Godwin Ikpasa Vs Bendel State (1981)
LawGlobal-Hub Lead Judgment Report
SIR UDO UDOMA, J.S.C.
There was in force and full operation throughout Nigeria under a unitary system of government one Criminal Code under the Criminal Code Ordinance from 1961 up to and including 30th September, 1954.
In it, the crime of murder was clearly defined; and the penalty prescribed to be visited upon anyone convicted of having committed the offence was death.
Then came the Constitution of 1954. On 1st October, 1954, by the Nigerian (Constitution) Order in Council 1954, Nigeria became a Federation, comprising three separate Regions, namely, Northern, Eastern and Western Regions, with Lagos constituted a Federal Territory but treated as a Region for all practical constitutional purposes, except that it was not endowed with a separate government and a separate legislature. Lagos was represented by a Minister in the Council of Ministers of the Federation.
He was styled the Minister for Lagos Affairs.Under the Constitution of 1954, the territory now known as Bendel State, consisting of the old Benin and Delta Provinces, then known as the Mid-western area, formed and was an integral part of the Western Region of Nigeria; and Criminal Law and Procedure was a residual subject. It was therefore necessary for each Region to enact its own Criminal Law and Procedure, with such modifications and adaptations as were considered necessary; which, in the Northern Region when finally enacted, assumed entirely new format and dimensions and was styled the Penal Code instead of the old Criminal Code; and the Criminal Procedure Ordinance became the Criminal Procedure Code Law, 1959; both of which did not actually come into force until 30th September, 1960.The Midwest area, being part of the Western Region of Nigeria, was therefore within the area of operation of the Criminal Code of the Western Region of Nigeria (Cap. 28), when enacted in 1955. In it, the offence of murder was also clearly defined and stipulated to attract the death penalty, on conviction.
In 1963, by the Constitution of the Federation Act (No. 20 of 1963), the Midwest area was excised from the Western Region of Nigeria and constituted a separate Region under the name and style of the Midwestern Nigeria, with its own separate government and legislature. By the operation of Sections 2, 3 and 4 of the Midwestern Region (Transitional Provisions) Act, 1963 (No. 19 of 1963), all, appropriate and relevant existing laws, including the Criminal Code Law and the Criminal Procedure Law in force and operating in Midwestern Nigeria as part of the Western Region of Nigeria continued with necessary modification in full force and effect in Midwestern Nigeria until amended or repealed.By the States (Creation and Transitional Provisions) Act, 1967 (No. 14 of 1967), the name Midwestern Region was changed to Midwestern State. My Lords, that situation continued and was the position of the Criminal Law in relation to the crime of murder in the Midwestern (later Bendel) State when on or about 17th May, 1974, the appellant, Godwin Ikpasa, was arrested and charged with the murder of his wife, Agnes Godwin, at Uti Village, Kokori. Had he then been taken before the High Court in the area, he would quite properly have been charged and tried under the Criminal Code of the Western Region of Nigeria as applicable to the then Midwestern (later Bendel) State of Nigeria,but he was not.
In the meantime, by the States (Creation and Transitional Provisions) Acts, 1976 (No. 12 of 1976), the name Midwestern State was changed to Bendel State, (See Sections 1, 5 and 6 of the Act and the Schedule thereto).Then in 1977, by the authority of the Laws of Bendel State (Promulgation Order, 1977) (B.S.L.N. 111 of 1977) of 15th December, 1977, the Revised Edition of the Laws of Bendel State of Nigeria, 1976, prepared under the Authority of the Revised Edition (Laws of Bendel State of Nigeria) Law, 1976 was promulgated and came into full force and effect on 3rd January, 1978.The Revised Edition of the Laws of Bendel State, 1976, contains the Criminal Code Law (Cap. 48) of Bendel State in which the offence of murder is again quite clearly defined in Section 316 in precisely the same terms and language as are to be found in Section 254 of the Criminal Code Law (Cap. 28) of the old Western Region of Nigeria. The Offence is punishable under Section 319(1) with death under the Bendel State Criminal Code, which is precisely again the same punishment prescribed under Section 257(1) of the Criminal Code of the Western Region of Nigeria.
