Alfred Elijah & Anor V. The State (2002)

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A. OLAGUNJU, J.C.A. 

The 2 appellants were tried jointly with 8 others for the offence of armed robbery punishable under sub-section 1(2) (a) of the Robbery and Firearm (Special provisions) Act. Cap. 398 of the Laws of the Federation of Nigerian 1990, by the Robbery and Firearm Tribunal holden at Ikot Ekpene in Akwa Ibom State. The trial began following the plea of each accused person taken on 7/9/98, ran through to 27/5/99 when the learned counsel concluded their addresses and the case was adjourned to 3/6199 when judgment was delivered.

Each accused was convicted and sentenced to death.

In the meantime, on 28/5/99, Tribunal (Certain Consequential Amendments, etc.) Decree, No. 62 of 1999, to be contracted to ‘Decree 62 of 1999′ in subsequent references, was promulgated. It dissolved from that day certain Judicial Tribunals including Robbery and Firearm Tribunal which tried and convicted the appellants along with 8 others and vested the jurisdiction of that Tribunal in the Federal or State High Court of the particular area where the offence was committed. The Decree made some consequential provisions to validate and preserve what had been done by the Tribunals before their dissolution. In particular, sections 2 and 3 made special provisions for trials which had been concluded in the sense that judgment had been written but had not been delivered on the vesting date and for part heard cases that had not been concluded. In respect of trial that had been concluded subsection 2(6) empowers the High Court in which jurisdiction over the matters is thenceforward vested to deliver the judgments. As regards part heard criminal matters, sub-section 3(1) (b) expressly directs that such cases be tried de novo.

Against this background, dissatisfied with the decision of the Tribunal the two appellants filed 2 original and 2 additional grounds of appeal contesting evaluation of evidence and findings of fact by the Tribunal as well as validity of the trial but from only original ground 2 of which they formulated the lone issue challenging the validity of the trial. The issue reads:

“Whether having regard to the commencement date of the Tribunals (Certain Consequential Amendments, etc.) Decree 1999 there was a trial or whether the judgment was not a nullity; having been delivered after the Tribunal had been divested of its jurisdiction as per section 2 of the said Decree.”

I pause here to observe that the first original ground of appeal is an omnibus ground while additional ground 1 attacks evaluation of evidence by the Tribunal which was also taken to task on findings of fact in additional ground 2. Obviously, the lone issue reproduced above was not formulated from any of those grounds. Therefore, the three grounds of appeal from which no issue was formulated are, on principle, deemed to have been abandoned. See Obasi v. Onwuka, (1987) 3 NWLR (Part 61) 364, 369, and Ndiwe v. Okocha, (1992) 7 NWLR (Part 252) 129, 138-139. Accordingly, I strike out the 3 grounds.

In any case, the respondent also formulated one issue which because it moderates the issue formulated by the appellants by expanding it I reproduces as follows:

“In consideration of the Commencement Date of Decree No. 62 of 1999, whether or not the Tribunal’s judgment that was delivered on June 3, 1999 was valid and competent. And if the answer to this preceding Question is in the negative, can this Honourable Court in the circumstance order a retrial of the Appellants?”

The second limb of the issue formulated by the respondent as underlined in the preceding passage is far outside the issue formulated by the appellants as it anticipates the question of retrial of the appellants by which the issue formulated by the appellants falls short. There is obviously justification for the respondent’s approach, understandably because the order of retrial though not formulated as an issue was argued extensively as a vocal point that was given prominence in the Appellants’ Brief of Argument, presumably, as a corollary of the main focus of the appellants’ contention that the trial by the Tribunal is a nullity. Therefore, in order to meet justice of the case I will adopt without any further ado about the scope of the grounds of appeal the issue formulated by the respondent which encompassed both the merit of the appeal and the consequential order in terms of an order of retrial.

