IN THE SUPREME COURT OF NIGERIA

On friday, the 9th day of March 1979

SC. 1/79

Between

S. O. AJANAKU .................  APPELLANT

And

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

This matter came before the Supreme Court on a notice of application for leave to appeal to this Court under Section 117(A)(4) of the Constitution (Amendment) Decree No. 42 of 1976. This Section applies because the appeal was from a conviction of criminal charges-conspiracy, which originated from the Chief Magistrate Court in Lagos, and went on appeal to the Lagos State High Court and later to the Federal Court of Appeal. In the papers before the Supreme Court, the applicant's conviction for conspiracy was affirmed by the Federal Court of Appeal on 12th December 1978. He has 30 days within which to obtain the certificate of the Attorney-General of the Federation authorising a further appeal to the Supreme Court as required under Section 31(1) of the Federal Court of Appeal Decree No. 43 of 1976, before applying for leave in the Supreme Court.

Nevertheless, the applicant filed an application for leave to appeal on 8th January 1979 purporting to have acted under Section 117(4) and Order 9, rule 1 of the Supreme Court Rules 1977. As indicated in a further affidavit, sworn to on 15th February 1979, applicant's counsel deposed to the fact that an application in pursuance to Section 117(5) of the Constitution of the Federation, dated 23rd January 1979, was served on the secretary of the Attorney-General on 30th January 1979. It was further deposed to that as at 15th February 1979 and up till the time the matter came before the court on 19th February 1979, the certificate had not been obtained.

HELD:

(1)     On proper consideration of Section 117(4) and (5) of the Constitution (Amendment) Decree No. 42 of 1976 and Section 31 of the Federal Court of Appeal Decree No. 43 of 1976, what originates jurisdiction for the Supreme Court to entertain a notice of application for leave to appeal to the Supreme Court is the certificate given by the Attorney-General.

(2)     From the facts before us, there was no certificate of the Attorney-General of the Federation authorising a further appeal to this court in which case, this being a criminal proceeding, no notice for application for leave to appeal can be brought or entertained by this Court under Section 117(4) and (5).

(3)     It is therefore clear to us that in a criminal proceeding, jurisdiction to hear and appeal under Section 117(5) originates from the certificate of the Attorney-General where this has been granted under Section 31(1) of the Federal Court of Appeal Decree 1976. The certificate of the Attorney-General as we have earlier mentioned has not been obtained before the matter came before this court. In the circumstances, therefore, the papers before us do not come within the provisions of Section 31(1) of Decree No. 43 and Section 117(5) of Decree No. 42.

Appeal dismissed.

Cases referred to:

1.      Exparte Blackburn (1956) 3 All E.R. 834.

2.      Milne v. Commissioner of Police for City of London (1940) A.C.1

3.      Rex v. W. H. Ball (1911) A.C. 47.

Statutes referred to:

1.      Constitution (Amendment) Decree No. 42 of 1976.

2.      Criminal Appeal Act 1907.

3.      Criminal Justice Act 1925.

4.      Federal Court of Appeal Decree No. 43 of 1976.

5.      Supreme Court Rules 1977.

SOWEMIMO, J.S.C.:-This matter came before us on a notice of application for leave to appeal to this Court under Section 117(4) of the Constitution (Amendment) (No.2) Decree 1976, No. 42 of 1976, which came into effect on 1st October 1976. This section applies because the appeal was from a conviction on certain criminal charges which originated from the Chief Magistrates' Court, Lagos, went on appeal to the Lagos State High Court and later the Federal Court of Appeal, Lagos. This application relates to a criminal proceeding and we think it apt to set out the relevant provisions of the law i.e. Section 117 sub-sections (4) and (5) of the Constitution as amended by the Constitution (Amendment) (No. 2) Decree 1976, No. 42 of 1976, and section 31 of the Federal Court of Appeal Decree 1976, No. 43 of 1976. Both decrees came into force on 1st October 1976.

"(4)    Without prejudice to the foregoing provisions of this section an appeal shall lie to the Supreme Court from any other decision of Federal Court of Appeal only with the leave of the Supreme Court.

(5)     Notwithstanding the foregoing provisions of this section, no appeal shall lie to the Supreme Court from any decision of Federal Court of Appeal on an appeal to that Court from a decision of the High Court or the Federal Revenue Court sitting otherwise than at first instance unless the decision was in respect of a proceeding and in respect of that decision the Attorney-General of the Federation has given a certificate that the decision of the Federal Court of Appeal involves a point of law of exceptional public importance and that it is desirable in the public interest that a further appeal to the Supreme Court should be brought."

Section 31 (No. 43 of 1976)

"(1)    An application to the Attorney-General under Section 117(5) of the Constitution of the Federation for a certificate authorising an appeal to the Supreme Court from the decision of the Court of Appeal shall be made within a period of thirty days from the date when the decision of the Court of Appeal was given.

(2)     When the Court of Appeal has allowed an appeal against conviction and the prosecutor gives notice of appeal to the Court of Appeal immediately after the decision of the Court has been given on the appeal that he intends to "apply to the Attorney-General for a certificate as aforesaid, the Court of Appeal may make an order providing for the detention of the defendant, or directing that the defendant shall not be released except on bail, until either the Attorney-General has refused to grant the certificate or a decision on the appeal has been given by the Supreme Court as the case may be."

