HARUNA v. STATE (2022)

HARUNA v. STATE

(2022)LCN/16786(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, June 08, 2022

CA/ABJ/CR/947/2020

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

BASHIRU HARUNA APPELANT(S)

And

THE STATE RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment/decision of the High Court of Justice No. 2 Suleja, Niger State holden at Suleja, Niger State delivered in Charge No. NSHC/SD/CR/IC/2017 by HONOURABLE JUSTICE ISHAKU USMAN on the 30th day of June, 2020.

The Appellant and another were arraigned by an Amended Charge on 20th September, 2017 on a three (3) Count Charge as follows:-
“(1) That you Bashiru Haruna ‘M’ and Lubabatu Haruna ‘F’ both of Gajiri Area Sabon Wuse on the 3rd day of June, 2015 at about 0100 hrs in your house at Gajiri Area Sabon Wuse within Suleja Judicial Division did stab one Inspector Saidu Baban Ahmed ‘M’ and one Babban Yaya with a knife to death and you thereby committed an offence of Culpable Homicide Contrary to Section 221 of the Penal Code Law.
(2) That You Bashiru Haruna ‘M’ and Lubabatu Haruna ‘F’ both of Gajiri Area, Sabon Wuse on the 3rd day of June, 2015 at about 0100 hrs in your house at Gajiri Area, Sabon Wuse within Suleja Judicial Division did conspire to kill one Inspector Saidu Baban Ahmed ‘M’ and Babban Yaya by stabbing them to death with a knife. You thereby committed an offence of conspiracy contrary to Section 97 of the Penal Code Law.
(3) That you Bashiru Haruna of Gajiri Area Sabon Wuse on the 3rd day of June, 2015 at about 01:00 hours in your house at Gajiri Area Sabon Wuse within the Suleja Judicial Division attempted to kill one Ibrahim Gambo of the same address while sleeping in another room on your house by stabbing him with a knife on his left rib and you thereby committed an offence of attempted homicide contrary to Section 248 of the Penal Code Law.”

The plea of the Appellant and another were duly taken and the matter proceeded to trial and at the end of trial an address of learned Counsel to the parties was adopted, the learned trial Judge gave considered judgment wherein he held as follows:-
“It is trite that sentiments have no place in the law Courts. The sentence to be passed on an Accused in a case of murder or culpable homicide punishable with death is fixed by statute and no Court has a discretion to change the sentence”.
On the third count, I hereby sentence the first Accused person to two years imprisonment for the offence of causing hurt to IBRAHIM GAMBO the sentence which will commence from the date of his arrest.
On the second count charge of criminal conspiracy to commit murder contrary to Section 97 of the Penal Code. The section which read thus Section 97(1) “whoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this penal code for the punishment of such conspiracy be punished in the same manner as if he had abetted such offence”.
Section 83(a) (b) PCA person abets the doing of a thing who-
(a) Instigate any person to do that thing.
(b) Engages with one or more other person or persons in any conspiracy, for the doing of that thing”
By Section 85 of the Penal Code – whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this penal code or by any other law for the time being in force for the punishment for such abetment, be punished for the offence”.
The offence which was abetted or conspired to be committed is murder hence Section 221 of the Penal Code provides punishment for murder with death.
Therefore I hold that the 1st Accused person having been convicted of criminal conspiracy to commit murder be punished with death and be hung by the neck till he be dead.
On the second count of the charge wherein the second Accused person Lubabatu Haruna has been convicted and found guilty, I hereby sentence her to be punished with death following the analysis under this second count and she should be hung by the neck till she be dead.
On the first Court of the murder of Inspector Saba Ahmed Saidu, and Saban Yaya which the first Accused person has been convicted. I hereby sentence him to death and Bashir Haruna the first Accused person be hung by the neck till he be dead.
On the first count the second Accused person having not been found guilty, is hereby discharged and acquitted on the first count.”

The Appellant was -dissatisfied with the judgment and has by his Notice and Grounds of Appeal dated 5th day of August, 2020 but filed on 18th September, 2020 appealed to this Court on six (6) grounds which without their particulars are as follows:-
“GROUND ONE
The learned trial Judge erred in law in convicting and sentencing the Appellant for the offence of Conspiracy to culpable homicide punishable with death and conspiracy to commit culpable homicide when there was no credible and reliable evidence before the Court that the alleged victims of the offences were truly dead and no longer alive.
GROUND TWO
The learned trial Judge erred in law when he concluded and held as follows in his judgment:- “The foregoing excerpts from the statement of witness in their (sic) suit has proved that there was death or evidence of death which is one of the ingredients in establishing guilt of an accused person charged with murder … Finally under this ingredient i.e. evidence of death. It is the grouse of the Defence counsel that the fact of the deaths remained uncertain and doubtful, that in a peculiar circumstances of this matter, it was incumbent on the prosecution to have produced medical evidence to established (sic) the death of the two deceased persons, that failure to do so is fatal to the prosecution’s case. I hold that this position does not hold water and cannot stand”.
GROUND THREE
The learned trial Judge erred in law in convicting and sentencing the Appellant for the offences charged without adverting his mind to or considering the defence or defences available to the Appellant from the evidence before the Court.
GROUND FOUR
The learned trial Judge erred in law and thereby occasioned a substantial miscarriage of justice when he failed to consider and uphold the defence of insanity available to the appellant from his evidence on record before the Court which was wholly unchallenged.
GROUND FIVE
The decision of the learned trial Judge is a nullity as it was delivered after over five months of conclusion and adoption of final addresses and thereby occasioned the appellant a substantial miscarriage of justice.
GROUND SIX
The decision is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence before the Court.”
“RELIEFS SOUGHT ROM THE COURT OF APPEAL
To allow the appeal and set aside the conviction and sentence of the Appellant and in their stead, to discharge and acquit the Appellant of all the offences charged, or in the alternative, to order his remand to asylum or a medical facility for appropriate medical care.”

