1.0 INTRODUCTION

And Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic.

It is really a three-way traffic. Justice for the appellant accused of heinous crime of murder, justice for the victim, the murdered man, the deceased, “whose blood is crying to heaven for vengeance” and finally, justice for the society at large- the society whose social norms and values had been desecrated and broken by the criminal act complained of. It is certainly in the interest of justice that the truth of this case should be known and if the appellant is properly tried and found guilty, he should be punished. That justice which seeks only to protect the appellant will not be even handed justice. It will not even be justice tempered with mercy[i]

This paper explores the provision of section 4(3) of the Judicial, etc, Offices and Appeal by Prosecutors Act 1963 which constrict the prosecutors right to give notice of appeal or to seek leave to appeal in any case which involves a sentence of death or a verdict of guilty. In Supreme Court the Act even prohibits Supreme Court to grant or entertain application for extension of time in such situation. Hence, once the prosecutor fails to appeal within the seven (7) days stipulated by the Act, his appeal is dead on its arrival before the Supreme Court. The level and intensity of criminal strife in Nigeria justify the amendment of the provision of this special legislation promulgated to limit and narrow the right of the prosecutor to appeal in such cases. Considering the current challenges facing the actors in the administration of criminal justice in Nigerian raging from the time the prosecutor gets the judgment and record of proceeding from the Court of Appeal and the internal challenges facing the ministry of justice. Almost the seven (7) days limit would have elapsed in reality before the prosecutor will even file the notice.

The basic thesis of this paper is that the statutes has limit, the constitutional right to access to court by the prosecutor in such cases which breed the fundamental right to fair hearing/trial to Supreme Court for final decision on a mere technical point without considering the reality and justice of the case to a logical conclusion.

This paper cry out eloquently, though persuasively for the shattering strokes of retributive justice, for the community has a right to regard the escape of the accused persons in such case a technical justice when his guilt still hangs on a balance to the societal interest whose protection and security must not be compromised and jeopardized by a rash technical ploy to stampede the course of justice to all. Finally this paper is gravely inspired by the more recent case of State V. Omeyele[ii] where the Supreme Court still gave effect to the provision of this old legislation as part of the existing laws.

1.1 Nature of Appeal

No less true is the fact that to err is human. Courts are manned by human beings who are susceptible to errors which it does not have the power to ordinarily review its errors by itself. Simply put, an appeal is an invitation by a party to a proceeding criminal or civil, to a Superior Court to review the decision of an inferior court to find out whether on a proper consideration of facts placed before it and the applicable law, the lower court arrived at a correct decisions[iii]. The party who is not satisfied with the decision of any court and files the appeal in the upstairs is known as the appellant. In Okarika V. Samuel[iv]. It is settled by the court that the term appellant when used in relation to appeals comprehends the counsel representing the person appealing the person who is appealed against is called the respondent.

Both parties may be dissatisfied with any of the decision of the lower court. In this case, the respondent would be regarded as the cross-appellant cross appealing the appeal of the appellant because he got judgment in his favour substantially at the lower court. It is worthy of being noted that appellate court does not hear cases as a trial court. It is only obliged generally to consider the record of the facts before the lower court as well as the pre-trial and trial issues whether the applicable laws were correctly applied in arriving at the decision of the lower court. It is submitted rightly that even the seemingly provision of the Court of Appeal Act that allow rehearing does not mean a trial because evidence shall not be led afresh at the appeal court except where leave is given for the purposes of presenting additional evidence. The appellant only appeal against ratio of the lower court but not the obiter and for the appellant to succeed, he must convince the appellate court that the lower court committed an error of law that caused miscarriage of justice to him. These errors flows from admission of inadmissible evidence or rejection of legally admissible evidence, or the lower court lacks jurisdiction ab inito, there was a factor that affects the fundamental right to fair hearing or trial which is unfettered in law.

