Ade Mike Musa Ogugu & Ors v. The State

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.

P.2

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

P.3

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

P.4

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

P.5

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

P.6

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

P.7

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.
Mrs. Wilson. Solicitor-General of Edo State expatiated the Brief of her Attorney-General that the issue in Pratt case was first heard by the Supreme Court of Jamaica in exercise of its original jurisdiction under Section 25 of the Jamaican Constitution before the case went on appeal to the Privy Council. On the contrary, our Supreme Court has no original jurisdiction on the question which Section 42 of our Constitution vested in the High Court. She further contended that the constitutional question was premature since the appellant has not exhausted the avenue of appeal and the sentence could not be lawfully carried out: Bello v. A-G of Oyo State (1986) 2 NSCC

P.8

1257; (1986) 5 NWLR (Pt.45) 828. Mr. Ataghar, the Director of Public Prosecutions of Benue State supported the submission on the prematurity of the question and absence of the court’s jurisdiction.
Mr. Mahmoud filed a very impressive Brief on the constitutional question but did not touch the issue of jurisdiction. He urged the court to commute the sentence to life imprisonment thereby implying the court has jurisdiction.
In his reply brief to the submissions of amici curiae on the issue of jurisdiction, Mr. Agbakoba based his contention on the proposition that inordinate delay in carrying out the execution of a death sentence constitutes inhuman and degrading treatment within the purview of Section 31(1) (a) of the Constitution and that this court can entertain a complaint concerning such proposition and give relief therefore in the course of an appeal against conviction and sentence though no such complaint was made in the lower courts. Learned counsel submitted that the court was conferred with such jurisdiction by the 1979 Constitution and the African Charter on Human and Peoples Rights.
Mr. Agbakoba pointed out that in the exercise of is appellant jurisdiction under Section 213(2)(c) of the Constitution, this court has always entertained and given relief for complaints of violations of fundamental rights enshrined in our Constitution raised for the first time in the Court of Appeal in criminal matters where the violation arose from or was constituted by the conduct of the proceedings in the lower courts or arose therein as a collateral issue. He cited Alahi v. State (1993) 7 NWLR

P.9

(Pt.307) 511; Aderemi v. State (1991) 6 NWLR (Pt.195) 1 and Okoro v. State (1988) 5 NWLR (Pt.94) 255 on the presumption of innocence guaranteed by Section 35(5); also Josiah v. State (1985) 1 NWLR (Pt.1) 125 and Udo v. State (1988) 3 NWLR (Pt. 82) 316 relating to the right to counsel to buttress his argument. He indicated a common feature to all these cases, namely the fundamental rights violations were intrinsic to the proceedings of every case and could therefore properly form the basis of appeals from those proceedings. He distinguished these cases with common intrinsic feature from Trevor Walker v. The Queen (supra) wherein, he contended, the human rights violations complained of was extrinsic to the adjudication before the Jamaican Court of Appeal as the complaint was based on a delay occuring after the decision of that court on the conviction. He submitted that the human rights violation complained of by the appellant herein was intrinsic to the adjudication in the Court of Appeal and could therefore be raised for the first time in a criminal appeal against such adjudication to this court. Since the inhuman and degrading treatment in the instant case arose from and was constituted by the inordinate delay in the conduct of the proceedings in the Court of Appeal, contended learned counsel, it could legitimately form the basis of an appeal in this court. He surmised that Section 213(2)(c) of the Constitution has vested on this court appellate jurisdiction against violation of all fundamental rights including Section 31(1) (a) guaranteed in Chapter (IV) of the Constitution.
In the alternative, Mr. Agbakoba also submitted that the court could assume jurisdiction to determine the complaint

P.10

of “cruel, inhuman or degrading punishment and treatment” contrary to Article 5 of the African Charter On Human And Peoples Right which forms part of our domestic law by the African Charter On Human And Peoples Rights (Ratification and Enforcement) Act, Cap 10 of the Laws of the Federation of Nigeria 1990. He argued that the human rights guaranteed by the Charter were independent of the fundamental rights enshrined in our Constitution to which the submissions of amici curiae relating to the enforcement procedure provided by Section 42 of the 1979 Constitution were restricted. He stated that although Section 1 of the Act required “all authorities and persons exercising legislative, executive or judicial powers give the Charter recognition and effect, neither the Act nor the Charter made any provision for the enforcement of the rights by our domestic courts. He argued that like any other domestic law, the rights under the Charter might be enforced by other judicial process and that the procedure for the enforcement of fundamental rights prescribed by Section 42 was only permissible and did not exclude the prerogative remedies of habeas corpus, mandamus, certiorari and prohibition
In conclusion, he submitted that the court should fill the gap created by the absence of enforcement process in the African Charter in favour of the 3rd appellant by assuming jurisdiction: that ambiguities and lacuna in penal and fundamental rights provision were usually interpreted to save jurisdiction which the court guarded jealously and would only decline where there was express denial of jurisdiction: Attorney-General of the Federation v. Sode (1990) 1 NWLR (Pt.128) 500. 

