Search

ONUOHA KALU VS THE STATE

SC. 24/1996

[1998] 12 SCNJ 1

SUPREME COURT OF NIGERIA

M.L. UWAIS, C.J.N.,

S.M.A. BELGORE,

A.B. WALI,

LL. KUTIGI,

M.E. OGUNDARE,

E.O. OGWUEGBU

and A.I. IGUH, JJ.S.C.,

 at Abuja on Friday, December
18, 1998 (1998) 13 NWLR (Pt. 583) 531

 

CONSTITUTIONAL
LAW – death penalty – constitutional provisions which accord recognition to
death penalty as a form of sentence – whether death penalty constitutional.

CONSTITUTIONAL
LAW – death penalty – whether imposition of it subject to any form of
arbitrary, discriminatory or selective exercise of discretion in Nigeria –
abolition of it matter for legislature. CONSTITUTIONAL LAW – right to life –
subject to qualification in Nigeria.

CRIMINAL
PROCEDURE-arraignment-conditions required for valid and proper arraignment of
accused-need to comply with s. 215 of Criminal Procedure Law.

CRIMINAL
PROCEDURE-arraignment -whether proper where record states that charge was read,
interpreted and explained to accused before he pleaded to charge without stating
that the court was satisfied that he understood the charge-whether sufficient
compliance with s. 215 of Criminal Procedure Law – presumption of regularity in
favour of compliance resulting in validity of the arraignment by virtue of s.
150(1) of Evidence Act.

CRIMINAL
PROCEDURE – death penalty – constitutional provisions which accord recognition
to death penalty as a form of sentence – whether death penalty constitutional,

FUNDAMENTAL
HUMAN RIGHTS -death row phenomenon, right to life, right to private and family
life, peaceful assembly and association and freedom of the press-can be
enforced by substantive actions initiated only in the High Courts.

FUNDAMENTAL
HUMAN RIGHTS – redress for breach of it – need to follow procedure prescribed
for it under s. 42(1)of 1979 Constitution -original jurisdiction vests in High
Courts only-issues relating to it which may be raised in appellate courts-those
which may be raised or enforced by substantive action initiated in the High
Courts only rather than other matters which are incidental to matters in lower
courts
.

 

LEAD
JUDGMENT

(Delivered
by A. I. 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 Kale
(m) on or about the 24th day of August, 1981 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. The rushed out only to see the deceased lying down in a pool of blood.
He denied stabbing the deceased.

 At
the conclusion of hearing, the learned trial judge, Omotoso, J. as she then
was, after a thorough review of the evidence on the 30th day of July, 1985,
found the appellant guilty as charged. He was accordingly sentenced to death
pursuant to the mandatory death penalty prescribed by Section 319 (1) of the
Criminal Code of Lagos State for the offence of murder.

 Dissatisfied
with this decision of the trial court, the appellant lodged an appeal against
his conviction and sentence to the Court of Appeal, Lagos Division. The Court
of Appeal, in a unanimous judgment, on the 7th day of June, 1995, dismissed the
appeal and the conviction and sentence passed on the appellant were affirmed.
It is against this judgment of the court below that the appellant has now
appealed to this court on a four point amended grounds of appeal. 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 as 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
tome 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 part, identified the under-mentioned 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 of 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. S.A.N., Dr. Ilochi A Okafor, S.A.N., Chief
F.O. Akinrele, S.A.N. end 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 outer 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 of 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, [198811 N.W.L.R. (pt. 73) 721 and Samuel Erekanure v. The State, (19931
5 N.W.L.R. (pt. 294) 392, 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, inhuman 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 inconsistency 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
Section 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 Nigeria 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 maybe 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 (Z S.C), The State
v. Makwanyane and Another [1995] (6) B.C.L.R. 665 (C C), Lincoln Anthony Guerra
v. Cipriani Baptiste and others [1996]1 AC. 397 (P.C.), Earl Pratt and Another
v. Attorney-General for Jamaica [199412 AC. 1, Fisher v. Minister of Public
Safety and Immigration and others [1998] 3 W.L.R. 201(P.C.), Noel Riley and
others v. Attorney-General of Jamaica [19831 AC. 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 be 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 negated the essential
statement of the right to life. He contented 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 aid 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 context 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 context 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 invited the court to 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 119881 1 N.W.L.R. (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 act, 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 defence 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 obiter dicta 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 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
any one 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 recognized 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 and
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 N.W.I..R. (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 recognized by Section 30(1) of the Constitution
cannot be said to be unconstitutional nor does it amounts 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 a measured 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 context 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 I 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 1 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 of Section 30 (1) of the 1979 Constitution which authorizes 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 [1980] 8 – 11 S.C. 130
and Attorney-General of Ogun State v. Attorney-General of the Federation [1982]
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 his 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 Cruel, 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] 11 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 per se 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 Section 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.AN., in which, on issue 1, 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 Abodunde and others v. The Queen [1959] 4
F.S.C. 70, Ankwa v. The State (1969] 1 All N.L.R. 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 of
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 Mbushuu
v. The State (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) SA239, Makwanyane v. The State [1995]
(6) BCLR 665 (C.C.), Bacan Singh v. State o£ Punjab [1983] (2) S.C.R 583,
Kindler v. Canada [1992] 6 CRR (2ND) 193 (SSC), Furman v. Georgia (19721408
U.S. 238, 33 L. ED 2d 346, 92 S ct. 2726, Riley v. Attorney-General for Jamaica
[1983] 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] 11 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 is 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 AB. 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 Nafiu
Rabiu v. The State [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 Section 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 Section
213(2)(d) and 220(1)(e) of the 1979 Constitution, clearly recognize 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
recognized 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, to, 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 1197911
W.L.R. 1342, Riley and others v. The Attorney-General of Jamaica [1983] 1 AC.
719, Madhu Mehta v. Union of India [1989] 3 S.C.R. 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 Federation, Abdullahi Ibrahim Esq., SAN, was unavoidably
absent but was ably represented by M.I.N. Duru, Esq., Director of Public
Prosecutions of the Federation. Similarly, Chief F. O. Akinrele SAN, 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 [19901 7 N.W.L.R. (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] 2 N.S.C.C. 900,
Attorney-General of the Federation and others v. Sade and other [1990] 1
N.S.C.C. 271, Tukur v. Government of Gongola State [1987] 4 N.W.L.R. (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
the 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 civilized 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 us 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;