It must be noted that an appeal is allowed against the final decision of the lower court and or interlocutory decision of same.[v]

1.2 Right of Appeal

Constitutional right of access to court breed right to appeal. A right of appeal is created by statutes and where there is no provision for appeal in the statutes creating rights of appeals, no such right would exist.[vi]

It is submitted that courts are creatures of statutes and it is the statutes that created a particular court that will confer on it, its jurisdiction.

Further, jurisdiction may be extended not by the court but by the legislature.[vii] It is settled law that it is High Court and / or Federal High Court that has original jurisdiction in capital offences or serious offences like the ones in consideration. The Supreme Court, the Court of Appeal are also creatures of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The powers they exercise are the powers invested in them by the said constitution and other statutes validly empowered to confer such jurisdictions and provides for matters that may relates to the exercise of their jurisdictions validly.

It is humbly submitted that though the Court of Appeal and the Supreme Court has both appellate and original jurisdictions by virtue of the provisions of the Constitution of the Federal Republic of Nigeria.[viii] The appellate jurisdiction conferred on the Supreme Court makes it the only court set up for the hearing and determination of appeals from the Court of Appeal and of course final court while appeals from the Federal High Court, High Court of the Federal Capital Territory, the State High Courts, Sharia Court of Appeal, Customary Court of Appeal and Code of Conduct Tribunals and Court Martial lie to the Court of Appeal Exclusively.[ix]

Flowing from the the foregoing, it is submitted that the constitutional right of the Attorney-General of a State and, or the Federation to institute and undertake criminal proceedings against any person before any court of law by any law on behalf of the States of the Federation comprehends the right to appeal where the judgment is given against the state. This right is specifically provided for by the constitution which provides, inter alia, that any right of appeal shall be exercisable in the case of criminal proceedings at the instance of the accused person or subject to the provisions of the constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to takeover and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.

The sum total of the above is that it is necessary for all appellants to comply with the provisions of the constitution and other relevant statutes when appealing so as to make their appeals competent. Put simply, right of appeal is statutory or constitutional, not an inherent or common law right.[x]

It is a trite law that flowing from the above that an appeal may be as of right or with leave of the court. An appeal is of right when the permission of the court is not required before the appellant can lodge his appeal before the appellate court but when the leave is required, such permission is a condition precedent to the jurisdiction of the appellate court.

1.3 When does Right of Appeal Requires Leave or Not?

It is the law that an appeal is against the ratio decidendi of the lower court(s) and not in respect of any other thing. Of course, it is the humble submission of this writer that except where the obiter dicta is so clearly linked with the ratio decidendi as to be deemed to have radically influenced the ratio decidendi that it may be rightly said that obita dicta of the lower court may also form part of what is appealed against and nothing more.[xi]

Further, the parameter to diagnose appeal as of right or with the requirement of leave is the grounds of appeal which must flow from the ratio decidendi of the lower court. A ground is the error of law or of fact alleged by the appellant as the defect in the decision being appealed against and upon which error reliance is placed to set aside the decision. In other words, a ground of appeal is the reason why the decision of the inferior court is considered wrong by the appellant.[xii]

It is a trite law that leave is required where the ground of appeal is one of facts alone and or mixed law and fact. The leave that is required is judicially interpreted to mean as follows:

The word leave means permission obtained from court to take some action. Such permission must be obtained before taking the requisite step.[xiii]

The leave is not required where the ground of appeal is law only. Perhaps the most vexed area of appeal is how to determine what amount to mixed law and fact, facts only and to sieve the ground as of law only. It is for this reason that the Supreme Court in Adili V. State[xiv] advised as follows:

Christening a ground of fact or mixed and fact as a ground of law does not ipso facto convert such as a ground into a ground of law. A prudent counsel may therefore apply for leave when in doubt

It is the humbly submission of this writer relying on the principle of ex abundatia cautela, that when the appellant is in a slightest doubt, he should just seek that leave to appeal. This becomes necessary when the plethora of decisional laws on the issues of identifying whether grounds of appeals of law or of fact or mixed law and fact are not static. In State V. Omoyele[xv] Per SANUSI reiterated as follows:

I must emphasize here, that in determining whether a ground of appeal includes question of law alone or facts or mixed law and facts, it is necessary to thoroughly examine both the ground(s) of appeal and their particulars provided, in order to determine whether it is ground of law alone, or mixed law and fact this is because mere leveling of a ground of law or “error law” or misdirection may not necessarily be so, as it could be a misnomer in actual sense

Per RHODES-VIVOUR J.S.C further eruditely states as follows.[xvi]

In NNPC V. Fanfa Oil Ltd. (2012) All FWLR (Pt. 635) 204 (2012) 17 NWLR (Pt. 1328) 148.I observed that the difference between a ground of law and ground of mined law and fact can be narrow labeling a ground of a Appeal error of law or misdirection may not necessary be so for the correct classification of ground law and ground of mixed law and fact, the grounds of appeal and their particulars should be examined to identify the substance of the appeal

It could be discerned from the above that identifying the ground of appeal iss whether of law or facts or mixed law and facts remains a problematic area of law and recondite point for many appellants. However, notwithstanding this difficulty, the Supreme Court in Abdul V. C.P.C[xvii]emphatically attempted to unravel the problematic issue by laying the parameter to diagnose the grounds of appeal as to its nature as follows:

First, a thorough examination of grounds of appeal in the case should be carried out to see whether they reveal misunderstanding by the lower court or a misapplication of the law to the facts already proved or admitted
Where a ground complains of a misunderstanding by the lower court of the law or misapplication of the law to the facts already proved and admitted, it is a ground of law:
Where a ground of appeal questions the evaluation of facts before the application of the law, it is a ground of mixed law and fact;
A ground which raises of question of pure facts is a ground of fact
Where the lower court found that the particular events occurred although there is admissible evidence before the court that the event did in fact occur, the ground is that of law;
Where the admissible evidence has been led, the assessment of that evidence is entirely for the court and if the complaint about the assessment of the admissible evidence, the ground is that of fact;
Where the lower court approached the construction of a statute on the erroneous basis that the statutory wordings bear its ordinary meaning, the ground is that of law;
Where the lower court or tribunal applied law to the facts in a process which requires the skill of a trained lawyer, it is a question (ground) of law;
Where the lower court reaches a conclusion that cannot reasonably be drawn from the facts as found, the appeal court would assume that the has been a misconception of the law and it is a ground of law;
Where the conclusion of the lower court is one of possible resolution but one which the appeal court would have not reached if seised of the issue, that conclusion is not an error in law;
Where the Court of Appeal found such application /wrong and decides to make its own findings, such findings made by the Court of Appeal are issues of facts and not of law;
Where the court of appeal interferes in such a case and there is a further appeal to a higher court of appeal on the application of the facts, the ground of appeal alleging such misdirection by the lower court of appeal is a ground of law and not fact;
A ground of appeal which complains that the decision of the trial court is against the evidence a weight of evidence or contains ground of facts, which requires leave for an appeal to a court of Appeal or a further court of appeal.
The court also went further to add that the appeal against affidavit evidence placed before the court is a ground of fact and not law.

We submit respectively that it could be discerned from the above criteria proffered by the learned justice of the Supreme Court in the above cited authority, the issue of proper identification of ground of appeal as to its real nature, remain a vexed point of law because it has not been addressed to a standstill. In view of this fact it is humbly suggested as it is been advised by the same court in the above cited case of Adili V. State[xviii] that where the counsel is in a slightest doubt, he should just seek the leave before the appeal to play safe. It must be noted that where there are no particulars of error to give the respondent the required notice of each error, omission, irregularity or other reason for his appeal, such ground will be regarded as a general statement, vague and not disclosing reasonable cause of action or appeal and is liable to be struck out.[xix]