The Appellant’s brief of Argument was dated 8th day of December, 2020 and filed on 16th December, 2020. The Respondent’s Brief of Argument dated 7th January, 2022 was filed on the 18th January, 2022.

The appeal was heard on 16th March, 2022 when judgment was reserved and the learned Counsel to the parties adopted their respective Briefs of Argument.

The learned Counsel to the Appellant, AGENT BENJAMIN IHUA-MADUENYI, ESQ formulated three (3) issues for the determination of the appeal viz:-
“(1) Whether from the totality of legal evidence available before the lower Court, the learned trial Judge was right that the Appellant was guilty of the offences of Culpable Homicide to commit same contrary to Sections 221 and 97 of the Penal Code.
(2) Whether the learned trial Judge was not in error when he failed to consider and uphold the Appellant’s defence of insanity before him.
(3) Whether the over five months delay by the learned trial Judge in delivering his judgment which occasioned the Appellant a substantial miscarriage of justice did not render the said judgment a nullity.”

The learned Counsel to the Respondent UMAR HALILU, ESQ – Asst. Chief State Counsel, Attorney-General Chambers, Niger State Ministry of Justice also distilled three (3) issues for determination viz:-
“(1) Whether from the totality of legal evidence available before the lower Court, the learned trial Judge was right, that the Appellant was guilty of the offence of Culpable Homicide punishable with death and conspiracy to commit Culpable Homicide punishable with death contrary to Sections 221 and 97 of the Penal Code.
(2) Whether the learned trial Judge was not in error when he failed to consider and uphold the Appellants Defence of Insanity before him.
(3) Whether the over five months delay by the learned trial Judge in delivering his judgment which occasioned the Appellant a substantial miscarriage of justice did not render the said judgment a nullity.”

The issues formulated by the learned Counsel to both parties are the same. Nevertheless, the issues formulated by the Appellant will be utilized in the consideration of this appeal and they shall be taken together.

ARGUMENT ON ISSUE 1
Learned Counsel to the Appellant under issue 1 as to whether from the totality of legal evidence available before the lower Court, the learned trial Judge was right that the Appellant was guilty of the offences of Culpable Homicide to commit same contrary to Sections 221 and 97 of the Penal Code.

ON ISSUE 1, learned Counsel stated that the Appellant was charged together with his sister, one Lubabatu Haruna, on a three count charge of Culpable Homicide punishable with death, conspiracy to commit Culpable Homicide and attempted Culpable Homicide punishable with death contrary to Sections 221, 97 and 248 of the Penal Code.

That the Appellant was found guilty and convicted on all the three counts, although the third count was reduced to voluntarily causing grievous hurt by dangerous means contrary to Section 248 of the Penal Code, and was sentenced to death by hanging on the offences of culpable homicide punishable with death and conspiracy to commit culpable homicide punishable with death, and to a two year imprisonment for the offence of causing grievous hurt.

That three witnesses were called and 10 exhibits tendered and later 5 more exhibits through Lubabatu Haruna were also tendered and that on conclusion of evidence both parties adopted their final written addresses at the lower Court on 23rd day of January, 2020.

That, in every criminal case, it is the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt. He cited and relied on ADEKOYA V. STATE (2012) 9 NWLR (PT. 1306) 539 AT 565-566 PARAS G-B per ADEKEYE, JSC.

Learned Counsel also reiterated that even in cases where the accused had admitted to the commission of the offence at the Police Station, the prosecution is still not relieved of the duty to establish the guilt of the accused person beyond reasonable doubt and again cited and relied on the following authorities:
1. ADEKOYA V. STATE (SUPRA) AT 505 PARAS C-D;
2. IGABELE V. STATE (2000) 6 NWLR (PT. 975) 100.

Learned Counsel submitted that to secure a conviction, three material ingredients stated below must be proved otherwise failure to prove any amounts to failure to prove the entire charge and they are:-
(a) That the death of a human being had actually taken place.
(b) That such death has been caused by the accused; and
(c) That the act was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act.

That the Prosecution failed abysmally to establish the first ingredient of the elements for the offence of culpable homicide set out above, and that the prosecution did not establish that Inspector Saidu Baba Ahmed (M) and Baba Yaya (M) had died neither was there any evidence to cause of death and pathologist report nor any personnel saw the remains of the deceased persons to certify them dead. He also cited:
1. ADAVA V. STATE (2006) 9 NWLR (PT. 984) 152 AT 167 PARAS G-H;
2. ADAVA V STATE (SUPRA) to prop his submission.

