ISHMAEL EMELOGU V. THE STATE
In The Supreme Court of Nigeria
On Friday, the 20th day of May, 1988
SC.51/1986
JUSTICES
KAYODE ESO Justice of The Supreme Court of Nigeria
AUGUSTINE NNAMANI Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
SAIDU KAWU Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria
EBENEZER BABASANYA CRAIG Justice of The Supreme Court of Nigeria
Between
ISHMAEL EMELOGU Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE POWER OF THE STATE ATTORNEY-GENERAL TO INSTITUTE AND UNDERTAKE CRIMINAL PROCEEDINGS
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. PER ESO, J.S.C.
ESO, J.S.C. (Delivering the Leading Judgment): 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.
2. 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.
3. 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”.
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.
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”
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.
A. NNAMANI, J.S.C.: I had the advantage of reading in draft the judgment just delivered by my learned brother, ESO, J.S.C. I agree entirely with his reasoning and conclusions.
The constitutional issues raised in this appeal are quite fundamental. Indeed the constitutionality and/or legality of trials in armed robbery cases between 1979 and 1984 was in effect in issue. It is therefore most commendable that learned counsel for both Appellant and Respondent, and particularly the learned Attorney-General of the Federation as amicus curiae not only submitted copious briefs of argument but made learned submissions to this Court. In effect the question raised was whether Decree (or Act) No. 47 of 1970 i.e. The Robbery and Firearms (Special Provisions) Decree 1970 was a federal or state legislation having regard to the Constitution of the Federal Republic of Nigeria, 1979 and the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Act, No. 105 of 1979. Question 1 in the issues for determination as formulated by the Attorney-General of the Federation related it more directly to this case. It was thus,
“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”
In order to deal with the issues raised here, it is essential, as the Attorney-General of the Federation rightly did, to trace the history of the Robbery and Firearms Decree 1970. (See F.S. Uwaifo vs Attorney-General of Bendel State (1982) 7 S.C. 124 and Bronik Motors vs Wema Bank (1983) 6 S.C. 158 for the attitude of this Court in such matters). My learned brother, Eso, J.S.C. has dealt with this in his lead judgment and I do not think I ought to deal with it in any details. It is sufficient to say that Armed Robbery which is unfortunately still prevalent in our society today had its main debut immediately at the end of the Civil War in 1970.The Federal Military Government in 1970, undoubtedly exercising the extensive powers it had garnered for itself (See Decree No.1 of 1966) promulgated a Decree which was intended to deal with this scourge throughout Nigeria. It is therefore beyond argument that the 1970 Decree started as Federal legislation. But it was federal legislation with a difference. It evinced in its provisions the intention that the provisions, particularly as to relate to prosecution, should be operated by State Functionaries in whose domain armed robbery had taken place. So it was that Section 5 empowered the Military Governor of a State to constitute a Tribunal while Section 6 vested the power to commence prosecutions on the Director of Public Prosecutions of the State. Section 8 (as amended) gave power of confirmation of the Tribunal’s verdicts to the Military Governors. This thread of the State functionaries operating the Decree was to run through all the subsequent amendments and rules made thereunder. These included the Robbery and Firearms (Special Provisions) Amendment Decree No. 48 of 1971, the Robbery and Fire Arms (Special Provisions) Amendment (No.2) Decree No. 29 of 1974, the Robbery and Firearms (Tribunal Procedure) Rules, L.N. 56 of 1975, and the Robbery and Firearms Tribunal (Procedure) Amendment Rules, 1977. This was then the position even up to 28th September, 1979when Decree No. 105 of 1979 was promulgated.
The situation changed on 1st October, 1979. Both the Constitution of the Federal Republic and Decree No. 105 came into operation on the same 1st October, 1979. By the provisions of Decree No. 105 of 1979 particularly Schedule III thereof, Decree No. 47 of 1970was amended in a very substantial sense. Section 5 was replaced by a new Section 5 which provides that-
“offences under this Decree shall be triable in the High Court of the State concerned”..
Sections 6, 7, and 8 of the Decree were repealed. Under the Constitution of the Federal Republic of Nigeria, 1979, Robbery, which is the offence constituted by Section 1(1) of Decree No. 47 of 1970, did not fall within the Exclusive or Concurrent legislative lists and was therefore within the Residual list on which the State Assemblies can legislate.
It was contended that it was Decree No. 105of 1979 alone that made the Robbery and Firearms Decree No. 47 of 1970 a State legislation. This is based on the provision adverted to earlier which makes all offences of Armed Robbery triable in the State High Court. On this reasoning, the High Court of the State is now seised of the matter and the procedure prevalent in the State in criminal trials in the High Court would necessarily apply. I am not quite sure that this completely deals with the problem. Trial in the High Court of the State was nevertheless a continuation of that desire that the operation of the legislation should be by the State Functionaries.
Learned counsel to the Appellant rightly submitted that competence to commence proceedings is a matter of substantive not procedural law. He referred to Onwuka v. The State (1970) 1 All N.L.R. 659. It follows, in my view, that the fact that offences of armed robbery are triable in the High Court of a State does not determine the issue of whether it was a federal or state offence for there is nothing precluding the Attorney-General of the Federation from commencing proceedings in the State High Court under the relevant State procedural law. Indeed it could be argued, and it was in fact argued, that the repeal of Section 6 of Decree No. 47 of 1970 which had left prosecution with the Attorney-General of the State may indicate an intention to leave the legislation as federal legislation in respect of which only the Attorney-General of the Federation could commence proceedings. I do not of course subscribe to this view. The over all intention was that the offence of armed robbery should be triable in the State High Courts with the State criminal procedure laws applicable and State functionaries prosecuting. It may be that further provisions may have been necessary following the repeal of Section 6 to make this intention fairly obvious. Another way of looking at it is of course that such further provisions were not called for. It must be remembered that Decree No. 105 of 1979 came into effect on 1st October, 1979, the same date the Constitution came into effect. As Section 6 of Decree No. 47 of 1970was repealed on 1st October, 1979, there was simultaneously in place the provisions to which I had earlier made reference – trial in the State High Courts, Section 239 of the Constitution as to what procedure the State High Court would follow, and the Residual subjects in the Constitution which in effect made the law a State Law. Any further provisions would have been superfluous.
However, I am of the view that the question posed in this appeal can be sorted out by a combination of the Constitution of the Federal Republic of Nigeria, 1979, and Decree No. 105 of 1979, both of which as stated earlier, came into effect on 1st October, 1979. Under the Constitution, Robbery is a residual subject, which falls into the State’s legislative domain. The amended Decree No. 47 of 1970 was an existing law by virtue of Sections 274(1)(b) and 274(4)(b) of the Constitution. It was therefore State Law.
I am unable to agree with the submission of learned counsel to the Appellant that it was federal legislation by virtue of a combination of Section 2 of Part III to the 2nd Schedule to the 1979 Constitution and items 2 and 67 in Schedule II of the 1979 Constitution i.e. the Exclusive Legislative list. Item 67 deals with matters incidental to matters mentioned elsewhere in the list. Appellant’s counsel had contended that armed robbery was incidental or supplementary to arms, ammunition or explosives in Item 2. This is so, he said, because Section 2 of Decree No. 47 of 1970, which defines arms, would seem to cover such weapons as matchet, sticks pen knife, and wood. I cannot see, however, how armed robbery can be incidental or supplementary to arms, ammunition and explosives.
