The State v. Lantarki Yamusissika (1974)

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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