2.0 Notice of Appeal

It rightly submitted that it is also important to talk succinctly on notice of appeal because the notice of appeal is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent, and the appeal court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeals.[xx] In other words, once a notice of appeal is defective and therefore incompetent, there would be nothing left for the court to consider in the appeal other than to struck out the appeal in its entirely.[xxi]

In Idris V. Audu[xxii] it was held that a notice of appeal is filed in the registry of the court from which appeal emanates. An appeal is deemed initiated upon filing of the notice of same in the registry of the court which delivered the judgment appealed against. Where the notice of appeal is filed out of time, it will require a prayer for enlargement of time within which to file such notice of appeal. It is only after it is granted that the court may deem the notice of appeal already filed as duly and properly filed. It is our humble submission that although a notice of appeal should be filed in the registry of the court whose decision is being appealed against, a notice of appeal filed at the registry of the appellate court transmitted to the appellate court and served on all parties, and the appeal has been entered, is properly filed because it would amount to mere wasting of time, money and energy to duplicate the process if the notice is filed again at the registry of the lower court.[xxiii]

By virtue of Order 9 rule 3 (1) of the Supreme Court Rules and Order 4 rule 4(1) of the Court of Appeal Rules, every notice of appeal in criminal matter to the Supreme Court or the Court of Appeal as the case may be, must be signed by the appellant himself and no other (including-counsel), and where they are more than one, individually and not jointly. It is submitted that the provision is mandatory.[xxiv]

Further, the learned author J.A. AGABA rightly submitted that the above was the position before coming into force, the 2016 Court of Appeal Rules.[xxv] The rule as provided was so strict to the extent that joint appellant could not sign jointly a notice of appeal nor can any one of them do same for the rest. This made it impracticable for the several appellants to sign a joint notice of appeal.

The issue came before the Court of Appeal in Iwunze V. Federal Republic of Nigeria,[xxvi] Per OGBUINYA J.C.A held that the appellant’s counsel could not legally sign the process relying heavily on the Uwazurike’s Case.[xxvii] The court held inter alia as follows:

Having regard to the foregoing reasons and talking a cue from the ex-cathedra decision in the case of Uwazurike V. A.G Federation,[xxviii] I have no difficulty in holding that the appellant is notice of appeal signed by his counsel, is in utter breach of the sacrosanct provisions of Order 16 Rule 4(1) of the Rules, the effect of this is that his appeal has no pedestal to stand. This is because a notice of appeal is the fulcrum or touchstone of any viable appeal. In a word, I declare the notice of appeal incompetent.

The learned author AGABA eruditely submitted that it was interesting that, in Iwunze’s case[xxix] the Supreme Court’s decision in Ikpasa V. Bendel State,[xxx] was cited before the court of Appeal where the Supreme Court allowed a notice of appeal signed by a counsel on behalf of the appellant. The Court of Appeal while following the principle of stare decisi and as to resolution in the circumstances where there are collusion between two or more decisions of the Supreme Court, the former are likely to bow and kowtow to the later one. In applying the principle, Per OGBUINYA J.C.A eruditely placed it as follows:

Even though those two decisions are diametrically opposed on the point, I am nonetheless hamstring in the circumstance the reason is plain enough the law is trite that where the decision of the Supreme Court are in direct conflict on a point, I have the licence of the law to follow the one that is later in time. See Osakwe V. F.C.E Asaba (2010) 10 NWLR (Pt. 1201) the case of Ikpasa V. the State was decided on 18/19/81 whilst that of Uwazurike was decided on 23/02/2009. It is axiomatic from these dates that the case of Uwazurike is more recent than that of Ikpasa. On the premise of the binding authority of Osakwe’s case, I must, willy-nilly bow to the decision in the case of Uwazurike V.A.G Federation (Supra).

It is humbly submitted that the above decision is aplomb in all fore and self-explanatory. However, by the birth of the 2016 Rules the position has been somewhat relaxed by virtue Order 17 R4 (1) of the 2016 Rules which provides that every notice of appeal or notice of application to application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant or by his legal representative except under the provisions paragraphs (5) and (6) of this Rule.