It follows from my views that Decree No. 47 of 1970, as amended, being now State Law, is a law which can be made by the State House of Assembly. As earlier mentioned, Decree No. 105of 1979 had made provision for all offences of armed robbery to be tried in the High Court of a State. The question which arises is, what procedure would be applicable The answer lies in Section 239 of the 1979 Constitution earlier mentioned in this judgment.
That Section provides that –
“The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the Court) from time to time prescribed by the House of Assembly of the State.”
There was no need in the circumstances of this case for the House of Assembly of Imo State to enact another law on the procedure for trial of offences of armed robbery in the High Court. This is so for the Criminal Procedure (Miscellaneous Provisions) Edict No. 19 of 1974 of East Central State applicable in Imo State, was by virtue of Sections 274(1)(b) and 274(4)(b) of the 1979 Constitution, an existing law of Imo State. In the final result, I am of the firm view that in April, 1982 when the Appellant was charged with the offence of armed robbery in respect of which he has been convicted and sentenced to death, the Robbery and Firearms Decree No. 47 of 1970, as amended, was a State law. It created offences triable in the High Court of Imo State in accordance with procedure prescribed in Edict No. 19 of 1974. The Attorney-General of Imo State was competent to commence those prosecution.
Having arrived at this conclusion, it would not have been necessary to comment on the Robbery and Firearms Rules, 1975 i.e. L.N. 56 of 1975. I have decided to make some comment on it as it was canvassed before this Court. It is not in dispute that Decree No. 105 of 1979 did not expressly repeal those Rules. Nor is there any dispute that the general effect of Section 6 of the Interpretation Act, 1964 is that the repeal of an enactment does not necessarily mean the repeal of any subsidiary legislation made under it. In this case, we are not really dealing with a repealed enactment but an amended one. Section 4(2)( c) of the same Interpretation Act provides that, “where an enactment is repealed and another enactment is substituted for it then – any subsidiary instrument in force by virtue of the repealed enactment shall, so far as the instrument is not inconsistent with the substituted enactment continue in force as if made in pursuance of the substituted enactment”.
It can be argued that Decree No. 47 of 1970 as amended by Decree No. 105 of 1979 was the substituted enactment. The Robbery and Firearms Rules 1975, which were made pursuant to powers conferred on the Attorney-General of the Federation by Decree No. 29 of 1974, would remain in force provided there was no inconsistency with the intendment of Decree No. 47 of 1970, as amended by Decree No. 105 of 1979. Section 9 of Decree No. 47 of 1970, which defined Tribunal as “a Tribunal constituted under Section 5 of this Decree” was deleted by Decree No. 105 of 1979. A Tribunal had previously been constituted, under Section 5, by a High Court Judge as Chairman and two Senior Officers from the Police and the Armed Forces as members. It can be argued that once this definition of Tribunal was deleted, nothing would stop the High Court now provided by Decree No. 105 of 1979 from filling the gap such that the 1975 Robbery and Firearms Rules, which were still extant, could be used.
I have gone through the provisions of L. N. 56 of 1975 as well as the Robbery and Firearms Tribunal (Procedure)(Amendment) Rules 1977 i.e. L.N. 32 of 1977, to which reference was earlier made in this judgment. Although I see nothing in them that is inconsistent with the intendment of Decree No. 47 of 1970 as amended, I do feel that the procedure contained therein looked at generally still had the Tribunal orientation which is not quite in accord with the intention manifest in the amendment introduced by Decree No. 105 of 1979 by which trials of Armed Robbery offences were to be done in High Courts. It is for instance not quite clear whether the reference to Chairman in L.N. 32 of 1977 and the specific functions given him therein can really be taken to be referable to the High Court Judge who must now preside after Decree No. 105 of 1979. In these circumstances, I am of the view that L.N. 56 of 1975 and L.N. 32 of 1977, although extant could not have been used in this case. The proper procedure was that resulting from the application of Sections 239 and 274(1)(b) and 274(4)(b) of the Constitution – that is Edict B No. 19 of 1974.
Both learned counsel for the Appellant and Respondent relied on their briefs of argument on the merits of this appeal. I have read them and I see nothing to justify the disturbance of the conviction of the Appellant by the High Court which was affirmed by the Court of Appeal. For these reasons and the more detailed reasons in the lead judgment, I too would dismiss this appeal and 1do dismiss it. I further affirm the conviction and sentence previously passed on the Appellant.
A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of a preview of the judgment of my learned brother Kayode Eso J.S.C. I am entirely in agreement with the reasoning and conclusions therein. I wish merely to make my own little contribution to the interpretation of the proper scope of the application of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970, as a result of the coming into force of the Constitution, 1979; and the application of the Criminal Procedure (Miscellaneous Provisions) Edict No. 19 of 1974 of East Central State applicable in Imo State to offences under the Decree. The afore-mentioned Decree and the Edict by virtue of section 274 of the Constitution 1979 are now applicable as existing laws.
The facts of this case have been very fully stated in the lead judgment of my learned brother Kayode Eso, J.S.C. I need not repeat them. I am here concerned with the challenging submissions of Mr. Udechukwu for the Appellant and the equally convincing reply by the Respondent that
(a) the Attorney-General for Imo State was not competent to prosecute offences under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970.
(b) that even if the High Court of Imo State was vested with jurisdiction to try offences under the Decree, the Attorney-General not having been delegated with powers, so to do, the Decree being a law of the National Assembly cannot be delegated with powers of prosecution, there being no constitutional provision in the 1979 Constitution, therefore cannot validly prosecute Appellant under the provisions of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970.
It was also submitted
(c) that the trial was a nullity and that Appellant ought to have been discharged and acquitted. Mr. Udechukwu also submitted
(d) that it was irregular to prosecute Appellant under the provisions of the Criminal Law (Miscellaneous Provisions) Edict No. 19 of 1974.
It was contended the law was not applicable. For the purposes of the analysis of the above issues it is only relevant to state that the Appellant was charged on the 11th August, 1982 with the offence of Robbery with Arms and prosecuted by the Attorney-General of Imo State before Anyawu, J in the High Court of Imo State at Isiala Ngwa, and convicted for the offence on the 12th October, 1984. If the contention of the Appellant is accepted the entire trial is a nullity. Otherwise, as Respondents contend there is a valid trial, and the conviction and sentence stand.
Counsel for the Appellant made before us identical submissions he made before the trial judge. After hearing the Hon. Attorney-General for Imo State at the time, Dr. E. E. J. Okereke in reply, the trial judge held that the Hon. Attorney-General for Imo State was competent to initiate the prosecution of the case against the Appellant, and did not require any authorization or approval from the Attorney-General for the Federation. The learned judge held (at p.65 of the record of proceedings) that
“The Armed Robbery and Firearms Act of 1970 with its subsequent Amendments is therefore not a law with respect to any matter in the Exclusive Legislative List in the schedule to the Constitution of the Federation. The Robbery and Firearms Act is no doubt a legislation of the Federal Government. But a close look at it, especially at s.6(1) shows that it has effect as a state law and not as a law of the Federation ….”
