ATTAHIRU v. STATE (2020)

ATTAHIRU v. STATE

(2020)LCN/14620(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, September 22, 2020

CA/KN/394/2014

RATIO

PLEADINGS: AN ISSUE CAN ONLY BE DISTILLED OR ARISE FROM ONE OR MORE GROUNDS OF APPEAL.

The question arises, whether I have jurisdiction to entertain them or not. An issue can only be distilled or arise from one or more grounds of appeal. More than one issue cannot arise from one ground of appeal. When that happens, it is said to amount to proliferation of issues – INOGHA MFA & ANOR VS. MFA INONGHA (2014) LPELR – 22010 (S.C) AND UGO VS. OBIEKWE (1989) 1 NWLR (PT. 99) 566. Here, the Appellant has partaken in the proliferation of issues No. 1 and 2. In MUSA S. OLAIYA VS. BONIFACE OKEKE (2012) LPELR – 19671 (CA), Ogbunya JCA quoted Onu JSC in AYISA VS. AKANJI (1995) 7 SCNJ 245 AT 253 as stating that:-
“.….issues for determination..… must not be so prolific and proliferate as to be more in number than the grounds on which they are based, I regard the multiple issues submitted..… as being of no avail, they are accordingly discountenanced in my consideration.”
In OKONOBOR VS. D.E.& S.T. CO. LTD. (2010) 17 NWLR (PT. 1221) 181, Onnoghen JSC (as he then was), held:-
“It is settled law that proliferation of issues is unaccepted in our Appellate Courts…..The issues are therefore incompetent and liable to be struck out.”
Coming home on criminal cases specifically, the Supreme Court in AKINYEDE OLAIYA VS. THE STATE(2017) LPELR – 43714 (SC) per Eko JSC held that proliferation of issues is not acceptable and “is not permitted by law.” Similarly, in OLUSOLA ADEYEMI VS. THE STATE (2014) LPELR – 23062, the Supreme Court per Odili JSC held that proliferation of issues:-
“Produces no room for manouvre as the issues so formulated come to naught.” That a proliferated issue is “dead and unusable as the abnormality is incurable.”
The reason is, not far fetched. In the Appellate Courts, appeals are decided on issues, not on the grounds of appeal, and so the issues cannot outnumber the grounds of appeal upon which they are and ought to be distilled from. So when issues are proliferated, the said issues are to be regarded as non-issues, incompetent and cannot therefore be used to determine the appeal. They are dead on arrival. Issues 1 and 2 in this appeal, having been distilled from ground of appeal no 1, are incompetent and are struck out. NDULUE & ORS. VS. EZUMA & ORS. (2018) LPELR – 44149 (CA); BRITISH AMERICAN TOBACCO PLC VS. A. G. OYO STATE & ORS. (2015) LPELR 41849 (CA) AND NWANKWO VS. YAR’ADUA & ORS. (2010) 12 NWLR (PT.1209) 518. I raised the proliferation of issues suo motu, without asking counsel to address me on it. This is in order, because a Court is entitled to raise issue suo motu without asking parties to address on it, where they fail to take into consideration, a statute or when it relates to the Court’s own jurisdiction. In BOLA OMINIYI VS. J. ADEGBOYEGA ALABI (2015) LPELR – 24399 (SC) Kekere-Ekun JSC at page 24 – 25 cited the Supreme Court case of EFFIOM VS. C.R.O.S.I.E.C (2010) 14 NWLR (PT. 1213) 106 AT 133 – 134, per Tabai JSC that raising an issue of facts suo motu by a Court, should attract an opportunity to be afforded the parties to address on it. But that however, in special circumstances, issues of law, or the Court’s own jurisdiction, may be raised suo motu without hearing parties. Again, Bage JSC, in WILLIAM ANGADI VS. P.D.P & ORS. (2018) LPELR – 44375 (SC) AT 30 – 31, in the lead Judgment, followed the earlier decision of the Supreme Court in SUNDAY GBAGBARIGHA VS. ADIKUMO TORUEMI & ANOR (2013) 6 NWLR (PT. 1350) 289 AT 310, where Rhodes-Vivour JSC held that:-
“When a Judge raises an issue on his own motion, or raises an issue not in contemplation of the parties; or an issue not before the Court, the Court is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue…but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue suo motu by the Judge:- 1. When the issue relates to the Court’s own jurisdiction; 2. where both parties are not aware or quoted a statute which may have bearing on the case; or 3. When on the face of the record serious questions of the fairness of the proceedings is evident.” Bage JSC went on to state that “it is my foremost belief that the Court below, in deciding whether it had jurisdiction on the Appeal, needed not to call any of the parties for further address in arriving at a decision.” Per ABUBAKAR DATTI YAHAYA, J.C.A.

