A REVISIT ON THE TIME FRAME WITHIN WHICH THE PROSECUTION CAN APPEAL AGAINST A CONVICTION AND SENTENCE OF DEATH AND OTHER CAPITAL OFFENCES

The prosecution now as against previous position of the law can appeal against a conviction and sentence of death or any capital offence within thirty days from the date the judgment is delivered and not within seven days which was the position of the law.

In our previous review of the case of State Ali v. (2020) 18 NWLR (Pt. 1755) 69 the court of appeal held that the prosecution has seven days to appeal, as the Judicial etc. Officers and Appeal by Prosecutors Act of 1963 is an existing law and binding on them, also the existence of a Supreme Court decision and they lacked the power to declare it per incuriam, now in this instant case, which is recent the Supreme overruled itself and held that the Act is not an extant law and as such, it is now 27(2)(b) and of the Supreme Court Act Cap. that regulates the time within which the prosecution can appeal in a sentence of death or any capital offence. The law has been before now that where the prosecution wishes to appeal against the judgment of a court in a conviction and sentence of death, manslaughter or in the case of any other capital offence, they must file their notice of appeal within seven (7) days from the date the judgment is delivered. This has been provided by section 4(3) Judicial etc., Officers and Appeal by Prosecutors Act No. 10 of 1963, however the recent decision of the Supreme Court in the case of State v. Ekuma (2022) 18 NWLR (Pt. 1861) which overruled and set aside its previous decision established that the Prosecution now have thirty (30) days to appeal from the date the judgement is delivered.

A brief gist of what transpired in the case that led to this pronouncement was that:

The respondent was arraigned at the High Court of Ebonyi State, together with two other accused persons on a one-count charge of murder of one Moses Akpa Nwafor on 22nd August 2008. The respondent and the other accused persons pleaded not guilty. The appellant, as prosecution, claimed that the deceased had died and it was the respondent and the other accused persons that killed him. The appellant claimed that the respondent made a confessional statement to the effect that he and the other accused persons grievously assaulted the deceased and subsequently handed him over to some men in Benue State, who took him away and he had not been seen till date. ‎In proof of its case, the appellant called four witnesses and tendered some exhibits, made up of the extra-judicial statements of the respondent, the other accused persons and some of the witnesses. ‎PW2, the wife of the deceased, in her statement tendered and admitted, stated that her husband went to Effium market square in the morning of 22nd August 2008 and she had not seen him since then. In other statements, she stated she was looking for her husband after the respondent and other accused person came to threaten him in their home but that she was asked to go back home when she volunteered to take them to where he was. On oath,she gave evidence in great and specific details of the attack on her husband and that she was also present near a beer parlour at the market early in the morning when the attack on the deceased took place. ‎PW2 mentioned specifically the name of two men as one of those who came to threaten her to keep quiet after her husband was killed but she did not mention the respondent. The respondent testified in his own defence. He raised the defence of alibi and denied the charge. ‎At the conclusion of trial, the trial court convicted the respondent and the other accused persons of the offence of murder and sentenced them to death. Dissatisfied with the judgment of the trial court, the respondent appealed to the Court of Appeal, in its judgement the Court of Appeal set aside the judgement of the trial court and discharged and acquitted the respondent. 

The appellant was aggrieved by the judgment of the Court of Appeal and it appealed to the Supreme Court. The respondent raised a preliminary objection to the competence of the appeal. The ground of the objection was that the appellant’s notice of appeal filed at the Supreme Court was incompetent and defective in that it was filed outside the prescribed and statutory time limit, that is, outside the seven days allowed by section 4(4) of the Judicial etc. Officers and Appeal by Prosecutors Act No. 10 of 1963.

Counsel to the respondent argued that the appellant has, from the date the judgement was delivered seven days to file his appeal, having filed the appeal outside the seven days resulted to a defective appeal as provided by the Judicial etc. Officers and Appeal by Prosecutors Act No. 10 of 1963 and supported by the previous decision of the Supreme Court in the cases of State v. Omoyele (2017) 1 NWLR (Pt.1547) 341 and State v. Adili (1989) 2 NWLR (Pt. 103) 305 where in both cases the Supreme Court held that according to the Act, the prosecution has within seven days to file their appeal in such cases. However, counsel to the Appellant in his reply brief categorically argued and brought to the attention of the Supreme Court that the cases cited, one was decided before the repeal of the Act in 1990 while the case of State v. Adili supra was apparently decided per incuriam by the Supreme Court, he contended that the Judicial etc. Officers and Appeals by Prosecution Act, No. 10 of 1963, is no longer an existing law vide sections 5(1) and 9 of the Revised Edition (Laws of the Federation of Nigeria) Decree (now Act) 1990, as well as the introductory paragraph of the Laws of the Federation of Nigeria, 2004, learned counsel for the appellant argued that as at 31st January, 1990, it is only the laws which were retained and published in the Revised Laws of the Federation of Nigeria 1990,and LFN 2004, that are extant and that qualify as existing laws and the Judicial Officers and Appeals by Prosecutors Act, No. 10 of 1963, is not one of such existing laws.

In resolving the preliminary objection, the Supreme Court considered the provision of the Judicial etc. Officers and Appeal by Prosecutors Act, No 10 of 1963, the LFRN 1990, the LFRN 2004, The Supreme Court Act and the 1999 Constitution of the Federal Republic of Nigeria. By a careful perusal of the arguments of both counsels and the laws cited, the Supreme Court in this case concluded that the Act relied by the Respondent is no longer an existing law in Nigeria in accordance with section 318 of the Constitution having being omitted in both the LFRN 1990 and 2004, the court held thus:

By virtue of sections 5(1) and 9 of the Revised Edition (Laws of the Federation of Nigeria) Act1990, the revised edition when brought into force in accordance with section 6 of the Act shall be and be taken by all courts and for all purposes whatsoever to be the authentic edition of the Federation enactments enacted on or before the appointed day. Nothing in the section shall be construed to imply the validity of any enactment included in the revised edition where such enactment is inconsistent with the Constitution of the Federal Republic of Nigeria, 1979 (as amended). In the Act, unless the context otherwise requires, “appointed day” means 31st January 1990. The resultant effect of the provision is that as at 31st January 1990, it is only the laws which were retained and published in the Revised Laws of the Federation of Nigeria 1990 that are extant and qualify as existing laws. A thorough search of all the Laws contained in the entire volumes of the Revised Laws will show that the Judicial etc. Officers and Appeal by Prosecutors Act No. 10 of 1963 is not there. The Laws of the Federation of Nigeria, 2004 is the extant and subsisting compendium of all the Federal statutes in force in Nigeria today. The introductory paragraph of the Laws of the Federation of Nigeria 2004 states that the Laws are Laws of the Federation of Nigeria in force on 31st December 2002. The Judicial etc. Officers and Appeal by Prosecutors Act No. 10 of1963 is not one of such laws or is not part of the Laws of the Federation of Nigeria, 2004 and therefore itis no longer an existing law.

The court went further to held that the Supreme Court’s previous decisions relying on the Act were reached per incuriam and as such is set aside. Therefore, the prosecution now has thirty (30) days to appeal from the date the judgement is delivered and as such the Appellant’s Notice of Appeal filed within the thirty days is competent. 

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