P.11

I am inclined to agree with Mr. Agbakoba that the provision of Section 42 of the Constitution for the enforcement of the fundamental rights enshrined in chapter IV of the Constitution is only permissible and does not constitute a monopoly for the enforcement of those rights. The object of the Section is to prove a simple and effective judicial process for the enforcement of fundamental rights in order to avoid cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. The object has been achieved by the Fundamental Rights (Enforcement Procedure) Rules 1979. It must be emphasised that the Section does not exclude the application of the other means of their enforcement under the common law or statutes or rules of courts. These are contained in the several Laws of our High Courts, for example sections 18, 19 and 20 of the High Court of Lagos relating to mandamus, prohibition, certiorari, injunction and action for damages. A person whose fundamental right is being or likely to be contravened may resort to any of these remedies for redress.
However, I am unable to agree with Mr. Agbakoba that because neither the African Charter nor its Ratification and Enforcement Act has made a special provision like Section 42 of the Constitution for the enforcement of its human and people rights within a domestic jurisdiction, there is a lacuna in our laws for the enforcement of these rights. Since the Charter has become part of our domestic laws, the enforcement of its provisions like all our other laws fall within the judicial powers of the courts as

P.12

provided by the Constitution and all other laws relating thereto. The following may particularly be mentioned:
(1)” (6) The judicial powers vested in accordance with the foregoing provisions of this Section-
(a) X X X X X X X
(b) shall extend to all matters between persons or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;” Section 6 of the Constitution.
(2) Section 236 of the Constitution also provides:
“236-(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a state shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
(3) Section 230 of the Constitution as modified by the Constitution (Suspension and Modification) Decree 1993, the Federal High Court has exclusive jurisdiction in civil cases or matters arising from, inter-alia:-
“(r) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies; and
(s) any action or proceeding for a declaration or injunction

P.13

affecting the validity of any executive or administrative  action or decision by the Federal Government or any of its agencies;
provided that nothing in the provisions of paragraphs (q),  (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”
It is apparent from the foregoing that the human and peoples rights of the African Charter are enforceable by the several High Courts depending on the circumstances of each case and in accordance with the rules, practice and procedure of each court. However, the question whether this court has jurisdiction to entertain for the first time on appeal the complaint of the 3rd appellant that the delay in his execution contravened his right not to be subjected to cruel and degrading punishment or treatment under Article 5 of the African Charter remains to be answered. I shall do so in due course.
It has long been the cardinal principle of our constitutional law that on account of the unique character and diversity of our Constitution, the courts should  always endeavour to find solutions to constitutional questions within the Constitution through its interpretation but the courts may seek guidance as persuasive authorities from the decisions of the courts of other common law jurisdictions on the interpretation and construction of the provisions of their Constitutions which are in pari materia with the relevant provisions of our Constitution:Senator Adesanya v. President of the Federal Republic of Nigeria (1981) 5

P.14

S.C. 112: (1981) 2 NCLR 358 and Attorney-General Bendel State v. Attorney-General of the Federation (1981) 10 S.C. 1; (1982) 3 NCLR 1.
There is almost a general consensus by the amid curiae that the court lacks jurisdiction to determine the constitutional question on the ground that it is not a matter within the appellate jurisdiction of the court when it was not canvassed and decided by the lower courts and the appellate process which the appellants invoked has not been completed.
It appears to me that upon careful examination of the fundamental rights in Chapter IV of the Constitution, they may be classified into two categories for the purpose of their observance and enforcement. Firstly, there are the rights which must be observed whenever the occasion for their observation has arisen. Endorsing the submission of Mr. Agbakoba, they are intrinsic to the occasion and cannot be divorced from the occasion. They are generally procedural rights and are embodiment of a fair trial in courts and tribunals of a democratic society. Thus the right to fair trial and the right of the accused to defend himself under Section 33 of the Constitution are intrinsic to the trial and failure to observe such right is a valid ground of appeal: Josiah v. The State (supra). Udo v. The State (supra) and Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NSCC 988; (1985) 2 NWLR (Pt.7) 300. 
The second category of the fundamental rights comprise of those rights that are enforceable by the High Courts under Section 42 of the Constitution. Because the Constitution expressly confers original jurisdiction for their

P.15

enforcement on the High Courts, this court has no jurisdiction as a court of first instance over them: See Tukur v. Government of Gongola State (1989) 3 NSCC 225: (1989) 4 NWLR (Pt.117) 517 for alleged contravention of the rights of fair hearing, freedom of movement and wrongful detention by sections 33(1), 33(1) and 32(1) of the Constitution.
Now, to which of the two categories the right not to be subjected to inhuman or degrading treatment under Section 31(1)(a), the subject matter of the constitutional question, belongs? I think it is germane to the issue to examine the cases on subjection to inhumanity decided by the courts of the common law countries cited by learned counsel and to see the process for their adjudication.
Section 24 of the Constitution of Zimbabwe vests original jurisdiction on the Supreme Court of that country as a court of first instance to determine breaches of human rights. In Catholic Commission v. Attorney-General (supra). The complaint of inordinate delay in the execution of the death sentence contravening Section 15(1). which is in pari materia with our Section 31(1)(a) was made in that court as a court of first instance after it had dismissed the appeals of the appellants against conviction. The appellants thereat invoked the original jurisdiction of the court after they had exhausted their rights of appeal.
The proceedings in the case of Riley v. Attorney-General of Jamaica (1983) 1 AC 719 and Pratt & Ors. v. Attorney-General of Jamaica originated in the Supreme Court of that country, which is equivalent to our High Courts. The convicts had formerly appealed against their convictions