RATIO

PLEADINGS: WHEN A COURT HOLDING A TRIAL OR INQUIRY HAS REASON TO SUSPECT THAT THE ACCUSED IS OF UNSOUND MIND AND CONSEQUENTLY INCAPABLE OF MAKING HIS DEFENCE, THE COURT SHALL IN THE FIRST INSTANCE, INVESTIGATE THE FACT OF SUCH UNSOUNDNESS OF MIND.

Now Section 320 of the CPC state:-
(1) “When a Court holding a trial or inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence, the Court shall in the first instance, investigate the fact of such unsoundness of mind.
(2) An investigation under Subsection(1) may be held in the absence of the accused person if the Court is satisfied that owing to the state of the accused’s mind, it would be in the interest of the accused or of other persons or in the interest of public decency that he should be absent.
(3) If the Court is not satisfied that the accused is capable of making his defence, the Court shall adjourn the trial or enquiry and shall remand such person for a period of not exceeding one month to be detained for observation in some suitable place.
(4) A person detained in accordance with Subsection (3) shall be kept under observation by a medical officer during the period of his remand and before the expiry of that period, the medical officer shall give to the Court, an opinion in writing as to the state of mind of that person, and if he is unable within the period to form any definite opinion shall so certify to the Court and shall ask for a further remand and such further remand may extend to a period of two months.”
321 (1) “If a medical officer reports under Section 320 that the accused person is of sound mind and capable of making his defence, the court shall, unless satisfied that the accused person is of unsound mind, proceed with the inquiry or trial.”
From the above provisions, the emphasis is on the Court to be satisfied about the soundness of mind of the accused person. If it has reason to suspect that he is of unsound mind, then it conducts an investigation, in the first instance. If it finds that he is mentally fit and can make his defence, then it would continue the trial, otherwise, it will make an order for him to be detained in a place, to be observed. It will then adjourn the trial. A medical officer will observe the accused person and give an opinion in writing to the Court, as to whether the accused is mentally fit to stand trial. If he is, the trial will continue if the Court is so satisfied. If the Court is not satisfied with the soundness of the mind of the accused person, then it will not continue with the trial, notwithstanding that the medical report indicates that the accused can stand the trial. The discretion is that of the Court and is guided by a medical report. Per ABUBAKAR DATTI YAHAYA, J.C.A.

RATIO

PLEADINGS: WHERE AN ERROR IS FUNDAMENTAL OR SUBSTANTIAL.

It is however not every error committed by a Court, that results in the decision to be set aside. Where the error is not fundamental or substantial, and has not occasioned miscarriage of justice, the decision would not be set aside. See ADEUSI ADESINA VS. THE PEOPLE OF LAGOS STATE (2019)LPELR – 46403 (SC) per Odili JSC at pages 19-20; BAYOL VS. AHEMBA (1999) 10 NWLR (PT. 623) 381; ALHAJI MUAZU ALI VS. THE STATE (2015) LPELR – 24711 (SC) AT PAGES 24 – 25; FRANK NNAMDI CHIAZOR VS. THE STATE (2018) LPELR – 44831 (CA) AT PAGES 11 – 12 per Adumein JCA where he held that “The law is quite settled that it is not every error committed by a trial Court that will result in its judgment being set aside. To warrant a decision of a trial Court to be set aside, the error committed by the Court must be substantial and it must have occasioned a miscarriage of justice. See TSOKWA MOTORS NIG. LTD. VS. UNITED BANK FOR AFRICA PLC. (2008) 2 NWLR (PT. 1071) 347 AT 376…..” The mere stating that Exhibit B is a confessional statement when it is not is not fundamental and has not occasioned any miscarriage of justice. The point of concern would be to see if there is evidence, apart from Exhibit B, upon which the conviction of the Appellant was grounded or could be sustained. Per ABUBAKAR DATTI YAHAYA, J.C.A.

