Edwin Johnson & Anor V. The State (1981)

LawGlobal-Hub Lead Judgment Report

N. ANIAGOLU, J.S.C. 

On 4th December 1980, this court allowed this appeal, sent the case back to the Federal Court of Appeal for re-hearing and reserved the reasons for the order to a later date. I now give reasons for allowing the appeal.

The two appellants were convicted and sentenced to death by the Robbery and Firearms Tribunal, Bendel State of Nigeria, composed of three members under the chairmanship of Akpata, J., on 27th April 1977, pursuant to S. 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970, on a charge the particulars of which read:
“That you Edwin Johnson alias Sofa Boy (m) and Andrew Akpojofor alias Ohili on or about the 10th day of April, 1976 at Warri in the Bendel State of Nigeria robbed one Samuel Neyin (m) of one Television Set, one Standing Fan, one Stereo 2 in one, three pairs of shoes and one table clock, one wrist watch, N11 in cash and at the time of the robbery, you were armed with a gun and offensive weapon and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970.”

Both prisoners appealed, within time, to the Federal Court of Appeal which court (with Ete, JCA., presiding), on 29th January 1980, without hearing arguments on the appeal; with the appellants absent and no representation of counsel on their behalf, and with the only appearance being that of Mr. Edokpayi, Principal State Counsel, for the respondent, peremptorily struck out the appeal on the stated reason that the Robbery and Firearms Decree No. 47 of 1970 had been repealed. The succinct record of the court reads:
“Appellants absent
No representation for the appellants.
Mr. G.E. Edokpayi P.S.C. for the Respondent.
Court: This case has been overtaken by events. The Robbery and Firearms Decree No. 47 of 1970 has been repealed. This appeal is struck out.”

In actual fact, the Robbery and Firearms Decree No. 47 of 1970 had not, as at 29th January 1980, been repealed. What actually happened was that the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals, etc.) Decree, 1979, No. 105 of 1979 repealed certain decrees upon the coming into force of the Constitution of the Federal Republic of Nigeria. In Schedule 3 thereof the Robbery and Firearms (Special Provisions) No. 47 of 1970 (hereinafter referred to as No. 47 of 1970) was one of the three decrees “modified”. The modification of the said No. 47 of 1970 consisted of:

(a) a substitution of Section 5 by making the offences under the decree triable in the High Court of the State concerned;
(b) the repeal of Sections 6, 7 and 8 and
(c) the deletion of the definition of “tribunal” in Section 9.
It was, therefore, clearly a wrong statement to say, as was stated by the Court of Appeal, that No. 47 of 1970 had been repealed.
Convicted prisoners under Decree No. 47 of 1970 had not always had a right of appeal as can be seen from the various Robbery and Firearms Decrees. I shall have a cursory look at those decrees.

Obviously intending to contain the violent aftermath of the Nigerian civil war at the end of hostilities in 1970 and to deal expeditiously with those threatening law and order by violence, the then Military Government passed Decree No. 47 of 1970 which prescribed 21 years imprisonment for robbery, and if the convict was armed, or violence was used, death (S.1).
By the Robbery and Firearms (Special Provisions) (Amendment) Decree 1974, No. 8 of 1974, made on 23rd February 1974, the discretion given to the Tribunal by Decree No. 47 of 1970 as to whether or not to sentence a convict found guilty to death was removed and sentence of death was made mandatory by the removal of the words “liable” and “may” from the Decree. The prisoner still had no right of appeal.
Later the same year, by the Robbery and Firearms (Special Provisions) (Amendment) (No. 2) Decree, 1974, No. 29 of 1974, made on 1st July 1974, the rigours of the two earlier Decrees, No. 47 of 1970 and No. 8 of 1974, were somewhat ameliorated by the grant to a convicted prisoner of a right of appeal to the Supreme Court. A new Section 7 was inserted immediately after Section 6 and it stated that:

“7.  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.”
This right of appeal granted to and enjoyed by the prisoner was short-lived, for, by Section 1(a) of the Robbery and Firearms (Special Provisions) (Amendment) Decree 1977, No. 39 of 1977, which came into force on 11th May 1977, the right of appeal was withdrawn and Section 7 repealed. Instead, the Decree imperatively enjoined the Registrar to forward the record of proceedings to the Military Governor within 30 days of conviction, and also imperatively enjoined the Military Governor to exercise his power to “confirm or disallow the conviction or sentence not later than thirty days after the receipt of the record of proceedings in his office.” (Underlining is mine)
The then Military Government retained this position as respects armed robbers in spite of their having earlier promulgated the Constitution (Amendment) (No.2) Decree 1976, on 1st October 1976, by Section 121 (2) (e) of which a right of appeal was granted to anyone sentenced to death by the High Court or the Federal Revenue Court, and by Section 117(2) (c) of which a right of appeal to the Supreme Court was granted to a prisoner whose sentence of death “imposed by some other court of tribunal” (underlining is mine) was affirmed by the Federal Court of Appeal.

Section 5 of the Schedule to the said Constitution (Amendment) (No.2) Decree 1976, No. 42 of 1976 amended Section 7 of the Robbery and Firearms (Special Provisions) Decree 1970 by substituting “Federal Court of Appeal” for the “Supreme Court” wherever it occurred in the section. By this amendment the Federal Court of Appeal became seized of appeals from determinations under the Robbery and Firearms (Special Provisions) Decree, 1970.