Again, learned Counsel to the Appellant contended that aside from the testimonies of PWs 1, 2 and 3, the learned trial Judge in error accepted to be true and used it in convicting the Appellant, that Exhibit “A2”, has no indication that the deceased persons died that fateful night or subsequently afterwards as a result of the Appellant’s act to be the cause of death of the deceased persons.

That the testimony given by PW3 in his evidence-in-chief clearly shows that the subsequent summersault of that witness that he saw the dead body of his uncle beside the well was utterly concocted, misleading and unreliable. That even PW1 revealed the falsity of PW’s 2 cross-examination accounts when he stated in his evidence-in-chief:- “My father was shouting Lubabatu leave me. They went outside and still stabbed my father with knife again. Lubabatu then collected the knife from Bashir’s hand and in that processes she said the two people had not died and they still came back again and cut his father’s neck and mouth”.

Learned Counsel to the Appellant cited the following cases to the effect that in the absence of proof of cause of death as required by law as stated in the above argument of the Appellant the accused shall be discharged.
1. ADEKUNLE V. STATE (1989) 5 NWLR (PT. 123) 505 AT 515 PARA D.
2. AFOLAHAN V. STATE (2018) 8 NWLR (PT. 1621) 223.
He urged that issue 1 be resolved in favour of the Appellant against the Respondent.

ON ISSUE 2 as to whether the learned trial Judge was not in error when he failed to consider and uphold the Appellant’s defence of insanity before him. That an abiding but compulsory duty of a Judge in every criminal proceeding is to consider the defence or defences available to the defendant from the evidence on record before the Court, even if such a defence appears to be weak, unreasonable, irrational or even stupid, citing GABRIEL V. THE STATE (1989) 5 NWLR (Pt. 122) 457 at 464 and Section 35(6) of CFRN 1999 (as amended), among others.

That it is instructive that in the proceedings before the lower Court, the Prosecution presented the confessional evidence of the Appellant which was admitted as Exhibit “A2″ wherein the Appellant admitted stabbing the two deceased persons and PW2 that fateful night, at page 145 of the record of proceedings.

That while the Appellant testified before the lower Court he provided the background to his actions that night in Exhibit A2. Learned Counsel here contended that the above evidence of the Appellant when silhouetted with his confessional statement Exhibit “A2”, shows that the Appellant on that fateful day was suffering from mental disease or natural mental infirmity which deprived him of the capacity to (a) understand what he was doing; (b) control his actions, or (c) know that he ought not to do the act or make the omission, citing:
1. EDOHO V. STATE (SUPRA) AT 684 PARAS B-E;
2. ANI V. STATE (2002) 10 NWLR (PT. 776) 644 AT 655 PARAS F- H, KATSINA-ALU, JSC

That even though the Appellant did not specifically attach the word ‘mental’ to the sickness he talked out, a proper and painstaking examination of his testimony before the lower Court clearly reveals that the sickness the Appellant complained about is mental disease or natural mental infirmity, thus his confessional statement (Exhibit “A2”) are manifestly suggestive of and consistent with a person who was acting in a state on non-compos mentis. Again, that in cross-examining the Appellant, no single question was posed to him on his obvious mental ailment which even deprived him of the capacity to know that he was coming to Court from prison. He cited and relied on the case of OFORLETE V. STATE (2000) 12 NWLR (PART 681) 415 AT 436 per ACHIKE, JSC.

That the failure of a trial Court to consider and determine a clear defence available to an accused person on the evidence before the Court is fatal to the judgment of the Court and renders such judgment erroneous and perverse being that in any case, the Appellant acted under an undeniable state of insanity. He also cited ANNABI V. STATE (2008) 13 NWLR (PT. 1103) 179 AT 201 PARAS C-D: EDOHO V. STATE 651 AT 681-682 PARAS F-B. (2010) 14 NWLR (PT. 1214).
He urged that issue 2 be resolved in favour of the Appellant against the Respondent and the appeal be allowed on this score.

ON ISSUE 3 as to whether the over five months delay by the learned trial Judge in delivering his judgment which occasioned the Appellant a substantial miscarriage of justice did not render the said judgment a nullity. Learned Counsel to the Appellant relied on Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) mandating Courts to deliver judgments/decisions not later than ninety days (that is three months) after the conclusion of evidence and final addresses. That Subsection (5) thereof provides that a decision given after the stipulated period should not be declared a nullity unless it is shown to have occasioned a substantial miscarriage of justice.

That the above provision of the Constitution is to keep abreast the speedy dispensation of justice and to ensure that decisions are based on proper understanding and evaluation of the facts as they are fresh in the mind of the Court citing OLUSANYA V UBA (2017) LPELR (42348) 1 AT 10 – 12 (CA).

That for the above reason there was a substantial miscarriage of justice and that the judgment is a nullity and ought to be set aside by this Honourable Court.
Learned Counsel urged the Court to resolve issue 3 in favour of the Appellant and allow the appeal.

RESPONDENTS ARGUMENT
Respondent’s learned Counsel submitted that the essential ingredients to be proved by the prosecution to secure a conviction for the offence of Culpable Homicide Punishable with death are (a) That the death of a human being had taken place (b) That such death was caused by the Accused person (c) That the act was done by the accused person with the intention of causing death or that the accused knew that death would be the probable consequence of his Act, while offence of conspiracy is provable by the prosecution showing that the accused persons agreed to do an illegal act or an act which is legal but by illegal means, citing NWANKWO & ANOR V. FRN (2002) LPELR-7089 PP32-35.

