Onuoha Kalu V. The State (1998)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

Two vital issues of considerable importance arise for determination in this appeal.

The first issue relates to the validity or constitutionality of the death penalty as a form of punishment in relation to the capital offence of murder as prescribed under section 319(1) of the Criminal Code, Cap. 31, Laws of Lagos State of Nigeria, 1973. The question is whether the provisions of the said section 319(1) of the Criminal Code of Lagos State which prescribe the death penalty in relation to the offence of murder are not contrary to and inconsistent with section 31 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1979. Cap. 62. Laws of the Federation of Nigeria, 1990 and therefore unconstitutional, invalid, null and void and of no effect. The issue, therefore, questions the constitutional validity of the death penalty as the mandatory punishment for the offence of murder in Nigeria.

The second issue concerns the validity or otherwise of the arraignment of the appellant before the trial court for the offence of murder for which he was tried. The question is whether the appellant was properly arraigned before the trial court in accordance with the provisions of section 215 of the Criminal Procedure Law, Cap. 32, Laws of Lagos State of Nigeria, 1973 and if not, whether an order of retrial or that of an acquittal and discharge ought to be entered by this court in favour of the appellant.

The appellant, Onuoha Kalu, was on the 6th day of March, 1981 arraigned before the High Court of Justice, Lagos State, charged with the offence of murder punishable under section 319(1) of the Criminal Code, Cap. 31, Laws of Lagos State of Nigeria, 1973. The particulars of the offence charged are as follows:-

“Onuoha Kalu (m) on or about the 24th day of August, 1981 at Yaba, in the Lagos Judicial Division, murdered Agbai Ezikpe.”

The appellant pleaded not guilty to the charge and the prosecution called six witnesses at the trial. The appellant also testified on oath in his own defence but called no witnesses.

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 meridiem, 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 eye witnesses who duly testified before the court. After this stabbing, blood gushed 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, Omoroso, 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. It is pursuant to the leave granted by this court to the appellant for the amendment of his original three grounds of appeal that he now raised, for the first time, the issue of the constitutionality of the death penalty punishment for the capital offence of murder in Nigeria.

Both the appellant and the respondent filed and exchanged their respective written briefs of argument. In the appellant’s brief, the undermentioned issues were formulated for the determination of this court, namely:-

“1. 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

2. Whether section 319(1) of the Criminal Code is not inconsistent with section 31(1)(a) of the Constitution of Federal Republic of Nigeria and therefore null and void and, if so, whether the affirmation of death sentence by the Court of Appeal was correct”

I think I ought to observe, with due respect to learned leading counsel for the appellant, that it would appear there is a misconception in the manner the second issue was couched. With the double negative, “not inconsistent” appearing in line two thereof, the inescapable grammatical position would be to convert the first arm of the question posed to whether section 319(1) of the Criminal Code is consistent with section 31(1)(a) of the 1979 Constitution. Clearly, if that is the position, the next arm of the issue, as framed, which poses the question whether the said section 319(1) of the Criminal Code is therefore null and void because of the alleged consistency would be rendered illogical and a non sequitur. Section 319(1) of the Criminal Code cannot be null and void because of its consistency with section 31(1)(a)of the Constitution. It can only be null and void because of its inconsistency with the said section 31(1)(a) of the 1979 Constitution. It therefore seems to me clear that there is, with respect, an apparent error in the way issue two is framed in the appellant’s brief of argument. I entertain no doubt that the inclusion of the word “not” before “inconsistent” in the formulation of the appellant’s second issue is an apparent error, perhaps a typographical error, otherwise the entire arguments and submissions of appellant’s learned counsel on the issue would hardly fall in alignment with the clear question for determination before the court. I would accordingly amend the appellant’s issue two to fall in line with the arguments advanced in his brief of argument as follows:-

“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,”

It is only by so doing that the legal question canvassed before this court by learned counsel for the parties on this all important issue would be meaningfully considered and appropriately determined.

The respondent, for its own pan, identified the undermentioned three issues in its brief of argument for the determination of this court These are as follows:

“1. Whether the appellant was properly arraigned before the trial court.

2. Whether the Supreme Court has original jurisdiction to entertain an enquiry into the constitutionality or the death sentence as provided in section 319(1) of the Criminal Code.
3. What is the proper interpretation of the provisions of section 319(1) of the Criminal Code’

I have carefully studied the three issues raised by the respondent in its brief of argument and they seem to me adequately covered by the two issues, as amended, raised on behalf of the appellant. I shall, therefore, adopt the two issues, as amended, formulated on behalf of the appellant as being more relevant for the determination of this appeal.

In view of the constitutional importance of the question posed under issue 2 in this appeal and the far reaching effect the decision of this court thereupon would have in our criminal jurisprudence throughout the entire country, a number of senior and eminent learned counsel were invited by this court as amici curiae to address the court on the questions raised. Following this invitation, Alhaji Abdullahi Ibrahim, S.A.N. and learned Attorney-General of the Federation, C. O. Akpamgbo, Esq. SAN., Dr. Ilochi A. Okafor, SAN., Chief F. O. Akinrele, SAN and A.B. Mahmoud, Esq. of learned counsel filed very useful and thought provoking briefs of argument.

I think I should at this stage express profound gratitude to these learned gentlemen of both the inner and utter bar for the scholarly presentation of both their briefs of argument and oral submissions before this court as amici curiae. Their respective briefs were comprehensive, stimulating and clearly impressive. They reflected, in very clear terms, the apparent industry with which they were prepared and I must take this opportunity to express my profound thanks to learned counsel for professional assignments well executed.

Learned counsel for the appellant, Olisa Agbakoba, Esq. S.A.N. in his arguments in the appellant’s brief in respect of the first issue submitted that the arraignment of the appellant before the trial court did not meet the mandatory conditions stipulated in section 215 or the Criminal Procedure Law,Cap. 32, Laws of Lagos State, 1973 and section 33(6)(a) of the Constitution of the Federal Republic of Nigeria. 1979. Relying on the decisions of this court in Sunday Kajubo v. The State (1988) 1 NWLR (Pt.73) 721 and Samuel Erekanure v. The State (1993) 5 NWLR (Pt.294) 385, learned Senior Advocate contended that it was not recorded by the trial court that the appellant understood the charge that was read to him to the satisfaction of the court. He considered this omission as serious and fatal to the arraignment of the appellant. He concluded by submitting that the entire proceedings in the trial court are therefore null and void by reason of the failure by that court to comply with the mandatory provisions of section 215 of the Criminal Procedure Law of Lagos State. He urged the court to allow this appeal on this issue.

