Ayodele Adetokunbo V. The State (1984)

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BELLO, J.S.C. 

The appellant was convicted of murder and his appeal against that conviction was dismissed by the Federal Court of Appeal. On the issue of sentence the Court of Appeal thought that the trial judge did not pronounce sentence of death in accordance with the provisions of section 367(2) of the Criminal Procedure Act and remitted the case to the trial court before Abimbola, J. with direction to pronounce sentence in the terms provided by the section. Abimbola, J. as he was then, was unable to comply with the direction because he had ceased to be a judge at the material time.

At the hearing of the appeal before us learned counsel for the appellant had nothing useful to urge in favour of the appellant in respect of the conviction. On the question of sentence, he urged us to exercise our power under section 30 of the, Supreme Court Act read with section 24 of the Federal Court of Appeal Act and pronounce sentence of death accordingly.

I am satisfied on the evidence that the appeal lacks merits. We have observed at p.48 of the record that after aflocutus, the trial judge recorded “Sentence of death pronounced”. In my view this is sufficient to infer that the trial judge pronounced sentence of death in the terms provided by section 367(2} of the Criminal Procedure Act. The decision of this Court in Ntibunka & Anor v. The State (1972) 1 S.C. 71 at 75 seems to support my view. It is therefore not necessary to remit the case to the trial court for pronouncing sentence as the Court of Appeal did. It is also 35 not necessary to exercise our power to pronounce the sentence.

The appeal is accordingly dismissed. Conviction and sentence are affirmed.

OBASEKI, J.S.C.: I agree with learned counsel for the appellant that there is nothing that can be urged usefully in favour of the appellant. The appellant killed the victim Adepeju Fanimo with a hammer and matchet out of the view of anybody but on being arrested, charged and cautioned, he made a confessional statement, exhibit F.

In court, he retracted the extra-judicial confession. The High Court, the Western State Court of Appeal and the Federal Court of Appeal, considered the issues 45 of admissibility of the statement exhaustively and held that it was properly admissible. They considered the issue of the evidential value of the statement and held that the totality of the evidence adduced by the prosecution proved the truth of the confession that the appellant killed Adepeju Fanimo. Having regard that he produced all the instruments by which the act was done and led by the police to the body of the deceased, the learned trial judge, in my view, justifiably convicted the appellant and the Western State Court of Appeal and the Federal Court of Appeal rightly dismissed the appeal from the conviction.

I myself find no merit whatsoever in the appeal against conviction and I hereby dismiss it.

Our attention has been drawn to the fact that the learned trial judge, Abimbola, J. failed to pass a sentence of death as required by section 367{2} of the Criminal Procedure Act. The Federal Court of Appeal directed the matter to be brought to the attention of Abimbola, J. for him to add sentence in the prescribed form to his finding of guilt. I however see at page 48 of the record that there is a minute that the sentence of death has been pronounced.

That being so, I am of the firm view that the learned trial judge complied with the section of the law. The fact that it is not recorded

”The sentence of the court upon you is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.”

does not, in any way, destroy the presumption that the sentence was passed in the prescribed form. It is however desirable that the sentence be recorded verbatim. See Linus Ntibunka & Anor. v. The State {1972} 1 S.C. 71; Eyo Ekpo v. The State {1972} 2 S.C. 26 at 29. We cannot pronounce sentence twice.

The appeal is hereby dismissed and the conviction and sentence of death of the High Court is hereby affirmed also affirmed by Western State Court of Appeal and Federal Court of Appeal.

ESO, J.S.C.: The only issue of importance in this appeal is the alleged failure of the learned trial judge to have sentenced the appellant as provided for by s.367 of the Criminal Procedure Law.

On the merit of the appeal itself, the appeal has no merit whatsoever. The appeal is dismissed and the conviction of the trial court affirmed. As regards sentence, the Federal Court of Appeal proceeded upon the erroneous basis that the learned trial judge did not pronounce the sentence of death as required by law. But a careful examination of the record {see p.48 1.23 of the record} shows that the learned trial judge pronounced sentence. The record reads thus –

“Sentence of death pronounced”.

Certainly this is pronouncing the sentence as required by law. We cannot ask the judge to pronounce sentence twice nor could we pronounce a superfluous sentence. It is however advisable that trial courts should spell out in their records 35 the details of sentence as pronounced by them. S.367{2} of the Criminal Evidence Law of Western State Provides

“367 {2} Sentence of death shall be pronounced in the following form –

The sentence of the Court upon you is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul”

This is the form the court must pronounce the sentence and this is the form it ought to be recorded. I will not go beyond this, for once the sentence is pronounced in this form, a record of it showing that such sentence is so pronounced, though not recorded in the exact form does not make the sentence illegal. Recording it in the form as pronounced is highly desirable however. The sentence is affirmed.

NNAMANI, J.S.C.: Learned counsel to the appellant has in my view rightly submitted that there is nothing in law that he can urge in favour of the appellant. The appellant brutally murdered a married woman for not returning the money he allegedly gave to her to procure another woman. He dealt very severe matchet cuts on her head almost so severe as to have cut her head into two. He also used a hammer on her. His defence was a bundle of contradictions and in court he sought to deny the offence. He led the police to the cocoa farm in which the deceased lay. He also showed the police the matchets and the hammer used in killing the deceased. Although the case was based on circumstantial evidence, the evidence which the trial judge accepted pointed irresistably to the appellant as the murderer. The appellant made several confessional statements admitting his guilt and these statements were positive and direct. Apart from the confessional statements there was very strong evidence which left no doubt about the appellant’s guilt. The learned trial judge very extensively reviewed the evidence before him, convicted the appellant, and pronounced sentence of death on him. On appeal to the Federal Court of Appeal, the entire case was duly reviewed and that court held that it had no merit. Before this Court and the Court of Appeal, attention was drawn to the presumed error of the learned trial judge in not passing sentence on the appellant in accordance with section 367(2) of the Criminal Procedure Law. Although the Federal Court of Appeal accepted that as an error it held that it did not materially affect the appeal. Relying on a decision of this Court in Eyo Ekpo v. The State (1972) 2 S.C.26 it declined to exercise its powers under section 24 of the Federal Court of Appeal Act, No.43 of 1976, to amend the words of sentence passed on the appellant. I however see that on page 48 of the record of proceedings the learned trial judge recorded that he pronounced sentence and the matter ought not therefore to have been gone into to such extent as was done in the Federal Court of Appeal. I do agree however that it is certainly desirable that lower courts should state clearly on their records the words of sentence in accordance with section 367(2) of the Criminal Procedure Law. Having therefore read through the record of proceedings, and considered all the submissions of learned counsel to the appellant, I am satisfied that this appeal lacks substance. I would dismiss it and it is hereby dismissed. The conviction of and sentence on the appellant are hereby affirmed.

UWAIS, J.S.C.: I agree with learned counsel for the appellant that this appeal is devoid of merit since nothing useful can be urged in favour of the appellant. I therefore agree that the appeal be dismissed and it is hereby dismissed.

I agree with the observation of my learned brother Bello, J.S.C. on the question of the pronouncement of sentence in accordance with S.367(2} of the Criminal Procedure Act Cap. 43.

Appeal dismissed.

SC.34/1984