Onuoha Kalu V. The State (1998)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

Two vital issues of considerable importance arise for determination in this appeal.

The first issue relates to the validity or constitutionality of the death penalty as a form of punishment in relation to the capital offence of murder as prescribed under section 319(1) of the Criminal Code, Cap. 31, Laws of Lagos State of Nigeria, 1973. The question is whether the provisions of the said section 319(1) of the Criminal Code of Lagos State which prescribe the death penalty in relation to the offence of murder are not contrary to and inconsistent with section 31 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1979. Cap. 62. Laws of the Federation of Nigeria, 1990 and therefore unconstitutional, invalid, null and void and of no effect. The issue, therefore, questions the constitutional validity of the death penalty as the mandatory punishment for the offence of murder in Nigeria.

The second issue concerns the validity or otherwise of the arraignment of the appellant before the trial court for the offence of murder for which he was tried. The question is whether the appellant was properly arraigned before the trial court in accordance with the provisions of section 215 of the Criminal Procedure Law, Cap. 32, Laws of Lagos State of Nigeria, 1973 and if not, whether an order of retrial or that of an acquittal and discharge ought to be entered by this court in favour of the appellant.

The appellant, Onuoha Kalu, was on the 6th day of March, 1981 arraigned before the High Court of Justice, Lagos State, charged with the offence of murder punishable under section 319(1) of the Criminal Code, Cap. 31, Laws of Lagos State of Nigeria, 1973. The particulars of the offence charged are as follows:-

“Onuoha Kalu (m) on or about the 24th day of August, 1981 at Yaba, in the Lagos Judicial Division, murdered Agbai Ezikpe.”

The appellant pleaded not guilty to the charge and the prosecution called six witnesses at the trial. The appellant also testified on oath in his own defence but called no witnesses.

The substance of the case as presented by the prosecution, found established by the learned trial Judge and affirmed by the Court of Appeal was that on or about the 24th day of August, 1981, between the hours of 7.00 and 8.00 post meridiem, the appellant unlawfully stabbed one Agbai Ezikpe, the deceased, to death with the broken end of a Star lager beer bottle in the neck. The incident took place before eye witnesses who duly testified before the court. After this stabbing, blood gushed out profusely from the neck of the deceased who immediately fell down. The appellant, at this stage, tried to run away but was pursued by P.W.1 who apprehended him. The deceased was rushed to the General Hospital, Lagos where he died a few minutes later from his stab injuries.

The defence of the appellant was a total denial of the charge. He returned from a tour on the 23rd August, 1981 to learn that the deceased had raped the appellant’s sister in his room. The appellant reported the incident to the brother of the deceased. On The 24th August, 1981, the appellant, with his comrades were discussing how to handle the alleged criminal conduct of the deceased when they heard some shouting outside. They rushed out only to see the deceased lying down in a pool of blood. He denied stabbing the deceased.

At the conclusion of hearing, the learned trial Judge, Omoroso, J. as she then was, after a thorough review of the evidence on the 30th day of July, 1985, found the appellant guilty as charged. He was accordingly sentenced to death pursuant to the mandatory death penalty prescribed by section 319(1) of the Criminal Code of Lagos State for the offence of murder.

Dissatisfied with this decision of the trial court, the appellant lodged an appeal against his conviction and sentence to the Court of Appeal, Lagos Division. The Court of Appeal, in a unanimous judgment, on the 7th day of June, 1995, dismissed the appeal and the conviction and sentence passed on the appellant were affirmed. It is against this judgment of the court below that the appellant has now appealed to this court on a four point amended grounds of appeal. It is pursuant to the leave granted by this court to the appellant for the amendment of his original three grounds of appeal that he now raised, for the first time, the issue of the constitutionality of the death penalty punishment for the capital offence of murder in Nigeria.

Both the appellant and the respondent filed and exchanged their respective written briefs of argument. In the appellant’s brief, the undermentioned issues were formulated for the determination of this court, namely:-

“1. Was the Court of Appeal right in holding that the appellant was properly arraigned in accordance with the rule in Kajubo’s case and, if not, should the appellant be retried or discharged and acquitted

2. Whether section 319(1) of the Criminal Code is not inconsistent with section 31(1)(a) of the Constitution of Federal Republic of Nigeria and therefore null and void and, if so, whether the affirmation of death sentence by the Court of Appeal was correct”

I think I ought to observe, with due respect to learned leading counsel for the appellant, that it would appear there is a misconception in the manner the second issue was couched. With the double negative, “not inconsistent” appearing in line two thereof, the inescapable grammatical position would be to convert the first arm of the question posed to whether section 319(1) of the Criminal Code is consistent with section 31(1)(a) of the 1979 Constitution. Clearly, if that is the position, the next arm of the issue, as framed, which poses the question whether the said section 319(1) of the Criminal Code is therefore null and void because of the alleged consistency would be rendered illogical and a non sequitur. Section 319(1) of the Criminal Code cannot be null and void because of its consistency with section 31(1)(a)of the Constitution. It can only be null and void because of its inconsistency with the said section 31(1)(a) of the 1979 Constitution. It therefore seems to me clear that there is, with respect, an apparent error in the way issue two is framed in the appellant’s brief of argument. I entertain no doubt that the inclusion of the word “not” before “inconsistent” in the formulation of the appellant’s second issue is an apparent error, perhaps a typographical error, otherwise the entire arguments and submissions of appellant’s learned counsel on the issue would hardly fall in alignment with the clear question for determination before the court. I would accordingly amend the appellant’s issue two to fall in line with the arguments advanced in his brief of argument as follows:-