ANTHONY ITU v. THE STATE
(2013)LCN/6492(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of November, 2013
CA/B/245C/2012
RATIO
ELEMENTS OF THE DEFENCE OF INSANITY
The position of the law on the defence of insanity as distilled from a host of decisions of this court and the apex court are as summarized hereunder:-
1. The key element of the defence of insanity is an admission by the accused person that he committed the offence but that his liability ought to be mitigated by reason of insanity.
2. Under Section 27 there is a presumption of law that everyone is of sound mind. The burden of proof of insanity, therefore, rests on the accused person and the onus is discharged on mere balance of probability as in civil cases.
3. When the question arises as to the insanity or otherwise of a person, such a person is scarcely a competent witness on that point.
4. For the defence of insanity to succeed under section 28, the accused, must establish that he was at the time of commission of the offence, in such a state of ‘mental Disease’ of natural mental infirmity’ as to deprive him of the capacity to:-
i. understand what he is doing
ii. control his actions or
iii. know that what he was doing was wrong.
5. The fact that an accused person had received treatment for mental illness or insanity in the past, may or may not be relevant for the purpose of determining whether the defence of insanity is available to him. It may not be relevant if the treatment was given a long time before the commission of the offence. What the law recognizes is that the insanity must be at the time of doing the act and not before.
6. Mere absence of motive for a crime is not sufficient ground on which to infer insanity. The burden on the accused is not discharged merely by showing that he acted without motive.
Absence of motive may, however he taken together with other circumstances which may tend to strengthen evidence of mental abnormality in order to establish insanity.
7. It is not a defence of insanity that an accused behaved abnormally. Abnormal behavior has so much uncertainty about it as to why and how.
These principles are contained in the following decisions of the Supreme Court:- Chukwu V The State: (1994) 16 LRCN 1; Peter V. The State (1997) 54 LRCN 2781; Aiworo V. The State; (1987) NWLR (Pt. 58) 526; Onyekwe V The State: (1988) 1 NWLR (Pt. 72) 505; Sule Makosa V. The State: (1969) 1 All NLR 363 At 366; Josephine Ani V The State: (2002) 98 LRCN 1212; Madjemu V The State (supra).
And the surest way of establishing insanity is by medical evidence or by compelling evidence of eyewitnesses, particularly of the relatives of the appellant, relating to his general conduct and behavior prior to, during and after the incident of 13th February, 2012. Anthony Ejinma V. The State (1991) 7 SCNJ (pt. 1) 318 at 328. Per TOM SHAIBU YAKUBU, JCA
CRIMINAL LAW: WHETHER AN ACCUSED PERSON MAY CLAIM A DEFENCE OF ACCIDENT IN CASE HE DID NOT INTEND THE CONSEQUENCIAL RESULT
It is settled (principle) that an accused person as in the instant case, cannot take refuge in a defence of an accident for a deliberate act even if he did not intend the eventual result:
Oshor V. State (1990) 3 NWLR (Pt. 139) 484 at 502 CA per Kolawole JCA (of blessed memory) and the English case of R. V. Larkin (1994) 29 CAR 18 at 23 per Humphreys J. The shooting of the deceased by the Appellant, was deliberate and not by accident.
See YAKI VS. STATE (2008) AII FWLR (Pt. 440) 618 @ 648 paragraphs A – E, per Ogbuagu, JSC. Per IBRAHIM MOHAMMED MUSA SAULAWA, JCA
CRIMINAL LAW: INGREDIENTS TO ESTABLISH A DEFENCE OF INSANITY
However, the law is trite, that the burden of proving insanity as a defence to a criminal charge is predicated upon the accused. In the instant case, the Appellant must prove that he was incapable of knowing the nature of his act, or that what he did was wrong. See JOHN VS. STATE (2012) 7 NWLR (Pt. 1299) 336 @ 352 paragraphs D – F, wherein it was held, thus:
In order to establish a defence of insanity, the defence has to prove that at the relevant time of committing the offence, the accused person was suffering either from mental disease or from natural mental infirmity, and that the mental disease, or natural infirmity was such that at the relevant time, the accused was as a result deprived of capacity:
(a) to understand what he was doing; or
(b) to control his actions; or
(c) to know that he ought not to do the act or make the omission.
See also MOHAMMED VS. THE STATE (1997) 9 NWLR (Pt. 520) 169; ONAKPOYA VS. R (1959) 4 FSC 150; (1959) SCNLR 384; R. VS. ECHEM 14 WACA 158; SADEMAN VS. R. (1956) 2 AII ER 1138; OGBU VS. THE STATE (1992) 8 NWLR (Pt. 259) 255 @ 266 paragraphs F – G; R.VS. OMONI 12 WACA 511 @ 512; ARUM VS. THE STATE (1979) 11 SC 9 @ 119. Per IBRAHIM MOHAMMED MUSA SAULAWA, JCA
CONSIDERATIONS TO DETERMINE THE EXTENT OF THE VERACITY OF A CONFESSIONAL STATEMENT
It is trite, that where a trial court adjudges a confession to be voluntary, cogent, direct and positive, it is sufficient to warrant the conviction of an accused person without the need for corroboration. However, the court is required to test the extent of the veracity (truth) of the confessional statement by considering whether –
(a) there is anything extraneous to (outside) the confession to show that its true;
(b) its corroborated;
(c) the accused had the opportunity to commit the offence;
(d) the confession was possible;
(e) the confession is consistent with other facts which have been ascertained and proved.
See AKPAN VS. STATE (2001) FWLR (Pt. 56) 735 @ 755 paragraphs B – G, Per IBRAHIM MOHAMMED MUSA SAULAWA, JCA
WHETHER AN EVIDENCE OF BLOOD RELATIONSHIP IS SUFFICIENT TO PROOF A WITNESS AS TAINTED
Indeed, it’s a well settled principle, that the mere evidence of blood relationship or friendship alone, is not a sufficient indication or proof that a witness is tainted. See AGWULGWUL VS. STATE (2001) FWLR (Pt. 57) 829; cf – ADEKUNLE VS. STATE (1989) 12 – SCNJ 184 & OKAFOR VS. STATE (1990) I NWLR (Pt.128) 614; METAL CONSTRUCTION (W/A) LTD VS. M.T.C. LTD (1990) 5 NWLR (Pt. 149) 144 SC. Per IBRAHIM MOHAMMED MUSA SAULAWA, JCA
WORDS AND PHRASES: DEFINITION OF A TAINTED WITNESS
Invariably, a tainted witness is one who has a purpose or interest to serve in a given case or litigation, or who has an interest to defend same. See MOSES VS. STATE (2003) FWLR (Pt. 141) 1969. Where there were a failed love affair and subsequent persistent quarrels, the evidence of one of ex-lovers was held by the Supreme Court as being tainted. See MBENU VS. THE STATE (1988) 7SC (Pt. 1) 253 @ 271.
Another typical instance of a tainted witness is where the witness turns out to be an accomplice in the commission of the offence. See OLALEKAN VS. STATE (2002) FWLR (Pt. 91) 1605 @ 1628; IFEJIRIKA VS. STATE (1999) 3 NWLR (Pt. 593) 69; OGUNLAWA VS. STATE (1995) 5 NWLR (Pt. 395) 266; R VS. ENAHOLO (1964) NMLR 65; TORTIM VS. STATE (1997) 2 NWLR (Pt. 490) 711. Per IBRAHIM MOHAMMED MUSA SAULAWA, JCA
WHETHER A TRIAL-WITHIN-TRIAL MUST BE CONDUCTED TO DETERMINE THE ADMISSIBILITY OF CONFESSIONAL STATEMENTS
It is trite, that multiplicity of trials-within-trial is not at all novel to the Nigerian adjudicatory system. Indeed, it’s long been settled, that where more than one accused person have made confessional statements, or an accused person has made more than one confessional statement, and an objection is raised against each of them, the trial court must conduct a distinct trial-within-trial to determine the admissibility or otherwise of each confession. See DAWA VS. THE STATE (1980) NSCC 334; DURUGO VS. THE STATE (1992) NWLR (Pt. 255) 525 @ 535. In the case of DAWA VS. STATE (Supra), most particularly, the trial court was recorded to have (rightly) conducted a total of seven distinct mini trials within the main trial, in accordance with the laid down principle.
It needs to be reiterated, that any irregularity in the conduct of the trial-within-trial may affect or vitiate the admissibility of the confessional statement of the accused person. See GBADAMOSI VS. STATE (1992) NWLR (Pt. 266) 465 @ 489; AUTA VS. STATE (1975) ANLR 163 @ 169; THE STATE VS. OLADELE (1969) NMLR 210. Per IBRAHIM MOHAMMED MUSA SAULAWA, JCA
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
ANTHONY ITU Appellant(s)
AND
THE STATE Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, JCA (Delivering the Leading Judgment): The instant appeal is a fall-out of the Judgment of the High Court of Delta State, Ozoro Judicial Division, which was delivered on February 13, 2012. By the Judgment in question, the court below, coram the Hon. Justice E.I. Oritsejafor, convicted the Appellant for murder and accordingly sentenced him to death by hanging. Not unnaturally, being dissatisfied with the said conviction and sentence, the Appellant appealed to this court upon four grounds of appeal.
FACTS AND CIRCUMSTANCES SURROUNDING THE APPEAL
The genesis of the instant appeal is traceable to October 12, 2009. That was the day the Appellant was arraigned before the court below upon a one count information (charge) to the following effect:
STATEMENT OF OFFENCE COUNT 1.
Murder punishable under Section 319(1) of the Criminal Code Cap.48, Vol. II, Laws of the Defunct Bendel State 1976 as applicable to Delta State.
PARTICULARS OF OFFENCE
ANTHONY ITU (M) on or about the 9th day of January, 2008, along Ulli-Iyede Village, Ozoro, within Ozoro Judicial Division, murdered Godswill Itu
Not unexpectedly, the Appellant was recorded to have pleaded not guilty to the one count charge. With a view to proving the guilt of the Appellant beyond reasonable doubt, the prosecution called a total of six witnesses who testified as PW1 – PW6. The prosecution also tendered four exhibits, which were admitted by the lower court as exhibits A, B, C & D, respectively. At the close of the prosecution case, the Appellant gave evidence. His wife, Blessing Itu, equally testified as DW1 in defence thereof.
