Augustine Guobadia V. The State (2002)

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KUMAI BAYANG AKA’AHS, J.C.A. 

The accused/appellant stood trial for the offence of murder contrary to Section 319(1) of the Criminal Code Cap. 48 Vol. II Laws of Bendel State of Nigeria, 1976. He was found guilty and sentenced to death by hanging.

The charge read as follows:-

“STATEMENT OF OFFENCE

MURDER punishable under Section 319(1) of the Criminal Code Cap. 48 Vol. II Laws of Bendel State of Nigeria, 1976.

PARTICULARS OF OFFENCE

AUGUSTINE GUOBADIA on or about 5th day of February, 1987 at Ologbo in the Benin Judicial Division murdered one OSAZUWAMEN (m)”.

The facts are not in dispute. In the morning of 5/2/87, the accused started off to go to the farm with his father Sunday Guobadia who testified as PW3 and Victor. Half way to the farm, the accused changed his mind and returned home with his cutlass. He saw the two years old son of Rosaline his step-mother called Osamudiamen who was sleeping and cut his neck with the cutlass. The mother tried to rush the child to the hospital for treatment but he died on the way. The accused ran away from home but was later arrested the same day and he made two extra judicial statements where he admitted killing the child. In the course of recording the accused’s statements his age was put variously at 20 years and 21 years respectively.

Also during the investigation his father made a statement in which he stated that the accused was 17 years and that he was born in the year 1970.

In the course of trial, the statement in which the accused’s age was put at 20 years was tendered and marked Exhibit “B” and the cutlass, the murder weapon was marked Exhibit “C”. The extra judicial statement of the accused’s father was not tendered in evidence. No evidence whatsoever concerning the accused’s age was given during the trial. Five witnesses testified for the Prosecution. The accused also testified in his defence but called no other witness. Learned counsel thereafter addressed the court and the case was adjourned to 22/7/88 for judgment but judgment was not delivered until the 29/7/88. The defence was centred on Section 28 of the Criminal Code and learned counsel for the accused urged the court to hold that the accused’s mental capacity was impaired and therefore he was deprived of criminal responsibility. The defence was considered and rejected and the accused was accordingly found guilty of murder and sentenced to death by hanging.

The accused as appellant appealed against the judgment by filing the Notice containing two grounds of appeal. He later sought for leave which was granted on 22/1/2002 to file an additional ground of appeal. The grounds of appeal are:-

“1. That the learned trial judge erred in law in convicting the appellant of murder when there was no direct evidence before the court, that the appellant was responsible for the death of deceased.

2. That the decision of the trial judge is therefore unwarranted unreasonable having due regard to the evidence”.

The additional ground reads:-

“The learned Trial Judge erred in law by failing to consider the actual age of the Accused/Appellant by conducting an enquiry as to determine whether the accused/Appellant should enjoy the provision of Section 368(3) of the Criminal Procedure Law of the defunct Bendel State as applicable in Edo State.

PARTICULARS

1. The age of the Accused/Appellant was not conclusively proved to be 17 years at the time the offence was committed.
2. The Police ascribe the Appellant’s age to be 20.
3. The Appellant’s father said that the age of the Appellant was 17 years.
4. He was born in 1970.
5. Unless the Appellant was born in January or February 1970, he could (sic) have attained the age of 17 at the offence was committed.
6. No enquiry was made by the Judge
7. There was no evidence that the Appellant was born in January up to 5th February, 1970”.

Before going to the issues formulated I wish to observe that all the particulars given in support of the additional ground of appeal with the exception of Particular I are arguments which should be advanced in the appeal. See: AJAOKUTA STEEL COMPANY NIG. LTD v BIOSAH & Co. (NIG) LTD (1997) II NWLR (Pt. 527) 145; NZE v UNAKALAMBA (1998) 2 NWLR (Pt.537) 308.

Learned Counsel for the Appellant formulated the following two issues for determination namely:-

(a) Whether the appellant was properly convicted in the absence of the evidence of an eye witness.

(b) Whether the trial Court was right to have convicted the appellant for murder without considering whether the, age of the appellant was up to 17 years at the time the crime was committed as to affect sentence.

Learned State Counsel also formulated two issues for determination but different from those formulated by Appellant’s Counsel. The Respondent’s issues are:-

(1) Whether the age of the Appellant was one of the issues canvassed at the trial court; and

(2) Whether this Court can apply the provision of Section 368(3) of the Criminal Procedure Law in favour of the Appellant.

