Adio v. State (1986)

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23 June 1986

KAMORUN ALIMI ADIO

V.

THE STATE

SUPREME COURT OF NIGERIA

SC. 120/1985

KAYODE ESO, J.S.C. (Presided)

MUHAMMADU LAWAL UWAIS, J.S.C.

DAHUNSI OLUGBEMI COKER, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

SAIDU KAWU, J.S.C. (Read the Lead Judgment)

FRIDAY, 13TH JUNE, 1986

CRIMINAL LAW AND PROCEDURE – Alibi – Meaning of burden of proof – Applicable principles.

CRIMINAL LAW AND PROCEDURE – Alibi – Conflicting stories as to accused’s whereabouts – No duty on prosecution to investigate alibi.

CRIMINAL LAW AND PROCEDURE – Statements made to the police – Accused stating during trial that he adopted same in his defence – Propriety of such procedure.

CRIMINAL LAW AND PROCEDURE – S.287(1)(a) C.P.C. – Calling on the accused to make his defence – Duty of Court – Effect of non-compliance therewith.

CRIMINAL LAW AND PROCEDURE – Jurisdiction – Armed Robbery – Robbery and Firearms (Special Provisions) (Amendment) Decree No. 21 of 1984 – Effect thereof.

CRIMINAL LAW AND PROCEDURE – ‘Part-heard’ matter meaning of – Plea of accused already taken but no more – Whether proceeding ‘part-heard’.

CRIMINAL LAW AND PROCEDURE – “Hearing” – When does it commence?

CRIMINAL LAW AND PROCEDURE – Section 240 CPA – Effect thereof.

PRINCIPLES OF INTERPRETATION – Presumption against retroactivity – Words showing retroactive effect – Vested rights – Pending actions – Applicable principles.

[1986] 3 .
Adio v. State
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Issues:

1.
Whether the High Court of Ogun State has jurisdiction to try the appellant for armed robbery despite the Armed Robbery and Firearms (Special Provisions) (Amendment) Decree No. 21 of 1984.

2.
Whether a proceeding in which the plea of the accused had been taken but without more is a ‘part-heard’ matter.

3.
Whether the trial court violated the provisions of section 287(1)(a) of the Criminal Procedure Law of Ogun State.

Facts:

The appellant was charged before the High Court of Ogun State, Ilaro, with the offence of armed robbery punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. At the trial, the appellant gave evidence in his defence in which he said that he would adopt the statement he had made to the Police as his defence. In the statement he made to the Police he put up an alibi which was not investigated by the Police. The statement however contained contradictory and conflicting stories of his whereabouts at the relevant time on the date the offence was alleged to have been committed.

The trial Judge convicted appellant of the offence and sentenced him to death. His appeal to the Court of Appeal was also dismissed. He has further appealed to the Supreme Court. It was contended by his counsel that the trial High Court had no jurisdiction to try the offence in that by section 12 of Decree No. 5 of 1984, the provisions of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 had been repealed and consequently all such cases that were pending before the High Court were to be transferred to the Robbery and Firearms Tribunal. However section 1(2) of the Robbery and Firearms (Special Provisions) (Amendment) Decree No. 21 of 1984 which amended Decree No. 5 of 1984 states that ‘part-heard’ matters pending before any High Court on the date when the Decree came into force, shall be continued and completed as if the provisions of the Decree had never been made. The Decree No. 5 of 1984 came into force on 31st December, 1983. The record of proceedings showed that the plea of the appellant was taken on 5th December. 1983.

It was also complained that at the end of the case for the prosecution, the trial Judge failed to comply with the provisions of section 287 of the Criminal Procedure Law of Ogun State which relates to the procedure of calling on the accused to make a defence, and that his failure to do so had rendered the trial of the appellant a nullity.

Held (Unanimously dismissing the appeal):

1.
It is a well established principle of law that once an alibi has been raised the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. [Adedeji v. State (1971) 1 All NLR 75 applied]

2.
Where the defence of alibi is promptly and properly put up, failure on the part of the prosecution to investigate it may cast some doubt on the probability of the case for the prosecution.聽[Fatoyinbo v. A.-G., Western Nigeria (1966) WNLR4 at 6 applied]

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3.
The burden is, however, on the accused to give the correct and full particulars of the facts upon which he relied in his defence of alibi. In the instant case, the appellant having failed to discharge this burden, the Police were not obliged to investigate his defence of alibi.

4.
The word ”alibi” means “elsewhere” and since it is a matter peculiarly within the knowledge of an accused person if he was at some particular place other than that where the prosecution says he was at any material time, what has been called the “evidential burden” that is, the burden of adducing or eliciting some evidence tending to show this, rests on him. Gachi v. State (1965) NMLR 333 at 335.]

5.
In the instant case, by giving conflicting and contradictory evidence of his alibi, the appellant had failed to discharge the evidential burden placed on him.

6.
The procedure whereby an accused gives evidence in his defence by stating that he would adopt the statement he had made to the Police as his defence is irregular. [Asuquo William v. State (1975) 9-11 SC 139-152 applied.]