At the conclusion of the defence, the learned counsel to the respective parties addressed the lower court. Whereupon the court proceeded to deliver the vexed Judgment on the 13/02/12 to the conclusive effect, thus:
From the evidence placed before this court by the prosecution and in particular, the two extra judicial statements of the accused person tendered and admitted as Exhibits A and B and the evidence of the PW1 Faith Itu and PW5 Dr. Emelereta Emmanuel which corroborates and is consistent with the facts contained in the said extra judicial statements Exhibits A and B, I hold that the prosecution proved beyond reasonable doubt that the accused person murdered the deceased Godswill Itu on the 9th of January, 2008 at Ulli-Iyede Village and I find the accused guilty of the offence of murder.
Consequent upon the conviction of the Appellant for murder, the lower court proceeded to sentence him thus:
“The sentence of this court upon you Anthony Itu is death by hanging by the neck till you be dead and may the Lord have mercy on your soul.”
As alluded to above, the instant appeal is against the said conviction and sentence passed upon the Appellant by the court below. Consequent upon the compilation and transmission of the Record of Appeal from the lower court to this court, the learned counsel in compliance with the extant Rules of this court, 2011, filed their respective briefs of argument. Most particularly, the Appellant’s brief was filed on 10/9/12 by Ayo Asala Esq. That of the Respondent was filed on 07/01/13 by O.F. Enenmo Esq. DDPP Delta State Ministry of Justice.
For the purpose of determining the appeal, the Appellant has raised two issues in the brief thereof, to the following effect:
(i) Whether the learned trial Judge properly conducted trials within trials before he admitted and relied upon exhibits ‘A’ and ‘B’ in his Judgment against the Appellant.
(ii) Whether having regard to the totality of the evidence adduced before the lower court, “the lower court was right in holding that the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.
Regarding Issue No. 1, the Appellant’s learned counsel submitted, inter alia, that the lower court was wrong and has occasioned a miscarriage of justice when it failed to deliver a considered ruling admitting the Appellant’s statements during the trial-within-trial proceeding. Allegedly, the trial court neither evaluated the evidence led at the trial-within-trial, nor delivered a ruling immediately at the conclusion thereof. The procedure adopted by the lower court in the instant case is said to be contrary to well laid down principles of law.
See ADEYEMI VS. STATE (2012) ALL FWLR (Pt. 606) 492 @ 504, Paragraphs C – E; OGUDU VS. STATE (2012) ALL FWLR (Pt. 629) 1111 @ 1142 – 1143 Paragraph.
It was contended by the Appellant, that the failure of the lower court to make a positive ruling on the voluntariness of the two statements in question (Exhibits A and B) after the two mini trials, before admitting them as exhibits, has occasioned a miscarriage of justice to the Appellant. The alleged pervasiveness of the trial court’s decision to postpone the full consideration of the voluntariness of Exhibits A and B to the time of Judgment, is further strengthened by the fact that the court heavily relied upon the exhibits in question as confessional statements to convict the Appellant.
The court has been urged upon to resolve Issue No. 1 in favour of the Appellant, and accordingly expunge the said exhibits A & B as inadmissible evidence.
Regarding Issue No. 2, it was submitted, without much ado, that having regard to the totality of the evidence before the lower court, the prosecution had failed to prove the charge of murder against the Appellant beyond reasonable doubt. It was contended, that the three essential ingredients of the offence of murder had not been proved by the prosecution, namely:
(a) That a person is dead;
(b) That the death of the deceased person resulted from the act of the accused and
(c) That the act of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See MBANG VS. THE STATE (2007) ALL FWLR (Pt. 372) 1863; UWAOGBE VS. STATE (2008) ALL FWLR (Pt. 419) 425 SC; YAKI VS. STATE (2008) ALL FWLR (Pt. 440) 618 SC.
With particular regard to the first ingredient of the offence, the Appellant conceded without any much ado, to the fact that:
“5.02: From the evidence on record, the death of the deceased was not in contention.”
However, the second and third ingredients of the offence in question have been disputed by the Appellant. Citing and relying on BELLO VS. STATE (2012) 8 NWLR (Pt. 1302) 207 @ 231, as well as Section 135 of the Evidence Act, 2011, it was contended that the prosecution has a duty to prove all the three ingredients of the offence alluded to above beyond reasonable doubt. And that where there is a doubt regarding any of the said ingredients, it should be resolved in favour of the accused.
According to the learned counsel, the only evidence relating to how exhibits C & D (the gun and empty cartridge) were recovered from the scene of crime, was given by the PW4 at page 35, lines 23 – 25 of the Record, to the effect thus:
“I was shown a long locally made gun at the scene with one empty shell (cartridge) at the mouth of the gun.”
It was contended, that there was nothing from the above piece of evidence of PW4 that links the Appellant with the said exhibits C & D. Allegedly, there’s a serious doubt as to whether exhibits C & D were used by the Appellant. Thus, the doubt must be resolved in favour of the Appellant. See BELLO VS. STATE (Supra) @ 231.
What’s more, the PW1 was said to be a blood relation of the deceased, and that there is evidence of previous misunderstanding between the PW1 and PW3, and the Appellant. For those reasons, the PW1 is allegedly a tainted witness. Thus, the trial court ought to have warned itself of the danger of relying upon such evidence, without other independent evidence. See MOSES VS. STATE (2003) FWLR (Pt. 141) 1969 @ 1988; OMOTOLA VS STATE (2009) 8 ACLR 29 @ 163 – 164; STATE VS. IKOKO (1974) 2 SC 73; ISHOLA VS. STATE (1978) 9 – 10 SC.
Therefore, the prosecution could not be said to have proved the charge against the Appellant, because the lower court did not consider all the possible defences available to the Appellant. And that where there is a failure to consider the other defences available to the accused, as in the instant case, the appellate court should consider all the defences open to the Appellant on facts established at the trial. See JOHN VS. STATE (2012) 7 NWLR (Pt. 1299) 336 @ 353 F – G.
Conclusively, the court has been urged upon to allow the appeal, set aside the Judgment of the court below, discharge and acquit the Appellant.
On the other hand, the Respondent has raised a sole issue in the brief thereof for determination, to wit:
“(1) Whether the learned trial Judge was right in law when he held that the prosecution proved its case against the accused person beyond reasonable doubt. (Ground 3 & 4)”
Without much ado, the sole issue was answered by Respondent’s learned counsel in the positive. Submitting on the sole issue, the learned counsel posited that to succeed in any criminal case before court, the prosecution is expected to prove its case against the accused person beyond reasonable doubt. See Section 135 of the Evidence Act; ISIBOR VS. STATE (2002) 4 NWLR (Pt. 759) 741; ADEKUNLE VS. STATE (2006) 14 NWLR (Pt. 1000) 717 @ 736 – 739 G – A.
It was contended, that the prosecution has proved the ingredients of the offence of murder against the Appellant beyond reasonable doubt through credible evidence of prosecution witnesses, particularly the PW1, PW5 and Exhibits A, B, C & D, respectively.
Further submitted, that from the totality of the evidence of PW1 & PW5, which were not discredited during cross-examination, the deceased person died due to the gunshot he received from the accused with exhibit C on 9th day of January, 2008 in question. That, the evidence of PW5, a Medical Doctor, is consistent with the evidence of PW1 as to the gunshot injury which caused the deceased hypovolemic shock that resulted in his death. And that from the evidence of PW1, it was the accused person that shot the deceased with Exhibit C on 9th day of January, 2008.
It was contended, that the circumstances have made it probable that Exhibits A & B are true. See AKPAN VS. THE STATE (2001) FWLR (Pt. 56) 735 @ 750 B – C. That, the statement in Exhibits A & B is possible, true and consistent with other facts which have been ascertained, proved and corroborated by the evidence of PW1 & PW5.
It was further contended, that from the evidence of PW1, PW5 and Exhibits A, B, C, and D, the prosecution has proved beyond reasonable doubt that the death of the deceased person was a direct consequence of the act of the Appellant by shooting the deceased with a locally made gun.
With regard to the third ingredient of the offence, the Respondent submitted that the Appellant has failed to rebut the presumption in law that a person intends the natural consequences of his act. See AJIDAHUN VS. THE STATE (1991) 9 NWLR (Pt. 213) 33 @ 44 paragraphs D – D.
On the issue that the PW1 is a tainted witness, it’s argued that on the evidence on record, it’s obvious and beyond doubt, that the PW1 is not a tainted witness. There was nothing in the evidence to suggest that the PW1 had any interest to serve other than giving a vivid and accurate explanation of how the Appellant forcibly gained entry into the PW1’s apartment, and shot her brother (the deceased) in the stomach, which resulted in his death. Therefore, upon the facts so far disclosed, the PW1 cannot be regarded as a tainted witness. See OMOTOLA VS. THE STATE (2009) 7 NWLR (Pt. 1139) 148 @ 177 C – D.
The Respondent further contended, that the mere fact that the witnesses for prosecution are relations of the deceased, does not make their evidence inadmissible. However, that fact can only make the court to be circumspect in the reception of their evidence, and treat such evidence with caution. See ONAFOWOKAN VS THE STATE (1986) 2 NWLR (Pt. 23) 496 @ 503 A – B.
Regarding the issue that the trial court failed to consider all the possible defences available to the Appellant, it was submitted that the Appellant has failed to submit any special defence such as alibi, insanity, provocation or self defence, which required special consideration. The defence of the Appellant was a general denial of the charge. That, the Appellant’s counsel failed to draw the attention of the court to any aspect of the Appellant’s case that was not considered. Thus, since there were no defences raised, proved or open to the Appellant, the court was not permitted to go into such hypothetical questions. See YARO VS. THE STATE (2007) 18 NWLR (PT. 1066) 215 @ 232 – 233 E – B; DDA VS STATE (2008) 13 NWLR (Pt. 1103) 149 @ 17 E – H; ANI VS. STATE (2002) FWLR (Pt. 125) 661 @ 669 E – G.
It was equally postulated, that from the evidence before the court, it can clearly can be seen that the Appellant was not at the time of the commission of the offence in such a state of either mental or natural mental infirmity as to deprive him of the capacity to control his actions. That, the evidence of the state of mind of the Appellant by the confessional statement in Exhibits A & B, (was) made after his arrest soon after the commission of the offence. All these put together show that the Appellant understood what he was doing, and knew that he ought not to have done it.