(u) In the
above regard, all the relevant provisions of the Constitution must be read
together and not disjointly. See Ojokolobo v. Alamo [1987] 1 N.W.L.R. (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 [198018-11 S.C. 130, Attorney-General of Ogun State v.
Attorney-General of the Federation [1982] 2 S.C. 13, Chief Dominic Ifezue v.
Livinus Mbadugha and Another [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, its 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 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 State (supra), Senator Adesanya v. President of the Federal
Republic of Nigeria [1981] 5 S.C. 112, Attorney-General of Bendel State v.
Attorney-General of the Federation [1981] 10 S. C. 1, Ade Ogugu and others v.
The State [1994] 9 N.W.L.R. (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 in fact 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.”
(Underlining 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 are court of law in Nigeria in a
criminal offence. In other words. Section 30(I) 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
Section 213(2)(d) and 220(1)(e) of the Constitution. Section 213(2) 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.” (Underlining supplied)

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.” (Underlinings supplied for emphasis)

 It is
plain to me that apart from the provisions of section 30(1), there are also
provisions of Section 213(2)(d) and 220(1)(e) of the Constitution which, again,
in no mistakable 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 thereof 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)(e) of the Constitution,
whether it can be seriously argued, as the appellant now appears to do, that
section 319(1) of 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 de scribed 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 submitted that the death penalty
which inescapably amounts to torture, inhuman and degrading treatment must,
ipso facto, be unconstitutional.

Upon a
careful perusal or the various foreign authorities m which our attention was
drawn by the appellant, the opinion that the death penalty per se amounts to
torture, inhuman end 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
unaqualified, 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 a 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 sentence 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 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 11(2) of our Constitution. In this respect our Constitution differs
materially from the Constitutions of the United State 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 uniforms. 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, whist a person who commits murder and is brought to
trial in another part of the same province, can be sentenced to death. There is
no rational reason for this distinction, which is the result of history, and we
asked for argument to be addressed to us on the question of whether this
difference has a bearing on the constitutionality of Section 277(1)(a) of the
Criminal Procedure Act.”

 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
times 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
recognises 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 ;,         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 ash does not invariably violate the
Constitution. “ (Underlining 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 untrammeled 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 or 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 context of the death penalty is unqualified under the Constitution of
the Republic of Hungary. So, in the Hungarian case of Jones v. Wittenberg 33 F
SUPP. 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 e 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
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 nari materia with those of Section 31(1)(a) of
the Nigeria 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 AC.
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
aside from Section 17 of the Constitution, validity of the death sentence is
put beyond all doubt by the provisions of Section 14 (1).”