That the prosecution can prove these elements by any of the following means (1) Direct evidence eye witness Account (2) Confessional Statement of the Accused person and (3) Circumstantial evidence. See OGIDI VS STATE (2005) 5 NWLR PT. 918 P. 286. That the prosecution through the evidence of PW1, PW2 and PW3 was able to establish the essential ingredients of the charges by all the foregoing means of proof.

That Ahmed Saidu who testified as PW1 at trial is the 14 year old son of the deceased and an eye witness of the incidence. His testimony is at page 69 of the Records in the introductory part of which he said: “and I know why I’m in Court is because of my late father that they killed. I remember the events of what happened the nights his (sic) father died. As at the time of the death of my father was in the night.”

That Ibrahim Gambo who testified as PW2 at trial is also an eye witness, victim and survivor of the attack in which 2 other persons died. That with the above the prosecution proved by the testimony of PW1 and PW2 that the death of a person took place.

That where a man is attacked with a lethal weapon and died on the spot, it is hardly necessary to prove the cause of death it can be properly inferred that the wound inflicted on the deceased caused the death. JEREMIAH VS STATE (2012) LPELR-7950 (CA) p. 17 paras D, page 32-35 p. F-E.

That the trial Court went further in that Medical report is not a sine qua non in Murder Charge once the Prosecution is able to establish the death of the deceased and provide proof that the death is as a result of the unlawful and intentional act of the accused.

That PW1 and PW2 at pages 68-73 of the Records testified to how Appellant stabbed on a spree to dead the deceased persons and Gambo Ibrahim who luckily survived the incident sustained serious bodily injury as a result of stabbing Insp. Ahmed Baba and others with the knife by Appellant and the knife was tendered in evidence.

That the Appellant himself confessed to the commission of the offence in his statement to the Police during investigation which was tendered at trial as Exhibit A1 and A2. And that the confessional statement is very much consistent with other evidences at trial, including the testimonies of witnesses and Exhibit E, weapon used by the Appellant. That Appellant is aware of the deceased dead body being the agent of the cause of death. He cited:
1. OLADIPUPO V. FRN (2014) LPELR-23508 (CA) PP41-44.
2. GABRIEL VS STATE (1989) 5 NWLR (Pt.112) 457;
3. AKPA VS STATE (2007) 2 NWLR (Pt.1019) 500.
He urged the Court to resolve issue 1 in favour of the Respondent.

ON ISSUE TWO as to whether the learned trial Judge was not in error when he failed to consider and uphold the Appellant’s defence of insanity before him. Learned Counsel to the Respondent stated that the testimony of the Appellant is at page 80-81 of the Records while his confessional statement admitted as Exhibit A2 is at page 145 of the record and nothing in these pieces of evidence suggest that the Appellant suffered any mental disease or mental infirmity to warrant the trial Judge considering any defence of insanity in his favour. That the Appellant merely stated how he was sick and was bleeding at some point and when the sickness heightens he would tell them.

That the Appellant did not call in his defence at trial any of the aforementioned types of evidence in proof of his insanity. He conducted a Joint defence with the 2nd accused who is his biological sister. They could have and failed to call the prison officials who had his care for the 3 years he was in custody, or of a Medical Officers or Psychiatrist and that his biological sister charged together with him, with whom they conducted a joint defence and who testified as DW2 failed to mention a word about his insanity. He relied on the cases of:
1. EJINIMA V. THE STATE (1991) LPELR 1067 (SC) P. 23 Paras C- F;
2. ONYEKWE V. STATE (1988) LPELR-2732 (SC) PP. 29-30, PARAS. C- A per OPUTA, JSC.

He stated that there is nothing on record to prove Appellant’s insanity and he failed on that duty where the onus is shifted to the Appellant who alleged insanity. He urged this Court to resolve issue 2 in favour of the Respondent.

ON APPELLANTS ISSUE 3 as to whether the over five months delay by the learned trial Judge in delivering his judgment which occasioned the Appellant a substantial miscarriage of justice did not render the said judgment a nullity, relying on Section 294(1) of the Respondent’s learned Counsel submitted that this Court already sets out some guiding principles for an Appellate Court in determining whether violation of the constitution’s 90 days rule have occasioned a miscarriage of Justice in EZE VS STATE (2018) LPELR-44887.

That the Appellant has not discharged that burden that the delay has occasioned any miscarriage of justice. That the delay did not in any way affect the memory of the trial Judge. That Appellant failed to point out the specific finding of fact or evaluation which is faulty or affected.

That the 2 months delay couldn’t have been averted by the learned trial Judge because of a force majeure i.e. the nationwide lock down by the Covid-19 Pandemic, and that Appellant has not shown how it occasioned a miscarriage of justice against him. Learned Counsel to the Respondent urge the Court to so hold and resolve issue 3 in favour of the Respondent and also dismiss the Appellant’s appeal.

RESOLUTION OF ISSUES ON APPEAL
The Appellant has contended under issues 1 that the lower Court was wrong when he convicted the Appellant for Offences of Culpable Homicide punishable with death vide Sections 221 and 97 of the Penal Code.

