Aminu Tanko V. The State (2009)
LAWGLOBAL HUB Lead Judgment Report
O. ADEREMI, J.S.C.
This appeal is against the judgment of the Court of Appeal (Abuja Division) delivered on the 28th of January 2008 on Appeal No CA/A/179c/06: Aminu Tanko Vs. The State in which that court (the Court of Appeal) hereinafter referred to as the court below affirmed the judgment of the High Court of Minna, Niger State which convicted and sentenced the appellant to death for the offence of conspiracy and robbery under the Robbery and Firearms (Special Provisions) Act Cap 398 laws of the Federal Republic of Nigeria 1990. The trial court (High Court of Justice, Minna, Niger State, in convicting and sentencing three of the accused persons i.e. 1st accused person – Aminu Tanko, 3rd accused person – Joseph Amoshima and the 4th accused person – Ikechukwu Okoh arraigned before it, the trial judge said inter alia:
“It is therefore settled that the fact of retraction of a confession does not make it evidence upon which the court cannot act,”
I have also found that the prosecution has proved its case of armed robbery on the 2nd head of charge against the 4th accused person. In (sic) the whole, the prosecution having proved its case against each of the three accused persons as charged on each head of charge, I find the 1st accused person, Aminu Tanko, 3rd accused, Joseph Amoshina and 4th accused Ikechukwu Okoh, each guilty of the offences of conspiracy to commit robbery and the commission of armed robbery as charged and punishable under Sections 5(b) and (2)(a) respectively of the Robbery and Firearms (Special Provisions) Act No 5 of 1984 as amended by Decree No 62 of 1999 and each of the accused is accordingly convicted for the two offences… Each of the convicts, Aminu Tanko, Joseph Amoshima, lkechukwu Okoh is sentenced to death by hanging as prescribed by Section 1(2) (a) of the Decree”.
Being dissatisfied with that judgment, the present appellant appealed to the court below. In dismissing the appeal and affirming the conviction and sentence of the appellant, the court below said inter alia:
“The grouse of the Appellant under this issue is that, the Attorney – General of a State or any officer of his department cannot institute and undertake any criminal proceedings against any person including the Appellant. What is more, the former position where the consent of the Federal Attorney- General could be given to the Attorney – General of a State to prosecute cases under the provisions of the Robbery and Firearms (Special Provisions) Act has been removed by the Constitution. With due respect, the learned counsel for the Appellant has totally misconceived the relevant provisions of the laws relating to this issue. The correct position is as soundly submitted by the learned counsel for the respondent. In the case of ISHMEAL EMELOGU VS THE STATE supra, the Supreme Court held that the offence of armed robbery not being in the Exclusive and Concurrent Legislative Lists, it falls within the Residual Legislative List. The effect of this is that the State House of Assembly can legislate on it by repealing the Federal Act. Albeit, for purposes of uniformity, States have continued to use the Act as touching on armed robbery and other related offences. By Decree No 67 of 1999, Armed Robbery Tribunals were scrapped and the jurisdiction to try armed robbery offences was specifically vested in the State High Court. It is pertinent to state that even before Section 9 of Decree No 5 of 1984 was repealed, the Governor of a State was empowered to constitute the State Armed Robbery Tribunal headed by a State High Court Judge as Chairman. Also armed robbery and other related offences were State offences and prosecuted by the officers of the State Attorney – General… This appeal is devoid of merit; it must be dismissed and is accordingly hereby dismissed.
Consequently, the judgment of the trial court delivered on 19/7/2005 is affirmed. The conviction and sentence of the Appellant are accordingly hereby upheld.”
Also, dissatisfied with the judgment of the court below, the appellant once again appealed to this court. He distilled seven issues from the eight grounds of appeal contained in his Notice of Appeal dated 20th February 2008. The said issues as set out in his brief of argument dated and filed on the 2ih of March 2008 are as follows:
“(1) Whether the Hon. Court of Appeal was right to have held that the offence of robbery created under the Robbery and Firearms (Special Provisions) Act Cap 398 not being in the Exclusive and Concurrent Legislative list is a state offence for and can be prosecuted by the Attorney – General of Niger State.
