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MAY 22ND, 1980

LN-e-LR/1980/7 (CA)


[1980] 1 NCR 334








Achikeh for the appellant;

Olugbani, Legal Adviser Lagos State, for the State.



CRIMINAL LAW:- Murder – Proof of – Sentencing – Proper Form thereof – Failure of court to adhere thereto – Whether fatal

CRIMINAL LAW AND PROCEDURE:– Criminal charges – Form – Statutory basis – Criminal Code offences – offence charged under “Criminal Code Law” instead of “Criminal Code” – Whether defective

CRIMINAL LAW AND PROCEDURE:- Sentencing of accused person – s.367(2) of the Criminal Procedure Law of Lagos State – Whether requires that the accused person be present in court when the sentence is passed.

PRACTICE AND PROCEDURE:- Appeals-powers of appellate court-procedural defect-sentencing defect normally rectifiable by appellate court-cannot pronounce death sentence unless offender present but should remit to trial court for rectification

PRACTICE AND PROCEDURE – COURT:-Sentence of death – Proper form of pronouncing same – ‘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.'” – Effect of failure thereto


Cases referred to:

(1)      Kanu v. R. (1952), 14 W.A.C.A. 30.

(2)      Okpo v. State, (1972) 2 S.C. 26, applied.

(3)      R. v. Legal Aid Cttee. No.1 (London) Legal Aid Area, ex p. Rondel, [1967] 2.K.B. 482; sub nom. R. v. Area Cttee. No.1 (London) Legal Aid Area. expo Rondel, [1967] 2 All E.R. 419.

(4)      R. V. Omoni (1949), 12 W.A.C.A. 511.

(5)      Seedi V. Commr. of Police (1946), 12 W.A.C.A. 29, followed.

(6)      Shallabi V. R. (1935), 2 W.A.C.A. 363, considered.

(7)      Sykes V. R. (1913),8 Cr. App. R. 233.

(8)      Yesufu v. Insp. Gen. Of Police, 1960 L.L.R. 149.


Legislation construed:

Criminal Code Law (Laws of Lagos State, 1973, cap. 31), s.2(1):

Criminal Procedure Law (Laws of Lagos State, 1973, cap. 32), s.367(2):


[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]




Before a Lagos High Court, Olufunmilayo Bankole was charged with the following offences:

“Statement of Offence: First Count

Murder contrary to s.319 (1) of the Criminal Code Law.

 Particulars of Offence

Olufunmilayo Bankole on or about the 6th day of November, 1976 at Surulere, in the Lagos Judicial Division murdered Theophilus Ayoola Bankole.

Statement of Offence: Second Count

Murder contrary to s.319(1) of the Criminal Code Law.

Particulars of Offence

Olufunmilayo Bankole on or about the 6th day of November, 1976 at Surulere, in the Lagos Judicial Division murdered Adetoro Bankole.”


Thirteen witnesses testified for the prosecution. The accused gave evidence in his own defence and called one witness.


The learned Justice of the Court of Appeal then set out the facts, from which he concluded that the appellant had killed the deceased persons by blows on the head. Their dead bodies were recovered from their house, which was on fire, and both the appellant and his father were rescued unconscious from the burning house. The appellant had incised abdominal injuries from which he subsequently recovered but his father died. Although the appellant apparently confessed to the murders, at his trial he gave evidence of a long-standing hostile relationship with his deceased brother and alleged that he had killed both deceased in self-defence after they had attacked him. The appellant was found guilty and sentenced to death. The learned Justice of the Court of Appeal then continued:


The first ground of appeal canvassed in favour of the appellant relates to the failure of the learned trial Judge to consider the failure of the prosecution to call Mr. Theophilius Bankole, the father of the accused and Ayoola, the deceased. The appellant’s counsel failed to satisfy me from the evidence that Theophilius Bankole witnessed the incident. Moreover, as the evidence of Dr. Omotola shows that he was rescued from the inferno in an unconscious state and it was admitted that he died before the trial, I cannot but agree with the learned Legal Adviser, Alhaji Olugbani, that he did not witness the incident and that in any event it was not possible to have called him.


The next ground complains that the appellant was charged under “a non-existent section of the Criminal Code Law.” Learned counsel for the appellant contended that the Criminal Code Law has only seven sections and does not run up to s.319(1) under which the appellant was charged, that it is the Schedule to the Law that contains s.319(1) but that it is referred to simply as the “Criminal Code” and not the “Criminal Code Law.” In his reply the learned Legal Adviser, Alhaji Olugbani, referred to s.2 of the Criminal Code Law and submitted that not only was the Schedule made a part of the Law but also that it was therein referred to as “law” and so it was not wrong to have referred to a provision in the Schedule as the Criminal Code Law. Moreover, he further submitted, by proclamation all laws applicable-in Lagos State are referred to as “Law.”