It is the humble submission or this writer that the above provision must be read together with the provision of sub-rule 2 of the same Order which would reveal that it is only the originating process that are required to signed by the appellant himself but sub-rule (2) gives the appellant and or his legal representative the leeway to sign all other applications in the course of the appeal. The Rule 4(1) also apposite to this submission which provides that:

Where the contention of the appellant is that he was insane at the time he committed the offence the law allows his legal representative to sign on his behalf.
Where the appellant is an artificial person. In other words, a corporate body signs by secretary of the company or the clerk or the legal representative of the company.
It could be discerned from the foregoing that issues of notice of appeal is fundamental and a threshold one. Put simply, it is jurisdictional matter which must be prudently dealt with before approaching appellate court.

3.0 Limitation of time for the Prosecutor to Appeal to Supreme Court in Cases Involving Sentence of Death or Verdict of Manslaughters

This writer is under no illusion whatsoever that, although the time to file a criminal appeal or the application for leave or the extension of time is a matter of general knowledge, the same is not the case where it is the prosecutor appealing to Supreme Court in cases that involves murder, manslaughter, culpable homicide punishable with death or not, when the Courts of Appeal has acquitted or set aside the conviction and sentence of the accused person as the case may be. There is actually a dearth of material on this area as it attracts less attention of criminal jurisprudence authors in Nigeria.

Generally, it is submitted that flowing from the foregoing, the time within which an appellant may file a notice of appeal against the judgment of the Court of Appeal is also a jurisdictional issue which flows from the statutory provisions relevant to the kind of this appeal.

It is trite, that the computation of time runs from the date the judgment or decision appealed against or the date the appellant has a notice for the judgment or decision of the Court of Appeal[xxxi].

The general knowledge is that the time which an appeal shall be filed is ninety days (90) from the date of the decision of the High Court if the appeal is to the Court of Appeal[xxxii]. This is with regards to the final decision of the High Courts or the Federal High Court. Section 24(2) (a) of the Court of appeal Act allows specifically interlocutory appeals in civil appeals. Although there is no provision for interlocutory appeals in criminal appeals as it relates to the time within which the appeal is to be filled for interlocutory decisions.

It is submitted that same is applicable as in civil cause on the principle of Ut res magis valeat quam pareat that the time allowed in the civil interlocutory appeals is applicable to the interlocutory appeals in the criminal cause as well. And this is the fourteen days after such decision.

However the time to appeal to the Supreme Court generally as provided by the Supreme Court Act by the virtue of section 27(2) (b) is 30 days of the decision In case of the final decision.

It is submitted respectively that the learned Author of the AGABA erroneously submitted that the Supreme Court has the Power to Extend time in all cases in his book at page 946 paragraph one line seven to eight. This submission is with all due respect, a fallacy of hasty generalization as the Supreme Court has no such power in cases involving the prosecution appealing against decisions of the Court of Appeal of death sentences or manslaughter and the likes.[xxxiii] (emphasis mine). Of course, the general rule is that courts can grant extension of time after the intending appellant has substantially satisfied the court in his affidavit supporting the application, good cause why the appeal was not filed within time because the court does not aid the indolent as it exists for a serious business.

In Adili v. State[xxxiv] there was an application before the Supreme Court for an order striking out or dismissing the appeal filed by the state against the acquittal of the Applicant/Accused. The Applicant’s conviction for murder by the trial Court was set aside by the Court of Appeal in a decision given on the 28th day of April, 1988. The state then filed on the 22nd day 1988, a period of 83 days after the Court of appeals decision was delivered. The Applicant then filed a Notice of preliminary objection in the Supreme Court praying the Supreme Court to strike out and dismiss the appeal on the grounds inter alia:

That being the purported appeal against an acquittal of the respondent of the Court of Appeal in a murder trial, no leave was obtained by the State to the Supreme Court Pursuant to Section 213 (2) (d) and 213 (3) of the 1979 C.F.R.N
That the Statutory period of 30 days within which to appeal in a murder case had long expired before the purported Notice of appeal was filed by the state contrary to section 31 (2) (b) and 31 (4) of the Supreme Court Act, No 12 of 1960.
It could be discerned that the issues for determining as distilled from the grounds of the preliminary objection was let loose of the important law that regulates the appeal of this nature. In this case, the Supreme Court called the attention of the applicant to the provision of Section 4 (3) of the Judicial, etc, Offices and Appeal by the prosecutor’s Act No. 10 1963 which limit the right of appeal of the State or leave to appeal by the State in any case involving sentence of death or verdict of guilty of manslaughter to seven (7) days. The appeal was therefore dismissed by the Supreme Court and it was further held that the Act even prohibits the Supreme Court to grant or entertain an application for extension of time in such instance outside the statutory prescribed Seven (7) days.

In the more recent case of State v. Omoyele[xxxv]. The Supreme Court heavily relied on its position in the case of Adili V. state[xxxvi] and arrived at the same position. Supreme Court held as follows:

The learned Counsel for the applicant raised the point, that this Court had in the case of Federal Republic of Nigeria v. Tawakalitu (2013) All FWLR (pt. 695) 325, (2013) 14 NWLR (pt. 1373), modified its earlier stance in the case of State v. Adili (Supra) on the period within which a prosecutor can appeal in murder or manslaughter case, where the court acquits the respondent. We should not lose sight to the fact that the Judicial etc, Offices and Appeals by Prosecutor Act No. 10, is a special legislation promulgated to limit and narrow the scope of application such as cases involving sentence of death or verdict of guilty manslaughter such as the situation in this instance appeal. Therefore, the period of appeal which has been constricted to only Seven days within which a prosecutor can appeal against such sentence, is aimed at encouraging a prosecutor to be up and doing and appeal immediately if he is dissatisfied with the Judgment so that the appeal is heard with a minimum of delay and also to forestall the possibility of the offender or convict lingering in prison for a long period without his fate being determined finally and expeditiously too. That is more so, when the Act even prohibits Court to grant or entertain application for extension of time in such situation. Once the prosecutor fails to appeal within the next Seven (7) days stipulated by the Act. That is the end of it.[xxxvii]

It is settled that a Supreme Court’s decision represent the state of the law whether it is of the same age with Methuselah or even older, it must receive the adoration of all in legal arena until it is overridden by the Supreme Court itself. It is necessary to reproduce the word of wisdom of Per Oputa JSC in Adegoke Motors V. Adesanya[xxxviii] it was put categorically as thus:

We are final not because we are infallible rather we are infallible because we are final. Justices of Supreme Court are human beings capable of erring; it will be a short sighted arrogance not to accept the obvious truth. It is true that this Court can do inestimable good through its wise decision. Similarly this Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given Per Incurian. Such counsel should be have the boldness and courage to ask that such a decision be overruled. This court has the power to overrule itself (and as done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.

This writer submits with all due respect in line with the inspirational obita of the learned Justice Oputa in Adesanya case as a leeway to disagree with the reasoning of the Supreme Court. Per SANUSI J.S.C in the case of the State V. Omoyele [xxxix] given the reason behind the promulgation of the Judicial etc. Offices and Appeals by the Prosecutors Act No. 10 1963 can no more stand the test of time in the current reality of the administration of Criminal Justice in Nigeria.

It is the humbly opinion of this writer that the reason as proffered by the learned J.S.C has been caught by effluxion of time and same reason is faded taken into cognizance the fact that the prosecution do not find it easy in the Ministry of Justice to comply strictly with this time. The time the counsel in the Ministry of Justice gets judgment and internal issues within the Ministry must be considered in reality, before the case is assigned to a counsel and at times before the certified true copy of judgment of the Court of Appeal and other required documents are also of essence.