 So,
too, In Earl Pratt and Another v. Attorney-General for Jamaica and Another
[1994] 2 A.C. 1(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 decidendi 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, 19,79 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 statutes, 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 of 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 Section 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 whereas Section 41 of the Constitution lays down a saving
clause, a proviso or a qualification with regard to sections 34,3S, 36 as
amended, 37 and 38 thereof, the framers of the Constitution made an inbuilt
saving clause, proviso or qualification in Section 30(1) of the Constitution
whereby the first part 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
part that permits death penalty in execution of the sentence of a court in
respect of a criminal offence in Nigeria. It appears tome 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 alter of sheer technicality. By the first part of that section,
the Constitution, in plain language, recognises and protects the right to life.
By its subsequent part, however, which may be described as the “proviso” or
“qualifying clause” m the first part, that same section, in clear terms,
permits life to be taken in execution of the sentence of a court in respect ore
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
or 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 unreasonably 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 6f all vestiges of human dignity.

 Turning,
firstly, to the question of the death row phenomenon, it seems to me, 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 19,79 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] 1 All N.L.R. 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 maybe entitled under this.

 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 N.W.L.R. (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
maybe raised in an appeal m 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 proceeding’s 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, or 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 m 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, a court 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 W.L.R. 208 (P.C.) from the
Commonwealth of the Bahamas, Lincoln Anthony Guerra v. Cipriani Baptiste and
Others [1996] 1 A.C. 397 (P.C.) from the High Court of the Republic of Trinidad
and Tobago and Noel Riley and Ors. v. Attorney-General of Jamaica [19831 AC.
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 the Constitution confers original jurisdiction to entertain the matter in
issue and it will be unconstitutional 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 front 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 Constitution 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 the 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 questions 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 matter 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 that 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 (11) 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. I n 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 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(69a) 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 objection 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 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 person 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 intact not been duly
served therewith.

The
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 N.W.L.R. (pt. 73) 731 at 732, Eyorokoromo v. The
State [1979] 6-9 S.C. 3, Godwin Josiah v. The State [1985] 1 S.C. 406 at 416,
Ogbodo Ebem v. The State [1990] 7 N.W.L.R. (pt.160) 113, Sanmubo v. The State
[1967] N.M.L.R. 314, Akpiri Ewe v. The State [1992] 6 N.W.L.R. (pt. 246) 144,
Okon v. The State [1991] 8 N.W.L.R. (Pt. 310) 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.

Else – 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 N.W.L.R. (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 court. These requirements which have been spelt out in Sunday Kajubo v. The
State [1988] 1 N.WL.R. (pt. 73) 721 at 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 1-4 have been satisfied, the accused will then be called
upon to plead instantly to the charge.” (Words in brackets and underlinings
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. have closely studied the retard of
the 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 fan +a whereupon he leaded no Boil v 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 Start proceedings of the 24th October, 1983, 17th November,
1983, 7th day of February, 1984 and the 6th day of March, 1984 at pages 31, 32,
35 and 36 of the record of proceedings, there is clear evidence that the
appellant on all those occasions communicated with the trial court in the
English language. There is also the protracted evidence of the appellant in his
defence before the trial court on the 15th day of April, 1985. This evidence
which covered several pages of the record of proceedings was also given by him
in the English language. The learned trial judge who has always impressed me as
meticulous in the manner she kept her records clearly indicated at the
beginning of the evidence of the appellant thus:

“Defence:-
The accused himself.

Sworn on
the Bible. States in English.

My name is
Onuoha Kalu…………….

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 to 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 eeffect the charge or
information was read over and explained to the accused person was compiled
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 Erekshre 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.” (Underlining supplied for emphasis)

The
arraignment of the appellant was both a judicial and unofficial act. It was
also carried out in a manner which was substantially regular. In my view, the
maxim omnia praesumuntur rite esse acta comes 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.

 

M.L. UWAIS,
C.J.N.

 I
have had advantage of reading in draft the judgment read by my learned brother,
Iguh, J.S.C. I entirely agree with him.

 However,
I wish to add the following merely by way of emphasis, the facts of the case
having been fully stated by may learned brother, Iguh, J.S.C. The first of the
two issues for determination challenges the finding of the Court of Appeal
(Uwaifo, Ayoola, JJ.C.A as they were then, and Pats-Acholonu, J.C.A.) that the
appellant was properly arraigned before the trial court (Omotoso, J. as she then
was) in accordance with the provisions of Section 215 of the Criminal Procedure
Law, Cap. 32 of the Laws of Lagos State, 1973 and the decision of this court in
Kajubo v. The State, [1988] 1 N.W,LR. (pt. 73) 721. In his submission, learned
counsel to the appellant, Mr. Agbakoba, SAN, also cited the case of Erekanure
v. The State, [1993] 5 N.W.L.R. (pt. 294) 392, another decision of this court
which followed the decision in Kajubo’s case.

 Now
section 215 of the Criminal Procedure, Law, which is headed “Recording of
Plea.”

The Section
provides

“215.      
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.”

