Ogugu & Ors. V. The State (1994)

LawGlobal-Hub Lead Judgment Report

BELLO, C.J.N

A very far-reaching constitutional question has been raised in this appeal. It is: Having stayed in prison confinement under a sentence of death for such an unreasonable length of time, from 28th February 1986 to date, it would amount to inhuman and degrading treatment contrary to Section 31(1) (a) of the Constitution of the Federal Republic of Nigeria. 1979 to uphold and execute the sentence of death passed on the 3rd Appellant.

The facts relevant to the question may be summarised. The 3rd appellant with four other persons were convicted of conspiracy to commit armed robbery and of armed robbery and sentenced to death on 28th February 1986. His appeal and the appeals of the three others were dismissed by the Court of Appeal on 29th March 1990. Further appeals to this court were filed on 26th April 1990. The) have been in custody since their arrest on the 9th September 1982. The delay in their trial, determination of their appeals and their non-execution were entirely called by the due process of law and the appellants have not in any manner whatsoever contributed to the delay other than by the exercise of their rights to invoke judicial process.

Because of the importance of the question raised as it relates to constitutional right to life, the court invited all the Attorneys-General in the Federation, other than the Attorney-General of Lagos State, who is for the respondent, and three learned counsel as amici curiae to assist the court on the question. Eleven Attorneys-General and the three learned counsel responded to the invitation by filing briefs. However, due to the transport problem brought about by the strike of the Union of Petroleum and Natural Gas Workers, some of the Attorneys-General were unable to attend the court at the hearing. We are indeed grateful to the learned amici curiae of both the official and private Bars for the useful assistance they rendered to the court in their briefs and oral submissions.

It is pertinent to state that the constitutional question had not been taken in the lower courts. It was raised for the first time here with the leave of the court. In view of the circumstances some of the amici curae have invited the court to consider two preliminary issues. Firstly, whether the court has jurisdiction to determine the question and secondly, whether the question is premature. Since the issue of jurisdiction has been raised, it is essential to deal with it first before any other issues on the constitutional question may be considered, as any decision reached on the question without jurisdiction, or in excess of jurisdiction would be abortive, null and void: Onyema & Ors v. Oputa & ors. (1987) 2 NSCC 900; (1987) 3 NWLR (Pt.60) 259; Attorney-General of the Federation & Ors. v. Sode & Ors (1990) 1 NSCC 271; (1990) 1 NWLR (Pt.128) 500; Attorney-General of the Federation & Ors v. Sode & Ors (1990) 1 NSCC 271; (1990) 1 NWLR (Pt.128) 500; Attorney-General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552.

The submission of Chief Williams. S.A.N .. covered both jurisdiction and prematurity. He posed the question: “Whether, in proceedings on appeal from a conviction for a critical offence involving the death penalty or from a sentence of death, the Supreme Court has jurisdiction to entertain a complaint that it would be unlawful or unconstitutional to carry out the execution of the sentence on the grounds of inordinate or inexcusable delay in doing so.”

After having reminded the court that it had in many cases held that in dealing with matters affecting fundamental rights, the court would bend over backwards to avoid technicalities and to decide questions which were raised on the merit, he contended that it was important in this appeal to consider if the appellant relying on 31(1)(a) of the 1979 Constitution could properly raise the constitutional issue as a ground of appeal. The learned Senior Advocate answered this question in the negative.

He contended that a complaint of inordinate or inexcusable delay in carrying out a sentence of death was not concerned with the exercise of judicial powers or jurisdiction of the court in respect of the charge of criminal offence against the convicted prisoner but it was only concerned with the alleged contravention of the constitutional or common law right of the convicted prisoners to a fair and humane treatment from the state. Relying on the judgment of Gubbay, C. J.., in Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General (unreported) NO. S.C.73/1993 delivered on 24th June 1993, he submitted that the breach of the said legal right could not be a proper basis for a ground of appeal against the conviction or sentence of the prisoner. It might. however, form the foundation of appropriate proceedings in a court of competent jurisdiction to stop or commute the execution of the sentence. He pointed out that jurisdiction to entertain complains based upon a contravention of Section 31(1)(a) is vested in the High Court pursuant to the provisions of Section 42 of the 1979 Constitution and this court has no original jurisdiction to do so. He relied on Pratt Attorney v. General for Jamaica (1993) 3 WLR 995 and Trevor Walker v. The Queen (1993) 3 WLR 1017 to show that most of the cases on matters of this nature in other common law jurisdictions arose in proceedings specially instituted for the purpose and not on appeals against conviction or sentence. He stated that the appellant had jumped the gun and that the constitutional issue would arise after the appeal process had been completed.