(2) Whether the Hon. Court of Appeal was right to have held that death sentence is mandatory on conviction under the Robbery and Firearms (Special Provisions) Act
(3) Whether the Hon. Court of Appeal was right to have upheld the trial court’s stipulation of manner of execution of death sentence passed on the Appellant in violation of section 1(3) of the Robbery and Firearms (Special Provision) Act Cap 398
(4) Whether the Hon. Court of Appeal was right to have upheld the reliance of the trial court on the extrajudicial statement of the Appellant in his conviction despite all the irregularities.
(5) Whether the Hon. Court of Appeal was right to have held that PW1 and PW2 are not tainted witnesses and that the evidence of PW 2 dispenses with the need for identification parade
(6) Whether considering the ingredients of offence of robbery required to be proved under the Robbery and Firearms (Special Provision) Act, the Hon. Court of Appeal was right to hold that the prosecution needed not to have tendered the alleged weapons used in the robbery.
(7) Whether the Hon. Court of Appeal was right to have held that there were no material discrepancies in the evidence of the prosecution witness more particularly as it relates to the identity of the Appellant, capable of rendering them unreliable”
The issues identified by the appellant for the determinations of this appeal and which I have set out supra have been adopted by the respondent.
When this appeal came before us on the 13th of November 2008 for argument, Mr. Ume, learned counsel for the appellant referred to, adopted and relied on his client’s brief of argument filed on the 27th of March 2008, reliance was also placed on the list of additional authorities dated 12th November 2008. In highlighting the arguments on issue No 1, the learned counsel submitted that offence of robbery as created under the Robbery and Firearms (Special Provisions) Act Cap 398 is a Federal Offence and therefore any charge of robbery brought under it can only be instituted and prosecuted by the Federal Attorney-General of the Federation by virtue of Section 174 of the 1999 Constitution. He referred to Section 14(2) (b) of the Constitution of the Federal Republic of Nigeria 1999 and further submitted that both the Federal and State Government can legislate in respect of robbery. For this argument, learned counsel further found support in the provisions of Section 318 of the Constitution which defines “Government” to include the Government of the Federation or of any State or of a Local Government Council of any person who exercises power and duty. The offence of “ROBBERY” he therefore further submitted is concurrent in that both the Federal and State Government can legislate on it as a means of ensuring safety of life and property, adding that the offence of robbery provided in Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990 and the offence of robbery created by the Penal Code Cap 94 laws of Niger State are both good laws; but that once a decision is taken to bring a charge under any of the two laws, the proper authority has to institute or prosecute. If a charge of robbery is brought under the Penal Code of Niger State, it is the Attorney – General of that State that can prosecute but if a charge is brought under the Robbery and Firearms (Special Provisions) Act only the Federal Attorney – General can prosecute, he further submitted adding, however that no law in that regard had been passed by the House of Assembly of Niger State adopting Robbery and Firearms (Special Provisions) Act as the State law and so, he added that it would be incompatible with the powers of the State to make laws as provided in the Constitution. It was his further submission that assuming but not conceding that Robbery is not specifically mentioned under second schedule parts 1 and 11 of the Constitution, that will not make robbery an exclusive matter which the state alone can legislate on, since he added, that by virtue of Section 4 sub-section (4) (b) read together with Section 11(2), Section 14(2)(b) and Section 15 (3)(a) of the Constitution, the National Assembly is already empowered to legislate on the issue thereby covering the field placing reliance on the decision in A-G, ONDO STATE VS. A-G FEDERATION (2002) 9 NWLR (Pt.772) 222 and OKOBI VS. THE STATE (1994) ALL NCR 3S6 while urging us, on the two authorities supra, to rescind the decision of this court in EMELOGU VS. THE STATE (1988) 1 NSCC 869 where it was held by this court 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. He finally submitted that it is no longer the law, as enunciated in EMELOGU’s case that once a matter is not mentioned in the Exclusive and Concurrent Legislative List it becomes a matter within the exclusive legislative competence of the States, he urged that the appeal be allowed.