7.
The provisions of section 287(1) (a)of the Criminal Procedure Law are mandatory and where an accused is not represented by counsel, it is the duty of the trial Judge to explain fully to him his rights under the section. [Godwin Josiah v. State (1985) 1 SC 406 applied.]

8.
The provisions of S. 287(1)(a) of the Criminal Procedure Law are so fundamental that non-compliance with the section is an irregularity which would lead to the setting aside of a conviction unless the appellate court was satisfied that there had been no substantial miscarriage of justice. [Eme v. State (1965) NMLR 62; Kajola v. C.O.P. (1973)1 All NLR (Pt. 2) 31 at 37 applied.]

9.
Where the accused is either not represented by counsel at his trial or is so represented but his counsel is not court at the material stage in the proceedings, the court record must show clearly that at the trial the provisions of section 287(1)(a) were complied with.

10.
The duty of the court to put the options contained in section 287(1) (a) to the accused, however, becomes mandatory only when an accused is not represented by counsel.

11.
In the instant case, since the record shows that throughout the trial, the appellant was represented by counsel who must be assumed to have given his client the best advice as to the course to pursue at the close of the case for the prosecution, the provisions of section 287( 1)(a) of the Criminal Procedure Law were not contravened.

12.
The effect of the Robbery and Firearms (Special Provisions)聽(Amendment) Decree No. 21 of 1984 was to require all prosecutions under the Robbery and Firearms Act, 1970 to be brought In the tribunal constituted under section 6 of Decree聽No.5 of 1984.

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13.
Where a matter is a “part-heard” proceeding it is not caught by the amendment in Decree No. 21 of 1984 but such ‘part-heard’ matter shall be continued and completed as if the provisions of the Decree had not been made.

14.
It is a well settled general rule that where the words used in a statute are unequivocal and unambiguous and show a retroactive intent they should be given that effect.

15.
There is however, a presumption against retroactivity of statutes.

16.
The presumption against retroactivity of statutes is only resorted to for the protection of vested substantive rights.

17.
The presumption against retroactivity of statutes is not applied with respect to pending actions or to enactments which affect only the procedure and practice of the courts. Hence, where the question is not one affecting vested rights, or is a question of practice and procedure the presumption does not apply.

18.
In the instant case, there is no doubt that the intention to make the operation of Decree No.21 of 1984 retrospective is unambiguous.

19.
There is no need for any presumption where the words of the statute are clear.

20.
The hearing of the accusation of an offence commences with the proceedings leading to the reading of the charge to the accused and his pleading to it. Section 217 of the Criminal Procedure Act applied.

21.
The proceedings against an accused commences with the filing of the information. This is why any objection to a formal defect in the charge should be taken before plea, otherwise the objection is taken as having been waived. Section 167 of the Criminal Procedure Act applied.

22.
An objection to jurisdiction which ordinarily could be raised at any stage of the trial, is better raised before plea is taken. [R. v. Adiukwu (1939) 5 WACA 122 applied.]

23.
The plea of an accused may, if it is one of guilty of the offence charged, result in the conviction and sentence of the accused at the end of the trial, unless there is sufficient cause to the contrary, and this procedure cannot be correctly described as a trial without a hearing. [Section 218 Criminal Procedure Act applied.]

24.
It is important that an accused must himself plead to the charge or information. He cannot plead through his counsel.

25.
The plea of an accused is a proceeding in the hearing of the charge or information on which the accused has been arraigned.

26.
Section 240 of the Criminal Procedure Act relates to what the prosecution is entitled and has a discretion to do before leading evidence in support of the charge. The prosecution can only do this where there is a hearing and this is because plea has been taken. It is a right which can be exercised only after the commencement of trial and during the hearing of the charge or information against the accused.

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23 June 1986

27.
A proceeding is “part-heard” where hearing has commenced but not concluded.

28.
A plea of “not guilty” entered in a criminal information or charge against an accused person is a hearing with respect to the information or charge laid. Accordingly, the proceeding in respect of such information or charge which continues after plea is part-heard.

29.
In the instant case, since the plea of the appellant had been taken on the 5th December, 1983, the proceedings were part-heard and therefore pending on the 31st December, 1983 when Decree No.21 of 1984 came into force.

Nigerian Cases Referred to in the Judgment:

Adedeji v. State (1971) 1 All NLR 75

Eme v. State (1965) NMLR 62

Fatoyinbo v. Attorney-General, Western Nigeria (1966) WNLR 4

Gachi v. State (1965) NMLR 333

Josiah v. State (1985) 1 SC 406

Kajola v. Commissioner of Police (1973) 1 All NLR (Pt.2) 31

R v. Adiukwu 5 WACA 132

Foreign Cases Referred to in the Judgment:

R. v. Ellis (1973) 57 CR. APP. R. 571

R. v. Hayes (1951) 1 K.B. 94

Nigerian Statutes Referred to in the Judgment:

Criminal Procedure Act, Ss. 167, 217, 240 and 287(l)(a)

Robbery and Firearms (Special Provisions) Amendment Decree No.5 of 1984, Ss. 1(4) and 12

Robbery and Firearms (Special Provisions) (Amendment) Decree No.21 of 1984.

