➥ CASE SUMMARY OF:
Ishmael Emelogu V. The State (SC.51/1986, 20 May 1988)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Armed robbery;
Federal law to operate as State law.
➥ CASE FACT/HISTORY
In the High Court of Justice Imo State, (Anyanwu J,), holden at Okpudo Ngwa, the Appellant, Ishmael Emelogu, was convicted of an offence of robbery contrary to section 1(2)(a) of the Robbery and Fire-arms (Special Provisions Act) 1970, No. 47, The Court, after taking evidence rejected the defence of the Appellant. He was found guilty and sentenced to death, He appealed to the Court of Appeal, and in a considered judgment delivered by Ogundere JCA, and concurred with by Olatawura and Aikawa JJCA, the Court dismissed the appeal of the Appellant. The principal issue before the Court of Appeal was whether or not the Attorney-General of Imo State lacked competence to prosecute the Appellant in the Imo State High Court.
➥ ISSUE(S)
I. Whether or not the Imo State Government was competent to have enacted Edict No. 4 of 1974, and, further whether the State Attorney-General was competent to prosecute the Appellant?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE ACT IS REGARDED AS LEGISLATION MADE TO OPERATE AS A STATE LEGISLATION
‘And while all the above exposition would answer Question 1, the Robbery and Firearms (Special Provisions) Act No. 47 of 1970, as amended by various other enactments, though a Federal Legislation, is to be regarded as a Legislation made to operate in each State of the Federation. And so will it also answer Question 2. For once it is operative in a State. By virtue of section 191 of the 1979 Constitution, the power is in the State Attorney-General to institute and undertake all criminal proceedings including proceedings dealing with Armed Robbery.’
‘I agree with the learned Attorney-General of the Federation when he said in his Brief, that the amendment to the Robbery and Firearms (Special Provisions) 1970 No. 47 by the Constitution of the Federation of Nigeria (Certain Consequential Repeals, etc.) Decree 1979 No. 105, by repeal of section 6 of the former Decree, did not in fact remove from the Attorney-General of the State the power to institute proceedings under the 1970 No. 47 Decree having regard to section 191 of the 1979 Constitution.’
‘However, I am of the view that the question posed in this appeal can be sorted out by a combination of the Constitution of the Federal Republic of Nigeria, 1979, and Decree No. 105 of 1979, both of which as stated earlier, came into effect on 1st October, 1979. Under the Constitution, Robbery is a residual subject, which falls into the State’s legislative domain. The amended Decree No. 47 of 1970 was an existing law by virtue of Sections 274(1)(b) and 274(4)(b) of the Constitution. It was therefore State Law. I am unable to agree with the submission of learned counsel to the Appellant that it was federal legislation by virtue of a combination of Section 2 of Part III to the 2nd Schedule to the 1979 Constitution and items 2 and 67 in Schedule II of the 1979 Constitution i.e. the Exclusive Legislative list. Item 67 deals with matters incidental to matters mentioned elsewhere in the list. Appellant’s counsel had contended that armed robbery was incidental or supplementary to arms, ammunition or explosives in Item 2. This is so, he said, because Section 2 of Decree No. 47 of 1970, which defines arms, would seem to cover such weapons as matchet, sticks pen knife, and wood. I cannot see, however, how armed robbery can be incidental or supplementary to arms, ammunition and explosives. It follows from my views that Decree No. 47 of 1970, as amended, being now State Law, is a law which can be made by the State House of Assembly. As earlier mentioned, Decree No. 105 of 1979 had made provision for all offences of armed robbery to be tried in the High Court of a State.’]
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✓ DECISION:
‘The appeal is hereby dismissed. The judgment, sentence and order of the Trial Court affirmed by the Court of Appeal is hereby further affirmed.’
➥ FURTHER DICTA:
⦿ SUBSIDIARY INSTRUMENT IN THE FACE OF STATUTORY AMENDMENT
In this case, we are not really dealing with a repealed enactment but an amended one. Section 4(2)(c) of the same Interpretation Act provides that, “where an enactment is repealed and another enactment is substituted for it then – any subsidiary instrument in force by virtue of the repealed enactment shall, so far as the instrument is not inconsistent with the substituted enactment continue in force as if made in pursuance of the substituted enactment.” — A. Nnamani JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
K. Eso, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Udechukwu.
⦿ FOR THE RESPONDENT(S)
Mr. Njoku, DPP Imo State.
Prince Bola Ajibola S.A.N.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