His argument is anchored on failure of the Prosecution according to him to prove that Inspector Saidu Baba Ahmed and Babab Yaya died because no doctor testified as to different medical Reports to confirm the death.
According to him the PW1 and PW2 were not categorical on this.

The learned Counsel to the Respondent argued contrary. Respondent’s learned Counsel stated there was evidence of one of the victims of knife attack by the Appellant given by PW2 who was also stabbed but survived the knife attack by the Appellant. That in such a situation medical evidence or autopsy report is not necessary.

Now on the question of conspiracy, the law is settled that the Prosecution must prove an agreement between two or more persons to achieve unlawful purpose. It must however be stated that more often circumstantial evidence is resorted to in order to find out or discern if truly the Defendants arraigned on charge of conspiracy were or are actually involved in criminal conspiratorial venture alleged against them. See DAVID OMOLOLA VS THE STATE (2009) 7 NWLR (PART 1139) 148 AT 191 A-H TO 192 A-G. At page 192H to 193A of the report OGUNTADE, JSC had this to say:-
“In order to get conviction on a count of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something lawful by unlawful means. Conspiracy is an offence which is difficult to prove because it is often hatched in secrecy. Circumstantial evidence is often used to point to the fact the confederates had agreed on the plan to commit a crime. There must be an overt act from which to infer the conspiracy.”

I have scrutinized the evidence on record and I am of the solemn view that the Prosecution failed to establish ingredients of conspiracy charge against the Appellant and the Co-defendant. As a matter of fact, the confessional statement of the Appellant relied upon by the Prosecution exonerated the Co-Defendant of any conspiracy. The evidence of the Prosecution’s Witnesses did not also establish the alleged conspiracy between the Appellant and Co-Defendant to stab the victims which act of stabbing was carried out by the Appellant. The evidence of the Investigating Officer and the confessional statements of the Appellant glaringly showed that it was only the Appellant who carried out the dastardly act. Appellant is hereby discharged of the act of conspiracy contained in Count 2 of the Charge.

On whether the Charge of Culpable Homicide punishable with death was committed by the Appellant the Prosecution relied on the evidence of PW1, PW2 and PW3.

The Appellant was charged with Culpable Homicide punishable with death. What are the constituent elements or ingredients of culpable homicide punishable under Section 221(a) of the Penal Code?
By the said Penal Code Law, an offence of Culpable Homicide punishable with death is committed when a person does an act with the intention of causing death or bodily injury which is likely to cause the death of another human being which to his knowledge may result in grievous bodily harm or death and yet embark on the dastardly act. I can do no better than to draw strength from decisions of the apex Court in the land. Suffice to refer to the cases of:-
1. IREGU EJIMA HASSAN VS THE STATE (2017) 5 NWLR (PART 1557) 1 AT 33 G- H TO 34 A-D per RHODES-VIVOUR, JSC who said:-
“Culpable homicide is defined in Section 220 of the Penal Code. It reads:
“220. Whoever causes death-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing such a rash or negligent act, commits the offence of culpable homicide.
In Smart v. State (2016) 1-2 SC (Pt. II) p. 41, (2016) 9 NWLR (Pt. 1518) 447 at page 479-480, paras. H-A, I explained proof beyond reasonable doubt thus:
“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”
To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt.
(a) that the person the accused person is charged of killing actually died;
(b) that the deceased died as a result of the act of the accused person;
(c) that the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence.
See State v. John (2013) 1 NWLR (Pt.1368) p. 337.”
2. SHUAIBU ABDU VS THE STATE (2017) 7 NWLR (PART 1564) 171 AT 186 D – E per SANUSI, JSC who said:-
“The charge the accused/appellant stood trial on is culpable homicide punishable with death, contrary to Section 221 (b) of the Penal Code. The ingredients of the offence that of necessity, must be proved by the prosecution in order to obtain conviction are:-
(a) That death of a human being was caused;
(b) That such death was caused by the accused person.
(c) That the act that led to the death of the victim was intended to cause death or grievous hurt or that the accused knew and had reason to believe that by his action, death will be the probable and not only likely consequence of his act.”
The settled position of the law is that the ingredients of offence of culpable homicide must be proved to the hilt and cumulatively. The Court must ensure and ascertain that the Accused actually committed the offence for which he is arraigned.

The onus is always on the prosecution throughout to show that the presumption of innocence accorded to Defendant in a criminal trial or proceedings under Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria 1999, as amended has been displaced. In other words, the offence must be proved against the Accused beyond reasonable doubt. See:-
1. M.O. AMADI & ORS VS THE STATE (1993) 8 NWLR (PART 314) 644 AT 663H-66A per OLAAWURA, JSC.
2. S. S. YONGO & ANOR VS COP (1992) 8 NWLR (PART 257) 36 AT 50 per KUTIGI, JSC later CJN RTD.

