C.O.P v. OGAR (2021)

C.O.P v. OGAR

(2021)LCN/15138(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 26, 2021

CA/ABJ/CR/559/2020

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

COMMISSIONER OF POLICE APPELANT(S)

And

DOMINIC IYAJI OGAR RESPONDENT(S)

RATIO

WHETHER THE BURDEN OF PROOF IN A CRIMINAL TRIAL, LIES THROUGHOUT UPON THE PROSECUTION TO ESTABLISH THE GUILT OF THE ACCUSED PERSON BEYOND REASONABLE DOUBT

The law, ancient and modern is that in a criminal trial, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt. The burden never shifts. Even when the accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden so that a wrong person will not be convicted for an offence he never committed. There must be evidence which identifies the accused with the offence. This is because the constitution presumes the accused person to be innocent until the contrary is proved. See Section 36(5) of the 1999 Constitution FRN, Section 135(1) of the Evidence Act 2011, Dongtoe v. Civil Service Commission, Plateau State (2001) LPELR – 959SC, People of Lagos State v. Umaru (2014)3 SCNJ 114 at 137, Igabele v. State (2006) NWLR (pt.975)100 and Abbey v. State (2017) LPELR – 42358SC p.34-35. The standard of proof in a criminal trial is proof beyond reasonable doubt. PER JAMES SHEHU ABIRIYI, J.C.A.

INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

By virtue of Section 221 of the Penal Code, the ingredients of the offence of culpable homicide punishable with death are: a) that the death of a human being took place; b) that such death was caused by the accused person; c) that the act of the accused that caused the death was done with the intention of causing death; or that the accused person knew that death would be the probable consequence of his act. All the ingredients must be proved before a conviction could be secured. Failure to prove any of the ingredients would result in an acquittal. The onus of proof is on the prosecution throughout. See Adava v. State (2006) 9 NWLR (pt.984) 152 at 167. PER JAMES SHEHU ABIRIYI, J.C.A.

PURPOSE OF A PRELIMINARY OBJECTION

A preliminary objection is a challenge to the competence of an appeal or the hearing thereof. The purpose of a preliminary objection is to terminate the appeal at that stage if the objection succeeds. See Garba v. Mohammed & Ors (2016) LPELR – 40612 SC. PER JAMES SHEHU ABIRIYI, J.C.A.

EFFECT OF NON-COMPLIANCE WITH THE PROVISIONS OF SECTION 4 (3) AND (4) OF THE ACT NO.10 OF 1963 IN GIVING A NOTICE OF APPEAL OR AN APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT IN ANY CASE WHICH INVOLVES OR COULD INVOLVE A SENTENCE OF DEATH OR A VERDICT OF GUILTY OF MANSLAUGHTER OR CULPABLE HOMICIDE