RATIO

PLEADINGS: AN INCONSISTENCY OR ERROR IN STATING THE DATE OF THE COMMISSION OF THE OFFENCE ON THE CHARGE

The law is that an inconsistency or error in stating the date of the commission of the offence on the charge, if any and in such circumstances as in the present case, is an immaterial or inconsequential error which has no effect on the trial or on the judgment of the trial Court – Awopejo Vs State (2001) 18 NWLR (pt 745) 430, Sheidu Vs State (2010) LPELR 3592(CA), Akeem Vs Federal Republic of Nigeria (2018) LPELR 43892(CA), Uboh vs Federal Republic of Nigeria (2019) LPELR 48739(CA). In Ankpegher Vs State (2018) 11 NWLR (Pt 1631) 484, the Supreme Court made the point thus:
“Notwithstanding the concurrent findings of the two Courts below that the prosecution proved all the three ingredients of the charge against the appellant beyond reasonable doubt, the appellant is still not satisfied. One such area of dissatisfaction has to do with the date of the commission of the offence. Whereas it is stated in the charge that the offence was committed on or about 19th October, 2002, the prosecution witnesses including the confessional statement of the Appellant show that the deceased was killed on 19th May, 2002. For me, I think the resolution of this issue by the Court below cannot be faulted at all. On pages 165-168 of the record, the Court had this to say inter alia;
“The charge alleged that the offence of murder was committed on or about the 19th October, 2002. I wish to note that all the prosecution witness i.e. PW1, PW2, PW3, PW4, PW; and PW6 mentioned the date of the offence as 19/05/2002. The alleged confessional statement also bears the date of 19/05/2002 as date of the commission of the offence of murder. The medical report Exhibit A also disclosed probable date of death of the deceased Kyernum Korve as 19/05/2002. It is therefore an undisputed fact that the date stated on the charge being 19/10/2002 as the date of commission of the offence is at variance with the date the witnesses gave in their testimonies being 19/05/2002 as the date the alleged offence of murder was committed.”
The question is whether the discrepancy as to date has occasioned miscarriage of justice.
As clearly stated in Awopejo’s case (Supra), when the phrase on or about is used in a charge, it is not necessary to prove the precise date the alleged offence was committed. It appears that except where an accused person could show that he was misled, the error regarding the failure of prosecution to state the precise date in the charge will not be fatal to the prosecution’s case… In the instant case, all evidence adduced point to the fact that deceased was killed on 19/05/2002. This includes the alleged confessional statement of the accused/appellant. The error notwithstanding, it appears appellant was not misled and so no miscarriage of justice has occasioned.
…If they had any misgivings about the charge, they ought to have raised an objection immediately after the charge was read to him and not later or now. By virtue of Section 167 of the Criminal Procedure Act, an objection to a charge for any formal defect on the face thereof, must be taken immediately after the charge has been read over to the accused …. And accused person, who acquiesced to an irregular procedure of his trial cannot complain about the irregularity on appeal except and unless it has led to a miscarriage of justice.”
In the instant case, the first, second and third prosecution witnesses, the eye witnesses and the Investigating Police officer respectively, testified that the offence was committed on the 6th of May, 2012. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

SAGIRU ATTAHIRU APPELANT(S)

And

THE STATE RESPONDENT(S)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal has emanated from the Judgment of the High Court of Kano State, delivered on the 28th January, 2014, in CHARGE NO. K/23C/2013, wherein the Appellant, who was the accused person, was convicted of the offence of culpable homicide punishable with death, under Section 221 of the Penal Code. He was sentenced to death.