On the second issue, learned Senior Advocate pointed out that there is no reported local decision of any of our superior courts of record in which the validity of section 319(1) of the Criminal Code was either raised or canvassed. He however submitted that this court is entitled to seek guidance from the decisions of the courts of other common law jurisdictions on such or similar matters. He argued that where a constitutional or statutory provision in respect of Fundamental human rights leaves scope for judicial interpretation, the courts traditionally have recourse to international human rights norms and to widely accepted sources of moral standards as aids to such interpretation. Learned counsel placed reliance on the jurisprudence of other countries, notably, South Africa, Tanzania, Canada, Hungary and the United States of America and those of some other international judicial tribunals which, he claimed, articulated what he considered acceptable views on the constitutionality of the death penalty as a mode of punishment. He contended that by contemporary human rights standards and values, the death penalty as provided for in section 319(1) of the Criminal Code of Lagos State is inconsistent with the provisions of section 31 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1979 which expressly prohibit all forms of punishment that amount to torture, in human or degrading treatment. He therefore argued that this court, under the circumstance, is entitled in the present proceedings, to declare section 319(1)of the Criminal Code void in consequence of its in consistency with section 31 (1)(a) of the Constitution of the Federal Republic of Nigeria. 1979 Learned Senior Advocate next drew the attention of the court to the provisions in sections 30(1), 213(2)(d) and 220(1)(e) of the 1979 Constitution which expressly would appear to recognise the death penalty. He also referred to the decision of the Tanzanian Court of Appeal in Mbushuu and Another v. The Republic (Criminal Appeal No. 142 of 1994, delivered on the 30th January, 1995). He pointed out that that case, on the basis of the general derogation provision provided under Article 30(2) of the Tanzania constitution, ruled that although the death sentence is a form of “cruel, inhuman and degrading treatment”, it is nevertheless a valid constitutional punishment. He however distinguished this decision from the Nigerian circumstance in respect of which, he contended, the right not to be subjected to torture, inhuman or degrading treatment protected under section 31 (1)(a) of the 1979 Constitution is a non-derogable right, that is to say, it is not one of the rights that may be derogated from by legislation. He argued that the specific rights in respect of which the 1979 Constitution permits derogation by legislation are set out in section 41 (1) and (2) of the Constitution and only relate to sections 30, 32, 34, 35, 36, 37 and 38 of the 1979 Constitution. He stressed that once a decision is reached that the prescription of the death penalty for the offence of murder in Nigeria amounts to “torture, inhuman and degrading treatment”, the irresistible conclusion must be a finding that section 319(1) of the Criminal Code is unconstitutional.

Learned counsel waded into a mass of authorities and decisions from various other jurisdictions, particularly, the Supreme Courts of the United States of America. Zimbabwe, Namibia and Her Majesty’s Privy Council in the United Kingdom in respect of appeals from the Courts of Appeal of Trinidad and Tobago, Jamaica and the Commonwealth of the Bahamas. In these decisions, the constitutionality of the death penalty as a form of sentence for the capital offence of murder came directly into question, having regard to the various constitutional provisions in issue in the countries concerned. The most relevant of the cases cited, to mention only but a few, are those of Weems v. United States 217 U.S. 349: Williams Henry Furman v. State of Georgia 408 U.S. 238 at 263-264; Catholic Commission for Justice and Peace, Zimbabwe v. Attorney-General of Zimbabwe and others (1993) (4) S.A. 239 (ZSC); The State v. Makwanyane and Another (1995) (6) BCLR 665 (CC); Lincoln Anthony Guerra v. Cipriani Bapriste and others (1996) 1 A.C 397 (PC); Earl Pratt and Another v. Attorney-General for Jamaica (1994) 2 A.C.1; Fisher v. Minister of Public Safety and Immigration and others (1998) 3 WLR 201 (PC); Noel Riley and others v. Attorney-General of Jamaica (1983) 1 A.C 719 (P.C) and The People v. Robert Anderson 493 P. 2d 880. It was his submission that the consensus of judicial opinion in all these cases is that the substantive contents of specific human rights guarantees must be left “open-ended” to enable them accommodate evolving standards of civilization. He claimed that it is as a result of this “evolving and dynamic” process that the death penalty has come to be regarded in contemporary human rights jurisprudence as a violation of the right not to he subjected to torture, inhuman and degrading punishment.

Launching further attacks on the imposition of the death penalty for murder, learned counsel described it as a cruel, inhuman and degrading punishment, inconsistent with the right to life as entrenched in the 1979 Constitution. It is also incapable of correction in the event of an error and negates the essential content of the right to life. He contended that elements of arbitrariness are also involved in the imposition and execution of the death penalty and that its consequences are irredeemable. He referred to the inevitable long wait between the imposition of the death sentence and the actual infliction of death, usually referred to as the “death row phenomenon” and described this as a crucial factor in the characterization of the death penalty as a “cruel, inhuman and degrading” treatment. He called in and the decision in the U.S. case of District Attorney for the Suffolk District v. Watson and others (1980) 381 Mass. 648 at 664 and 665 where the learned Chief Judge. Hennesey, C.J. observed thus:”

The death penalty is unacceptable under contemporary standards of decency in its unique and inherent capacity to inflict pain. The mental agony is simply beyond question, a horror … We conclude … that the death penalty, with its full panoply of concomitant physical and mental tortures, is impermissibly cruel … when judged by contemporary standards of decency.”

He contended that the “death row phenomenon” is a reality within the con of the Nigerian legal system. He argued that although there is no reported Nigerian case in which the issue of the incompatibility of the “death row phenomenon” with section 31 (1) of the 1979 Constitution was decided, the mental agony associated with the “death row phenomenon” amounts to “torture, inhuman and degrading treatment” within the con of section 31 (1)(a) of the 1979 Constitution.

Concluding, learned Senior Advocate pointed out that in Nigeria, the punishment of death for the offence of murder is inflicted by hanging the offender by the neck till he be dead pursuant to the provisions of section 367(1) of the Criminal Procedure Law. Cap. 32, Laws of Lagos State. 1973. He described this process as sordid and destructive of human dignity. He invites the hold that section 319(1) of the Criminal Code of Lagos State is unconstitutional and null and void by virtue of its inconsistency with section 31(1)(a) of the 1979 Constitution and to allow this appeal and quash the conviction and sentence of the appellant.

Learned leading counsel for the respondent. Mrs. W. Folami. Attorney-General of Lagos State, in the respondent’s brief submitted with regards to issue one that the arraignment of the appellant in the present case meets not only the standard set out under section 215 of the Criminal Procedure Law of Lagos State but that it also satisfies the conditions laid down in the case of Sunday Kajubo v. The State (1988) 1 NWLR (Pt.73) 721. It was argued that the appellant not only entered his plea in the English language after the charge was read and explained to him but that he testified before the trial court in the English language. She submitted that there is nothing on record to suggest that English is a language not understood by the appellant or that the trial court was not satisfied that the charge was properly read and explained to him. Reference was also made to section 150(1) of the Evidence Act and it was submitted that the arraignment of the appellant was a judicial ace shown from the record of proceedings to have been done in a manner substantially regular and that there is, therefore, a presumption that the formal requisites for its validity were complied with.

