➥ CASE SUMMARY OF:
Onuoha Kalu v The State (1998) – SC
by “PipAr” B.C. Chima
➥ COURT:
Supreme Court – SC. 24/1996
➥ JUDGEMENT DELIVERED ON:
Friday, 18th December, 1998
➥ AREA(S) OF LAW
Death sentence;
Plea;
Human Rights (life & dignity).
➥ NOTABLE DICTA
⦿ ISSUES ON CONSTITUTION AND JURISDICTION SHOULD BE ADDRESSED AT EARLIEST OPPORTUNITY
It is crystal clear that the question involved in issue 2 for the determination of this court is entirely constitutional. A constitutional issue, like the question of jurisdiction, is not only fundamental but must be disposed of by the court as soon as it is raised to ensure that the proceedings in which it is raised is not rendered nugatory and null and void and that the Constitution which is the supreme law of the land is not breached. See Alhaji Rufai Agbaje and others v. Mrs. W.A. Adelekan and others (1990) 7 NWLR (Pt. 164) 595 at 614. It is in the interest of the best administration of justice that where the issue of jurisdiction or a constitutional issue is raised in any proceedings before any court, it should be dealt with at the earliest opportunity and before a consideration of any other issues raised in the proceedings as anything purportedly done without or in excess of jurisdiction or in breach of the Constitution, which is the supreme law of the land, by any court established under the said Constitution is a nullity and of no effect whatever. See On venta and others v. Oputa and others (1987) 3 NWLR (Pt.60) 259; (1987) 2 N.S.C.C. 900; Attorney General of the Federation and others v. Sode and other (1990) 1 NWLR (Pt. 128) 500; (1990) I N.S.C.C. 271; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 545 etc. Accordingly, I will proceed firstly to examine issue 2 which raises a grave constitutional question in this appeal. — Iguh JSC.
⦿ FUNDAMENTAL PRINCIPLES THAT GOVERN THE INTERPRETATION OF OUR CONSTITUTION
I think I ought to state at this stage that, generally, the fundamental principles that govern the interpretation of our Constitution are: (1) That such interpretation as would serve the interest of the Constitution, best carry out its object and purpose and give effect to the intention of the framers thereof should be preferred; (ii) In the above regard, all the relevant provisions of the Constitution must be read together and not disjointly. See Ojokolobo v. Alantu (1987) 3 NWLR (Pt.61) 377; (iii) Where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with some other provisions of the Constitution and effect must be given to those provisions without any recourse to any other consideration; (iv) So, too, where the provisions of the Constitution are capable of two meanings, the court must choose the meaning that would give force and effect to the Constitution read together as a whole and promote its object and purpose. See Nafiu Rabiu v. The State (1981) 2 NCLR 293; (1980) 8 – l I S.C. 130; Attorney-General of Ogun State v. Attorney-General of the Federation (1982) 1-2 S.C. 13; Chief Dominic Ifezue v. Livinus Mbadugha and another (1984) 1 SCNLR 427; (1984) 5 S.C. 79 at 100-101; (v) Although our courts may in appropriate cases give due regard to international jurisprudence and seek guidance, as persuasive authorities only, from the decisions of the courts of other common law jurisdictions on the interpretation and construction of similar provisions of their Constitutions which are in pari materia with the relevant provisions of our Constitution, the court will nevertheless accord due weight to our peculiar circumstances, the generally held norms of society and our values, aspirations and local conditions. See too Nafiu Rabin v. The State (supra); Senator Adesanya v. President of the Federal Republic of Nigeria (1981) 5 S.C. 112; Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 10 S.C. 1; Ade Ogugu and others v. The Stare (1994) 9 NWLR (Pt.366) 1 at 22 – 28 etc. — Iguh JSC.