Mr. Sofola, S.A.N., did not deal with the jurisdiction and prematurity. His submission was confined to the constitutional question, the provisions of the Constitutions of some of the common law countries relevant to it and the several approaches of their courts in the determination of the question. He particularly referred to Pratt v. Attorney-General for Jamaica (supra); Catholic Commission 719, Abbott v. Attorney-General of Trinidad (1979) 1 WLR 1342; Mamini v. Carter (1968) (1) RLR 136 (AD); Sher Singh v. State of Punjab (1983) 2 SCR 583 and Rajendra Prasad v. State of Viler Predesh (1979) 3 SCR 78. He urged the court, in the event of upholding the conviction and sentence, to stay the sentence and to recommend that the Executive should review all cases of the prisoners awaiting execution with a view to commuting the death sentence or to carry out the execution where there has not been any appreciable delay. He also suggested that Criminal Procedure Act and Codes should be reviewed to make provisions for expeditious trials and appeals in capital offences.

In her brief, Mrs Goje, the Attorney-General of Adamawa State, submitted that the court was not competent to entertain the complaint of the infringement of Section 31(1)(a) of the 1979 Constitution and that a High Court was the proper forum for the determination of such complaint in accordance with the provision of Section 42 of the 1979 Constitution and the Fundamental Rights (Enforcement Procedure) Rules 1979. She referred to Pratt v. Attorney-General of Jamaica (supra) where the proceedings commenced in the Supreme Court, which is equivalent to our High Court, under Section 25 of the Jamaican Constitution which is similar to our Section 42. In the case of Catholic Commission v. Attorney-General (supra), the learned Attorney-General pointed out that Section 24 of the Constitution of Zimbabwe conferred original jurisdiction on their Supreme Court, unlike our court, to entertain application relating to the infringement of fundamental right.

The attorney-General of Anambra State was ad idem with his colleagues of Adamawa State in distinguishing the Jamaican and Zimbabwean situations from our own and in his submission that the proper approach to the constitutional question was for the appellant to institute an application for the enforcement of his fundamental right before a High Court under Section 42 of the Constitution.

Mr. Uzoukwu the Attorney-General of Imo State, took a different approach in his brief. Referring to sections 6(6)(a) and 213(2)(c) of the 1979 Constitution: sections 26 and 30(2) of the Supreme Court Act and Bello v. Attorney-General of Oyo State (1986) 5 NWLR (Pt.45) 828. he contended that the court has the power to commute the sentence of death on appeal if it found the constitutional right of the appellant under Section 31(1)(a) had been infringed. He further contended that even if there was no express provision enabling the court to commute the death sentence, the court should invoke the doctrine of “ubi jus ibi remedium” to exercise its inherent power to assume jurisdiction for commutation.

In his Brief and oral submissions, Mr. Esan, the Attorney-General of Ondo State referred the Court to sections 212, 213 of the 1979 Constitution and the decision in Attorney-General of Anambra State v. Attorney-General of the Federation (1993) 6 NWLR (PI. 302) 692; Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341 and submitted that the court has no original jurisdiction to determine the constitutional question and it could not properly do so on appeal when the matter had not been canvassed in the lower courts. He pointed out that unlike our court, the Supreme Court of Zimbabwe has original jurisdiction to entertain contravention of fundamental human rights and on that ground it decided the Catholic Commission case and the same consideration applied to Pratt case.

The learned Attorneys-General of Bauchi, Kwara and Oyo States, Mrs. Lawenji, Sanni and Akande respectively rested their submissions on the immaturity of the constitutional question. They argued that where an appellant by his choice resorted to appeal, he could not complain of delay in his execution before the appeal was disposed of. They drew the attention of the court to the fact that the issue relating to delay in both Pratt case and Catholic Commission case was taken in the court having original jurisdiction on the issue after the convicts had exhausted their rights of appeal. Concluding, the learned Attorneys-General urged the court to hold that the constitutional question in this appeal was premature.