P.16

by the Supreme Court to the Court of Appeal and later to the Privy Council. After the Privy Council had dismissed their appeals, they instituted fresh proceedings in the Supreme Court under Section 25 of their Constitution complaining of the inordinate delay constituting the subjection to inhumanity contrary to Section 17(1) of their Constitution which is similar to our Section  31(1)(a). The decision of the Supreme Court on the fresh proceedings went on appeal to the Court of Appeal of Jamaica and thereafter to the Privy Council. In the same vein, Abbort v. Attorney -General of Trinidad (supra ) followed the same process.
It is worthy to note that a short-cut was taken in Walker v. The Queen (1993) 3 WLR 1017 where in an appeal against conviction from Jamaica the constitutional issue was raised for the first time. The Privy Council held it had no jurisdiction to entertain it.
The Constitution of India does not contain inhumanity provision at all but the Supreme Court has incorporated it into Article 21 which guaranteed right to life: Mullin v. Administrator Union Territory of Delhi, AIR (1993) S.C. 746.In India, death penalty is not mandatory and the courts have discretion to pass it or a sentence of imprisonment and may take into account delay when deciding whether death sentence should be imposed. For this reason the constitutional issue relating to delay may be raised for the first time in the Supreme Court on appeal against conviction and sentence: see Vatheeswaran v. State Tamil Nadu (1983) 2 SCR 348. However. while an appellant has exhausted his right of appeal and the apex court has confirmed the death sentence, he still has the

P.17

right to apply to the Supreme Court by petition to stop the execution of the death sentence on the ground of delay occurring after its confirmation: SMT Treveniben v. State of Gujarat (1989) 1 SCJ. 383 and Sher Singh v. State of Punjab (1983) 2 SCR 582. The Supreme Court of India has jurisdiction as a court of first instance to decide such petitions.
Perhaps the Supreme Court of the United States of America did not have the opportunity to decide the relevant inhuman constitutional issue because no decision of that court has been referred to us. The decisions of the courts of the two state referred to us are not strictly relevant to the issue. In People v. Chessman 341 P 2nd 679, the convict was sentenced to death for first degree robbery by the Los Angeles County Court and the Supreme Court of California affirmed the conviction and sentenced. Thereafter the United States Supreme Court on certiorari remitted the case to the State Supreme Court for review upon properly settled records. The note in the report shows that before the hearing of the review, the convict applied by motion to the Federal District Court for his discharge from custody on the ground that his confinement for eleven years pending execution of his death sentence was “cruel” and “unusual treatment” prohibited by Article 1 Section 6 of the Californian Constitution. The motion was denied and the denial was confirmed by the Californian Supreme Court in its judgment for review. It may be observed that constitutionality of capital punishment was not challenged in that case but it was subsequently challenged in People v. Anderson 439 p 2nd 880 wherein the Californian

P.18

Supreme Court declared capital punishment cruel and unusual punishment contravening the said Article 1 Section 6.
As is the case in India, the jury has discretion in Massachusetts State to impose death sentence or imprisonment for life depending on the circumstances of each case and their decision is appealable to the Supreme Court or Massachusetts: District Attorney v. Watson Mass., 411 NE 2nd 1274 on appeal and Commonwealth District Attorney v. Warso/1 Mass., 411 NE 2nd 1274 on appeal and Commonwealth v. O’ Neal Mass., 339 N.E, 2nd 676 in advisory opinion where that court held death penalty was cruel and unusual punishment contrary to Article 26 of the Massachusetts Constitution.
The afore-considered cases, except in a country where there is a right of appeal against death sentence, shows that in those common law countries the issue similar to the constitutional question in our present appeal was taken in a court vested with original jurisdiction to adjudicate on the matter after the convict, where he had exercised his rights of appeal against conviction, had exhausted the rights. Where the court vested with the original jurisdiction is not the Apex Court, such adjudication would only come to it by way of appeal from the lower court.
Now, at present this court has no original jurisdiction at all. The sentence of death for the offence of armed robbery contrary to Section 402(2)(a) of the Criminal Code (Amendment No.1) Law 1980 of which the appellants were convicted is mandatory. Section 30 of the

P.19

Constitution authorises imposition of death sentence by a court of competent jurisdiction and, unlike India, the appellate jurisdiction of this court under Section 213 of the Constitution does not include appeal against sentence of death. Like the Privy Council in Walker v. The Queen (supra), this court is not vested with original jurisdiction to stop the Executive from carrying out the execution of a sentence of death. I hold that the question of whether or not execution of the appellants would infringe their constitutional rights is a matter for determination by the High Courts upon which Section 42 of the Constitution confers jurisdiction.
Accordingly, the jurisdiction of this court to determine the constitutional question will only arise on appeal after a High Court has considered and adjudicated on the issue and the Court of Appeal confirmed or reversed the decision of the High Court. It will be unconstitutional for this court to assume jurisdiction and decide the question as contended by Mr. Agbakoba.
I should like to reiterate our gratitude to the learned amici curiae for the research, industry and learning in their submissions on the constitutional question. Although it has turned out that the court cannot in this appeal determine the question, nevertheless their effort has not been in vain. They have alerted the court to appreciate the gravity and constitutional importance of the question. It is anticipated that the occasion for its determination is likely to be presented soon. Inspite of the importance of the constitutional question, it is surprising that Dr. Onagoruwa, the then Attorney General of the Federation and Minister of Justice did not respond to the court’s

P.20

invitation to him to file a brief on it and to appear as an amicus curiae.
The appeal against conviction of each appellant may now be considered. The facts of the case found by the trial Judge are straightforward, Shortly after mid-night on 9th September 1982, the appellants armed with pistols together with other marauders jointly boarded the house-boat anchored in the Lagos lagoon and at gun point robbed the inhabitants of the house-boat of their money and some properties. The appellants had gone to the house-boat in their out-engine boat and speeded away therefrom after the robbery. One Baba, the night watchman on duty at the house-boat disappeared that night and his body was found floating in the lagoon three days after the incident with bullet wounds on his forehead. The appellants were shooting when they boarded the house-boat.
On 13th September 1982, the police searched the 1st appellant’s house and found some of tile stolen properties. The 1st appellant took the police to the house of the 3rd appellant in whose absence a stolen cassette player was discovered. When the 3rd appellant was arrested later. he stated that the player had been given to him by the 1st appellant. All the appellants voluntarily made confessional statements to the police. Upon those facts established by evidence. the trial court convicted the appellants of the offences of conspiracy to commit armed robbery and of armed robbery. The Court of Appeal affirmed the convictions.
In his original brief filed on 1st September 1992. Chief Oki had nothing useful to urge in favour of the 1st appellant.