In the case of Adili v. The State (1989) LPELR 180, Obaseki, JSC held as follows: “The notice of appeal filed on behalf of the State by the Attorney General of Imo State is far out of time and this Court has no power or jurisdiction to entertain the appeal. The right of appeal not having been exercised within the 7 days prescribed by the Judicial etc Officers and Appeals by Prosecutors Act 1963 lapsed and has been lost forever under the Constitution. Sub-sections (3) and 4(1) of Section 4 of the Act No.10 of 1963 read: “3. The period within which notice of appeal or of an application for leave to appeal to the Supreme Court must be given by a person or authority other than the accused person in a case which involves or could involve sentence of death or a verdict of guilty of manslaughter or culpable homicide shall be SEVEN days from the date of the decision in question and the Supreme Court shall not have power to extend that period.” In State v. Omoyele (2016) LPELR – 40842 SC Sanusi, JSC stated: “Now in the instant case being one on which the Respondent was acquitted of a murder charge; the state which is the prosecutor has right to appeal against such acquittal within 7 days only by virtue of the provision of Section 4 of Judicial etc office and Appeals by Prosecutors Act No.10 of 1963. Sub-section 3 of Section 4 of the Act provides that a prosecutor such as the appellant in this appeal has only 7 days within which to give notice of appeal or to seek leave to appeal in any case which involves or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide. The act even went further to provide that the seven days period shall not be extended” In the earlier case of Adili v. The State, Obaseki, JSC touched on the rationale of this piece of legislation in the following words: “The earlier cases of capital offences are concluded the better so that all authorities can play their roles with quick dispatch.” In the State v. Omoyele (supra) Sanusi, JSC elaborated further thus: “We should not lose sight of the fact that the Judicial, etc, Officer and Appeal by Prosecutors Act No.10, is a special legislation promulgated to limit and narrow the scope of application such as cases involving sentence of death or verdict of guilty of manslaughter such as the situation in this instant appeal. Therefore, the period of appeal which has been constricted to only seven days within which a prosecutor can appeal against such sentence, is aimed at encouraging a prosecutor to be up and doing and appeal immediately if he is dissatisfied with the judgment so that the appeal is heard with minimum of delay and also to forestall the possibility of the offender or convict lingering in prison for a long period without his fate being determined finally and expeditiously too. That is more so, when the Act even prohibits Court to grant or entertain application for extension of time in such a situation. Once, a prosecutor fails to appeal within the seven days stipulated by the Act, that is the end of it.” I have looked at the Judicial etc, Office and Appeals by Prosecutors Act No. 10 of 1963. At the time it was enacted in 1963, this Court had not been created. There were however High Courts and a Federal Supreme Court. Now, if the Law was intended to spur a prosecutor to be alive to his responsibility, as the Supreme Court in both Adili v. State and State v. Omoyele have shown, this Court cannot afford to encourage laxity on the part of the prosecutor. This Court must tow the path of the Supreme Court. As Nnaemeka-Agu, JSC in Adili v. State said: “It is for the legislator to amend the law. It is for us to apply the law as it is.” PER JAMES SHEHU ABIRIYI, J.C.A.

EFFECT OF A PROCEEDING CONDUCTED BEFORE A COURT WHO HAS NO JURISDICTION TO HEAR AND DETERMINE A MATTER

It is trite law that if a Court has no jurisdiction to hear and determine a matter, the proceedings are and remain a nullity no matter how well conducted and brilliantly decided. See Dapianlong v. Dariye (2007) 8 NWLR (pt.1036) 332. PER JAMES SHEHU ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 26th March, 2018 in the High Court of the Federal Capital Territory in the Gwagwalada Judicial Division holden at Gwagwalada.

In the High Court (the Court below), the Respondent was tried, acquitted and discharged for the offence of culpable homicide contrary to Section 221 of the Penal Code.

On 29th April, 2020, this Court granted the Appellant extension of time within which the Appellant shall appeal against the decision of the Court below.

On 12th May, 2020 the Appellant filed a notice of appeal. The notice of appeal contains six grounds of appeal and some reliefs which include a prayer for an order directing the Respondent to enter his defence. From the six grounds of appeal, the Appellant presented the following two issues for determination:
“2.1. Whether the Appellant herein established a prima facie case against the Respondent herein during trial to warrant the Respondent to enter his defence. (Distilled from Grounds One, Two and Five).
2.2. Whether from the totality of evidence before the trial Court and in

the circumstances of this case the Prosecution led credible evidence in proof of it’s case (Distilled from Grounds Three, Four and Six).”

The Respondent filed a notice of preliminary objection on 7th October, 2020 and incorporated arguments on the preliminary objection in the Respondent’s brief of argument filed on 7th October, 2020 but deemed duly filed and served on 3rd February, 2021.

On the main appeal, the Respondent submitted the following lone issue for determination:
“WHETHER THE LEARNED TRIAL COURT JUDGE WAS NOT RIGHT IN LAW IN DISCHARGING AND ACQUITTING THE RESPONDENT OF THE CHARGE FILED AGAINST HIM, CONSIDERING THE FACTS, CIRCUMSTANCE, AND NATURE OF EVIDENCE LED AT THE TRIAL COURT BY THE APPELLANT INCLUDING EXHIBITS A1-A4? (DISTILLED FROM GROUNDS 1, 2, 3, 4, 5 AND 6 of the APPELLANT’S GROUNDS OF APPEAL)”

Arguing the preliminary objection, learned counsel for the Respondent submitted that in a criminal case, a prosecutor has seven days within which to appeal or seek leave to appeal in a matter involving the sentence of death or verdict of guilty of manslaughter and the time cannot be extended by virtue of Section 4(3) of the Judicial, etc Officers and Appeal by Prosecutors Act No. 10 of 1963.

