Ayodele Adetokunbo V. The State (1984)

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BELLO, J.S.C. 

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

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

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

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

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

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

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

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

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

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

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

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

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