⦿ CASE SUMMARY OF:
JOSEPH AMOSHIMA V. THE STATE (2011) – SC
by PipAr
⦿ LITE HOLDING
When a statute specifies death penalty as an offence, it must be obeyed to the letter. No discretion can be exercised by a judge.
⦿AREA OF LAW
– Criminal Law
⦿ TAG(S)
Death penalty.
Constitution
⦿ PARTIES
APPELLANT
Joseph Amoshima
v.
RESPONDENT
The State
⦿ CITATION
(2011) JELR 46674 (SC)
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
WALTER SAMUEL NKANU ONNOGHEN, JSC
⦿ APPEARANCES
* FOR THE APPELLANT
– CHUKWUMA – MACHUKWU UME ESQ.
* FOR THE RESPONDENT
– ROTIMI OJO ESQ.
AAA
⦿ FACT (as relating to the issues)
It is the case of the prosecution that on the 16th day of April 1996 at about 0300 hours while the deceased, Alhaji Zakari Mohammed was sleeping in his room at home at Kasuwan Dutse area of Suleja town with his family, PW1 and PW2, there were some bangs on the door of the house after which PW1, the wife of the deceased, heard the deceased shouting and calling her name as a result of which PW1 rushed to their sitting room where she saw some people beating up her husband, the deceased. One of those beating up the deceased was said to be one Uche who was said to have been summarily convicted during the State Chief Judge’s prison decongestion exercise and was the 4th accused in the original charge of eight accused persons. The said Uche chased PW1 back to her room where she locked herself in while the beating of the deceased continued, while she shouted for help. PW1 said that after sometime, she did not hear the voice of her husband anymore and when she opened her door she found him in a pool of blood. The thieves had vanished taking along with them a video machine and some cash. PW2 a son of the deceased identified the 1st accused as one of the thieves. The deceased was later rushed to Maraba hospital where he was admitted but later died on 14/4/96. Appellant was eventually arrested and he made a confessional statement which he later retracted at the trial.
This is an appeal against the judgment of the Court of Appeal, Holden at Abuja Division delivered on the 8th day of June, 2008 in appeal NO. CA/A/196C/06 in which the court affirmed the judgment of the High Court of Niger State Holden at Suleja Judicial Division in charge No. NS/RFT/4C/98 delivered on the 19th day of July, 2005 in which the court convicted the appellant of the offence of conspiracy and armed robbery contrary to sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1984 and sentenced him accordingly.
⦿ ISSUE(S)
1. Whether the mandatory death penalty as provided by Robbery and Firearms Special Provisions Act and upheld by the Hon. Court of Appeal is not unconstitutional (being a negation of sections 4 and 6 and in breach of Appellant’s right of appeal under section 241(1)(e) etc of the Constitution of the Federal Republic of Nigeria, 1999.
2. Was the court below right in its decision that the Robbery and Firearms (Special Provisions) Act, Cop. 398 is a State Law?
3. Whether the Hon. Court of Appeal was right to hold that the Attorney General of Niger state had the constitutional power and competence to initiate the proceedings under the Robbery and Firearms (Special Provisions) (Amendment) Act No. 62 of 1999 has withdrawn his powers to prosecute under the said statute.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED]
1. ISSUE 1 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. It is settled law also that where a statute prescribes a mandatory sentence in clear terms as in the instant case, the courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised in the matter. It is a duty imposed by law. The above situation is different from the one in which the statute provides for either the minimum sentence as in section 1(1) of the Robbery and Firearms (Special Provisions) Act or the maximum sentence to be imposed. In either case, the court is clothed with the discretion to either impose more than the minimum or less than the maximum sentence prescribed. It is therefore my view that the lower courts were right in holding that the sentence of death imposed on the appellant upon conviction for the offence of armed robbery is proper.
ii. On the sub issue as to the Constitutionality of the death sentence in Nigeria jurisprudence, it is clear that learned Counsel for the appellant has not pointed the court to any provision of the 1999 Constitution which the death sentence is said to be in breach of in practice. It has not been demonstrated to the satisfaction of this Court that death sentence is not recognised by the 1999 Constitution so as to make the imposition of same unconstitutional. It does not matter what obtains in other jurisdictions and the current global trend as regards the issue of death sentence. The duty of the court is to declare and apply the law as it is not to make or amend the law. If there is the need to amend the existing law, the duty to do so falls on the legislature which has so far not acted to the contrary.