What the learned judge was saying was that the Robbery and Firearms Act 1970 was a Federal law which had effect as a State law. The learned trial judge relied on Dabah & anor v. The State (1977) 5 SC. 197 at 231 and Queen v. Owoh (1982) 1 All N.L.R. 659. The learned trial judge also held at page 65 that the Criminal Procedure (Miscellaneous Provisions) Law 1974 having been enacted when the Robbery and Firearms Act was in force in the State and since the Act provided for the death penalty on conviction it was the law applicable. Dissatisfied with the decision Appellant appealed to the Court of Appeal.
The arguments put forward before the trial Court were repeated on appeal. The Court of Appeal in a unanimous judgment rejected the contentions. It was held that the Attorney-General of Imo State was competent to institute the prosecution of the offence against the Appellant, and that the Criminal Procedure Law of Imo State was applicable. Before arriving at the finding the Court of Appeal at pp.121- 125 made a detailed chronological review of the Robbery and Firearms Act 1970 tracing its application from its enactment to the date of the prosecution of the Appellant, and after going up to 1984 emphasising its various phases. Appellant has filed two original and two additional grounds of appeal. The additional grounds of appeal are not necessary for any consideration of the issues for determination in this case. The two original grounds of appeal with particulars are as follows –
“(1) MISDIRECTION IN LAW
The learned justices of the Court of Appeal misdirected themselves in law when they failed to appreciate that the proceedings at the Court of first instance were a nullity as the Prosecutor, the Attorney-General of 1mo State had no or no sufficient locus standi to prosecute a case of Armed Robbery contrary to Section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act 1970 as amended by the Constitution of the Federal Republic (Certain Consequential Repeals) Act No. 105 of 1979.
PARTICULARS OF ERROR
(i) The said Robbery and Fire Arms (Special Provisions) Act 1970 as amended was a law which operated as an Act of the Federal Legislature.
(ii) Only the Federal Attorney-General or any officer under him could prosecute for an offence under the said Act.
(iii) Section 104(4) of the 1963 Constitution had been dropped as part of Nigerian law.
(iv) Even if that provision were still part of the Nigerian law, then a State Attorney-General may only prosecute for an offence under the said Robbery and Fire-Arms (Special Provisions) Act if power to do so had first been delegated to him by the Federal Attorney-General.
(2) MISDIRECTION IN LAW:
The learned justices of the Court of Appeal misdirected themselves in law when they failed to appreciate that the Criminal Procedure (Miscellaneous Provisions) law otherwise called Edict number 19 of 1974 of East-Central State of Nigeria ought not to apply to trial for offences under the Robbery and Fire Arms (Special Provisions) Act 1970 as amended.
PARTICULARS
(i) The Appellant was tried on information brought pursuant to the said Edict number 19 of 1974.
(ii) Section 1(2) of the Edict delimits the scope of the Edict and the Robbery and Fire-Arms (Special Provisions) Act 1970 as amended is outside this scope.
(iii) Section 2 of the said Edict defines Attorney- General to mean the State Attorney-General and the State Attorney-General is under the 1979 Constitution empowered to prosecute for offences under State law only.
(iv) By virtue of the constitution when power to make substantive law is vested in the Federal Legislature, powers to make procedural law for the enforcement of the substantive law is also vested in the Federal Legislature, so that the Edict number 19 of 1974 aforesaid being a State Law on procedure cannot apply to trial of offences under Federal Substantive law.”
Because the issues canvassed by Appellant involved determination of matters of crucial constitutional importance, a constitutional court of seven justices was empanelled, and the Attorney-General of the Federation was invited as amicus curiae to assist the Court on the questions of constitutional interpretation involved. Counsel for the parties and the Attorney-General of the Federation, all filed their briefs of argument. In their oral argument before the Court, each adopted the brief filed and made oral elaborations where this was considered necessary.
Counsel for the Appellant and the Attorney-General for the Federation have formulated identical three issues for determination. The two issues formulated by the Director of Public Prosecutions for Imo State, for the Respondent is more terse and appears nearly to cover the same field as the other formulation of questions for determination. However, I consider it more convenient to adhere to the three issues formulated by the Appellant which clearly isolate all the questions which fall for determination. The issues which arise for determination therefore are the following:-
“(i) Whether offences under the Robbery and Fire-Arms (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 Act 1 No. 47 of 1970.
Counsel to the Appellant argued the first two questions for determination which constitute his first ground of Appeal together. He referred specifically to the opinion in the judgment of the Court of Appeal where Ogundere, J.C.A. at p.123, said,
“Thus from 1st October, 1979 the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 operated as a State law and in respect of which a State could apply its own Criminal Procedure Law”
and submitted that in view of the provisions of the 1979 Constitution and the Constitution of the Federal Republic (Certain Consequential Repeals etc.) Act No. 105 of 1979 that opinion could not be right. Counsel submitted that Act No. 47 of 1970 was by s.10(1) even as amended by Act No. 105 of 1979 still applicable throughout the Federation of Nigeria. He went on to point out that as at the time of the prosecution, Act No. 47 of 1970 was by virtue of s.274(1) of the Constitution 1979 an existing law and must be deemed to be a law of the National Assembly. Counsel contended that since s.10(1) of Act No. 47 of 1970 made it applicable throughout the Federation; as a law of the National Assembly, the National Assembly alone can legislate in matters relating to Firearms which is in the exclusive legislative list of the Constitution 1979. Counsel concluded that by s.4(3) of the Constitution 1979 only the National Assembly could legislate in respect of matters relating to Robbery and Firearms. Counsel urged on the court that the offence of Robbery with Firearms is by virtue of item 67 incidental to Fire-arms in item 2 of Part 1 of the second schedule to the Constitution 1979. Counsel relied on Okobi v. The State (1984) 7 SC. 47 and Anyebe v. The State (1986) 1 N.W.L.R. (Pt. 14) 39 for the submission that offences under the Firearms Act are federal offences. Accordingly it was submitted that the total of the Appellant at the State High Court was a nullity, because the Attorney-General of Imo State had no locus standi to prosecute for any offence charged under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended up to 1979. It was contended that only Attorney-General for the Federation or any officer under him may file information or institute criminal proceedings under any Act of the Federal Legislature or any other Law operating as an Act of the Federal Legislature. Counsel cited section 160(1)(2)(3) of the Constitution 1979, Mandara v. A-G of the Federation (1984) 4 S.C. S; Onnewuka v. The State (1970) 1 All N.L.R. 159; Anyebe v. State (1986) 1 N.W.L.R. (Pt. 14) 39, A-G Kaduna v. Hassan (1985) 2 N.W.L.R. (Pt. 8) 483.