Appeal:

This was an appeal against the judgment of the Court of Appeal which upheld the conviction and death sentence passed on the appellant by the High Court of Ogun State, Ilaro, for the offence of armed robbery. The Supreme Court unanimously dismissed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Saidu Kawu, J.S.C. (Read the Lead Judgment); Kayode Eso, J.S.C. (Presided); Muhammadu Lawal Uwais, J.S.C.; Dahunsi Olugbemi Coker, J.S.C.; Adolphus Godwin Karibi-Whyte, J.S.C.

Appeal No.: SC.120/1985

Date of Judgment: Friday, 13th June, 1986

Names of Counsel: Chief A.M.O. Akande – for the Appellant

G. A. Bakare, Director of Public Prosecutions, (with him, A.O. Keleko,聽State Counsel) – for the Respondent

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Court of Appeal:

Division of the Court of Appeal from which the appeal was brought: Court of Appeal, Ibadan

Names of Justices that sat on the appeal: Latif Junaid Dosunmu, J.C.A. (Read the Lead Judgment); Uche Omo, J.C.A. (Presided); John Hezekiah Omololu-Thomas, J.C.A.

Appeal No.: CA/I/52/84

Date of Judgment: Thursday, 14th March, 1985

Names of Counsel: L. Ogunsola, Esq. – for the Appellant

R. A. Bello, Esq., Principal State Counsel – for the Respondent

High Court:

Name of the High Court: High Court of Ogun State, Ilaro

Name of the Judge: Sekoni, J.

Charge No.: HCL/19C/83

Date of Decision: Friday, 30th March, 1984

Names of Counsel: Chief O. A. Sanni – for the Accused

Chief O. Ojugbele – for the State

Counsel:

聽Chief A.M.O. Akande – for the Appellant

G. A. Bakare, Director of Public Prosecutions, (with him, A. O. Keleko, State Counsel) – for the Respondent

KAWU, J.S.C. (Delivering the Lead Judgment): The appellant was charged before the High Court of Ogun State, sitting at Ilaro, with the offence of armed robbery punishable under S. 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970. He pleaded not guilty to the charge. However, at the conclusion of his trial, he was, on the 30th day of March, 1984, found guilty as charged, and sentenced to death. His appeal to the Court of Appeal was dismissed. He has further appealed to this court.

Originally only one ground of appeal was filed, but subsequently leave was granted to the appellant to file six additional grounds.

In the brief of argument filed by Chief Akande for the appellant, issues for determination in this appeal were formulated as follows:

“(i) 聽聽聽聽聽聽聽The issue for determination in the appeal as formulated in the grounds of appeal concerns the question. (1) whether any irregularity occurred, in the course of trial, as to render that trial a nullity, having regard to section 12 of the Robbery and Fire Arms (Special Provisions) Decree 1984, and section 1(4) of the Robbery and Fire Arms (Special Provisions) Amendment) Decree, 1984.

(ii) 聽聽聽聽聽聽聽聽聽If the answer to (1) above is in the negative, the issue would then arise as to whether, such non-direction or misdirection on the defence of alibi, sufficiency or propriety or otherwise of the proof of identification, as elicited in the record of proceedings, would vitiate the case for the prosecution, or

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聽 (iii) 聽Whether the prosecution had proved their case against the accused (sic)聽beyond reasonable doubt, as required by law, or were the instances or聽particulars of misdirection, such as to warrant the inference or conclusion that,聽there was mis-trial and thereby entitling the appellant to a retrial or a verdict of聽acquittal. (sic)”

On the question of jurisdiction which was raised in the first additional ground. Chief Akande submitted that by section 12 of Decree No.5 of 1984, the provisions of the Robbery and Firearms (Special Provisions) Decree No.47 of 1970 had been repealed, and, consequently, all such cases that were pending before the High Court were to be transferred to the tribunal. It was his contention that by virtue of section 1(4) of the Robbery and Firearms (Special Provisions) (Amendment) Decree No.21 the High Court of Ogun State had no jurisdiction to try the appellant when it did. The trial of the appellant was therefore a nullity.

Now section. 1(4) of Decree No.21, which Chief Akande claimed ousted the jurisdiction of the High Court reads as follows:

“1(4)
Notwithstanding anything to the contrary in any enactment including any rule of law, where proceedings, other than proceedings to which subsection (2) of this section relates, are pending before the High Court of a State; the Judge of that court shall, on the date of the commencement of this Decree forthwith and without any further assurance, transfer or cause to be transferred such proceedings to the appropriate tribunal and upon such transfer, the proceedings shall be deemed to have been filed in accordance with the provisions of this Decree.”

