The State V. Jerry Chukwuemeka Emezie & Ors. (1971)
LawGlobal-Hub Lead Judgment Report
LEWIS, J.S.C.
In case No. E/6C/1970 in the Enugu High Court, there were four counts involving six accused and at the close of the prosecution case a “no case” submission was made to Agbakoba, J. on behalf of the various accused. The 6th accused was thereupon on the 6th of November, 1970 immediately discharged and on the 7th of December, 1970, the learned trial Judge gave an extensive ruling with regard to the remaining five accused concluding with the following words:-
“No case has been made out against all the five accused persons in respect of counts 1 and 2 and I accordingly discharge all the five accused.
A prima facie case has been made out against the 1st accused in respect of count 3 and I accordingly call upon him to make his defence thereon. A prima facie case has been made out against 2nd accused in respect of count 4 and I accordingly call upon him to make his defence thereon.”
Against that decision the State appealed in respect of the discharge of the five accused on counts 1 and 2 and on the 24th of September, 1971, we dismissed that appeal and we now give our reasons for so doing though for the sake of completeness we would add that on the same day we refused an application by the 2nd accused for leave to appeal against the overruling by Agbakoba J. of his no case submission on the 4th count.
Counts 1 and 2 in the amended information read:-
STATEMENT OF OFFENCE
Count 1
Conspiracy, contrary to section 516 of the Criminal Code.
Particulars of Offence
Jerry Chukwuemeka Emezie, Clement Dorams Onwudiwe, John Anyaechie Charles Nwaneri, Major S.S. Tomoye, Bartholomew A. Igboekwe, in or about the month of January 1970 at Nkwerre in Orlu Division conspired together and with others unknown to commit an offence to wit – stealing from the “Bank of Biafra.”
STATEMENT OF OFFENCE
Count 2
Stealing, contrary to section 390(9) of the Criminal Code.
Particulars of Offence
Jerry Chukwuemeka Emezie, Clement Dorams Onwudiwe, John Anyaehie, Charles Nwaneri Major 5.5. Tomoye, Bartholomew A. Igboekwe, on or about the 19th day of January, 1970 at Atta in Orlu Divison, stole 31 boxes containing Old Nigerian Pound Bank notes and Nigerian coins (1s pieces) valued at 177.500pounds the property of the Central Bank of Nigeria.
It was not disputed by the learned Director of Public Prosecutions, East Central State that in each of these 2 counts, as indeed in counts 3 and 4, the reference to the Criminal Code was to the Criminal Code of the East-Central State. So far as the first count was concerned the point at issue was whether there is in fact a section 516 of such Criminal Code as stated in the information.
The problem arises in this way:-
The Criminal Code (cap.42 of the Laws of Nigeria 1948) was an existing law within the meaning of section 57 (1) of the Nigeria Constitution) Order in Council 1954 and by virtue of section 13 of the Nigeria (Constitution) (Amendment No.2) Order in Council 1957 it became a Regional Law. In 1961 there was enacted by the Legislature of Eastern Nigeria the Revised Edition (Laws of Eastern Nigeria) Law 1961 in which sections 4, 5, 6, 9 and 10 read:-
“4. (1) The revised edition shall contain all laws of Eastern Nigeria having any effect on the appointed date except such of those laws as the Commissioner has power to omit in accordance with section 5.
(2) The appointed date is the date the Minister may, on the recommendation of the Commissioner, appoint.
- (1) The Minister may, by order specify a Schedule of Laws of Eastern Nigeria, or parts thereof, which the Commissioner need not include in the revised edition upon the ground that those laws, or parts thereof are:-
(a) obsolescent,
(b) of a temporary nature,
(c) under revision with a view to replacement, or
(d) of restricted or personal application.
(2) Laws or parts thereof, not so included have the same force and validity as if so included.
- (1) Subject to this section, the Commissioner, has in the preparation of the revised edition, the powers mentioned in the First Schedule.
(2) Those powers shall not be construed so as to imply a power to make an.-
(a) alteration, or
(b) amendment, in the matter of substance of a Law of Eastern Nigeria.