On the issue of occasioning a miscarriage of justice, it was submitted that by virtue of Section 251 (1) of the Evidence Act, the wrongful admission of evidence would not of itself be a ground for reversal of any decision where it appears to the Court that the evidence so admitted cannot reasonably be held to have affected the decision. And that such a decision would have been the same if such evidence had not been admitted. See ARCHIBONG VS. STATE (2006) 14 NRLR (Pt. 1000) 349.
It was contended, that the evidence of PW1 and PW5, taken together, are adequate, to sustain the verdict of guilt entered against the Appellant. Thus, the (alleged) wrongful admission of exhibits A & B has not occasioned any miscarriage of justice. See ARCHIBONG VS. STATE (Supra) @ 378 paragraphs C – E.
That, applying the principle laid down in ARCHIBONG VS. STATE (Supra), even if the Appellant’s statements in exhibit A & B were excluded, the lower court would have come to the same conclusion, to the effect that it was the Appellant who killed the deceased.
It was argued, that there are numerous (pieces of) evidence linking the Appellant with exhibits C & D. That, from the evidence of PW1, PW3 and PW4, it’s obvious that the Appellant was caught at the scene of the crime after shooting the deceased. Thus, exhibits C & D are corroborative evidence that the Appellant killed the deceased. See GBADAMOSI VS. STATE (1991) 6 NWLR (Pt. 196) 182 @ 206.
The court is urged to hold that the prosecution proved the offence of murder against the Appellant beyond reasonable doubt.
I have accorded an ample consideration upon the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof vis-‘E0-vis the record of appeal, as a whole. For the purpose of determining this appeal, I have deemed it appropriate to adopt, mutatis mutandis, the two issues raised in the Appellant’s brief of argument.
ISSUE NO. 1
The first issue raises the vexed question of whether or not the trial court properly conducted the two separate Trials-Within-Trial before it admitted and relied upon Exhibits A & B (the Appellant’s alleged confessional statements) in the Judgment thereof.
Instructively, it’s evident from the record of appeal that two distinct Trials-Within-Trial were embarked upon by the lower court in the course of the trial. The first segment of the Trial-Within-Trial is contained at pages 36 – 40 of the Record of Appeal. It was conducted on 19/3/10. The sole prosecution witness in the Trial-Within-Trial was the PW4, in the person of Raphael Asemota, police Sgt No. 187412. The Appellant on his own part testified for the defence. At the conclusion of the evidence of the Prosecution and Defence witnesses and the addresses of the learned counsel, the lower court, in its wisdom, ruled at page 40 of the Record, thus:
COURT:- I will for now admit the statement sought to be tendered subject to this court giving a proper consideration to the evidence and address of counsel in this trial within trial proceedings (sic) in the final Judgment of this court during which if the statement is found not to have been voluntarily made it would be expunged from the record. Accordingly, the statement of the accused person made to the accused person (sic) on the 9/1/2008 to the police at Ozoro is hereby admitted in evidence in these proceedings and marked A.
Similarly, the proceeding regarding the second trial-within-trial is contained at pages 44 – 46 of the Record. The sole prosecution witness in the second trial-Within-trial was in the person of ASP APU Torukeregha. On the other hand, the Appellant testified for the defence thereof.
At the conclusion of the testimonies of the prosecution and defence in the second trial-within-trial in question, the lower court, in its wisdom, once more ruled, thus:
COURT: I have duly considered the evidence led by the PW6 and the accused person in the trial within trial and I have also considered the submissions of learned counsel. The law enoims (sic) this court to admit the statement of the accused person at this stage subject to a consideration of the evidence at the time when the Judgment is to be delivered if at that time I find that the statement was not voluntarily made I will expulge (sic) the statement from the record when I deliver the final Judgment. In this information in the circumstances, I will and hereby for now admit the statement of the accused person made on the 14th day of Jan. 2008 and marked exhibit B.
Not unnaturally, the above procedure adopted by the lower court in admitting Exhibits A & B at the conclusion of the trial-within-trial did not seem to go down well with the Appellant. It was in the main, as outlined above, the submission of the Appellant’s learned counsel that the lower court was wrong, and thereby occasioned a miscarriage of justice, when it failed to deliver a considered ruling before admitting the Appellant’s statements (Exhibits A & B) during the two respective trials-within-trial.
The term trial denotes a formal judicial examination of evidence and determination of legal claims in an adversary proceeding. It’s trite, that the term confession denotes an admission made at any material time by a person charged with a crime, stating or suggesting the inference that he has committed an offence (crime): Section 28 of the Evidence Act, 2011.
It is a well settled fundamental principle, that in any criminal proceeding, a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue therein. However, where there is an objection by the defence to the evidence of confession sought to be adduced by the prosecution on the grounds that the confession was obtained by (a) oppression of the person who made it; or (b) in consequence of anything said or done, which is likely to render unreliable any such confession, the court shall not allow the confession to be given in evidence except in so far as the prosecution proves beyond reasonable doubt that the confession (though it may be true) was not obtained by oppression of the person who made it, or in consequence of anything said or done which was likely to render unreliable the said confession. See Section 29 (2) of the Evidence Act (Supra). And by virtue of the provision of Section 29 (5) of the said Evidence Act, the word ‘oppression’-
“includes torture, inhuman or degrading treatment, and the use or threat of violence not amounting to torture.”
Thus, for a trial court to rely upon a confession to convict an accused person, the prosecution must prove beyond reasonable doubt that the confession in question was obtained voluntarily, and that it was true. In any given trial. where a confessional statement is sought to be tendered by the prosecution, the accused person has the right to object to the admissibility of the confession in either of two ways. First, the accused person may retract the confession or deny ever making such a confessional statement at all. Second, the accused person may opt to admit having made or signed the statement but claim, however, that he did not make and/or sign the confessional statement voluntarily.
It is trite that where an accused person only appends his signature (or thumb prints as the case may be) to a confessional statement, the signature serves as a veritable acknowledgement of the contents of the statement. Thus, an objection that the signature was not voluntary is in effect an objection to the voluntariness of the confessional statement in the entirety thereof.
Invariably, the appropriate procedure to be adopted by the trial court to determine the admissibility or otherwise of the confessional statement in contention is entirely predicated upon the nature of the objection raised by the defence.
Where the accused person denies ever writing the confessional statement, the confession is still admissible in evidence against the accused, albeit the trial court must at the conclusion of the trial determine the veracity and probative value of the said confession. See IKPASA VS. THE STATE (1981) NSCC 300, wherein the Supreme Court held, inter alia, thus:
It is a well established practice in this country that where on the production of a confession it is challenged on the ground that an accused did not make it at all the question of whether he made it or not is a matter to be decided at the conclusion of the trial by the learned trial Judge himself. Whatever objection may be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise for consideration and decision.
Per Udo Udoma JSC @ 309.
See also OGUNYE VS. THE STATE (1999) NWLR (Pt. 604) 548 @ 570; EHOT VS. THE STATE (1993) NWLR (Pt. 290) 6440.
Contrariwise, however, where the accused person admits outright that he made and/or signed the confessional statement, but claims that he did not make and/or sign the said confessional statement voluntarily, then it behoves the trial court to first and foremost determine the admissibility (or otherwise) of the confessional statement by holding a mini trial; what in practice is commonly known as a ‘trial-within-trial’. See OBIDIOZO VS. THE STATE (1987) NSCC 1239 @ 1246; NWAGBOMU VS. THE STATE (1994) NWLR (Pt. 327) 380 @ 397; ONYEJEKWE VS. THE STATE (1992) NWLR (Pt. 248) 439; SAIDU VS. THE STATE (1982) NSCC 70 @ 80.
It needs to be reiterated at this material point, that where the voluntariness of a confessional statement is in issue the trial court is under a duty to conduct a trial-within-trial with a view to determining the admissibility or otherwise of the confession. Thus, the failure to conduct a trial-within-trial renders the confessional statement inadmissible. Undoubtedly, the truth or otherwise of the confessional statement is not in issue at this material stage of trial-within-trial. See OJEGELE VS. THE STATE (1988) NSCC 271 @ 279; DAWA VS. THE STATE (1980) NSCC 334 @ 345; OWIE VS. THE STATE (1985) NWLR (Pt. 1) 470; SAIDU VS STATE (1982) NSCC 70; OBIDIOZO VS. STATE (1987) NWLR (Pt. 67) 748.
Inarguably, the burden of proving, beyond reasonable doubt, that a confessional statement was voluntarily made by the accused person rests squarely upon the prosecution. See Sections 29 & 140 of the Evidence Act; ADE KANBI VS. STATE (1966) ANLR 46 @ 49; EMEKA VS STATE (2001) NWLR (Pt. 734) 666 @ 681.
In the instant case, it’s not in doubt at all that the trial court had conducted two distinct trials-within-trial (mini trials) on 9/3/10 and 23/6/10, respectively. On 19/3/10, the PW4, Sgt Raphael Asemota testified for the prosecution, while the Appellant gave evidence in defence thereof in the first trial-within-trial, thus resulting in the admission of Exhibit A. On 23/6/10, the PW6, ASP APU Torukeregha testified for the prosecution, while the Appellant equally gave evidence in the second trial-within-trial, resulting in admitting Exhibit B.
It is trite, that multiplicity of trials-within-trial is not at all novel to the Nigerian adjudicatory system. Indeed, it’s long been settled, that where more than one accused person have made confessional statements, or an accused person has made more than one confessional statement, and an objection is raised against each of them, the trial court must conduct a distinct trial-within-trial to determine the admissibility or otherwise of each confession. See DAWA VS. THE STATE (1980) NSCC 334; DURUGO VS. THE STATE (1992) NWLR (Pt. 255) 525 @ 535. In the case of DAWA VS. STATE (Supra), most particularly, the trial court was recorded to have (rightly) conducted a total of seven distinct mini trials within the main trial, in accordance with the laid down principle.
It needs to be reiterated, that any irregularity in the conduct of the trial-within-trial may affect or vitiate the admissibility of the confessional statement of the accused person. See GBADAMOSI VS. STATE (1992) NWLR (Pt. 266) 465 @ 489; AUTA VS. STATE (1975) ANLR 163 @ 169; THE STATE VS. OLADELE (1969) NMLR 210.
The Appellant’s learned counsel has contended at page 8 paragraph 4.03 of the brief thereof, to the effect that the lower court has failed to follow the procedure laid down by the Supreme Court in the case of OGUDU VS. STATE (2012) ALL FWLR (Pt. 629) 1111 @ 1142 – 1143 paragraph A.
