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Home » Nigerian Cases » Supreme Court » Ishmael Emelogu V. The State (1988) LLJR-SC

Ishmael Emelogu V. The State (1988) LLJR-SC

Ishmael Emelogu V. The State (1988)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C

In the High Court of Justice Imo State, (Anyanwu J,), holden at Okpudo Ngwa, the Appellant, Ishmael Emelogu, was convicted of an offence of robbery contrary to section 1(2)(a) of the Robbery and Fire-arms (Special Provisions Act) 1970, No. 47, The Court, after taking evidence rejected the defence of the Appellant.

He was found guilty and sentenced to death, He appealed to the Court of Appeal, and in a considered judgment delivered by Ogundere J.C.A., and concurred with by Olatawura and Aikawa JJ.C.A., the Court dismissed the appeal of the Appellant. The principal issue before the Court of Appeal was whether or not the Attorney-General of Imo State lacked competence to prosecute the Appellant in the Imo State High Court.

The learned Justice of the Court of Appeal specified three stages of the development of the Robbery and Firearms Decrees: These are –

(1) The period covered by the Robbery and Firearms (Special Provisions) Decree 1970 No. 47, that is, from 8th August 1970 to 30th September 1979, when it operated as Federal Legislation but with the offence being prosecuted in Tribunals set up in various States by State officials.

(2) The period between 1st October 1979 to 30th December 1983. The Robbery and Firearms Decree operated as State Law whereby a State could apply its own Criminal Procedure Law.

(3) The period commencing from 31st December 1983 up to date. The Constitution (Suspension and Modification) Decree 1984 No.1 operates when the country went back to the state of Tribunals.

The learned Justice of the Court of Appeal then argued –

“Thus, the Robbery and Firearms (Special Provisions) Decree No.5, as amended by Decree No. 21 of 1984 was enacted and it is substantially in pari materia with the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 although under section 7 and the schedule thereunder, Robbery and Firearms Tribunal Rules of procedure governed it. Rule 18 also provide for the application of the Criminal Procedure Act or the Criminal Procedure Code Cap. 43, L.L.N.N. 1963 Cap. 30 where the Rules are deficient. Thus, Special Tribunals for the trial of offences under the Decree came again into operation from the commencement of the Decree on 31st December 1984.

The Decree, thus amended, gave the Attorney-General or Solicitor-General of a State, or any officer in the Ministry of Justice so authorized by the Attorney-General or Solicitor-General, to institute prosecutions under the Robbery and Firearms (Special Provisions) Decree No.5 of 1984. Section 12(2)(3) of Decree No.5 of 1984, as amended by Decree No. 21 with regard to the trial of Robbery and Firearms offences as of 31st (sic) Decrees 5 and 21 had not existed. This enables the Imo State High Court to continue the trial of the Appellant which commenced under the Second Regime covering the period of the Second Republic 1/10/79-30/12/83, and confirmed the competence of the Attorney-General to Prosecute, and the legitimacy of the trial.”

He concluded on this important issue –

“In the case in hand which commenced during the Second Republic and continued as part-heard into the period of this Regime, it has been established that the Attorney-General of Imo State had competence to institute prosecution, and that the Criminal Procedure Law of Imo State was applicable.”

As I earlier pointed out, the Court dismissed the Appellant’s appeal and in consequence thereof he has appealed to this Court. The issues placed before this Court by the Appellant, in so far as the locus standi of the Attorney-General of Imo State is concerned is couched by his learned counsel in the following manner:

“(i) Whether offences under the Robbery and Firearms (Special Provisions) Act, No. 47 of 1970 as amended by the Constitution of the Federal Republic (Certain Consequential Repeals Etc.) Act

No. 105 of 1979 (hereinafter referred to as Act No. 47 of 1970) are Federal Offences or not.

