Nigeria is one of the many Nations of the world where Capital Punishment still holds sway. Despite calls by many proponents for the abolition of Capital Punishment across the globe, Capital Punishment is still in vogue in Nigeria. By capital punishment, we mean death sentence passed by a court of law on an offender who has been found guilty of a capital offence. Capital punishment or death sentence is constitutionally recognized in Nigeria. Section 33 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that, “Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria” (Emphasis mine).
For an offender to be sentenced to death, the law creating the offence must have specified death as the punishment thereof as contemplated under section 36 (12) of the Constitution. Under the Nigerian Criminal Jurisprudence, the following offences attract death penalty to wit: Murder/Culpable homicide punishable with death, Treason, presiding over a trial by ordeal resulting death, and Armed Robbery. It is interesting to note that some States in Nigeria have also enacted laws which make the offence of kidnapping punishable with death. Thus, where a defendant or an accused person as the case may be, is found guilty of any of these listed offences, such a defendant or an accused person must be sentenced to death by the court, as no degree of allocutus plea can change the verdict of being condemned to death.
On how death sentence should be passed and/or pronounced by a trial court, we shall consider the Supreme Court decision on the issue as well as the provisions of the Administration of Criminal Justice Act, 2015 (which is in pari materia with that of the Administration of Criminal Justice Law of Kogi State, 2017), the Criminal Procedure Act, the Criminal Procedure Code, and the Armed Robbery and Firearms (Special Provisions) Act CAP. R11, LFN, 2004. The Administration of Criminal Justice Act, 2015 (hereinafter simply referred to as ACJA, 2015) applies to criminal trials in all federal-established courts as well as all the courts in the FCT. The Criminal Procedure Act (hereinafter referred to as the CPA) and the Criminal Procedure Code (hereinafter referred to as the CPC) apply to criminal proceedings in all the courts in the South and North respectively, especially in the States that are yet to enact their own Administration of Criminal Justice Law as was commendably done by Kogi State in 2017.
Now, for the South, section 367(1) of the CPA provides: “The punishment of death is inflicted by hanging the offender by the neck till he be dead”.”
Section 367 (2) of the CPA further provides that, 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” (Emphasis mine).
For the North, section 273 of the Criminal Procedure Code provides that, “When a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead” (Emphasis mine).
Though not a procedural law, section 1(3) of the Robbery and Firearms (Special Provisions) Act CAP. R11, LFN 2004, provides that, “The sentence of death imposed under this section may be executed by hanging the offender by the neck till he be dead or by causing such offender to suffer death by firing squad as the Governor may direct”.
Now, coming to the ACJA, 2015, section 402 (1) of the Act provides: “Punishment of death is inflicted by hanging the convict by the neck till he is dead or by lethal injection”.
Section 402 (2) of the said ACJA, 2015 further provides that, Sentence of death shall be pronounced by the court in the following form: “The sentence of the court upon you is that you be hanged by the neck until you are dead or by lethal injection” (Emphasis mine).
The above cited provisions of the ACJA, 2015 are in pari materia with the provisions of section 400 (1) (2) of the Administration of Criminal Justice Law of Kogi State, 2017.
From the provisions of all the laws cited above, it is very clear that the following means or modes of execution of death sentence are legally recognized in Nigeria:
(a) By hanging in the neck (as provided in the CPA, CPC, Armed Robbery and Firearms (Special Provisions) Act, the ACJA, 2015, and the ACJL of Kogi State, 2017);
(b) By Lethal Injection (as provided for by the ACJA, 2015, and the ACJL of Kogi State, 2017); and
(c) By Firing Squad (as provided for by the Robbery and Firearms (Special Provisions) Act)..
