An Analysis of the Omission of the Judicial Etc. Officers and Appeal by Prosecutors Act of 1963 from the LFN 2004: When is the Prosecutor’s Right of Appeal Lost?

Description

ABSTRACT

An Analysis of the Omission of the Judicial Etc. Officers and Appeal by Prosecutors Act of 1963 from the LFN 2004: When is the Prosecutor’s Right of Appeal Lost?

Kunle Adegoke, SAN*

While the law leans against the implied repeal of statutes, the Judicial, Etc. Officers and Appeal by Prosecutors Act No 10 of 1963, having been omitted by two consecutive compilations of Laws of the Federation of Nigeria appears repealed. A critical examination of the status of the statute becomes inevitable considering its emphatic application in two decisions of the Supreme Court of Nigeria which upheld the enactment as a valid limitation law. This paper argues that the Constitution of the Federal Republic of Nigeria, 1999 recognises implied repeal of statutes and the two decisions of the Supreme Court of Nigeria are per incuriam the relevant provisions of the Constitution.

Keywords: Prosecutor, Judicial Officer, Right of Appeal, Constitution, Nigeria.

INTRODUCTION
Section 27(2)(a) of the Supreme Court Act₁ provides that an appeal shall lie in a criminal case within 30 days from the date of the decision of the Court of Appeal appealed against. However, by sub-section (4) of section 27 of the Act, the Supreme Court may extend the period prescribed in subsection (2) of the section. The Judicial Etc. Officers and Appeals by Prosecutors Act, 1963₂ made a rule inconsistent with the above as it provides:

The period within which notice of appeal or an application for leave to appeal to the Supreme Court must be given by a person or authority other than the accused person in a case which involves or could involve sentence of death, or a verdict of guilty of manslaughter or culpable homicide shall be seven days from the date of the decision in question and the Supreme Court shall not have power to extend that period.

This most prominent provision of the Judicial Etc. Officers and Appeals by Prosecutors Act has been a veritable source of concern to prosecutors who do their damnedest not to be caught by its words of limitation. It is certain that the provisions of the Supreme Court Act and the Judicial Etc. Officers and Appeals by Prosecutors Act cited above are clearly inconsistent with each other with respect to the right of the prosecutor to appeal against a decision of the Court of Appeal to the Supreme Court in a criminal appeal involving or which could involve a sentence of death or verdict of guilty of manslaughter or culpable homicide

* LL.B, LL.M, BL. Senior Advocate of Nigeria (SAN). Managing Partner, Kunle Adegoke & Co. Email: kr*******@gm***.com; in**@ku***************.com; 08139291010. 1, Abiodun Famodimu Close, Ikeja, Lagos, Nigeria.

1. Act No 60 1960 (now Cap S15 Laws of the Federation 2010, s 4(3).
2. Act No 10 1963.

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW VOL.11 NO.4