On issue two, it is the respondent’s submission that having regard to the provisions of section 30(1) of the 1979 Constitution, the validity of the death penalty for the capital offence of murder in Nigeria cannot be called into question. Learned Attorney-General pointed out that the method or mode of execution of such sentence which, under section 367(1) of the Criminal Procedure Law. Cap. 32, Laws of Lagos State. 1973 is by hanging, must be distinguished from the death penalty itself. She contended that the mode of execution of the death sentence, if it requires any modification, must be a matter for the legislature for an amendment of the relevant provision of the law. Learned counsel argued that there is nothing in section 319(1) of the Criminal Code which is inconsistent with any section of the 1979 Constitution. She, therefore, urged the court to resolve the issue in question against the appellant and to dismiss this appeal.

Learned Attorney-General of the Federation and Senior Advocate of Nigeria, Abdullahi Ibrahim, Esq. in his own brief, as amicus curiae, noted that it is on record that the charge was read and explained to the appellant in English language before he pleaded thereto. He pointed out that the appellant testified in his own detence in the English language and that there is no question of any suggestion that he did not understand the English language. He contended that the trial was in strict conformity with the provisions of section 215 of the Criminal Code Law of Lagos State, 1973 and section 33(6) of the Constitution of the Federal Republic of Nigeria. 1979 and fully complied with the conditions laid down by this court in the case of Sunday Kajubo v. The State (supra). In the circumstance, he argued that there is no basis for any order of retrial applied for by the appellant.

On issue 2 learned Attorney-General observed that although learned appellant’s counsel relied on a good number of obiler dicla from various countries of the world to buttress his arguments that the death penalty under section 319(1) of the Criminal Code is invalid and unconstitutional, it is only our own constitution, the 1979 Nigerian Constitution, that is relevant for interpretation in the present case. He pointed out that whereas section 30(1) of the 1979 Constitution makes a qualified provision in respect of the “right to life”, section 31 (1) deals with right to dignity of human person”. He regarded these as two distinct rights and submitted that by no stretch of the imagination can anyone suggest that the death penalty, expressly provided for in section 30(1) is what the legislature immediately withdrew or repealed in the very next section 31 (1) of the same Constitution. He submitted that the death penalty having been recognised by section 30(1) of the Constitution of the Federal Republic of Nigeria, 1979 ought not be blown away by a sidewind unless repealed by the due process of law. He contended that the death penalty is a necessary and acceptable form of punishment and that it is neither cruel, inhuman nor degrading within the meaning of section 319(1) of the Criminal Code of Lagos State. Learned Federal Attorney-General urged the court to dismiss the appeal.

Learned Senior Advocate of Nigeria, C. O. Akpamgbo, Esq. in his own brief, also, as amicus curiae drew attention to the decisions of this court in Sunday Kajubo v. The State (supra); Edet Effiom v. The State (1995) 1 NWLR (Pt.373) 507 at 556 and Samuel Erekanure v. The State (supra) and the conditions therein prescribed for a valid and proper arraignment of an accused person before the court. He contended that two of these conditions were not complied with. The two conditions, he submitted, that were not complied with are:-

(i) that the charge must be read over to the accused in the language he understands;

(ii) that the charge should be explained to the accused to the satisfaction of the court.

He argued that it must not be presumed that an accused person understands the English language. This is why it is necessary, if an accused does not understand the English language, to engage the services of a sworn interpreter to explain the charge to him. He submitted that this infringement of both section 215 of the Criminal Procedure Law of Lagos State and section 33 of the Constitution is not a mere matter of technicality but an issue of substance that went to the root of the trial. He urged the court to declare the trial and conviction of the appellant a nullity.

On the 2nd issue, it is the contention of the learned Senior Advocate that the provisions of the 1979 Constitution must be read as a whole for a correct interpretation as to whether section 319(1) of the Criminal Code of Lagos State, 1973 is unconstitutional and therefore null and void. He submitted that section 30(1) of the Constitution makes a qualified provision in respect of the right to life. He argued that the death penalty under section 319(1) of the Criminal Code of Lagos State having been recognised by section 30(1) of the Constitution cannot be said to be unconstitutional nor does it amount to “torture, inhuman or degrading” treatment. He stressed that the appellant appeared to be complaining of the manner of execution of the death sentence by hanging and not the death penalty per se. He argued that section 31(1)(a) of the 1979 Constitution which the learned counsel for the appellant claimed is inconsistent with section 319(1) of the Criminal Code has in fact nothing to do with section 30(1) of the said Constitution. Shorn of procedural abuses, the death penalty, he insisted, helps to preserve equilibrium in the Nigerian society by providing ameasured and appropriate response to heinous and barbarous criminal acts that threaten the moral foundation of the Nigerian society. He added that even in the United States of America with all its claims to moral sophistication, the U.S. Supreme Court has repeatedly ruled that the death penalty is not intrinsically unconstitutional. In this regard, he relied on the decisions in Gregg v. Georgia 428 U.S. 135 176-87 (1976); District Attorney for the Suffolk District v. James Watson (1980) 381 Mass. 648; Proffitt v. Florida 428 U.S. 242 (1976). He stressed that whether a particular form of punishment goes beyond standard of decency must be answered strictly in the con and particular circumstances of Nigeria. He urged this court to resist the suggestion by the appellant to transplant foreign notions of decency into a country like Nigeria with diametrically opposite cultural assumptions. He stated that Nigerians through their elected representatives passed the laws that permitted the death penalty. In his view, to invite this court to invalidate the will of the people may be an impermissible, even an illegitimate exercise of judicial powers.

On whether the death penalty is tantamount to torture or to inhuman or degrading treatment, learned counsel submitted that the question one must ask is whether the death sentence is inhuman, degrading or shocks the moral conscience of the Nigerian community, not that of the people of the U.S.A., Canada, U.K. or South Africa. He was of the view that torture, inhuman and degrading treatment which accompany the death penalty do not come within the ambit of section 31 (1)(a) of the Constitution. He concluded by stressing that it would be wrong to resolve the issue under consideration against the background of the interest of the appellant only. According to the learned counsel, the interest of the victim of the murder, his family and that of society at large must equally be considered.

Learned Senior Advocate of Nigeria, Dr. Ilochi A. Okafor, in his own brief dealt only with the second issue. He gave a brief history of the death penalty, noting that although some countries of the world have abolished it, many still retain it in cases of murder and treason. He submitted that the real question before this court is whether there is any conflict or inconsistency between the provision or section 30(1) of the 1979 Constitution which authorises the death penalty and section 31(1)(a) which guarantees freedom from torture, inhuman or degrading treatment. In this regard, he submitted that such interpretation as would serve the interest of the Constitution and would best carry out its object and purpose should be preferred. To achieve this, learned counsel called in aid the decisions of this court in Rabiu v. The State (1981) 2 NCLR 293; (1980) 8-11 S.C. 130 and Attorney-General of Ogun State v. Attorney-General of the Federation (1982) 1-2 S.C. 13, and stressed that all the relevant provisions of the Constitution must be read together and not disjointly and that where the words are clear and unambiguous, they must be given their ordinary meaning. In this view, the provisions of sections 30(1) and 31(1)(a) of the 1979 Constitution are crystal clear. By section 30(1) of the Constitution, the death penalty is clearly permissible so long as it is in execution of the sentence of a court of law in respect of a criminal offence of which the convicted person has been found guilty in Nigeria.