⦿ SUBJECTION OF THE RIGHT TO LIFE – EXECUTION OF THE SENTENCE OF THE COURT
Under section 30(1) of the Constitution, therefore, the right to life, although fully guaranteed is nevertheless subject to the execution of a death sentence of a court of law in respect of a criminal offence of which one has been found guilty in Nigeria. The qualifying word, save, used in section 30(1) seems to me to be the unmistakable key to the construction of that provision. In my view it is plain that the 1979 Constitution can by no stretch of the imagination be said to have proscribed or outlawed the death penalty. On the contrary, section 30(1) of the Constitution permits it in the clearest possible terms, so long as it is inflicted pursuant to the sentence of a court of law in Nigeria in a criminal offence. In other words, section 30(1) of the Constitution recognises the death penalty as a form of punishment but only on the condition that it is in execution of the sentence of a court of law in a criminal offence of which an accused person has been found guilty in Nigeria. The plain meaning of this section of the Constitution cannot be derogated from in the absence of any ambiguity whatsoever. It simply guarantees and protects the right to life. But it also recognises deprivation of life so long as it is pursuant to the execution of the sentence of a court in a criminal offence of which the accused has been found guilty in Nigeria. — Iguh JSC.
⦿ PROCEDURE FOR FILING A CLAIM MUST BE FOLLOWED
Where such statutory or constitutional provision is made for the filing of a claim, the procedure so laid down ought to be followed in making the claim and no other one. See Gbadamosi Lahan v. Attorney-General of Western Nigeria (1963) 2 SCNLR 47; (1963) 1 All NLR 226. — Iguh JSC.
⦿ ONLY FUNDAMENTAL HUMAN RIGHTS ISSUES WHICH ARE INCIDENTAL TO THE MAIN CLAIM CAN BE RAISED FOR THE FIRST TIME IN THE SUPREME COURT
✓ It is this clear that the jurisdiction to entertain any suit which seeks to enforce the observance of a fundamental right under chapter 4 of the Constitution, including the right of any person not to be subjected to torture, inhuman or degrading treatment guaranteed under section 31(1)(a), of the 1979 Constitution, ties only with the High Court of a State or a Federal High Court in the exercise of its original jurisdiction. The jurisdiction of the Supreme Court is appellate and not original. See Attorney-General of Anambra State and others v. Attorney-General of the Federation and others (1993) 6 NWLR (Pt.302) 692. However, constitutional issues which pertain only to the breach of a fundamental right in the course of trial or hearing before the lower courts may be raised in an appeal to the Supreme Court. Such issues are those that relate mainly to breach of the right to fair hearing and the right to personal liberty under sections 32 and 33 of the Constitution. Other rights such as right to life and those to private and family life, peaceful assembly and association and freedom of the press can only be enforced through a substantive action in the appropriate High Court and cannot be raised in an appellate court, including the Supreme Court, as being incidental to the proceedings in the lower courts. The appellate courts, inclusive of the Supreme Court, have no original jurisdiction to entertain, determine or pronounce on questions relating to an alleged breach of fundamental rights, especially where the issue involved or the redress invoked is not directly relevant or intrinsic to the determination, on the merit, of the appeal before them. — Iguh JSC.
✓ The death row phenomenon was only raised obliquely and clearly extrinsically by the appellant in this appeal. The issue raised is whether the appellant’s confinement under sentence of death for an alleged unnecessarily prolonged length of time from the date of his conviction amounts to cruel, inhuman and degrading treatment contrary to section 31(1)(a) of the Constitution thereby warranting the quashing of his death sentence and substituting the same with life imprisonment. This issue, in my view, is not properly before this court. The jurisdiction of this court to entertain and determine such constitutional question will only arise on appeal after both the High Court and the Court of Appeal have considered and adjudicated on the issue. This is exactly the procedure adopted in the foreign cases that were cited before us. — Iguh JSC.