Instructively, the Supreme Court was reported to have held in the case of OGUDU VS STATE (Supra), thus:
Where a statement by an accused person is tendered in evidence and objection made to it on the ground that it was not made voluntarily the Judge should first hear evidence on the point from both parties and make a ruling on the admissibility or otherwise of the document before receiving or rejecting it in evidence.
In the instant case, at page 40, lines 20 – 29 of the Record, the lower court was recorded to have held, thus:
I will for now admit the statement sought to be tendered subject to this court, giving a proper consideration to the evidence and address of counsel in this trial within trial proceedings, in the final Judgment of this court during which if the statement is found not to have been voluntarily made it would be expunged from the record. Accordingly, the statement of the accused person made to the accused person (sic) on the 9/1/2008 to the police at Ozoro is hereby admitted in evidence in these proceedings and marked ‘A’.
Again, at page 46, lines 29 – 38, of the Record, the lower court held thus:
I have duly considered the evidence led by the PW6 and the accused person in the trial within trial and I have also considered the submissions of the learned counsel. The law enoins (sic) this court to admit the statement of the accused person at this stage subject to a consideration of the evidence at the time when the Judgment is to be delivered if at that time I find that the statement was not voluntarily made, I will expulge (sic) the statement from the record when I deliver the final Judgment in this information in the circumstances, I will and hereby for now admit the statement of the accused person made on the 14th day of Jan, 2008 and marked exhibit B.
Of course, it’s so obvious from the above excerpts that the lower court did not specifically rule on the voluntariness or otherwise of the alleged confessional statements of the Appellant at the conclusion of the two distinct trials-within-trial in question. The trial court merely proceeded to admit the two statements as exhibits A & B, albeit with a caveat that it would expunge the said exhibits if it discovered in the course of judgment that they were not voluntarily made by the accused person.
However, contrary to the contention of the Appellant’s learned counsel, considering the circumstances surrounding the case, there is every reason for me to believe that the lower court’s failure to categorically rule on the voluntariness or otherwise of the alleged confession of the Appellant before admitting Exhibits A & B could not rightly be said to have amounted to a miscarriage of justice. And my reason for holding that view is not far-fetched! It is evident at page 75, lines 4 – 18 of the Record, that the lower court has found, rightly in my view, that –
the accused person retracted his confessional statements Exhibits A & B and denied murdering the deceased. The law is now certain that the inconsistency rule would not be applied to exclude a confessional statement properly proved. Our own apex court laid down this principle of law in EGBOGHONOME VS. STATE (2001) 2 ACLR 262….
In the circumstances, it is incumbent on this court to assess the quality of the alleged confessional statements Exhibits A and B notwithstanding their retraction by the accused person in his oral testimony before this court.
In view of the circumstances surrounding the case vis-‘E0-vis the evidence on record, there is every cogent reason for me to believe that the above finding of the lower court is unassailable. That finding is duly supported by the evidence on record. Indeed, it’s evident on the face of the records that the Appellant had in his own words retracted the two confessional statements (Exhibits A & B) in question. At page 51 lines 26 – 29 of the Record of Appeal, the Appellant had testified under cross examination to the effect, inter alia, thus –
“I see exhibit A. My name is on exhibit A. exhibit A is not my statement. The signature is not my signature. I see exhibit B. Is not my statement. The signature on exhibit B, is not my signature.”
Invariably, the term ‘retraction’ denotes the act of taking or drawing back; the act of recanting or withdrawal (of something e.g. a statement). See BLACKS LAW DICTIONARY 9th Edition 2009 @ 1431.
In the case of EGBOGHONOME VS. STATE (Supra), referred to (and duly relied upon) by the lower court in the vexed judgment, the Supreme Court was reported to have held, inter alia, thus:
I am now convinced by the forceful submissions of amici curiae that Uwaifo JCA correctly stated the law. He was right that the decision of this court in Oladejo’s case was a departure from the long established principle relating to consideration of confession and its retraction.
Confession and testimony of the accused person shall be evaluated and assessed by the trial Judge together with the totality of the evidence in order to reach a just decision.”
Per Bello, CJN (of remarkably blessed memory) @ 293 – 294.
Again, in the case of UBIERHO VS. THE STATE (2005) AFWLR (Pt. 254) 804, it was held by the Apex Court, thus:
“Now, it is settled law that the fact that an accused has retracted a confessional statement does not mean that the court cannot act upon it.” Per Oguntade JSC @ 819.
Most interestingly, the requirement of a trial-within-trial, with a view to determining the voluntariness or otherwise of a confession, has long been a critical subject of controversy. See OKAROH VS. STATE (1990) ANLR 130 @ 137. Indeed, the Court of Appeal has gone down in history as having been in the forefront in castigating the procedure of trial-within-trial upon the ground that there was no specific enabling statutory provision in either the Evidence Act, or the Criminal Procedure Law. And that with the abolition of the jury system of criminal trials in the country, the procedure for trial-within-trial has become rather spent or superfluous.
Nonetheless, the Supreme Court, in a plethora of authorities, has remained resolute in its decisions that the procedure of trial-within-trial to determine the voluntariness and admissibility or otherwise of a confession still remains to be a formidable integral part of the Nigerian criminal procedure system. Most especially, in the case of GBADAMOSI VS. STATE (1992) NWLR (Pt. 266) 465, the Supreme Court was recorded to have held, rather authoritatively, that:
Suffice it for me to say firstly, that I share the views of the learned Justices of the Court of Appeal as to the problems surrounding this procedure, but secondly, that procedure is now very much part of our law that it cannot be overlooked or decreed into illegality by the Court of Appeal. The learned Justices of the Court of Appeal were, with respect, very wrong to have done so in the face of decisions of this court which have made this procedure mandatory, and part of the law.
Per Uche Omo, JSC @ 480.
Most intriguingly, the reason given by the Appellant for killing the deceased was predicated upon his (Appellant’s) belief that Faith Itu (PW1) was a “witch” and that the deceased was a “cat”. Exhibit A most particularly is to the effect, inter alia, that –
Faith Itu is a witch, she is the person that remote(sic) to shoot Godwill Itu. Goodwill Itu is about 12 years old now. This freeborn company was the one that told me that Faith Itu is a witch. It was in front of my father compound I shot Godwill Itu on his stomach falling him to be the white cat. That is all that happened.
Yet, it’s well settled principle, that the mere belief or apprehension or threat of harm by metaphysical means is not sufficient defence to a charge of murder. See R.VS. UDO AKA EKA EBONG (1947) 12 WACA 139, wherein it was aptly held thus:
In our opinion the confession in this case is voluntary from the legal point of view and was promptly admitted … to find otherwise would be getting perilously near to the fallacious theory that a genuine belief in witchcraft might be a possible defence to a charge of murder.
In the light of the above far-reaching postulations, I think there is every cogent reason for me to hold, at this point in time, that the answer to the first issue is in the positive, and same is hereby resolved against the Appellant.
ISSUE NO. 2:
The second issue raises the very vexed question of whether having regard to the totality of the evidence adduced at the trial, the lower court was right to hold, as it did, that the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.
I have had a cause to heretofore outline the submissions of the learned counsel in the respective briefs thereof on this issue. As alluded to above, the gravamen of the appeal is that having regard to the totality of the evidence before the lower court, the prosecution failed to prove the charge of murder against the Appellant beyond reasonable doubt. Yet, it’s a well settled doctrine, that by virtue of the well cherished provisions of the constitution of the Federal Republic of Nigeria 1999, as amended, the Evidence Act, the Criminal Procedure Law vis-‘a-vis the prevailing adversarial judicial system as a whole, the prosecution has a fundamental duty of proving the guilt of the accused person beyond reasonable doubt. See Section 36(5) of the 1999 Constitution (Supra) to the effect that:
“36
(5) Every person who is charged with a criminal offence shall bepresumed to be innocent until he is proved guilty.”
It is trite that by the combined effect of the provisions of Section 36 (5) of the 1999 Constitution and Section 138 (1) of the Evidence Act, the prosecution must prove its charge of murder beyond reasonable doubt against the Appellant, otherwise, the conviction and sentence passed thereupon must be vitiated, and the Appellant ought to thus be discharged and acquitted.
It must be reiterated, that the burden placed upon the prosecution under Section 36 (5) of the 1999 Constitution, and Section 138 (1) of the Evidence Act alike does not shift. As emphatically once held by this court, the burden placed upon the prosecution to prove its charge against an accused person beyond reasonable doubt does not shift. It is as constant as the June/July rains of Nigeria. See ALAKE VS. STATE (1991) 7 NWLR (Pt. 205) 567 @ 591 paragraph Q per Niki Tobi, JCA (as he then was) in his usual erudite characteristics. See also CHUKWU VS. STATE (2006) LPELR 77 CA.
In the later case of CHUKWU VS STATE (Supra), this court was recorded to have emphatically reiterated the golden principle to the effect that –
In ensuring that the prosecution proves its case beyond reasonable doubt against an accused person, the trial court, nay, the Appellate court, is enjoined to ensure that nothing is taken for granted. See Martins Vs. The State (1997) 1 NWLR (Pt. 481) page 355 at 365 paragraphs E – F. See also Bakare Vs. The State (1988) 3 NWLR (Pt. 52) 579; (1987) 3 SC 1 at 33; Mbenu V. The State (1988) 3 NWLR (Pt. 84) page 615 at 626 paragraphs C – D in which the Supreme Court held emphatically inter alia that –
Besides, this being a capital offence, the onus on the prosecution throughout is to establish the guilt of the accused persons beyond all reasonable doubt though not beyond any shadow of doubt. Per Nnamani, JSC (of remarkable memory) per Saulawa JCA.
Fundamentally, there are three ingredients which the prosecution has the onerous burden of proving beyond reasonable doubt before the charge of murder under Section 319 (1) of the Criminal Code Cap. 48 Laws of Bendel State, 1976, applicable in Delta State, could be properly sustained against the Appellant, to wit:
1. The death of the deceased person;
2. That it was the act or omission of the Appellant which caused the death of the deceased person;
3. That the act or omission in question was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See UGURU VS. THE STATE (2002) 9 NWLR (Pt. 771) 90 @ 106 E – G. GIRA VS. THE STATE (1996) 4 NWLR (Pt. 443) 375 @ 383; NWUEZE VS. THE STATE (1996) 2 NWLR (Pt. 428) @ 11; OGBA VS. THE STATE (1992) 2 NWLR (Pt. 222) 164.
