The State v. Lantarki Yamusissika (1974)
LawGlobal-Hub Lead Judgment Report
COKER, J.S.C.
The only point raised by this appeal concerns the jurisdiction of the Upper Area Court to try cases of robbery under section 298(a) of the Penal Code. The facts of the case are hardly in dispute and as the Upper Area Court, Yola, found, the respondent was described and identified by Sajo Bawa, the complainant, as one of those who accosted him on the evening of the 8th January, 1972, armed with cutlasses and robbed him of all the money then in his pocket- an amount of 6 970-1d(pounds)., i.e. :N12.01.
There were two persons originally accused of the offence but the 2nd accused, one Maiadiko Shallman, was discharged for want of evidence. Lantarki Yamusissika, hereinafter to be referred to as respondent (since he is the respondent to the present appeal) then appealed to the High Court, Yola, against his conviction. It seems clear that the only point on which the High Court on appeal had based its judgment in the appeal was that or jurisdiction and by that judgment the court discharged and acquitted the present respondent.
It is pertinent at this stage to make some comments about the order eventually made by the High Court (By its judgment the High Court came to the conclusion that the Upper Area Court which tried Lantarki Yamusissika had no jurisdiction to do so and as such the proceedings in the Upper Area Coun were a nullity.
Even if the decision is correct (we propose to adven to the point later) it is not appropriate thereafter to make an order whereby the accused person is “acquitted and discharged”. The finding of the High Court postulates that there had been no lawful trial of the accused person by any court competent to do so and it is illogical thereafter to make an order which assumes that the accused had been lawfully absolved from criminal liability for his action or inaction. We think that in the circumstances envisaged by the judgment of the High Court, Yola, the proper order would have been that discharging the accused person, leaving it open thereafter for the prosecution to decide as to whether they would take up the matter any longer.
Be that as it may, the main point canvassed before us relates to the jurisdiction of the Upper Area Court. The judgment of the High Court, Yola, delivered as it were, without hearing counsel for the parnes, is brief and it is desirable to set it out in full as follows:
“The appellant was convicted of an offence contrary to section 298(a) Penal Code by the Upper Area Court and sentenced to 21 years imprisonment W.H.L. and 12 strokes of cane. By virtue of the Constitution (Suspension and Modification) Decree 1966 section 3(4)(ii) the jurisdiction of the Upper Area Court to try such a case was ousted in as much as by the creation of the Robbery and Firearms Tribunal on the 8th August ’70 such a case should have been heard by the tribunal. The provision of the Decree aforementioned must prevail over the provision of the C.P.C. conferring jurisdiction on the Upper Area Court, that is to say the provision of the C.P.C to the extent of the inconsistency shall be void. The appeal must succeed. In the circumstances the proceedings in the Upper Area Court are nullity and we so declare. We set aside the conviction and sentence of the appellant. The appellant is acquitted and discharged.”
Manifestly, the judgment asserts that the jurisdiction of the Upper Area Court in such cases is ousted in view of the statutes referred to and it is easily seen that the judgment funher implied that no other courts, except the Robbery and Firearms tribunals had, since the time concerned, the powers to try cases of robbery.
Before us, the learned Solicitor-General (North-Eastern State) appearing for the appellant, argued that the decision of the High Court, Yola, was wrong in this it was not supported by the statutes on which it was purported to be based. The learned Solicitor-General submitted that nowhere in the provisions of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 is there any provision ousting the jurisdiction of any other court (not just the Upper Area Court) from trying cases of robbery and that indeed the provisions of section 8(5) of the Decree No. 47 of 1970 contemplate that there might be other avenues of trial open to the prosecution. The learned Solicitor-General further submitted that even before Decree No. 47 of 1970 contemplate that there might be other avenues of trial open to the prosecution. The learned Solicitor-General further submitted that even before Decree No. 47 of 1970 was made the North-Eastern State had already amended section 298 of the Penal Code in order to deal more effectively with the incidence of robbery and that in any case it was advisable to leave room for law officers of the State to choose whether to go to a tribunal or to a regular court of law.
