court of Appeal or this court. Counsel then argued that the right of appeal vested in a prosecutor such as the respondent here, by Section 21 of the High Court Law (Cap. 65 volume III, Laws of Bendel State) should now be read, not as a right of appeal to the Supreme Court, but to the Federal Court of Appeal.