The above means of executing death sentence having been stated, the next crucial question is whether it is mandatory for a trial court to pronounce the particular means or manner by which a convict who has been found guilty of a capital offence must die or executed? In other words, if a trial court finds a defendant guilty of a capital offence, is the trial court bound to follow strictly the provisions of the above cited laws (whichever is applicable) when passing or pronouncing death sentence on the defendant? Put in another way: What is the effect of non-compliance with the provisions of the above cited laws on a death sentence passed on a convict by a trial court? The Supreme Court of Nigeria was faced with this question or issue for determination in the case of Gano v. The State (1968) 1 ALL NLR 353; (1968) NSCC 285. In the said case, the Appellant was found guilty of the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. The trial judge in sentencing the Appellant to death simply stated thus, “Sentence of death passed”. On appeal to the Supreme Court, it was contended for the Appellant that the trial judge violated the provision of section 273 of the Criminal Procedure Code which requires that a judge while pronouncing death sentence on a convict “shall direct that he be hanged by the neck till he is dead”. Based on this, the Appellant urged the Supreme Court to hold that the death sentence pronounced on him by the trial court cannot be carried out, and that the said sentence is incurably bad as the trial judge had become functus officio on the matter. In its judgment, the Supreme Court held as follows:
“It is clear that the learned judge has failed to incorporate in his judgment the statutory direction. We have been asked to say that as the judge gave no direction as to what manner the sentence of death was to be carried out, as he was obliged to do by law, the sentence could not be carried out, and the learned judge is functus officio. We are in agreement with counsel that it is the duty of the judge, under the law, to pronounce the manner in which the sentence was to be carried out, and failure to do so might raise an apprehension that the execution could be carried out by any other means, as for example by poisoning, drowning or any other means; but as it is clear that the only mode of execution known to our law is by hanging by the neck till the convict is dead, we are unable to accept that any other mode of execution was contemplated by the judge” (Emphasis mine).
Going further, the Supreme Court held thus: “We are, however, not unmindful of the fact that after passing sentence of death on a convict, the judge after the sentence passed by him has been confirmed, issues a warrant in the prescribed form and the Superintendent of Prisons who has had no advantage of reading the judgment has no choice but to execute the sentence in the manner laid down in the form, namely hang the convict by the neck till he is dead, and there can be no objection taken by the Superintendent that the warrant is not consistent with the judgment. Thus, the omission in practice makes very little difference to the carrying out of the order of execution”.
Having held as quoted above, the Supreme Court concluded that the omission by the trial judge to pronounce the manner in which the sentence of death was to be carried out was a mere accidental slip or clerical error which is within the competence of the trial judge himself to correct. The Supreme Court accordingly, dismissed the appeal and directed that the matter be brought to the attention of the trial Judge (Hague A.J.) “to add to his judgment of 14th June, 1968, in this matter the words ‘The accused shall be hanged by the neck till he is dead’ “. The case was therefore, referred to the trial judge to incorporate in his judgment the statutory direction contained in section 273 of the CPC.
It must be borne in mind that the above case was decided in the light of the provision of section 273 of the CPC. As held by the Supreme Court in the case, only one means of execution (i.e. by hanging in the neck) was provided for under the said section. Thus, the Supreme Court was of the view that since it is only one means of execution that was provided for under section 273 of the CPC, even when the trial judge was silent on the means of carrying out the death sentence passed on the Appellant, there is a presumption that it must be by hanging in the neck as the trial judge couldn’t have contemplated otherwise outside what the law (CPC) provided. Secondly, the Supreme Court was also of the opinion that even where a trial judge in its judgment omits to direct the manner in which death sentence would be carried out, a warrant in the prescribed form issued by the trial judge after the death sentence has been confirmed would specify that the death sentence shall be executed by hanging in the neck, and this therefore, supplies the missing statutory direction as to how the death sentence shall be carried out.
The question now is: Should the Supreme Court still apply its decision in Gano v. The State (supra) to subsequent cases on the same point especially under the ACJA 2015 and/or the ACJL of Kogi State, 2017? My humble answer to this question is in the negative. This is because, unlike the provision of section 273 of the CPC which provides for hanging in the neck as the only means or mode of execution of death sentence, section 402 (1) (2) of the ACJA, 2015 (which is in pari materia with section 400 (1) (2) of the ACJL of Kogi State, 2017) provides for two modes of execution of death sentence, to wit: by hanging in the neck and by lethal injection. Thus, where a trial judge is silent on the means of execution of a convict in a capital offence, which of the two means of execution provided under the said section would the Appellate court presume to have been contemplated by the trial judge? Again, is a trial judge at liberty to choose the mode of execution of death sentence at the point of issuing warrant in the prescribed form when he did not specify any particular one in his judgment? I do not think so! Issuance of a warrant in a prescribed form cannot cure the fundamental defect of not pronouncing the mode of execution of death sentence by a trial judge as reasoned by the Supreme Court in Gano’s case (supra).