⦿ CONDITIONS FOR A VALID ARRAIGNMENT OF AN ACCUSED PERSON
A close study of section 215 of the Criminal Procedure Law, Cap 32, Laws of Lagos State, 1973 clearly discloses, and this is borne out by a long line of decided cases of this court, that for a valid and proper arraignment of an accused person, the following three conditions must be satisfied namely: (i) The accused person must be placed before the court unfettered unless the court shall see cause otherwise to order; (ii) The charge or information shall be read over and explained to him to the satisfaction of the court by the Registrar or other officer of the court; and (iii) The accused shall then be called upon to plead instantly thereto (unless, of course, there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith. The above provisions of section 215 of the Criminal Procedure Law are clearly mandatory and not directory and must, therefore, be strictly complied with as without a valid arraignment of an accused person, no trial would have commenced and, no matter the strength of the evidence, the trial and subsequent judgment will be null and void. The three requirements must co-exist. See generally Sunday Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721 at 732, Eyorokoromo v. The State (1979) 6-9 SC 3, Godwin Josiah v. The State (1985) 1 NWLR (Pt. I) 125; (1985) 1 SC 406 at 416, Ogbodo Ebem v. The State (1990) 7 NWLR (Pt 160) 113; Samnabo v. The State (1967) NMLR 314, Akpuz Ewe v. The State (1992) 6 NWLR (Pt. 246) 147; Okon v. The State (1991) 8 NWLR (Pt. 210) 424 etc. — Iguh JSC.
⦿ TAKING OF PLEA IN A CRIMINAL CASE – READ CHARGE, UNDERSTOOD BY ACCUSED
The person accused must be present in court and the charge must be read to him and explained to him by the court registrar or any other officer of court. The charge so read and explained must be understood by the accused person to the satisfaction of the court. This presupposes that the charge is thus read and explained to the accused in the language he understands so that he is fully aware of the case against him. It is after this that he is asked to plead. The record of court therefore must show that the accused is in court and the charge is read and explained to him before he pleads to that charge. Once these conditions are satisfied the arraignment cannot be vitiated. The trial that follows the plea is not vitiated once it is shown that the charge read and explained is that one the accused has pleaded to. The reading and explaining of the charge are crucial matters on the face of the record. It is then presumed he understands the case he is facing in court even though the record does not say that he “understands or seems” to understand the charge. What will indicate that he understands the charge read and explained to him will be discerned from the totality. of the following proceedings. Kajubo v. The State (1988) NWLR (Pt. 73) 721 and Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385 are cases not on all fours with this case. In Kajubo’s case there was nothing on the face of the record that the charge was read much less explained to the accused. In the instant case the record clearly indicates the charge was read and explained to the accused and his plea was taken. The test required in cases like these, on the rationale of whether the accused understood the charge read and explained to him, is the objective test of what can reasonably be inferred after the charge was read and explained before the plea was taken. Certainly the accused pleaded to what he understood. Where a charge was amended, it must be read and explained to the accused so that the court is satisfied he understands the charge before his plea is taken. Once the charge is read and explained it is to be presumed that the accused understood the same before he pleaded. “Understanding” is the state of the mind of the accused which he only knows with the court merely presuming he understood after explaining the charge read to him. This case has satisfied all the requirements of s. 215 of Criminal Procedure Law (supra). — Belgore JSC.
⦿ SUBSTANTIAL COMPLIANCE WITH ARRAIGNMENT PROCEDURE IS ENOUGH
In my view, it is not necessary, in order to meet the requirements of section 215 of the Criminal Procedure Law of Lagos State that the presiding judge must put down in writing words to the effect that he is satisfied the accused understand the charge to his satisfaction. It is sufficient if the arraignment is as recorded in this case where there is substantial compliance with procedural provision. — Wali JSC.
⦿ NOT FUNCTION OF COURT TO SUIT SOCIAL THINKING IN INTERPRETATION OF LEGISLATIONS
It is not the function of the court to apply the canon of interpretation to invalidate a valid and legal legislation for the only reason that such a legislation is not in line with its social thinking or is not liked by a fractional section of the Nigerian people. — Wali JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Iguh, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Mr. Olisa Agbakoba, SAN.
⦿ FOR THE RESPONDENT
Mrs. W. Folami, Attorney-General of Lagos State.
⦿ AMICI CURIAE
Attorney-General of the Federation and Senior Advocate of Nigeria, Abdullahi Ibrahim, Esq.
Learned Senior Advocate of Nigeria, C. O. Akpamgbo, Esq.
Learned Senior Advocate of Nigeria, Dr. Ilochi A. Okafor.