 These
provisions were read in conjunction, with those of section 33 subsection (6) of
the 1979 Constitution, which deals with the fundamental right to fair hearing.
It reads, as relevant, as follows:

“(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.”

(b)
…………………………………………..

(c)
…………………………………………..

(d)
…………………………………………..

(e) to have
without payment the assistance of an interpreter if he cannot understand the
language used at the trial of the offence.”

 It
was found in both Kajubo’s case and Erekanure’s case that these provisions were
not, in the circumstances of the two cases, satisfied. In Kajubo’s case the
record of proceedings read thus:

“Court:
Registrar take the plea of the accused on the amended charge.

Accused:
1st Count: Pleads Not Guilty

2nd Count:
Pleads Not Guilty”

In
Erekanure’s case the record of proceedings read-.

“M.I.
Edokpayi, Senior Counsel for the State. J.E. Sharkarho for the accused.

Charge read
to the accused. He pleads not guilty to the law court (sic). Prosecution opens
its case.”

While in
the present case the record of proceedings show the procedure followed in the
trial court to be 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.”

 It is
quite clear from the foregoing that the procedure followed in the present case
cannot be said to be on all fours with that followed in the cases of Kajubo and
Erekanure (supra). However, learned counsel for the appellant argued that there
was no evidence on record to show that the charge was explained to the Accused,
avoiding as much as possible, the use of technical expressions and that the
learned trial judge merely presumed and did not record that the Accused
understood the charge to the satisfaction of the court. The record shows that
the appellant spoke English, the language of the court was English, appellant
was represented by counsel throughout the trial and no complaint was made m the
learned trial judge that the charge was not explained. The record of
proceedings quoted above shows that the charge was in fact read and explained
to the Accused. If the appellant were challenging the accuracy of the record of
proceedings, there is a special procedure for doing so and the procedure has
not been followed. Therefore, the contention of the appellant that the charge
was not explained is contrary to what the record of proceedings indicates. It
is as such untenable.

With regard
to the learned trial judge failing to record that the appellant understood the
charge to her satisfaction and that she merely presumed he did, I think the
test here is objective and not subjective. If the learned trial judge was not
satisfied that the appellant understood the charge she would have ordered that
the charge be further explained to him. The presumption of regularity will not
accommodate the conjecture made by learned counsel for the appellant. The
learned Attorney-General of Lagos State was right when she made reference to
the provisions of Section 150 subsection (1) of the Evidence Act, Cap. 112 of
the Laws of the Federation, 1990 which accords the presumption of regularity to
a judicial act. The subsection provides –

“150(1)
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.”

 I now
turn to the appellant’s second issue for determination, which is the
constitutional issue that necessitated the invitation of learned counsel as
amici curiae (friends of courts). The question posed by the second issue is
whether section 319 subsection (1) of the Criminal Code of Lagos State, Cap. 31
of the Laws of Lagos State 1973, is inconsistent with Section 31 of the
Constitution of the Federal Republic of Nigeria, 1979 and for that reason is
null and void, contrary to the affirmation by the Court of Appeal of the
sentence of death passed on the appellant by the trial court.

Section 319
subsection (1) of the Criminal Code, simply provides:—

“319. (1)
Subject to the provisions of this section any person who commits the offence of
murder shall be sentenced to death.” While section 30 subsection (1) of the
1979 Constitution states—

“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.”

 It is
clear that the proviso to section 30 subsection (1) of the 1979 Constitution
which states – “ save in execution of the sentence of a court in respect of a
criminal offence of which he has been found guilty in Nigeria.” – applies to
the present case. The appellant was tried and convicted in Nigeria by a
competent Nigerian court. He was charged with the criminal offence of murder.
His contention is that not only is the sentence passed on him inconsistent with
section 30 subsection (1) of the Constitution but is also inconsistent with the
provisions of section 31 subsection (1) (a) which state –

“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.”

 The
question is: can the passing of a sentence of death recognised by the
Constitution in section 30 subsection (1) thereof be equated to torture and
degrading treatment? The contention of the appellant is that a sentence of death
is degrading and inhuman and therefore it is inconsistent with the provisions
of Section 31 subsection (1)(a) of the Constitution. In his effort to
substantiate the contention, learned counsel for the appellant cited a number
of cases decided in other jurisdictions of the world. Useful as those decisions
might be as persuasive authorities, with respect, I do not find them applicable
to the present case.

 The
position is Nigeria is very clear. Death sentence is a reality. It is provided
for by our criminal laws including section 319 subsection (1) of the Criminal
Code of Lagos State. Our Constitution also recognises the death sentence – see
in particular sections 31(1), 213(1)(d) and 220(1)(e) thereof. Therefore, the
sentence of death in itself cannot be degrading and inhuman as envisaged by
section 31 subsection (1)(a)