P.21

He formulated three issues for the determination of the appeal of the 2nd appellant. which are:-
“(1) Whether Exhibit R can truly be regarded as a confessional statement in fact and in the circumstances of this case?
(2) Can it be said that the evidence of P.W.1 and P.W.2 corroborated the statements of the appellant in material particulars?
(3) Whether a court can rely solely on a retracted confessional statement which was not endorsed by a superior Police Officer in convicting an accused person?”
In respect of the 4th appellant. he advanced two issues from which issue No.(a) is covered by issue NO.(3) for the 2nd appellant. The two issues are:-
“(a) Whether a court can rely solely on a retracted confessional statement which was not endorsed by a Superior Police Officer in convicting an accused person?
(b) Whether from the facts and circumstances of this case, the prosecution can be said to have proved count 3 of the charge beyond all reasonable doubt?”
On issue No.1 Chief Oki submitted that the lower court had erred in law by treating Exhibits R and U, statements of 2nd and 4th appellants respectively, as confessions. He referred to the definition of “confession” and contended that for a statement to be so, it must be clear, precise. positive and unequivocal and that the statement must be read as a whole and not disjunctively. He buttressed his submission with Ghadamosi v. State (1991) 6 NWLR (Pt. 196) 82, Saidu v. State (1982) 4 S. C. 41. Akpan v. State (1990) 7 NWLR (Pt.160) 101, Adeyemi v. State (1991) 6 NWLR (Pt. 195) 1, Okegbu v. State

P.22

(1979) 11 S.C. 1 and Yesufu v. State (1976) 6 S.C. 167.
The complaint for issue No.2 is directed to the observation of Babalakin. J.C.A. in the lead judgment, with which Akpata and Awogu, J.C.A. agreed, wherein he stated:-
“The cases of the 1st and 2nd appellants are also similar. They both made confessional statements in respect of the charges against them. These statements were corroborated in material particulars
by the evidence of P.W.1 and P.W.2″.
Referring to the definition of corroboration” in Black’s Law Dictionary, learned counsel contended that neither P. W.I nor P.W.2 corroborated the confessions of the 2nd and 4th appellants, Exhibits Rand U. P.W.2 did not identify 2nd and 4th appellants.
With respect to issues No.3 and (a), Chief Oki relied heavily on Umani v. State (1988) 2 S.C. (Pt. 1) 88: (1988) 1 NWLR (Pt.70) 274 and Opayemi v. State (1985) 2 NWLR (Pt. 5) 101 in his contention that the Court of Appeal was wrong in upholding the convictions when this court had decided in these two cases that a court should not base a conviction solely on retracted confession. He further urged the court not to support the conviction because the prosecution had failed to take the appellants to a superior police officer to confirm the voluntariness of the confessions in accordance with the practice approved by this court in Ejinima v. State (1991) 6 NWLR (Pt. 200) 627 and Onifade v. State (1968) NMLR 261.
In the Supplementary Brief, Chief Oki raised the issue of the absence of counsel for the defence at the end of the trial. namely:-

P.23

“Whether as a result of the absence of the defence Counsel at the Address Stage, the appellants could be said to have had a fair hearing as guaranteed by the rules of natural law and justice and 533 of the Constitution of the Federation 1979,”
Learned counsel submitted that the right to be defended by counsel at any stage of the trial in a capital offence was essential to a fair trial and fair trial of a case consisted of the whole hearing and a conviction was fatal in any case where the defence counsel absented himself at any stage of the trial: R v. Mary Kingston (1948) 32 Cr. App. R. 183, Saka v. State (1981) 11-12 S.C. 65. Josiah v. State (1985) 1 NWLR (Pt.1) 125; Udofia v. State (1988) 3 NWLR (Pt.84) 533 and Mohammed v. Kano Native Authority 1968) NSCC 325: (1968) 1 All NLR 424. 
Mr. Agbakoba framed two issues for the determination of the 3rd appellant’s appeal against convictions:-
“1. Whether it was safe and proper to convict the appellant on the strength of only Exhibit P.
2. Whether the non-representation of the appellant at address stage (sic) Prosecution counsel was a denial of the appellant’s constitutional right to fair hearing.”
The complaint with respect to the first issue is that the 3rd appellant made two conflicting statements. Exhibits P and S. In Exhibit P, he confessed having committed robbery at the house together with others while in the other statement he stated they had gone to the house boat to purchase a boat. Mr. Agbakoba contended that where two extra-judicial statements were in material conflict, there must be explanation clarifying the conflict and the onus of