(ii) If offences under the Act No. 47 of 1970 are Federal Offences, whether the Attorney-General of Imo State had the requisite Locus Standi to prosecute the Appellant on a charge for an offence brought under Act No. 47 of 1970 as at the 14th day of July, 1982 when information was filed for the trial of the Appellant without expressed delegation of powers, by the Federal Attorney-General.

(iii) Whether the Criminal Procedure (Miscellaneous Provisions) Law, No. 19 of 1974 of East Central State of Nigeria applicable in Imo State, applied to trials for offences charged under the provisions of Act. No. 47 of 1970.”

Because of the constitutional importance of the issues involved, a constitutional court was set up by the Chief Justice of Nigeria, and the Attorney- General of the Federation was invited to make submissions on the Constitutional point. He put in a Brief. But before dealing with the brief put in by the learned Attorney-General of the Federation, I would like to set out herein the brief of the Attorney-General of Imo State. He stated in that Brief two questions for the determination of this Court. They are:

(i) Whether or not the Attorney-General of Imo State was competent to institute the criminal prosecution against the Appellant under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals etc.) Act No. 105 of 1979.

(ii) Whether the learned trial Judge was in error by applying the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 of the East-Central State of Nigeria known as Edict No. 19 of 1974 applicable in Imo State.”

He then argued that the effect of section 1(c) of Decree No. 105 of 1979, that is, the Certain Consequential Repeals etc. Decree and the 3rd Schedule thereto on the Robbery and Firearms Decree 1970 No. 47 was to amend the 1970 Decree to include provisions whereby offences under the 1970 Decree could be tried in the High Court of the State concerned. He gave the relevant facts of this case. The charge was preferred against the Appellant on 14th July 1982 and in consequence, therefore, the provisions of the 1979 Decree No. 105 are applicable to the charge.

He made another point. He said –

“Where the offence created is not in the exclusive legislative list, the Attorney-General of the State can prosecute such cases subject to the power of the Federal Attorney-General to take over and continue such case or discontinue.”

The learned Attorney made particular mention of sub-section 1(a), (b) of section 160 of the 1979 Constitution and referred to the Supreme Court decision in Onwuka v. The State (1970) 1 All N.L.R. 159. He further referred to section 402 of the Criminal Code Law and submitted that a careful look at the provisions of the Robbery and Firearms Decrees from 1970 to 1984 would reveal that they contain similar provisions with the robbery provisions in the State Criminal Code Law of 1963 but that they only differ in punishments.

n the procedure, learned Attorney-General’s brief made reference to the Criminal Procedure (Miscellaneous Provisions) Law, that is, Edict No.19 of 1974 of the East Central State, applicable at the time and submitted that the Edict applies. He further submitted that the Law (Edict No. 19 of 1974) is an existing law under section 274 of the 1979 Constitution and by virtue of the Interpretation Act of 1964, No.1, it is applicable.

I will now go to the Brief filed by the Attorney-General of the Federation. I would like to commend here with respect, the Brief filed by the learned Attorney-General. It is so lucid and his oral submissions thereupon so profound that I remain tempted to make copious references to both. Indeed, I would like to adopt the “Questions for Determination” as stated in the Brief of the learned Attorney-General and his order of setting them down. They are –

“1. Whether at the time (that is, 29th April 1982) when the Appellant herein allegedly committed the offence of armed robbery, for which he (together with one other person) was charged, tried and convicted by the High Court of Imo State of Nigeria, the Robbery and Firearms (Special Provisions) Act, No. 47 of 1970, as amended by various other enactments, including the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Act, No. 105 of 1979 was a Federal law or whether it should be regarded as a State enactment.

