TIME WITHIN WHICH THE PROSECUTION MUST APPEAL AGAINST A CONVICTION IN CAPITAL OFFENCES

The position of the law is that where the prosecution intends to appeal against the decision of the court in a capital offence, he must file his notice of appeal within 7 days from the date of judgement and even the Supreme Court has no jurisdiction to extend the time. Where filed outside 7 days, the appeal shall be struck out.
STATE V. ALI (2020) 18 NWLR (PT. 1755) 69

A brief narration of the fact that led to the judgment of the court of appeal in this case is that:


On March 11, 2009 the Respondent had a disagreement with Saddam Abubakar (the deceased) over a lady. This culminated into a quarrel and the appellant took out a knife fastened to his waist, and stabbed the deceased on his back, inflicting a deep cut. This resulted in massive bleeding which led to the death of the deceased on the spot. Consequently, the accused person was arrested and arraigned before the trial High Court for the offence of culpable homicide punishable with death. When the charge was read and explained to the accused person, he pleaded not guilty.


To prove its case, the prosecution adduced evidence through seven witnesses and tendered some exhibits. In his defence, the accused adduced evidence through five witnesses. After the final addresses of counsel, judgment was delivered on the 22nd day of July, 2015, wherein the accused person was found guilty as charged for the offence of culpable homicide punishable with death. 


However, instead of passing a sentence of death as prescribed under section 221 of the Penal Code, the learned trial Judge sentenced the accused person to a term of 15 years imprisonment with hard labour, inclusive of time already served in prison since after his arrest and the duration of the trial.


Dissatisfied with the sentence imposed on the respondent, the appellant appealed to the Court of Appeal by a notice of appeal filed on 15th February 2018 after obtaining leave of court to appeal out of time.


The respondent challenged the competence of the appeal by a notice of preliminary objection. 

The respondent argued that the appeal was incompetent because it was filed outside the mandatory statutory period of seven days stipulated for appeals against sentence of death or a verdict of guilty of manslaughter or culpable homicide in Section 4(3) of the Judicial, etc. Officers and Appeals by Prosecutors Act, No. 10 of 1963. The respondent argued that the Act is an existing law and relied on the Court of Appeal and Supreme Court decisions. 


In response, the appellant argued that the Act had been superseded in another decision of the Supreme Court and by Section 27 of the Supreme Court Act, which allows the Supreme Court to extend time within which a prosecutor can appeal in cases of sentence of death.


Also, the appellant argued that the Act was spent hence it was excluded from the Laws of the Federation of Nigeria, 1990, and also from the Laws of the Federation of Nigeria, 2004. In support of that argument, the appellant relied on Decree No. 21 of 1990 which empowered the Law Revision Committee to omit all enactments which had been expressly and specifically repealed, or had expired or become spent or had their full effect. Consequently, the appellant argued that the decision of the Supreme Court contended by the Respondent was made per incuriam because the Supreme Court relied on a non-existent statute and did not take into account its earlier decision. In addition, the appellant argued that since the Court of Appeal was faced with two conflicting decisions of the Supreme Court, it could decide which to follow. However, the Appellant failed to specifically show where the Act was abrogated, he simply relied on the power given to the committee.


The Appellant further argued that by the provision of Section 241(1)(a) of the 1999 Constitution, he has automatic right to appeal and that if the said Act contradicts the constitution, the constitution prevails. In response the Respondent contended that the Supreme Court made a pronouncement on this and held that the seven days rule still applies. 


At the end, the Appellant argued the substantive appeal. However, the Respondent on his part did not respond to the substantive appeal. 


In determining the preliminary objection, the Court of Appeal considered the arguments of both counsel as well as the authorities relied upon by the parties.


The court, while delivering it’s judgement, agreed with the argument of the learned counsel to the Respondent by holding that: 


“By section 4(3) of the Judicial, etc. Officers and Prosecutors Act, 1963, a prosecutor intending to appeal a decision in a capital offence must file his notice of appeal within 7 days, failing which time cannot be extended. In this case, the notice of appeal filed more than two and half years after the decision appealed against was delivered, was filed out of time, was incompetent, and therefore struck out.”


The reasoning of the court of appeal in this instance was apt, the court despite the argument of counsel to persuade it into declaring the recent decisions of the Supreme Court on the same subject per incuriam on the ground that there are conflicting decisions of the Apex court, the learned justices of the Court of Appeal knows their limits and reiterated same in the following words:


“The Court of Appeal does not have the power to review the decision of the Supreme Court and proceed to declare it as given per incuriam. Instead, by the doctrine of stare decisis, the Court of Appeal is bound by the decisions of the Supreme Court until and unless the Supreme Court itself is presented with an opportunity to review its own decision and in its discretion, decide whether or not to reverse itself.”


Undoubtedly, counsel contended that the provision of the constitution and the Supreme Court Act runs contrary to the Act, however the court was of the view that the Act is specific to the prosecutors and, therefore, overrides the Supreme Court Act.


Considering that there are divergent decisions of the Apex court, the Court of appeal in this case reiterated the position of the law that contrary to the Appellant’s argument that the court is allowed to chose which of the decisions to abide by, it held that where a court below the Supreme Court is faced with two conflicting decisions delivered by the apex court, the court below is not at liberty to chose, it is bound to follow the subsequent and recent decision as it is deemed the court has overruled the previous and earlier decision, as in the instant case, the recent decisions of the supreme Court is that the Act still exist and therefore applies. The Court of appeal stated that:
 

“…This is more so that the apex court of the land has, as recently as the year 2019, declared the said Act to be extant and still applicable. Thus, until and unless these positive pronouncements of the Supreme Court in its several decisions referred to above are set aside by a court no lower than the Supreme Court itself, or the provision of the Act is expressly repealed and/or abolished by the National Assembly, it remains extant.”


It would have been a gross mistake and judicial impudence had the court of appeal depart from the decision of the Apex court or declared it per incuriam. 


This, therefore, as it is, stands, unless and until upturned by the apex court or Act of the National Assembly. A prosecution appealing against the conviction in a capital offense, by the provision of Section 4(3) of the Judicial, etc. Officers and Appeals by Prosecutors Act, No. 10 of 1963, has only seven (7) days from the date the judgment is given to appeal to the higher court; otherwise, even the Supreme Court lacks the power to extend the time within which to file the notice of appeal.




About the Author:
Abubakar Aliyu Saad is the Director of the Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. He can be reached via: 09071127064.