Under section 31(1)(a) of the same 1979 Constitution, however, “torture, inhuman and degrading treatment” is prohibited. He therefore contended, relying on the definition of “torture” in the International Instrument, the Convention Against Torture and other Inhuman and Degrading Treatment or Punishment, 1984, Article 1(1) to the effect that “torture, inhuman and degrading treatment” do not include “pain or suffering arising only from, inherent in or incidental to lawful Sanctions”.

Learned Senior Advocate closely examined a number of International Human Rights decisions from various foreign jurisdictions, particularly those of Tyrer v. United Kingdom (1978) Eu Ct. of H.R. Rep. Series A. No. 28; Soering v. United Kingdom (1989) Eu. Ct. of H. R. Series A. Vol. 161 reprinted in (1989) II EHRR 439. Ng. v. Canada (1994) 12 IHRR 161, and Cox v. Canada (1995) 2 IHRR 307 and submitted that what international human rights jurisprudence finds objectionable and violative of the guarantee against torture contained in international instruments is not so much the imposition of the death penalty perse but the manner of its execution, including the attendant agony upon the delay in waiting on the death row before execution. He saw no inconsistency between the provisions in sections 30(1) and 31(1)(a) of the 1979 Constitution.

There was next the brief of argument of learned amicus curiae, Chief F. O. Akinrele, S.A.N. in which. on issue I, he contended that there is no indication on the printed record that section 215 of the Criminal Procedure Law of Lagos State was fully complied with. He pointed out, for instance, that there is no evidence that the charge or information was explained to the appellant to the satisfaction of the court and that following the decision of this court in Samuel Erekanure v. The State (supra), this rendered the trial null and void. On the proper order that this court should consequently make, learned Senior Advocate reviewed the decisions in Abodundu and others v. The Queen (1959) 4 FSC 70; (1959) SCNLR 162; Ankwa v. The State (1969) 1 All NLR 133 at 137; Sunday Kajubo v. The State (supra) and Erekanure v. The State (supra) and, having regard to the surrounding circumstances of this case, he urged the court to lean against making an order of a retrial of the appellant.

On the second issue, learned Senior Advocate contended that on a careful perusal or the various foreign authorities referred to by the appellant, the view that the death penalty per se is cruel, inhuman and degrading and thus unconstitutional is, generally speaking, a minority view. Indeed, he submitted that in foreign jurisdictions that have similar constitutional provisions as ours, the death penalty has always been held to be constitutionally valid. He stressed that the decisions tended to turn on whether the right to life is qualified or unqualified. In the former, the death penalty has, in the main, been held to be constitutional whilst in the latter; it was held to be unconstitutional. He then proceeded to examine a mass of case law from foreign jurisdictions covering a greater part of the globe, inclusive of countries like Tanzania, Zimbabwe. South Africa, India, Canada, Hungary, the United Kingdom and the United States of America. Prominent among these decisions are those of Mbushun v. The Stare (Criminal Appeal No. 142 of 1994 delivered on 30th January, 1995); Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General for Zimbabwe (1993) (4) SA 239: Makwanyane v. The State (1995) (6) BCLR 665 (CC); Bacan Singh v. State of Punjab (1983) (2) SCR 583; Kindler v. Canada (1992) 6 CRR (2 ND) 193(SSC); Furman v. Georgia (1972)408 U.S. 238, 33 L. ED 2d 346,92 Set. 2726: Riley v. Attorney-General for Jamaica (1983) I A.C 719 (P.C) etc. He further analysed a few decisions of the Human Rights Committee of the United Nations and the case of Soering v. United Kingdom (1989) II EHRR 439 on the European Convention on Human Rights. Learned Senior Advocate finally waded into the arena of the death row phenomenon, comparing and contrasting decisions of various foreign jurisdictions on the subject. He arrived at the conclusion that a state that wishes to retain capital punishment must accept the responsibility to ensure that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve by the executive. He considered that in the present case, the complaint of the appellant is that they were subjected to cruel, inhuman and degrading treatment by virtue of having been kept in the death row for over 13 years. He regarded this as a complaint of torture, inhuman and degrading treatment which, he submitted, arises wholly and exclusively from the present proceeding and is intrinsic and incidental thereto. He was of the view that in all the circumstances of this case, the death sentence passed on the appellant should now be commuted to life imprisonment.

There is finally the brief of argument of A. B. Mahmoud Esq. of learned counsel, wherein he submitted in respect of the first issue that the defects in the plea of the accused persons in the cases of Sunday Kajubo v. The State and Samuel Erekanure v. The State (supra) do not exist in the present case. He argued that in the present case the information was read over and explained in the English language to the appellant who understood and spoke the same language and he pleaded not guilty thereto. He argued that this is full compliance with the provisions of section 215 of the Criminal Procedure Law of Lagos State as well as section 33 of the Constitution of the Federal Republic of Nigeria and that the arraignment of the appellant was consequently proper. On the question of the order of retrial against which the appellant’s learned counsel argued, Mr. Mahmoud submitted that the view the courts have generally held is that a retrial would not be ordered if there were special circumstances as would render it oppressive to put the appellant on trial a second time. He contended that no such circumstances exist in the present case. The issue, however, he stated, does not arise for determination in this appeal in view of his submission that the arraignment of the appellant was perfectly in compliance with the law.

Dealing with the second issue, learned counsel pointed out that the simple question that arises for consideration is the constitutional validity or otherwise of the death penalty in Nigeria. This is because if section 319(1) of the Criminal Code of Lagos State, which prescribes the death penalty is found to be inconsistent with section 31(1)(a) of the 1979 Constitution, then, of course, it must be pronounced unconstitutional and therefore null and void. He dealt with the cardinal principles enunciated by this court in the case of Najiu Rabiu v. The State (1981) 2 NCLR 293; (1980) 8-11 S.C. 130 on the interpretation of the Constitution and submitted that words should be given their plain and ordinary meaning. Learned counsel closely examined sections 30(1) and 31(1)(a) of the Constitution of Nigeria and submitted that there is no apparent inconsistency in their provisions. He pointed out that section 30(1), along with sections 213(2)(d) and 220(1)(e) of the 1979 Constitution, clearly recognise the death penalty in Nigeria as prescribed by section 319 of the Criminal Code. He argued that whether the death penalty involves torture or constitutes inhuman or degrading treatment, it is beyond doubt that the 1979 Constitution has recognised it. And even if it must be abrogated, that duty cannot be that of the courts but the responsibility of the legislature.