P.24

proof of such explanation lay on the prosecution and that failure to explain reduced the credibility and probative value of both statements. He referred to Rex v. Golder (1960) 1 WLR 1169 and Namsoh v State (1993) 5 NWLR (Pt. 292) 129 and Onubogu v. State (1974) 9 S.C. 1 and further contended that the trial Judge had wrongly relied on some portion of Exhibits which tended to support Exhibit P while totally disregarding the other material portions which were in conflict. He stated that in the absence of a satisfactory explanation, such conflicting statements could not form the basis of conviction. Furthermore, since Exhibit P had been retracted, the trial court was required to look beyond the retracted confession for independent corroborating evidence to support the confession.
He also contended that the confession was totally unreliable because it had not been endorsed by a senior police officer as had been commended in Nwigboke v. R. (1959)4 FSC 101; (1959) SCNLR 248 and Eghoghonome v, State (supra).
In issue No.2 Mr. Agbakoba challenged the conviction on the ground of the absence of the counsel on the last day of the trial when the prosecution counsel addressed the trial court. He argued that the absence of the counsel was a denial of the 3rd appellant’s constitutional rights to fair hearing under Section 33(4) and 33(6)(c) of the Constitution. He relied on Josiah v. State (supra); Udo v. State (1988) 3 NWLR (Pt.82) 316 and Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341.  The only matter complained of in the address of the prosecution counsel which had not been raised in the

P.25

previous address of the defence counsel was that the prosecution counsel had urged the trial Judge to rely on Exhibit G, the radio found in the house of the 3rd appellant. Mr. Agbakoba stated that the trial Judge had in fact relied on the submission where he stated in his judgment:-
“Shortly after the robbery, some of the items stolen from the Julius Berger house boat were found with the 1st and 3rd Accused.”
Finally, he contended that there was apparent miscarriage of justice in that the trial Judge did not give the 3rd appellant, and his counsel was absent the opportunity to reply to the address of the prosecution counsel and the failure was a denial of justice and the court should set aside the conviction.
In his response in his Brief, Stanley, the Director of Public Prosecutions, referred to the statement of the 2nd appellant and submitted that it was a confession within the decisions of this court in Saidu v. State (1982) 4 S.C. 41 and Ikemson v. State (1989) 3 NWLR (Pt. 110) 455 and that the confession was corroborated by the evidence of P.W.1. He argued that the mere retraction of the confessions, Exhibits R and U, did not render them unreliable but only affected their weight. However, it was desirable to have some evidence-outside the confessions which would make it probable the confessions were true, contended learned counsel, and the identification of the appellants by P.W.1 and the discovery of some of the stolen properties provided such evidence. He relied on Salawu v. State (1971) NMLR 249; (1970) 1 All NLR 194; Ikpasa v. A. G., Bendel State (1981) 9 S.C. 7 and

P.26

Akinfe v. State (1988) 3NWLR (Pt. 85) 729. Citing Egboghonome v. State (1993) 7 NWLR (Pt.306) 383 decided recently by this court, he stated that a court may even convict solely on retracted confession.
With respect to the failure of the police to take the appellants to a senior police officer to confirm the veracity and voluntariness of the confessions, the Director of Public Prosecutions contended that on the authorities of Oghodu v. State (1986) 5 NWLR (Pt. 41) 294 and Ojegele v. State (1988) 1 NSCC 276; (1988) 1 NWLR (Pt. 71) 44 the failure did not vitiate the conviction as the practice of obtaining the endorsement of a Senior Police Officer on a confession is not a rule of law.
On the issue relating to fair hearing, the director of Public Prosecutions pointed out that the appellants had been represented by their counsel throughout the trial except on the last day when the State Counsel addressed the court in reply to the defence counsel’s address and before that day the court had adjourned the case several times for the defence counsel to attend but he failed to do so and did not communicate to the court any reason for his absence. He submitted that the absence of counsel in the circumstances did not occasion any miscarriage of justice: Asemakaha v. State (1965) NMLR 317; Udo v. State (1988) 3 NWLR (Pt.82) 316. Udofia v. State (1988) 3 NWLR (Pt. 84) 533. He contended that if there was any breach of Section 33(6)(c) of the Constitution, counsel for the defence committed it and prosecution should not suffer for it. He relied on Onyekwe v.State (1988) 1 NWLR (Pt. 72) 565 that a person should not be allowed to benefit from or take advantage of his wrong doing.

P.27

Furthermore, the Director argued that this court had held in Niger Construction v. Chief Okugbemi (1987) 11-12 S.C. N. J. 133; (1987) 4 NWLR (Pt.67) 787 that addresses were to assist the court and the failure to call one party to address the court was not a matter for the other party to complain about.
As may be observed from the submissions of learned counsel, this appeal has been tainted with some elements of academic and intellectual exercises. Counsel have enriched their briefs with several courts decisions which are not relevant to the determination of the issues in this appeal. For example, on the issue relating to retracted confession, reliance has been placed on cases such as R. v. Calder (supra) and Joshua v. The Queen (1964) 1 All NLR 1 which dealt with non-evidential value of the evidence of a prosecution witness which was inconsistent with his extra-judicial statement: Oladejo v. State (supra) in which this court decided per in curiam that retracted confession had no evidential value whatever; cases like Yesufu v. State (supra) where conviction was based on confession corroborated by independent testimony and Owie v. State (1985) I NWLR (Pt. 3) 470 in which the conviction was upheld on the totality of the evidence including retracted confession; and conviction solely on retracted confession as was the case in Ehbohonome v. State (supra).
The issue in the present appeal is concerned with convictions based not only on retracted confessions but also on the evidence of two eye-witnesses, namely P.W.1 who identified all the appellants and P.W.2 who identified