  1. Whether the Attorney-General of Imo State was competent to institute the criminal proceedings which he instituted against the Appellant (as Accused) in charge No. HIN/14c/82 filed in the High Court of Imo State of 14th July, 1982.
  2. Whether the use of the Criminal Procedure (Miscellaneous Provisions) Law (otherwise known as Edict No. 19 of 1974 of East Central State of Nigeria) made by the Imo State High Court in the trial of the Appellant (as Accused) in the charge mentioned in (2) above was in order and was valid or whether it was otherwise, and, therefore, rendered the trial a nullity”.
See also  Unity Bank Plc. V. Mr. Edward Bouari (2008) LLJR-SC

On those questions he examined in the Brief the provision of section 4 of the 1979 Constitution and submitted that an examination of the contents of the Legislative Lists therein reveal that armed robbery is not in either the Exclusive or the Concurrent List. Therefore, learned Attorney argued, as at 29th April 1982, when the offence herein was allegedly committed, the House of Assembly of a State could legislate on the offence of armed robbery. By the 1st of October, 1979, Decree No. 47 of 1970 by virtue of Adaptation of Laws (Re-Designation of Decrees etc.) Order S1 No. 13 of 1980 operated as a State law in so far as the provisions related to the offence of armed robbery. Reference was also made to s.274 of the 1979 Constitution. He concluded on Question 1:

“The answer to the first question……is that as far as the offence of armed robbery is concerned, Decree No. 47 of 1970 was a State Law as at the time when the Appellant (as accused) allegedly committed the offence of armed robbery for which he was charged to the Imo State High Court, tried and convicted.”

On Question No.2, the learned Attorney’s submission was that because the law operated as a State law in so far as armed robbery is concerned, the Attorney-General of a State has competence to file information or institute criminal proceedings in respect of State offences, relying on Supreme Court decisions in Mandara v. Attorney-General of the Federation (1984) 4 Sc. 8 at page 27; A.P. Anyebe v. State (1986) 1 N.W.L.R. Part 15 at page 39 and Attorney-General of Kaduna State v. Hassan (1985)2 N.W.L.R. (Part 8) page 483.

The Brief then made reference to the deletion of section 6 of Act No. 47 of 1970 by Act No. 105 of 1979 and said that though the deletion would give one the impression that it deprived State Attorneys-General of their competence to institute proceedings for offences committed under Act. No. 47 of 1970, it did not in fact impair that competence, for, as from 1st October 1979 to December 1983, the competence of State Attorneys-General to institute criminal proceedings in respect of offences committed against State laws derived from section 191 of the 1979 Constitution.

The learned Attorney then justified the application of Criminal Procedure (Miscellaneous Provisions) Law, Edict No. 19 of 1974 of the East Central State which is applicable in Imo State and made reference to sections 4 and 13 thereof. He argued that as Act No. 47 of 1970 operated as a State enactment, it is the rules of procedure prescribed for use by the High Court of Imo State that could have been employed in the trial of the Appellant.

Apart from these copious briefs from all the learned counsel concerned, oral submissions were also made.

Mr. Udechukwu, learned counsel for the Appellant, submitted that by virtue of the provisions in Part III of the 2nd Schedule to the 1979 Constitution – Supplemental and Interpretation – read side by side with the 2nd Schedule, Part 1, Item 67 of the Exclusive List, the only offence which is incidental to Arms, Ammunition and Explosives in Item 2 of Part 1 of the Exclusive Legislative List is Armed Robbery, and therefore, it would be a Federal offence.

On a question put to him by the Court, as to whether or not he relied entirely on the combination of Items 2 and 67 of Part 1, of the Second Schedule to the 1979 Constitution plus Part 111 of the same schedule and also, whether or not “armed robbery” would be equivalent to “Arms and Ammunition” or incidental thereto, learned counsel replied that the offences created under the 1970 Act, No. 47 are incidental to item 2 of the second Schedule as the offence of armed robbery itself could be committed by the employment of arms and ammunition.

On another question, as to the effect of Act No. 105 of 1979, learned counsel said that the Act provides that all offences under Act No. 47 of 1970 be tried by State High Court by specifically repealing section 6 of Act No. 47 of 1970, which created “Tribunals” for the trial of such offences.

The submission of Mr. Njoku, the Director of Public Prosecutions Imo State, would, with utmost respect to him, appear to be contradictory. Learned Director said the offence in question was State offence. In the next breath, he said it could be Federal or State. However, a most important and most intelligible submission of learned Director was that Edict No. 19 of 1974 of the East Central State is not inconsistent with the 1979 Constitution.