Then in Section 4 of the Criminal Code Law of Bendel State there is to be found the following provisions:-
“4. Subject to the provisions of any Federal Law, no person shall be liable to be tried or punished in any court in the Bendel State for an offence except under the express provisions of the Code or of some Act, Law, Decree or Edict or some Order in Council made by Her Majesty for Nigeria which remains in force in, or forms part of the law of the Bendel State:Provided that in the case of an offence committed before the commencement of this Law, the offender may be tried and punished either under the law in force when the offence was committed or under the Code, provided that the offender shall not be punished to any greater extent than was authorised by the former law.”
It is to be observed that the whole of the provision of Section 4 of the Bendel State Criminal Code Law (Cap. 48), set out above appears to have been lifted verbatim from the provision of Section 4 of the Criminal Code Law of the Western Region of Nigeria (Cap. 28). Both sections are without doubt in pari materia.
By way of contrast there is no such provision in the Penal Code Law of the Northern Region of Nigeria (Cap. 89), which came into force on 30th September, 1960. This point is of considerable importance and needs to be emphasised as the effect of the difference would soon emerge.The Criminal Code Law of Bendel State (Cap. 48), having come into force, the appellant appeared before Akpovi, J., on the 31st July, 1978 in the High Court of Bendel State at Sapele. He was there charged with, and tried of having murdered Agnes Godwin on 17th May, 1974, and thereby committed an offence punishable under Section 319(1) of the Criminal Code of the Bendel State of Nigeria, 1976. After due trial, the appellant was found guilty, convicted and sentenced to death in terms of the provisions of Section 367(2) of the Criminal Procedure Law of Bendel State (Cap. 49) – wrongly recorded as Section 367(2) of the Criminal Code Law (Cap. 49). An appeal to the Federal Court of Appeal was duly heard and dismissed as without merit by Omo Eboh and Agbaje, JJCA., with Nnaemeka-Agu, JCA., dissenting and striking out the appeal on the ground that there was no appeal properly before the court because the Notice of Appeal filed by the appellant was fundamentally defective.On this appeal coming before your Lordships, a constitutional issue was raised and argued for the first time in this matter.The constitutional point argued by Mr. Akinrele, SAN., learned counsel for the appellant is implicit in the first ground of appeal filed. And, as stated in the brief filed by him, read as follows:-
“The appeal court erred in law in convicting the appellant as charged when at the time of the offence in 1974 the Bendel State Criminal Code which came into force in January, 1978 was not in existence thereby making the conviction a nullity.”
However, as presented before your Lordships’ court and also expounded upon in his brief, the submission of learned counsel on the point at issue was that in view of the provisions of Section 22(7) of the Constitution of Nigeria, 1963, the main proviso to Section 4 of the Bendel State Criminal Code Law, 1976, which permits an offender to be tried and punished either under the Law in force when the offence was committed or under the Code despite the further proviso that the offender (if convicted under the Code) should “not be punished to any greater extent than was authorised by the former law”, was unconstitutional.Learned counsel submitted that the main constitutional issue for determination by this court, therefore, was as to the question whether the appellant, having committed the offence as alleged as far back as 17th May, 1974, when the only Criminal Code in force which made murder a criminal offence punishable by law in the Midwestern (later Bendel) State was the Criminal Code of the Western Region of Nigeria, he could properly and constitutionally be tried and convicted under the Criminal Code of Bendel State which only came into force on 3rd January, 1978. In his submission, the answer to that question should be in the negative.Learned counsel then contended that it would be wrong in law and unconstitutional to do so even though the trial did not take place until 31st July, 1978. The reason for this contention was, according to learned counsel, because the only law in operation and in force in the Midwestern (later Bendel) State which made murder an offence punishable by law at the time in 1974 when the offence was committed, was the Criminal Code Law of the Western Region of Nigeria as applicable to the Midwestern (later Bendel) State.