Learned counsel finally dealt with the death row phenomenon. He, too, examined the decisions of Her Majesty’s Privy Council in Earl Pratt and Another v. The Attorney-General of Jamaica. (supra); Abbot v. Attorney-General of Trinidad and Tobago (1979) I WLR 1342; Riley and others v. The Attorney-General at Jamaica 1(1983) 1 A.C. 719; Madhu Mehta v. Union of India (1989) 3 SCR 775 and the decision of the Supreme Court of Zimbabwe in Catholic Commission for Justice and Peace in Zimbabwe v. The Attorney-General for Zimbabwe (supra).

In view, however of what will become apparent later in this judgment. I do not propose at this stage to devote more attention to the death row phenomenon as an issue. Learned counsel concluded by submitting that in the light of section 30(1) of our Constitution, it is the legislature that needs to carry out amendments, if, indeed, this is found desirable with regard to the constitutionality of the death penalty in Nigeria.

He concluded thus:-

“The ideological, intellectual as well as the empirical evidence against the death penalty, valid as they may be, against the backdrop of the clear provision in section 30 of our Constitution are really arguments for the legislature or other law making organ of the state.”

At the hearing of the appeal on the 24th day of September, 1998, the learned Attorney-General of the Federation, Abdullahi Ibrahim, Esq., S.A.N. was unavoidably absent but was ably represented by M.I.N. Duru Esq., Director of Public Prosecutions of the Federation. Similarly, Chief F.G. Akinrele S.A.N. was also unavoidably absent. He was however ably represented by Mr. A. Akinrele. Both learned counsel for the parties together with the learned amici curiae adopted their respective briefs of argument and made impressive and stimulating oral submissions in amplification thereof.

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 Onyema 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) 1 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.

Upon a careful consideration of all the submissions of learned counsel, it is plain to me that the crucial question for consideration under issue 2 is the validity or constitutionality of the death penalty in Nigeria. The main theme of the arguments of learned counsel for the appellant is that the death penalty, as a form of punishment as prescribed under section 319(1) of the Criminal Code, is inconsistent with section 31(1)(a) of the 1979 Constitution and, therefore, invalid, and null and void. He submitted that the death penalty is a form of “cruel, inhuman and degrading” treatment, that it is a negation of the dignity and humanity of both the convict and the society at large and that it must, therefore, be outlawed or pronounced unconstitutional. I think it will be necessary for ease of reference to reproduce issue 2 once again.

The question posed under issue 2 runs thus:-

“Whether section 319(1) of the Criminal Code of Lagos State, Cap. 31, Laws of Lagos State of the Federal Republic 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”.

Copious arguments and legal discourse were advanced by learned counsel on the issue in question. I have already expressed my deep appreciation to them for professional assignments well executed. With the greatest respect, however, it seems to me that the real issue for decision under issue 2 is not as diversified and extensive as it appears from the most interesting treatments given to it in the majority of briefs of argument filed by learned counsel in this appeal. I propose, in this judgment, to confine myself as strictly as possible to the question posed. I think I should start with a reproduction of the relevant sections of the 1979 Constitution and the other laws directly in issue.

Section 319(1) of the Criminal Code, Cap. 31, Laws of Lagos State of the Federal Republic of Nigeria. 1973, hereinafter also referred to as the Criminal Code. provides as follows:-

“319(1)Subject to the provisions of this section, any person who commits the offence of murder shall be sentenced to death”.

It is thus the above section of the Criminal Code which prescribes the death penalty in Lagos State and, indeed, in 16 other States of the Federal Republic of Nigeria.

There is then section 31(1)(a) of the Constitution of the Federal Republic of Nigeria, otherwise hereinafter simply referred to as the Constitution, the provisions of which the appellant contends are breached by the said section 319(1) of the Criminal Code. This section of the Constitution provides thus:-

“31(1) Every individual is entitled to respect for the dignity of his person, and accordingly –

(a) no person shall be subjected to torture or to inhuman or degrading treatment.”

It therefore protects the right to individual dignity of a person. It also guarantees the freedom from torture, inhuman and degrading treatment.

In resolving whether section 319(1) of the Criminal Code of Lagos State is inconsistent with section 31 (1)(a) of the Constitution, learned counsel for the appellant sought the aid of contemporary foreign jurisprudence in the interpretation, of our Constitution. He was of the view that in interpreting the Constitution, Nigerian courts should seek guidance from the decisions of other foreign jurisdictions, particularly in respect of issues concerning the fundamental human rights which, he submitted, are now universally accepted as regulating general moral standards of any civilised society.

I think I ought to state at this stage that, generally, the fundamental principles that govern the interpretation of our Constitution are:

(i) 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 Ojokobo v. Alamu (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 – 11 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 Rabiu v. The Stale (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 State (1994) 9 NWLR (Pt.366) 1 at 22 – 28 etc.

In view, therefore, of the fact that in order to determine correctly whether the death penalty is a constitutionally valid and recognised form of punishment in Nigeria under section 319(1) of the Criminal Code, having regard to the provisions of section 31(1)(a) of the Constitution, it will be necessary to set out other relevant provisions of the Constitution with a view to reading them together as a whole and thus determine whether the alleged inconsistency infact exists. I will start with section 30(1) of the Constitution which provides as follows:-

“30(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria”.

(Italics supplied for emphasis)

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.

In this regard, and bearing in mind the fact that the relevant provisions of the Constitution must be read together and not disjointly, reference may be made to sections 213(2) (d) and 220(1)(a) of the same Constitution. Section 213(2) (d) provides as follows:-

“213(2)An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases –

(a)…

(b)…

(c)…

(d) decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court:”

(Italics supplied for emphasis)

There is next section 220(1)(e) of the Constitution which stipulates thus:” 220(1)An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases :-

(a)…

(b)…

(c)…

(d)…

(e) decisions in any criminal proceedings in which the High Court has imposed a sentence of death “. (Italics supplied)

It is plain to me (that apart from-the provisions of section 30(1), there are also provisions of sections 213 (2)(d)and 220(1)(e) of the Constitution which, again, in no mistakeable terms, recognise the death penalty as a form of sentence. I have also taken great care to go through the entire 1979 Constitution and have been unable to find any single section thereor which abolished or outlawed the death penalty. And I ask myself, having regard to the combined effect of the provisions of sections 30(1), 213(2)(d) and 220(1)(a) of the Constitution, whether it can be seriously argued, as the appellant now appears to do, that section 319 (1) of the Criminal Code of Lagos State which prescribes the death sentence is inconsistent with section 31 (1)(a) or, indeed, with any other section of the Constitution. I think not. To argue otherwise, if I may say with respect, will tantamount to embarking on an exercise aimed at defeating the clear provisions of the Constitution.

The appellant next argued that the death penalty necessarily inflicts both physical and mental pain on the victim and that this, per se, amounts to torture, inhuman and degrading treatment. He described the right not to be subjected to torture, inhuman and degrading treatment under section 31 (1)(a)of the Constitution as a non-derogable right and that the death penalty which inescapably amounts to torture, inhuman and degrading treatment must, ipso facto, be unconstitutional.

