IN THE SUPREME COURT OF NIGERIA

On Friday, the 8th day of December 1978

SC.22/1978

Between

ANTHONY ABURIME ............................................. APPELLANT

And

COMMISSIONER OF POLICE ...................................... RESPONDENT

The applicant was prosecuted on a charge alleging official corruption before the Benin High Court and convicted at the end of the trial. The applicant thereafter appealed to the Federal Court of Appeal complaining that his conviction has contravened section 22 (10) of the 1963 constitution of the Federal Republic of Nigeria which provides that no person shall be convicted of criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law. The Federal Court of Appeal allowed the appeal and quashed his conviction and recorded a verdict of acquittal in his favour on the ground that the applicant had been prosecuted and convicted under a section of the criminal Code which does not exist and consequently the said conviction has contravened section 22(10) of the 1963 constitution.

The prosecutor then appealed against the decision of the Federal Court of Appeal to the Supreme Court and purported to do so under section 21 of the High Court Law (Cap. 65 Vol. 111 Laws of Bendel State, 1976). The said section vests a prosecutor aggrieved by the acquittal of an accused person after a trial in a criminal matter by the High Court sitting as a Court of first instance, with a right to appeal to the Supreme Court as of right on the ground that the said decision is erroneous in law.

Before the Supreme Court the applicant objected that the Court had no jurisdiction to entertain the purported appeal and argued that Decree No. 42 which came into force on 1st of October, 1976 established a new hierarchy of appeal namely, the Federal Court of Appeal between the High Court sitting as a court of first instance and the Supreme Court and that in consequence thereof, section 21 of the High Court Law no longer conferred a dejure right of appeal to the Supreme Court on a prosecutor after the Federal Court of Appeal has dealt with the matter.

HELD

(1)     It seems to us incontestable that the notice of appeal in this matter is caught by the provisions of Decree No. 42 of 1976 which amended section 117 of the Constitution of the Federal Republic of Nigeria 1963 and an appeal by the prosecutor such as the respondent here would not lie to the Supreme Court as of right.

(2)     The effect of Decree No. 42 of 1976 is the interposition by legislative process of another hierarchy of appeal, namely, the Federal Court of Appeal (created under the said Decree with effect from 1st of October 1976) between the High Court of the state and the Federal Revenue Court on one hand and the Supreme Court on the other. The Decree under section 2 thereof, makes provisions for consequential amendments arising from the creation of the Federal Court of Appeal and its effects on other existing enactments.

(3)     The reference to the Supreme Court appearing under section 21 of the High Court Law (Bendel State) shall be construed as a reference to the Federal Court of Appeal and it was clearly a misconception of the correct legal position for learned Counsel acting for the respondent, to insist as he did that he was relying on the said section as conferring a dejure right of appeal to the Supreme Court.

Appeal dismissed.

Chief F.R.A. Williams (with him Professor. A.B. Kasunmu, Mr Rhodes and Mr Aburime) for the Applicant.

M.E. Agidee Esq., Legal Adviser, Ministry of Justice Bendel State for the Respondent.

Cases referred to:-

Aviagents Ltd. Vs. Balstravest Investments Ltd. (1966) 1 W.L.R. 150.

C.O.P. Vs. Smart Ededey (1963) All N.L.R. 404.

Statutes referred to:-

Constitution of the Federation of Nigeria 1963.

Criminal Code Cap. 28 Laws of the former Western State of Nigeria 1951 Applicable in the Bendel State.

Criminal Code Cap. 42, Laws of the Federal Republic of Nigeria, 1958 Vol. 11.

High Court Law (Cap. 65 111, Laws of Bendel State of Nigeria 1976).

Law Revision (Miscellaneous Amendments) Edict 1976, Edict No. 3 of 1976 of Bendel State of Nigeria.

Irikefe, J.S.C.-Before the Benin Judicial Division of the High Court of Bendel State, the applicant herein was prosecuted on an information framed as hereunder:

"At the sessions holden at Benin on the 19th day of January, 1977 the Court is informed by the Director of Public Prosecutions of Bendel State of Nigeria on behalf of the State that ANTHONY ABURIME is charged with the following offence:

Statement of Offence

Official corruption, contrary to Section 82A(1)(a) of the Criminal Code, Cap 28 Volume 1 Laws of the former Western State of Nigeria 1959, applicable in the Bendel State of Nigeria.