Learned counsel further contended that for Section 4 of the Criminal Code Law to have purported to authorise or permit the prosecution of an offender under a Criminal Code which was not in existence at the time of the commission of an offence was proximate or analogous to what might be termed retrospective legislation upon which the courts have always frowned.It was the submission of learned counsel that, since in this country all criminal offences are creatures of statute, to permit or authorise an offender to be prosecuted and punished under a Criminal Code which was not in existence at the time of the commission of an offence would constitute a breach of the provisions of Section 22(7) of the Nigerian Constitution of 1963. As authorities for these propositions, learned counsel cited and relied upon the Queen v Tuke (1961) 1 All NLR 258; Oruche v Commissioner of Police (1963) 1 All NLR 262; and Queen v Bukar (1961) 1 All NLR 646.It is now necessary to examine these submissions. The provisions of Section 22(7) of the Nigerian Constitution 1963 read as follows:-
“22(7) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”My lords, it seems to me that the language of Section 22(7) of the Nigerian Constitution of 1963 is plain enough. There is nothing ambiguous about it. It leaves no one in doubt as to its meaning and purport and therefore, also leaves no room for any conjecture or speculation.The provisions had sought to protect a person from being prosecuted and punished for an act or omission which when it occurred did not constitute an offence. The reason for the entrenchment of such provisions in the Constitution as a fundamental right would appear to have been two-fold. In the first place, the provisions were intended to prevent retrospective legislation in the field of criminal law whereby an innocent act or omission or a non-criminal act when it took place might not overnight be converted into a criminal act or omission punishable under the law. A clear example of this type of situation of which your Lordships had been witnesses in this country was the notorious Exchange Control (Anti-Sabotage) Decree, No. 57 of 1977, now repealed. Also see the judgment in Moon v Burden 2 Ex 22 reported in 154 English Reports at page 394 in which Baron Rolfe quoted Lord Coke Second Institute 292 on the general rule of construing a statute on the question as to whether or not the operation of it is retrospective in the following words:
“Nova Constitution futuris imponere debet, non practeritis,” that is to say, unless there be clear words to the contrary, statutes do not apply to a past but to a future state of circumstances. See also Alderson B. at page 40. It is obvious that the Criminal Code of Bendel State was quite alive to that situation hence the provisions contained in Section 11 of the Code which read as follows:-
“11. A person cannot be punished for doing or omitting to do an act unless the act or omission constitute an offence under the law in force when it occurred.”The question which arises on that score is:- Was the killing which was alleged to have been committed by the appellant on 17th May, 1974, an offence known at the time to be then law in force in Bendel State as murder The answer to that question must, of course, be in the affirmative; for there was in existence the then Criminal Code of the Western Region of Nigeria as applicable to Bendel State. It is, therefore, clear that the crime of murder was to a new offence, the creature of the Criminal Code Law of Bendel State.
The offence was already known in law by that name and the punishment on conviction was prescribed as death.In the second place, the provisions were intended to prevent the imposition of a heavier punishment for an offence which at the time of its commission could only attract a light punishment; for instance, converting by legislation a simple offence like misdemeanour into a felony which would attract a heavier punishment on conviction.My lords, I do not propose to travel through all the other authorities cited in support of the submissions of learned counsel on the point under consideration. It will be sufficient to examine one or two of them in some detail.
In Queen v. Tuke (supra), the appellant therein was alleged to have committed murder on 14th February, 1960. Before 30th September, 1960, the appellant had been committed by the Magistrate for trial before the High Court in the then Northern Region of Nigeria. The Criminal Code which was at the time in operation in the Northern Region of Nigeria was repealed and replaced by the Penal Code Law of Northern Region of Nigeria, 1959, which came into force on 30th September, 1960, which meant that at the time of the commission of the offence the law in operation was the Criminal Code Ordinance of Nigeria.