The judgment appealed against in this case was appealed against over the seven days stipulated in Section 4(3) of the Judicial, etc Officers and Appeal by Prosecutor Act No.10 of 1963. This Law, it was submitted, is an existing Law. The Court was referred to the decision of the Supreme Court in State v. Omoyele (2017)1 NWLR (pt.1547)341 at 370 and 371-372 and an unreported decision of this Court in CA/A/640/2018 between Commissioner of Police v. Dominic Ogbaji delivered on 21st May, 2020.

In a reply to the preliminary objection, learned counsel for the Appellant pointed out that the Appellant had been granted extension of time within which to appeal and that order remains valid until set aside by a higher Court. This makes the present appeal different from the appeal in State v. Omoyele (2017)1 NWLR (pt. 1547) 341 at 370, it was submitted.

Apart from this, it was contended that by Section 241 of the 1999 Constitution FRN, the right of appeal is constitutional and cannot be circumscribed by the provisions of Judicial, etc. Officers and Appeal by

Prosecutors Act No.10 of 1963 or any other Law. No statute, it was submitted, can deny a party a right which is guaranteed by the Constitution. The Court was also referred to Section 24 of the Court of Appeal Act.

It was submitted that even if the Appellant was out of time to appeal, the Court of Appeal Act gives the Court discretion to extend time within which the Appellant can appeal under Section 24(4) of the Act.

In a Respondent’s Reply on point of law in reaction to the Appellant’s Argument to the Respondent’s preliminary objection on jurisdiction, learned counsel for the Respondent submitted that jurisdiction is the life wire of any adjudication. It was contended that the fact that the Respondent was represented in Court on 29th April, 2020 when the motion for extension of time for the Appellant to appeal was heard and granted without objection did not confer jurisdiction on the Court where same is lacking in the first place.

It was submitted that argument of learned counsel for the Appellant on Section 241 of the Constitution is misconceived in law. A similar argument, it was submitted, was canvassed in the case of

State v. Omoyele (supra). It was submitted that the case of Kawuwa & Anor v. P.D.P relied upon by learned counsel for the Appellant is not applicable to the instant case. It was submitted that this Court in the unreported decision of COP v. Dominic Agbaji (supra) considered Section 241 of the Constitution and Section 24 of the Court of Appeal Act and other statutes and applied the decision in State v. Omoyele (supra) in dismissing the Appellant’s appeal in that case.
Issue of jurisdiction can be raised at anytime, it was submitted.

Issue 1 and the arguments on it, I dare say, are irrelevant in this appeal against a final judgment of the Court below. I have reproduced issue 1 elsewhere in this judgment.

The last paragraph of arguments on Issue 1 is reproduced immediately hereunder:
“We therefore most humbly urge your lordships to hold that the Appellant established a prima facie case against the Respondent to warrant the Respondent to enter his defence. We urged your lordships to set aside the judgment of the trial Court in that stead and direct the Respondent to enter his defence.”

The procedure the Court is invited to embark upon is strange to me. There is no provision from my understanding of the criminal procedure for a no case submission to be made after judgment.
Consequently, an appellate Court cannot call upon an accused person after judgment to defend himself.
I will therefore not summarise arguments on issue 1.

On Issue 2, learned counsel for the Appellant submitted that the Appellant led cogent and credible evidence in proof of its case against the Respondent.

It was submitted that an accused person is constitutionally presumed innocent until proven guilty and the accused person has no duty in law to prove his innocence. The Court was referred to Section 36(5) of the 1999 Constitution FRN (as amended) and Section 139(1) of the Evidence Act 2011.

It was submitted that in homicide cases forensic or medical evidence is not always necessary. The Court was referred to A.G. Federation v. Ogunro (2001) 10 NWLR (pt.720) 175 and Egbeyom v. State (2000) 4 NWLR (pt.654) 559.

It was submitted that the Appellant proved its case through PW1 who testified as an investigating police officer whose testimony was neither shaken under cross examination nor controverted during the trial.

It was submitted that a police officer who investigates a criminal matter and testifies before a Court on what he discovered during his investigation, such evidence cannot be referred to as hearsay evidence. The Court was referred to Edet v. State (2019) LPELR – 46844 and Olaoye v. State (2018)8 NWLR (pt.1621) 281 at 301.