Particulars of Offence

ANTHONY ABURIME on or about the 28th day of August, 1976, in the premises of the State C.I.D., Benin City, corruptly gave the sum of N200.00 in N10.00 Nigerian Currency notes as a gift for coke to one Joseph Akinyemi, a public official to wit; an Assistant Superintendent of Police attached to the Force C.I.D. Nigeria Police, Lagos, on account of favour to be afterwards shown by him to you, to wit: to help you and save your name from being tarnished which meant that he should either refrain from further investigation of or act corruptly and partially in the investigation being conducted by him as a police officer into allegations against you of official corruption in relation to a case of armed robbery in which one late Chief Solomon Ogiemwenken was involved."

After hearing the evidence in support of the above charge, the court of trial (Ovie-Whiskey, C.J.), found the applicant guilty, convicted and sentenced him to a fine of N600.00 or imprisonment for 2 years in lieu thereof.

An appeal by the applicant against his conviction to the Federal Court of Appeal was allowed and the verdict set aside on the ground that the said conviction had contravened Section 22(10) of the Constitution of the Federation of Nigeria, 1963 which prescribes that no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law. The Federal Court of Appeal in arriving at its decision had taken the view that the charge as brought against the applicant did not satisfy the requirements prescribed under the section of the constitution quoted.

Thereafter, the Director of Public Prosecutions of Bendel State acting through a Legal Adviser in the Ministry of Justice of the State, filed what purports to be a notice of appeal (or application for leave to appeal) against the decision of the Federal Court of Appeal to this Court. The said notice, a copy of which was annexed to the applicant's affidavit reads thus:

"COMMISSIONER OF POLICE VERSUS ANTHONY ABURIME

TO THE REGISTRAR OF THE FEDERAL COURT OF APPEAL, BENIN CITY.

I, MICHAEL EDUN AGIBEE (LEGAL ADVISER) of the Ministry of Justice, Benin City acting on behalf of the Director of Public Prosecutions of the Bendel State, the prosecutor in the above case and being desirous of appealing against the decision under Section 21 of the High Court Law Cap. 65 Vol. 111 of the Laws of BENDEL STATE, 1976.

Do hereby give notice for appeal for application for leave to appeal on the following grounds:

(1)     The learned appellate Justices erred in law by failing to consider adequately, if at all, that the Criminal Code, Cap. 28 Laws of the former Western State of Nigeria, 1959, Volume 1 (then applicable in the Bendel State of Nigeria) and S.82 thereof are equivalents of, identical, similar to or same as the Criminal Code, Cap. 42, Laws of the Federal Republic of Nigeria, 1958, Vol. 11, and its, S.98 respectively because this is so from all intents and purposes, having regard to the preface and conversion table of chapters to the Criminal Code, Cap. 28, and the conversion table at the beginning of the Criminal Code, Cap. 28, and having regard to all relevant laws including S.12 of the Revised Edition of the Laws Law (No. 6 of 1959) at p.19 of the said Volume 1.

(2)     The learned appellate justices erred in law in holding that there was no mention of S.82(A)(1)(a) by the Law Revision (Miscellaneous Amendments) Edict 1976, Edict No. 3 of 1976 (of the Bendel State of Nigeria), in that the said S.82A(1)(a) and S.98(A)(a) were mentioned or referred to in the Edict.

(3)     The learned appellate Justice erred in law when they held that there was no amendment of S.82 of the Criminal Code (Cap. 28) and consequently that the accused/respondent was not charged under any existing law, as that Section was duly amended and the accused properly charged under S.82A(1)(a) of the same code.

(4)     The learned appellate Justices erred in law in their view that the Law Revision (Miscellaneous Amendments) (Amendment) Edict 1977, Edict No. 17 of 1977, did not apply to the Accused/Respondent, since this Edict made for the avoidance of doubt, if any, is intra vires the legislatie authority, was valid and was properly made retrospective as was conceded in the judgment complained of and since the Edict was deemed to have been made with effect from 31st December, 1975 before the charge was preferred.