All the elements of an offence including that of Culpable Homicide punishable with death can be proved or established by direct or circumstantial evidence. It can also be proved by the confessional statement of the Accused or the Defendant. See:-
1. OKON ETIM AKPAN V THE STATE (2016) 8 SCM 1 AT 7 F-G per PETER-ODILI, JSC who said:-
“In reiteration of what is now trite to establish the culpability of an accused in proof of a crime, any one of the following means is acceptable, that is:
Direct evidence also known as evidence of eye-witness or witnesses;
Confessional statement of the accused person;
Circumstantial evidence. See Emeka v State (2002) 32 WRN 37 or (2006) 6 SCNJ 259.”
2. SHUAIBU ABDU VS THE STATE (2017) 7 NWLR (PART 1564) 171 AT 186 F – H per SANUSI, JSC who said:-
“In all criminal cases, the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See Famakinwa v. The State (2013) 7 NWLR (Pt. 1354) 597; Kala v. Potiskum (1998) 3 NWLR (Pt.540) 1; David Abaje v. The State (1976) All NLR 139.
It is apposite to say that in order to prove an offence, the prosecution can use any of the following modes of proof namely:
(1) Evidence of eye witness or witnesses; or
(2) Confessional statement of the accused; or
(3) Through circumstantial evidence.”

I have carefully read the pieces of evidence given by the prosecution and the cross-examination thereon. I have also read the evidence proffered by the Appellant in his defence. I am of the firm view that the learned trial Judge diligently considered and assessed the oral and documentary evidence before the trial Court given by both sides. The findings of the learned trial Judge convicting the Appellant on the charge of culpable homicide punishable with death is impeccable.

The learned trial Judge was right in placing reliance on the pieces of evidence led by PW1, PW2 and PW3 to convict the Appellant of the offence of Culpable Homicide punishable with death.

More importantly, the Appellant confessed in Exhibits A1 and A2 which are his confessional statements that he fatally stabbed Inspector Siadu Baban Ahmed and one Baban Yaya with knife Exhibit “C” to death. It is worthy of note that when the said Exhibits were tendered at the lower Court the Appellant’s learned Counsel did not object to them and they were accordingly admitted and marked as Exhibits. The Appellant is deemed to have voluntarily admitted that he made the confessional statements.

The settled position of the law is that the appropriate time to challenge the admissibility of a statement projected as confessional statement of an Accused on ground of involuntariness, inadmissibility or any other vices or inadequacy that may be afflicting such statement is at the time and point when the prosecutor seeks to tender the statement or document in evidence and not at Appellate Court. See:-
1. JOSEPH UBI V. THE STATE (2012) 16 NWLR (PART 1327) 522 at 545 E per CHUKWUMA ENEH, JSC who said:-
“The objection to a confession is required to be raised at the tendering of the confessional statement. This is ordinarily so during presenting of the prosecution’s case at the main trial.” (sic).
2. F.R.N. VS. FAITH IWEKA (2011) 12 (Pt. 2) SCM 213 at 220 G–I where MUKHTAR, JSC (later C.J.N Rtd) held:
“It is on record that the learned respondent’s counsel did not raise any objection at the point of tendering the statement. It was after the confessional statement had been admitted that the respondent retracted the statement in the course of giving evidence in his defence. This I think was an afterthought, for if she was uncomfortable with the statement, the point of tendering and admissibility should have been when to object. It was late in time to have retracted at the stage she did. The confessional statement not having been objected to was admissible as evidence, and the learned trial Court was not in error in ascribing probative value to it. Authorities abound on this principle. Once there is evidence of the administration of words of caution on a suspect in the language he understands, and he voluntarily makes his statement which is so recorded, and he signed the statement, a Judge is at liberty to act on it and predicate a conviction thereon. See Ikemson v. State 1989 3 NWLR part 110 page 530, Salami v. State 1971 1 NMLR 249, Edamine v. State 1996 3 NWLR part 438 page 53 and Ubierho v. State 2005 5 NWLR part 919 page 644: (2005) 2 SCM, 193.”

The confessional statements of the Appellant admitted the ingredients of Culpable Homicide punishable under Section 221 of the Penal Code. No Independent or corroborated evidence is required to support the confessional statement. See;
1. MUSA NATSAHA VS THE STATE (2017) 18 NWLR (PART 1596) 38 AT 67 F-68A-B per M. D. MUHAMMAD, JSC who said:-
“Practitioners must be reminded of this Court’s stand on instances such as in the instant case when in Shurumo v. The State (2001) 196 LRCN 199; (2010) 19 NWLR (Pt.1226) 73 at P. 90 paras. F-G it opined thus:-
“When a counsel stands by and allows exhibits to sail smoothly through to become evidence without an eyelid, then it becomes obvious that the counsel is comfortable with the evidence and see no reason why he should challenge its admission.”
And that in Emoga v. The State (1997) 7 SCNJ 518, (1997) 9 NWLR (Pt. 519) 25 at pp. 37-38, paras. H-A the Court per Onu had also said:-
“It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a freeman simply because he has a change of mind. The whole trial will be a mockery it would be dangerous to apply the principle of extra judicial confession of the accused person as it would open a flood gate of retracing of all statements made -by accused persons before the police officer.” (Italics supplied for emphasis).
In the instant case, therefore, it does not lie in the mouth of learned appellant’s counsel who has represented the appellant all through his sojourn, and allowed exhibit A to be admitted in evidence without objection, to now say that the statement be discarded as same is devoid of any probative value.”
2. JAMES OBI ACHABUA VS THE STATE (1976) LPELR-63 (SC) per OBASEKI, JSC who said: “Only in few cases do criminals perpetrate their crimes in the open and the secrecy with which they execute their plans has tended to deprive the prosecution in some cases of eye witnesses. Happily, in this case, we have the extra judicial confessional statements in evidence and the recovery of the several head of deceased from the grave identified by the Appellant, as the place he burned it established the truth of the confession. It is settled law that confession alone is sufficient to support conviction without corroboration so long as the Court is satisfied of the truth of the confession. (R v Sykes 8 Cr. App. R. 223, R v. Kanu 14 WACA 30, EDET OBOSI v THE STATE (1965) NWLR 119, Paul Onochie & 7 Ors v. The Republic (1966) NNR 307 and Jimoh Yusufu v The State (1975) 6 S.C. 167”

