Eyo Okpo Vs The State (1972)
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UDO UDOMA, JSC.
The appellants was convicted in the High Court of the South Eastern State, Calabar, by Kooffreh, J., of the murder of one Anwana Bassey. He now appeals to this court against his conviction. The case of the prosecution against the appellant appears simple and straight forward.
The appellant had been away and had spent quite a long time in the Cameroons. His return home on 24th April, 1970, was a matter for rejoicing by his relatives and friends. His elder brother, Anwana Bassey, arranged a special reception for him to which he invited friends. There was plenty to drink, the appellant himself providing some of the drinks. There was general merriment including singing and dancing in which the appellant also played a prominent part.
The celebration of the return of the appellant took place in the house of Effiong Okpo (P.W.1) where both the appellant and Anwana Bassey were living at the time. While the drinking and merriment were in progress, Anwana Bassey was sitting outside with his back towards the house. The appellant in the course of dancing, entered into the house. He later emerged from the house with a matchet in his hand and all of a sudden, he inflicted a matchet cut on the back of the neck of Anwana Bassey. This caused the latter to shout: “Hold me! Hold me!” Thereupon, Okokon Iniokun (P.W. 2) who was nearby and had seen the appellant inflict the matchet cut, immediately rendered assistance with the help of Effiong Okpo (P.W.1), to Anwana Bassey who was then in great pain.
At the same time Effiong Okpo (P.W.1) caught hold of the appellant who was then still holding the matchet in his hand. Shortly thereafter, Anwana Bassey (hereinafter to be referred to as the deceased) who was then bleeding from the matchet wound died on the spot. The appellant willingly surrendered his matchet and when questioned why he had killed his own brother, answered that he had always intended to kill the deceased. The appellant was there and then taken to the Police Station, Oron. There, the appellant was arrested, charged, and after due caution, made a confessional statement, Exhibit 1A. The statement, Exhibit 1A is very brief and is set out in full hereunder. It reads:-
“I returned from Cameroon on the night of 24/4/70. On that morning, myself and my brother the deceased – Anwana Bassey bought drinks to welcome my return from Cameroons. As we were drinking, I went inside the house and brought a matchet which I used to cut Anwana Bassey on the neck. He fell down on the ground. I took the matchet and reported what I have done to the Police at Oron. The reasons why I cut him is because he bewitched me that I should not see any fortune in my life.”
At his trial, the appellant in his evidence retracted his confessional statement. Indeed, he said that on the fateful day when his brother was killed he was unconscious; that he did not even remember ever being at the Police Station, Oron; and that he became conscious only on the day that the case first came before the Magistrate and he was told at the Magistrate’s Court that his brother was dead. He denied telling the Police that his brother had bewitched him. He also denied killing his brother but remembered returning from the Cameroons and having drinks that day. The confessional statement having thus been retracted, it became necessary for the learned trial Judge to review thoroughly the whole of the evidence in the case in the search for corroboration. After applying the well-known test as prescribed by law, the learned trial Judge reached the conclusion that the confessional statement was amply corroborated in every material particular. In the event, he found as a fact that the statement was a free and voluntary confession, which the appellant made to the Police when he was fully conscious and the incident was fresh in his mind.
He rejected the evidence given by the appellant at the trial which he described as false, but accepted the case for the prosecution. The learned trial Judge also gave consideration to the possible defence of drunkenness and rightly, we think, dismissed it as untenable on the authority of R. v. Meakin 11 Cox 270; and Director of Public Prosecutions v. Beard (1920) AC 479. He finally found the appellant guilty of the murder of Anwana Bassey as charged.
We have, ourselves, carefully examined the proceedings and judgment in this case and are satisfied, in so far as the question of the guilt of the appellant is concerned, that the evidence against him is overwhelming; that the decision of the learned trial Judge that the appellant is guilty is amply supported by the evidence; that the case against him was proved beyond all reasonable doubt; and that Mr. Akinola, learned counsel who was assigned to argue the appeal, was justified in informing the court that he had nothing useful to urge on behalf of the appellant. But that is not the end of the matter. We observe that the learned trial Judge concluded his judgment by merely stating:“I find him therefore guilty of murder.”
He omitted to record the fact that he had convicted the appellant as well as sentenced him to death as prescribed by law. At the hearing of the appeal we considered this omission serious, and therefor drew the attention of both Mr. Akinola and Mr. Effanga to it. We think that the omission deserves comment by the court. We are of the view that the appellant having been found guilty, which was the verdict of the court, the fact of his having been convicted ought also to have been specifically recorded in the record of proceedings in the case. Then there is the omission to record the sentence which was passed on the appellant – a matter which was dealt with by this court in its unreported judgment in SC. 182/1968 – Mallam Gano v. The State delivered on 29th November, 1968. In that case the note made by the learned trial Judge as to sentence merely reads: “Sentence to death passed”. This court took the view that the learned trial Judge in that case had failed to incorporate in his judgement the statutory direction in terms of the provisions of Section 273 of the Criminal Procedure Code (Cap. 30) of the Laws of Northern Nigeria, which read: “When a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”
Section 273 of the Criminal Procedure Code mentioned above does not, of course, apply to the South Eastern State. The relevant law applicable to that State in this connection is contained in Section 367, 368 (1) and 369 of the Criminal Procedure Law (Cap. 31) of the Laws of the former Eastern Nigeria (1963) Vol. II, the provisions whereof are in the following terms:
“367. (1) The punishment of death is inflicted by hanging the offender by the neck till he be dead. (2) Sentence of death shall be pronounced in the following form – ‘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.’