It was submitted citing Onyema v. Opura (1987) 3 N.W.L.R. (Pt. 60) 259 that there was no provision in the 1979 Constitution for delegation of the power to prosecute by the Attorney-General. Even if such power could be read into section 160 of the Constitution 1979, proof of such delegation was mandatory and the information must be filed in the name of the Attorney-General of the Federation on behalf of the Federal Republic of Nigeria. Counsel relied on section 337 of the Criminal Procedure Act and Queen v. Owoh & 2 ors. (1962) 1 All N.L.R. 659. Counsel relying on section 1(c) and Schedule III of Act No. 105 of 1979 stated that there was a clear intention to exclude the State Attorney-General from instituting prosecution for offences under Act No. 47 of 1970. It was submitted that the express repeal of section 6 of Act No. 47 of 1970 is a clear ouster of the locus standi of the State Attorney-General. It was finally conceded that although the State High Court was competent to try the Appellant for the offence charged, but submitted that the Attorney-General had no competence to prosecute Appellant for the offence.
I think the Crux of the issues for determination lies in the construction of the proper scope of application of Act No. 47 of 1970 after the amendment of the Constitution of 1979 by Act No. 105 of 1979. In my opinion on the proper construction of these statutes rests the further questions of the power to prosecute and the applicable law of procedure. If the proper construction of the relevant provisions is that the Act No. 47 of 1970 survived as a state law, quasito cadit, then the determination issue whether the Attorney-General of Imo State has the locus standi to prosecute offences under Act No. 47 of 1970 and whether the Criminal Procedure (Miscellaneous Provisions) Law 1974 is applicable becomes a mere formality.
In his reply to the contention of the Appellant that the Attorney-General of Imo State had no locus standi to prosecute in respect of offences under the Act No. 47 of 1970, the learned Director of Public Prosecutions for Imo State in his brief of argument and orally before us submitted that there was the necessary locus standi. He relied on the Construction of section 1(c) of Act No. 105 of 1979, amending Act No. 47 of 1970 to provide for trial of offences in the High court of the State concerned. Act No. 105 of 1979 came into effect on the 1st October, 1979. He also pointed out that sections 6, 7, 8 of Act No. 47 of 1970 relating to procedure for trial and the definition of the word Tribunal in section 9 having been repealed, Act No. 47 of 1970 came within the ambit of and consistent with the Constitution of 1979 whereby residuary matters were within the legislative competence of the State House of Assembly. Counsel therefore submitted that since the offence was not one under the exclusive legislative list, the Attorney-General of the State can prosecute “subject to the power of the Attorney-General of the Federation to take over and continue such case or discontinue.” Counsel relied on the provisions of section 160(1)(a) of the Constitution 1979 for this proposition.
In somewhat confused submission, counsel went on to agree with the submission of counsel to the Appellants that Act No. 47 of 1970 was an Act of the National Assembly creating offences triable in the State. In respect of such offences it was submitted, that “the Attorney-General of a State can institute criminal proceedings subject and without prejudice to the right of the Attorney-General of the Federation to take over or discontinue such prosecution.” Counsel relied on Onwuka v. The State (1970) 1 All N.L.R. 159, 166-167 for this submission.
Mr. Njoku, the learned DPP Imo State further submitted that there was no provision in the Constitution 1979, vesting exclusive power to prosecute in respect of federal offences committed in the State in the Attorney-General of the Federation. Hence, in the absence of such specific provision in section 160 of the 1979 Constitution, the provision should be given a liberal construction to enable the Attorney-General of the State to initiate and prosecute in such offences, triable in the State. Counsel cited and relied on Nafiu Rabiu v. Kano State (1980) 8-11 S.C. 130. [suppose counsel derives support for this view in section 250 of the Constitution 1979. Prince Bola Ajibola, S.A.N., the Hon. Attorney-General for the Federation who appeared in person as amicus curiae adopted a similar but slightly more profound argument than counsel for the Respondent. He gave a legislative history of the Robbery and Firearms Act from its inception in its state of origin and to its last amendment in 1984. He went on however to refer to section 4 of the Constitution of 1979 which gave legislative powers to the National Assembly and pointed out that the offence of Robbery with arms is not included in either of the Legislative lists, i.e. Exclusive or Concurrent. It was then submitted that at the time of the alleged commission of the offence on the 29th April, 1982, only the House of Assembly of a State was competent to legislate in respect of the offence, being one in the residuary list. The learned Attorney-General then submitted that by the provisions of section 274(1) of the Constitution 1979, whereby Decree No. 47 of 1970 as amended by Act No. 105 of 1979 becomes an existing law, having been suitably modified to bring it into conformity with the Constitution as from the 1st October, 1979, and took effect as from that date as a law made by the House of Assembly of Imo State. This is because the offence of Robbery with arms is a residuary matter outside the legislative competence of the National Assembly.
The learned Attorney-General therefore came to the conclusion that Act No. 47 of 1970 was a State law at the time of the commission of the offence by the Appellant. Summarily stated the answer of the Respondent and the Hon. Attorney-General of the Federation rested on the construction of the provisions of Act No. 105 of 1979, sections 4, 160, 191,239 and 250 of the Constitution of 1979 and Act No. 47 of 1970.
The above concisely stated are the submissions of counsel on the issue whether Act No. 47 of 1970 is a Federal or State legislation. There was also the further question whether it created a federal or State offence. It was submitted that the Act No. 47 of 1970 created a federal offence triable in the State High Courts.
For a clear understanding of the genesis and chronology of the offence, resort should be made to the judgment of my learned brother Kayode Eso, J.S.C. which has discussed this admirably and in some depth, I only wish to add that the offence of Robbery though existing in some modified form in sections 402, 403 of the Criminal Code, and the Panel Code which were then of Regional application was introduced into the rest of the Country at the time the Constitutional powers of the Federal Military Government did not recognise any limitations, territorial or subject matter to its legislative powers. Hence it was provided that the Act of 1970 applied throughout the Federation – See s.10(1). Section 3(1) of the Constitution (Suspension and Modification) Decree No.1 of 1966 and Constitution (Repeal and Restoration) Decree No. 13 of 1987 as amended by Decree No. 27 of 1967provides as follows:-
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It is pertinent to observe that the Robbery and Firearms (Special Provisions) Act is a new creation which merely provides for an aggravated form of the existing offence of Robbery which still exists side by side with the original offence. See Yamusissika v. State (1974) 1 All NLR 594. However although it was created by a Federal legislation the offence was made applicable throughout the Federation and has always been prosecuted by state functionaries and tried in tribunals or courts created by the State. See s.5(1)(2) 6, of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. It is for this reason that counsel has described the law as a Federal legislation to be applied by the States. This undoubtedly was the position before 1st October, 1979 when the constitutional powers of the Federal Government to make laws was unlimited. Although the amendment in Act No.29 of 1974, amending s.6 of the principal Act vested in the Attorney-General of the Federation the power to make rules as to procedure to be adopted by all the States in prosecutions for the offence, it did not deprive the Attorney-General of the Federation the power to make rules as to procedure to be adopted by all the States in prosecutions for the offence, it did not deprive the Attorney-General or Solicitor-General of the State, as the case may be of the power to institute prosecutions. This situation was maintained by rule 19 of the Robbery and Firearms Tribunal (Procedure) Rules, 1975 L.N. 56 of 1975 which defined the Prosecutor as the Attorney-General or the Solicitor-General as the case may be of the State in respect of which the Tribunal was constituted. It is therefore difficult to resist the inevitable conclusion that the policy of the legislation was directed at vesting entire control of the prosecution and trial of the offences in the States where the Tribunals were constituted. This policy remained unchanged till the amendment of Act No. 105 of 1979 intended to bring Act No. 47 of 1970 in line and compatible with the new Constitution of 1979.