Upon a careful perusal of the various foreign authorities to which our attention was drawn by the appellant, the opinion that the death penalty per se amounts to tonure, inhuman and degrading treatment and therefore, intrinsically unconstitutional seems to me a minority view. Indeed, a close study of those decisions reveals that the foreign jurisdictions that have similar provisions in their Constitutions as ours have repeatedly pronounced the death penalty to be constitutionally valid. The decisions tended to turn on the crucial question of whether the right to life therein contained is qualified or unqualified. If qualified the death penalty was, in the main, held to be constitutional. If unqualified, however, the death penalty was, rightly in my view, declared to be unconstitutional. I think it is convenient at this stage to review a few of the relevant authorities on the point.

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. Thus where the right to life under the Constitution is subject to qualification, as is the case with our 1979 Constitution, the death penalty under such circumstance is constitutionally permissible and valid. It can thus be stated that the real issue is not whether the death penalty amounts to torture, inhuman and degrading treatment in the ordinary meaning of those words but whether it amounts to torture, inhuman and degrading treatment within the meaning of the 1979 Constitution.

There is next 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.”

It ought to be emphasized here that the right to life under the Zimbabwean Constitution is qualified. Consequently, the Supreme Court had no difficulty in upholding the death penalty as constitutional. 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. I will have cause to return to this case later in this judgment.

As against the above two cases, is the decision of the Constitutional Court of South Africa in the State v. Makwanyane 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 II (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 pan 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.”

It seems to me beyond argument that the fundamental basis upon which the South African Constitutional Court, rightly in my view, pronounced the death penalty unconstitutional is, firstly, on account of the vital fact that the right to life in the relevant Constitution was unqualified and, secondly, because of the arbitrary selective and discriminatory nature of its exercise at all material rimes in South Africa.

There is next the position in India. Article 21 of the Indian Constitution provides as follows:-

“No person shall be deprived of his life or personal liberty except in accordance to procedure established by law.”

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.”

In the same vein, the Fifth Amendment to the United States Constitution refers in specific terms to capital punishment and thereby impliedly recognises its validity. The Fourteenth Amendment obliges the States not to deprive any person of life, liberty or property without the due process of law and this impliedly recognizes the right of States to make laws for such purpose. It seems to me plain that the right to life in the Constitution of the United States of America is qualified and accordingly the U.S. Supreme Court has repeatedly ruled that the death penalty is not intrinsically unconstitutional. See Gregg v. Georgia 428 U.S. 153, 176 – 187 (1976). District Attorney for Sulfolk District v. James Watson and others (1980) 381 Mass. 648; Jurek v. Texas 428 U.S. (1976); Woodson v. North Carolina 428 U.S. 242 (1976) etc.

I think it can be said that the central focus in the jurisprudence of the United States of America with regard to the death penalty is to mount substantive and procedural safeguards against arbitrariness and discrimination in the imposition or withholding of the death penalty. It can also be stressed that the Federal constitutionality of the death sentence for murder as a legitimate form of punishment in the United States of America is now well settled, having regard to the qualified nature of the fundamental right to life, in its Federal Constitution. Accordingly in Gregg v. Georgia, (supra) which represents the Current view of the Supreme Court of the United States of America on the constitutionality of the death penalty, it was succinctly expressed as follows:-

“We address initially the basic contention that the punishment of death for the crime of murder is, under all circumstances, “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. In part IV of this opinion, we will consider the sentence of death imposed under the Georgia statutes in issue in this case.

The court on a number of occasions has both assumed and asserted the constitutionality of capital punishment. In several cases, that assumption provided a necessary Foundation for the decision, as the court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment. But until Furman v. Georgia 408 U.S. 238 (1972), the court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offence or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution.

Although this issue was presented and addressed in Furman, it was not resolved by the court. Four Justices would have held that capital punishment is not unconstitutional per se; two Justices would have reached the opposite conclusion; and three Justices, while agreeing that the statutes then before the court were invalid as applied left open the question whether such punishment may ever be imposed.

We now hold that the punishment of death does not invariably violate the Constitution”

(Italics supplied for emphasis)

I need, perhaps, conclude by pointing out that in Furman v. Georgia (1972) 408 U.S. 238 which was referred to in Gregg’s case, (supra), the U.S. Supreme Court held that the imposition of the death sentence under Georgia (and Texas) statutes constituted cruel and unusual punishment in violation of the Eighth and the Fourteenth Amendments. This was because under these statutes, the juries had untrammelled and irreconcilable discretion to impose or withhold the death penalty at will. Furman’s case was, therefore, decided on grounds of the arbitrary, selective and discriminatory nature of the power to impose or withhold the death penalty under the particular statutes. The position in the U.S., therefore, is that capital punishment of the death penalty is not per se unconstitutional although in certain circumstances where its application is arbitrary, selective or discriminatory it cannot but be declared unconstitutional.

As against the position in the United States of America is the provision of 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 con of the death penalty is unqualified under the Constitution of the Republic of Hungary. So, in the Hungarian case of Jones v. Wittenberg 33 FSUPP. 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.

There is finally section 14(1) of the Constitution of Jamaica which provides as follows:-

‘No person shall intentionally be deprived of his life save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted”,

Section 14(1) of the Jamaican Constitution is in pari materia with section 30(1) of the Constitution of the Federal Republic of Nigeria, 1979 which provides thus:-

“Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria”,

There is also section 17 of the Jamaican Constitution which provides as follows:”

17(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed date.”

A close study of the provisions of section 17 of the Constitution of Jamaica clearly reveals that they are in pari materia with those of section 31 (1)(a) of the Nigerian Constitution which, for ease of reference, run thus:-

“31 (1)Every individual is entitled to respect for the dignity of his person, and accordingly:-

(a) no person shall be subjected to torture or to inhuman or degrading treatment”.

In Noel Riley and others v. Attorney-General for Jamaica and another (1983) 1 A.C. 719 (P.C) at page 726, Lord Bridge of Harwich, delivering the judgment of Her Majesty’s Privy Council in the United Kingdom with regard to the constitutionality of the death sentence in Jamaica had this to say, namely:-

Quite apart from section 17 of the Constitution, the continuing constitutional validity of the death sentence is put beyond all doubt by the provision of section 14(1)”.

So, too, in Earl Pratt and Another v. Attorney-General for Jamaica and another (1994) 2 A.C. I (P.C) at pages 28 and 29, Lord Griffiths, again delivering the judgment of the Privy Council, observed as follows:-

“The purpose of section 17(2) is to preserve all descriptions of punishment lawful immediately before independence and to prevent them from being attacked under section 17(1) as inhuman or degrading forms of punishment or treatment. Thus, as hanging was the description of punishment for murder provided by Jamaican law immediately before independence, the death sentence for murder cannot be held to be an inhuman description of punishment for murder.”