Having accorded a critical, albeit dispassionate regard to the totality of the evidence so far adduced at the trial by both the prosecution and the defence, it’s not at all in doubt that the death of the deceased in the person of Godswill Itu, had been occasioned on January 9, 2008 at Ulli-Iyede village, Ozoro, Delta State. The PW1, Itu Faith, testified on oath on 01/02/10, to the effect, inter alia, thus:-
“I know Godswill Itu. Godswill Itu is my younger brother. He is dead now.”
See page 30, lines 8 – 9 from the bottom.
The PW2, Obaro Nicholas Itu and PW3 Mrs. Alice Itu were the father and mother of the deceased person inquestion. They both testified confirming the death of the deceased on the date in question. The PW4, Sgt Raphael Asemota and PW6, ASP APU Torukeregha equally testified to the fact that they conducted investigation regarding the death of the said deceased. The PW5, Dr. Emelereta Emmanuel also testified that he personally conducted the post mortem examination regarding the deceased, Godswill Itu in question in the month of January, 2008.
Thus, not surprisingly, the Appellant’s learned counsel conceded at page 12, paragraph 5.02 of the brief thereof, to the effect that –
“From the evidence on record, the issue of the death of the deceased was not in contention.”
Hence, from the totality of the evidence placed before the court at the trial vis-‘E0-vis the record of appeal, it’s rather obvious, that the prosecution has proved beyond all reasonable doubt that the said Godswill Itu, aged about 15 years, had died on January 9, 2008 at Ulli-Iyede, Ozoro Delta State. In the circumstance, therefore, there is every valid reason for me to hold that the first ingredient of the charge of murder has been proved beyond reasonable doubt by the prosecution.
The second ingredient of the charge, which the prosecution must equally prove beyond reasonable doubt, is whether the death of the deceased person could be said to have resulted from the act or omission of the Appellant.
As alluded to above, a total of six witnesses had so far testified for the prosecution at the trial court. Of the said six prosecution witnesses, the PW1, Faith Itu, is supposedly a star witness. She testified as an eyewitness to the circumstances surrounding the death of her younger brother, the deceased: Godswill Itu. The PW1 testified on 01/10/09 at the lower court. Her evidence in chief and under cross-examination is contained at pages 30 – 32 of the record. The evidence in-chief of the PW1 is to the effect, inter alia, thus:
My name is Itu Faith. I live at Ulli-Iyede Village.
I am a student of Iyede Secondary Commercial School Iyede. I know Godswill Itu. Godswill Itu is my younger brother. He is dead now. I know Mr. Obaro Itu. Obaro Itu is my father. I know the accused person Mr. Anthony Itu. Accused person is my uncle…
With particular regard to the incident that led to the death of the deceased, the PW1 has this to say –
Thereafter in (sic) 9/1/2008 which was a Wednesday at about 6am in the morning, as I was asleep with my brother Godswill the accused person pushed open the door of our room and I saw the accused person who had a long locally made barrel gun. He the accused person he would kill me on that day. As the accused person pointed the gun at me, I jumped out from the bed and grabbed the accused person on his neck. As this incidence happened my younger brother Godswill Itu was still asleep on his bed. As I shouted my brother woke up to come and rescue me. But the accused shot my said brother in his stomach. I shouted and people came and held the accused person and tied him to the ground. My brother was rushed to the hospital, the Olomoro Baptist Hospital.
My brother was 15 years old. Before we could get to the hospital my brother died on the way to the hospital. My brother’s corpse was brought back to Uli-Iyede. When the accused person saw the corpse of my brother, the accused person began to boast that unless, he was buried with my brother’s corpse, whenever he returns from custody he will surely kill me … The corpse of my brother was deposited at the mortuary at Olomoro Baptist Hospital. I was invited by the police at Ozoro on the next day to make a statement. I made another statement at State CID Police in Asaba.
Under cross-examination by the defence counsel, MN Akpan Esq., the PW1 stated that her statement in court was the same as the statements she made to the police. She equally testified under cross-examination thus –
The gun did not explode as a result of my struggle with the accused person. The accused person shot my brother as he sit up from the bed. My brother did not struggle with the accused person. The accused brought the gun he used to shoot my brother. I don’t know the owner of the gun. When my grandmother came the accused person begged my grandmother but she said she could not forgive the accused person because he accused her daughter of witchcraft. I, not lie to this court.
The PW2, Obaro Nicholas testified that the accused person is his junior brother of full blood. On the 09/1/08 in question, at about 2pm, he was in Port Harcourt where he lived when someone was sent to call him to proceed home – Uli-Iyede. On reaching home at Uli-Iyede, he met a crowd in his compound. He got to know that the accused person shot his child – Godbless Itu. And that –
Upon entry into my compound I saw my child – Godbless Itu already down and dead. I saw his corpse. In my said compound I also saw my junior brother the accused person tied down. He was weeping and begging me to forgive him.
Thereafter, I reported the matter to the police station at Iyede. The following day I reported the matter to the police at Ozoro.
According to the PW2, the police followed him to his home at Uli-Iyede, where they saw the corpse of the deceased. At the request of the police, the corpse was photographed and later conveyed to the mortuary. The PW2 made a statement to the police at both Ozoro and Asaba. He had no quarrel with the accused person before the murder incident.
Under cross-examination by the defence counsel, the PW2 told the court that he did not stay permanently in Uli-Iyede; as he’s based in Rivers State in a town called Utuochime. He insisted that he did not come to lie in the court. He also stated thus –
“I am not a hunter. I don’t own a dane gun. No dane gun in my house.”
The PW3, Mrs. Alice Itu is the wife of PW2 and mother of the deceased, Godswill Itu. According to the PW3, on the said 09/1/08, she and her husband (PW2) got a message that they should go home. She stated further that –
When we got home, I saw my son on the ground and I also saw the accused tied down. My son shot by the accused person is Godswill Itu … The accused person while tied on the ground began to beg my husband and I to forgive him. The accused person said that he was sent by someone to kill my son even while he begged.
He told us that after Godswill has been buried when he returns from prison, he will kill Faith my daughter, the PW1 who has already testified in this information. My husband reported to the police and my deceased son was removed to mortuary while the accused person was arrested … I made a statement to the police at Ozoro Police Station.
Under cross-examination by defence counsel, the PW3 stated thus:
I saw my son’s corpse on the ground when I came home. I saw the accused person tied down. The gun that he used to kill my son was by him on the ground. The accused person even while he begged for forgiveness threatened to kill Faith if we refused to forgive him. I was not bearing any grudge against the accused person for calling my daughter Faith a witch. I have not lied to this court in my evidence.
The PW4, Raphael Asemota, Police Sgt No. 187412, was attached to the Divisional Crime Branch of the Ozoro Division of the Nigeria Police. On the said 09/1/08, he was on duty at Ozoro when a case of murder of the deceased, Godswill Itu was reported and referred to him for investigation. The case was reported by Nicholas Itu, the PW2. The PW4, along with Inspector Christopher Attah, booked and went to the scene of crime, the PW2’s house at Uli-Iyede. According to the PW4 –
When I arrived at Uli-Iyede in company of the complainant and my inspector crime, complainant took us to his house at Uli-Iyede where he showed me the accused person Anthony Itu where he was tied down in his compound. Complainant also showed me the victim in a room in the house of the complainant. The victim was dead. There was an open wound in his abdomen. I was shown a long locally made gun at the scene with one empty shell (cartridge) at the mouth of the gun.
Thereafter I immediately arrested the accused person … I sent for a photographer who took the photograph of the corpse. Thereafter he produce the photographs…
The corpse of the deceased was removed to Olomoro Baptist Hospital by me for post mortem examination. The post mortem was done … statement of the accused was taken by me. I cautioned him in English Language before he made the statement.
Instructively, the testimony of the PW4, most especially regarding the alleged confessional statement of the Appellant, had warranted the lower court to conduct a trial-within-trial which resulted in the said statement being admitted as Exhibit ‘A’. At the conclusion of the evidence in chief thereof, the PW4 stated that –
I suggested in my minutes to my Divisional Police Officer (DPO) that the accused person and the exhibits be transferred to the State CID Asaba for further investigation which he approved. The accused and the exhibits were sent to Asaba where the State CID took over the investigation.
Under cross-examination by the defence counsel, the PW4 testified, inter alia, thus –
“Apart from the gun I did not recover anything from the scene of crime. I am not lying to this court.”
The PW5 was in the person of Dr. Emerereta Emmanuel, a Medical Doctor attached to Government Hospital Onwe-Ologee. His evidence in chief was to the effect that on the 02/02/2008 he conducted a postmortem examination regarding the corpse of Godswill Itu. At the conclusion of the postmortem examination, the PW5 stated that he wrote a report and gave it to the IPO. His observation in the report was to the effect that –
There was a wound on the left lateral aspect of the abdomen. It was a bullet wound and part of the bowels were protruding from the wound. When I opened up I discovered that there was a lot of blood clot in the abdomen and I recovered 9 pillets from the abdomen which I gave to the IPO investigating police officer. I came to the conclusion that he died of hypovolemic shock. I wrote my report which I gave to the IPO. The likelihood cause of death is hypovolemic shock as a result of gunshot injuries.
Under cross examination by the defence counsel, the PW5 reiterated thus:
This injury of the deceased person could not have been caused by a sharp object. Any injury caused by sharp will have sharp edges but the injury had no sharp object. The opinion just rendered is not what I was told, but I saw there. The IPO did not tell me about the cause of death of the deceased.
The last but not the least prosecution witness was PW6, ASP APU Torukeregha. He testified to the effect, inter alia, that on 14/01/08, a case of murder was transferred to the state CID from Ozoro Police Station and referred to him and his team for investigation. Upon receipt of the case file and exhibits, statements were taken from the Complainant and Appellant. Recall that the statement of the Appellant alleged to have been recorded by the PW6 was vehemently objected to by the defence counsel, MN Akpan Esq. Thus, warranting the lower court to conduct a trial-within-trial, resulting in admitting the statement as exhibit B. both the dane gun and the expended cartridge in question were equally admitted as exhibits C & D, respectively.
