Mallam Gano V The State (1968)

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ADEMOLA, C.J.N.

The appellant who was found guilty of culpable homicide punishable with death contrary to section 221 of the Penal Code and was sentenced to death has appealed to this court.

The deceased who died of a fractured skull was dealt two heavy blows on the head by the appellant with the handle of an axe. So severe was the second blow that the handle of the axe was broken when that blow was inflicted. The deceased died three days later in the hospital.

The appellant did not deny inflicting the blows on the deceased, but said he had no intention of killing the deceased but he was administering a corrective punishment on his brother who had taken to gambling and who at the time was sitting by the deceased. The blows he said were meant for this junior brother. There was ample evidence, however, that this brother was not sitting next to the de-ceased, but was sitting two seats away from him, and that indeed the appellant and the deceased were not on friendly terms.

Counsel for the appellant had nothing to urge in his favour but what we are called upon to decide is the sentence passed by the learned trial judge in this matter. In this regard, the note made by the learned judge reads: “Sentence of death passed.” Counsel has referred us to section 273 of the Criminal Procedure Code (cap. 30) which reads:-

“When a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”

It is clear that the learned judge has failed to incorporate in his judgment the satutory direction. We have been asked to say that as the judge gave no direction as to what manner the sentence of death was to be carried out, as he was obliged to do by law, the sentence could not be carried out, and the learned judge is functus officio.

We are in agreement with counsel that it is the duty of the judge, under the law, to pronounce the manner in which the sentence was to be carried out, and failure to do so might raise an apprehension that the execution could be carried out by any other means, as for example by poisoning, drowning or any other means; but as it is clear that the only mode of execution known to our law is by hanging by the neck till the convict is dead, we are unable to accept that any other mode of execution was contemplated by the judge.

We are, however, not unmindful of the fact that after passing sentence of death on a convict, the judge after the sentence passed by him has been confirmed, issues a warrant in the prescribed form and the Superintendent of Prisons who has had no advantage of reading the judgment has no choice but to execute the sentence in the manner laid down in the form, namely hang the convict by the neck till he is dead, and there can be no objection taken by the Superintendent that the warrant is not consistent with the judgment. Thus, the omission in practice makes very little different to the carrying out of the order of execution.

In our view, the provision 26(3) of the Supreme Court Act give this court very wide powers and we think this court could invoke this section to supply that part of the sentence which the learned judge inadvertently left out; but it appears to us that this is an error within the competence of the judge himself, whose judgment could properly be said to suffer from an accidental slip or omission, to correct.

In other words, it is a clerical error which the judge himself can put right and the court has inherent power to deal with and put right such clerical error. In England, clerical errors can be put right under order 20, rule 11 of the Rules of the Supreme Court. In the Australian case Milson v. Carter [1893] A.C. 638; (62 L.J.P.C. 126) where an application was made at the instigation of the Supreme Court to Privy Council to correct an error made by the Supreme Court, the Privy Council held that an application should be made to the Supreme Court to correct its mistake. In the course of the judgment their Lordships observed:

“Their Lordships do not doubt that the court has power at any time to correct an error in a decree or order arising from a slip or accidental omission, whether there is or is not a general order to that effect. A recent instance of the exercise of this power occurred in the case of Hattan v. Harris (1892) A.C. 547 before the House of Lords, where an error arising from an accidental omission was corrected after the lapse of forty years. The House of Lords in that case approved the views expressed “by the Court of Appeal in Mellor v. Swire (1885) 30 Ch.D. 239: 53 LT. 205.”

In the Mellor case (above) it is of some considerable interest to set out some of the views expressed by the court. Cotton L.J. said:-

“But although it is only in special circumstances that the court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the court in tact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced.”

In the same case, in his judgment, Bowen L.J. added:

“I think the true view is, as stated by Counsel L.J. that every court has inherent power over its own records, as long as these records are within its power, and that it can set right any mistake in them.

It seems to me that there is inherent power in this court to do what is asked. I do not think it is necessary to fall back upon the rules, though I think rules might be discovered which would be found to assert the existence of this power in the court.”

In view of all these authorities, we are satisfied that this is a matter which the trial judge can put right and we will not exercise our powers under section 26 of the Supreme Court Act.

In the result, we dismiss the appeal against conviction and sentence, and we hereby direct that this matter be brought to the attention of Hague A.J. to add to his judgment of 14th June, 1968, in this matter the words “The accused shall be hanged by the neck till he is dead.”

Other Citation: (1968) LCN/1572(SC)