It is pertinent to mention that by section 1 (c) and the third schedule to Act No. 105 of 1979, the Robbery and Firearms (Special Provisions) Act No.47 of 1970 was amended by the substitution of a new section 5 which provided as follows –
“5. Offences under this Decree shall be triable in the High Court of the State concerned”
Hitherto the offences were tried in Tribunals in the States. The obnoxious features such as extra judicial confirmation of sentence and the abolition of the right of appeal under s.8(2), which is now guaranteed under the constitution were made. As it were to complete the handing over of jurisdiction to State functionaries and judicial institutions, the Act deleted the definition of Tribunal in section 9. Thus the offences were no longer to be tried in Tribunals, and the procedure provided under the Act No. 47 of 1970 ceased to be applicable as from the 1st October, 1979. This was why the Court of Appeal held that as from that date the surviving provisions of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 operated as State law, in respect of which the courts of a state could apply its own criminal procedure law. It is wrong to regard the surviving provisions of the Robbery and Firearms (Special Provisions) as a Federal law. As from 1st October, 1979 the National Assembly ceased to have legislative responsibility in respect thereof and could not legislate on it.
The conclusion of the Court of Appeal is now challenged by the Appellant. The contention by counsel to the Appellant that Robbery and Firearms (Special Provisions) Act. 47 of 1970 survived as a legislation of the National Assembly being incidental to the items 2 & 67 of Schedule 2 in the Exclusive legislative list of the Constitution 1979 is erroneous. In my opinion the expression “Firearms” as used in the Act No. 47 of 1970 is not synonymous with the word “arms” in item 2 of the second schedule or incidental thereto.
The word “Firearm” was used in the Act as an adjective descriptive of the type of robbery sought to be visited with aggravated punishment. It does not by itself constitute the offence which unlawful possession of arms does in the Firearms Acts. Herein lies the distinction between the offence and the decision in Anyebe v. The State (1986) 1 N.W.L.R. (PI. 14) 39 where the offence
was possession of Firearms. It seems Counsel did not appreciate that item 2 of the second schedule relied upon speaks of the word “Arms, ammunition and explosives” it does not refer to Firearms. Obviously Robbery with Firearms cannot be incidental to Arms, ammunitions and explosives. It does not come within the genus contemplated by item 2 of the Second Schedule to the Constitution 1979. I agree with the Hon. Attorney-General of the Federation that the offence of Robbery with Firearms is only a variant of the generic offence of Robbery and is not incidental to item 2 of Part 1 of Schedule 2 of the Constitution 1979. The dominant offence in this case is Robbery, the use of Firearms being merely incidental to the commission of the offence. Robbery is not an ingredient of the offences created under item 2 of the Exclusive list of the second schedule to the Constitution 1979. Thus the offence of robbery not being an item in the Legislative lists of the Constitution 1979, the Court of Appeal was right to hold that it is in the residuary list. Accordingly, it is a matter in respect of which ONLY the House of Assembly of the State can legislate.
There is no doubt that shorn of the obnoxious provisions repealed by virtue of the Constitution (Certain Consequential Repeals) Act No. 105 of 1979, the surviving provisions of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as from the 1st October, 1979 by virtue of section 274(1)(b) of the Constitution 1979 is deemed to have survived as existing law of the House of Assembly of the States, including Imo State, which by the Constitution of 1979 was empowered to legislate in respect of such matters. The answer to the first question for determination is that as from the 1st October, 1979 and at the time of the commission of the offence by Appellant in April, 1982 and trial in August 1982 the Robbery and Firearms (Special Provisions) Act was a law of the House of Assembly of Imo State. This disposes of the first question for determination. The answer in the affirmative to the second question whether the Attorney-General of Imo State had the locus standi to initiate prosecution in respect of the offence therefore becomes a formality. Since the offence was created by a law of the House of Assembly of the State, section 191(1)(a) of the Constitution 1979 is conclusive of the matter. It provides as follows –
“191 – (1) The Attorney-General of a State shall have power
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a Court-martial in respect of any offence, created by or under any Law of the House of Assembly”
The contention by Appellant that the Attorney-General had no locus standi is founded on a misconception that the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 survived as an existing law of the National Assembly. I have already held such view erroneous. It is a State Law. The related arguments about absence of constitutional power of delegation of authority to prosecute still rests on the same misapprehension. It is conceded as it is obvious from the provision of section 191 of the Constitution cited above that the competence of a State Attorney-General to institute criminal proceedings is derived from the Constitution and generally limited to State offences. This undoubtedly gives the Attorney-General of a state power to institute criminal proceedings in respect of offences created by the laws of the House of Assembly of the State. (However cognisance must be of section 250 of the Constitution 1979 enabling trial in the Courts of the States of Federal Offences). The cases of Anyebe v The State (1986) 1 N.W.L.R. (Pt. 14) and A.G. v. Hassan (1985) 2 N.W.L.R. (Pt. 8) 483 cited by Appellant as deciding the contrary did not actually deal with the issues. Anyebe v. The State, (supra) was a prosecution by the State for an offence under section 28 of the Firearms Act as amended by the Firearms (Amendment) Act No. 31 of 1966, an offence under the Exclusive Legislative List of the Constitution 1979. The issue of locus standi in Attorney-General of Kaduna State v Hassan (supra) did not concern the power of the Attorney-General of Kaduna State to institute criminal proceedings. The issue was whether a father had locus standi to bring an action to challenge the exercise by the Solicitor-General of the State of the Attorney-General’s power under s.191(1)(c) to terminate pending criminal proceedings by means of a nolle prosequi.
Counsel for the Appellant appears to have persisted in his error in the submission that the repeal of section 6 of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 deprived the State Attorney-General of the locus standi to prosecute for offences under the Act. That clearly was not the effect of the repeal. The repeal was to bring the trial of offences in Act No. 47 of 1970 in line and consistent with the new constitutional position. I have already stated that the Attorney-General derives his power to prosecute from section 191 of the Constitution 1979 and not from the provisions of the Robbery and Firearms (Special Provisions) Act. Since the offence is a creation of a law of the State House of Assembly, section 191 of the Constitution vests the Attorney-General with the power to initiate criminal proceedings. Thus the repeal of the provisions of section 6 of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 by the Constitution of the Federation of Nigeria (Certain Consequential Repeals etc.) Act No. 105 of 1979 did not in fact affect the power of the Attorney-General to institute criminal proceedings under the Robbery and Firearms (Special Provisions) Act No.47 of 1970.
My answer to the second question again is that the Attorney-General of Imo State had locus standi to institute criminal proceedings under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. The offence being a law of the House of Assembly of the State the question of delegation of authority from the Attorney-General of the Federation did not arise. The cases cited by counsel for the Appellant are therefore inapplicable.