I am of the firm view therefore, that a trial judge must strictly comply with the provisions of sections 402 (2) of the ACJA, 2015 or any other applicable legislation as the case may be, by pronouncing the specific manner in which a convict found guilty of a capital offence must die. Anything short of that, in my humble opinion, must render the entire sentencing void. This is more so because, the word “shall” was used in the said section, which by avalanche of judicial authorities, connotes mandatoriness, leaving no room for discretion. Thus, the use of the word “shall” in section 402 (2) of the ACJA, 2015 denotes an obligation and same therefore, does not permit a trial judge to be silent on the manner in which a convict in a capital offence should die; and neither does the provision permit a trial judge to leave the manner in which an accused person should be executed at the discretion of the Executioner. In Rufus Femi Amokeodo v. Inspector General of Police & Ors. (1999) LPELR-SC.168/96, at pages 24-25, paras. E-A, the Supreme Court per Ejiwunmi, J.S.C opined as follows: “The principle governing the use of “shall” in a legislative sentence is that it is generally imperative or mandatory and in its ordinary meaning, “shall” is a word of command which is normally given a compulsory meaning because it is intended to denote obligation…” (Also cited as Amokaodo v. I.G.P. (1999) 6 NWLR (Pt. 607) p. 467). Again, the Supreme Court of Nigeria in General Muhammadu Buhari v. Independent National Electoral Commission (2008) LPELR – 814 (SC), held thus; “When the word shall is used in a statute it connotes the intendment of the legislator that what is contained therein must be done or complied with. It does not give room for manoeuvre of some sort, or evasiveness. Whatever the provision requires to be done must be done, and it is not at all negotiable…” (Per MUKHTAR, JSC (as he then was, at pages 276-277, PARAS. E-D). On the mandatory connotation of the word “shall” in a statute, the Court of Appeal per Owoade, JCA in Mr. Udak Etim Okon v. Mr. Ekaette Udak Okon (2016) LPELR 42056 (CA) at page 9, paras. D-F, held thus: As a general rule the use of the word “shall” connotes and conveys a mandatory message in a statute. See Melaye v. Tajudeen (2012) 15 NWLR (Pt. 1323) 315; Fidelity Bank Plc v. Monye (2012) 10 NWLR (Pt. 1307) 1; Adeosun v. Governor Ekiti State (2012) 4 NWLR (Pt. 1291) 581; Dantata v. Mohammed (2012) 8 NWLR (Pt. 1302) 366.
In my humble view, it will amount to promotion of judicial laziness if a trial judge fails to comply with the provisions of section 402 (2) of the ACJA or any other applicable statute as the case may be, while passing death sentence on a convict and the Appellate Courts do not see anything wrong with that to annul the sentence. Instances abound where a trial court even after the enactment of the ACJA, 2015 and the ACJL of Kogi State, 2017, found a defendant guilty of a capital offence and simply stated that the “Convict is hereby sentenced to death” without specifying if it will be death by hanging, or by lethal injection as provided by the said laws. Such sentence, in my view, is fundamentally defective and same should not be allowed to stand.
Silence by a trial judge on the means by which death sentence shall be carried out leaves a condemned convict at the discretion of the Executioner who would then have the prerogative of adopting any of the means that pleases him to execute the convict. That is not the intendment of our procedural laws. Section 403 of ACJA, 2015 (which is in pari materia with section 401 of the ACJL of Kogi State, 2017), provides that, “Where sentence of death has been passed, the sentence shall only be carried out in accordance with the provisions of this Part” (Emphasis mine). See similar provision in section 368 of the CPA. The purport of this provision is that the Executioner can only carry out death sentence by any of the means provided for under the applicable statute and specifically ordered by the court. The Executioner has no discretion to exercise where a trial court complies with the provisions of the applicable statute relating to pronouncement on the manner in which death sentence shall be carried out. On the other hand, where there is non-compliance with the provisions of the applicable statute, a trial court indirectly ascribes power of discretion to the Executioner as to which of the means to adopt in executing the condemned convict. At the risk of repetition, I say, this is not the intendment of the law. Although a convict of a capital offence may deserve to die, he should be made to know the means or manner by which he would die. Leaving the convict at the discretion of the Executioner to adopt any manner that pleases him in executing the convict is most likely to place the condemned convict under serious apprehension and/or cruel mental torture.
It is obvious from the decision of the Supreme Court in Gano’s case above that the Supreme Court treated the omission to specify the manner of carrying out the death sentence passed on the Appellant by the trial judge as a mere accidental slip or clerical error which can be corrected by the trial judge himself. The Supreme Court in the said case, considered the option of invoking or exercising its powers under section 26(3) of the Supreme Court Act to supply the part of the sentence which the trial judge inadvertently left out but after citing a number of foreign decisions on accidental slips or clerical errors in judgments such as the cases of Milton v. Carter (1893) A.C. 638, and Hattan v. Harris (1892) A.C. 547, the apex Court concluded that the omission of the statutory direction in the judgment of the trial court in which death sentence was passed, was an accidental slip of which the trial judge still had jurisdiction to correct.
