Sunday Okoh V. The State (1984)
LawGlobal-Hub Lead Judgment Report
OBASEKI, J.S.C.
This appeal is totally devoid of merit and must be dismissed. Learned counsel for the appellant withdrew the original and omnibus ground of appeal and it was struck out. He was left with the ground filed with leave of this Court which reads:
”The Honourable Court of Appeal erred in law and misdirected itself when it affirmed the following passage page 78 thus:
‘It was a case of conspiracy to steal and false pretence. There is no merit in the appeal which is accordingly dismissed. The conviction and sentence shall remain.’ ”
But learned counsel went on to submit that he was not challenging the merit of the case.
In my view, that concession totally destroyed the ground of appeal. Counsel’s further concession that he is not supporting the plea of autrefois convict which was raised in the High Court in my view disentitles learned counsel of his right to argue the plea of double jeopardy before us. Section 33(9) of the Constitution of the Federal Republic of Nigeria which he relied on gives the plea to an accused who can show that he has been tried by a court of competent jurisdiction for a criminal offence and either convicted or acquitted.
The facts of this case are that the appellant stood his trial first before the Armed Robbery Tribunal established under the Robbery and Firearms (Special Provisions) Act 1970 in September, 1979 but by Decree No. 105 of 1979 titled ‘Constitution of the Federal Republic of Nigeria (Certain Repeals etc.) Decree No. 105,’ the Armed Robbery Tribunal was abolished as from 1st October, 1979 and its jurisdiction to try armed robbery cases transferred to the High Court.
The appellant was subsequently taken to the High Court to stand his trial. The unfortunate episode in this matter is that before the trial in the High Court, a group of persons who formerly constituted the Armed Robbery Tribunal sat on the 12th day of October, 1979, delivered a purported judgment convicting the appellant and sentencing the appellant to death. It was conceded by learned counsel quite rightly, that that conviction and sentence was a nullity as the purported tribunal had no competence to deliver judgment convicting the appellant and sentencing him to death. In fact, there was no Armed Robbery Tribunal in existence. The exercise was an illegality of the worst kind. The judgment was a nullity.
Coming to the facts of the case revealed at the trial before the High Court, the appellant, a very close family friend of the 1st and 2nd p.w., in company of others went to their premises at Adeoyo Hospital Area Ring Road in the night of 18th January, 1979 and robbed the 1st p.w. of the sum of N280.00 and beads, trinkets, two damask and some lace materials valued at about N3,000.00 to N4,000.00. He was half masked and armed with a pistol, hammer and matchet (knife). To effect the robbery, they broke into the room of 1st p.w., wife of 2nd p.w. woke her up and at gun point the appellant demanded and took the money and articles.
Throughout the period, he engaged in discussion with 1st p.w. as a result of which 1st p.w. recognised him vividly and after the operation, mentioned him to 2nd p.w. and identified him to the police.
The 2nd p.w. in his testimony said he regarded him before incident as his best friend and that the trust he had in him arose from six months association with him when he laid out a beautiful flower garden for him and laid floor tiles in the rooms of his house. This was followed by frequent visits during which he helped to iron their clothes and arranged them in the wardrobe from which he later stole them.
On these facts, the High Court, quite justifiably, convicted the appellant and sentenced him to death. His appeal to the Court of Appeal was properly dismissed. I find no merit in his appeal to this Court and I would dismiss it. Learned counsel has unsuccessfully tried to raise the issue of fair hearing under section 33(1) 10 of the Constitution and double jeopardy under section 33(9) of the Constitution before us. They are outside the ground of appeal filed.
I hereby dismiss the appeal and affirm the conviction and sentence passed by the High Court and affirmed by the Court of Appeal.
ESO, J.S.C.: There is no merit whatsoever in this appeal. The only ground which has been argued by learned counsel in this case is that the appellant was put to double jeopardy. There was an Armed Robbery Tribunal which had jurisdiction to try armed robbery cases before the 1st October, 1979. It was before this tribunal that the appellant was arraigned. The trial was concluded by 12th October, 1979 but by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals etc.), Decree 1970 No. 47, which was the authority for the trial of the appellant before the tribunal, was modified whereby section 5 thereof was amended by making the offences under that Decree triable in the High Court of the State concerned. Of course, by 1st October, 1979, the Robbery Tribunal had, by reason thereof, been aborted and all the purported trial thereafter had no force of law.
Mr. Akinrinsola conceded that the trial before the tribunal was a nullity but he submitted that though the appellant could not raise the plea of autrefois convict or acquit the second trial nevertheless constituted double jeopardy.