Accordingly, in an information filed on 18th November, 1960, the appellant was charged with murder contrary to Section 319 of the Criminal Code. He was duly tried and ultimately convicted and sentenced to death on 6th February, 1961. On appeal to the then Federal Supreme Court, two grounds of appeal were raised and argued. The first was that the information filed against the appellant therein was a nullity in that the appellant was wrongly charged under the Criminal Code Ordinance which at the time of the trial of the appellant, was no longer in existence, it having been repealed by the Penal Code Law of the Northern Region of Nigeria, 1959, with effect from 30th September, 1960. The second ground was that the trial of the appellant was a nullity in that the learned trial Judge did not comply with the provisions of Section 242 of the Criminal Procedure Code of the Northern Region of Nigeria which came into force on 30th September, 1960.
In support of the first ground, it was submitted that a charge under the Criminal Code Ordinance could not properly be laid after 30th September, 1960; and that the appellant should have been charged under the appropriate section of the new Penal Code of the Northern Region which was at the time of the trial of the appellant in operation, having regard to the provisions of Section 3(1) of the Penal Code Law which were in the following terms:-
“3(1) Every person shall be liable to punishment under the Penal Code for every act or omission contrary to the provisions thereof of which he shall be guilty within the Northern Region.”
In respect of the second ground, it was contended that in view of the provisions of Section 3 of the Criminal Procedure Code Law which read:
“3. All proceedings instituted, commenced or taken in accordance with the provisions of the Criminal Procedure Ordinance or any other written law in respect of any criminal cause or matter pending at the date of the coming into force of the law shall be valid and effectual and shall be continued in accordance with the provisions of the Criminal Procedure Ordinance or such other written law, as the case may be”,the case of the appellant was not a pending matter since the Magistrate had already committed the appellant for trial before 30th September, 1960, and therefore, had disposed of the proceedings before him; and that the actual trial of the appellant did not begin until 18th November, 1960, when the Information was filed in the High Court. On the first ground, it was held by the Federal Supreme Court that it was proper to have prosecuted the appellant for an offence under the Criminal Code on the authority of Section 14 of the Interpretation Ordinance as the offence was committed when the Criminal Code Ordinance was in force; and that even though that Ordinance was repealed, it was still effective for certain acts or omissions which occurred when the Ordinance was in force. In respect of the second ground, the Federal Supreme Court held that the case was a pending matter on 30th September,1960, although the Magistrate had concluded his own part of the process of trial; and therefore, that the Criminal Procedure Code of the Northern Region did not apply to the case as the trial process had not terminated.My lords, there was nothing constitutional about the issue decided in the Queen v Tuke(supra).
What appeared to have been involved was a mere matter of interpretation of the provisions of the Penal Code Law and the application of the Interpretation Ordinance to the relevant provisions of the Criminal Procedure Code Law. The only aspect of that appeal which may be said to bear the remotest relevance to the issues argued in the appeal in hand is the issue which was decided on the first ground of appeal. The Federal Supreme Court was right to have decided the matter in the way it did because of the wordings of the provisions of Section 3 of the Penal Code Law of the Northern Region of Nigeria, 1959. The charge having been laid under the Criminal Code Ordinance, the trial had to be conducted in terms of, or in accordance with the provisions of the Criminal Procedure Ordinance since the matter was pending at the time of the coming into force of the Criminal Procedure Code Law. The trial was valid and effectual in terms of the provisions of Section 3 of the Law.In the instant appeal, the proviso to Section 4 of the Criminal Code Law of Bendel State, (Cap. 48) might be read as an escape clause, which gives an option to the prosecution, in that the offender may be tried and punished either under the law in force when the offence was committed, or under the Code, provided that the offender (if convicted), shall not be punished to any greater extent than was authorised by the former law. The proviso makes the position flexible.As a matter of interest, it should be noted that Section 4 of the Criminal Code Law of Bendel State, 1976, (Cap. 48), did not specifically repeal the Criminal Code Law of the Western Region of Nigeria, (Cap. 28), which was in operation in 1974 and which it replaced.