Against this background, as regards the validity of the trial, the sum total of the argument of learned counsel for the appellant is that at the time the trial of the appellants was concluded on 3/6/99 jurisdiction of the Tribunal over the offence for which the appellants were convicted had been ousted by Decree No. 62 of 1999 which dissolved the Robbery and Firearm Special Tribunal over which the learned trial judge presided that came into force on 28/5/99, five days before the Tribunal delivered its judgment. On those facts, the learned counsel submitted that the trial of the appellants which began on 7/9/98 and concluded with the judgment delivered on 3/6/99 was not a trial; it is incompetent because the Tribunal lacked jurisdiction to conclude the case.

He submitted that not only the judgment rendered after the Tribunal had been dissolved is a nullity but more fundamentally the entire proceedings of the Tribunal citing in support Timitimi v. Amabebe, (1953) 14 WACA 374, and the Supreme Court’s decision in Madukolu v. Nkemdilim, (1962) ANLR 581, 590; and Ifezue v. Mbadugha, (1984) 5 SC 79, 176. Underlining the autocratic nature of the law ousting the jurisdiction of the court the learned counsel submitted, ex cathedra, that ‘when a military regime by a Decree promulgated ousts the jurisdiction of courts or tribunals in any subject matter, the Decree must be strictly construed and followed’ founding for support on Attorney General of the Federation v. Sode, (1990) 2 NWLR (Part 128) 500. On the force of that submission he urged this court to hold that there was no trial of the appellant who are ipso facto, entitled to be acquitted of the offence for which they were convicted.

On the issue of retrial, the learned counsel agitated that in arriving at decision whether to make an order of retrial the court should be guided by the Supreme Court’s decision in Abodundu v. The Queen, (1959) 4 FSC 70, 73-74, in which the correct test is laid down recounting instances in which the test had been applied as including The Queen v. Edache, (1962) ANLR 22, 25; Adisa v. Attorney-General, Western Nigeria, (1966) NMLR 144; Eyorokoromo v. The State, (1979) 6-9 SC 3, 15; and Ewe v. The State, (1992) 6 NWLR (Part 246) 147. He reiterated the view of that court in its decision in Erekanure v. The State, (1993) 5 NWLR (Part 294) 385, where it was admonished, at page 394, that once a trial is a nullity, a retrial or trial de novo can no longer be automatic as ‘each case must be considered in the peculiar circumstances which form the background’. He gave the peculiar circumstances that can, in the present appeal, make an order for a retrial to be ineffectual as (a) the order for disposal of Exhibits made by the learned trial judge at the conclusion of the case and (b) the difficulty or impossibility of reassembling the witnesses who testified in the abortive trial. He urged this court to regard those factors as militating against an order of retrial which he urged this court to refuse.

Learned counsel for the respondent conceded that the judgment of the Tribunal which tried the appellant is a nullity consequent upon the explicit provisions of sub-sections 2(2) of Decree No. 62 of 1999 which dissolved Robbery and Firearm Tribunals and sub-section 2(1) thereof which vested the Federal and State High Courts with jurisdiction to try the offences created by Robbery and Firearm (Special Provisions) Decree, No. 5 of 1984. But he did not share the argument of learned counsel for the appellants that the entire exercise which started on 7/9/98 and terminated with the delivery of judgment on 3/6/99 was not a trial as it was done without jurisdiction. He contended that the argument of learned counsel for the appellants is contradicted by the express intendment of Decree 62 of 1999 which ‘was to preserve and create continuity in respect of on-going matters as at the commencement date of the Decree through transitory provisions’. Particularly noteworthy, he argued, are the provisions of sub-sections 2(3), 2(4), 2(5), 2(6) and 3(1) of the Decree which made diverse transitional provisions to bridge possible gaps between the proceedings conducted by the demised Tribunals and the take over of the proceedings by their successors so as to ensure that the dissolution of the Robbery and Firearm Tribunals was not misconceived as a blanket disavowal of everything that was done before they were dissolved. Quite the contrary, he agitated.