It was again submitted that the evidence of PW1 who testified upon the conclusion of investigation, was reliable, credible and relevant.

The Court below, it was argued, was in error when it found that PW1 got his information largely from Simon Obi who was equally informed by one unknown neighbour. The Court was referred to page 104 of the record of appeal.

Learned counsel for the Respondent submitted that the burden of proof was on the Appellant to prove by either direct evidence or indirect evidence through circumstantial evidence linking the Respondent to the offence allegedly committed and that the burden never shifts as the accused person is presumed innocent until his guilt is established. The Court was referred to Babatunde v. State (2014)2 NWLR (pt.1391) 298 at 343.

The standard of proof, it was submitted is proof beyond reasonable doubt.
It was submitted that the Respondent having been charged under Section 221 of the Penal Code, the Appellant had to prove all the ingredients of the offence of culpable homicide punishable with death.

It was submitted that the prosecution failed to discharge the burden under Section 135(1) and (2) of the Evidence Act for the following reasons:
1) That the evidence of the only witness called by the Appellant related to an offence of 8th October, 2017 while the alleged offence against the Respondent occurred on 8th October, 2016. The Court was referred to F.R.N. v. Barminas (2017)15 NWLR (pt.1588) 177 at 202 – 203.
2) It was submitted that the PW1 under cross examination said his evidence in chief was based on information given to him by one Robert Onwusaka who was not called to testify.

It was submitted that evidence of an investigating police officer will amount to hearsay evidence where it is intended to establish the truth of the statement in order to prove the guilt of the accused person. Evidence of PW1 it was submitted, was nothing but hearsay evidence and

therefore lacked probative value. The Court was referred to Section 37 of the Evidence Act, Okereke v. Umahi (2016)11 NWLR (pt.1524) 438 at 489 and Odogwu v. State (2013)14 NWLR (pt.1373) 74 at 106. It was submitted that the statement of Robert Onwuka Exhibit A1 is hearsay evidence having not been tendered by the man himself who could be cross examined on the veracity of its contents. The Court was referred to Okafor v. Okpala (1995)1 NWLR (pt.374) 749 at 75.

It was submitted that failure to call a vital witness is fatal to the case of the prosecution. The Court was referred to Ogudo v. State (2011)18 WNRL (pt.1278) 1 at 31; State v. Azeez (2008)14 NWLR (pt.1108) 439 at 475; Omogodo v. The State (1981)5 SC5; Onah v. State (1985)3 NWLR (pt.12) 236 and Zubairu v. State (2015)16 NWLR (pt.1486) 504 at 525.

Learned counsel for the Respondent pointed out that the only witness called by the Appellant said the corpses of the deceased were taken to the National Hospital mortuary for autopsy but failed to tender the medical report. Failure to tender the medical report to show cause of death, it was submitted, amounted to withholding evidence. The Court was referred to Section 167(d) of the Evidence Act 2011 and Zubairu v. State (supra).

The law, ancient and modern is that in a criminal trial, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt. The burden never shifts. Even when the accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden so that a wrong person will not be convicted for an offence he never committed. There must be evidence which identifies the accused with the offence. This is because the constitution presumes the accused person to be innocent until the contrary is proved. See Section 36(5) of the 1999 Constitution FRN, Section 135(1) of the Evidence Act 2011, Dongtoe v. Civil Service Commission, Plateau State (2001) LPELR – 959SC, People of Lagos State v. Umaru (2014)3 SCNJ 114 at 137, Igabele v. State (2006) NWLR (pt.975)100 and Abbey v. State (2017) LPELR – 42358SC p.34-35.
The standard of proof in a criminal trial is proof beyond reasonable doubt.