On its part, the respondent, in arguing issue No 1 submitted that a careful appraisal of Section 4 of the 1999 Constitution, indeed, the items on the legislative lists in the Second Schedule parts 1 and 11 shows that Armed Robbery is neither in the Exclusive or Concurrent List; it is within the Residual matters which are within the competence of the State Assemblies to legislate on. It was its contention that the Robbery and Firearms (Special Provisions) Act No 5 of 1984 as amended by Decree No 62 of 1999 is a state law, that decree, it was further argued that, abrogates all armed robbery tribunals and conferred on States High Courts with the jurisdiction to try armed robbery offences. The Niger State Attorney-General, it was therefore submitted, can institute a criminal proceeding on the Act. This court, on that issue, cannot therefore vary, overrule or set aside its decision in EMELOGU VS STATE supra, since the conditionalities for so doing are absent. It was consequently urged that this appeal be dismissed.
Since issue No 1 is the most crucial issue of the seven issues raised, I feel called upon to attend to it immediately. It cannot be denied that the CONSTITUTION (the GRUNDNORM) of this country, indeed, the constitution of any country is supreme.
It is by it (the Constitution) that the validity of any laws, rules or enactment for the governance of any part of the country will always be tested, It follows therefore, that all powers; be they legislative, executive and judicial, must ultimately be traced or predicated on the Constitution for the determination of their validity. All these three powers that I have mentioned must and indeed, cannot be exercised inconsistently with any provisions of the Constitution. Where any of them is so exercised, it is invalid to the extent of such inconsistency. Furthermore, where the Constitution has enacted exhaustively on any situation, subject or conduct, anybody or authority that claims to legislate, in addition to what the Constitution had enacted must demonstrate, in clear and unambiguous terms, that it has deprived the legislative authority from the Constitution to so do. I go further to say that where the Constitution has set out certain conditionalities for doing a thing, no legislation of the National Assembly (in the absence of clear amendment of the particular provision of the Constitution so stipulating the afore-mentioned conditionalities) or of a State House of Assembly can alter those conditionalities in any way, directly or indirectly, unless the Constitution itself, as an attribute of its supremacy, so expressly authorized. Such is the eminent position of the power and authority which the Constitution enjoys. The Constitution is very much supreme to all other laws of the land and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria. See Section 1(1) of the (1999) Constitution. The basis of any government, under the Constitution, is primarily, to provide security and ensure the welfare of the people. Any social malaise, or act or behaviour of any person or body capable of threatening the well being of the citizenry must be legislated against and in so doing, all the three arms of the government must ensure strict compliance with the provisions of the Constitution. Armed robbery is a very serious vice which, when carried out by that gangster, often terminates the lives of the victim.
In setting out to battle it or to punish the perpetrators, the government (the three arms) must ensure due compliance with the provisions of the constitution of the land. The appellant has, rightly in my view, submitted that by virtue of Section 14(2) (b) of the Constitution of the Federal Republic of Nigeria 1999, the Federal and the State Government can legislate in respect of robbery. This submission is further reinforced by the provisions of Section 318 of the Constitution. See 14(2) (b) of the said Constitution provides:
”The security and welfare of the people shall be the primary purpose of government.”
And “Government” is defined in Section 318 of the Constitution which provides:
“Government includes the Government of the Federation or of any state, or of a Local Government Councilor any person who exercises power and duty.”