The facts in brief, as garnered from the record of appeal, show that the Appellant, on or about the 6th of May, 2012, at Gandum Tsamiya Babba, Gezawa Local Government, Kano, hit Mairo Dauda with a pestle on her head and she died instantly. He was arrested, confined and handed over to the police the following day. On conclusion of the investigation, he was charged to the High Court for the offence of culpable homicide, punishable with death. In a bid to prove its case, the prosecution called five witnesses and tendered four exhibits. At the close of the prosecution case, the Appellant gave evidence on his behalf and did not call any other witness. On conclusion of trial, the learned trial Judge convicted the Appellant as charged and sentenced him to death

by hanging. Being dissatisfied, he filed this appeal.

Mr. Funso Adaramola settled the brief of the Appellant which was filed on 11th May, 2018, and in it, distilled four issues out of three grounds of appeal contained in the Amended Notice of Appeal filed on 19th January, 2016 but deemed filed on 3rd May, 2018. The said issues are:-
1. Whether or not the citing of two contradictory dates i.e 6th and 8th of May, 2012 as the date the offence charged was committed by the accused person in the charge sheet is not fatal to the entire proceedings before the lower court. (Distilled from ground 1).
2. Whether the contradictions in both the oral testimonies of the prosecution witnesses and the contradiction in the admitted Exhibits A and B as to the date of the occurrence of the alleged crime is not fundamental, material to warrant the setting aside of the Judgment of the lower court. (Distilled from ground 1).
3. Whether the learned trial Judge was right not to have conducted an investigation into the insanity claim of the Appellant before referring to the medical facility as directed by Section 320(1) of the Criminal Procedure Code and whether she

was right to rely on a document that was not tendered during hearing in reaching her decision to convict and sentence the Appellant. (Distilled from ground 2).
4. Whether the learned trial Judge was right to rely on two different and contradictory statements, treating them both as confessional statements to wit, Exhibits A and B to reach a decision on the mental state of the Appellant and whether such erroneous reliance is not fatal to her holding that the accused’s defence of insanity failed. (Distilled from ground 3).

The Respondent’s brief was settled by S.M. Tahir. It was filed on 16th May, 2019 but deemed filed on the 9th of June, 2020. The two issues distilled therein are:-
1. Whether the weight and quality of evidence adduced at the trial Court can sustain a sentence of death passed on the Appellant.
2. Whether the contradictions (if any) in the prosecution’s case amount to disparagement of the witnesses making it dangerous to convict on them or likely to result in miscarriage of justice.

I find it imperative to look at the issues raised by the Appellant for determination. Issues 1 and 2 are said to have been

distilled from ground 1 of the appeal. Ground 1 of the Amended Notice of Appeal, deemed filed in this Court on the 3rd of May, 2018, reads:-
“The learned trial Judge erred in law and misdirected herself (sic) when she (sic) held that the prosecution had proved its case against the Appellant (accused) beyond reasonable doubt when the charge upon which the accused was arraigned is defective and the entire case of the prosecution was filled with glaring, material and fundamental contradictions.”

So, two issues have been raised from ground 1 of the appeal. The question arises, whether I have jurisdiction to entertain them or not. An issue can only be distilled or arise from one or more grounds of appeal. More than one issue cannot arise from one ground of appeal. When that happens, it is said to amount to proliferation of issues – INOGHA MFA & ANOR VS. MFA INONGHA (2014) LPELR – 22010 (S.C) AND UGO VS. OBIEKWE (1989) 1 NWLR (PT. 99) 566. Here, the Appellant has partaken in the proliferation of issues No. 1 and 2. In MUSA S. OLAIYA VS. BONIFACE OKEKE (2012) LPELR – 19671 (CA), Ogbunya JCA quoted Onu JSC in