The combined effect of Her Majesty’s Privy Council decisions in the Noel Riley and Earl Pratt cases illustrates the constitutional validity of the death penalty in Jamaica on the ground that the right to life as entrenched in the Jamaican Constitution is a qualified and not an unqualified right.

I think it is necessary to stress at this stage that in the face of the fact that sections 14(1), 17(1) and 17(2) of the Jamaican Constitution are clearly in pari materia with sections 30(1) and 31(1)(a) of the Constitution of the Federal Republic of Nigeria 1979, the qualified nature of the right to life in both Constitutions and the ratio de cidendi in the Noel Riley and Earl Pratt cases which, with respect, I totally endorse, 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(1)(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(1) 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 quarters 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.

Learned counsel for the appellant, however, submitted that the right not to be subjected to torture, inhuman or degrading treatment protected under section 31 (1)(a) of the 1979 Constitution is a non-derogable right, that is to say, one of the rights that may not be derogated from by legislation. It was contended that the specific rights in respect of which the Constitution permits derogation by legislation are set out in section 41 (1) and (2) of the Constitution.

Section 41 (1) and (2) of the Constitution provides as follows:-

“41 (1)Nothing in sections 34, 35, 36 as amended, 37 and 38 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society –

(a) in the interest of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedoms of other persons;

(2) An act of the National Assembly or a Decree shall not be invalidated by reason only that it provides for the taking, during periods of emergency, or measures that derogate from the provisions of section 30 or 32 of this Constitution …”

It seems to me that where as section 41 of the Constitution lays down a saving clause, a proviso or a qualification with regard to sections 34, 35, 36 as amended, 37 and 38 thereof, the framers of the Constitution maclean in-built saving clause, proviso or qualification in section 30(1) of the Constitution whereby the first pan of the said section 30(1) is a general statement as to the right of every person to life, which right is qualified by the subsequent pan that permits death penalty in execution of the sentence of a court in respect of a criminal offence in Nigeria. 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 pan of that section, the Constitution, in plain language, recognizes and protects the right to life. By its subsequent part, however, which may be described as the “proviso” or “qualifying clause” to the first pan, 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(1) 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. I will have cause to say more on this latter issue later in this judgment.

Learned counsel for the appellant next attacked the inevitable but reasonably long wait between the imposition of the death sentence and the actual infliction of death, commonly known as the “death row phenomenon”. He argued that this has been a crucial factor in the characterization of the death penalty as a “cruel, inhuman and degrading” treatment. He drew the attention of the court to a number of decisions of the Privy Council in respect of appeals from some foreign jurisdictions and stressed that the appellant in the present appeal has been on the death row for 13 years. He described this as a violation of the protection from torture, inhuman and degrading treatment entrenched under section 31(1)(a) of the Constitution. He also attacked the process of execution of a convicted murderer by “hanging” and submitted that this is barbarous and cruel and deprives the convict of all vestiges of human dignity.

Turning, firstly, to the question of the death row phenomenon, it seems tome, with the greatest respect to the learned Senior Advocate, that the many foreign decisions cited before us in this regard are hardly relevant in the present proceedings. In the first place, there is a procedure prescribed in section 42 of the 1979 Constitution for seeking a redress in respect of a breach of fundamental rights, including such as those provided under section 31(1)(a)of the Constitution. 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) I All NLR 226.

Section 42(1) and (2) of the said Constitution provides thus:-

“42(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this Chapter.”

It is thus 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, lies 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.

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.

In Earl Pratt and Another v. Attorney-General of Jamaica, (supra) the applicants were convicted for murder in January, 1979 and sentenced to death. At the conclusion of their appellate remedies, their convictions and sentence were affirmed. Thereupon they filed a fresh application in the Supreme Court of Jamaica claiming breach of their fundamental human right for having been subjected to inhuman and degrading treatment following the prolonged delay between their sentence and the proposed date of their execution. The point to be noted here is that the proceedings in issue were commenced in the Supreme Court of Jamaica, account of first instance. The fundamental right issue was not raised or determined in a court of appellate jurisdiction. It was initiated and determined by a court of original jurisdiction, although it was prosecuted up to the highest appellate court, the Judicial Committee of the Privy Council, in the United Kingdom.

The above procedure was also followed in the case of Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General. Zimbabwe and others, (supra). In that case, the prisoners had been tried and convicted for murder and sentenced to death. Having unsuccessfully exhausted their appellate remedies, fresh proceedings by way of application were filed on their behalf seeking for an order to prevent their execution. The central issue for resolution was whether supervening events by way of prolonged delay between their conviction and the proposed date of their execution, viewed in conjunction with the harsh and degrading conditions under which they had been confined had rendered their proposed execution cruel, inhuman and degrading in contravention of section 15(1) of the Constitution of Zimbabwe and, therefore, unconstitutional. There are also the cases of Fisher v. Minister of Public Safety and Immigration and others (1998) 3 WLR 208 (P.C) from the Common wealth of the Bahamas, Lincoln Anthony Guerra v. Cipriani Baptist and others (1996) 1 A.C. 397 (P.C.) from the High Court of the Republic of Trinidad and Tobago and Noel Riley and Others v. Attorney-General of Jamaica (1983) 1 A.C. 719 (P.C.) from the Supreme Court of Jamaica, all of which were initiated in separate proceedings before their respective courts of first instance.

In the circumstance, it seems to me that the question of whether or not the execution of the appellant would infringe his constitutional rights not to be subjected to torture or to inhuman or degrading treatment pursuant to the provisions of section 31(1)(a) of the Constitution is a matter for determination by the High Court in a separate action or proceeding instituted by the appellant for that purpose. Such is the only court upon which section 42 of tile Constitution confers original jurisdiction to entertain the matter in issue and it will be unconslitutional for this court to assume jurisdiction and decide the question in the present appeal. Learned Senior Advocate also launched a vehement attack on the process of execution of the death sentence in Nigeria. He described this process as sordid. He made reference to an article written by Professor Chris Barnard in the Rand Daily Mail of June 12, 1978 and quoted by the South African Constitutional Court in the case of The State v. Makwanyane, (supra) in the following terms-

‘The man’s spinal cord will rupture at the point where it enters the skull, electrochemical discharges will send his limbs flailing in a grotesque dance, eyes and tongue will start from the facial apertures under the assault of the rope and his bowels and bladder may simultaneously void themselves to soil the legs and drip on the floor…”

Learned counsel further referred to the observation of O’ Regan, J., of the South African Constitutional Court where he commented on the above description as follows:-

“This frank description of the execution process leaves little doubt that it is one which is destructive of human dignity …”

The above may very well be the case. With profound respect to learned counsel, however, I cannot see that relevance, in this appeal, of whatever process that is employed in the execution of a condemned prisoner. Without doubt, the foreign decisions cited on the point would appear academic and truly interesting. However, in all those cases pertaining to the death row phenomenon and/or the alleged barbarity or otherwise of execution by hanging, it was not the constitutionality of the death penalty as a form of punishment that was being challenged as in the present appeal. The question revolved around the undue delay in the execution of the death sentence, the deplorable conditions under which the prisoners awaiting execution were confined which gave rise to inhuman and degrading treatment and the mode or manner of execution. These issues do not directly arise for decision in this appeal.