On the other hand, learned counsel appearing for the respondent submitted that the Robbery and Firearms (Special provisions) Decree No. 47 of 1970 exhausted the filed of legislation in that area of legislation; and that it could never be contemplated that the law officers of the State should have the absolute powers of choosing where in any particular instance to take an accused person for trial. Learned counsel for the respondent further submitted that section 5 of Decree No. 47 of 1970 clearly enjoins the Military Governors of the States to constitute Armed Robbery tribunals within their States and that section 10 of the Decree makes it applicable throughout the country. Learned counsel for the respondent submitted also, but without thumb-nailing any particular section of Decree No. 47 of 1970, that if the provisions of section 12(1) of the Criminal procedure Code which vests the Upper Area Court with the jurisdiction to try robbery cases is read along with section 10(1) of the Decree No. 47 of 1970 which states that the Decree shall apply throughout the Federation, there would be an inconsistency within the provisions of section 3(4) of the Constitution (Suspension and Modification) Decree No. 1 of 1966.
We think the point for determination is simple. The High Court, Yola, had in effect held that the provisions of the Criminal Procedure Code, Cap. 30 (Laws of Northern Nigeria, 1963) that confer jurisdiction on the Upper Area Court to try cases of robbery under section 298(a) of the Penal Code are inconsistent with the provisions of the Decree by virtue of which the”Robbery and Firearms tribunal of the North-Eastern State should be constituted. The High Court, Yola, thereafter held that by virtue of the provisions of section 3(4)(ii) of the Constitution (Suspension and Modification) Decree No. 1 of 1966, the provisions of the relevant Decree prevail over those of the Criminal procedure Code in respect of the inconsistency and therefore the relevant provisions of the Criminal procedure Code are adeemed.
There is not dispute about the meaning and effect of section 3(4 )(ii) of the Constitution (Suspension and Modification) Decree No. 1 of 1966. It provides as follows:
“3. (4) If any law
(a) enacted before 16th January, 1966 by the legislature of a Region, or having effect as if so enacted, or
(b) made after that date by the Military Governor of a Region, is inconsistent with any law
(i) validly made by Parliament before that date, or having effect as if so made, or
(ii) made by the Federal Military Government on or after.’that date,
the laws made as mentioned in paragraph (i) or (ii) above shall prevail and the Regional law shall, to the extent of the inconsistency, be void:’
To make these provisions applicable to a particular situation, however,there should be such an inconsistency as is envisaged by the section. The relevant provision of the Criminal Procedure Code, which vests the Upper Area Court with jurisdiction to try cases of robbery under section 298 of the Penal Code, is contained in section 12 and the relevant portion of Appendix A to the Criminal Procedure Code. Section 12(1) and (2) of the Criminal Procedure code provides as follows:
“12.(1) Subject to the other provisions of this Criminal Procedure Code, any offence under the Penal Code may be tried by any court by which such offence is shown in the sixth column of Appendix A to be triable or by any court other than a native court with greater powers.
(2) Any offence under the Penal Code may be tried by any native court by which such offence is shown in the seventh column of Appendix A to be triable or by any native court with greater powers but (subject to the provisions of section 59 of the Native Courts Law) not by a Provincial Court.
Provided that any such native court shall try such offence only if jurisdiction s6 to do has been conferred upon it by its court warrant:’
We do not think it open to any argument that by virtue of this section the Upper Area Court, and indeed any other court “with greater powers”, does ordinarily possess the necessary jurisdiction to try cases of robbery.
Now, the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 was made by the Federal Military Government on the 8th day of August, 1970 and section 10(1) thereof provides as follows:
“10.(1) This Decree may be cited as the Robbery and Firearms (Special Provisions) Decree 1970 and shall apply throughout the Federation. ..