It follows from the above provisions that both the Federal and the State Government can legislate on robbery. It was however contended very strongly by the appellant that once a charge is brought under any of the Federal Act or State law the proper authority must institute or prosecute the charge. The charge against the appellant was brought under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Decree 1984, later amended by Decree No 62 of 1999 which came into being on 28th May 1999. The appellant’s plea was taken on 18th November, 1999. The Rules of procedure and power to institute proceedings under this amended decree are set out in section 9 of the Robbery and Firearms (Special Provisions) Act Cap 398 which are as follows:
“9(1) The rules as to the procedure to be adopted in prosecutions for offence under this Act before a tribunal and the forms to be used in such proceedings shall be as set out in the schedule to this act
(2) Prosecution for offences under this Act shall be initiated by the Attorney-General of the State or, where there is no Attorney-General, The Solicitor- General of the State in respect of which the tribunal was constituted or by such officer in the Ministry of Justice of that State as the Attorney – General or Solicitor-General, as the case may be, may authorize so to do.” Provided that the question whether any authority or what authority has been given in pursuance of this subsection shall not be enquired into by any person other than the Attorney – General, or the Solicitor – General, as the case may be.
(3) Prosecution in respect of any person caught committing an offence under Section 1(2) of this Act shall be instituted within seven days after the receipt by the Attorney – General of the State concerned or where there is no Attorney – General, by the Solicitor – General of the State, as the case may be, of the file containing completed police investigation in respect of the offence.”
By the provisions of Section 2 (1) and (2) of the Tribunals (Certain Consequential Amendment) Etc Decree No 62 of 1999, the Federal High Court or the High Court of a State is conferred with the jurisdiction to try the offences of armed robbery. This much is conceded by both parties in this appeal. The grouse of the appellant in this appeal, as I have pointed out, is that the officials of the Ministry of Justice of a State cannot prosecute a case of armed robbery in a State High Court. Let me quickly say that I have had a close study of the contents of second schedule parts 1 and 11, and I agree with the submission of the respondent that the offence of armed robbery is neither in the Exclusive list or the Concurrent list. It therefore can be at no other place other than the realm of residuary matters which is within the competence of a State Assembly to legislate on. Niger State has in Sections 296 to 307 of its Penal Code Cap 94 legislated on ROBBERY. Before I come to the logical conclusion which ought to be reached from the combination of all the provisions of the Constitution and Act which I have reproduced supra. I wish to make reference to Section 211(1) of the Constitution of the Federal Republic of Nigeria, 1999 dealing with public prosecutions, it reads:
211(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”
From the provisions quoted supra, the only conclusion which must be reached and which I now reach is that not only does a State High Court have the jurisdiction to try cases relating to armed robbery, the officials of the Ministry of Justice of a State are eminently qualified to prosecute the offence of armed robbery in any High Court of a State. Let me also add that it will even be incongruous to the concept of federalism, which we practice, to contend otherwise. Before I end the discourse on issue No 1, I feel compelled to say something about the invitation extended to us by the appellant to vary or overrule or set aside the decision of this court in EMELOGU VS. THE STATE (1988) 1 NSCC 869 in (1988) 2 NWLR (Pt.78) 524 on the ground, according to the appellant, that the decision was reached per incuriam. What are the facts in EMELOGU’s case The appellant was charged with, tried and convicted of the offence of armed robbery in the High Court of Justice of Imo State contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act No 47 of 1970 and was sentenced to death. An appeal was lodged to the Court of Appeal where the appellant contended that the offences created under the Robbery and Firearms (Special Provisions) Act No 47 of 1970 were Federal Offences, and therefore, the Attorney – General of Imo State lacked the competence to institute and prosecute such offences without the express authority of the Federal Attorney-General. It must be remembered that stability in the corpus of our laws particularly, judge – made laws – judicial decisions- inures to the benefit of the legal profession and of course, the society at large. It is for this reason that it is often said generally with all emphasis, that the decisions of the Supreme Court, the apex court of the land, is final forever and not appealable not withstanding any error in the proceedings. See ARCON VS. FASSASSI (No 4) (1984) 3 NWLR (PT.59) 422. This is the general statement made by the court itself. However, having regard to the commonly agreed statement that infallibility is never the virtue of any human being – errors can be made at any time by any human being. Where such errors come within the bracket of “SLIP RULE”- minor or clerical mistakes, this court like other courts below it, must be willing to effect correction upon being invited to do so by an application. Again, when over a period of time a judgment or judgments of this court already delivered are patently seen not to be meeting the course of desired justice, this court, again, upon an invitation to it through an appeal or appeals, similar in terms of facts, to the previous judgment or judgments, will readily revisit such decision with a view to varying same, or overruling same and setting same aside – all in the interest of justice which is the pre-occupation of all courts.