Chief F. O. Akinrele, S.A.N.
A.B. Mahmoud Esq.
➥ CASE HISTORY
The substance of the case as presented by the prosecution, found established by the learned trial Judge and affirmed by the Court of Appeal was that on or about the 24th day of August, 1981, between the hours of 7.00 and 8.00 post meridian, the appellant unlawfully stabbed one Agbai Ezikpe, the deceased, to death with the broken end of a Star lager beer bottle in the neck. The incident took place before eyewitnesses who duly testified before the court. After this stabbing, blood rushed out profusely from the neck of the deceased who immediately fell down. The appellant, at this stage, tried to run away but was pursued by P.W.1 who apprehended him. The deceased was rushed to the General Hospital, Lagos where he died a few minutes later from his stab injuries.
The defence of the appellant was a total denial of the charge. He returned from a tour on the 23rd August, 1981 to learn that the deceased had raped the appellant’s sister in his room. The appellant reported the incident to the brother of the deceased. On the 24th August, 1981, the appellant, with his comrades were discussing how to handle the alleged criminal conduct of the deceased when they heard some shouting outside. They rushed out only to see the deceased lying down in a pool of blood. He denied stabbing the deceased.
At the conclusion of hearing, the learned trial Judge, Omotoso, J. as she then was, after a thorough review of the evidence on the 30th day of July, 1985, found the appellant guilty as charged. He was accordingly sentenced to death pursuant to the mandatory death penalty prescribed by section 319(1) of the Criminal Code of Lagos State for the offence of murder.
Dissatisfied with this decision of the trial court, the appellant lodged an appeal against his conviction and sentence to the Court of Appeal, Lagos Division. The Court of Appeal, in a unanimous judgment, on the 7th day of June, 1995, dismissed the appeal and the conviction and sentence passed on the appellant were affirmed.
It is against this judgment of the court below that the appellant has now appealed to this court on a four point amended grounds of appeal.
➥ ISSUE(S) & RESOLUTION
[APPEAL DISMISSED]
I. Was the Court of Appeal right in holding that the appellant was properly arraigned in accordance with the rule in Kajubo’s case and, if not, should the appellant be retried or discharged and acquitted?
RULING: IN RESPONDENT’S FAVOUR.
A. “I have closely studied the record of proceedings in respect of the arraignment of the appellant reproduced above and must confess, with profound respect to the learned Senior Advocate, that I find it extremely difficult to accept his attacks on the arraignment of the appellant as well founded. In the first place, there is abundant evidence on record that the appellant was present before the court on the date of his arraignment and that the charge or information was read over and explained to him in the English language whereupon he pleaded not guilty thereto. The central issue that seems to me of vital importance in the matter of a valid arraignment is that the charge or information shall be read over and explained to an accused person, naturally in the language he understands, to the satisfaction of the court, before he may be required to enter his plea thereto. This was clearly complied with in the present case.”
B. “From the record of proceedings, the appellant, from day one of his trial communicated with the trial court in perfect English language. He made his reasonably long written and signed statements to the police at pages 26 and 27, and 28 and 29 of the record of proceedings in perfect English language. Similarly, in the court proceedings of the 24th October, 1983, 17th November, 1983, 7th day of February, 1984 and the 6th day of March 1984 at pages 31, 32, 35 and 36 of the record of proceedings, there is clear evidence that the appellant on all those occasions communicated with the trial court in the English language. There is also the protracted evidence of the appellant in his defence before the trial court on the 15th day of April 1985. This evidence which covered several pages of the record of proceedings was also given by him in the English language. The learned trial Judge who has always impressed me as meticulous in the manner she kept her records clearly indicated at the beginning of the evidence of the appellant thus: ‘Defence:- The accused himself. Sworn on the Bible, states in English. My name is Onuoha Kalu…’”
.
.
II. Whether section 319(1) of the Criminal Code of Lagos State, Cap. 31, Laws of Lagos State of Nigeria, 1973 is inconsistent with section 31(1)(a) of the Constitution of the Federal Republic of Nigeria, 1979 and, therefore, null and void and, if so, whether the affirmation of the death sentence passed on the appellant by the Court of Appeal was consequently erroneous on point of law?