The Appellant did not appeal against the admission of Exhibits A1 and A2 and he did not appeal against the findings of the lower Court on the said Exhibits.
Appellant is deemed to be satisfied by the decision.

Issue 1 is resolved against the Appellant in respect of conviction for Culpable Homicide contained in Count 1.

On issue 2 as to whether the learned trial Judge was right in failing to consider or uphold the Appellant’s plea and defence of insanity learned Counsel submitted that the lower Court has a compulsory duty to consider same.

It is true that a Court must consider plausible defences open to a Defendant in criminal trial but where a fact is peculiarly within the knowledge of the Defendant as in this case raising of defence of insanity the onus is on the Defendant to establish it on balance of probability.

Pursuant to Section 51 of the Penal Code, a person is not criminally responsible for an act or commission if at the time of doing the act or making the omission, he is in such a state of mental disease or situation as to deprive him of capacity to understand what he is doing or lacks the mental capacity to control his action or did not know that he ought not to do the act or omission.
The onus is on the Appellant to prove or show by credible evidence through witnesses that at the time of the commission of the offence for which he was charged he was mentally deranged or unstable or that he was not in control of himself. He must be proved to be mentally imbalanced. See 1. Section 139 of the Evidence Act, 2011 which provides:-
“139.(1) Where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged is upon such person.
(2) The burden of proof placed by this Part upon a defendant charged with a criminal offence shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution whether on cross-examination or otherwise, that such circumstances in fact exist.
(3) Nothing in Sections 135 and 140 or in Subsection (1) or (2) of this Section shall:
(a) prejudice or diminish in any-respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged.
(b) impose on the prosecution the burden of proving that the circumstances or facts described in Subsection (2) of this Section do not exist; or
(c) affect the burden placed on a defendant to prove a defence of intoxication or insanity.” (Underlined mine)
2. UMARU ADAMU VS THE STATE (2014) 10 NWLR (PART 1416) 441 AT 463 A per ARIWOOLA, JSC who said:-
“However, where the defence of an accused person is unsoundness of mind or insanity, the onus is on him to plead same and produce credible evidence of insanity or unsoundness of mind, at the time the alleged offence was committed.”
At page 468A-H in the said report My Lord ARIWOOLA, JSC continues as follows:-
“Ordinarily, it has been held that evidence to establish insanity as a defence should adduce past history of the accused; conduct immediately before killing of the deceased; observation of prison warders who had custody of the accused during trial; medical evidence, reputation and general behaviour on sanity or insanity with relatives in accused’s neighbourhood, and mental health of the accused family. See; Udo Akpan Udofia v. The State (1988) 7 SC (Pt. 111) 59 at 62, (1988) 3 NWLR (Pt. 84) 533.
When considering the evidence available to or adduced by an accused person in his defence of insanity, the Court has held the following radical and fundamental points to be important to be borne in mind and kept in view.
(a) The law presumes every person, including any person accused of crime, sane until the contrary is proved (See Section 27 of the Criminal Code).
The prosecution does not set out to prove what the law presumes in its favour.
An accused person who raises insanity as his defence has the onus of proving such insanity cast on him. The standard of such proof is not as high as that cast on the prosecution. It is not proof beyond reasonable doubt but it is proof of reasonable probability, proof sufficient to create a reasonable doubt in the mind of a fair minded jury as to the sanity of the accused.
Insanity is a blanket term embracing a considerable variety of mental abnormalities, mental infirmities, neurosis and psychosis.
To constitute a defence, the mental condition relied on should be such that could and did deprive the accused of capacity:
(i) To understand what he was doing; or
(ii) To control his action; or
(iii) To know that he ought not to do the act or make the omission complained of as constituting the actus reus of the offence charged.
See: M. A. Sanusi v. The State (1984) 10 SC 166, (1984) LPELR-SC 4911983; per Oputa, JSC; Ogbu v. The State (1992) 10 SCNJ 88, (1992) (Pt. 259) 255; Ngene Arum v. The State (1979) 11 5491 at 119, Popoola v. The State (2013) 17 NWLR (Pt. 1382) 96 at 122.” (Underlining mine)
There is no credible evidence from the Appellant to establish that he has history of insanity or that he was actually insane at the time of the commission of offences for which he was charged.
He volunteered Exhibits A1 and A2 to the Police Investigating Officer under caution and he explained how he committed the dastardly act. His defence of insanity is to my mind an afterthought. See;
1. UMAR MUSTAPHA USMAN V THE STATE (2018) 15 NWLR (PART 1642) 320 AT 338A TO 339 A – C per GALINJE, JSC who said:-
“The Appellant volunteered a statement to the police after he endorsed the cautionary words that were administered to him. The body of his statement clearly shows that the offence for which he volunteered a statement had been duly explained to him. This being so, the issue of a breach of Section 36 (6)(a) does not arise.
For the reasons I have set out hereinabove, the first issue for determination of this appeal is resolved against the appellant.
On the second issue for determination of this appeal, learned counsel for the appellant submitted that there was sufficient evidence before the trial Court that the appellant at the time of the commission of the crime for which he was charged, was in a state of mental disease and was therefore deprived of the capacity to know what he was doing. In other words, the appellant was insane at the time he killed his father. In a further argument, learned counsel made reference to the testimony of the appellant before the Court and the testimonies of the two witnesses he called and submitted that the appellant had successfully raised the defence of insanity as to relieve him of criminal liability.
In aid, learned counsel cited several authorities which include:- Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561; Opayemi v. State (1985) 2 NWLR (Pt. 5) 101.
Insanity is defined by the Black’s Law Dictionary, 6th Edition as a condition which renders the affected person unfit to enjoy liberty of action because of the unreliability of his behavior with concomitant danger to himself and others.
In law, the word insanity is used to denote that degree of mental illness which negates the individual’s legal responsibility or capacity. Section 51 of the Penal Code provides as follows:-
“Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”
To establish the offence of insanity, it must be clearly proved that at the time of committing the act, the accused was suffering from a defect of reason from disease of the mind so as not to know the nature and quality of his act or that what he was doing was wrong. The Court is concerned only with the state of mind of the accused at the tune of the act. There must be sufficient causal link between the accused’s mental disease or defect and his inability to control his behavior.
In Nigeria, the burden of proving insanity in defence to a criminal Charge lies on the accused and can be discharged by tendering evidence suggesting that it was most probable that he was incapable of knowing the nature of his act, or that he was doing what was either wrong or contrary to law. See R. v. Yayiye of Kadi Kadi (1957) NNLR 207; Echem v. R. (1952) 14 WACA 158. In all criminal cases, every accused person is presumed to be of sound mind at all times until the contrary is established. It is settled law that the question whether an accused person who sets up a defence of insanity is infact insane, is a question of fact to be determined by the trial Judge.
In determining the defence, the trial Judge is enjoined to take into consideration any admissible medical evidence and the whole of the facts and the surrounding circumstances of the case, which will include the nature of the offence, the conduct of the accused before, at the time of the commission of the offence, as well as after the offence and any history of mental abnormality. See Walton v. Queen (1978) AC 788 at 793; Karimu v. The State (1989) LPELR 1669 at page 22-23, paragraphs C-B, (1989) 1 NWLR (Pt. 96) 124.
In the instant case, the learned trial Judge considered the conduct of the appellant at pages 88-90 of the printed record of this appeal and came to conclusion that none of the conduct of the accused person as narrated by him showed him to be of violent conduct or of having any delusion of facing any imminent danger that would warrant him to react the way he did. The Court of Appeal agreed with the learned trial Judge when it held that it is not in a position to depart from the evaluation of the evidence by the trial Court, since it was on credibility of the witnesses.”
2. KAMARU YUSUF V THE STATE (2019) 10 NWLR (PART 1680) 269 AT 286 E – H per ONNOGHEN, CJN (RTD).
There is no miscarriage of justice against the Appellant.
Issue 2 is resolved against the Appellant.