AYISA VS. AKANJI (1995) 7 SCNJ 245 AT 253 as stating that:-
“.….issues for determination..… must not be so prolific and proliferate as to be more in number than the grounds on which they are based, I regard the multiple issues submitted..… as being of no avail, they are accordingly discountenanced in my consideration.”
In OKONOBOR VS. D.E.& S.T. CO. LTD. (2010) 17 NWLR (PT. 1221) 181, Onnoghen JSC (as he then was), held:-
“It is settled law that proliferation of issues is unaccepted in our Appellate Courts…..The issues are therefore incompetent and liable to be struck out.”
Coming home on criminal cases specifically, the Supreme Court in AKINYEDE OLAIYA VS. THE STATE(2017) LPELR – 43714 (SC) per Eko JSC held that proliferation of issues is not acceptable and “is not permitted by law.” Similarly, in OLUSOLA ADEYEMI VS. THE STATE (2014) LPELR – 23062, the Supreme Court per Odili JSC held that proliferation of issues:-
“Produces no room for manouvre as the issues so formulated come to naught.” That a proliferated issue is “dead and unusable as the

abnormality is incurable.”
The reason is, not far fetched. In the Appellate Courts, appeals are decided on issues, not on the grounds of appeal, and so the issues cannot outnumber the grounds of appeal upon which they are and ought to be distilled from. So when issues are proliferated, the said issues are to be regarded as non-issues, incompetent and cannot therefore be used to determine the appeal. They are dead on arrival. Issues 1 and 2 in this appeal, having been distilled from ground of appeal no 1, are incompetent and are struck out. NDULUE & ORS. VS. EZUMA & ORS. (2018) LPELR – 44149 (CA); BRITISH AMERICAN TOBACCO PLC VS. A. G. OYO STATE & ORS. (2015) LPELR 41849 (CA) AND NWANKWO VS. YAR’ADUA & ORS. (2010) 12 NWLR (PT.1209) 518.

I raised the proliferation of issues suo motu, without asking counsel to address me on it. This is in order, because a Court is entitled to raise issue suo motu without asking parties to address on it, where they fail to take into consideration, a statute or when it relates to the Court’s own jurisdiction. In BOLA OMINIYI VS. J. ADEGBOYEGA ALABI (2015) LPELR – 24399 (SC)

Kekere-Ekun JSC at page 24 – 25 cited the Supreme Court case of EFFIOM VS. C.R.O.S.I.E.C (2010) 14 NWLR (PT. 1213) 106 AT 133 – 134, per Tabai JSC that raising an issue of facts suo motu by a Court, should attract an opportunity to be afforded the parties to address on it. But that however, in special circumstances, issues of law, or the Court’s own jurisdiction, may be raised suo motu without hearing parties. Again, Bage JSC, in WILLIAM ANGADI VS. P.D.P & ORS. (2018) LPELR – 44375 (SC) AT 30 – 31, in the lead Judgment, followed the earlier decision of the Supreme Court in SUNDAY GBAGBARIGHA VS. ADIKUMO TORUEMI & ANOR (2013) 6 NWLR (PT. 1350) 289 AT 310, where Rhodes-Vivour JSC held that:-
“When a Judge raises an issue on his own motion, or raises an issue not in contemplation of the parties; or an issue not before the Court, the Court is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue…but there is an exception to this procedure. There would

be no need to call on counsel to address the Court on an issue suo motu by the Judge:- 1. When the issue relates to the Court’s own jurisdiction; 2. where both parties are not aware or quoted a statute which may have bearing on the case; or 3. When on the face of the record serious questions of the fairness of the proceedings is evident.” Bage JSC went on to state that “it is my foremost belief that the Court below, in deciding whether it had jurisdiction on the Appeal, needed not to call any of the parties for further address in arriving at a decision.”
So, in deciding whether this Court had jurisdiction to entertain issues numbers 1 and 2, there was no need to call on parties to address on it. The two issues had been clearly stated by counsel to the Appellant to arise from ground 1 of the appeal and so it is not a question of making a finding whether they so arose or not, requiring parties to be heard. Once there is such proliferation of issues, the Supreme Court has laid down the law that they are incompetent and come to “naught”. When such a situation arises therefore, the appellate Court will have no

jurisdiction to entertain such incompetent issues. There is no need for any address by the parties. The Appellant, even if heard on it, cannot validate or make competent, the incompetent issues he proliferated. Consequently, issues 1 and 2 having been proliferated are incompetent and are struck out. Ground 1 of the Amended Notice of Appeal is struck out as no competent issue has been distilled from it.