Prince Bola Ajibola S.A.N., the learned Attorney-General of the Federation opened his submission by stating the background to the Decree in following words –

“There has been legislative pollution due to serious heinous and prevailing nature of armed robbery especially immediately after the civil war. There was a prompt desire to bring out a legislation with a kind of universal effect throughout the Federation.”

Indeed, I accept this as a correct summation of the historical background, which led to the promulgation of the 1970 No. 47 Act. And, in a masterly analysis, the Attorney-General of the Federation took us through the various legislation from that Act of 1970 up to date. He analysed the effect of the provisions of sections 160 and 191 of the 1979 Constitution. Finally, the learned Attorney submitted that robbery, being a residual matter, the Imo State had power to legislate, as they did, and the Attorney-General of that state had power to prosecute in this case as he did. I think for a clear understanding of the issues involved herein, it would he appreciated that the issues are more or less really reduced to the second question posed by the Attorney-General of the Federation, that is – whether or not the Imo State Government was competent to have enacted Edict No. 4 of 1974, and, further whether the State Attorney-General was competent to prosecute the Appellant, as he did, in this case. Let us trace the history of Robbery in this country starting from 1970 as the learned Attorney-General of the Federation has done.

After the end of the civil war which ravaged the country for three years, the incidence of armed robbery became very aggravated, as it was wont to happen after any civil commotion, wherein people had both officially and surreptitiously carried arms or where there had been a devastation by use of arms, of the country or a part thereof. The Federal Government, however, had to, and in fact, did rise to the occasion. Before the civil war, there had been some enactments dealing with Robbery. They were-

  1. The Suppression of Robbery Decree, 1967, No.2 a Legislation enacted within the first year of the first Military Government to apply 10 the Federal Territory only. It amended the Criminal Code sections 402 and 403 as they apply to the Federal Territory.
  2. The Robbery (Summary Trial and Punishment). Edict 1967 No. 3, a Western State Legislation.
  3. The Robbery (Special Provisions) Edict 1968 No.1 and
  4. The Robbery (Special Provisions) (Amendment) Edict 1970. (3) and (4) being Lagos State Legislation.
See also  Uko James Vs The State (1981) LLJR-SC

All these legislations were repealed by the Robbery and Firearms (Special Provisions) Decree 1970 which came into effect on 8th August 1970.

Subsection (2) of section 1thereof is pertinent, as it introduced a sentence of death as a penalty, after creating the offence of robbery with firearms, offensive weapon or with violence.

It provides –

(2) If

(a) any offender mentioned in subsection (1) above is armed with any firearms or any offensive weapon or is in company with any person so armed, or

(b) at or immediately before or immediately after the time the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable, upon conviction under this Decree to sentence

(Of course the word “liable” was deleted later by the 1974 and 1977 amendments. That is by the way). Section 5 of the Decree, or Act as the case may be, empowered the Military Governor of each State to constitute a tribunal or tribunals for the trial of offences under the Decree (Act) while Section 6 placed the prosecution on the Attorney-General of the State concerned. Though a Federal legislation therefore it was the States that were empowered to operate the legislation (see section 5 and 6). The Military Governor of a State was to set up Tribunals in his State (section 5) and the State Director of Public Prosecutions was to commence prosecution in the State (section 6).

The next stage was in 1971. The Robbery and Firearms (Special Provisions) (Amendment) Decree 1971 No. 48 was enacted. It came into effect on 14th October 1971. It is section 4 of the 1971 Act that is relevant herein. It amended section 6 of the 1970 Act by substituting therefore another section 6.

The new section 6 provides-

(1) The trial of offences under this Decree shall commence by way of application, supported by evidence on affidavit, made to the tribunal in that behalf by the Attorney-General of the State concerned or by such officer in the Ministry of Justice of that State as the Attorney-General, or as the case may be the Solicitor-General, may authorise so to do.”