Now the underlined portion of the subsection makes it clear that the proceedings to which subsection (2) relates are exempted from the provisions of S. 1(4) of the Decree. Those proceedings are part-heard matters pending before any High Court on the date when the Decree came into force, and which proceedings “shall be continued and completed as if the provisions of this Decree had never been made”. Decree No. 21 came into force on 31st December, 1983. The record shows that the plea of the appellant was taken on 5th December, 1983. It is therefore clear that as at the commencement of Decree No. 21, the case of the appellant was a part-heard matter before the High Court which court, by virtue of the provisions of section 1(2) of the Decree, had jurisdiction to continue to hear it as if the Decree had never been made. This ground of appeal therefore fails.

The complaint in the additional ground five of the grounds of appeal was that the defence of alibi put up by the appellant was never investigated by the police.

It is a well-established principle of law that once an alibi has been raised, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. See Adedeji v. The State (1971) 1 All NLR 75.

It is also settled that when the defence of alibi is promptly and properly put up, failure on the part of the prosecution to investigate it may cast some doubt on the probability of the case for the prosecution. See Fatoyinbo v. Attorney-General, Western Nigeria (1966) WNLR 4 at page 6, where Coker, JSC, delivering the judgment of the court, said:

“It is not a rule of criminal law that the prosecution must call every available witness or piece of evidence and where a defence of alibi

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is suggested or timeously put forward by an accused person, the onus resting on the prosecution is no more than that of adducing as much evidence as. if accepted, would demolish the suggestion or inference that the accused person was not available at the scene of the crime at the material time and satisfy the court or jury of the contrary. Admittedly, where such a defence is put forward in such a manner and at such a time as to enjoin on the prosecution the duty of investigating it, a failure to do so may cast some doubts upon the probability of the case for the prosecution. That does not warrant nor justify the suggestion that the prosecution specifically has to rebut in a particular way the defence of alibi.”

Before applying the above principles to this case, I think at this stage, it is necessary to state briefly the facts of the case. The case for the prosecution was that on the 1st day of March, 1982, 2 PW – Safuratu Ogunkayode went to Ajegunle market, near Owode Egbado, to buy some food stuff. She testified that after she had completed her shopping, she boarded a commercial vehicle which was to convey her and her loads to her home at Agege. It was her evidence that the vehicle arrived at Attan village in the evening where the driver stopped for a long time, after he had informed the passengers that he was waiting there for somebody. She said after some time the appellant turned up and boarded the vehicle, which thereafter continued the journey. On their arrival at a place called Asore junction, the vehicle left the main road and proceeded on an untarred side road. Having travelled some distance on the untarred road, the vehicle pulled up, and as soon as it came to a standstill, its headlamp was switched off. She continued:

“Accused who was sitting next to me slapped me on the face and聽snatched my money which was N600.00. I struggled with him and he聽tore my clothes but he too dropped a shoe. Accused produced a pistol聽and four of us who were passengers were pushed out of the vehicle聽while the driver and the accused escaped with our loads.”

The incident was reported to the police and the appellant was subsequently arrested. He was identified by 2 PW at an identification parade as the man who had robbed her of her property on 1st March, 1982.

At the trial, the appellant gave evidence in his defence in which he said that he would adopt the statement he had made to the police as his defence – a procedure which was considered irregular by this court in Asuquo William v. The State (1975) 9-11 SC 139-152. However, it should be noted that it was in that statement that the appellant put up his alibi which was apparently not investigated by the police. That statement (exhibit K) reads as follows:

“I know Safuratu Ogunkayode. On the 3/4/82, they came to my house at Attan-Otta. They were about four who came down to my house. Three men and Safuratu Ogunkoya were the people who came to my house. On the 1/3/82. I was not at home. I went to Oke-Odan to go and attend the burial ceremony of my senior sister-in-law. I have left to Oke-Odan since 24/3/82. When Safuratu reached my house she informed me that some young men came to look for me about four days ago. And I told her that I was not at home. And Safuratu further told me that those people who came to look for me double crossed her on the w ay whilst returning from

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Cotonou and collected all her goods from her. I told her that by then I was at home, that I went to Oke-Odan. On the 1/3/82, I was at Attan using my vehicle with registration No. LA 9871 to run Attan to Igbesa route. I did not drive my motor to any other place other than that place or route. I closed at about 8p.m. on that 1/1 82. And I did not give my motor to anybody to drive. I did not drive to Asoro at all on that day. I did not rob and I did not take any goods from anybody on the 1/3/82.

聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽 聽(Sgd.) Kamoru Alimi.”

It is true there is no evidence that the alibi put up by the appellant in his statement was investigated by the police. But should the failure of the police to investigate the alibi, in this case, cast a doubt on the prosecution case? I think not. It is perfectly obvious to me, as it must have been to the police when he made the statement, that the alibi could not possibly be true. In the statement he made, he first said that on the day of the incident, he was not at home. “I went to Oke-Odan to go and attend the burial of my senior sister-in-law”, he said.

Later on in the same statement, he said:

“On the 1/3/82,1 was at Attan using my vehicle with registration No. LA 9871 to run Attan to Igbesa route. I did not drive my motor to any other place other than that place or route. I closed at about 8p.m. on that 1/3/82. And I did not rob and I did not take any goods from anybody on the 1/3/82.”