As a result, I shall consider issues number 3 and 4 identified by the Appellant in resolving this appeal.

ISSUE NO. 3
Whether the learned trial Judge was right not to have conducted an investigation into the sanity claim of the Appellant before referring to the medical facility as directed by Section 320(1) of the Criminal Procedure Code, and whether he was right to rely on a document that was not tendered during hearing, in reaching his decision to convict and sentence the Appellant.

Learned counsel for the Appellant referred to Sections 320(1) and (2) of the Criminal Procedure Code (CPC) and submitted that where the sanity of an accused person is in doubt, the Court must, as a mandatory requirement, conduct an investigation. He emphasized

that the use of the word “shall”, makes it mandatory ODUSOTE VS. ODUSOTE (2013) ALL FWLR (PT. 668) 867 AT 882 AND UGBA VS. SUSWAM (2013) ALL FWLR 268 AT 290. Counsel argued that since the trial Judge did not conduct the investigation, the entire process is vitiated.

Learned counsel for the Appellant also placed reliance on Section 320(4) of the CPC to submit that the trial Court handled the medical report from the psychiatric hospital erroneously and not in consonance with the said provision because the medical report was given to the Deputy Controller of Prisons via a letter written by the doctor who examined the accused person. It was the Deputy Controller of Prisons who then wrote to the Court, forwarding the medical report. Counsel argued that the Deputy Controller had no role to play therein, as it is the medical officer who is to give his report in writing to the Court, and not to post it, deliver by a dispatch rider or transmit same through the Deputy Controller of Prisons. Counsel argued that the letters from the prison and the hospital, do not form part of the record of the trial Court as they were not admitted in evidence as

exhibits and counsel could therefore not cross-examine the medical officer on the document. He argued that it was therefore erroneous for the trial Court to rely on the said report to confirm the mental state of the accused person to the effect that he was fit to stand trial. He relied on OKONKWO V. STATE (1998) NWLR (PT. 561) 258.

It was the submission of counsel also, that there is nowhere in the judgment of the trial Court where the nature of the killing, the conduct of the accused person before, at and immediately after the killing was reviewed and considered before the trial judge concluded that the accused person was fit enough to stand trial. That the trial Court simply and erroneously based its conclusion on the medical report that was improperly smuggled into the proceedings and the contents of Exhibits A and B which contradict each other. Counsel concluded by submitting that the letter of the Deputy-Controller of Prison at page 53 of the record and the medical report from the psychiatric hospital at page 54 of the record, are smuggled documents that have no probative value and should not have been relied upon in reaching the conclusion that the

accused person was mentally fit to stand trial. He urged us to resolve this issue in favour of the Appellant.

In his reply, learned counsel for the Respondent submitted that the Appellant did not at his trial, plead or adduce any evidence of insanity. That is was only the Appellant’s counsel who applied on 17th July, 2013, after the prosecution had closed its case, for the Appellant to be taken to a psychiatric hospital for mental fitness, before he entered his defence and the court granted it (page 16 of the record). That the Appellant was examined and a report brought to the Court on 29th October, 2013, read in open Court and in the presence of counsel, showing that the Appellant was fit to stand trial. The counsel for the Appellant thereupon prayed for a date for defence.

person if the Court is satisfied that owing to the state of the accused’s mind, it would be in the interest of the accused or of other persons or in the interest of public decency that he should be absent.
(3) If the Court is not satisfied that the accused is capable of making his defence, the Court shall adjourn the trial or enquiry and shall remand such person for a period of not exceeding one month to be detained for observation in some suitable place.
(4) A person detained in accordance with Subsection (3) shall be kept under observation by a medical officer during the period of his remand and before the expiry of that period, the medical officer shall give to the Court, an opinion in writing as to the state of mind of that person, and if he is unable within the period to form any definite opinion shall so certify to the Court and shall ask for a further remand and such further remand may extend to a period of two months.”
321 (1) “If a medical officer reports under Section 320 that the accused person is of sound mind and capable of making his defence, the court shall, unless satisfied that the accused person is of unsound