2 & 3: ISSUES 2 & 3 ARE RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. I hold the firm view that by conferring Jurisdiction on the State High Courts to hear and determine charges relating to the offence of robbery under the Robbery and Firearms (Special Provisions) Act, it follows that initiation of prosecution for the said offence in the State High Courts can be done by the Honourable Attorney-General of the State concerned particularly as there is no specific provision of the relevant Act, stating that a State Attorney-General cannot do so or that only the Honourable Attorney-General of the Federation can do so.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Onnoghen JSC
It is rather unfortunate that learned Counsel for the appellant formulated issues in this appeal knowing them to have been formulated by him in an earlier appeal decided before the filing of the instant appeal and that this Court had already given decision on same. I don’t know the purpose which the action of learned Counsel is to serve. Is it intended to mislead the court or to tempt it to give a contrary/contradictory decision on the issues so formulated? Counsel should remain the gentlemen they are considered to be upon being CALLED TO BAR. The issues raised in the instant appeal are really uncalled for, the same haven been duly raised and decided in a previous appeal involving the very Counsel for the appellant and on the same facts. This is a very busy court whose time ought not to be toyed with nor wasted or spent on issues which do no one any good. In conclusion, haven resolved all the issues canvassed before this Court against the appellant, it is obvious that the appeal is without merit and is consequently dismissed by me.
⦿ REFERENCED
Robbery and Firearms (Special Provisions) Act, cap 398;
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
AAAA
⦿ CASE(S) RELATED
Tanko v. The State 2009 1-2 SC Pt. 1 Pg. 198.
⦿ NOTABLE DICTA
* PROCEDURAL
The law is settled that the use of the word “shall” in an enactment, such as the instant one, is usually interpreted to mean a mandatory provision which must be obeyed as it is. The word is usually employed to denote or express a command or exhortation or what is legally regarded as mandatory. – Onnoghen JSC. Amoshima v. State (2011)
The grouse of the appellant in this appeal, as I have pointed out, is that the officials of the Ministry of Justice of a State cannot prosecute a case of armed robbery in a state High Court. Let me quickly say that I have had a close study of the contents of Second Schedule Parts 1 and 11, and I agree with the submission of the respondent that the offence of Armed Robbery is neither in the Exclusive List or the Concurrent List. It therefore can be at no other place other than the realm of Residuary Matters which is within the competence of a State Assembly to legislate on. Niger State has in Sections 296 of 307 of its Penal Code, Cap 94, legislated on Robbery. – Onnoghen JSC. Amoshima v. State (2011)
* SUBSTANTIVE
The law recognizes the existence of maximum and mandatory sentences in criminal law proceedings both of which mean different things and are irreconcilable. The misconception of learned Counsel for the appellant in relation to death sentence arises from the global trend which shows hostility to the imposition of the sentence on any convict which learned Counsel apparently feels ought to apply with equal force to this country’s adjudication notwithstanding the Constitutional and statutory provisions relevant thereto. Whereas in very many jurisdictions the death sentence is frowned upon or even abolished, in Nigeria, it is firmly entrenched in our statutes and it is trite law that whereas it is the duty of the legislature to enact laws, that of the judiciary is to interpreter the laws so made. It follows therefore that where there is dissatisfaction with the state of the law as it exists, and a desire for a change thereof is expressed by the people, it is the duty of the legislature which made the law in the first place to effect the needed reforms by amendment thereto. The duty both to make and amend laws so made belongs exclusively, by Constitutional arrangement, to the legislature as provided under section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the 1999 Constitution). The death penalty may be said to be degrading of human beings etc, but the same cannot be said where the law recognizes its existence and desires its enforcement by the law courts. – Onnoghen JSC. Amoshima v. State (2011)
Let me say it loud that a Judge must always possess judicial discretion which he is to exercise only when the interest of justice so demands. A judicial discretion ought to be founded upon the facts and circumstances presented before the Court, from which it must draw a conclusion which must be governed by the law. I go further to say that a judicial discretion must be exercised honestly and in the spirit of the law or statue otherwise the exercise of such judicial discretion cannot be said to fall within the ambits of the law or statute. – Onnoghen JSC. Amoshima v. State (2011)
Nigeria is a Sovereign State subject to the provisions of its Constitution and statutes duly enacted by the National Assembly and international treaties domesticated or adopted for use by the National Assembly. It is to the extent of the above position of the law that I hold the considered view that the cases cited and relied upon by learned Counsel to the appellant from the United States of America and Uganda are not only irrelevant but of no persuasive authority in our jurisprudence. It must be noted that the right to life as provided under our Constitution is qualified not absolute. Though section 33(1) of the 1999 Constitution guarantees the right to life of everyone, it equally legally permits the deprivation of life in execution of the sentence of a court of law in respect of a criminal offence, such as armed robbery, for which the person has been found guilty – see Kalu v. The State (1988) 11 – 12 S.C 4 on section 30(1) of the Constitution of the Federal Republic of Nigeria , 1979 (hereinafter called the 1979 Constitution) in pari material with section 33(1) of the 1999 Constitution. – Onnoghen JSC. Amoshima v. State (2011)
This appeal to my mind is an academic exercise. In any case the well laid down position is that the legislature is to make laws, while the judiciary is to interpret the laws made by the legislature. That is the doctrine of separation of powers, and in the interpretation of statues the words used must be given their ordinary meaning, at all times to give effect to the intention of the legislature. On no account should a judge interpret statutes as he likes or rewrite the statute. – Rhodes-Vivour JSC. Amoshima v. State (2011)