I now turn to the third question for determination which challenges the applicability of the Criminal Procedure (Miscellaneous Provisions) Edict No.19 of 1974 of the East Central State to trial of offences under the Robbery and Firearms (Special Provisions) Act No.47 of 1970. It was the contention of counsel to the Appellant that Law No.19 being a State law on practice and procedure in force in Imo State is not applicable to offences under Act No. 47 of 1970 which is an offence created by an Act of the National Assembly. Counsel referred to s.1(2) of Law No.19 of 1974 and submitted that the offence under Act No.47 of 1970 did not fall within the scope of section 1(2) of Law No.19 of 1974.
In his reply, the learned Director of Public Prosecutions, Imo State submitted that Law No. 19 of 1974 applied. He referred to s.5 of the Law and submitted that offences involving capital punishment were included in the cases in which the Attorney-General of the State is empowered to adopt the procedure.
On his part the Attorney-General of the Federation submitted that Law No. 19 of 1974 was applicable. He pointed out that having held that the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 survived as a State law, the rules of practice and procedure prescribed for use in the High Courts of the state is the one properly applicable.
The Criminal Procedure (Miscellaneous Provisions) Edict No 19 of 1974 was a law of the East Central State, enacted to regulate the prosecution of criminal offences in the Courts of the State. By Section 1(2), it was to apply,
(i) in respect of any charge relating to a criminal offence created by or under the provisions of a law or an edict, or
(ii) any enactment whatsoever, which is in force in the state at the date of the commencement of this Edict or,
(iii) having been made before that date, comes into force after that date (hereinafter called an existing law),
(a) being a charge in respect of which a preliminary investigation or preliminary inquiry (within the meaning of the Criminal Procedure Law (Cap. 31) is by such existing law required or intended to be conducted.
Imo State was created out of the East Central State on the 3rd February, 1976 by the State (Creation and Transitional Provisions) Act No. 12 of 1976. By s.5(1) all existing laws of the East Central State before that date continue in force in Imo State until repealed, subject to modifications to bring such laws into conformity with the Act. Hence The Criminal Procedure (Miscellaneous Provisions) Edict No. 19of 1974 of East Central State was at the time of the trial of the Appellant, an existing law in Imo State. It was such law until the Constitution of 1979 came into force, and section 239 and 275 made all such laws, laws of the House of Assembly of Imo State. Thus the Criminal Procedure (Miscellaneous Provisions) Law being a law which by s.239 of the Constitution 1979 the House of Assembly of a State has power to make, became a law of the House of Assembly relating to the trial of criminal offences deemed to have been made by the law of Imo State.
Counsel for the Appellant has submitted that the condition for the application of the procedure in Law No. 19 of 1974 was not met by the procedure under the Robbery and Firearm, Tribunal (Procedure) Rules which neither required the holding of a preliminary investigation nor a preliminary inquiry within the meaning of the Criminal Procedure Law. Accordingly, the existing law was not applicable.
Here again, there is a misconception of the law. The Robbery and Firearms Tribunal (Procedure) Rules 1975 also would appear to have survived as an existing law since it was not repealed. It was hitherto the applicable law regulating procedure and practice in such cases. Despite the effort in the Act No. 105 of 1979 to remove its obnoxious feature by the deletion of the definition of the word “Tribunal” and the restoration of trials in the ordinary courts and provision of channel of appeal, it came into disuse being inconsistent and incompatible with the spirit of the new Constitution of 1979.
It should be appreciated that when the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 became a law of the State, the state law regulating the trial of Criminal Offences became applicable – See Okobi v. The State (1984) 7 S.C. 47. It cannot be doubted that the offences triable under Act No. 47 of 1970 which involve capital punishment and life imprisonment are those which under the provisions of the Criminal Procedure Law will require a preliminary investigation or preliminary inquiry. It is the duty of the court to construe from the words used in the statute the intention of the legislation. Where it is unambiguous effect should be given to it – See Ojokolobo v. Alamu (1987) 3 N.W.L.R. (Pt. 61) 377. I therefore agree with the court below that Law No. 19 of 1974 is applicable. I have no doubt whatsoever in my mind that the provisions of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 applied in the prosecution of the Appellant was the applicable law.
Finally, there was the question whether a return to trial by Tribunal vitiated the trial. This submission has ignored the saving provision of the legislation. It is important to recall that the Robbery and Firearms (Special Provisions) Decree No.5 of 1984, which reverted to trial by Tribunal was soon after amended by Section 1(4) of Decree No. 21 of 1984 by saving pending cases and enabling the High Court to continue the trial of those cases commenced between 1/10/79 – 30/12/83 as if the Decree had not been made – See Adio v. State (1986)3 N.W.L.R. (Pt. 31) at p.720. The case of the Appellant came within the saving provision. Since the Appellant was tried by the law as it was when the offence was committed, there was no element of the trial to affect its validity.
For the reason I have given in this judgment, I too will dismiss the appeal and affirm the judgment and sentence of the High Court affirmed by the Court of Appeal.
S. KAWU, J.S.C.: I have had the advantage of reading in draft the lead judgment of my learned brother, Eso, J.S.C., which has just been delivered. I am in complete agreement with him that for the reasons set out in the said judgment, this appeal should be dismissed. I am also of the firm view that at the time the offence was allegedly committed, 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 operated as a State enactment, and by virtue of the provisions of Edict No. 19 of 1974 which became an existing law within the meaning of S.274 of the 1979 Constitution, the Attorney-General of Imo State was competent to institute criminal proceedings against the Appellant as he did. Accordingly the appeal is dismissed and the judgment of the Court of Appeal affirmed.
S. M. A. BELGORE, J.S.C.: I had a preview of the judgment of my learned brother, Eso, J.S.C., with which I entirely agree. I have nothing useful to add. I also therefore dismiss this appeal on the reasons ably advanced in the lead judgment.
P. NNAEMEKA-AGU, J.S.C.: The main issue raised by this appeal is whether the criminal prosecution against the Appellant was competently commenced by an information filed for and on behalf of the Attorney-General of Imo State.
The Appellant was charged with one Godwin Anyanwu of armed robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, No. 47 of 1970 as amended by the Constitution of the Federal Republic (Certain Consequential Repeals) Act, No. 105 of 1979 of robbing Michael Ede and Fidelis Nnamani of 520 cartons of Geisha and Queen Coast Sardines valued at N12,248.00. At the end of the trial the Appellant only was found guilty as charged and sentenced to death according to law. His appeal to the Court of Appeal, Enugu Division, was dismissed by Ogundere, J.C.A., Olatawura and Aikawa, JJ.C.A. concurring.
The Appellant has appealed further to this Court. Let me say straight away that on the facts, if there was a competent proceeding before the Court of trial, I would readily agree with my learned brother, Eso, J.S.C., that the appeal has no substance and ought to be dismissed.