Section 1 of the Decree prescribes the punishment of death for anyone who commits the offence of robbery and section 8 confirms the powers of the tribunals established under and by virtue of the Decree to award the relevant punishments. Section 1 does not define the offence of robbery but section 9, which is the “Interpretation section”, does so define the offence of robbery. Section 2 applies the provisions of the Decree to attempted robbery in its various forms and section 3 prescribes a new offence for the illegal possession of firearms. Section 4 invests “an armed patrol” with necessary powers of arrest and section 5 prescribes the powers of Military Governors to constitute tribunals within their respective States Section 6(5) provides as follows:
“(5) For the avoidance of doubt, it is hereby declared that an offender under this Decree shall be entitled to defend himself in person or by a person of his own choice who is a legal practitioner, and to examine in person or by his legal practitioner, if he so wishes, any person whose evidence on affidavit or otherwise forms part of the case against him.”
Section 7 of the Decree describes the powers of the Military Governor of a State in relation to the judgments of the tribunal which he had constituted by virtue of the Decree and section 6 lays down the procedures by which the accused person is brought before the tribunal and tried by it.
The question that arises now is whether as the High Court, Yola, has ruled, the provisions of the Criminal procedure Code that confer jurisdiction upon any other court to try cases of robbery are inconsistent with the provisions of Decree No. 47 of 1970. We have already referred to section 12 of the Criminal procedure Code and indeed have set it out. As stated before, that section confers jurisdiction on the Upper Area Court to try the respondent on the charge of robbery with which he was charged. The section does not confer exclusive jurisdiction on the upper Area Court and indeed, as we observed before, on any other Court and indeed prescribed such jurisdiction as well for any other court “with greater powers”. We have also discussed the various sections and sub-sections of the Robbery and Fire arms (Special Provisions) Decree No. 47 of 1970. We are however unable to see the provisions of the Decree with which section 12 of the Criminal procedure Code is inconsistent.
It was argued for the respondent that section 5(1) of the Decree enjoins upon the Military Governor of a State of duty of constituting a tribunal under the Decree. This is so, but manifestly no time limit is prescribed by the Decree for constituting such a tribunal and we are not told whether or not such a tribunal exists in the North-Eastern State at present or when it was so constituted if it ever was. Until such a tribunal is constituted in accordance with the provisions of the Decree, it is manifest that there could not be such a body as could exercise the powers conferred by sections 6 and 8 of the Decree. What then happens in the meantime in cases of robbery committed within the State The answer lies in the fact that the courts which normally exercise jurisdiction in cases of robbery continue to do so. Section 9 of the Robbery and Firearms (Special provisions) Decree No. 47 of 1970 defines robbery thus:
“robbery means stealing anything and at or immediately before or after the time of stealing it using or threatening to use actual violence to any person or propeny in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained”,
and section 296 of the Penal Code defines robbery in subsection (1) and
(2) thereof as follows:
“296(1) In all robbery there is either theft or extortion.
(2) Theft is robbery if in order to commit the theft or in committing the theft or in carrying away or attempting to carry away property obtained by the theft the offender for that end voluntarily causes or attempts to cause to any person death or hun or wrongful restraint or fear or instant death or of instant hun or of instant wrongful restraint.”
Obviously, the definition in the Penal Code is wider than that in the Robbery and Firearms (Special Provisions) Decree for the definition in the Penal Code contains the offence whether the results of the Conduct or action of the accused person are achieved by the use of “actual violence” as indicated by the Decree or by any other means as contemplated by the Penal Code.
Undoubtedly, and this was also canvassed in argument before us in order apparently to underline the purpose of Decree No. 47 to deal more effectively with the incidence of armed robbery which was then and still is rampant in some pans of the country, the punishment prescribed by Decree No. 47 of 1970 is very severe. One should however not overlook the fact that by the North-Eastern State Edict No.5 of 1969 and section 4 thereof, the section of the Penal Code which prescribes the punishment for robbery, that is section 298, was amended for that State to read as follows:
“298. Whoever commits robbery shall be punished
(a) with imprisonment for a term of not less than twenty-one years and not less than twelve strokes of the cane, with or without fine; and
(b) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument, with imprisonment or without fine and caning.”