The burden was on the appellant to give the correct and full particulars of the facts upon which he relied in his defence of alibi, and having failed to discharge this burden, it is my view that the police were not obliged to investigate it. For as the Supreme Court said in Gachi v. The State (1965) NMLR 333 at 335:

“The word “alibi” means “elsewhere” and since it is a matter peculiarly within the knowledge of an accused person if he was a some particular place other than that where the prosecution says he was at any material time, what has been called the ‘evidential burden’, that is, the burden of adducing or eliciting some evidence tending to show this, rests on him.”

In this case by giving conflicting and contradictory evidence of his alibi, in my view, the appellant had failed to discharge the evidential burden placed on him. It is for this reason, that I agree entirely with the conclusion of the learned trial Judge on the issue of alibi, when in his judgment, he said:

“In the instant case it would seem that any attempt by the police to investigate accused’s conflicting alibi would have amounted to a wild goose chase, in any event, it was unlikely that accused could have on 1st March, 1982 been with his in-laws at Oke-Odan and at the same time been plying Attan-Igbesa route with his vehicle throughout the day, the truth I think is that he was in neither of the two places that day.”

Again, I see no merit in this ground of appeal which also fails. Another complaint was that the appellant was not properly identified.

There is however no evidence of any impropriety regarding the method adopted in the identification parade conducted in the case. 3 PW – A.S.P. Gamaliel Sholedolu, who conducted the parade, gave evidence of how it was done and at the end of his evidence, he was cross-examined.

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There was, however, nothing in the questions put to him, which remotely suggested that the identification parade was in any way faulty. In fact, the only question he was asked by appellant’s counsel had nothing to do with the way and manner the parade was conducted. This ground of appeal also fails.

It was also complained that at the end of the case for the prosecution, the learned trial Judge failed to comply with the provision of section 287 of the Criminal Procedure Law, and that his failure to do so had rendered the trial of the appellant a nullity.

Now, section 287 of the Criminal Procedure Law of Ogun State (Cap. 30), Laws of Ogun State of Nigeria, provides as follows:

“(1)
At the close of the evidence in support of the charge if it appears to聽the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and –

(a)
If the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely:

(i)
he may make a statement without being sworn, from the place where he then is; in which case he will not be liable to cross-examination; or

(ii)
he may give evidence in the witness box, after being sworn as a witness, in which case he will be liable to cross-examination; or

(iii)
he need say nothing at all, if he so wishes, and in addition the court shall ask him if he has any witnesses to examine or other evidence to adduce in his defence and the court shall then hear the defendant and his witnesses and other evidence, if any, and

(b)
if the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence.

(2)
If the defendant or his legal practitioner states that he has witnesses to call but that they are not present, the court may, in the circumstances set forth in section 186 to 193 take the steps therein mentioned to compel their attendance.”

The provisions of section 287(1)(a) are mandatory, and where an accused is not represented by counsel, it is the duty of the trial Judge to explain fully to him his rights under the section. See Godwin Josiah v. The State (1985) 1 SC 406. So fundamental is compliance with section 287(1)(a) that this court has held that non-compliance with it is an irregularity which would lead to the setting aside of a conviction unless the court was satisfied that there had been no substantial miscarriage of justice. See Arua Eme v. The State (1965) NMLR 62. In the case of Prophet Mallim Sheriff Kajola v. Commissioner of Police (1973) 1 All NLR (Pt. 2) 31 at p. 37, Elias, C.J.N. (as he then was), delivering the judgment of the court, after setting out the provisions of S. 287 of the Criminal Procedure Act, which corresponds with the section under consideration, said as follows:

“We hold that section 287(1) of the Criminal Procedure Act lays a duty upon the court of trial to put the three alternatives to the accused

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specifically, and also to draw his attention to the provision of section 288 of the Act, especially, as in this case, where the accused is either not represented by counsel at his trial or is so represented but his counsel is not in court at the material stage in the proceedings. The court record must show clearly that the trial court has done so.” (Italics mine)

As clearly stated in the above passage, the duty to put the options to the accused specifically becomes mandatory only when an accused is not represented by counsel. This particular point was stressed by Eso, JSC in Josiah’s case (supra) when His Lordship, at page 415 said:

“One must always bear in mind that what called for this elaborate election is the fact that the accused is not represented by counsel. In other words the advice which his counsel, had he been so represented, would have given him is now ascribed as a duty to the court trying his case as one which is contained in S. 287(1) of the Criminal Procedure Law.”

In this case, the record shows that throughout the trial the appellant was represented by counsel who must be assumed to have given his client the best advice as to the course to pursue at the close of the case for the prosecution.

Finally on the facts, the appellant’s counsel pointed out a few minor contradictions in the evidence of prosecution witnesses which do not really deserve any serious consideration. On the whole, I am unable to discern any merit in any of the points urged upon us in this appeal. The appeal therefore fails in its entirety, and it is hereby dismissed. The decision of the trial court which was confirmed by the Court of Appeal, is hereby affirmed.