Now, to conclude, there can be no doubt that the central question before this court is whether or not the death penalty in Nigeria should be abolished. Although the arguments against capital punishment may be proper basis for legislative abolition of the death penalty, the authority for any action abolishing the death penalty is clearly not a maner for the law courts. Nor have I found myself able to hold that this court is entitled to repeal or revoke laws ostensibly based upon notions of public policy or sanction simply because such laws, for one reason or the other, are said to be unacceptable to a group of persons or a section of society.

Such repeal or revocation is within the exclusive jurisdiction of the legislature except, of course, such laws are attacked by due process of law on grounds such as unconstitutionality, illegality or the like.

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(1) of the Criminal Code of Lagos State unconstitutional. On the contrary, there are sections of the Constitution, such as sections 30(1), 213(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 (1) 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.

The second part of issue 2 poses the question whether assuming the said section 319(1) of the Criminal Code of Lagos State is null and void; the affirmation of the death sentence passed on the appellant by the Court of Appeal was not consequently erroneous on point of law. In view of the decision I have reached in respect of the first part of that issue, the second part is non-sequitur and does not now arise. It is enough to state that having regard to the overwhelming evidence tendered against the appellant, accepted by the trial court and affirmed by the Court of Appeal, the affirmation of the death sentence passed on the appellant by the Court of Appeal cannot be faulted. I will now pass on to the first issue.

The first issue for determination concerns the validity of the appellant’s plea before the trial court. The appellant’s contention is that his arraignment before the trial court was invalid and that the same was not in compliance with the mandatory provisions of section 215 of the Criminal Procedure Law Cap. 32, Laws of Lagos State of Nigeria, 1973 and the constitutional protection contained in Section 33(6) (a) of the Constitution of the federal Republic of Nigeria, 1979.

Section 215 of the Criminal Procedure Law, Cap. 32, Laws of Lagos State provides as follows:-

“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and 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 such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”

There is also the provision of section 33 (6) (a) of the 1979 Constitution which provides thus:-

“33(6) Every person who is charged with a criminal offence shall be entitled

(a) to be informed promptly in the language that he understands and in detail of the nature of the offence”.

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 infact 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, Godwill Josiah v. The State (1985) 1 NWLR (Pt.1) 125; (1985) 1 SC 406 at 416, Ogbada Ebem v. The Stare (1990) 7 NWLR (Pt 160) 113; Sanmabo v. The State (1967) NMLR 314, Akpiri Ewe v. The State (1992) 6 NWLR (Pt. 246) 147; Okon v. The State (1991) 8 NWLR (Pt. 210) 424 etc.

It is plain to me that the said mandatory requirements laid down for a valid plea together with the provisions of Section 33 (6) (a) of the 1979 Constitution have been provided mainly to guarantee the fair trial of an accused person and thus safeguard his interest at such a trial. I will now examine the appellant’s arraignment which is under attack in the present proceedings.

The appellant was arraigned on the 6th day of March, 1984 before Omotosho, J., as she then was, as follows:-

“Accused person present, Arthur-Worrey for the State. Oyesiku for the accused.

Court – The accused shall be arraigned.

Arraignment – Charge is read and explained to the accused in English.

Plea – Not guilty.”

The question for determination is whether or not the appellant’s arraignment before the trial court as above reproduced was defective and null and void or otherwise valid and in full compliance with the law.

The submission of learned counsel for the appellant is that the conditions set out in the case of Sunday Kajubo v. The State (supra) and Samuel Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385 which are in line with the three requirements under section 215 of the Criminal Procedure Law which I have already set out were not satisfied.

In Samuel Erekanure v. The State (supra), Olatawura, J.S.C. who delivered the leading judgment of this court noted, with approval, the statutory conditions (and they are three) for a valid arraignment laid down in the Sunday Kajubo case. Said Olatawura, J.S.C.:-

“These requirements [for a valid arraignment] although familiar, were not followed by the trial court. These requirements which have been spelt out in Sunday Kajuba v. The State (1988) 1 NWLR (Pt.73) 721/731 and 737 are:

1. The accused must be present in court unfettered, unless there is a compelling reason to the contrary:
2. The charge must be read over to the accused in the language [that] he understands;
3. The charge should be explained to the accused to the satisfaction of the court:’
4. In the course of the explanation technical language must be avoided;
5. After requirements 1 to 4 have been satisfied, the accused will then be called upon to ‘plead instantly’ to the charge.”

(Words in brackets and italics supplied for emphasis)

I think it ought to be noted that although the requirements set out in the Samuel Erekanure case are five in number, a close study of these conditions or requirements shows that the 2nd, 3rd and 4th thereof jointly constitute the 2nd requirement in the Sunday Kajubo case which prescribes that the charge shall be read over and explained to the accused to the satisfaction of the court by the Registrar or other officer of the court. I make this observation as there is hardly any difference between the three requirements prescribed in the Sunday Kajubo case and the five set out in the case of Samuel Erekanure.

The argument of learned counsel for the appellant is that although the 1st and 3rd requirements in the Sunday Kajubo case were complied with by the learned trial Judge, it is his submission that the second requirement was not met in that:-

(i) There was no evidence on record that the charge was explained to the appellant avoiding, as much as possible, the use of technical expressions;

(ii) The trial Judge merely presumed and did not record that the appellant understood the charge to the satisfaction of the court.

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 where upon 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.

The learned trial Judge was accused of “presuming” that the appellant understood the English language hence the information was explained to the said appellant in the English language before he entered his plea of not guilty. Again, with respect to learned counsel, I cannot see how the issue of the court’s alleged presumption that the appellant understood the English language arises in this appeal. 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 or 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 …”

I entertain no doubt that the appellant wrote, spoke and understood the English language perfectly well, that the information was explained to him in the English language and that he entered his plea of “Not Guilty” thereto in the English language.

I think I need no state that the decisions in the Sunday Kajubo and Samuel Erekanure cases are easily distinguishable from the facts of the present case. In those two cases, the record of proceedings did not indicate that the basic ingredient of a valid arraignment to the effect that the charge or information was read over and explained to the accused person was complied with. The situation in the present case is entirely different and did not involve any violations of the principles laid down in the Sunday Kajubo and Samuel Erekanure cases. It is my view that the arraignment of the appellant before the trial court was entirely valid and in accordance with the law.

I ought in this connection to draw attention to section 150(1) of the Evidence Act which provides thus:-

“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”. (Italics supplied for emphasis)

The arraignment of the appellant was both a judicial and an official act. It was also carried out in a manner which was substantially regular. In my view, the maxim omnia preseumuntur rite esse acta come into play and becomes applicable in the matter of the validity of the arraignment in issue. Accordingly issue 1 is hereby resolved against the appellant 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.

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SC.24/1996