(5)     The learned appellate Justices erred in law in holding that the Edicts Nos. 3 of 1976 and 17 of 1977 were made solely for revising the laws of Bendel State of Nigeria when they were made to amend, adopt, modify or incorporate relevant laws, including the Criminal Code Cap.28 particularly S.28 thereof for all intents and purposes and this was apparently conceded in the judgment in respect of amendments relating to Sections 16 and 17 of the Criminal Code, Cap.28.

(6)     The learned appellate Justices erred in law in holding that the Edicts No. 3 of 1976 and No. 17 did not adopt, modify or incorporate S.98(A)(1)(a) of the said Criminal Code, Cap 42, spelt out in Schedule 1 to the Criminal Justice (Miscellaneous Provisions) Decree 1966, Decree No. 84 of 1966.

(7)     The learned appellate Justices erred in law in holding that S.22(10) of the Constitution of the Federation of Nigeria (No. 20 of 1963) was infringed for charging the accused/respondent under a non-existing law, since he was properly charged under S.82(a)(1) of the Criminal Code, Cap.28.

(8)     The learned appellate Justices erred in law in quashing the conviction of the accused/respondent, annulling his sentence and acquitting him when there was no basis for doing so and when he was duly tried, found guilty, convicted and sentenced."

On being served with the notice and grounds of appeal set out above, the applicant who was the successful party at the end of the proceedings before the Federal Court of Appeal, through his counsel, brought this motion seeking an order that the said notice of appeal be struck out.

The grounds upon which the order is sought are:

"(i) There were no proceedings between the respondent on the one hand and the appellant on the other hand before the Federal Court of Appeal.

(ii) The purported Notice of Appeal was not signed by the Appellant as required by law.

(iii) Section 21 of the High Court Law Cap. 65 of the Laws of Bendel State (1976 Edition) confers a right of appeal as of right from the decision of a judge to acquit or discharge the accused person in criminal proceedings. But such a right is a right of appeal from the High Court to the Federal Court of Appeal and not a right of further appeal from the Federal Court of Appeal to the Supreme Court.

(iv) It is not competent for the legislature of Bendel State to confer a right of further appeal from the Federal Court of Appeal to the Supreme Court.

(v) Even if (which is not conceded) it is permissible for the appellant to treat his in-effective Notice of Appeal as a Notice of Application for leave to appeal, this Honourable Court cannot entertain it save after a prior application to the Federal Court of Appeal had been refused."

In support of the application, it was argued that this Court has an inherent power to strike out a notice of appeal where an appeal is plainly incompetent and we were invited to do so in this case. The case of Aviagents Ltd. Vs. Balstravest Investments Ltd. (1966) 1 W.L.R. p.150 was cited as authority for this proposition.

It was also submitted that the proceedings in the High Court were between the State, as prosecutor, and the applicant, as the accused. At no time, counsel argued, was the Commissioner of Police a party to the proceedings as the purported notice of appeal shows. If the Commissioner of Police was not a party to the proceedings at any stage, it was argued, he could not be a party aggrieved by the decision of the Federal Court of Appeal in this matter.

Finally, it was argued that a prosecutor, such as the respondent herein, cannot appeal as of right to this Court against a decision on appeal of the Federal Court of Appeal in a criminal matter heard by the High Court sitting as a court of first instance. Such further appeal to this Court, said counsel, can only lie with the leave of either the Federal Court of Appeal or this Court. Counsel then argued that the right of appeal vested in a prosecutor such as the respondent here, by Section 21 of the High Court Law (Cap. 65 volume 111, Laws of Bendel State) should not be read, not as a right of appeal to the Supreme Court, but to the Federal Court of Appeal.

Considerable stress was laid by counsel on the fact that, even if the court was disposed to treat the present notice as an application for leave to appeal, such an application would still be defective on two grounds, namely:

(a)     Where an application for leave is to be made either before the Federal Court of Appeal or this Court, the rules of court require that it should be made first at the Federal Court of Appeal and it is only upon its refusal by that court that it could be made here.