I am of the opinion that this objection is misconceived. It is true that the short title of the first seven sections in cap. 31 says the Law shall be cited as the “Criminal Code Law.” It is also true that the part of the legislation which contains s. 319( 1) under which the appellant was charged is the Schedule, and it is provided that the Schedule shall be referred to as “the code.” But ordinarily a schedule to a statute, especially when referred to in the statute itself, is as much a part ,of the statute as any other, and may be ,used In construing the provisions in the body of the statute: see ‘R.. v. Legal Aid Cttee. No.1 (London) Legal Aid Area, ex p. Rondel (3). So that the Schedule to the Criminal Code Law is a part of the Law itself. It follows that if the Law could be referred to as “Law” the Schedule could be so called. Moreover, all laws operative in Lagos State, and indeed in all the States of the Federal Republic, are called “Laws” in contradistinction to ., Acts” which are Federal. True, s.2(1) of the Criminal Code Law says that the Schedule shall be called “the code,” it is also provided in that subsection as follows:


“The provisions contained in the Code of Criminal Law set forth in the Schedule to this Law, and hereinafter called ‘the code’, shall, except to the extent specified in subsection (2), be the law of the Lagos State with respect to the several matters therein dealt with.”


This sub-section itself provides that the provisions of “the code” shall “be the law of Lagos State .” As the Law itself so provides I cannot see how the appellant can complain that the section under which he is charged was referred to as being in the “Criminal Code Law” instead of the “Criminal Code.” Moreover, there was no suggestion before us that the Schedule does not contain s.319(1) or that the appellant was misled or prejudiced by reference to the section as being in the “Criminal Code Law” or that the offence was not defined in a written law so as to have enabled him to call in aid the provisions of s.22(10) of the 1963 Constitution of the Federation which was in force at the time. I hold that there is no substance in the objection.


In ground 1 the appellant complains that the verdict is unreasonable and cannot be supported having regard to the evidence. There can be no doubt that if the appellant’s statement to the police was rightly accepted, it clearly shows that the murder of the couple was by the appellant and was premeditated, carefully planned and mercilessly executed by him. Applying the tests laid down by Ridley, J. in Sykes v. R. (7), which were adopted by the West African Court of Appeal in Kanu v. R. (1) and followed by the Supreme Court in a number of cases, it is clear that the appellant’s statement passed the tests. The appellant had the opportunity of committing the offence. Many facts contained in the statement are consistent with and corroborate facts admitted by him in the witness-box or proved at the trial. Also,. although the police were not by law bound to have taken the statement to a superior police officer for the appellant to confirm the statement before him, P .C. Peter Azuk, took the desirable step of taking the appellant, as a suspect to Dep.-Supt. John Oyelola Oyedele, who read over the statement, which the appellant had written himself, to the appellant, who, after it had been read over to him, confirmed it as correct and voluntary before Dep.-Supt. Oyedele endorsed it. There can be no doubt that the learned judge was entitled to have convicted the appellant on the statement. Even the long litany of the grounds of his grudge against the deceased couple which he gave in the witness-box and in his statement to the police only lent credence to the fact that he thought he had good reasons to kill them, although the law thinks differently. Above all, the statement confessed not only to his act of preparation by taking away his son but also his design to cover up the offence by setting fire to the building and attempting to kill himself. His defence that his brother’s wife, also killed, attacked him with a pair of scissors was rightly rejected – no scissors were found anywhere – and so was the reconstructed account of the incident in the witness-box. His defences of self-defence and provocation were also rightly rejected.


On our part, though there was no ground of appeal complaining of insanity we none the less asked counsel to address us on that. I am satisfied after listening to counsel on both sides that there is no credible evidence to show that at the time the appellant killed his brother and his wife he was either insane or suffering from an insane delusion such as would rebut the presumption of sanity under s.27 of the Criminal Code or discharge the burden of proof incumbent upon the defence under s.25. For, although the standard of proof is just as high as in any civil case, the fact remains that the onus is still on the defence to prove that at the time of the killing in question he was suffering from either a mental disease or from natural ,mental infirmity of such a nature that at the relevant time he was deprived of the capacity to understand what he was doing or to control his actions or to know that he ought not to do the act in question: for this, see R. v. Omani (4) (12 W.A.C.A. at 513). The appellant recalled most meticulously all that happened and there was no credible evidence of insanity or insane delusion.