Mr. Akinrinsola referred this Court to Friedland on Double Jeopardy. The learned author had referred to the judgment of Black J. in Green v. United States (1957) 355 U.S. 184 where at pp.187-188 the learned Justice of the United States Supreme Court had said –
“The underlining idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its reasons and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insanity that even though innocent, he may be found guilty.”
I agree in general with this dictum of the learned Justice of the Supreme Court. But what do we have in this case The first trial was aborted by law ever before there was any consideration of the guilt or otherwise of the appellant. Any exercise by that tribunal after 30th September, 1979 to hear evidence, consider the case against the appellant, convict or acquit him was an exercise in futility. The whole trial, as Mr. Akinrinsola rightly conceded, was void.
Indeed S.33(9) of the Constitution of Federal Republic of Nigeria, 1979, makes adequate provision for the provision of anyone being put in double jeopardy. It provides-
“33 (9) No person who shows that he has been tried by any court of competent jurisdiction for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court”
There was no tribunal apart from the High Court legally in existence at the time of the purported consideration by the so called Armed Robbery Tribunal of the case against the appellant. In law, the appellant, by 1st October, 1979, had not been tried at all. Nothing prevents the Attorney-General or his officer in taking a decision to prosecute the appellant as he had not yet legally been prosecuted before a court of competent jurisdiction. This is a discretion in the Attorney-General – see s.191 of the Constitution, see also State v. Ilori 1983 1 S.C. N.L.A. 94 where this Court discussed the powers of the Attorney-General and the uninterferable discretion he has in the exercise of those powers.
The appellant had been rightly convicted by the High Court which had jurisdiction. Mr. Akinrinsola has not challenged the merit of the case, in that case, I will only limit my decision to the points of law which I have already discussed. The appeal to the Court of Appeal was rightly dismissed and lacks merit. I hereby dismiss this appeal and affirm the decision of the High Court which had earlier been affirmed by the Court of Appeal.
NNAMANI, J.S.C. : The appellant was tried for armed robbery punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Decree No.47 of 1970 as amended by the Robbery and Firearms (Special Provisions) Amendment NO.8 Decree of 1974. The Ibadan High Court found him guilty and sentenced him to death. His appeal to the Court of Appeal was found to be without any merit and was accordingly dismissed. He has now appealed to this Court.
Before dealing with his appeal in this Court, it is pertinent to mention that before his trial by the Ibadan High Court, the appellant had been tried by a duly constituted Armed Robbery and Firearms Tribunal. The trial which commenced regularly before that tribunal was purportedly ended on 12th October, 1979 and the appellant was found “guilty” and “sentenced to death”. The Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) etc. Decree 1979 (Decree No. 105) Schedule 3(1) thereof had removed jurisdiction to try armed robbery cases to the High Court of the State. In effect on 12th October, 1979 when the tribunal purportedly gave its judgment it was no longer in existence.
In the only ground of appeal filed and argued before this Court, learned counsel to the appellant, Mr. Fola Akinrinsola, seemed to be complaining that the appellant having been tried by the tribunal could no longer be tried by the Ibadan High Court. At first he seemed to have relied on sections 33(1) and 33(9) of the Constitution of the Federal Republic of Nigeria, 1979 as well as sections 181 and 221 (1) (a) of the Criminal Procedure Act.
He contended that the trial in the High Court as well as the proceedings in the Court of Appeal were null and void. In the course of argument however, he conceded that the proceedings before the Armed Robbery and Firearms Tribunal were null and void. Accordingly, he was no longer relying on autrefois acquit or convict nor on section 33(9) of the Constitution and the sections of the Criminal Procedure Act referred to above.
That to my mind ought to have been the end of the matter. He however submitted that the appellant had been subjected to double jeopardy and therefore that the trial before the High Court was unconstitutional. He relied on Mandara Vs Attorney-General of the Federation (1983) 4 S.C. p.8 at 27 as well as on Friedland on “Double Jeopardy” pages 3 – 5. 50
Without really going into details on this issue as, first, this could lead to a constitutional debate which this panel would have to refer to a full court, and second, the issue being raised does not arise from any ground of appeal filed before this court, the question of autrefois acquit having been conceded as not applicable in this appeal there was nothing left to argue. Nothing that has happened in this case is in conflict with the decision of this Court in the Mandara case (supra). It is to be assumed that the Attorney-General of Oyo State had taken the decision to prosecute the appellant in the High Court of the State after the aborted trial before the tribunal. As regards the reference to Friedland, I would only reiterate the caution in repeated cases in this Court against importing doctrines and decisions of courts relating to other Constitutions in the interpretation of ours. I think that it is section 33(9) of our Constitution that is applicable here and there has been no breach of it.