However, to guard against instability crippling into the corpus of our laws; the following conditions must be seen to be present in the previous judgment sought to be set aside, and they are:
(a) that the previous judgment is erroneous in law, or
(b) that the previous judgment was given per incuriam; or
(c) that the previous judgment is contrary to public policy or is occasioning miscarriage of justice or perpetuating injustice.
See A-G. FEDERATION VS GUARDIAN NEWSPAPER LTD (1999) 9 NWLR (Pt. 618) 187 at 203. None of the above conditions is present in the EMELOGU’s case. There is therefore no basis to invoke the provisions of Order 6 Rule 5(4) of Supreme Court Rules 1990 to vary, overrule or set aside that decision. In the circumstances, Issue No 1 in the appellant’s brief of argument, which had been adopted by the respondent, is answered in the affirmative.
On Issue No 2, the plank of the arguments of the appellant is that the court below operated on the wrong premises that they have no discretion in the passing of sentence on the convicted appellant. He argued that the intention of the legislature in construing the provisions of Section 1(2) of the Robbery and Firearms (Special Provisions) Act was not to make death sentence mandatory under the Act, rather the sole aim of the Act was to provide for a deterrent (heavy punishment like life jailor long term jail sentences) and not curtail the discretionary power of the court imposition of sentence, he relied on the decisions in (1) EKPO VS THE STATE (1982) 1 NIGERIA CRIMINAL LAW REPORT 34 and KATTO VS CENTRAL BANK OF NIGERIA (1991) 9 NWLR (Pt.214) 126. In Ekpo case supra, the accused was charged under Section 5 of the counterfeit Currency (Special Provisions) Act, 1974 which stipulates that if the accused is found guilty of an offence under the Act and upon conviction thereof shall be liable to imprisonment for 21 years. The appellant in that case, upon been found guilty under the Act was sentenced to 21 years in the face of the unchallenged evidence that the appellant was of a tender age. This court in the afore-mentioned case held that though it was not obligatory for a trial judge to state his reasons for awarding severe punishment, but that where the sentence was not mandatory, it was desirable that some indication be given as to why a first offender of a tender age be given a maximum sentence. The punishment for robbery as clearly stated in Section 1(2) of the Robbery and Firearms (Special Provisions) Act under which the appellant was charged in as follows:
“the offender shall be liable upon conviction under this Act to be sentenced to death”
There is a clear difference between the wordings stipulating punishment in the case of Ekpo and the instant case and in particular between the facts and circumstances of the two cases. Where the sentence prescribed upon conviction in a criminal charge is a term of years of imprisonment, then some extenuating factors such as the age of the convict, whether he is a first offender etc can be taken into consideration by the trial judge in passing the sentence on the convict. Indeed, the trial judge, in my humble view, has the discretion to employ these factors to reduce the years of sentence. But, in a charge, like the one at hand, where the sentence prescribed is “DEATH” only it is not within the competence of a trial judge to exercise any judicial discretion to reduce the “DEATH SENTENCE” TO ‘TERM OF YEARS’.” Let me say it loud that a judge must always possess judicial discretion which he is to exercise only when the interest of justice so demands. A judicial discretion ought to be founded upon the facts and circumstances presented before the court, from which it must draw a conclusion which must be governed by the law. I go further to say that a judicial discretion must be exercised honestly and in the spirit of the law or statue otherwise the exercise of such judicial discretion cannot be said to fall within the ambits of the law or statute. In making any pronouncement in the course of or after adjudication the judex or a judge is displaying no other thing than the power which every legal authority must of necessity have to decide controversies between subjects or between the government and the subject.The punishment of “DEATH” prescribed in Section 1(2) of the Robbery Act supra does not confer any judicial discretion on the trial judge or even the appellate court to reduce it and neither is there any judicial power that can be exercised by a judex to reduce that sentence. It has been decided that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and no other, must have to be adopted. See C.C.B. (NIG) PLC. VS. A-G ANAMBRA STATE (1992) 8 NWLR (PT.261) 528. This issue is resolved against the appellant.