In Queen v Bukar (supra), the only constitutional issue that was considered was Sections 3 and 5 of the Nigerian (Constitution) Order in Council, 1960, relating to what constituted an existing law. The decision of the court turned ultimately again on the application of Section 14 of the Interpretation Ordinance. Queen v Tuke (supra), was followed and applied.In Oruche v Commissioner of Police (supra), the constitutional issues considered relating to the Nigerian (Constitution) Order in Council, 1960, Section 21(4):”Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
Section 21(7): “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”
Section 21(8): “No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.”
All these provisions of the Nigerian Constitution of 1960 corresponded to Sections 22(4), (7) and (8) of the Constitution of 1963. In the appeal then two questions were raised and argued, namely:
(1) Whether it was constitutional to have the appellant in that case charged with an offence under the Criminal Code which has been repealed and had ceased to be in force in the Northern Region of Nigeria on 30th September, 1960;
(2) Whether it was right to order a retrial in the case of a person
(a) who had served part of his sentence; and
(b) against whom it was said there was a substantial case.
Both questions were answered in the affirmative based on the authorities of Queen v Tuke (supra) and Queen v Bukar (supra). In any case, in all these cases the decisions of the Federal Supreme Court were based mainly on the Interpretation Act and the application of the provisions of Section 3 of the Penal Code Law.
The decisions, therefore, bear no relevance strictly and directly, as already stated, to the constitutional issue under consideration in the appeal in hand. I am, therefore, of the opinion that, having regard to the proviso to Section 4 of the Criminal Code Law of the Bendel State, it is as plain as plain can be, that it was competent and legal and, indeed constitutional to have tried and convicted the appellant of the offence of murder, punishable under Section 319(1) of the Criminal Code of Bendel State, 1976. There is nothing in the proviso which can be held to be in the remotest sense of the word inconsistent with or repugnant to, the provisions of Section 22(7) of the Nigerian Constitution of 1963. This ground of appeal, therefore, fails. That disposes off the constitutional issue raised and argued before this court. I turn now to deal briefly with the appeal on its merits.
There were two other grounds of complaint by learned counsel for the appellant. The first concerned the defence of insanity and the other related to the extra-judicial confessional statement made by the appellant to the police after due caution. As I understand it, as regards the first ground of complaint, it was submitted that the Federal Court of Appeal erred in law in dismissing the appellant’s appeal without giving adequate consideration to the defence of insanity which had been properly raised and relied upon by the appellant at his trial. With regard to the second ground of complaint, the contention was that the Federal Court of Appeal was wrong in law to have dismissed the appeal without a thorough examination of the confessional statement purported to have been made by the appellant and on which the learned trial Judge had based his conviction of the appellant. In his brief, learned counsel appeared to direct his attack not so much to the judgment of the Federal Court of Appeal, but to the manner in which the learned trial Judge had dealt with these two matters. For the proper appreciation of these two grounds of complaint, it is perhaps necessary to examine the facts of the case on appeal.
On the primary facts, the story leading to the death of Agnes Godwin (deceased) is quite simple. It is that the appellant, Godwin Ikpasa, and Agnes Godwin (deceased) were husband and wife. They had a young daughter as a result of the marriage and were all living together in the matrimonial home. Early in May, 1974, the little daughter became ill. Agnes Godwin (deceased) left the matrimonial home with the ailing daughter for her parents’ home and there procured treatment for her, staying there with the little daughter. Being a member of the christian sect known as Jehovah Witnesses, as soon as the daughter appeared well enough, on 17th May, 1974, she went out on a preaching expedition, carrying the little daughter on her back.
At the time when she was expected back home she failed to return to her parents. Instead, late that evening, the mother of the appellant brought the little daughter and dropped her at the house of the deceased’s father, Onose Siakpere (P.W. 2). On enquiry, the mother of the appellant told the latter the deceased was on her way coming behind. When the deceased failed to turn up, Onose Siakpere (P.W.2), being concerned, proceeded to Warri to report the matter to the police. At the Police Station, Warri, he met the appellant already under arrest and in the custody of the police. He also saw the corpse of Agnes Godwin (deceased) at the mortuary. When the mother of the deceased returned home from the farm that evening, she was surprised to find the little daughter of the deceased sitting on the floor alone. Her mother (deceased) was not there. She observed blood stains on the dress of the little daughter which she later handed over to the police. Later the police arrived in their van. They invited her to join them in the van, which she did.