By virtue of Section 221 of the Penal Code, the ingredients of the offence of

culpable homicide punishable with death are: a) that the death of a human being took place; b) that such death was caused by the accused person; c) that the act of the accused that caused the death was done with the intention of causing death; or that the accused person knew that death would be the probable consequence of his act. All the ingredients must be proved before a conviction could be secured. Failure to prove any of the ingredients would result in an acquittal. The onus of proof is on the prosecution throughout. See Adava v. State (2006) 9 NWLR (pt.984) 152 at 167.

the 7 days prescribed by the Judicial etc Officers and Appeals by Prosecutors Act 1963 lapsed and has been lost forever under the Constitution. Sub-sections (3) and 4(1) of Section 4 of the Act No.10 of 1963 read:
“3. The period within which notice of appeal or of an application for leave to appeal to the Supreme Court must be given by a person or authority other than the accused person in a case which involves or could involve sentence of death or a verdict of guilty of manslaughter or culpable homicide shall be SEVEN days from the date of the decision in question and the Supreme Court shall not have power to extend that period.”
In State v. Omoyele (2016) LPELR – 40842 SC Sanusi, JSC stated:
“Now in the instant case being one on which the Respondent was acquitted of a murder charge; the state which is the prosecutor has right to appeal against such acquittal within 7 days only by virtue of the provision of Section 4 of Judicial etc office and Appeals by Prosecutors Act No.10 of 1963. Sub-section 3 of Section 4 of the Act provides that a prosecutor such as the appellant in this appeal has only 7 days within which to give

notice of appeal or to seek leave to appeal in any case which involves or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide. The act even went further to provide that the seven days period shall not be extended”
In the earlier case of Adili v. The State, Obaseki, JSC touched on the rationale of this piece of legislation in the following words:
“The earlier cases of capital offences are concluded the better so that all authorities can play their roles with quick dispatch.”
In the State v. Omoyele (supra) Sanusi, JSC elaborated further thus:
“We should not lose sight of the fact that the Judicial, etc, Officer and Appeal by Prosecutors Act No.10, is a special legislation promulgated to limit and narrow the scope of application such as cases involving sentence of death or verdict of guilty of manslaughter such as the situation in this instant appeal. Therefore, the period of appeal which has been constricted to only seven days within which a prosecutor can appeal against such sentence, is aimed at encouraging a prosecutor to be up and doing and appeal immediately if he is

dissatisfied with the judgment so that the appeal is heard with minimum of delay and also to forestall the possibility of the offender or convict lingering in prison for a long period without his fate being determined finally and expeditiously too. That is more so, when the Act even prohibits Court to grant or entertain application for extension of time in such a situation. Once, a prosecutor fails to appeal within the seven days stipulated by the Act, that is the end of it.”
I have looked at the Judicial etc, Office and Appeals by Prosecutors Act No. 10 of 1963. At the time it was enacted in 1963, this Court had not been created. There were however High Courts and a Federal Supreme Court. Now, if the Law was intended to spur a prosecutor to be alive to his responsibility, as the Supreme Court in both Adili v. State and State v. Omoyele have shown, this Court cannot afford to encourage laxity on the part of the prosecutor. This Court must tow the path of the Supreme Court. As Nnaemeka-Agu, JSC in Adili v. State said: “It is for the legislator to amend the law. It is for us to apply the law as it is.”

The arguments of learned counsel for the Appellant that by the provisions of Section 241 of the Constitution and Section 24 of the Court of Appeal Act, the Judicial etc, Office and Appeals by Prosecutors Act is no longer applicable is superficially attractive. But the argument falls flat in the light of the two decisions of Adili v State (supra) and State v. Omoyele (supra). Adili v. State was decided in 1989 when the 1979 Constitution which was similar to the present constitution was largely in operation. As Sanusi, JSC more lucidly and succinctly put it:
“Another point worth of been mentioned, is that since this Court applied the provisions of the 1963 Act in the case of State v. Adili (supra) in 1989, that clearly shows that the Act is still extant and applicable till today as an existing law that has not been repealed or suspended.”
Learned counsel for the Appellant further contended that the Appellant was granted extension of time within which to appeal. In both Adili v. State and State v. Omoyele, the Supreme Court pointed out that under Section 4(3) of the Act the seven days period within which the prosecutor can appeal shall not be extended. In the circumstances,

this Court had no jurisdiction to extend time within which the Appellant shall appeal over two years after the acquittal and discharge of the Respondent. It is trite law that if a Court has no jurisdiction to hear and determine a matter, the proceedings are and remain a nullity no matter how well conducted and brilliantly decided. See Dapianlong v. Dariye (2007) 8 NWLR (pt.1036) 332. It is therefore not the correct position of the law as contended by learned counsel for the Appellant that the order granting the Appellant extension of time within which to appeal remains valid until set aside. The order granting extension of time to the Appellant within which to appeal is a nullity and remains a nullity. It is immaterial that learned counsel for the Respondent was in Court when the application for extension of time was heard and purportedly granted without objection.
The Respondent was acquitted and discharged by the Court below on 26th March, 2018. He appealed on 12th May, 2020 over two years from the date of judgment. The Appellant’s “right of appeal not having been exercised within 7 days prescribed by the Act 1963 lapsed and has been lost forever under the constitution.” Obaseki, JSC in Adili v. The State (supra).