Assuming but not conceding, the reasons as given by the learned Justice is correct as to the reason behind the promulgation of the Judicial etc. Offices and Appeals by Prosecutor Act No. 10 1963, it cannot still stand with the practice and procedure of Criminal Justice since once the accused is acquitted and he is freed, he can therefore return home and enjoys his freedom and the presumption of his innocence is restored. This is also the case where the conviction is set aside at the Court of Appeal and his constitutional right of presumption of innocence is restored unless an appeal is lodged to the apex court and same is reversed.

The sum total of what this writer is saying is that though as it has been humbly established before, the court must be guarded by the lawgiver in exercising its jurisdiction. The decisions of the Supreme Court are not faulted since it relied on statutes in arriving at its decision. However, the only point that this writer with all due respect quarrel, is the reason given for the promulgation Act No 10 1963 because it is a fanciful one which this writer does not buy and must not be conflated with the present reality.

On the whole, it has been established in a long line of authorities that the courts are not lawgiver but they cry to the law givers in many cases through their obiter by calling for the amendment of any statutes or its provision that cannot be justified in the upheaval of the reality.[xl] This played out in the case of Ibrahim V. State[xli] where Supreme Court though did not nullify the provision of Rule 2 (iii) of Criminal Procedure (preferment of Charges in the High Court) Rules of Kano State, 1979. Rather it held as follows in calling for the amendment on the account of justice:

The right to fair trial of an accused would seriously be impaired if the prosecution is given the liberty to adduce further evidence without giving summary of the evidence to the accused as provided in the Rule 2(iii) of the Criminal Procedure (Preferment of Charges in the High Court) Rules Kano State 1979. The prosecution of an accused should not be a game of seek and hide with the prosecution springing surprise on the accused by the production of evidence, the veracity of which the accused cannot test under cross-examination. After the accused has entered his plea but before the actual trial commences, the accused or the counsel representing him should be availed all the facilities that will assist in the preparation of his defence what the accused requires is the statement of witnesses and police investigation reports and any medical report expert which bears relevance to the office allegedly committed by the accused. Rule 2 (iii) of the Criminal Procedure (preferment of charges in the High Court) Rules of Kano State 1999 should be amended so that where the prosecution intends to call additional witnesses. The list of additional witnesses should be accompanied by a summary of their evidence and their written statements should be made available to the accused[xlii]”.

On the whole, the Supreme Court decision to the effect that (7) seven days is the limit as to the time to appeal in cases involving sentence of death or manslaughter is founded in law and it could not be faulted in law. The only thing that could be done is to cry to the legislature to amend this law because sentiment cannot becloud law in any judicial deliberations. If this remains extant, the result is that justice is only done substantially to the accused which is not a justice handed with reasoning. It is rightly submitted that the reason in law is the perfect equity. An appeal is part of justice and the law must be realistic to accommodate justice. The interest of the state and the deceased is also to be equalized with that of the accused in terms of right to appeal.

Conclusion

In considering the right of appeal by the prosecutor to the Supreme Court as a final court in serious cases involving lives. Limitation of time provided by law for the state, which is restricted to seven days (7) and no right to entertain and or grant application for extension of time in such cases is allowed is a bad law. The law must be amended or repealed in the interest of justice because it cannot survive the validity test of time. Justice to accused must be equalized with that of the public (State) and the deceased whose life has been terminated. This limitation should be relaxed to accommodate equal rights in all ramifications. This could only be substantially done where there is no technical restriction or distinction of any parties to appeal to the final court so that justice would been seen done flagrantly by all.

