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F.S.C. 100/1961


3PLR/1961/22 (FSC)





SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided and Read the Judgment of the Court)






CONSTITUTIONAL LAW: Existing Laws – Effect of existing Laws provision of the Nigeria (Constitution) Order in Council, 1960 sections 3(1), 3(7) – Whether re­pealed Law still existing law under the Constitution.


CRIMINAL LAW AND PROCEDURE: Charge – Offence committed before repeal – Charge under repealed Law – – Whether charge and trial thereon proper – Criminal Code, Section 319.


INTERPRETATION OF STATUTES – Repeal of law prior to Constitution of 1960 – Criminal offence committed before repeal -Applicability of the Interpretation Ordinance, Cap. 89, sections 2 and 14.


WORDS AND PHRASES – “Existing Law” – Meaning of – Nigeria (Con­stitution) Order In Council, 1960, section 3(7).



Williams (with him Morohundiya and Nzegwu) -for the Appellant

Henderson – for the Respondent.




ADEMOLA. C.J.F. (Delivering the Judgment of the Court):


The Appel­lant was charged with murder contra section 319 of the Criminal code. He was tried and on 21-2-61 was convicted by Reed, J., in the High Court of the Northern Region of the offence of murder and sentenced to death. He has appealed to this Court against his conviction and sentence.


Before arguing the grounds of appeal filed, leave was sought and granted to argue additional grounds of appeal which raise a point of law on the legality or otherwise of the trial. This was argued as a preliminary point and we now give our ruling on the arguments before us.



The additional grounds which suggest the illegality of the trial are as fol­lows:­


  1. The trial and conviction of the Appellant is illegal because on the date such trial began the Criminal Code had ceased to be part of the Statute Law of the Northern Region of Nigeria and there is no statutory authority for trying anyone under the aforesaid Code.


  1. The trial and conviction of the Appellant is illegal because neither the Penal Code Law nor any other written law of the Northern Region enables the appellant to be tried for the offence charged.


  1. The trial and conviction of the Appellant is illegal and wrong in law because the Criminal Code was not an “existing law” under Section 3 of the Nigeria (Constitution) Order in Council 1960 and consequently did not continue in force after 1st October, 1960.


The argument presented by Chief Rotimi Williams was based on the premises that in the Northern Region, since the Penal Code Law, 1959, which came into effect on 30th September, 1960, by virtue of Northern Re­gion Legal Notice 96 of 1960, it was not possible to try a man for an offence under the Criminal Code, Section 7 of the Penal Code Law having repealed the criminal Code.


It is common ground that the appellant was tried on a date after the Penal Code Law came into force. The offence was [allegedly] committed on the 11th August, 1960; preliminary investigations took place on 5/1/61; informa­tion was filed on 20/1/61 and the appellant was tried on 7/2/61.


We were referred to the case of The Queen v. Alayan Ashayu Tuke (RS.C. 71/1961), (1961) All N.L.R. 258, decided in this Court on the 2nd day of June, 1961, where the effect of the repeal of the Criminal Code in Northern Nigeria by Section 7 of the Penal Code Law was considered. It was held that where an offence was committed at a time when the Criminal Code was in force, and the offence committed was one under a Section of that Code, it was proper for the accused person to be prosecuted for an offence under that Section. Chief Rotimi Williams, however, submitted that suffi­cient argument was not advanced before the Court in that appeal, and he was prepared to add more to the submissions made in that appeal, with a view to this Court reversing its previous decision.


It was argued that Section 3 of the Constitution Order in Council, 1960, which deals with “existing laws” can only refer to laws as were in existence on 1/10/60, and as the Criminal Code had been repealed on the 30/9/60, it was then not “an existing law”. Section 5 of the Constitution Order in Coun­cil provides for the continuance of proceedings pending before the date of the new Constitution, namely 1/10/60. The present case, it was submitted, is not saved as the proceedings, namely, the Preliminary Investigations, com­menced only on 5/1/61 and this section is, therefore, not applicable.


Counsel then considered the effect of both the Interpretation Act, 1889, and the Interpretation Ordinance, Cap. 89, and submitted that the In­terpretation Act, 1889, will only apply when the trial is for an offence under the revoked Constitution of 1954, which prescribed offences under the Criminal Code as part of the Law of Northern Nigeria.


In considering the effect of the Interpretation Ordinance, Cap. 89, Counsel said that Section 14 should be read in the light of Section 2 of the Or­dinance itself, and submitted that the Interpretation Ordinance can only in­terpret an Ordinance which is in existence. Section 14 of the Interpretation Ordinance, it was submitted, only helps to preserve the repealed law for the trial of an offence committed under it, but the Law itself has ceased to be in force.


For the Crown it was submitted that Section 3 of the Constitution Order in Council was not relevant; that the Section was designed in order to fores­tall any argument that may arise that the repeal of the old Constitution had the effect of revoking the laws made under it. It was submitted that the cor­rect way of reading the Penal Code Law is to add as a Proviso to Section 7 the provisions of Section 14 of the Interpretation Ordinance. The effect of this is that there was only a qualified repeal of the Criminal Code which remained effective in so far as it applied to offences committed before the repeal.


The relevant portion of Section 14 of the Interpretation Ordinance pro­vides as follows:­


  1. The repeal of any Ordinance or Law or any part thereof shall not, unless the contrary intention appear.-


(c)     affect any right, privilege, obligation or liability accrued or incurred under any enactment so repealed; or


(d)     affect any penalty, forfeiture, or punishment incurred in re­spect of any offence committed against any Ordinance or Law so repealed; or


(e)     affect any investigation, legal proceeding or remedy in re­spect of any such right, privilege, obligation, liability, pen­alty, forfeiture or punishment as aforesaid; and any such in­vestigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Ordinance or Law had not been passed: Provided that when the pen­alty, forfeiture or punishment imposed by the repealing Or­dinance or Law is heavier than that imposed by the re­pealed Ordinance or Law, the provisions by which the lighter penalty, forfeiture or punishment is imposed shall, unless such repealing Ordinance or Law otherwise pro­vides, be applied if the court decides to inflict any punish­ment.


This Section is a saving provision, and by virtue of it the repealed provi­sions of the Criminal Code continued to have the effect of law in respect of offences committed before the date of the repeal. To this extent, the Crimi­nal Code continued in force as an existing law under Sub-Section (1) of Sec­tion 3 of the Nigeria (Constitution) Order in Council, 1960, having regard to Sub-Section (7) of that Section, which defines an existing law as follows:­(7)      For the purposes of this section “the existing laws” mean all Ordi­nances, Laws, rules, regulations, orders and other instruments having the effect of law made or having effect as if they had been made in pursuance of the Orders in Council revoked by this Order and having effect as part of the law of the Colony and Pro­tectorate of Nigeria or any part thereof immediately before the commencement of this Order.


For the reasons given above, we can see no reason to differ from the de­cision of this Court in the case of The Queen v. Tuke (supra), and we accord­ingly affirm and follow that decision.


The liability of the offender, in our view, is preserved and to that extent the Criminal Code still has the effect of law.


The appellant was, therefore, in our opinion, properly tried for an of­fence under the Criminal Code.


Preliminary objection overruled.



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