Godwin Ikpasa Vs Bendel State (1981)

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SIR UDO UDOMA, J.S.C. 

There was in force and full operation throughout Nigeria under a unitary system of government one Criminal Code under the Criminal Code Ordinance from 1961 up to and including 30th September, 1954.

In it, the crime of murder was clearly defined; and the penalty prescribed to be visited upon anyone convicted of having committed the offence was death.

Then came the Constitution of 1954. On 1st October, 1954, by the Nigerian (Constitution) Order in Council 1954, Nigeria became a Federation, comprising three separate Regions, namely, Northern, Eastern and Western Regions, with Lagos constituted a Federal Territory but treated as a Region for all practical constitutional purposes, except that it was not endowed with a separate government and a separate legislature. Lagos was represented by a Minister in the Council of Ministers of the Federation.

He was styled the Minister for Lagos Affairs.Under the Constitution of 1954, the territory now known as Bendel State, consisting of the old Benin and Delta Provinces, then known as the Mid-western area, formed and was an integral part of the Western Region of Nigeria; and Criminal Law and Procedure was a residual subject. It was therefore necessary for each Region to enact its own Criminal Law and Procedure, with such modifications and adaptations as were considered necessary; which, in the Northern Region when finally enacted, assumed entirely new format and dimensions and was styled the Penal Code instead of the old Criminal Code; and the Criminal Procedure Ordinance became the Criminal Procedure Code Law, 1959; both of which did not actually come into force until 30th September, 1960.The Midwest area, being part of the Western Region of Nigeria, was therefore within the area of operation of the Criminal Code of the Western Region of Nigeria (Cap. 28), when enacted in 1955. In it, the offence of murder was also clearly defined and stipulated to attract the death penalty, on conviction.

In 1963, by the Constitution of the Federation Act (No. 20 of 1963), the Midwest area was excised from the Western Region of Nigeria and constituted a separate Region under the name and style of the Midwestern Nigeria, with its own separate government and legislature. By the operation of Sections 2, 3 and 4 of the Midwestern Region (Transitional Provisions) Act, 1963 (No. 19 of 1963), all, appropriate and relevant existing laws, including the Criminal Code Law and the Criminal Procedure Law in force and operating in Midwestern Nigeria as part of the Western Region of Nigeria continued with necessary modification in full force and effect in Midwestern Nigeria until amended or repealed.By the States (Creation and Transitional Provisions) Act, 1967 (No. 14 of 1967), the name Midwestern Region was changed to Midwestern State. My Lords, that situation continued and was the position of the Criminal Law in relation to the crime of murder in the Midwestern (later Bendel) State when on or about 17th May, 1974, the appellant, Godwin Ikpasa, was arrested and charged with the murder of his wife, Agnes Godwin, at Uti Village, Kokori. Had he then been taken before the High Court in the area, he would quite properly have been charged and tried under the Criminal Code of the Western Region of Nigeria as applicable to the then Midwestern (later Bendel) State of Nigeria,but he was not.

In the meantime, by the States (Creation and Transitional Provisions) Acts, 1976 (No. 12 of 1976), the name Midwestern State was changed to Bendel State, (See Sections 1, 5 and 6 of the Act and the Schedule thereto).Then in 1977, by the authority of the Laws of Bendel State (Promulgation Order, 1977) (B.S.L.N. 111 of 1977) of 15th December, 1977, the Revised Edition of the Laws of Bendel State of Nigeria, 1976, prepared under the Authority of the Revised Edition (Laws of Bendel State of Nigeria) Law, 1976 was promulgated and came into full force and effect on 3rd January, 1978.The Revised Edition of the Laws of Bendel State, 1976, contains the Criminal Code Law (Cap. 48) of Bendel State in which the offence of murder is again quite clearly defined in Section 316 in precisely the same terms and language as are to be found in Section 254 of the Criminal Code Law (Cap. 28) of the old Western Region of Nigeria. The Offence is punishable under Section 319(1) with death under the Bendel State Criminal Code, which is precisely again the same punishment prescribed under Section 257(1) of the Criminal Code of the Western Region of Nigeria.

Then in Section 4 of the Criminal Code Law of Bendel State there is to be found the following provisions:-

“4. Subject to the provisions of any Federal Law, no person shall be liable to be tried or punished in any court in the Bendel State for an offence except under the express provisions of the Code or of some Act, Law, Decree or Edict or some Order in Council made by Her Majesty for Nigeria which remains in force in, or forms part of the law of the Bendel State:Provided that in the case of an offence committed before the commencement of this Law, the offender may be tried and punished either under the law in force when the offence was committed or under the Code, provided that the offender shall not be punished to any greater extent than was authorised by the former law.”