(3) Where the Commissioner considers it desirable that, in the preparation of the revised edition, there should be, in respect of the Laws of Eastern Nigeria:-
(a) additions,
(b) omissions, or
(c) other amendments, other than those authorized in pursuance of subsection (1) they may be collected and submitted, in the form of one or more amending Laws to the Legislature of Eastern Nigeria.
(4) Subject to subsection (5), the Commissioner may, in the preparation of the revised edition, take into account:-
(a) all amending Laws enacted as a result of submission in accordance with subsection (3).
(b) all modifications, adaptations, qualifications, exceptions and other amendments, effected by or in pursuance of the Nigeria (Constitution) Order in Council, 1960, the Constitution of the Federation, and the Constitution of Eastern Nigeria Law 1963;
(c) all amending laws of Eastern Nigeria expressly required by those Laws to be taken into account, notwithstanding that such a law is to come into operation after the appointed date.
(5) The modification, adaptions, qualifications, exceptions and other amendments mentioned in paragraph (b) of subsection (4) need not be taken into account unless the Commissioner has adequate opportunity:-
(a) to do so, and
(b) to comply with subsection (3) of section 14 in respect of them.
- (1) Subject to section 5 and subsection (4) of section 6, the revised edition, when brought in force in accordance with section 10, is, in all courts and for all purposes, the sole authentic edition of:-
(a) the laws of Eastern Nigeria enacted on or before the appointed date, and
(b) the subsidiary legislation included in the revised edition.
(2) Section 12 of the Interpretation Law shall apply to the:-
(a) laws, and
(b) subsidiary legislation, comprised in the revised edition as though the revised edition had repealed those versions of the laws and subsidiary legislation in force prior to the commencement of the revised edition.
(3) Where in:-
(a) an enactment, or
(b) document of any kind reference is made to an enactment repealed or otherwise affected by the operation of this Law, that reference shall, where necessary and practicable, be construed as applying to the corresponding enactment contained in the revised edition.
10(1) As soon as practicable after completion of the revised edition the Commissioner shall transmit a copy thereof to the Minister who shall lay the copy on the table of the Legislative Houses of Eastern Nigeria.
(2) On the passing of a resolution of the Houses authorizing him to do so, the Governor may, by proclamation, order that the revised edition shall come into force on a date to be fixed by him.
(3) Notwithstanding subsections (1) and (2) the Governor may, upon the passing of a resolution of the Houses authorizing him to do so, bring into force by proclamation such part of the revised edition as may, from time to time, be completed as published.
As a result, thereof the Laws of Eastern Nigeria 1963 were prepared as a revised edition and took effect from the 1st of October, 1963, that being the appointed date under section 4(2) of the Law. Under section 5(1) various Laws or parts thereof were by order omitted from the revised edition but it is not in dispute that section 516 of the Criminal Code (Cap. 30 of the Laws of Eastern Nigeria, 1963) one finds under “Chapter LIV – Conspiracy” the entry “(516 Federal)” and the next section is section 516A pertaining to conspiracy to commit felony against the law in a Region and a foot-note at the bottom of the page reads:-
“Section 516 is the Federal counterpart of section 516A and section 517 of 517A.
They relate to conspiracies in Nigeria to commit felonies outside Nigeria.”