(b)     No such application is now permissible by this Court under its new rules of court which came into force on 1st September, 1977 without the filing of a brief as required under Order 9 of the said rules.

It was then argued that, as there had been no pretence by the respondent of compliance with either the law or the relevant rules of court, the notice of appeal should be struck out as incompetent.

In a brief reply, learned Counsel appearing on behalf of the respondent re-affirmed that he was relying solely on Section 21 of the High Court Law (Cap. 65 - Vol 111, Laws of Bendel State) as authority for bringing this appeal. He however conceded that, if any provision of the above cited law appeared to conflict with any provision of the Constitution of the Federation of Nigeria, the Constitution would prevail.

Section 21 of the High Court Law (Cap. 65 - Laws of Bendel State, 1976) provides as follows:

"When an accused person has been acquitted or discharged by a judge, the Attorney-General or any prosecutor aggrieved by the decision of the judge to acquit or discharge the accused person, may appeal as of right to the Supreme Court from the decision on the ground that it is erroneous in law."

A right to appeal against the decision of an inferior tribunal is one created by law or statute. Section 117(1) of the Constitution of the Federation, 1963 provides that:

"The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the High Court of a territory or the Federal Revenue Court."

Section 117(2) provides that:

"An appeal shall lie from decisions of the High Court of a territory to the Supreme Court as of right in the following cases:

(f)     Such other cases as may be prescribed by any law in force in the territory."

Section 21 of the High Court Law (Cap. 65 Vol 111. Laws of Bendel State) is in our view, one such right of appeal vested in an aggrieved prosecutor by virtue of the enabling provision in Section 117(2)(f) adverted to above. See also the decision of this Court in Commissioner of Police Vs. Smart Ededey - 1963 - All N.L.R. p. 404.

Decree No. 42 which came into force on 1st October, 1976 amended Section 117 of the Constitution of the Federation as follows:

"(a) for section 117 there shall be substituted the following new section-

117     (1)     The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal Court of Appeal.

           (2)     An appeal shall lie from decisions of the Federal Court of Appeal to the Supreme Court as of right in the following cases - (a), (b), (c), (d) and (e) (Not relevant to our ruling).

          (3)     An appeal shall lie from decisions of the Federal Court of Appeal to the Supreme Court with leave of the Federal Court of Appeal or the Supreme Court in the following cases-

(b)     Where the ground of appeal involves question of law alone, any decision of the Federal Court of Appeal on an appeal from a decision in any criminal proceedings before the High Court or the Federal Revenue Court sitting at first instance.

It seems to us incontestable that the notice of appeal in this matter is caught by the provisions of the Decree as set out above and that an appeal by the prosecutor such as the respondent here would not lie to this Court as of right.

The effect of Decree No. 42 is the interposition by legislative process of another hierarchy of appeal, namely, the Federal Court of Appeal (created under the said Decree with effect from 1st October, 1976) between the High Courts of the States and the Federal Revenue Court on the one hand and the Supreme Court on the other.

The Decree, under Section 2 thereof, makes provisions for consequential amendments arising from the creation of the Federal Court of Appeal and its effect on other existing enactments. In the schedule accompanying the consequential amendments brought about by Section 2 of the Decree (supra) the following appears under paragraph 7(1):

"The references set out in sub-paragraph (2) of this paragraph to the Supreme Court not being references to the former Supreme Court shall be construed as references to the Federal Court of Appeal or, where the context so requires, as including references to the Federal Court of Appeal.

7        (2)     The Laws referred to in sub-paragraph (1) above are -

(c)     The High Court Laws of the former Western Nigeria as in force in the Ogun, Ondo, Oyo and Bendel States."

It follows therefore that the reference to the Supreme Court appearing under Section 21 of the High Court Law (Bendel State) shall be construed as a reference to the Federal Court of Appeal and it was clearly a misconception of the correct legal position for learned Counsel acting for the respondent, to insist, as he did, that he was relying on the said Section as conferring a de jure right of appeal to the Supreme Court.