It is to be observed that the whole of the provision of Section 4 of the Bendel State Criminal Code Law (Cap. 48), set out above appears to have been lifted verbatim from the provision of Section 4 of the Criminal Code Law of the Western Region of Nigeria (Cap. 28). Both sections are without doubt in pari materia.

By way of contrast there is no such provision in the Penal Code Law of the Northern Region of Nigeria (Cap. 89), which came into force on 30th September, 1960. This point is of considerable importance and needs to be emphasised as the effect of the difference would soon emerge.The Criminal Code Law of Bendel State (Cap. 48), having come into force, the appellant appeared before Akpovi, J., on the 31st July, 1978 in the High Court of Bendel State at Sapele. He was there charged with, and tried of having murdered Agnes Godwin on 17th May, 1974, and thereby committed an offence punishable under Section 319(1) of the Criminal Code of the Bendel State of Nigeria, 1976. After due trial, the appellant was found guilty, convicted and sentenced to death in terms of the provisions of Section 367(2) of the Criminal Procedure Law of Bendel State (Cap. 49) – wrongly recorded as Section 367(2) of the Criminal Code Law (Cap. 49). An appeal to the Federal Court of Appeal was duly heard and dismissed as without merit by Omo Eboh and Agbaje, JJCA., with Nnaemeka-Agu, JCA., dissenting and striking out the appeal on the ground that there was no appeal properly before the court because the Notice of Appeal filed by the appellant was fundamentally defective.On this appeal coming before your Lordships, a constitutional issue was raised and argued for the first time in this matter.The constitutional point argued by Mr. Akinrele, SAN., learned counsel for the appellant is implicit in the first ground of appeal filed. And, as stated in the brief filed by him, read as follows:-

“The appeal court erred in law in convicting the appellant as charged when at the time of the offence in 1974 the Bendel State Criminal Code which came into force in January, 1978 was not in existence thereby making the conviction a nullity.”

However, as presented before your Lordships’ court and also expounded upon in his brief, the submission of learned counsel on the point at issue was that in view of the provisions of Section 22(7) of the Constitution of Nigeria, 1963, the main proviso to Section 4 of the Bendel State Criminal Code Law, 1976, which permits an offender to be tried and punished either under the Law in force when the offence was committed or under the Code despite the further proviso that the offender (if convicted under the Code) should “not be punished to any greater extent than was authorised by the former law”, was unconstitutional.Learned counsel submitted that the main constitutional issue for determination by this court, therefore, was as to the question whether the appellant, having committed the offence as alleged as far back as 17th May, 1974, when the only Criminal Code in force which made murder a criminal offence punishable by law in the Midwestern (later Bendel) State was the Criminal Code of the Western Region of Nigeria, he could properly and constitutionally be tried and convicted under the Criminal Code of Bendel State which only came into force on 3rd January, 1978. In his submission, the answer to that question should be in the negative.Learned counsel then contended that it would be wrong in law and unconstitutional to do so even though the trial did not take place until 31st July, 1978. The reason for this contention was, according to learned counsel, because the only law in operation and in force in the Midwestern (later Bendel) State which made murder an offence punishable by law at the time in 1974 when the offence was committed, was the Criminal Code Law of the Western Region of Nigeria as applicable to the Midwestern (later Bendel) State.

Learned counsel further contended that for Section 4 of the Criminal Code Law to have purported to authorise or permit the prosecution of an offender under a Criminal Code which was not in existence at the time of the commission of an offence was proximate or analogous to what might be termed retrospective legislation upon which the courts have always frowned.It was the submission of learned counsel that, since in this country all criminal offences are creatures of statute, to permit or authorise an offender to be prosecuted and punished under a Criminal Code which was not in existence at the time of the commission of an offence would constitute a breach of the provisions of Section 22(7) of the Nigerian Constitution of 1963. As authorities for these propositions, learned counsel cited and relied upon the Queen v Tuke (1961) 1 All NLR 258; Oruche v Commissioner of Police (1963) 1 All NLR 262; and Queen v Bukar (1961) 1 All NLR 646.It is now necessary to examine these submissions. The provisions of Section 22(7) of the Nigerian Constitution 1963 read as follows:-