ESO, J.S.C. (Presiding): I had a preview of the judgment just read by my learned brother Kawu, JSC. I am in complete agreement and will also dismiss the appeal which is hereby dismissed.

UWAIS, J.S.C I have had the opportunity of reading in draft the judgment read by my learned brother, Kawu, JSC. For the reasons and conclusions contained in the said judgment. I too will dismiss the appeal and confirm the decision of the Court of Appeal.

COKER, J.S.C.: I agree that this appeal fails on all the grounds for the reasons given by my learned brother, Kawu, JSC, in his judgment, a preview of which draft I have had the privilege of reading.

Decree No. 21 came into effect on the 31st December, 1983. Sub-section (b) of section 1 amended sub-section (2) and (3) of sections 12 of the Decree No. 5 of 1984. By the amendment, sub-section (2) is saved and any part-heard proceedings before the High Court on 3rd December, 1983 shall be contained and completed in that court: otherwise any offence committed or proceedings instituted before the 31st December, 1983 under any enactment repealed by sub-section (1) of section 1, shall be triable by or transferred to the appropriate tribunal. In the case on hand, the plea of the appellant was taken on the 5th December, 1983 before Sekoni, J. who heard and concluded the trial on 30th March. 1984.

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In my view, trial of a criminal charge commences when the accused pleads to the charge. For no witness need be called to give evidence, if the accused pleads guilty to the charge.

Chief Akande’s argument that the case was not part-heard because no evidence was given before the 31st December 1983 is therefore not tenable. The next point canvassed by Chief Akande is that the defence of alibi by the appellant was not investigated. I agree that if the plea of alibi is obviously inconsistent and most improbable as in this case, it leaves nothing to investigate. In one breadth, he alleged he never carried on his trade of driving on that day, the 1st March, 1982. He alleged he went to Oke Odan for the burial ceremony of his senior sister-in-law. In the same statement, he alleged that on 1/3/82, he was at Atan using his vehicle to ply between Atan and Igbesa route and that he closed about 8.00 p.m. He did not disclose the name of the deceased sister-in-law, nor did he give the name of any person who saw him at the burial ceremony. It will be a futile exercise for the police to proceed on investigation of the defence on the face of inconsistent and insufficient information of the whereabout of the appellant. In any event, it was open to the accused himself to give the names and addresses of the persons who saw him at Oke-Odan at the material time for the purpose of contradicting Safuratu Ogunkayode who said the appellant drove the vehicle and robbed her.

I agree with my learned brother, Kawu, JSC, that the evidence of identification was not faulted. The appellant and Safuratu Ogunkayode, the victim of the robbery, were not strangers. They knew each other and were customers before the 1st February, 1982. The question of mistaken identity therefore did not arise. The trial Judge on the evidence before him had no doubt as to the identity of the appellant as the person who drove the witness, Safuratu Ogunkayode, in his vehicle and at Asore junction near Atan, ruthlessly assaulted her and at gun point robbed her of a load of foodstuff valued about N400 and a sum of N600.00 in cash.

In the final result, I will dismiss the appeal and further affirm the conviction and sentence.

KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother, Kawu, JSC, in this appeal. I agree with his conclusion that this appeal ought to be dismissed. I wish however to comment only on the question whether the trial High Court of Ogun State at Ilaro had jurisdiction to try the appellant.

Chief A.M.O. Lekan Akande for the appellant relying on the retrospective effect of the Robbery and Firearms (Special Provisions) (Amendment) Decree No.21 of 1984, has argued that the trial and conviction of the appellant which was not before a tribunal as provided by S.12 but before the High Court was a nullity. The relevant ground of appeal is ground 1, which provides as follows:

“The learned trial Justices of the Court of Appeal erred in law in considering the appeal when the proceedings before the trial court was a nullity or rendered a nullity by the provisions of the Robbery and Firearms (Special Provisions) Decree No. 5 of 1984.

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Particular of the Error:

By section 12 of the Decree No. 5 of 1984 the provisions of Robbery and Firearms (Special Provisions) Decree 1970 were repealed and such cases as were pending before the High Court, were to be transferred to the Tribunal and the High Court ceased to have jurisdiction in such matters, by virtue of section 1(4) of the Robbery and Firearms (Special Provisions) (Amendment) Decree No.21 o 1984.”

In arguing this ground of appeal Chief Akande submitted that the trial court acted without jurisdiction. Referring to section 12(3) of Decree No.5 of 1984 Section 1(4) of Decree No.21 of 1984, read together with sections 217 and 240 of the Criminal Procedure Act, Cap.43, Vol.2, Laws of Federation, 1958 counsel, submitted that the matter was not “part-heard” at the commencement of Decree No.21 of 1984. He pointed out that although plea was taken on the 5th December, 1983, evidence was not led until the 16th January, 1984. Counsel admitted that although a trial is commenced when plea is taken, the trial is not “part-heard” until evidence has been taken. It was submitted that a plea is a preliminary step in the hearing of a case. Counsel referred to S. 240 of the Criminal Procedure Act and contended that opening the case meant commencement of trial.