On a proper consideration of the above sections of the law, what originates jurisdiction for the Supreme Court to entertain a notice of application for leave to appeal to the Supreme Court is the certificate given by the Attorney-General.

In the papers before us the applicant's conviction on conspiracy was affirmed by the Federal Court of Appeal on 12th December, 1978. He has 30 days within which to obtain the certificate of the Attorney-General of the Federation authorising a further appeal to this Court. Until that has been done this Court will have no jurisdiction to entertain a notice of application for leave to appeal under Section 117(4) and (5) read together. Nevertheless the applicant filed an application on 18th January, 1979 purporting to have acted under Section 117(4) and Order 9, rule 1 of the Supreme Court Rules 1977. As indicated in a further affidavit, sworn to on 15th February, 1979, was served on the Secretary of the Attorney-General on 30th January, 1979. It was further deposed to that as at 15th February, 1979 and up till the time the matter came before the Court on 19th February, 1979, the certificate had not been obtained. In other words there was no certificate of the Attorney-General of the Federation authorising a further appeal to this Court in which case, this being a criminal proceeding, no notice of application for leave to appeal can be brought or entertained by this Court under Section 117 sub-sections (4) and (5).

We wish further to refer to two English Acts which are, generally speaking, similar to Section 117(5) of the Constitution as amended. These are the English Criminal Appeal Act, 1907 and Criminal Justice Act, 1925. Section (6) of the Act, 1907 reads:

"If in any case the Director of Public Prosecutions or the prosecutor or defendant obtains the certificate of the Attorney-General that the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance, and it is desirable in the public interest that a further appeal should be brought, he may appeal from that decision to the House of Lords, but subject thereto the determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that Court to any other Court."

In determining what papers were considered sufficient for an appeal under the above sub-section we refer to Rex v. W. H. Ball (1911) A.C. page 47 at page 62:

"No rules have been made as to these appeals to this House, nor are there any standing orders applicable to appeals from the Court of Criminal Appeal to this House. All the documents which were before the Court of Criminal Appeal have been filed, and in addition there are the petition of appeal embodying the certificate of the Attorney-General and the transcript of the judgment of the Court of Criminal Appeal."

These were the documents accepted by the House of Lords as being sufficient for the purpose of the House exercising its jurisdiction in hearing arguments on the point of law then argued. This may be a useful guide to those who may have such appeals in criminal proceedings coming before this Court under Section 117 sub-sections (4) and (5).

It will be noticed that there was no indication in the provision of the English Act under reference as to the period when the certificate of the Attorney-General Criminal Justice Act, 1925, which imposed a time limit of "seven days from the date when the decision of the Court of Criminal Appeal was given." We refer in this respect to ex parte Blackburn (1956) 3 All E.R. page 334 at page 337. It is important to note that in the case cited, an application was made within time for the Attorney-General's certificate and was refused. Another fresh application on substantially the same facts was re-submitted to the Attorney-General after the expiry of the seven days. No certificate was granted. Then the appellant Mr Blackburn brought a writ of mandamus to compel the Attorney-General to issue a certificate on the second application under Section (6) of the Criminal Appeal Act 1907 and Criminal Justice Act, 1925, section 16 sub-section (1). The Court held as follows:

"No order to mandamus could be made since-

(a)     the Attorney-General, having once considered the application and refused to grant a certificate, was under no duty to reconsider the same application; and

(b)     if the renewed application to the Attorney-General were dealt with as a fresh application, then it was outside the time limit imposed by Section 16(1) of the Act of 1925 and he was likewise under no duty to consider it."

There is an editorial note to this case which we think will be of use to any person wishing to make an application to this Court under Section 117 sub-section (5) of the Constitution (Amendment) (No. 2) Decree 1976, No. 42 of 1976 and Section 31 sub-section (1) the Federal Court of Appeal Decree 1976, No. 43 of 1976.

The effect of a grant of a certificate by the Attorney-General is referred to in the passage of Lord Atkin's judgement in Milne v. Commissioner of Police for City of London, (1940) A.C. 1 at page 21:

"The Attorney-General granted his certificate that the decision involved a point of law of exceptional public importance, and that it was desirable that a further appeal should be brought, and thereby enabled the appellant to appeal from the decision to this House (Section 1, sub-section (6)).

I mention the section in order to support the view that, whatever be the point of law upon which the Attorney-General grants his certificate, once it is granted there is 'a further appeal' to this House upon all the grounds open to the Court below. The appeal is not limited to the point of law of exceptional public importance, which, indeed, is not specified in the certificate. The result is that this House is armed with all the powers of the Court of Criminal Appeal in like case, and, amongst other matters, may act upon the proviso to Section 4, sub-section (1), if it were to consider that, though the point of law was wrongly decided, no substantial miscarriage of justice has occurred."

At page 31 (Lord Wright) after describing how the appeal came before the House of Lords and what had to be decided in the particular case, made the following statement:

"Your Lordships were furnished with a statement of facts agreed by all parties to this appeal, prepared for the use of your Lordships subsequently to the decision of the Court of Criminal Appeal. But transcripts of the shorthand notes of the evidence at the trial were also supplied and certain passages have been referred to in argument before your Lordships."

The last portion cited was intended to show what the House in that case decided to be the papers that will be sufficient for the argument of the appeal before them. See also Archbold on Criminal Pleading Evidence and Practice, 1958 Edition, page 900.