What happened was only that the emphasis had now shifted from Director of Public Prosecutions to Attorney-General but the important thing which still remains is that the exercise was still a State exercise. It was the Attorney-General of the State that could prosecute as of 1971whereas the Director of Public Prosecutions had the power in 1970.

And yet another amendment to section 6. By the Robbery and Firearms (Special Provisions) (Amendment) (No.2) Decree 1974 No. 29 a new section came into being, but without altering the locus standi of the State Attorney-General. A new dimension to the issue was the introduction of right of appeal of a convict under the Decree to the Supreme Court. It provides-

“Any person convicted of an offence under this Decree may within 30 days of the date of his conviction appeal, as of right to the Supreme Court and the provisions of any enactment (including rules of court) regulating the practice and procedure of the Supreme Court shall, with any necessary modifications, apply in respect of such an appeal as they apply in respect of appeals from the decisions of any court subordinate to the Supreme Court.”

The Robbery and Firearms Tribunal (Procedure) Rules 1975 L.N. 56 of 1975 made by the Federal Attorney-General made reference to the duties of the prosecutor. “Prosecutor” under the Rules was defined as –

“The attorney-General of the State in respect of which the tribunal was constituted or where there is no Attorney-General, the Solicitor-General of that State or the officer of the Ministry of Justice of the State authorised by the Attorney-General, or as the case may be, the Solicitor-General to conduct the prosecution of an offence before the tribunal.”

It is clear that up to this time the notion was that the State should take charge of the prosecution of the offence of Armed robbery committed in the State. And this was the position up to the coming into force of the 1979 Constitution. What happened then

On the eve of the transition into the Republican Constitution, that is, the 1979 Constitution, the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals etc.) Decree 1979 No. 105 was passed. This Decree repealed section 6 of the Robbery and Firearms (Special Provisions) Decree, 1970 as amended. It also deleted the definition of “tribunal” therefrom. It would appear prima facie, from this Decree, that the authority of the State Attorney-General to try offences under the Decree and in State Tribunals had been removed.

Indeed this is the whole problem of this case. Could it not be argued that with that deletion, authority then lay with the Federal Government Let me now examine the legal position.

The 1979 Constitution came into force simultaneously with Decree No. 105 of 1979, but as I have already said, the procedural rules – the Robbery and Firearms Tribunal (Procedure) Rules 1975 had already been made and they commenced from 1st September 1975. These Rules were made in pursuance of section 6 of the principal Decree of 1970 as amended. The Rules deal with -commencement of trials; plea; presentation of the prosecution case;

defence;finding; and recommendation to mercy by the Tribunal. But Tribunals ceased to exist by the 1979 No. 105 Legislation. Again, on 8th July 1974, that is, before the Rules above stated, the Administrator of East Central State had passed the Criminal Procedure (Miscellaneous Provisions) Edict 1974 in regard to-

“any charge relating to a criminal offence created by or under the provisions of a law, or any Edict or any other enactment whatsoever which is in force in the State at the date of the commencement of the Edict or having been made before that date, comes into force after that date……being a charge in respect of which a preliminary investigation or preliminary enquiry is intended to be conducted”.

But to go back to Decree 105 of 1979. Schedule 3 thereto, under which section 6 of the Robbery and Firearms (Special Provisions) Decree 1970 No. 47 was repealed, retains the Decree itself (as amended by such repeal of section 6) to be in force, with effect from 1st October 1979, the date of coming into force of the 1979 Constitution. Section 5 of the 1970 No. 47 Decree was amended by substituting thereof the following-

“Trial of 5. Offences under this Decree offences shall be triable in the High Court of the State concerned.”