On issue No. 1 learned Counsel for the appellant conceded that the offence of murder was proved against the Appellant since the circumstantial evidence was very strong and pointed unequivocally to the killing having been committed by the Appellant who made a confessional statement. He also submitted that a defence of provocation was not available to the Appellant; neither that of self defence nor mistake. Learned Counsel agreed with the trial court’s finding that the killing of the deceased by the accused was a premeditated murder.

The defence put up at the lower court was that the accused’s mental capacity was impaired and therefore deprived of criminal liability. The trial judge rightly found that the accused did not suffer from any mental disease prior to the commission of the offence.

The issues being raised by learned Counsel in this appeal pertain to the recording and pronouncing of the sentence of death by hanging which was done by the trial judge without first ascertaining the actual age of the appellant. He argued that the evidence did not show conclusively that the appellant had attained the age of 17 years of age at the time he committed the offence of murder and so the trial judge could not presume that the appellant had attained the age without an enquiry or further evidence. He therefore submitted that the failure of the trial Judge to conduct any enquiry should be in favour of the Appellant and, cited the case of GEORGE v. THE STATE (1991) 9 NWLR (Pt. 214) 199. Although the issue was not raised in the lower court, this Court is in a position to apply the law in favour of the Appellant.

Learned State Counsel submitted that since the age of the Appellant was not one of the issues canvassed at the trial in the Court below, the appellant is not competent to raise it on appeal having not sought and obtained the leave of this Court to raise it. Reliance was placed on OFFORLETE v THE STATE (2000) 80 LRCN 2670; DURWODE v THE STATE (2000) 82 LRCN 3038 and OGOYI v UMAGBA (1995) ) NWLR (Pt. 419) 283. He submitted that before the age of an accused person standing trial can be an issue in an appeal, it must have been canvassed at the trial and relied on OKARA v THE STATE (1990) 3 NWLR (Pt. 140) 536. He went further to submit citing THE STATE v OGBUBUNJO (2001) 83 LRCN 125 at 160 to support the contention that this Court cannot look at the contents of the extra-judicial statements of Appellant’s father which were not tendered as exhibits in the lower court.

The issue as highlighted above in the submissions of Counsel fall within the contemplation of Sections 208 and 368(3) of the Criminal Procedure Law.

The Sections provide as follows:

“S.208 Where a person is before any Court and it appears to the Court that such person is an infant, or a child, or a young person or an adult, the court may make due enquiry as to the age of that person and for that purpose may take such evidence as may be forthcoming at the time, or at the time to which the enquiry may be adjourned but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the Court to be the age of that person shall for the purposes of this Law be deemed to be the true age of that person.

368(3) Where an offender who in the opinion of the Court had not attained the age of seventeen years at the time the offence was committed is found guilty of a capital offence sentence of death shall not be pronounced or recorded but in lieu thereof the Court shall order such person to be detained during the pleasure of the Governor and if so ordered he shall be detained in accordance with the provisions of Part 44 notwithstanding anything to the contrary in any written law”.

If the person who has been arraigned before the court is an infant or a child, the court is usually faced with no difficulty because the visual appearance of the accused would put the trial Judge on enquiry as to the accused’s age. In such a case, even if neither the prosecution nor the defence raise the issue of age in their evidence, the Court on its own motion will want to ascertain the age of the accused. Because of the advancement which has been recorded in Science and Medicine, the trial Judge need not base the age of the accused on presumption but could order that a DNA test be carried out. In such a way the result of the test will give an accurate age of the accused. See: H v H (1966) 1 All E.R. 356.

I must confess that I find some difficulty in interpreting Section 208 of the Criminal Procedure Law where, like it is the case in the present appeal, the issue of the age of the accused was not raised during the trial. Does it mean that the court must still go ahead to determine the age of the accused, even if he is an adult? I want to believe that an enquiry can only be made if age is made an issue or the trial Judge is not certain in his mind about the age of the accused especially when passing sentence in a capital offence. Thus in the case of MODUPE v THE STATE (1988) 4 NWLR (Pt. 87) 130 the appeal on sentence was allowed because the Appellant gave evidence about his age which the trial Judge disbelieved and proceeded to estimate his age which was not based on any evidence whatsoever. In the lead judgment, Oputa J.S.C. held at page; 137:-

“When there is only one version of an essential fact and that version is not patently and obviously improbable, a trial Court is not left with any option than to believe that which has not been controverted or contradicted in anyway”.