In the van she saw appellant as well as some other persons well-known to her. The police asked whether she knew the appellant, she answered in the affirmative. The van was driven along the road and at a particular sport near the village of the appellant it stopped. She remained in the van while all those other persons including the police who had travelled in the van with her alighted there from and entered into the bush and later returned to the van with a corpse, which she identified as that of her daughter, Agnes Godwin (deceased).The appellant had previously that day of his own free-will and accord, reported at the Police Station at Ororokpe. He had reported to the police that he had had a fight with his wife at Kokori and that he was not sure whether his wife, Agnes Godwin, was still alive or dead. The police, suspecting murder, referred the matter to the police at Warri and also sent the appellant there.
At the Police Station, Warri, the appellant repeated his story. At their request, the appellant took the police to the scene. As it was already late in the night, the police had to visit the locus in quo and to conduct a search of the bush and a rubber plantation to which the appellant had taken them with the aid of lanterns and some local people. In the course of the search, the police picked a pair of slippers which the appellant identified as belonging to the deceased wife, Agnes Godwin. Thereafter there was a pool of blood and then the corpse of Agnes Godwin (deceased), which again was identified by the appellant as that of his late wife. The corpse was lying stark naked and face upwards. A pair of knickers, identified as that of the deceased by the appellant, was also found near the spot. Other items found in the bush were a headtie and a handbag, both of which the appellant identified as belonging to the deceased, and a cutlass which was hidden in the bush and which the appellant identified as his property with which he had fought the wife.
The body, as already stated, was removed to the mortuary; and the appellant after having been duly charged and cautioned, volunteered a confessional statement to Momoh Musa, Inspector of Police (P.W. 5) and signed it. That was on 18th May, 1974. The appellant was taken together with the statement (Exhibit D) to Dickins Sanomi, Superintendent of Police, who after interrogating the appellant as to the correctness or otherwise of the statement (Exhibit D), also signed it himself. At the trial, the appellant retracted the statement as a whole. He denied having made any statement at all. He denied his signature on the statement (Exhibit D), but admitted the name on the document to be his. He pleaded insanity. He gave evidence and called a doctor, Philip Okoma, as a witness in relation to the defence of insanity. The appellant’s story at his trial was that he and his wife were attacked by robbers while they were both travelling as itinerant Jehovah Witnesses on their way to a religious meeting.
The Federal Court of Appeal, Omo Eboh, Agbaje, JJCA., gave careful consideration to the approach of the learned trial Judge to the issues of insanity and the extra-judicial confessional statement and the manner in which the learned trial Judge had dealt with the matter and case to the conclusion that the learned trial Judge was correct. The Federal Court of Appeal held that there was no merit at all in the appeal and therefore dismissed it. On a careful scrutiny of the judgment on appeal, I am satisfied and have come to the conclusion that the appeal was rightly dismissed. If anything, I think that the learned trial Judge over-indulged the appellant by holding a trial within a trial over a retracted confession.
The way and manner the learned trial Judge dealt with both the issues of insanity and the confession were most favourable to the appellant. In particular, the Judge’s approach to the confessional statement showed the length to which he had to go to satisfy himself that the statement was made by the appellant. My lords, it is a well established practice in this country that where on the production of a confession, it is challenged on the ground that an accused person did not make it at all, the question of whether he made it or not is a matter to be decided at the conclusion of the trial by the learned trial Judge himself. Whatever objection may be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise for consideration and decision. See Queen v Igwe (1960) 5 FSC 55.