It is patent that by section 5 of the 1970 No. 47 Decree, that Decree (1970 No. 47) remains a State legislation on the 1st October, 1979. And, by virtue of section 274 (4)(b) of the 1979 Constitution, it became an existing law of the State and “Robbery” per se became a residual matter while the legislation (1970 No. 47 as amended) was deemed to be a Law made by the State House of Assembly. As section 6 of that Legislation which deals only with “Procedure” had been repealed (by Decree 105of 1979) and by virtue of section 239 of the 1979 Constitution, the prescription of Practice and Procedure has become vested in the State House of Assembly while the High Court, thereby, is to exercise its jurisdiction in accordance with such procedure the Rules pertaining to Criminal Procedure in the State would be applicable. The Criminal Procedure (Miscellaneous Provisions) Law (Edict) 1974 of the East Central State, an existing law of Imo State by virtue of section 274 of the 1979 Constitution became applicable to the institution and prosecution of Robbery cases in Imo State.

The Trial Court took that view of the law. He however put it thus-

“when the Criminal procedure (Miscellaneous Provisions) Law 1974 was enacted the Robbery and Firearms Act was in force and applicable in Imo State. As the Act provided for death penalty as sentence the provisions of section 6 of the 1974Law must be complied with”

See also  Berliet Nigeria Ltd. V. Alhaji Mustapha Kachalla (1995) LLJR-SC

The Criminal Procedure (Miscellaneous Provision) Law 1974 dealt in fact with more than Armed Robbery. It abolished preliminary inquires or preliminary investigation into criminal charges, (section 3) introduced supply of proof of evidence (section 4) and also proof of evidence in capital cases (section 6). And that is where armed Robbery became affected by the Law preferment of information (section 13) etc.

There is however one important question. The Robbery and Firearms Tribunal (Procedure) Rules 1975 was made as a Federal Legal Notice commencing from 1st September 1975. It prescribed the commencement and conduct of trial in cases of Armed Robbery. It specifically dealt with procedure before Armed Robbery Tribunals. Tribunals were abolished in 1979. The High Court became seised of armed robbery cases. But one could still argue that by virtue of the Interpretation Act 1964 section 6, the Rules were not repealed. They could only remain modified. I think a careful study of the Rules reveal, per adventure, that with the abolition of Tribunals and handing over of armed robbery matters to the High Court, the Rules became inappropriate-

Rule 1 deals with commencement of trial by application made to the Tribunal

Rule 2 empowers the Tribunal to order an accused to appear.

The trial is to be commenced before the Tribunal (Rule 3). Plea must be made before Tribunal (Rule 4). The Tribunal has special functions after presentation of evidence (Rules 7 and 8). Indeed, once Tribunal is removed the whole Rules fall like a pack of cards.

I think the Rules came into disuse as being inconsistent with the spirit of the 1979 No. 105 Act. If anything was available, it was the Criminal Procedure Law of the State or Legislation like the Imo State Criminal Procedure (Miscellaneous Provisions) Edict 1974.

In other words therefore, the Rules made under s.239 of the 1979 Constitution would amount to the Criminal Procedure Law of the State concerned being applicable. See Anthony Okobi v. The State (1984) 7 S.C. 47. And while all the above exposition would answer Question 1, the Robbery and Firearms (Special Provisions) Act No. 47 of 1970, as amended by various other enactments, though a Federal Legislation, is to be regarded as a Legislation made to operate in each State of the Federation. And so will it also answer Question 2. For once it is operative in a State. By virtue of section 191 of the 1979 Constitution, the power is in the State Attorney-General to institute and undertake all criminal proceedings including proceedings dealing with Armed Robbery.

Again, and more importantly, is the fact that the legislation which was in force immediately before the enactment of the 1979 Constitution became, by virtue of s.274(1)(b) of the Constitution, deemed to be a Law made by a House of Assembly to the extent that it is a law with respect to any matter (in this case Robbery) on which the House of Assembly of a State (in this case the Imo State) is empowered, by the 1979 Constitution, to make. And thus Question No.2, as stated in the Brief of the learned Attorney-General of the Federation, and as brought before this Court by the Appellant, is answered.