On issue No 3, the point canvassed by the appellant is that it was wrong for the court below to have upheld the trial court’s stipulation of manner of execution of death sentence passed on the appellant thus violating the provisions of Section 1(3) of the Robbery and Firearms (Special Provisions Act Cap 398). The trial judge in passing sentence said inter alia:
“However, the court has no discretion in the sentence to be passed where the law has specifically and mandatorily prescribed one, such as in this case. Each of the convict, Aminu Tanko, Joseph Amoshima, Ikechukwu Okoh is sentenced to death by hanging as prescribed by Section 1(2) (a) of the Decree.”
It is Section 1(3) of the Act that prescribes the mode of carrying out the death sentence and not Section 1(2) as said by the trial judge. Section 1 (3) reads:
“The sentence of death imposed under this section may be executed by hanging the offender by the neck till he be dead or by causing such offender to suffer death by firing squad as the Governor may direct.”
Suffice it to say that the respondent, in its brief of argument, concedes that it is the Governor that has the power to prescribe the mode of carrying out the death sentence but was quick to add that the trial judge’s pronouncement as quoted above does not vitiate the whole proceedings nor does it occasion miscarriage of justice. By a proper construction of the provisions of Section 1(3) of the Robbery and Firearms (Special Provisions) Act Cap 398 it is in my respectful view that the duty of directing the mode of execution does not lie with the trial judge but with the Governor of Niger State under the aforementioned Section. See ALBERT IKE VS. THE STATE (1985) 1 NWLR (Pt.378) 393. But I agree with the submission of the respondent that this does not vitiate the whole proceedings nor does it occasion miscarriage of justice. I therefore direct that the judgment be forwarded to the Governor of Niger State of Nigeria through the Attorney – General of the State for him (the Governor) to direct the mode of carrying out the death sentence in accordance with the provisions of the law.
On issue Nos. 4 and 5 which query the right of the court below to uphold the reliance of the trial court in the extra – judicial statement of the appellant in his conviction despite what was called all the irregularities, my answer to it is that though the extra – judicial statement of the appellant was expunged by the court below, the viva voce evidence of PW1, PW2, PW3, and PW5 which brought into fore the entire contents of the extra – judicial statement and went beyond, was never challenged under cross – examination. The trial judge was right, in law, in believing the unchallenged evidence and there is nothing on the records tainting any of the witnesses called. Issues No 4 and 5 are therefore answered in the affirmative.
I shall finally take issues Nos 6 and 7 together which query the rationale behind the non – tendering of the weapons used and it was right for the court below to have held that there were no material discrepancies in the evidence of the prosecution witnesses. It has been decided through judicial authorities that the foundation of the offence of armed robbery is the existence of a clear act that amounts to STEALING i.e. to convert to one’s use or the use of any other person anything other than immovable property with any of the following intents:
(a) an intent permanently to deprive the owner of the thing of it
(b) An intent permanently to deprive any person, who has a special property in the thing of such property,
(c) An intent to use the thing as a pledge or security.
(d) An intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform
(e) An intent to deal with the thing in such a manner that it cannot be returned in the condition in which it was at the time of taking or conversion
(f) In the case of money, an intent to use it at the will of the person who takes or converts it.
In effect, armed robbery means simply stealing plus violence, used or threatened.
See ARUNA VS. THE STATE (1990) 6 NWLR (Pt.155) 125. Reading the evidence adduced in the records of proceedings, the above ingredients were established beyond reasonable doubt. Issues NO.6 and 7 are therefore resolved against the appellant.
The result of all I have said above is that this appeal is unmeritorious. It must be dismissed and I accordingly dismiss it. The judgments of the two courts below are hereby affirmed subject to what I have said as to the mode of carrying out the sentence of death i.e. that the Governor of Niger State of Nigeria shall prescribe the mode of carrying out the death sentence.
SC.53/2008