It is beyond dispute that the section under the Penal Code, i.e. section 298, as far as the North-Eastern State is concerned, which prescribes the punishment of robbery, prescribes severe punishment for similar purposes as are envisaged by section 1 of the Decree No. 47 of 1970.
Of considerable importance however are the ,provisions of section 8(1) and 8(5) of the Robbery and Firearms (special Provisions) Decree No. 47. These provisions are as follows:
“8.(1) It is hereby declared for the avoidance of doubt that a tribunal constituted under this Decree shall, notwithstanding anything to the contrary in any enactment or law (including the Constitution of the Federation or the Constitution of a State), have the power, in appropriate cases, to award the punishments (including a sentence of death) specified in this Decree.
(5) It is hereby declared that section 24 of the Interpretation Act 1964 (which provides, inter alia, that a person shall not be punished twice where he is guilty of an offence under more than one enactment) shall apply in respect of this Decree.”
Section 8( 1) confirms the punishment prescribed by the Decree and vests
a tribunal constituted thereunder with necessary powers to enforce its provisions “notwithstanding anything to the contrary in any enactment or law (including the Constitution of the Federation or the Constitution of a State)”. Thus, section 8(1) of the Decree envisages the collateral existence of any other form of punishment prescribed in other “enactments or laws” and the inclusion of the Constitution of the Federation and the Constitution of a State in the sub-section makes it clear that the sub-section has in mind both the laws of the Federation and the laws of the States. In the same way, section 8(5) refers to section 24 of the Interpretation Act, 1964. That section reads as follows:
“24. Where an act constitutes an offence under two or more enactments or under an enactment and at common law, the alleged offender shall be liable to be prosecuted and on conviction punished under any one of the enactments or, as the case may be, either under the enactment or at common law, but shall not be liable to be punished twice for the same offence.”
When this section of the Interpretation Act (No.1 of 1964) is read in conjunction with section 8(5) of Decree No. 47 of 1970, it is easy to see that the makers of the Decree recognise a situation where a person could have committed an offence under the Decree and at the same time an offence under another enactment. What the Decree then says is that such a person should only be punished once for the same offence. It is interesting to note here that the Decree does not then say that such a person should only be punished under the Decree. In sections 8(1), 8(5) and 10(2) thereof, the Decree deals with both Federal and State laws some of which the Decree expressly abrogates. Surely, if it was ever desired or intended to abrogate further laws the Decree could and would have done so by expressly stating that those laws are expressly repealed.
We have come to the conclusion that the provisions of section 12 of the Criminal Procedure Code are not inconsistent with any of the provisions of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 and that there could be and indeed there is no inconsistency of one with the other. It is evident that the two provisions are meant to be complementary and probably deliberately so for it is inconceivable that the makers of the Decree would contemplate a situation in which whilst a tribunal is not constituted or even where constituted is unable to function for one reason or the other no other courts of the State could try a case of robbery. The High Court, Yola, was clearly in error of law in concluding that the Upper Area Court had no jurisdiction to try the respondent in this case and its judgement in that regard cannot be allowed to stand.
We have been at pains in deciding the nature of the order to make in the circumstances of this case. It does not seem to us that the High Court ever dealt with other points, if any, raised in this appeal. If there were any such points it means in effect that the High Court had not dealt with the merits of the appeal which the respondent brought to that Court and the proper order would have been to send the case back to the High Court, Yola, in order to determine the appeal of the respondent with directions appropriate in the circumstances. The records before us contain no information whatsoever on these points and we conclude that the best course is to send back the case for the appeal to be heard and determined by the High Court, Yola, on its merits as discussed above.
The appeal of the State however succeeds and it is allowed. The judgement of the High Court, Yola, on appeal in case No. NEY/99CA/1972 of the 6th November, 1973, including the order acquitting and discharging the accused person is set aside. The Case is sent back to the High Court, Yola for hearing and determination on its merits and with directions that the Upper Area Court was competent.
Other Citation: (1974) LCN/1909(SC)