See Mandara v. Attorney-General of the Federation (1984) 4 SC. 8; Anyebe v. State (1986) 1 N.W.L.R. 15 at p.39 and also Attorney-General of Kaduna State v. Hassan (1985) 2 N.W.L.R. p.483. I agree with the learned Attorney-General of the Federation when he said in his Brief, that the amendment to the Robbery and Firearms (Special Provisions) 1970 No. 47 by the Constitution of the Federation of Nigeria (Certain Consequential Repeals, etc.) Decree 1979 No. 105, by repeal of section 6 of the former Decree, did not in fact remove from the Attorney-General of the State the power to institute proceedings under the 1970 No. 47 Decree having regard to section 191 of the 1979 Constitution.

It remains one important question. What is the effect or validity of the Criminal Procedure (Miscellaneous Provisions) Edict 1974 No. 19 of the East Central State (Imo State came out of the East Central State). The Attorney-General of the Federation argued, and it is not without substance, that as section 239 of the Constitution provides for the High Court of a State to exercise its jurisdiction under the Constitution in accordance with the practice and procedure from time to time prescribed by the House of Assembly, and as Edict No. 19 of 1974 of the East Central State became an existing law of Imo State by 1st October 1979, the Edict (the Law by 1st October) became applicable in Imo State and could be applied by the State High Court.

In 1982 therefore (for that was when the offence was allegedly committed) such trials had ceased to be before Tribunals. They had become vested in the High Courts. The Act, 1979 No. 105, had dealt away with trials before Tribunals. Normal trials before High Court have been restored. The Attorney-General of the State has power to institute the proceedings (s.191 of the 1979 Constitution) and in Imo State the 1974 Criminal Procedure (Miscellaneous Provisions) Edict (Law) 1974 which has by S.274 of the 1979 Constitution become existing law was appropriate, applicable and indeed applied.

The last point is whether the return to Tribunal vitiated the trial. At the end of the year in 1983, there was another military putsch. The Constitution (Suspension and Modification) Decree No.1 of 1984 was passed. The Robbery and Firearms (Special Provision Decree) 1984 No.5 was enacted. It was later amended by Decree No. 21 of 1984. What happened There was a return to Tribunals. The 1984 Decrees were in essence in pari materia with the 1970 Act No. 47 as subsequently amended. The old order which was changed by the 1979 Act No. 105 and the 1979 Constitution has again been reverted to. Would the trial commenced in 1982 regularly before the High Court abate The answer is No. Would it be like the old Assizer Vertiter jurata The High Court has now yielded to Tribunals for the trial of Armed Robbery cases. Would this Trial now go before a Tribunal duly set up under the 1984 Decree But what were the facts here Here they go-

By 7th September 1983, the case had become part-heard before the High Court. A witness had already completed his evidence in chief. He had been cross-examined and re-examined. There were several adjournments, till 8th February 1984 when hearing resumed again. But it was a part heard case before the High Court whose jurisdiction had certainly not been taken away by the 1984 No.1, No.5 and No. 21 Decrees. Incidentally, this issue has not been raised before us. My comments thereupon are therefore obiter. The High Court had jurisdiction to complete the case already before it. I also agree with Ogundere J.C.A. in regard to prosecutions in which trial had not been commenced. He said, and I am in complete agreement-

“However proceedings for the prosecution of offences under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970, in which trial has not commenced before 31st December, 1983, should be transferred to the appropriate Tribunal established under Decree No.5 as amended by Decree No. 21 of 1984.”

I agree eminently with the conclusion of the learned Justice of the Court of Appeal Ogundere, J.C.A. that- “in the case in hand which commenced during the Second Republic and continued as part-heard into the period of this Regime, it has been established that the Attorney-General of Imo State had competence to institute prosecution, and that the Criminal Procedure Law of Imo State was applicable.”

The appeal is hereby dismissed. The judgment, sentence and order of the Trial Court affirmed by the Court of Appeal is hereby further affirmed.


SC.51/1986

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