He went on to observe that –

“If the learned trial Judge was in any doubt as to age, when as in this case evidence of the proper age is material, he was obliged and obligated by the provisions of Section 208 of the Criminal Procedure Act not to estimate in vacuo the age of the Appellant but to “make due enquiry as to the age of that person and for that purpose may take such evidence as may be forthcoming at the time or at the time to which the enquiry may be adjourned…” If the trial Judge felt that the Appellant put his age rather low, he was at liberty to adjourn the case and call a medical witness to testify to the age of the Appellant as was done in OLADIMEJI (E.A.) v R (1964) 1 All NLR 131″.

See also: OKARA v THE STATE (1990) 3 NWLR (Pt. 140) 536. It was held in GEORGE v THE STATE (1991)9 NWLR (Pt. 214) 199 following OKARA v STATE supra that where there is evidence before the trial Judge that the Appellant was 17 years old at the time of the commission of the offence, the need to resolve the issue of the Appellant’s age or for the court to enquire as enjoined by Section 208 of the Criminal Procedure Act, a duty which can neither be ignored nor side tracked – no longer arose in the circumstances of the case and as such the Appellant is not entitled to the benefit of Section 30 of the Criminal Code.

As I have already stated no issue of the Appellant’s age was taken during trial in the lower court.

The extra-judicial statement of PW3 which was not tendered as evidence in Court cannot form part of the record of the appeal. See: STATE v OGBUBUNJO (2001) 83 LRCN 125 at 150.

In appropriate cases where it is alleged that such a statement was tendered but was deliberately left out of the records of appeal, this could lead to a nullification of the judgment since age would have formed a vital element in considering the sentence to be passed on the convicted appellant.

This in effect will amount to challenging the accuracy of the records and a party who is challenging the accuracy of the records must swear to an affidavit setting out the facts or part of the proceedings omitted in the record. See: EHIKIOYA v COMMISSIONER OF POLICE (1992) 4 NWLR (Pt. 233) 57. But such is not the case in this appeal.

There is a presumption that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. See: Section 149(d) Evidence Act; see also: OYEBISI v GOVERNOR OYO STATE (1998) 11 NWLR (Pt. 574) 441. Nothing stopped the defence from adducing evidence to show that at the time the Appellant committed the offence he had not yet attained 17 years of age and when PW3 testified but failed to state the age of the appellant, it must be presumed that he knew that appellant was more than 17 years of age when he committed the offence. The defence was also at liberty to suggest to the PW3 during cross-examination that his son was not up to 17 years of age when he committed the offence. This would have paved the way for the defence to invoke Section 209 Evidence Act to show that there was a contradiction between the sworn evidence of PW3 and the extra-judicial statement regarding the appellant’s age.

See: BENSON ESANGBEDO v THE STATE (1989) 4 NWLR (Pt. 113)57; DANLADI OZAKI & ANOR v THE STATE (1990)1 NWLR (Pt. 124)92 ISAAC SAMBO v THE STATE (1993)1 NWLR (Pt. 300) 399 and SAMUEL THEOPHILUS v THE STATE (1996) 1 NWLR (Pt. 423) 139.

The issue of the trial Court making enquiry into the age of the Appellant with a view to ordering that the Appellant be detained at the Governor’s pleasure could have probably arisen if the Court ordered the production of the case diary for its inspection. This a Court has power to do under Section 122 of the Criminal Procedure Code which is in operation in the Northern States. There is however no corresponding or similar provision under the Criminal Procedure Law applicable to Edo State.

Learned State Counsel has rightly argued that no leave was sought and granted to raise a fresh issue on appeal and so the issue distilled from the additional ground of appeal is incompetent. See: OFFORLETTE v STATE (2000) 80 LRCN 2670.

Although the pronouncement and recording of sentence of death on a person who has not attained the age of 17 when the offence was committed is an issue of law, in order for the appellant to raise it there must be evidence on record which casts a doubt as to his age when he committed the offence. Additional evidence needed to be adduced before an appeal on it can be sustained.

In view of all that I have said, I find that the appeal lacks merit and it is hereby dismissed. The sentence recorded and pronounced on the appellant is hereby affirmed.

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Other Citations: 2002)LCN/1208(CA)