From the totality of the evidence adduced at the trial vide the prosecution witnesses in question, there is every cogent reason for the trial court to have come to the conclusion that –
The prosecution proved beyond reasonable doubt that the accused person murdered the deceased Godswill Itu on the 9th day of January 2008 at Ulli-Iyede village and I find the accused guilty of the offence of murder.
The evidence of the PW1, Faith Itu, is very much unequivocal to the effect that on 09/01/12 at about 6am in question, the Appellant pushed the door of her room open and said he would kill her. The Appellant pointed a locally made (dane) gun at PW1. She jumped from her bed and grabbed the Appellant on the neck. According to the PW1-
“As I shouted, my brother woke to come and rescue me. But the accused shot my said brother in his stomach. I shouted and people came and held the accused person and tied him to the ground. My brother was rushed to the hospital, the Olomoro Baptist Hospital. My brother died on the way to the hospital my brother’s corpse was brought back to Uli-Iyede.
Under cross-examination by the Appellant’s counsel, the PW1 reiterated that the gun did not explode as a result of her struggle with the Appellant. She equally stated that –
“The accused person brought the gun he used to shoot my brother. I don’t know the owner of the gun.”
The fact that the Appellant went to the family house of the PW1, on 09/01/12 at about 6am, with the locally made (dane) gun is beyond question. The evidence of the PW1, to the effect that the Appellant was in the house of the PW2 on the day in question is equally cogent and unassailable. According to the PW1, after the Appellant had shot the deceased she –
“Shouted and people came and held the accused person and tied him to the ground.”
The evidence (testimonies) of PW2, PW3 and PW4 have duly, corroborated the evidence of PW1, to the effect that the accused person was held by some people and tied down in the house of PW2.
The PW2 testified, inter alia, that –
Upon entry into my compound I saw my child –
Godbless Itu already down and dead. I saw his corpse. In my said compound I also saw my junior brother the accused person tied down. He was weeping and begging me to forgive him.
The PW3 on her part testified to the effect, inter alia, that –
I got home, I saw my son, on the ground and I also saw the accused tied down …
My husband reported to the police and my deceased son was removed to the mortuary while the accused person was arrested.
Under cross-examination by the defence counsel, the PW3, reiterated thus:
“I saw my son’s corpse on the ground when I came home. I saw the accused person tied down. The gun that he used to kill my son was by him on the ground.”
The PW4, Sgt Raphael Asemota, who effected the arrest of the Appellant on 09/01/12 in question, equally has testified to the fact thus:
When I arrived at Uli-Iyede in company of the complainant and my inspector crime, complainant took us to his house at Uli-Iyede where he showed me the accused person Anthony Itu where he was tied down in his compound. Complainant also showed me the victim in a room in the house of the complainant. The victim was dead. There was an open wound in his abdomen. I was shown a long locally made gun at the scene with one empty shell (cartridge) at the mouth of the gun.
Thereafter immediately arrested the accused person. On that day the scene of crime was visited by me, the complainant and Faith Itu – PW1.
In the examination in chief thereof, the Appellant tried (albeit in vain) to deny that he was responsible for the killing of the deceased. He denied that he had been to the scene of crime at all. The Appellant has testified, inter alia, thus:
I never attempted to shoot the PW1 at any time. I never boasted to the PW1 that I will surely kill her except I am buried with Godswill. There was a day I was in my father’s compound when suddenly I saw a group of boys … confronted me and accused me of killing Godswill Itu. The boys thereafter began to beat me thoroughly and took my property out of the house and burnt my properties. This incident took place at Uli-Iyede…
I never boasted to the PW3 I will kill her whole family. It is not true that I confesses to PW6 that I killed Godswill Itu… I see the gun exhibit C. I am not the owner of the exhibit C. The allegation against me is false.
Under cross-examination by prosecution counsel the Appellant reiterated thus:
I was not at the residence of the deceased. It was when boys accosted me in my house and accused me of killing Godswill that I got to know that Godswill is dead. I don’t know where Godswill is … I did not shoot Godswill Itu on 9/1/2008. I did not shoot Godswill with exhibit C the gun.
The Appellant had failed to explain the circumstances surrounding his arrest in the family house of PW1, PW2 & PW3 in possession of the dane gun (exhibit C), on the 09/01/12 in question. The evidence of the Appellant under cross-examination that he –
“was not at the residence of the deceased.”
on the day in question is highly preposterous, and rather a sheer after thought.
At page 13, paragraph 5.05 of the brief thereof, the Appellant’s learned counsel has postulated, inter alia, that the only evidence relating the (dane) gun and (expended) cartridge (exhibits C & D) were recovered was that of PW4. At page 35 lines 23 – 25 of the Record of Appeal to the effect, thus:
“I was shown a long locally made gun at the scene with one empty shell (cartridge) at the mouth of the gun.”
However, contrary to the contention of the learned counsel, the PW1, Faith Itu, had creditably testified to the fact that on the 09/01/12 in question, which was a Wednesday at about 6am, she was asleep with her brother (the deceased) when – the accused person pushed open the door of our room and I saw the accused person who had a long locally made barrel gun. He the accused said he would kill me on that day. As the accused person pointed the gun at me, I jumped out from the bed and grabbed the accused person on his neck… As I shouted my brother woke up to come and rescue me. But the accused shot my said brother in his stomach. I shouted and people came and held the accused person and tied him to the ground. Before we could get to the hospital my brother died on the way to the hospital.
Also under cross-examination by the defence counsel, the PW1 reiterated, inter alia, thus:
“The accused person shot my brother as he got up from the bed… The accused person brought the gun he used to shoot my brother. I don’t know the owner of the gun.”
Thus, in view of the testimonies of the prosecution witnesses, especially that of PW1, PW2, PW3 & PW4, there is no doubt that the Appellant was arrested at the scene of crime on the 09/01/12, and that exhibits C & D (with which he shot and killed the deceased person) were duly recovered from him at the scene. In the circumstance, the case of BELLO VS STATE (Supra) @ 231, relied upon by the Appellant’s learned counsel cannot avail the Appellant. And the reason being that there is no iota of doubt, regarding the guilt of the Appellant, which ought to be resolved in favour thereof.
The evidence of PW1 & PW3 has been alleged by the Appellant’s learned counsel to be tainted on the grounds that they were bloodily related to the deceased, and that there’s evidence of a previous misunderstanding between them and the Appellant. Thus, it’s allegedly evident that they have a grudge against the Appellant.
Invariably, a tainted witness is one who has a purpose or interest to serve in a given case or litigation, or who has an interest to defend same. See MOSES VS. STATE (2003) FWLR (Pt. 141) 1969. Where there were a failed love affair and subsequent persistent quarrels, the evidence of one of ex-lovers was held by the Supreme Court as being tainted. See MBENU VS. THE STATE (1988) 7SC (Pt. 1) 253 @ 271.
Another typical instance of a tainted witness is where the witness turns out to be an accomplice in the commission of the offence. See OLALEKAN VS. STATE (2002) FWLR (Pt. 91) 1605 @ 1628; IFEJIRIKA VS. STATE (1999) 3 NWLR (Pt. 593) 69; OGUNLAWA VS. STATE (1995) 5 NWLR (Pt. 395) 266; R VS. ENAHOLO (1964) NMLR 65; TORTIM VS. STATE (1997) 2 NWLR (Pt. 490) 711.
However, in the case of the evidence of a wife, herself a victim, who witnessed the merciless (brutal) murder of her husband, cannot be regarded as that of a tainted witness requiring any corroboration. This is because, as was authoritatively held by the Supreme Court, she cannot be said to have –
“any other interest to serve than to identify her assailant and the killer of her husband (hence her) evidence is… deserving of utmost credibility and is… probative.”
See OLALEKAN VS. STATE (2002) FWLR (Pt. 91) 1605 @ 1628, per Karibi-Whyte, JSC.
Indeed, it’s a well settled principle, that the mere evidence of blood relationship or friendship alone, is not a sufficient indication or proof that a witness is tainted. See AGWULGWUL VS. STATE (2001) FWLR (Pt. 57) 829; cf – ADEKUNLE VS. STATE (1989) 12 – SCNJ 184 & OKAFOR VS. STATE (1990) I NWLR (Pt.128) 614; METAL CONSTRUCTION (W/A) LTD VS. M.T.C. LTD (1990) 5 NWLR (Pt. 149) 144 SC.
In the instant case, it’s rather obvious, that the PW1 was a victim of the Appellant’s attack which resulted in the brutal murder of her younger brother (Godswill Itu) the deceased by the Appellant on 09/01/13 in question. Thus, the PW1 cannot, by any stretch of imagination, be said to have any interest to serve other than to merely identify her assailant and the murderer of her younger brother, Godswill Itu. There is no doubt that the PW1 is one whose evidence is deservingly most credible, and probative. See OLALEKAN VS. STATE (Supra) per Karibi-Whyte JSC @ 1628.
It has long been an established principle, that a case is not merely lost upon the mere ground that witnesses are members of the same family or community. Arguably, what is of utmost significance is their credibility, and (the fact) that they are not tainted witnesses. And the basis of this long established principle is not far-fetched. As was held by the Supreme Court –
This is because the prosecution should not be encouraged to call hired witnesses especially in murder cases or capital offences. Justice will be defeated by the prosecution of any accused person can only come merely when and only when the witnesses are neither related to the accused nor are non members of the same family. Thus the evidence of a relation can be accepted if cogent enough to rule out the probability of deliberate falsehood and bias. See OMOTOLA VS. STATE (2009) 7 NWLR (Pt. 1139) 448 paragrpah F – D per Ogbuagu, JSC; @ 195 – 196, H – E.
Thus, as pontificated above, the fact that the prosecution witnesses, especially PW1, PW2 & PW3 are relations of the deceased, or that they have had a misunderstanding with the accused person (Appellant), should not ordinarily render their evidence inadmissible. However, the court, in the circumstances is enjoined to treat such evidence with a reasonable degree of circumspection. See ONAFOLOOKAN VS. STATE (1986) 2 NWLR (Pt. 23) 496 @ 503.
