Sunday Okoh V. The State (1984)

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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.