P.28

the 1st appellant only, to the commission of the offences by the appellants. The court should not therefore be tempted to follow learned counsel and indulge itself in academic exercise. Care should be taken to separate the wheat from the chaff.
The first question for consideration is whether Exhibits R and U are confessions within the definition of Section 27 of the Evidence Act, which provides:-
“27(1) A confession is an admission made at any time by a person charged with the crime, stating or suggesting the inference that he committed that crime.”
In his statement, Exhibit R. the 2nd appellant, stated:.-
“On the 8th September 1982 .I went to Mike Place and he Mike told me that I should followed (sic) him go out, and (we) Mike, Peter Benson, Augustine, we enter the boat to Julius Berger ship, when we got to the (Shi) Julius Berger myself and Benson stay inside the boat while the rest people went to the (SV) ship, after they went up for some minutes before they come back, when they come back they told us that there is no market to buy, then Mike (M) go back to the ship he then brought out one colour TV, one video (when) from there we started to leave and on that junction not quite distance we heard a gun shot, but before then the boat has already grant before we heard the gun shot, then we all fall inside water later Mike (m) pushed the boat later we all come enter the boat and go away and none of us (my) received any injury. When we got to Maroko water side the Mike said that he want to use the colour TV. While we are to sell the video, and share the money to us but none of us fired at all.”
On his part, the 4th appellant stated in Exhibit U:-

P.29

“On 8-9-82 we boarded our flying boat to Lagos Lagoon, when we got there the watch night guard fired on us from there. Mike Ogugu reply him with fire, it is from there we got to the house boat, and Smith asked the white man that were (sic) is the company saving? The white man said there is nothing like saving in the house boat, unless his own personal money in his possession, and some goods as follows: one video, one colour TV set, two radio cassettes and one battery charger after that I fired one rounds of ammunition in the house boat, from there we all left back home, on our way Mike take the colour TV set, Benson one video, Peter one radio cassette, Joe one radio cassette, myself I was given N50,00 and Augustine was given N60.00 that is all”
I do not think one needs any authority to treat both statements as confession by both appellants as both admitted they committed the offences, to wit conspiracy to commit armed robbery and armed robbery.
With regard to the failure of the police to take the appellants to a Senior Police Officer to confirm that the appellants had made the statements freely and voluntarily in accordance with the Judge’s Rule, this court long ago settled the issue. The practice is not a rule of law but is a commendable precaution for ensuring that enthusiastic junior police officer will not endeavour to be tempted to “obtain” confession to secure conviction. Mere failure to accommodate the practice does not affect the efficacy or evidential value of a confession which a trial court found to be freely and voluntarily made: Nwighoke v. R. (supra); Otufale v. State and Egboghonome v.

P.30

State (supra).
The challenge to the observation of Babalakin J.CA., to wit:
“The cases of the 1st and 2nd appellants are also similar. They both made confessional statements in respect of the charges against them. These statements were corroborated in material particulars by the evidence of PW1 and P.W.2.”
may be summarily diposed of. Chief Oki stated that P.W.1 and P.W.2 had not corroborated the confessions by both appellants and he particularly referred to Exhibit M in which the 2nd appellant had denied committing the offence.
Corroborative evidence was defined in Omisade & Ors. v. The Queen (1964) NSCC 170: (1964) 1 All NLR 233; (1964) 1 NMLR 67 as evidence given by an independent witness which showed or tended to show that the accused committed the crime was true, not merely that the crime had been committed, but that it was committed by the accused. The corroboration needs not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. Surely, the evidence of P.W.1 and P.W.2 in the present case was more than corroborative. P.W.1 directly and positively implicated all the appellants of having committed the robbery while P.W.2 also implicated the 1st appellants. There is no substance whatever in the challenge.
With regard to the issue relating to the evidential value of a retracted confession, it appears Mr. Agbakoba did not fully appreciate the ratio decidendi of the recent full court

P.31

judgment in Eghoghonome v. State (supra) wherein the majority held that the principle stated in R. v. Golder (supra) and adopted in Oladejo v. State (supra), – to wit where a witness makes a statement which is inconsistent with his testimony, such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which the court can act does not apply to the evidence of an accused and his retracted confession. The court per majority held therein that a court may rely solely on retracted confession and convict. Accordingly, Mr. Agbakoba’s submission on the application of the rule in R v. Golder to the case on appeal has been misconceived.
It now remains to examine the issue concerning the denial of the right to fair hearing. Representation by a legal practitioner at the trial of any person accused of a criminal offence is one of the fundamental rights guaranteed by Section 33 of our Constitution and, if the charge is of a capital offence and the accused is not represented by a counsel of his choice, the court has a statutory duty to provide such representation. Section 33(6)(c) of the Constitution provides:-
“S.(6) Every person who is charged with a criminal offence shall be entitled:-
(a) x       x       x       x
(b) x       x       x       x
(c) to defend himself in person or by legal practitioners of his own choice:”
For the trial of the accused charged with a capital offence. Section 352 of the Criminal Proceudre Law of Lagos State, which is the relevant Law in this case, prescribes:-