In this country where criminal trials are usually held by a Judge sitting alone without a jury, a distinction is usually drawn as regards practice and procedure in relation to the admissibility of a confession in evidence of trial proceedings between a confession objected to on the ground that it was not made at all by an accused person, in which case such a confession may be said to have been retracted; and a confession objected to on the ground that it was not voluntary in that although an accused person agreed to have made the confession, his complaint would be that he was forced or induced to make it. In the latter case, what is attacked is the admissibility in evidence of the confession and therefore a trial within a trial must be held, the confession having been challenged on voir dire so as to determine whether or not the confession was voluntary. If at the end of such trial, the court comes to the conclusion that the confession was not voluntary, then it is not admissible in evidence, and the court should so rule.
In the former case, where the confession is wholly retracted, the question as to whether or not the confession is admissible in evidence does not arise for decision at all. The trial Judge is entitled to admit the confession in evidence as something which had occurred in the course of the investigation conducted by the police into the case; and thereafter to decide or find a matter of fact at the conclusion of the case as to whether or not, in all the circumstances, the accused person did make the statement as alleged by the police.In the appeal in hand, the confession having been completely retracted, all that the learned trial Judge had to do was to consider whether the appellant had made the statement and whether having regard to the surrounding circumstances, the statement was true and not whether the confession was voluntary. See also the Privy Council decision in Cham Wei Keug v Queen (1967) 2 AC 160; and R v Burgess (1968) 2 QB 112.I am satisfied and hold that the learned trial Judge did more than he would normally have been required by law to do in his endeavour to determine the probative value of the confession of the appellant. The appellant therefore has no ground whatsoever to complain against the judgment both of the learned trial Judge and of the Federal Court of Appeal on that score. That should have concluded this appeal.
There is, however, a point in relation to the handling of the appeal by the Federal Court of Appeal, which calls for comment and which it is desirable to bring to the notice of the Federal Court of Appeal.My lords, on the appeal coming JUSTICES of the Federal Court of Appeal on 1st August, 1979, Mr. Ikomi, Acting Director of Public Prosecutions, appearing for the State, drew the court’s attention to the fact that instead of Criminal Form 1, which ought to have been used in giving notice of appeal, the appellant had used a Civil Form and submitted that the use of wrong form was fundamental error and therefore fatal in view of the mandatory provisions of Order 8 Rule 3 of the old Supreme Court Rules applicable to the Federal Court of Appeal. The objection was raised without prior notice having been given to the court.The Federal Court of Appeal, Omo Eboh and Agbaje, JJCA., quite properly and for compelling reasons, in my view overruled the objection, invoked Order 9 Rule 28 of the rules of the Court and proceeded to hear and determine the appeal on its merits, while Nnamaeka-Agu, JCA., dissenting, struck out the appeal on the authority of Adis Ababa v Adeyemi (1976) 12 S.C. 51 at pages 61-62 on the ground that there was no appeal properly before the court.
My lords, I am of opinion that this was a proper case in which to exercise the judicial discretion vested in the Federal Court of Appeal by the invocation of Order 9 Rule 28 of the Rules of the Court. It is a case involving a capital offence.The appellant was already confined in a condemned cell. He was no longer a free agent nor an ordinary Prisoner undergoing ordinary incarceration. He was therefore at the mercy of the prisons Authorities. It seems to me that in a case of this kind, there ought to be in the Prisons Department, officers sufficiently conversant with the court’s procedure relating to the filing of a notice of appeal to render assistance to prisoners desirous of appealing against their conviction and sentence.I think too, that in a serious matter of this nature, counsel appearing for the State should be sparing in raising objections, but rather should act more as Ministers of Justice and assist the court to do justice according to law.
There is no doubt that the provision of Order 8 Rule 3 are mandatory; but to have denied the appellant the exercise of his constitutional right of appealing against his conviction and sentence of death on a mere technicality in the circumstances disclosed in this matter might have been considered as having occasioned a miscarriage of justice; for apart from the form to which objection was taken, the appellant had filed eleven grounds of appeal with detailed particulars carefully numbered seriatim and contained in six pages of foolscap size papers, which was a clear indication of the determination on the part of the appellant to pursue his appeal. It should not be forgotten that Adis Ababa & Anor v Adeyemi (supra), referred to by Nnaemeka-Agu, JCA., was a civil appeal and the appellants therein as free agents, who, in any case, acted through their legal representatives presumed to know the law as professionals.In any case, there were two limbs to the objection raised and argued in that appeal. The first aspect of the objection had to do with a defective bond and the other with a wrong notice of appeal which was directed not to the Supreme Court as the then Court of Appeal, but to the High Court of Lagos State in the Ikeja Judicial Division. The so-called notice, in addition to being wrongly headed was, contrary to the requirements of Civil Form 12 prescribed for use in terms of Order 7 Rule 2, signed not by the appellants themselves, but by their counsel.