It would appear therefore, that the reason for the omission by the learned Law Revision Commissioner, was that he thought the existing section 516 was a Federal enactment. Be that as it may, section 516 was certainly not incorporated in the Criminal Code as set out in Cap.30 in the Laws of Eastern Nigeria, 1963 and it was the submission of the learned Director of Public Prosecutions that this was an error of the Law Revision Commissioner and as the Criminal Code was an existing Law in force in Eastern Nigeria in 1961 he had no right to omit it unless an order was made under section 6(1) of the Revised Edition (Laws of Eastern Nigeria) Law 1961 permitting the omission and it was not in dispute that this was not done. That being so, in his submission the section remained in force as a Regional Law notwithstanding that it did not appear in the Laws of Eastern Nigeria, 1963, and that one could find it in the Laws of the Federation of Nigeria and Lagos, 1958 though it was there to be treated not as a Federal enactment but as a Regional one. The learned trial Judge accepted this argument but in his ruling said:-
“It therefore follows that in spite of the purported exclusion by the Commissioner of section 516 which as we have seen is an existing law, the section remained by virtue of section 5 subsection (2) in full force and effect and this result is consistent with section 9 which prevails subject to section 5. The result is that in order to ascertain all the sources of law of the State regard should be had to the Revised Edition 1963, laws excluded and scheduled in accordance with sections 5(1) and 6(4), and laws omitted but retaining their force under section 5(1) of the Revised Edition (Laws of Eastern Nigeria) Law. This case falls into the third category. In this category the law that is in force is section 516 of the Criminal Code of the Federation of Nigeria and Lagos 1958. If an accused is charged under this law appropriate references must be inserted and included in the charge so as to give him sufficient notice of the law under which he is called on to take his trial and make a defence. In view of this state of the law which I have endeavoured to expound it is certainly inadvisable and indeed prejudicial to withdraw from the accused the particulars of the charge to which they are entitled. Appropriate references to the Criminal Code of the Federation of Nigeria and Lagos 1958 are such particulars. The particulars are not furnished. If the accused persons were charged under State Law it would not be necessary but as section 516 is non existent in the State Law they can only be charged under section 516 of the Federal Law which is in force in this State. Therefore the particulars of that law must be furnished. Failure to do so is fatal and the question is not whether the accused persons were misled which I think they were but whether there was non-compliance.
By section 4 of the Criminal Code it is provided:
“No person should be liable to be tried or punished in any court in Eastern Nigeria for an offence except under the express provisions of the Code, or some law or Act.
Note should be taken to reference of some Law or Act. This is reinforced by section 22 subsection 10 of the Constitution of the Federation which provides:
“No person shall be convicted of a Criminal Offence unless that offence is defined and the penalty therefore is prescribed in a written law.”
It is a reasonable inference that the information was filed and prosecuted upon the view that section 516 which provides the offence of conspiracy to commit a felony is cognizable. I hold the view that it is non-existent in that edition but that section 516 of the Criminal Code of the Federation of Nigeria and Lagos 1958 is in force in the East Central State.”
The learned Director of Public Prosecutions has argued before us against that decision and we must at once indicate that whilst we accept that the Criminal Code was an existing Regional Law at the time of the enactment of the Revised Edition (Laws of Eastern Nigeria) Law 1961, and at the time the Laws of Eastern Nigeria 1963 were brought into force they were as section 9(1) of the Revised Edition (Laws of Eastern Nigeria) Law 1961 said:-
‘The sole authentic edition of the Laws of Eastern Nigeria enacted on or before the appointed date.”
Notwithstanding that the Law Revision Commissioner had no power to omit laws in force unless an order was made under section 5(1), which it was agreed one was not, nonetheless once the Revised Edition had been placed on the tables of the Legislative Houses of Eastern Nigeria and the resolution of each House under section 10 had been passed and the Governor had brought the Revised Edition into force, one cannot (subject to the provisions of section 5 which are not applicable to the facts of this case) go behind the Revised edition.
If there are errors then they must be corrected by appropriate legislation as the whole purpose of putting the Revised Edition on the tables of the Legislative House was to enable objections to be taken if there were errors in any way not acceptable to those Houses. (Indeed the learned Director of Public Prosecutions had himself informed us that there has since been an amendment incorporating section 156 specifically in the Criminal Code of the East Central State but not of course with retrospective effect). It follows that in our view section 516 of the Criminal Code no longer existed as a Regional Law once it was omitted from the Laws of Eastern Nigeria 1963 and those Laws had come into force and no order had been made in respect of it under section 5 and that the learned trial Judge was accordingly, though for other reasons, quite right in holding that there was no case to answer on count 1.
Note:- This judgment is reported only in respect of the conspiracy charge.
Appeal Dismissed.
SC.373/70
