Ishmael Emelogu V. The State (1988)
LawGlobal-Hub Lead Judgment Report
ESO, J.S.C.
In the High Court of Justice Imo State, (Anyanwu J,), holden at Okpudo Ngwa, the Appellant, Ishmael Emelogu, was convicted of an offence of robbery contrary to section 1(2)(a) of the Robbery and Fire-arms (Special Provisions Act) 1970, No. 47, The Court, after taking evidence rejected the defence of the Appellant.
He was found guilty and sentenced to death, He appealed to the Court of Appeal, and in a considered judgment delivered by Ogundere J.C.A., and concurred with by Olatawura and Aikawa JJ.C.A., the Court dismissed the appeal of the Appellant. The principal issue before the Court of Appeal was whether or not the Attorney-General of Imo State lacked competence to prosecute the Appellant in the Imo State High Court.
The learned Justice of the Court of Appeal specified three stages of the development of the Robbery and Firearms Decrees: These are –
(1) The period covered by the Robbery and Firearms (Special Provisions) Decree 1970 No. 47, that is, from 8th August 1970 to 30th September 1979, when it operated as Federal Legislation but with the offence being prosecuted in Tribunals set up in various States by State officials.
(2) The period between 1st October 1979 to 30th December 1983. The Robbery and Firearms Decree operated as State Law whereby a State could apply its own Criminal Procedure Law.
(3) The period commencing from 31st December 1983 up to date. The Constitution (Suspension and Modification) Decree 1984 No.1 operates when the country went back to the state of Tribunals.
The learned Justice of the Court of Appeal then argued –
“Thus, the Robbery and Firearms (Special Provisions) Decree No.5, as amended by Decree No. 21 of 1984 was enacted and it is substantially in pari materia with the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 although under section 7 and the schedule thereunder, Robbery and Firearms Tribunal Rules of procedure governed it. Rule 18 also provide for the application of the Criminal Procedure Act or the Criminal Procedure Code Cap. 43, L.L.N.N. 1963 Cap. 30 where the Rules are deficient. Thus, Special Tribunals for the trial of offences under the Decree came again into operation from the commencement of the Decree on 31st December 1984.
The Decree, thus amended, gave the Attorney-General or Solicitor-General of a State, or any officer in the Ministry of Justice so authorized by the Attorney-General or Solicitor-General, to institute prosecutions under the Robbery and Firearms (Special Provisions) Decree No.5 of 1984. Section 12(2)(3) of Decree No.5 of 1984, as amended by Decree No. 21 with regard to the trial of Robbery and Firearms offences as of 31st (sic) Decrees 5 and 21 had not existed. This enables the Imo State High Court to continue the trial of the Appellant which commenced under the Second Regime covering the period of the Second Republic 1/10/79-30/12/83, and confirmed the competence of the Attorney-General to Prosecute, and the legitimacy of the trial.”
He concluded on this important issue –
“In the case in hand which commenced during the Second Republic and continued as part-heard into the period of this Regime, it has been established that the Attorney-General of Imo State had competence to institute prosecution, and that the Criminal Procedure Law of Imo State was applicable.”
As I earlier pointed out, the Court dismissed the Appellant’s appeal and in consequence thereof he has appealed to this Court. The issues placed before this Court by the Appellant, in so far as the locus standi of the Attorney-General of Imo State is concerned is couched by his learned counsel in the following manner:
“(i) Whether offences under the Robbery and Firearms (Special Provisions) Act, No. 47 of 1970 as amended by the Constitution of the Federal Republic (Certain Consequential Repeals Etc.) Act
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