The new Constitution of the Federal Republic of Nigeria has now come into force. The Constitution of the Federal Republic of Nigeria (Enactment) Decree 1978, No. 25 of 1978, has by its Section 220(1)(e) granted a right of appeal from the High Court to the Federal Court of Appeal where a sentence of death has been imposed, and by its Section 213 (2) (d) granted a right of appeal to the Supreme Court “in any criminal proceedings in which any person has been sentenced to death by the Federal Court of Appeal or in which the Federal Court of Appeal has affirmed a sentence imposed by any other court.”
From this brief account it is clear, as I had earlier stated, that Decree No. 47 of 1970 has not been repealed but modified.
But even if Decree No. 47 of 1970 had been repealed as at 29th January, 1980 when the Federal Court of Appeal heard this appeal, the right of appeal granted to appellants by Decree No. 29 of  1974 had been properly exercised by them in 1977. Their appeals had, therefore, vested and remained vested as at 29th January 1980. Section 6 of the Interpretation Act 1964, No.1 of 1964, to which the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals, etc. ) Decree 1979 was made subject, provides in sub-section (1) that:-
“6. (1)   The repeal of an enactment shall not –

(a) revive anything not in force or existing at the time when the repeal takes effect;
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;
(c) affect any right, privilege, obligation or liability accrued or incurred under the enactment;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment;
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed.”

These provisions are in accord with general principles which recognise that a person’s vested right granted by a law which became subsequently repealed, must be determined according to the law in force at the date the right vested, and will be unaffected by the mere fact of the subsequent repeal of the law unless there is a clear intention to the contrary in the new law. Thus, in The Colonial Sugar Refining Company Limited v. Irving (1905) A.C. 369 it was decided by the Privy council that although the right of appeal from the Supreme Court of Queensland to His Majesty in Council of 30th June 1860, had been taken away by the Australian Commonwealth Judiciary Act, 1903, Section 39 sub-section 2, and the only appeal therefrom then lay to the High Court of Australia, yet, the Act, not being retrospective, the right of appeal to His Majesty in Council in a suit pending before the new Act was passed and decided by the Supreme Court afterwards, was not taken away or affected by the new Act. In delivering the judgment of the court, Lord Macnaghten stated, at p. 372, the only question for determination to be:
“was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure”
Their Lordships reiterated the general principle which they asserted to be “the well-known general principle” that statutes are not to be held to act retrospectively to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right, unless a clear intention to that effect was manifested.
This principle will equally apply to a reverse situation, namely, that where there was no right of appeal conferred by an existing statute and proceedings were conducted under that statute, a right of appeal subsequently introduced by an amending Statute cannot be used by a suitor to claim a right of appeal in the earlier proceedings (Chief Kwamina Sakyiama v. J.M. Cook (1932) 1 WACA 188).
In this respect I must draw attention specifically in, Section 6(1) of the 1964 Interpretation Act (supra), to sub-sub-sections (c) and (e) in which it is provided that the repeal of an enactment shall not:

“(c)  affect any right………accrued…….under the enactment
(e)    affect any investigation, legal proceeding…………………
and any such investigation, legal proceeding or remedy may be……………..continued or enforced,…………as if the enactment had not been repealed.”
Whether from point of view of the above statutory enactment or from general principles, the correct conclusion must be, and I so hold, that the appellants’ right of appeal which they properly exercised in 1977 remained unimpaired, through the passage of time, up to 29th January 1980, when the Court of Appeal handed down its ruling.

We did not call on appellants’ counsel, Mr. F.O. Akinrele, SAN., to address us in elaboration of his brief as we did not consider any such elaboration necessary. Mr. A. Okpewono, Principal State Counsel Bendel State, for the respondent, when called upon, did not oppose the appeal, and supported his brief in which he stated that:
“Having carefully read over the brief of the appellants and in view of Section 6 to the Interpretation Act 1964, it is my view that the Appellants have a right of appeal despite the promulgation of the “Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals etc.) Decree No. 105 of 1979″, as it affects the Robbery and Firearms Decree, 1970. It is our intention therefore not to oppose the appeal.”
I am in agreement with both counsel whose view on the legal position I consider correct.
It was for the above reasons that this appeal was allowed; the order of the Federal Court of Appeal dated 29th January, 1980 striking out the appeal set aside, and in its place the order that the appeal be remitted to the court, for determination on the merits, made.

G. S. SOWEMIMO, J.S.C.: I have read the judgment of my brother, Aniagolu, JSC., which he has now delivered and I agree absolutely with it. There is no doubt that with the series of decrees issued just before the coming into operation of the present Constitution, courts are placed in some difficulties in interpreting some of the older decrees which have had to be either repealed or amended in order to conform with a civilian regime and a proper court system. I do hope the Ministry of Justice in any of our States will be of great assistance to the courts in drawing attention to some of the changing circumstances. I have not the slightest doubt that if all the points which were brought to our attention by the Principal State Counsel of Bendel State had been brought to the attention of the Federal Court of Appeal in Benin City, it would not have acted in the summary way it treated the appeal. It is hereby ordered that the Federal Court of Appeal shall hear the appeal brought before it and decide same on its merits.

M. BELLO, J.S.C.: I have read the reasons for judgment delivered by my learned brother, Aniagolu, JSC., I concur.

A. O. OBASEKI, J.S.C.: I have had the advantage of reading in draft the reasons for judgment delivered by my learned brother, Aniagolu, JSC. I agree with them. It was for those reasons that on December 4, 1980, I allowed the appeal to this court lodged by the appellants against the order of the Federal Court of Appeal striking out their appeal against conviction for armed robbery contrary to Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 and remitted the matter to the Federal Court of Appeal with a direction that the appeal be heard.

K. ESO, J.S.C.: My Lords, I agree with the reasons for judgment given by my learned brother, my Lord, Aniagolu, JSC., in this case and it is for the reasons given in the judgment that I agreed that the appeal be allowed when on the 4th of December, 1980 this court allowed the appeal.

SC.20/1980