There is no doubt that from the totality of the evidence of the PW1 (the prosecution eye-witness) and the PW5 (the Medical Doctor who performed the post mortem examination upon the corpse of the deceased person), the deceased died as a result of the gunshot he received from the Appellant with exhibit C on the said 09/01/08. I am of the firm view, that the totality of the evidence of PW1, PW3, PW4 & PW5 and exhibits C & D was sufficient to warrant the lower court to convict the Appellant for the murder of the deceased person. Exhibits A & B (the confessional statements of the Appellant) merely corroborate the totality of the prosecution evidence to the effect that it was the Appellant who shot to death the deceased person on the 09/01/08 in question. In the instant case, the lower court took the liberty to evaluate and assess the confessional statements (Exhibits A & B) prior to its coming to the conclusion that they were made by the Appellant voluntarily. I have no doubt in my mind, that what the lower court did is in accord with the current established principle. See EGBOGHONOME VS. STATE (Supra) wherein the Supreme Court held, inter alia, thus –
“Confession and testimony of the accused person shall be evaluated and assessed by the trial Judge together with the totality of the evidence in order to reach a just decision.”
Per Bello CJN (of blessed memory) @ 293 – 294. See also UBIERHO VS. STATE (Supra) to the effect, inter alia, that –
“Now, it is settled law that the fact that an accused has retracted a confessional statement does not mean that the court cannot act upon it.”
Per Oguntade JSC @ 819.
The law is equally well settled, that once a confessional statement attributable to an accused person is admitted in evidence as an exhibit as in the instant case, it becomes a veritable segment of the evidence of the prosecution. Thus, the trial court has an onerous duty to accord an amply critical albeit consideration to the probative value thereof, whether or not retracted by the accused. See AKPAN VS. STATE (2001) FWLR (Pt. 56) 735 @ 750 paragraphs B – C.
It is trite, that where a trial court adjudges a confession to be voluntary, cogent, direct and positive, it is sufficient to warrant the conviction of an accused person without the need for corroboration. However, the court is required to test the extent of the veracity (truth) of the confessional statement by considering whether –
(a) there is anything extraneous to (outside) the confession to show that its true;
(b) its corroborated;
(c) the accused had the opportunity to commit the offence;
(d) the confession was possible;
(e) the confession is consistent with other facts which have been ascertained and proved.
See AKPAN VS. STATE (2001) FWLR (Pt. 56) 735 @ 755 paragraphs B – G.
In the instant case, as alluded to above, by virtue of the combined effect of the evidence of the PW1, PW5 and exhibits A, B, C & D, there is every cogent reason for me to hold that the prosecution has proved beyond reasonable doubt that the death of the deceased was a direct consequence of the act of shooting thereof by the Appellant with exhibit C (the dane gun in question). And I so hold.
The third ingredient of the offence is whether or not the act of the Appellant (accused) was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
The doctrine has long been settled that the law presumes that a person intends the natural consequences of the act thereof. The presumption is however rebuttable. And the burden of rebutting this presumption lies squarely upon the defence. See AJIDAHUN VS. THE STATE (1991) 9 NWLR (Pt. 213) 33 @ 44 paragraphs D – D.
Unfortunately for the Appellant, he has failed to discharge the burden of rebutting that presumption. In the instant case, the Appellant failed to raise any special defence of alibi, insanity, or self defence which may have required a special consideration. Yet, at page 17 paragraph 5.18 of the Appellant’s brief, it’s alleged that the trial court did not consider all the available defences to the Appellant. That after admitting and relying on exhibits ‘A’ and ‘B’, the court refused to advert its mind to the defence of insanity raised in exhibit A, to the effect, thus –
This my junior brother I kill so has no previous quarrel with me. I have shot him before I gain myself back. As I got to my father compound, I saw a white cat as I shot the white cat, from there I know it was person I shot, that is Godwin Itu.
My sister Faith Itu is a witch. She is the person that remote me to shoot Godswill Itu.
However, the law is trite, that the burden of proving insanity as a defence to a criminal charge is predicated upon the accused. In the instant case, the Appellant must prove that he was incapable of knowing the nature of his act, or that what he did was wrong. See JOHN VS. STATE (2012) 7 NWLR (Pt. 1299) 336 @ 352 paragraphs D – F, wherein it was held, thus:
In order to establish a defence of insanity, the defence has to prove that at the relevant time of committing the offence, the accused person was suffering either from mental disease or from natural mental infirmity, and that the mental disease, or natural infirmity was such that at the relevant time, the accused was as a result deprived of capacity:
(a) to understand what he was doing; or
(b) to control his actions; or
(c) to know that he ought not to do the act or make the omission.
See also MOHAMMED VS. THE STATE (1997) 9 NWLR (Pt. 520) 169; ONAKPOYA VS. R (1959) 4 FSC 150; (1959) SCNLR 384; R. VS. ECHEM 14 WACA 158; SADEMAN VS. R. (1956) 2 AII ER 1138; OGBU VS. THE STATE (1992) 8 NWLR (Pt. 259) 255 @ 266 paragraphs F – G; R.VS. OMONI 12 WACA 511 @ 512; ARUM VS. THE STATE (1979) 11 SC 9 @ 119.
Undoubtedly, the principle is equally trite, that in murder trials, the trial court (nay the appellate court) has the onerous duty to examine and consider all possible defences from the evidence in favour of the accused person. See ANI VS. STATE (2002) FWLR (Pt. 125) 661 @ 669 paragraphs E – G.
In the instant case, there is every cogent reason for me to hold that the lower court has painstakingly, and rather commendably, examined and considered all possible defences available to the Appellant on the facts or evidence established at the trial. There’s no doubt that the defence of insanity has not been established by the Appellant.
In the light of the forgoing postulations, the answer to issue No. 2 is inevitably in the positive, and same is hereby resolved against the Appellant.
Undoubtedly, as painstakingly postulated heretofor, evidence abounds on the records, to the effect that the prosecution has proved the charge of murder (of the deceased person, Godswill Itu) beyond reasonable doubt against the Appellant. The futile attempt by the Appellant to take refuge upon a purported defence of insanity for the brutal murder of the unfortunate deceased person is rather a sheer afterthought. In my considered view, the Appellant cannot even take a refuge in a presumptuous defence of an accident for the willful act of murder of the deceased person in question, even if his initial intention was to kill the PW1 (Faith Itu) and not the deceased person. As aptly and rather emphatically held by the Supreme Court –
It is settled (principle) that an accused person as in the instant case, cannot take refuge in a defence of an accident for a deliberate act even if he did not intend the eventual result:
Oshor V. State (1990) 3 NWLR (Pt. 139) 484 at 502 CA per Kolawole JCA (of blessed memory) and the English case of R. V. Larkin (1994) 29 CAR 18 at 23 per Humphreys J. The shooting of the deceased by the Appellant, was deliberate and not by accident.
See YAKI VS. STATE (2008) AII FWLR (Pt. 440) 618 @ 648 paragraphs A – E, per Ogbuagu, JSC.
Hence, having resolved both issues against the Appellant, there is no gainsaying the fact that the appeal is grossly devoid of merits.
Consequently, the appeal is hereby dismissed by me. The Judgment of the High Court of Delta State, Ozoro Judicial Division, which was delivered by the Hon. Justice E.I. Oritsejafor on February 13, 2012, thereby convicting and sentencing the appellant Anthony Itu, to death, is hereby affirmed.
AYOBODE OLUJIMI LOKULO-SODIPE, JCA: I have read in draft the lead judgment prepared by my learned brother, Saulawa, JCA; and I agree that the appeal be dismissed. However I wish to dwell on Issue 1 of the two Issues upon which the appeal has been determined, as I do not totally agree with what has been stated in relation to it; and consequently its resolution, in the lead judgment.
Issue 1 in question reads: –
“Whether the learned trial Judge properly conducted trials within trials (sic) before he admitted and relied upon exhibits ‘A’ and ‘B’ in the Judgment against the Appellant”.
It is clear from the records that the Appellant objected to the admission in evidence of each of his extra-judicial statements marked as Exhibits “A” and “B” at the stage the prosecution sought to tender each of the said extra-judicial statements. It is also clear from the record that the lower court understood the objection of the Appellant to the admissibility of each of the extra-judicial confessional statements ascribed to him by the prosecution, to be founded on the ground that the Appellant did not make either of them voluntarily. The lower court therefore rightly embarked on a trial within trial for the purpose of determining the fact as to whether or not each of the extra-judicial confessional statements ascribed to the Appellant by the prosecution, was voluntarily made. This is in consonance with the provision of Section 27(2) of the Evidence Act, Cap. E 14, LFN 2004. The provision of the Evidence Act relating to admissibility of the extra-judicial statement of an accused that is confessional in nature has been dealt with by the Supreme Court and this Court in decisions too numerous to set out, with the cases of SHURUMOR V. THE STATE [2010] 44 NSCQ 177; and GBADAMOSI V. THE STATE [1992] 11 – 12 SCNJ 269, being two decisions of the Supreme Court in this regard. In other words the settled position of the law as at the date(s) the Appellant objected to the admission in evidence of his extra-judicial confessional statements, and which is still the position till today, is that the onus is on the prosecution to prove beyond reasonable doubt that a confessional statement was voluntarily made once the accused person asserts or claims that he did not make the same voluntarily. This position remains so notwithstanding any view to the contrary that has been expressed by this Court.
Trial within trial has also been described as a mini trial (i.e. smaller version of a full trial) and ipos facto has all the attributes of a full trial. A full trial ends in a judgment for or against the initiator of the case after the evaluation of the evidence adduced by the parties before the court entertaining a matter. In the same vein a trial within trial or mini trial embarked upon by a court in relation to the admissibility of a confessional statement must end in a ruling either upholding or overruling the objection to the admissibility of the extra-judicial confessional statement after an evaluation of the evidence adduced before the trial court. It would therefore appear clear that the position which the lower court should have taken in relation to the extra-judicial statements of the Appellant ought to have been informed or ought to have flowed from its express or specific finding as to whether or not the statements in question were voluntarily made. It is if the lower court found each of the extra-judicial confessional statements ascribed to the Appellant by the prosecution to have been voluntarily made by the Appellant that the said court can properly admit the same in evidence and marked them as Exhibits as appropriate. Conversely, if the lower court found the statements in question not to have been made by the Appellant voluntarily, they must be rejected in evidence and duly marked as such. It is glaring from the record that the lower court never pronounced on the objection of the Appellant to the admissibility of the extrajudicial confessional statements ascribed to him by the prosecution before the said court admitted them in evidence and marked them as Exhibits “A” and “B” respectively.