My Lords, I am of the view that there is no better example of the necessity for this 1963 legislation which has curbed the right of the prosecutor to appeal in cases of murder, manslaughter and homicide to SEVEN days than this case. It is lethargy at its deepest for a prosecutor to sleep for over two years before waking up to the necessity of an appeal in a homicide case like the present. An accused person should be able to heave a sign of relief not long after his acquittal and discharge. The prosecutor too should be able to forget about a particular case within a short time after it has been determined in the trial Court or the Court of Appeal and channel his resources for other official responsibilities. It will also prevent the alleged offender from languishing in prison custody without knowing his fate. See again Adili v. State and State v. Omoyele (supra).
The preliminary objection is upheld. This Court has no jurisdiction to extend time within which the Appellant can appeal and it lacks the jurisdiction to entertain this appeal.
The appeal is hereby struck out for want of jurisdiction.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in draft, the succinct leading judgment delivered by my learned brother: James Shehu Abiriyi, JCA. I endorse, in toto, the reasoning and conclusion in it.

It is germane to place on record, pronto, that the respondent’s consent to the appellant’s application for extension of time to appeal was of no moment. It is trite elementary law that a party cannot by consent, waiver, acquiescence, connivance, or any guise, bestow jurisdiction on a Court where none exists or ousts its jurisdiction where it exists. This Court is bound, will-nilly, to kowtow to the Supreme Court decisions in Adili v. State (supra) and State v. Omoyele (supra). The appellant’s appeal is stale by effluxion of time. The Court is drained of the vires to entertain it. l, too, strike out the appeal on the footing of want of jurisdiction.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, James Shehu Abiriyi, JCA.

This appeal brings up principles, which I admit, have been observed in the breach, with regard to extension of time given to the prosecution with regard to the sentence of death or a verdict of manslaughter or culpable homicide.

The facts giving to this appeal are that the Respondent was tried, acquitted and discharged by the lower Court for the offence of culpable homicide contrary to Section 221 of the Panel Code. On 29th April, 2020, this Court granted the Appellant extension of time within which appeal against the decision of the Court below. On 12th May, 2020 the Appellant filed a Notice of Appeal containing six grounds of appeal. The Respondent, in response to the appeal, filed a Notice of Preliminary Objection on 7th October, 2020 and incorporated arguments thereon in the Respondent’s Brief of Arguments filed on 7th October, 2020 but deemed duly filed and served on 3rd February, 2021.

Arguing the Preliminary Objection, learned Counsel to the Respondent submitted that in a criminal case, a prosecutor has seven days within which to appeal or seek leave to appeal in a matter involving the sentence of death or verdict of guilty of manslaughter and that the time cannot be extended by reason of Section 4(3) of Judicial, etc Officers and Appeal by Prosecutors Act No. 10 of 1963.

The judgment in this case was appealed against after the seven days stipulated in Section 4(3) of the Judicial, etc Officers and Appeal by Prosecutor Act No.10 of 1963, which Law, he submitted, is an existing Law. He cited the Supreme Court decision in State v. Omoyele (2017) 1 NWLR (Pt.547) 341 at 370 and 371-372 and an unreported decision of this Court of CA/A/64/2018 between Commissioner of Police v. Dominic Ogbaji delivered on 21st May, 2020.

In a reply to the Preliminary Objection, learned Counsel to the Appellant pointed out that the Appellant had been granted extension of time within which to appeal and that that order remains valid until set aside by a higher Court, making the present appeal different from tie appeal in State v. Omoyele (2017) 1 NWLR (Pt. 1547) 341 at 370.

It was also contended that by Section 241 of the 1999 Constitution FRN, the right of appeal is constitutional and cannot be circumscribed by the provisions of the Act or any other Law. No statute, it was submitted, can deny a party a right which is guaranteed by the Constitution. The Court was also referred to Section 24 of the Court of Appeal Act. It was submitted

that even if the Appellant was out of time to appeal, the Court of Appeal Act gives the Court discretion to extend time within which the Appellant can appeal under Section 24(4) of the Act.