In respect of the defective bond, this court had said at page 54-55: “Our first impulse however was to invoke Order 9 Rule 28 of the Rules of the Court and so treat the matter as curable irregularities amounting to non-compliance with the rules of the court having regard to the fact that the bond was prepared obviously by the Registrar of the court below who must ostensibly be held responsible for having used a wrong form for the purpose. The fault in that respect therefore cannot, at any rate, be laid at the door of the appellant.But then, we were confronted with the decision of this court in Adesina Moses & Anor v Saibu Ogunlabi which was delivered by Coker, JSC., as recently as 21st April, 1975 on precisely the same point argued before us in this appeal which relates to defects in the bond which was filed in that appeal.”This court then examined the authorities on which the decision of the court in Adesina & Anor v Saibu Ogunlabi rested, one of which was Kojo Pon v Atta Fua No. 48 of 1925, a decision of the Privy Council and thereafter said at pages 58-59: “It is clear that Kojo Pon v Atta Fua the order of the Privy Council was to remit the appeal to the court below with a direction that the same be there heard and determined. It was therefore an inappropriate structure upon which to erect Adesina Moses v Saibu Ogunlabi .As our decision in this appeal does not turn on the objections raised as to the defects in the bond filed by the appellants, we can only draw attention to the decision of the court in Adesina Moses & Anor v Saibu Ogunlabi (supra) which we do not consider satisfactory, and express the hope that in no distant future the matter may be referred for the consideration and examination of a full court.”
As regards the second limb of the objection to which reference has already been made (supra) as to the notice of appeal, the court in Addis Ababa v Adeyemi (supra), held that the defects were incurable and that the so called notice was a most disorderly document, and at page 61, the court said: “At present there is no appeal properly before this court. The defects as to notice of appeal are so fundamentally incurable that the only reasonable conclusion that could be, and which we have reached in the circumstances is that this appeal is incompetent. It is therefore struck out with costs to the respondent.” It is interesting to observe that in Nofiu Surakatu v Nigeria Housing Development Society & Anor. SC. 51/78 (yet unreported) decided as recently as 10th April, 1981, this court, comprising seven Justices, with the Chief Justice of Nigeria presiding, had to give consideration to the decision of the court in Adesina Moses v Saibu Ogunlabi (supra), the subject of criticism in Adis Ababa v. Adeyemi (supra), and came to the conclusion that it should be, and it was overruled.
In his judgment, the learned Chief Justice of Nigeria, with the concurrence of Sowemimo, Irikefe, Bello, Obaseki, Nnamani and Uwais, JJSC., at pages 12-13 said:
“For these reasons that decision (Moses v. Ogunlabi) should no longer be allowed to stand. If it is allowed, it will continue to fetter the discretion which the Federal Court of Appeal undoubtedly has under Order 9 to remedy any non-compliance with the rules if it is in the interest of justice to do so. The decision is, therefore, overruled only in so far as it is based on the failure of the appellant to execute a bond for the due prosecution of the appeal in that case. For the avoidance of doubt, the judgment of the Supreme Court in Adisa Ababa v Adeyemi (1976) 112 S.C. 51 which considered that part of the decision in Moses v Ogunlabi as unsatisfactory but followed it, nevertheless is also overruled.”
My lords, for the reasons already set out above, I have come to the conclusion that this appeal be dismissed as without substance, both as to the constitutional question raised and argued and on its merits.
Appeal accordingly dismissed.
Other Citation: (1981) LCN/2078(SC)