Needless is the limitation specifically for the Prosecutor in these cases because the accused enjoy his liberty once discharged and acquitted or setting aside his conviction by the Court of Appeal. His innocence must be finally determined by the Supreme Court because the interest of the public is also at stake. Justice here is three-way traffic and should not be stampeded or beclouded by ruse and farce of technicalities from the Judicial, etc, Offices and Appeals by Prosecutor Act No 10

*LLB (with Shariah) A.B.U Zaria, BL (Abuja) Phone No.08139500624

[i] See the Obiter of CHUKWUDIFU AKUNNE OPUTA J.S.C in Josiah V. State (1985) 1 NWLR (Pt. 1) 125 SC

[ii] (2017 All (NWLR (Pt. 887) 37SC.

[iii]See Oredoyin V. Arowolo (1989) 4NWLR 172 at 211, Abbey V. State (2018)1 NWLR (Pt. 1600) 183 SC, Sunday V. State (2018) 1 NWLR (Pt. 1600) 251 SC.

[iv](2013) 7 NWLR (Pt. 1352) 19 At 137.

[v]See Saraki V. FRN (2016) All FWLR (Pt. 836) 395 SC

[vi]See Criminal Litigation, Practice Handbook, Council of Legal Education O.A. Onadeko P. 166

[vii]See Govt. of Kwara State V. Gafar (1997) NWLR (Pt. 511) 51 CA.

[viii]See Sections, 230 to 246 of the Constitution Federal republic of Nigeria 1999 (as amend)

[ix]It should be noted that this category of offence is heard originally in Federal High Court, High Court or the FCT and States only.

[x]See Goni V. Gambo (2002) FWLR (Pt. 131) 1877

[xi] See Saude V. Abdullahi (1989) 4 NWLR (Pt. 116) 387 SC, Okpeji V. Minister of Agriculture (1997) 9 NWLR (Pt. 522) 693 CA.

[xii] See J.A. AC-ABA Practical Approach to Criminal Litigation in Nigeria, Revised 3rd Ed., 2017 Pg. 915 Citing. Adoptine the holding of the court in Okponipere V. the State (2013) 10 NWLR (Pt. 1362) 209 at 221

[xiii]See Agip (Nig.) Ltd. V. Agip pretol, Int’l (2010) 5 NWLR (Pt. 1187) 348 SC

[xiv](1989) 2 NWLR (Pt. 103) Pp. 330-331, Paras H-A

[xv](Supra) P. 66, Paras E-H

[xvi]See Pp. 70-71 Paras G-A

[xvii](2014) 1 NWLR (Pt. 1388) 299 Galadima JSC

[xviii] (Supra)

[xix]See Mensah V.R. (1956) 8 WACA 140, Uwazunke V.A.G, Fed (2007) 8 NWLR (Pt. 1035) ISC

[xx]Uwazunke V. A.G. Fed (Supra)

[xxi]A.G. Fed, V. Guardian Newspaper Ltd (1999) 9 NWLR (Pt. 618) 187 SC

[xxii](2005) 1 NWLR (Pt. 908) 612 CA

[xxiii]See Bayero V. Mainasara & Son Ltd (2006) 8 NWLR (Pt. 982) 391 AC.

[xxiv]Uwazurike V.A.G Fed (2007) 8 NWLR (Pt. 1035 ISC.

[xxv]See J.A. Agaba Ibid P. 919

[xxvi](2013) 1 NWLR (Pt. 1334) 119

[xxvii](Supra)

[xxviii](Supra)

[xxix](Supra)

[xxx](1979) 12 NSCC 300

[xxxi] See Oluka v. state (1988), NWRW (pt. 72)339

[xxxii] Section 242 C.F.R.N 1999

[xxxiii](Supra); State v. Dmoyele (supra)- emphasis mine

[xxxiv] Supra

[xxxv] Supra

[xxxvi] Supra

[xxxvii] Per Sanusi Jsc. [p.68 paras. E-G, p. 69, paras B-E]

[xxxviii] (1989) 3 NWLR (pt. 109) 205 Sc

[xxxix] Supra

[xl] See Ibahim V. State (2018) 1 NWLR (Pt. 1600) 279 SC

[xli]Supra

[xlii] Emphasis mine, see Pp. 310 Paras. C-G 31 B-D.