In the Respondent’s Reply on point of law, learned Counsel submitted that jurisdiction is the life wire of any adjudication. The fact that the Respondent was represented in Court on 29th April, 2020 when the motion for extension of time for the Appellant to appeal was heard and granted without objection, did not confer jurisdiction on the Court where the same is lacking.

It was submitted further that arguments of the learned Counsel to the Appellant on Section 241 of the Constitution are misconceived in law, as a similar argument was canvassed without success in the case of State v. Omoyele (supra) and the case of Kawuwa & Anor v. P.D.P relied upon by learned counsel to the Appellant. It was also submitted that this Court in the unreported decision of COP v. Dominic Agbaji (supra) considered Section 241 of the Constitution and Section 24 of the Court of Appeal Act and other statutes and applied the decision in State v. Omoyele (supra) in dismissing tie Appellant’s appeal in that case.

I must agree with my learned brother’s brilliant resolution of the arguments raised.
In the case of Adili v. The State (1989) LPELR 180, Obaseki, JSC held as follows:
“The notice of appeal filed on behalf of the State by the Attorney General of Imo State is far out of time and this Court has no power or jurisdiction to entertain the appeal. The right of appeal not having been exercised within the 7 days prescribed by the Judicial etc Officers and Appeals by Prosecutors Act 1963 lapsed and has been lost forever under the Constitution. Sub-sections (3) and 4(1) of Section 4 of the Act No.10 of 1963 read:
“3. The period within which notice of appeal or of an application for leave to appeal to the Supreme Court must, be given by a person or authority other than the accused person in a case which involves or could involve sentence of death or a verdict of guilty of manslaughter or culpable homicide shall be SEVEN days from the date of the decision in question and the Supreme Court shall not have power to extend that period.”
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Similarly, in State v. Omoyele (2016) LPELR-40842 SC Sanusi, JSC held:
“Now in the instant case being one on which the Respondent was acquitted of a murder charge; the state which is the prosecutor has right to appeal against such acquittal within 7 days only by virtue of the provision of Section 4 of Judicial etc Office and Appeals by Prosecutors Act N0. 10 of 1963. Sub-section 3 of Section 4 of the Act provides that a prosecutor such as the appellant in this appeal has only 7 days within which to give notice of appeal or to seek leave to appeal in any case which involves or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide. The act even went further to provide that the seven days period shall not be extended”
In the earlier case of Adili v. The State, Obaseki, JSC touched on the rationale of this piece of legislation in the following words:
“The earlier cases of capital offences are concluded the better so that all authorities can play their role with quick dispatch.”
This Court is bound by both judgments, I hold. As held by Nnaemeka-Agu, JSC in Adili v. State (supra) “It is for the legislator to amend the law. It is for us to apply the law as it is.”

Unless and until the said act is repealed, the Courts are bound to give effect to it, I hold. The reasoning for this Act, as succinctly put by my Lord Sanusi, JSC in State v. Omoyele (supra) is for us:
“… not lose sight of the fact that the Judicial, etc, Officer and Appeal by Prosecutors Act No. 10, is a special legislation promulgated to limit and narrow the scope of application such as cases involving sentence of death or verdict of guilty of manslaughter such as the situation in this instant appeal. Therefore, the period of appeal which has been constricted to only seven days within which a prosecutor can appeal against such sentence, is aimed at encouraging a prosecutor to be up and doing and appeal immediately if he is dissatisfied with the judgment so that the appeal is heard with minimum of delay and also to forestall the possibility of the offender or convict lingering in prison for a long period without his fate being determined…”
It is thus clear from the foregoing that once a prosecutor fails to appeal within the seven days stipulated in this Act, no extension of time can be granted. This accords, I hold, with the principles

of natural justice and good conscience. For the fuller reasons given by my learned brother, James Abiriyi, JCA, I also uphold the preliminary objection and strike out this appeal for want of jurisdiction.

Appearances:

Dr. Agada Elachi, Esq., with him, D. C. Duru, Esq. For Appellant(s)

O. Fagbemi, Esq. For Respondent(s)