The learned counsel for the Appellant, Mr. U. N. Udechukwu, has, however raised what I consider a most substantial ground as to the competence of the Attorney-General for 1mo State to file, or direct the filing of, the information against the Appellant. In a nutshell, his contention is that armed robbery is a Federal offence even though it was triable in State High Courts; so, it is the Federal, and not the State. Attorney-General who is competent to file an information for the offence. It is a matter incidental or supplementary to arms, ammunition and explosives as listed in Item No.2 of the Exclusive Legislative List in the 1979 Constitution and so, by the joint effect of Item No. 67 of that List and paragraph 2 in Part 111 of the Second Schedule, jurisdiction over offences relating thereto is Federal, he submitted. He also pointed out that in the case of Anthony Okobi v. The State (1984) 7 S.C. 47, this Court, at p.61 held that offences under the Robbery & Firearms (Special Provisions) Act were Federal offences. He submitted that competence to prosecute belongs to the realm of substantive law: Onwuka v. The State (1970) 1 All N.L.R. 159, at p.163. It cannot be waived. He urged the Court to follow its decision in The Queen v. Azu Owo & Ors. (1962) 1 All N.L.R. 659. and merely quash the conviction and discharge the Appellant.
There is no doubt that if the learned counsel is correct in his submissions, there is substance in the appeal. But the question is: is he correct The first observation I must have to make is that unless I put the legislations on armed robbery in their proper historical setting, as indeed did the Honourable Attorney-General of the Federation who appeared as amicus curiae, I cannot reach a correct decision in the matter. This is because, as the learned and Honourable Attorney-General put it, rightly in my view, there has been a good deal of “legislative pollution” in terms of the Legislative Lists in the matter. It is only a deep insight into the history of the legislations that can give us the correct answer. I feel entitled to call in aid the historical background of the enactments in order to correctly comprehend the true import thereof, although I ought to also construe the enactments themselves to find out whether the words themselves show any intention to depart from the historical trend or to alter the law. In short I can only use this historical setting of the enactments as an aid to their interpretation, not as an over-riding consideration. 1 believe that Sir George Jessel, M.R., put the law correctly where he said in Holmes v. Guy (1977) 5 Ch. D. 901, at p.905:
“The Court is not of be oblivious —— of the history of law and legislation. Although the Court is at liberty to construe an Act of Parliament by the motives which influenced the Legislature, yet when the history of law 2nd legislation tells the Court, what the object of the legislature was, the Court is to see whether the terms of the section are such as fairly to carry out that object and no other, and to read the section with a view to finding out what it means, and not with a view to extending it to something that was not intended.”
See also Eastman Photographic Materials Co. Ltd. v. Comptroller-General of Patents (1898) A.C. 571; Attorney-General for Northern Ireland v. Gallagher (1963) A.C. 349, per Lord Reid at p.366. I must in this case have due regard to the circumstances which necessitated the passing of the Act, the state of our constitutional law at the time, and the mischief which then existed as much as they can be judicially noticed.
It is now part of our legal, constitutional and, indeed, political history that the Military took over power from the civilians on January, 15, 1966; that before then Nigeria operated a Federal Constitution of 1963 in which residuary powers lay with the Regions; that in 1966, by Decree No. 1 of 1966, the Military suspended certain provisions of the Constitution of 1963, modified others and made the subsisting provisions amendable by Decrees. It ought to be mentioned, too that by Decree No. 28 of 1970 the Federal Military Government not only asserted, by Decree, the absolute powers of the Federal Military Government “to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever” but also asserted the supremacy of such Decrees or Edicts to all laws and judicial decisions. That Decree was in force at the time when The Armed Robbery and Firearms Decree (No. 47) of 1970 was promulgated, until it was repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals, etc.) Decree (No. 105) of 1979 which came into force on the 1st of October 1979, the date on which the Constitution of the Federal Republic of Nigeria, 1979 came into force.
It is, I believe from this historical setting of the Federal Military Government empowering itself to legislate for the whole or any part of the Federation that we have to consider the issue of competency raised by this appeal. My first observation is that in view of the fact that the Federal Military Government had empowered itself by Decree to legislate for the whole or any part (which I take to include a State) of Nigeria, it appears to be fallacious and misleading to approach the problem from the point of view of the Legislative Lists, save if, and in so far as, it is shown to belong to any of the Lists after October 1, 1979. I must also note that Decree No. 47 of 1970 was in operation for some eight years before 1979. For these reasons, the fact that in 1977 when Decree No. 28 of 1970 was still in force this Court in Anthony Okobi v. The State (supra) at p.61 called armed robbery a Federal Offence is neither helpful nor conclusive to-day or even in 1982 when the offence was committed, as Decree No. 28 of 1970 and several other Decrees were repealed in 1979.
In my view, a more useful inquiry in the circumstances I have mentioned above is: who was intended by the legislator to initiate proceedings under the Robbery and Firearms Decrees This becomes all the more useful because there are several provisions in our law, constitutional and otherwise, for State functionaries prosecuting Federal causes. In any event, the power to prosecute Federal offences have quite often been conferred by legislation or delegated to State functionaries. Now under the principal law, that is Decree No. 47 of 1970, it was provided that the Decree “shall apply throughout the Federation” [see section 10 (1) 1. But by section 6 thereof,
“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 Director of Public Prosecutions of
the State concerned or by such officer of the Ministry of Justice of that State as the Director of Public Prosecutions may authorize so to do.
Provided that the question whether the Director of Public Prosecutions has given an authority in pursuance of this section, or what the authority was, shall not he enquired into by any person except at the instance of the Attorney)General of the State.”
The Military Governor of the State would not only constitute the Tribunal but also must confirm or disallow any conviction under the Decree (Ss. 5 and 7). I may pause here to observe that even though the principal Decree was enacted by the Federal Military Government, it was clearly intended that prosecution of offences thereon must be initiated by the State D.P.P. at the direction of the Attorney-General of the State. It was probably realized that by the nature of the subject matter. it being in the residuary List before, 1979, it was a matter on which the State could have legislated; but that by the wide legislative powers oft he Federal Military Government as shown by Decrees Nos. 1 of 1966 and 28 of 1970, they had to pass the legislation themselves. By Decree No. 48 of 1977, the Attorney-General of the State replaced the D.P.P. as the highest decision making authority in the State on the matter. By Decree No. 29 of 1974 the initiation of prosecution by the Attorney-General of the State was re-affirmed (see 6(2) and (3). But the Attorney-General of the Federation was, with the approval of the Federal Executive Council, by section 6(1) of the Decree empowered to make Rules as to the procedure for the conduct of the prosecution. This he did by promulgating the Robbery and Firearms Tribunal (Procedure) Rules 1975, published Gas L.N. 56 of 1975. It is noteworthy that by rule 19, the “prosecutor” is the Attorney-General of the State where the tribunal is constituted or where there is no Attorney-General the Solicitor-General or an officer in the Ministry of Justice in the State duly authorized in that behalf by the Attorney-General. Thus it can be said that all through, by all the relevant legislations substantive and adjectival, on Armed Robbery and Firearms from 1970 although passed by the Federal Government and its functionaries, it was intended that the institution of proceedings under the Decrees shall be done by State functionaries – by or at the instance or direction of the Attorney-General. This was the position in 1979.
It is from this background that 1 have to construe Decree No. 105 of 1979, that is “Repeals and Modification of Certain Decrees” Decree of 1979. The following amendments were made with respect to the Robbery & Firearms (Special Provisions) Decree (No. 47) of 1970.
