CRIMINAL LAW AND PROCEDURE – SENTENCING – Whether a judge can only impose a sentence of death on an accused person who is found guilty of the offence of murder/culpable homicide punishable with death


“I have no hesitancy in discountenancing the stance of the appellant on the substitution of sentence from life to death by hanging. This is by reason of the evidence on record and the findings of the Court of trial which found that the prosecution had proved the three essential ingredients of the offence of murder. For clarity at the risk of repetition, the ingredients are:- a. That the deceased died b. That it was the act of the appellant that caused the death. c. That the appellant had the intention to kill the deceased. The trial Court having found out that the prosecution had effectively and beyond reasonable doubt proved the offence of murder, the Court lacked the discretion to deviate from the sentence so prescribed for murder to meet out the punishment provided for manslaughter. The appellant was charged at the trial Court for an offence of murder contrary to Section 326(1) of the Criminal Code, Cap 38, Vol.2, Laws of Akwa Ibom State of Nigeria 2000 and it stipulates mandatorily thus:- “…any person who commits the offence of murder shall be sentenced to death.” See Haruna v A.G. Federation (2012)9 NWLR (pt.1306) 419; Ogualaji v A.G. Rivers state & Anor (1997) 5 NWLR (pt.508) 209 at 233. The Court below applied the appropriate law, the Respondent having cross-appealed against the conviction and sentence, to find the Appellant guilty of murder and sentenced to death by hanging. Therefore the Court below rightly relied on the case of State V. BABANGIDA JOHN (2013) 54.3 NSCQR 1903 at 1939, wherein this Court held that: “Once a judge finds an accused person guilty of culpable homicide, the only sentence he can pronounce is death. A judge has no discretion to reduce death sentence to a term of years once the accused person has been found guilty. The sentence of 14 years imprisonment after finding the accused/respondent guilty of culpable homicide was wrong, it is a material irregularity in the proceedings the trial Court and this Court could remedy it so that substantial justice might be done. The correct judgment of the trial Court is that the respondent is/was sentence to death.” See also the case of ODUNAYO V. STATE (2013) LPELR-21459. The Court below per Adah, JCA in addition to the lead judgment said: “in the instant case, the learned trial judge had found from the evidence that the Appellant is guilty of murder. The law requires as was held by Udo Udoma, JSC in Okpo VS. STATE (1972)2 SC24 that “once a person has been found guilty of having committed the offence of murder, it is mandatory that he be sentenced to death. No other form of punishment can be inflicted”. This was in the context of the instant case, the expectation of the law…” Clearly, the Court below was a top of its duty in rectifying what was evidently a dereliction of duty on the part of the trial Court at the sentencing point in the light of the evidence and the conclusion within the realm of its primary functions of a trial Court which saw, heard and watched the demeanour of witnesses while they testified. Therefore when the trial Court evaluated the evidence and exhaustively appraised the facts situating them to the offence charged which is that of murder, it follows that when it erroneously dished out the faulty punishment, the Court below was right in interfering at that stage and putting the record where it ought to be as provided for by the law.” Per PETER-ODILI, JSC in AKPAKPAN v. STATE (2021-LCER-40459-SC) (Pp 35 – 38 Paras A – A)

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