RULING: IN RESPONDENT’S FAVOUR.
A. “It is plain to me that the death penalty prescribed by section 319(1) of the Lagos State Criminal Code cannot be said to be inconsistent with the Constitution of the Federal Republic of Nigeria, 1979. The death penalty as per sections 30(1), 213(2)(d) and 220(1)(e) of the Constitution of the Federal Republic of Nigeria, 1979 is expressly recognised by the said Constitution. It is also the rule of interpretation that to take away a right given by common law or statute, the legislature should do that in clear terms devoid of any ambiguity. Accordingly if the legislature had intended to take away the right it recognised under section 30(1) of the Constitution by section 31 (I )(a) of the same document, it seems to me that it would have done this by clear terms and not by implication as learned counsel for the appellant appears to suggest. Besides, the right to life prescribed under the said section 30( I) of the Constitution is clearly a qualified right. It is not an unqualified right. It is also not in dispute that the imposition or execution of the death sentence in Nigeria is not subjected to any form of arbitrary, discriminatory or selective exercise of discretion on the part of any court or any other quartets whatever. I therefore entertain no doubt that the death penalty in Nigeria can by no stretch of the imagination be said to be invalid or unconstitutional.”
B. “It appears to me that section 30(1) of the Constitution is crystal clear and free from any ambiguity whatever. It cannot be derogated from. In my view, failure to give the section its obvious and plain meaning, will simply tantamount to embarking on an exercise aimed at defeating the clear provision of the Constitution and sacrificing such plain meaning on the altar of sheer technicality. By the first part of that section, the Constitution, in plain language, recognises and protects the right to life. By its subsequent part, however, which may be described as the “proviso” or “qualifying clause” to the first part, that same section, in clear terms, permits life to be taken in execution of the sentence of a court in respect of a criminal offence of which the accused person has been found guilty. This seems to me the plain meaning of section 30( I) of the Constitution of the Federal Republic of Nigeria, 1979. But, as I have earlier on mentioned, if the framers of the Constitution had wanted to abolish the death penalty, they would have done so expressly. At all events, abolition or retention of the death penalty is a matter for the legislature to decide and not for this court to wade into judicial legislation.”
C. “The conclusion I therefore reach is that there is nothing in the Constitution of the Federal Republic of Nigeria, 1979 that renders the death penalty under Section 319(l) of the Criminal Code of Lagos State unconstitutional. On the contrary, there are sections of the Constitution, such as sections 30(1), 2 t3(2) (d) and 220 (1) (e) which, in no mistaken terms, recognise the death penalty. Most of the foreign cases cited before us by learned counsel deal with the death row phenomenon, mode of execution by hanging and the deplorable conditions under which prisoners awaiting execution were confined. With these, we are not concerned in this appeal. I therefore resolve the first part of issue 2 against the appellant. Section 319 ( I ) of the Criminal Code of Lagos State, Cap 31, Laws of Lagos State, 1973 is not inconsistent with section 31 (1) (a) of the 1979 Constitution and is not therefore, null and void.”
.
.
.
✓ DECISION:
“In the final result, this appeal fails and it is hereby dismissed. The conviction and sentence passed on the appellant by the Court of Appeal are hereby further affirmed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 215 of the Criminal Procedure Law, Cap. 32, Laws of Lagos State, 1973;
Section 319(1) of the Criminal Code, Cap. 31, Laws of Lagos State of the Federal Republic of Nigeria, 1973;
Section 31(1a), 33(6)(a) of the Constitution of the Federal Republic of Nigeria, 1979.
➥ REFERENCED (CASE)
⦿ CASES IN SUPPORT OF DEATH PENALTY
✓ In Mbushuu and another v. The Republic (Criminal Appeal No. 142 of 1994; 30th January, 1995), the Tanzanian Court of Appeal held that although the death –penalty is a form of “cruel, inhuman and degrading treatment,” it affirmed that it was nonetheless constitutionally permissible, having regard to the qualified nature of the right to life as entrenched in the Tanzanian Constitution. The right to life in their Constitution was neither absolute nor unqualified. It was, as in section 30(1) of our Constitution, qualified.