Learned counsel to the appellant did not challenge the decisions of the High Court and Court of Appeal on the merits. This is right as I am satisfied that on the merits the case against the appellant was overwhelming. The facts as found by the High Court were confirmed by the Court of Appeal. The appeal lacks substance and I hereby dismiss it. The conviction and sentence passed on the appellant are hereby further affirmed.
KAZEEM, J.S.C.: This is a case in which the appellant was originally tried by an Armed Robbery Tribunal up to the time he was purportedly convicted by that tribunal on 12th October, 1979. Prior to that date, the jurisdiction of the tribunal to try armed robbery cases had been taken away and the trial of such cases had been transferred to the appropriate High Court by a constitutional amendment brought about by Decree No.105 of 1979 with effect from 1st October, 1979. Consequently at the time the tribunal gave its decision on 12th October, 1979, there was no longer a tribunal in existence; and any purported trial or continuation of a trial before the tribunal was a nullity. Hence the appellant was properly arraigned for trial before the High Court in Ibadan which convicted and sentenced him to death. His appeal to the Court of Appeal, Ibadan was dismissed.
Mr. Akinrinsola, learned counsel for the appellant in this court was granted leave to file and argue an additional ground of appeal which has raised afresh the issue that in so far as the trial before the Armed Robbery Tribunal was a nullity, (which he conceded), the subsequent trial at the High Court was unconstitutional. His authority for this proposition is section 33(1) of the Constitution of the Federal Republic 1979 which deals with the question of a person being entitled to a fair hearing within a reasonable time by a court in the determination of his rights and obligations. He also relied on the decision of this court in Mandara v. Attorney-General of the Federation (1983) 4 S.C. as well as a passage in Friedland on “Double Jeopardy” pages 3 – 5. Finally he relied on the submissions in his brief except that he said that he was no longer relying on the issue of autrefois acquit or convict under section 181 of C.PA or the provisions of section 33(9) of the 1979 Constitution which deals with the same issue.
I must confess that I cannot understand the arguments put forward in his brief by Mr. Akinrinsola, nor after hearing him in this court, am I convinced that he had put forward any case at all. There is no doubt that there was no trial whatsoever before the Armed Robbery Tribunal. That trial was aborted with effect from 1/10/79. That much was conceded by Mr. Akinrinsola himself.
If then there was no trial, how can learned counsel then complain that the appellant was not properly tried at the High Court, Ibadan In my view the complaint of Mr. Akinrinsola against the High Court trial and the subsequent appeal at the Federal Court of Appeal, Ibadan has no basis in law.
Moreover the issue of fair hearing and the case of Mandara cited by him are inapplicable to this case. In the circumstances, I am satisfied that the appellant was properly tried at the High Court, Ibadan; and his appeal by the Federal Court of Appeal, Ibadan was also properly dismissed. The appeal is therefore dismissed and I hereby affirm the conviction and sentence.
OPUTA, J.S.C.: There is no need to call on learned counsel for the respondent. From the brief filed on behalf of the appellant, one gathers the impression that the quarrel is with the fact that the appellant was first tried by the Armed Robbery Tribunal. The proceeding before that tribunal began regularly but by the time the tribunal delivered its purported judgment, the tribunal had ceased to exist. It could not therefore deliver a valid judgment. Learned counsel for the appellant conceded, and rightly in my view, that the judgment of the tribunal was a nullity.
Having conceded this, the next issue is Can the appellant then be tried by a competent court – here the Ibadan High Court Although the learned counsel for the appellant did not want to answer this question directly, his argument that the trial before the Ibadan High Court was defective and offending to S. 33(1) of the 1979 Constitution seems to suggest that the appellant could be properly tried by a competent High Court. In any event, nothing prevented the trial before the Ibadan High Court. Was the trial before that High Court unconstitutional The answer must be a positive unhesitating “No”. It was not unconstitutional. Had there been a conviction or acquittal by a competent tribunal, then it would have been wrong of the High Court to try the appellant again. This seems to be the intendment of section 33(9) of the 1979 Constitution.
Learned counsel for the appellant relied on S.33(9) i.e. on “a fair hearing within a reasonable time”. He is not quarrelling with merits of the trial in the High Court. His submission (which was not even covered by his only ground of appeal) was that the appellant suffered double jeopardy which offended the principle of fair hearing.
His submission of double jeopardy is not borne out either by the letter or by the spirit of section 33(9) of the 1979 Constitution; or by the line of cases on this aspect of our law – cases which were fully discussed by both the court of first instance and the court below. Having abandoned the plea of “autrefois convict” it is my humble view that there remains no foundation on which to build any meaningful submission on the question of double jeopardy.
This appeal is totally devoid of merit. It ought to be dismissed and it is hereby dismissed. The judgment and sentence of the court of trial and the judgment of the court below are all upheld and affirmed.
Appeal dismissed.
SC.42/1984