Mr. Bakare for the respondent replying relied on his brief and contended that the matter being part-heard was not caught by Decree No. 21 of 1984 which repealed Decree No.5 of 1984.

It is essential for a proper appreciation of the contentions of counsel in this case to reproduce the provisions of S.12 of the Robbery and Firearms (Special Provisions) Decree 1984, No.5 and the provisions of S. 1(b) of Robbery and Firearms (Special Provisions) (Amendment) Decree No. 21 of 1984 which are as follows:

  1. 聽聽聽聽聽 聽The Robbery and Firearms (Special Provisions) Act, 1970 is hereby repealed and the following enactments are hereby consequentially repealed that is to say –

(a)
the Robbery and Firearms (Special Provisions) (Amendment) Act, 1971;

(b)
the Robbery and Firearms (Special Provisions) (Amendment) Act, 1974;

(c)
the Robbery and Firearms (Special Provisions) Act, 1977; and

(d)
so much of Schedule 3 to the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals, etc.) Act 1979 as relates to the Robbery and Firearms (Special Provisions) Act, 1970.

(2)
Any part-heard proceedings before any High Court on the date of coming into force of this Decree shall be continued and completed as if the provisions of this Decree had not been made.

(3)
For the purposes of sub-section (2) of this section, “part-heard proceedings” means proceedings in the course of which the plea of the accused has been taken and the court has commenced to hear evidence.

Section 1(b), (2), (3), (4) of the Robbery and Firearms (Special Provisions) (Amendment) Decree 1984 provides:

[1986] 3 .
Adio v. State
(Karibi-Whyte, J.S.C)
727

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聽聽聽聽
聽 聽 聽 聽
The Robbery and Firearms (Special Provisions) Decree 1984 is hereby amended 聽 聽as follows:

聽聽
(b)聽
聽聽聽聽
for sub-sections (2) and (3) of section 12 thereto, there shall聽be substituted the following new sub-sections, that is –

(2)
Any part-heard proceedings before any High Court on the date of the coming into force of this Decree shall be continued and completed as if the provisions of this Decree had not been made.

(3)
Notwithstanding anything to the contrary in any enactment, including any rule of law, but subject to sub-section (2) of this section, any offence committed or proceedings instituted before the commencement of this Decree under any enactment repealed by subsection (1) of this section shall, as the case may require, be triable by or transferred to an appropriate tribunal.

(4)
Notwithstanding anything to the contrary in any enactment, including any rule of law, where proceedings other than proceedings to which subsection (2) of this section relates, are pending before the High Court of a State, the Judge of that court shall, on the date of the commencement of this Decree, forthwith and without any further assurance, transfer or cause to be transferred such proceedings to the appropriate tribunal and upon such transfer, the proceedings shall be deemed to have been filed in accordance with the provisions of this Decree.”

This Decree may be cited as the Robbery and Firearms (Special Provisions) (Amendment) Decree 1984 and shall be deemed to have come into force on 31st December, 1983.

The effect of these amendments was to require all prosecutions under the Robbery and Firearms Act, 1970 to be brought in the tribunals constituted under section 6 of the Robbery and Firearms (Special Provisions) Decree No.5 of 1984. This Decree repealed the existing legislation with respect to Robbery and Firearms. Its operative date was 29th March, 1984. It however excluded from its operation “Any part-heard proceedings before any High Court on the date of coming into force of this Decree” which “shall be continued and completed as if the provisions of the Decree had not been made”. S. 12(2).

The provisions of S. 1(b) of Decree No. 21 of 1984 which amended Decree No. 5 of 1984, retained S. 12(2) of Decree No.5 of 1984. It however did not retain sub-section (3) of section 12 of Decree No.5 of 1984 which defined “part-heard proceedings”. But Decree No. 21 of 1984 in S. 1(b) re-enacted S. 12(2) of Decree No.5 of 1984. Sub-section 4 of section 1 of the Decree No.21 of 1984, clearly excluded “part-heard proceedings”, which are the proceedings to which sub-section 2 of section 1 of Decree No. 21 of 1984 relates. The operative date of Decree No. 21 of 1984 is 31st December, 1983.

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Accordingly, where the matter is a “part-heard” proceeding it is not caught by the amendment and shall be continued and completed as if the provisions of the Decree had not been made.

The general rule is well settled that where the words used in a statute are unequivocal and unambiguous and show a retroactive intent they should be given that effect. There is also a presumption against retroactivity. The presumption against retroactivity is only resorted to for the protection of vested substantive rights. The presumption is not applied with respect to pending actions or to enactments which affect only the procedure and practice of the courts. Hence where the question is not one affecting vested rights, or is a question of practice and procedure, the presumption does not apply. There is no doubt that in this case the intention to make the operation of Decree No.21 of 1984 retrospective is unambiguous. The question however is whether this is a question affecting vested rights or a matter of practice and procedure. This does not arise where the words are clear and presumption is not called in aid.