✓ In the Zimbabwean Supreme Court case of Catholic Commission for Justice and Peace, in Zimbabwe v. Attorney-General, Zimbabwe and other (1993) (4) SA 239 in which Gubbay, C.J. delivering the judgment of the court with which Me Nally, Korsah, Ebrahim and Muchechetere JJ.A were in full agreement impliedly adopted the position that the right to life under their Constitution was qualified and thus upheld the constitutional validity of the death penalty in Zimbabwe. Said the learned Chief Justice: “It was not sought, nor could it reasonably be, to overturn the death sentences on the ground that they were unlawfully imposed. The judgments of this court dismissing the appeals of the condemned prisoners cannot be disturbed. They are final. And the constitutionality of the death penalty, per se, as well as the mode of its execution by hanging, are also not susceptible of attack.”
However, on the crucial issue of whether even though the death sentences had been properly passed, supervening events had not been established to constitute the execution of the convicts inhuman or degrading treatment, in violation of section 15(1) of the Zimbabwean Constitution on account of prolonged and excessive delay, the court, on the peculiar facts of the case resolved the same in favour of the convicts.
✓ In Bacan Singh v. State of Punjab (1983) (2) SCR 583, the constitutionality of Article 21 of the Indian Constitution came into question before the Supreme Court of India. In a well considered judgment, that court ruled, and quite rightly in my view, that the right to life entrenched in their Constitution was qualified and that in the circumstance, the death penalty was constitutionally valid. In conclusion, the court observed: “By no stretch of the imagination can it be said that the death penalty either per se or because of its execution by hanging constitutes an unreasonable, cruel or unusual punishment prohibited by the Constitution.”
⦿ CASES NOT IN SUPPORT OF DEATH PENALTY
✓ In the State v. Makwanvane and Another (1995) (6) BCLR 665 (CC), (1995) SACLR LEXIS 218 where it was held that the death penalty violated the constitutional protection of freedom from cruel, inhuman and degrading treatment under section 11(2) of the South African Constitution and was, in consequence, invalid and unconstitutional. In that case, however, the right to life as prescribed under section 9 of the South African Constitution was clearly unqualified hence the Constitutional Court was able to arrive at the decision, quite rightly in my view, that it reached. Said the court at pages 49 – 50 of the report: “The unqualified right to life vested in every person by section 9 of our Constitution is another factor crucially relevant to the question whether the death sentence is cruel, inhuman or degrading punishment within the meaning of section I1(2)of our Constitution. In this respect our Constitution differs materially from the Constitutions of the United States and India. It also differs materially from the European Convention and the International Covenant.” There is however a second and an equally vital reason why the death penalty was declared unconstitutional in the Makwanyane case. This is on account of the arbitrary, discriminatory and selective nature of its exercise at all material times in South Africa. In this regard, the court explained: ”..These differences still exist, which means that the law governing the imposition of the death sentence in South Africa is not uniform. The greatest disparity is in the Eastern Cape Province. A person who commits murder and is brought to trial in that part of the province which was formerly Ciskei, cannot be sentenced to death, whilst a person who commits murder and is brought to trial in another part of the same province, can be sentenced to death. There is no rational reason for this distinction, which is the result of history, and we asked for argument to be addressed to us on the question of whether this difference has a bearing on the constitutionality of section 277(1)(a) of the Criminal Procedure Act.”
✓ In the Hungarian case of Jones v. Wittenberg 33 F S UPP. 707, it was held that the death penalty was unconstitutional on the ground that it is inconsistent with the right to life and to human dignity under section 54 of their Constitution. Section 54(1) of the Constitution of the Republic of Hungary which states that “every one has the inherent right to life and to human dignity and no one shall arbitrarily be deprived of this right.” Under this provision, the death penalty, in Hungary, is considered an arbitrary deprivation of life. Consequently, the right to life in the context of the death penalty is unqualified under the Constitution of the Republic of Hungary.
➥ REFERENCED (OTHERS)