In ground 5 the appellant complains as follows:

“The learned trial judge erred in law by not specifying in his judgment on what count the accused was convicted and the sentence for such count.”


The appellant’s counsel submitted that as there were two separate counts of murder the learned judge ought to have returned separate verdicts and separate sentences for each count. In support of his submission he relied upon two cases, namely Yesufu v. Insp.-Gen. of Police (8) (1960 L.L.R. at 141) and Shallabi v. R. (6) (2W.A.C.A. at 366-367).


I must say that from the judgment of the learned judge, one cannot say that there is any shadow of doubt that he had it in mind, all through the case, that he was dealing with two offences of murder – the murder of each of the deceased couple. The opening sentence made it clear that he was considering a case of double murder against the appellant. The couple had been fatally wounded by the appellant and they were in an unconscious state and in a pool of blood before they were found and rescued from the house and rushed to hospital where they died. The evidence was circumstantial and up to that point there was no difference or separation of facts relied upon by the prosecution. The learned judge, of necessity, treated those facts together. After his findings of fact, he concluded: “I find that the killing by the accused of the deceased couple on November 6th, 1976 was premeditated. Accordingly, I find the accused guilty as charged.” [Emphasis supplied.] As two separate counts had been laid for the two offences of murder, it is in my view pretty clear that he found the appellant guilty on each count. It is therefore not true that the learned judge did not specify in his judgment on what count the accused was convicted.


It is in the complaint against sentence that the appellant’s complaint appears to me to be well-founded.” The note on this point by the learned judge simply says: “Death sentence pronounced in accordance with s.367 of the Criminal Procedure Law.” It is not clear to which count of the indictment the pronouncement relates. It is the law that when an accused person is convicted under two or more counts, separate sentences should be passed in respect of each count: for this see Sballabi v. R. (6) 2 W.A.C.A. at 366-367). Although each of the offences is murder carrying the compulsory penalty of death, it would be necessary to state for which of the offences the appellant was being sentenced.


I might have been desirable to have pronounced sentence on one count and stayed it on the other until the appellant had exhausted all his chances of appeal in the one on which sentence had been passed, or to pronounce the two sentences one after another with a direction that one would take effect if the other were commuted or otherwise set aside:


Counsel did not address us as to what this court ought to do in the circumstances of this case. I shall, however, decide what to do from a view of a few decided cases. In Seedi v. Commr. of Police (5) where a magistrate passed a sentence upon an accused person without recording a finding of “guilty” against him, the accused appealed on the ground that there was a material irregularity in his conviction and sentence. The West African Court of Appeal dismissed the appeal and held that the omission was a mere technicality which the court could remedy. I therefore hold that the failure of the learned judge to record a separate sentence for each count, although erroneous, is an irregularity which this court can remedy in the interests of justice, so that substantial justice might be done.


In the case of Shallabi v. R. (6) the West African Court of appeal stated (2 W.A.C.A. at 367): “If we had upheld the convictions it would have been necessary for us to exercise our powers of alteration of sentence so as to put it into proper form.” This implies that the appellate court could in a proper case amend the sentence once the conviction has been upheld. But then the charges in that case were of stealing, receiving and conspiracy, in which it might not have been necessary for the appellant to be present’ when the sentence was amended. I am of the view that the literal meaning of s.367(2) of the Criminal Procedure Law of Lagos State is that the accused person ought to be present in court when the sentence is passed. For this reason, I find a better guide in this problem from the judgment of the Supreme Court in Okpo v. state (2) 1972) 2 S.C. at 33) where their lordships, after confirming the finding of “guilty” of the offence of murder of which the appellant was charged but finding that the learned judge did not record that the appellant was in fact convicted and that the sentence of death by hanging as prescribed by s.367(2) of the Criminal Procedure Law was not passed, dismissed the appeal but directed that the matter be brought to the notice of the trial judge for the errors to be remedied. I therefore dismiss the appellant’s appeal and direct that the irregularity in the sentence be brought to the notice of Bakare, J. with a view to his passing separate sentences for either or both of the offences of murder of which the appellant has been found guilty, the count on which he is sentenced to be specified in either case.


COKER and UTHMAN MOHAMMED, JJ .C.A. concurred.

Order accordingly.


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