The facts were that appellant was charged on information for the offence of Robbery with arms under section 1(2) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 on the 26th September, 1983. After several adjournments appellant pleaded not guilty on the 5th December, 1983. Because of difficulties in locating the most important prosecution witness, the hearing of evidence of witnesses did not commence until the 16th January, 1984 when the prosecution called its first witness. Appellant was convicted of the offence on the 30th March, 1984. The conviction was affirmed on appeal to the Court of Appeal. It is pertinent to mention that Decree No.5 of 1984 took effect from the 29th March, 1984, while the amending Decree No.21 of 1984 took effect retrospectively as from the 31st December, 1983. However as can be seen from the two Decrees quoted above which amended the Decree under which appellant was charged, there was a clear and unequivocal intention of saving “part-heard proceedings” before any High Court from the retroactive effect of each of the Decrees. Herein lies the issue in this appeal whether an information before the High Court to which the accused has pleaded not guilty and in respect of which no further evidence had been led is a part-heard matter before the court. Counsel for the appellant has submitted it is not. Counsel for the respondent on the other hand contends it is. In my opinion, this can be resolved by a determination of what is part-heard proceedings before the High Court, at least in criminal cases. Section 12(3) of Decree No. 5 of 1984, which defined part-heard proceedings as “proceedings in the course of which the plea of the accused has been taken and the court has commenced to hear evidence “was not retained by the amending Decree No.21 of 1984. The issue is whether at the commencement of Decree No.21 of 1984, the proceedings against the appellant was “part-heard”.

The beauty of our adversary procedure is that a person accused of the commission of a crime is immediately given a hearing by being confronted with the allegation and given an opportunity to admit or deny the accusation. See S. 33(6) of Constitution 1979. The hearing of the accusation of an offence commences with the proceedings leading to the reading of the charge to the accused and his pleading to it. As is provided by S. 217 of the Criminal Procedure Act:

[1986] 3 .
Adio v. State
(Karibi-Whyte, J.S.C)
729

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“Every person by pleading generally the plea of not guilty shall without further form be deemed to have put himself upon his trial.”

The proceedings against the accused commences with the filing of the information. This is why any objection to a formal defect in the charge should be taken before plea, otherwise the objection is taken as having been waived, (See S. 167 Criminal Procedure Act, Cap.43). Similarly, a want of jurisdiction which ordinarily could be raised at any stage of the trial, is better raised before plea is taken. See R. v. Adiukwu (1939) 5 WACA 132. The plea of the accused may, if it is one of guilty of the offence charged result in the conviction and sentence of the accused at the end of the trial, unless there is sufficient cause to the contrary. (See S. 218 Criminal Procedure Act, Cap.43).

This procedure cannot be correctly described as a trial without a hearing. It is important that the accused must himself plead to the charge or information. See R. v. Heyes (1951) 1 KB 94; S. 215 C.A. Act. He cannot plead through his counsel. See R. v. Ellis (1973) 57 Cr. App. R. 571. Thus the plea of the accused is a proceeding in the hearing of the charge or information on which the accused has been arraigned.

Chief Akande has submitted that the opening of the case for the prosecution, referred to in S. 240 of the Criminal Procedure Act means, commencement of trial. Accordingly, the hearing commences only from that time. I do not think this interpretation of section 240 is correct. The words of the section which are unambiguous read,

“After the accused person has pleaded not guilty to the charge or information the person appearing for the prosecution may open the case against the accused person and then adduce evidence in support of the charge.”

Counsel seems to have ignored the provisions of section 217 of the Criminal Procedure Act, Cap.43, (already quoted in this judgment) which states clearly when the trial and hearing begins. What in my opinion section 240 provides is what the prosecution is entitled and has a discretion to do before leading evidence in support of the charge. The prosecution can only do this where there is a hearing and this is because plea has been taken. It is a right which can be exercised only after the commencement of trial and during the hearing of the charge or information against the accused. A proceeding is part-heard where hearing has commenced but not concluded. Thus a plea of not guilty entered in a criminal information or charge against an accused person is a hearing with respect to the information or charge laid. Accordingly, the proceedings in respect of such information or charge which continues after plea is part-heard. I therefore, am satisfied that the contention of Mr. Bakare that the plea of the appellant having been taken on the 5th December, 1983 the proceedings were part-heard and therefore pending on the 31st December, 1983 when Decree No. 21 came into force is right.

The contention that the trial before the High Court is a nullity and a contravention of the provisions of Decree No. 21 of 1983 is in view of the clear words of sub-section (4) of that Decree excluding part-heard proceedings before any High Court of a State, clearly erroneous. There was therefore no irregularity in the trial of the appellant. The trial High Court of Ogun State at Ilaro therefore

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had jurisdiction. Accordingly ground 1 of the grounds of appeal fails and is dismissed.

I agree for the reasons given by my learned brother, Kawu, JSC, for dismissing the other grounds of appeal argued, that the appeal fails, and should be dismissed. The appeal is hereby dismissed. The judgment of the trial court, which was affirmed by the court below is hereby further affirmed.

Appeal dismissed.

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