On issue 3, which has to do with failure of the lower Court to comply with Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and whether there was miscarriage of justice, I have read the provisions of the said section of the Constitution and I am of the solemn view that there is no miscarriage of justice suffered by the Appellant.

This is because the evidence of the Prosecution Witnesses have not been shown to be misapprehended by the learned trial Judge. It is also on record that Exhibits A1 and A2 being confessional statements are sufficient to ground conviction of the Appellant as they are documentary evidence that have nothing to do with assessment of demeanour of witnesses.

That is not to say that a Judge should take unwarranted liberty in failing to deliver judgments within time. There is no miscarriage of justice proved to enable this Court to exercise discretion to set aside the lower Court’s judgment.

The findings of the learned trial Judge are fully supported by oral and documentary evidence in respect of Counts 1 and 3 of the Charge against the Appellant.
Issue 3 is resolved against the Appellant.

The Appellant’s appeal succeeds in part in respect of Count of Conspiracy. The sentence imposed on the Appellant in respect of Count of Conspiracy is hereby set aside.

The Appellant’s appeal in respect of Counts 1 and 3 is hereby dismissed. The conviction and sentences imposed on the Appellant by the lower Court in respect of Counts 1 and 3 are hereby affirmed.

HAMMA AKAWU BARKA, J.C.A.: I was privy to the judgment of my learned brother Peter Olabisi Ige, JCA, just read in draft form.

I agree with the reasoning and the conclusion reached and thereby join my brother in dismissing the appeal with regard to counts 1 and 3, thus affirming the conviction and the sentence imposed.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA.

I equally agree with the reasoning and the conclusion that the Appellants’ appeal succeeds in part in respect of the Count of Conspiracy. I accordingly set aside the sentence imposed in respect of the Count of Conspiracy.

I too affirm the conviction and sentences imposed on the Appellant by the lower Court in respect of Counts 1 and 3.