“1. For section 5 there shall be substituted the following section “offences under this Decree shall be triable in the High Court of the State concerned.
2. Sections 6. 7 and 8 arc hereby repealed.
3. The definition of tribunal in section 9 shall be deleted.”
Significantly, section 6 which enabled the Attorney-General in the State or an appropriate officer in his Ministry to prosecute was one of the sections which were repealed by Decrec No. 105 of 1979. While Mr. Udechukwu argues that this is manifest of the intention that, like other Federal enactments, the prosecution shall henceforth be initiated in a State High Court by the Attorney-General of the Federation. the Hon. Attorney-General of the Federation. Prince Ajibola and the learned D.P.P. for Imo State. Mr. Njoku argued that the intention was to just leave the matter to be dealt with by the State functionaries in accordance with the laws of, or applicable in, Imo State.
I rather agree with the learned Attorney-General of the Federation and the D.P.P. for Imo State. As the power to prosecute had been all through vested in the State Attorney-General and officers in his Ministry, one is entitled to expect that if the Attorney-General of the Federation had intended to take over the power, it should have been done by express words conferring the power and not by merely repealing section 6 of the principal Decree. Although section 160 of the Constitution of 1979 gives to the Attorney-General of the Federation the power to institute and undertake public prosecutions, just as section 191 gives to Attorneys-General of States. it is not in all Federal Causes that the Attorney-General of the Federation and officers of his Ministry must prosecute. Section 250 of the Constitution and several enactments of the Federal Government itself have vested the power of prosecution of some of those causes on State functionaries. Besides, the power of such causes is always delegable. I am of the firm view, therefore, that, in view of the trend of the legislations on armed robbery and firearms from 1970 to 1979. if it was intended by the legislator to transfer the power to initiate and prosecute such matters from the Attorney-General of States to the Attorney-General of the Federation, he would not have done so merely by repealing section 6 of the Decree. He would have proceeded to expressly provide that the power would henceforth be exercisable by the Attorney-General of the Federation. But clearly he did not: such a power must be expressly conferred. Therefore, I shall direct my inquiry into whether, as at the time section 6 of the principal Decree was repealed on 1st October. 1979, there was extant any law in Imo State which could have been fallen back upon. The answer will be found in Edict (Law) No. 19 of 1974 which became an existing law within the meaning of section 274 of the Constitution. It was then deemed to be a “law in accordance with the practice and procedure—-prescribed by the House of Assembly of the State” under the powers vested in it by section 239 of the Constitution. That Law (i.e. No. 19) applies:
“In respect of any charge relating to a criminal offence created by or under the provisions a law or an Edict or any other enactment whatsoever which is in force in the State at the date of commencement of the Edict (Law) or having been made before that date comes into force after that date (hereinafter called an existing law) being a charge in respect of which a preliminary investigation or preliminary inquiry (within the meaning of the Criminal Procedure Law (Cap. 31) is by such existing law required or intended to be conducted.”‘
There is no doubt that the above provisions apply to armed robbery offences and are wide enough to cover the case against the Appellant. In so far as the Edict (Law) authorises the Attorney-Genera! of the State to initiate criminal proceedings in such cases, I must resolve this issue against the Appellant and hold that the prosecution was validly commenced by the Attorney-General of Imo State.
Finally I wish to express an opinion as to the pendency or otherwise of the Robbery & Firearms Tribunal (Procedure) Rules 1975. Now the general law is that when an Act is repealed, any delegated legislation made under it falls to the ground unless it is expressly preserved See Watson v. Winch (1916) 1 K. B. 688; Maxwell: Interpretation of Statutes (4th Edition) p.18. In our law it could be preserved either in the substituted Legislation or by reference to the Interpretation Act. By section 4(c) of the Interpretation Act. 1964.
“(c) any subsidiary instrument in force by virtue of the repealed enactment shall, so far as the instrument IS not inconsistent with the substituted enactment, continue in force as if made in pursuance of the substituted enactment.”
And in section 27(1) “subsidiary instrument” is defined to mean “any order, rules, regulations, rules of court or bye laws made either before or after the commencement of this Act ………………..” Therefore by the joint effect of sections 4 (c) and 27(1) of the Interpretation Act, 1964, the Robbery & Firearms Tribunal (Procedure) Rules, of 1975, survived Decree No. 105 of 1979, and is still subsisting. It follows from what I have been saying that it could have been used in these proceedings by deleting the word “tribunal” wherever it occurred. But in view of the fact that both under the Rules (see s.19) and Edict No. 19 of 1974, it is the Attorney-General for Imo State who should commence the proceedings, it would not have mattered which was used on the main point at issue in the appeal.
For the above reasons and the reasons which have been amply given in the lead judgment of my learned brother, Eso, J.S.C., which I adopt as my own, I shall dismiss the appeal. It is hereby dismissed and the judgment of the courts below affirmed.
E. B. CRAIG, J.S.C.: I have had a preview of the judgment of my learned H brother Kayode Eso, J.S.C., and I entirely agree with his reasoning and conclusions.
I also agree that the appeal fails and should be dismissed.
But I must commend Mr. Udechukwu, the Appellant’s Counsel, for drawing worthwhile attention to the chaotic areas of the Robbery and Firearms Decree. It would appear that the principal provisions of this Act have been amended so much that it now becomes a matter of serious legal research to determine the exact meaning of some sections of the Decree.
For instance, some of the important issues which the Appellant wants the Court to determine are:
(a) Whether offences 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) Act No. 105 of 1979, are federal offences or not.
(b) If they are federal offences, could the Imo State Attorney-General prosecute the Appellant without an expressed authority from the Federal Attorney-General
(c) If no such authority were given, would any prosecution undertaken by the State Attorney-General be null and void”
These are very weighty issues and the question then is, should such points be so obscure that it would need to be specially interpreted
Because of the constitutional importance of the appeal, the Hon. Attorney-General of the Federation was invited as amicus curiae to assist the Court and in his illuminating address, he succeeded in throwing light on the Act which he himself aptly described as one which has generated a lot of “legislative pollution.”
Nonetheless, the several issues formulated by the appellant have been adequately dealt with in the lead judgment and I agree with the views expressed therein.
However, it seems to me that one important point which has emerged on this appeal is whether there should be so much uncertainty about the operative parts of such an important Law.
It must be remembered that although robbery is an offence under the Criminal Code, yet the Robbery and Firearms Decree was promulgated in order to deal firmly and speedily with the incidence of armed robbery which had become rampant after the end of the Nigerian Civil War. In spite of the fact that the offence carries the death penalty yet it is a matter of common knowledge that armed robbery is still prevalent in the Country and is now committed with greater intensity and sophistication.
In my view, it is essential that the Law dealing with such offence should be made clear for all law enforcement agencies to apply as otherwise, the obscure areas of the statute may assist the guilty offenders to escape justice. In the result, this appeal fails and it is dismissed.
Appeal Dismissed
Appearances
N. Udechukwu For Appellant
AND
J.C. Njoku, D.P.P., Imo State For Respondent