P.32

“352 Where a person is accused of a capital offence the state shall, if practicable, be represented by a law officer, or legal practitioner and if the accused is not defended by a legal practitioner the court shall, if practicable, assign a legal practitioner for his defence.”
Where the criminal trial is before a Tribunal, Rule 5 of the Robbery and Fire-arms Tribunal (Procedure) Rules 1975 directs as follows:-
“5. Where an accused charged with an offence punishable with dealt is not defended by Legal Practitioner, the Tribunal shall assign a Legal Practitioner for his defence.”
For non-competence with the provisions of Section 352 Rule 5, two cases have been drawn to our attention. The conviction of the appellant of armed robbery was set aside and order of acquittal made in Saka v. State (supra) by this court because he could not be said to have a fair trial for two reasons. Firstly, the Tribunal had failed in its duty under Rule 5 to assign a legal practitioner to represent him and secondly because the Tribunal had failed to comply with the provisions of section 287 and 288 of the Criminal Procedure Law of Lagos State and thereby deprived the appellant of his right of electing as to whether or not to give evidence at all and call witnesses; or to make or refuse to make an unsworn statement in the dock. Concluding his lead judgment (with which Udoma, Eso, Aniagolu and Uwais, J.J.S.C. agreed Irikere, J.S.C. stated:-
“In view of the undisputed non-compliance with the provision of Section 287(1)(a)(i) – (iii) of the Criminal

P.33

Procedure Law, coupled with the fact that the appellant was neither defended by counsel nor had one assigned for his defence by the tribunal as stipulated under Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules, 1975, I was not in any doubt that the appellant in this case could not be said to have had a fair trial.”
The other case is Josiah v. State (1985) 1 NWLR (Pt.1) 125 which was a murder case tried in the High Court of Bendel State. The trial Judge failed to assign a legal practitioner to defend the accused as required by Section 352 of the Criminal Procedure Law of the state, which is identical to the Law of Lagos State, and he had also failed to comply sufficiently with the provisions of Section 287 of the said Law. This court held that the accused had not had a fair tiral and orderd a retrial.
In Udo v. State (supra), the court held that partial non-representation by a legal practitioner of the accused during the murder that which substantially affected the trial was not concomitant with a fair trial. The accused was represented by counsel and during the trial, counsel applied for adjournment in order to appear before another court. The trial Judge refused to grant adjournment and in the absence of the counsel, when the accused was not represented, two important prosecution witnesses testified. Before then the trial Judge had granted adjournments on twelve different occasions to the prosecution. After the testimony of the two witnesses, the defence counsel re-appeared and represented the accused throughout the remaining course of the trial. The court held that in a murder trial, the defence counsel, whether briefed or assigned, must be present and defend

P.34

the accused person and it was contrary to the spirit and letters of Section 33(6)(c) and (d) of the Constitution and Section 352 of the Criminal Procedure Law, if the accused not being a legally qualified person, was made to slug out his defence in a charge of a capital offence and that the said constitutional and statutory provisions could only be satisfied when the legal practitioner was present and rendered all necessary professional services all throughout the trial and that depriving such accused person of his right to full access to counsel at any stage of the trial amounted to unfair hearing. At page 333 of the report, Nnaemeka-Agu, J.S.C. observed as follows:-
“It appears clear to me, therefore, that the purport and intendment of Section 352 of the Criminal Procedure Law, and Section 33(6)(c)(d) of the Constitution of the Federal Republic, 1979, is to introduce or perpetuate what Lord Denning described as “the fundamental principles of a fair trial” (see Tameshwar v. The Queen (1957) AC 476, at p.486) into our administration of criminal justice. It was breached in this case when the learned trial Judge failed or neglected to consider the learned defence counsel’s application for an adjournment under rather compelling circumstances. It was trampled upon with impunity when he proceeded to take the evidence of P.W.3. Bassey Asuquo Effiiong, a most important witness for the prosecution in the absence of the legal practitioiner for the accused person who was standing trial of his life. It was also not adverted to when P.W.5 Dr. John Akpan Inieke, gave his evidence in Chief in the absence of the learned counsel for the appellant. I shall not visit the sins, if any, of the defence counsel on the court, as the learned

P.35

counsel for the appellant appears to urge.”
The conviction of the appellant was quashed and trial de novo ordered.
In the same vein, the court followed Udo’s case in Udofia v. State (supra) where after he had cross-examined the P.W.1, defence counsel absented himself from the court and the remaining prosecution witnesses were heard by the trial court when the accused was not represented by a counsel. After the prosecution had closed its case, another counsel was assigned by the court to defend the accused. The new counsel did not call any of the prosecution witnesses for cross examination and did not call any witness for the defence. He simply addressed the court. The conviction of the accused of murder was set aside and a retrial ordered.
In his Brief, the Director of Public Prosecutions contended that the absence of the defence counsel during the reply of the state counsel did not cause a miscarriage of justice because the defence counsel had no right to respond. He referred to Niga Construction Ltd v. Chief Okugbeni (supra) a very unusual appeal which did not deal with non-representation by a counsel of an accused but with denial to the plaintiff, who did not complain of the denial, of the opportunity to reply an address by the defendant. Oputa, J.S.C. answered the complaint at page 114 thus:-
“I fail to see why a defendant who was given the extra “latitude to address the court should complain that his opponent was not offered the same opportunity. Addresses are designed to assist the court. When, as in this case, the facts are straightforward and in the main not

P.36

in dispute, the trial Judge would be free to dispense with final addresses. Cases are normally not decided on addresses but on credible evidence. No amount of brilliance in a final speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue.”
It may be noted that this decision in a civil case may not strictly be relevant to the case on appeal. The practice and procedure of civil cases are governed by the rules of courts while the practice and procedure for criminal trials are regulated by the Criminal Procedure Act or Laws.
I think the submission of Mr. Agbakoba on the Reply may be reiterated. It is that the absence of the defence counsel was a denial of accused’s rights under Section 33(6)(a) of the Constitution and the failure of the trial Judge to invite the 3rd appellant, since his counsel was absent, to reply to the Reply of State Counsel was a miscarriage of justice which vitiated the trial.
Now, the Criminal Procedure Law of Lagos State makes provision for Address and Reply in these sections:-
“240 After the accused person has pleaded not guilty to the charge or information the person appearing for the prosecution may open the case against the accused person and then adduce evidence in support of the charge.
241. After the case for the prosecution is concluded the accused or the legal practitioner representing him, if any shall be entitled to address the court at the commencement or conclusion of his case; as he thinks fit, and if no witnesses have been called for the defence, other than the accused himself or witnesses solely as to