Without prejudice to the infallibility of the Supreme Court, I do not, with the greatest respect, agree with its decision in Gano’s case (supra) that failure by a trial judge to pronounce on the specific manner by which death sentence passed on a convict is to be carried out is a mere accidental slip or clerical error that is within the jurisdiction of the same trial judge to correct or rectify. Maintaining the said position as held by the apex Court, would open a floodgate for judicial dullness.
Furthermore, as sound as the decision of the Supreme Court in the above case may seem, a lot of factors render same out of tune with the realities of the current judicial system in Nigeria. I note the fact that the trial judge in Gano’s case delivered his judgment on the 14th of June, 1968. The Supreme Court delivered its own judgment on 29th November, 1968; just less than 6 months interval. Surely, it can only take a miracle for this to happen under the present judicial dispensation in Nigeria! In Nigeria today, appeal cases usually take several years before they are heard or determined. In some cases, before the appeal is even determined by the Court of Appeal let alone the Supreme Court, the trial judge who presided over the case would have been elevated to the Court of Appeal, and even further to the Supreme Court. Thus, where a trial judge has been elevated and the appellate court finds that the statutory direction is missing in the judgment of the trial court in which death sentence was passed, can the judge who had been so elevated return back to his former court and assume the status of a trial judge once more in order to supply the missing statutory direction as to the means by which death sentence shall be carried out? Relying on the recent Supreme Court decision in Ude Jones Udeogu v. FRN & 2 Ors. (famously referred to as Orji Uzor Kalu’s case; delivered by the Supreme Court on 8th of May, 2020, in SC.622c/2019), I would answer this poser in the negative. The Supreme Court per Ejembi Eko, JSC, in the said case, had inter alia, held thus: “I have no doubt, whatever, that the Honourable, M.B. Idris, JCA, having been elevated to the Court of Appeal, had ceased to be a Judge of the Federal High Court. Accordingly, he had been deprived of whatever jurisdiction he had as a Judge of the Federal High Court…”
Thus, it is my humble view that the path toed by the Supreme Court in Gano’s case as far back as 1968, cannot be tenable in view of the prevailing realities in the Nigerian judicial system of today. It is therefore, humbly recommended here that instead of referring a case back to a trial judge to incorporate the missing statutory direction in his judgment as was done by the Supreme Court in Gano’s case (supra), the Supreme Court should either void the sentence on ground of non-compliance with the provision of the applicable statute or remedy same by invoking its powers under the Supreme Court Act to supply the missing statutory direction which the trial judge omitted to incorporate in his judgment. The Court of Appeal should also follow this line of recommendation if faced with similar issue.
Apart from the Supreme Court decision in Gano’s case (supra), it appears that there is no other judicial pronouncement on the issue under discourse. The reason for this is not far-fetched: Defence attorneys in capital offences in Nigeria majorly appeal against the conviction of their clients and not the sentence. This approach of appealing against convictions and not the sentence in capital offences by defence attorneys is justified on the altar of the fact that when the verdict of a trial court convicting an offender of a capital offence is annulled on appeal, the sentence also falls like a pack of wood, but when the conviction is sustained or affirmed on appeal, annulment of the sentence alone may not earn the convict total freedom from the Hangman’s Den!
On the whole, I am of the strong opinion that even though the Supreme Court in Gano’s case (supra) did not expressly state that a trial judge must pronounce the manner in which death sentence shall be carried out, its decision to refer the case back to the trial judge to incorporate the missing statutory direction in his judgment implies that it is mandatory for a trial judge to comply with the statutory stipulation in that regard. If compliance with the provision of the statute in this regard is not mandatory, the Supreme Court wouldn’t have referred Gano’s case back to the trial Judge to supply the missing statutory direction on the manner in which the death sentence passed on the convict should be carried out!
In the final analysis, I hold the firm view that the answer to the poser raised in the title of this article is: Yes, a trial judge is bound to pronounce the specific manner in which the sentence of death passed on a convict shall be executed or carried out in line with the provision(s) of the applicable statute in Nigeria.
– S.O. Akobe, Esq. can be reached via akobe4onu@gmail.com.)