Undoubtedly, this is not only wrong in law, but there was absolutely no basis for the admission in evidence of the statements of the Appellant marked as Exhibits “A” and “B” as the lower court confronted with the objections of the Appellant to the admissibility of the said confessional statements did not first find the statements to have been made voluntarily by the Appellant before it admitted and marked them as Exhibits. Flowing from all that has been said is that Exhibits “A” and “B” do not constitute proper evidence before the lower court. The Exhibits ex facie the record of appeal were glaringly wrongly admitted in evidence.
The law is clear that a confessional statement where available is part of the evidence for the prosecution in the case in which it has been tendered. See EGBOGHONOME V. THE STATE (supra). It must however be appreciated that it is only a confessional statement that has been properly admitted in evidence that can form part of the evidence of the prosecution.
In the same vein the question of retraction by an accused of his confessional statement can only properly arise where such a statement was properly admitted in the first place. For example, where an accused out rightly denied the making of an extra-judicial statement confessional in nature ascribed to him by the prosecution, and the same is admitted as it is bound to be admitted, and the accused person in his oral evidence testifies to the contrary of what is contained in the statement, the question if retraction arise. In the same vein, where a court after the conduct of a trial within trial finds a confessional statement ascribed to an accused to have been voluntarily made by him and admits the same in evidence, and the accused person in his oral evidence testifies to the contrary of what he had confessed to, the question of retraction arises. If however, a court finds a confessional statement ascribed to an accused person not to have been voluntarily made and consequently rejects the same in evidence, the question of retraction simply has no basis. In other words, while the issue and resolution of the admissibility of a confessional statement contested on the ground of involuntariness, is not only “a pre-judgment issue” as it were, and indeed has to be determined before the court proceeds further with the evidence of the prosecution witness through whom the statement is sought to be tendered; the question of retraction on the other hand is eminently a matter that arises for consideration and determination in the judgment upon a properly admitted confessional statement of an accused person vis-‘E0-vis his oral evidence before the court.
Against the backdrop of all that has been said, I simply do not see how the lower court can be said to have been right in finding that the Appellant retracted from his confessional statements when the said statements were never proper evidence before that court in that the court never properly admitted the said statements in evidence in the first place.
The confessional statements ascribed to the Appellant having not been properly admitted in evidence by the lower court on the face of the record, in my considered view clearly did not constitute part of the evidence of the prosecution which the lower court ought to have relied upon in its judgment against the Appellant.
Flowing from all that I have said before now is that Issue 1 is resolved in favour of the Appellant.
Issue 2 questions the correctness of the decision/finding of the lower court that the prosecution proved the charge of murder against the Appellant beyond reasonable doubt having regard to the totality of the evidence adduced before it.
It has been sufficiently demonstrated in the lead judgment by his lordship that the lower court had before it other evidence aside from Exhibits “A” and “B” to which that court rightly ascribed credibility and which established the charge against the Appellant beyond reasonable doubt.
It is against the backdrop of the resolution of Issue 2 against the Appellant in the lead judgment that I had earlier declared my agreement that the instant appeal be dismissed.
Accordingly, and despite the resolution by me of Issue 1 in favour of the Appellant, I too dismiss this appeal. The judgment of the lower court delivered on 13/2/2012 convicting and sentencing the Appellant to death is hereby affirmed.
TOM SHAIBU YAKUBU, JCA: I had the privilege of reading before now, the draft of the judgment, just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA. His Lordship, to my mind, extensively dealt with the issues which were thrown up in this appeal, to my satisfaction, hence I agree with him.
It is not uncommon that in a criminal trial, after a trial-within-trial conducted by a trial court results in the admission of a contested extrajudicial statement of an accused person, the assumption by the defence and even the prosecution, is that the trial judge has at that stage concluded that the contents of the said extra-judicial statement are all true. No. Nothing can be farther from the truth. And the law. The trial judge, in the discharge of his onerous judicial duty and responsibility, with the employment of his judicial eagle eyes and sober legal mind, in the evaluation of all the pieces of evidence proferred in the case, especially with respect to the accused person’s extra-judicial statement already admitted in evidence, must painstakingly shift the chaff from the wheat, before coming to a decision on it, in his judgment.
Therefore, it would be preposterous to conclude that once an extra judicial statement by an accused person is admitted in evidence by a trial judge at the end of a trial-within-trial, that marks the end of the road for the accused person.
My Lord’s reasoning in the lead judgment, in my considered opinion has demystified such presumptuous disposition.
Therefore, a trial court faced with a situation such as was thrown up in the instant case, has the duty of testing the truth of the confessional statement by examining it with respect to other credible evidence led before it and determine whether,
(i) There is anything outside the confession to show that it is true;
(ii) It is corroborated;
(iii) The facts stated in it are true as far as can be tested;
(iv) The accused person had the opportunity of committing the crime;
(v) The accused person’s confession is possible;
(vi) The confession is consistent with other facts ascertained and established.
See Jimoh Yesufu V. The State (1976) 6 SC 167; Alarape V. The State (2011) FWLR (pt. 41) 1872 or (2001) 5 NWLR (pt. 705) 79; Akpa V. The State (2007) 2 NWLR (pt. 1019) 500; Edamine V. The State (1996) 3 NWLR (pt. 438) 530.
In the circumstances of this case, I am satisfied too, with the treatment of the extra-judicial statement of the appellant by the learned trial judge in his judgment, which has been rightly affirmed in the lead judgment.
With respect to the defence of insanity, I feel I should add this. It will be appropriate to examine the provision and the position of the law on the defence of insanity. The relevant provisions are Sections 27 and 28 of the Criminal Code, Cap. 48 vol. II Laws of Bendel State, which law is applicable in Delta State. These sections provide as follows:-
“27 Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
28. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or capacity to control his actions, or of capacity to know that he ought not do the act or make the omission.”
The position of the law on the defence of insanity as distilled from a host of decisions of this court and the apex court are as summarized hereunder:-
1. The key element of the defence of insanity is an admission by the accused person that he committed the offence but that his liability ought to be mitigated by reason of insanity.
2. Under Section 27 there is a presumption of law that everyone is of sound mind. The burden of proof of insanity, therefore, rests on the accused person and the onus is discharged on mere balance of probability as in civil cases.
3. When the question arises as to the insanity or otherwise of a person, such a person is scarcely a competent witness on that point.
4. For the defence of insanity to succeed under section 28, the accused, must establish that he was at the time of commission of the offence, in such a state of ‘mental Disease’ of natural mental infirmity’ as to deprive him of the capacity to:-
i. understand what he is doing
ii. control his actions or
iii. know that what he was doing was wrong.
5. The fact that an accused person had received treatment for mental illness or insanity in the past, may or may not be relevant for the purpose of determining whether the defence of insanity is available to him. It may not be relevant if the treatment was given a long time before the commission of the offence. What the law recognizes is that the insanity must be at the time of doing the act and not before.
6. Mere absence of motive for a crime is not sufficient ground on which to infer insanity. The burden on the accused is not discharged merely by showing that he acted without motive.
Absence of motive may, however he taken together with other circumstances which may tend to strengthen evidence of mental abnormality in order to establish insanity.
7. It is not a defence of insanity that an accused behaved abnormally. Abnormal behavior has so much uncertainty about it as to why and how.
These principles are contained in the following decisions of the Supreme Court:- Chukwu V The State: (1994) 16 LRCN 1; Peter V. The State (1997) 54 LRCN 2781; Aiworo V. The State; (1987) NWLR (Pt. 58) 526; Onyekwe V The State: (1988) 1 NWLR (Pt. 72) 505; Sule Makosa V. The State: (1969) 1 All NLR 363 At 366; Josephine Ani V The State: (2002) 98 LRCN 1212; Madjemu V The State (supra).
And the surest way of establishing insanity is by medical evidence or by compelling evidence of eyewitnesses, particularly of the relatives of the appellant, relating to his general conduct and behavior prior to, during and after the incident of 13th February, 2012. Anthony Ejinma V. The State (1991) 7 SCNJ (pt. 1) 318 at 328.
In M.A. Sanusi V. The State (1984) 10 SC 166 at 177 – 178, his Lordship, Anagiolu, JSC., succinctly stated what is expected in pieces of evidence aimed at establishing and proving insanity, as: “Positive act of the accused, before and after the deed complained of; evidence by a doctor who examined and watched the accused over a period of time as to his mental state; evidence of relatives who know the accused person intimately relating to his behavior and the change which had come upon him; the medical history of the family which could indicate hereditary mental affliction or abnormality, and such other facts and circumstances which will help the trial judge come to the conclusion that the burden of insanity placed on the accused, has been simply discharged.”
The salient facts required in proving insanity were clearly projected and crystalised by the apex court again, in Onyejekwe V. The State (1988) 1 NWLR (pt. 72) 565 at 579 – per my Lord, Oputa, JSC., to include:
“(1) Evidence as to the past history of the accused;
(2) Evidence as to his conduct immediately preceding the killing of the deceased;
(3) Evidence from prison warders who had custody of the accused and looked after him during his trial;
(4) Evidence of medical officers and/or Psychiatrics who examined the accused;
(5) Evidence of relatives about the general behavior of the accused and the reputation he enjoyed for sanity and insanity in the neighborhood;
(6) Evidence showing that insanity appears in the family history of the accused.”
Further see Kure V. The State (1988) 1 NWLR (pt. 72) 404; R V Inyang (1946) 12 WACA 5; Onakpiya V. Queen (1959) 5 FSC 150; Karimu V. The State (1989) 1 NWLR (pt. 96) 124; Ogbu V. The State (1992) 10 SCNJ 88 at 99; Okon Edoho V. The State (2010) 4 SCNJ 100, all to the effect that this burden on the defence is generally discharged on a preponderance of evidence or a balance of probability.
Therefore the prosecution has no duty or business in proving sanity or insanity of an accused person. Indeed, the law presumes the sanity of every accused person. Sections 27 and 28 of the Criminal Code (supra) say so. Hence the onus is placed on an accused person who says that he is not sane, to prove it. He who asserts must prove his assertion. Section 131(1) of the Evidence Act, 2011. The appellant herein did not discharge the onus placed on him. It is for these few comments and the more lucid reasoning of my Lord in the lead judgment that I, too agree that the appeal is lacking in merits, hence it is dismissed.
The appellant should be prepared to face the hangman, for the dastardly and cowardly killing of the young and defenceless Godswill Itu.
Appearances
AYO ASALAFor Appellant
AND
O.F. ENENMO DDPP Delta State with B.N. OBIAZI OBALIUE SSCFor Respondent