P.37

the character of the accused and no document is put in as evidence for the defence, the person appearing for the prosecution shall not be entitled to address the court a second time but if in opening the case for the defence the person appearing for the accused has in addressing the court introduced new matter without supporting it by evidence the court, in its discretion, may allow the person appearing for the prosecution to reply.
242. If any witness, other than the accused himself or witnesses solely as to the character of the accused, is called or any document is put in as evidence for the defence. the person appearing for the accused shall be entitled after evidence on behalf of the accused has been adduced to address the court a second time on the whole case and the person appearing for the prosecution shall have a right of reply.”
It can be seen from these sections that neither accused nor his counsel had a right of reply to the Reply of the State Counsel delivered under Section 242, Accordingly, the absence of the defence counsel at the material time did not prejudice or adversely affect the right of the accused concerning the Reply. However, although an accused person has, in strict law, no right of reply, if the prosecutor has introduced a new matter in his Reply which was not covered by the address of the defence counsel, the rule of practice requires the trial court in the interest of justice and fairness to allow the accused, if he is not represented, or his counsel to respond on the new matter. In any view, failure of a trial court under such circumstances to allow an accused or his counsel to respond will only vitiate the trial if the failure has actually

P.38

caused a ‘miscarriage of justice.
The question now is whether or not the mere absence of the defence counsel or the mere failure of the trial court to invite the accused to respond to the Reply or both jointly had occasioned actual miscarriage of justice. The only new matter, according to Mr. Agbakoba, which was introduced in the Reply and which had not been raised in the address of defence counsel was that the State Counsel urged the trial Judge to rely on Exhibit G, the radio found in the house of the 3rd appellant. Mr. Agbakoba submitted that the Judge had in fact relied on the radio in convicting the 3rd appellant.
The circumstances surrounding the absence of Mr. Olatunbosun, counsel for the appellants, may be stated. He had effectively represented the appellants throughout the trial up to 13th July 1985 when he addressed the court after he had closed the defence case, The trial was then adjourned to 8th August 1985 on the application of the State Counsel to reply. Thereafter there were seven adjournments, two due to -illness of the defence counsel, two because the State Counsel was not ready to reply while three were caused by the absence of the defence counsel without cause’ except for one where it was alleged he attended another court. Ultimately, the State Counsel, Miss Okikiolu, delivered the reply on 18th December 1985 in the absence of the defence counsel.
The offending extract of the Reply is cursory and sloppy and I consider it pertinent to produce it. It reads:-
“Exhibit ‘G’ found in the house of the 3rd accused.
He could not explain how he came to own it.”
Having regard to the overwhelming evidence against

P.39

each  appellant, which I have earlier indicated in this judgment, I would adopt the observation of Oputa, J.S.C., in Niger Construction Ltd v. Chief Okugbeni (supra) at page 114:-
“No amount of brilliance in a final speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue.”
I do not think a reply however ingenious by any of the appellants or their counsel to the Reply would cause a reasonable tribunal to reach different decision from that of the trial court.
Accordingly, I hold that the 3rd appellant had no right of reply to the Reply and the so-called new matter introduced in the Reply did not warrant the trial court to invite him to reply. Moreover, I also hold that the Reply formed an integral part of the trial and the absence of their counsel during its delivery amounted to a breach of Section 52 of the Law. However, I consider the breach in the circumstances as a mere technical breach which had not occasioned actual miscarriage of justice. Since the provisions of sections 33 (6)(c) of the Constitution and 352 of the Law were complied with throughout the trial, except during the Reply, it will not be right to interfere with the convictions solely on the ground of mere technicality: See Okegbu v. State (1979) 11 S.C. 1, Ekwere v. State (1981) 9 S.C 4 and Ikpasa v. A.G. Bendel State (1981) 9 S.C. 7 at page 3 I-32. 
For the avoidance of any doubt, it may be emphasised that non-representation by a legal practitioner at the trial of a person charged with criminal offence, whether capital or not, is not by itself a contravention of Section 33(6)(c)

P.40

of the Constitution unless the accused is not permitted to exercise his right to be defended by a legal practitioner of his choice. The Constitution simply guarantees his right to defend himself in person or by a legal practitioner. It is his business if he cannot afford to brief a legal practitioner of his choice or if the legal practitioner of his choice abandons him. Non-representation per se is not unconstitutional and does not render a trial unfair.
It should be noted in none of the relevant cases I have considered in this judgment, namely Saka v. State, Josian v. State, Udo v. State and Udofia v. State, did this court decide that want of counsel was per se unconstitutional under Section 33(6)(c) of the Constitution. It was the non-compliance or partial compliance with some of the mandatory provisions of sections 287, 288 and 352 of the Criminal Procedure Law or Rule 5 of the Arms Robbery Tribunal (Procedure) Rules that rendered the trials in those cases unfair and for that reason unconstitutional by virtue of Section 33(1) of the Constitution.
In conclusion, I would dismiss the appeals and they are hereby dismissed. The convictions are affirmed.