368. (1) Where sentence of death has been passed such sentence shall only be carried out in accordance with the provisions of this Part.
369. A certificate under the hand of the Registrar, or other officer of the court, that such sentence has been passed, and naming the person condemned, shall be sufficient authority for the detention of such person.”
It is also provided in Section 319(1) of the Criminal Code (Cap. 30) under which the appellant was charged that –
“Subject to the provisions of this section any person who commits the offence of murder shall be sentenced to death.”
From the foregoing, it is plain that once a person has been found guilty of having committed the offence of murder, it is mandatory that he be sentenced to death. No other form of punishment can be inflicted. The sentence of death, when imposed or inflicted, must be pronounced in the terms of the provisions of Section 367 (2) of the Criminal Procedure Law; and ought also to be indicated in some form in the proceedings that such punishment or sentence has been inflicted or pronounced. We think the best form of indicating the sentence pronounced is to record it in the proceedings so as to show that the appropriate sentence prescribed by law has in fact been passed or pronounced. In the case on appeal, there is nothing to indicate what, if any, sentence was passed. Indeed, we are inclined to believe that the prescribed sentence was pronounced in open court since there is only one kind of sentence prescribed by law as punishment for the offence of which the appellant was found guilty.
But that, in our view, is not sufficient in a case of this kind as it is a mere presumption; for, even the record of proceedings and judgment does not contain a certificate under the hand of the Registrar of the court in terms of the provisions of Section 369 of the Criminal Procedure Law that such sentence was in fact passed, which should constitute authority for the detention of the appellant in custody after conviction. At this juncture we would like to repeat what we had said in our judgment at page 3 in Mallam Gano v. The State (supra) which was as follows:-
“In our view, the provisions of Section 26(3) of the Supreme Court Act give this court very wide powers and we think this court could invoke this section to supply that part of the sentence which the learned Judge inadvertently left out; but it appears to us that this is an error within the competence of the Judge himself, whose judgment could properly be said to suffer from an accidental slip or omission, to correct. In other words, it is a clerical error which the Judge himself can put right and the court has inherent power to deal with and put right such clerical error. In England, clerical errors can be put right under Order 20 Rule 11 of the Rules of the Supreme Court. In the Australian case Milson v. Carter (1893) AC 638; (62 LJPC 126) where an application was made at the instigation of the Supreme Court to the Privy Council to correct an error made by the Supreme Court, the Privy Council held that an application should be made to the Supreme Court to correct its mistake. In the course of the judgment their Lordships observed:
“Their Lordships do not doubt that the court has power at any time to correct an error in a decree or order arising from a slip or accidental omission, whether there is or is not a general order to that effect. A recent instance of the exercise of this power occurred after the lapse of forty years. The House of Lords in that case approved the view expressed “by the Court of Appeal in Mellor v. Swire (1885) 30 CH.D. 239: 53 LT 205.”
In the Mellor case (above), it is of some considerable interest to set out some of the views expressed by the court. Cotton, LJ., said:-
“But although it is only in special circumstances that the court will interfere with an Order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the court has jurisdiction over its own records, and if it finds that the Order as passed and entered contains an adjudication upon that which the court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced.”
In the same case, in his judgment, Bowen, LJ., added:
“I think the true view is, as stated by Cotton, LJ., that every court has inherent power over its own records, as long as these records are within its power, and that it can set right any mistake in them.It seems to me that there is inherent power in this court to do what is asked. I do not think it is necessary to fall back upon the rules, though I think rules might be discovered which would be found to assert the existence of this power in the court.”
In view of all these authorities, we are satisfied that this is a matter which the trial Judge can put right and we will not exercise our powers under Section 26 of the Supreme Court Act. In the result we would dismiss this appeal as without merit, the appellant having properly been found guilty of the offence charged.
Furthermore, we are satisfied that the failure to record that he was in fact convicted and that the sentence of death by hanging as prescribed by law was pronounced was due to inadvertence on the part of the learned trial Judge.
We now direct that this matter be brought to the attention of Kooffreh, J., and that he shall add to his finding of 14th July, 1971, appropriate words to the effect that the appellant was convicted of murder and sentenced to death as prescribed by Section 319 (1) of the Criminal Code and Section 367 (2) of the Criminal Procedure Law.
Other Citation: (1972) LCN/1587(SC)