mind, proceed with the inquiry or trial.”
From the above provisions, the emphasis is on the Court to be satisfied about the soundness of mind of the accused person. If it has reason to suspect that he is of unsound mind, then it conducts an investigation, in the first instance. If it finds that he is mentally fit and can make his defence, then it would continue the trial, otherwise, it will make an order for him to be detained in a place, to be observed. It will then adjourn the trial. A medical officer will observe the accused person and give an opinion in writing to the Court, as to whether the accused is mentally fit to stand trial. If he is, the trial will continue if the Court is so satisfied. If the Court is not satisfied with the soundness of the mind of the accused person, then it will not continue with the trial, notwithstanding that the medical report indicates that the accused can stand the trial. The discretion is that of the Court and is guided by a medical report.
In the instant appeal, there is nothing in the record showing that the trial Court suspected or had any reason to suspect that the Appellant was of unsound mind, let

alone, have cause to conduct any investigation in that vein. So Section 320(1) of the CPC does not apply at all, in the given circumstances. After all, the Appellant took his plea when the trial commenced, and sat through the trial where all the prosecution witnesses gave evidence, without any record of behavior for the Court to have reasons to suspect that he was of unsound mind. If he had exhibited any outward behavior, some reasons may have existed. He did not. Again, PW1 gave evidence in the presence of the Appellant and testified that the Appellant was calm when he was arrested. That evidence could not give the trial Judge any reason to suspect the accused to be of unsound mind, warranting an investigation. On the contrary, it could give reason to believe the Appellant was of sound mind. PW2 is the father of the Appellant and he gave evidence. Under cross-examination, he stated that he knew the character of his son who had never done such a thing and was surprised at his action, clearly showing that there was no history of mental disorder or of unsoundness of mind. This evidence could not elicit any suspicion on the mind of the trial Judge, reasonably,

that the Appellant was of unsound mind. There is also Exhibit B which was tendered in Court, which on its face, shows that the Appellant was not taking anything apart from cigarettes and that he does not have mental problem. The trial Judge was privy to the Exhibit during trial and so the Court could not have had any reason to suspect that the Appellant was of unsound mind and incapable of making his defence, to warrant an investigation thereupon. On the contrary, everything that happened so far, before the application made by the counsel to the Appellant for reference to a psychiatric hospital, gave clear indication to the Court, that the Appellant was in a sound mental health and capable of making his defence. In that wise therefore, Section 320(1) of the CPC did not at all apply and could not be invoked. There was no reason on the record, for the Court to suspect the unsoundness of mind of the Appellant and so there was not and there could not have been any investigation to be conducted by the trial Judge as erroneously submitted by counsel for the Appellant.
As stated earlier, it was after the prosecution had closed its case, that counsel for the

Appellant applied for the Appellant to be referred to a psychiatric hospital for medical examination as “it looks as if he has mental problem”, page 16 of the record. It is not for counsel to have reason to suspect that the accused person was of unsound mind. At any rate what “mental problem”? Was it a mental problem before the deed or was it a mental problem making him incapable of entering into his defence? The counsel did not elaborate. It was for the court to have a reason to suspect the mental capacity of the Appellant in entering his defence. There was nothing before the Court to give it a reason to suspect any unsoundness of mind on the part of the Appellant. As shown, even the reason given for the application by counsel for the Appellant, was not detailed or specific enough. It also was not based on what the trial Court was privy to. So the trial Court did not even have to accede to the request of counsel. Yet the Court acceded, and granted the Application made by the counsel for reference to psychiatric hospital for evaluation. He did not pray the Court to investigate it in the first place and the requirements under

Section 320(1) of the CPC had not been met. The trial Judge therefore, could not have been faulted or be charged for violating the requirements in Section 320(1) of the CPC requiring it to investigate. Therefore all the arguments proffered by counsel for the Appellant in that regard, have been on a wrong premise and do not avail him.
The trial Court ordered the Appellant to be referred to a medical officer. The request was to the Prison Authorities that had custody of the Appellant. The Deputy-Comptroller of Prison complied and a medical officer observed the Appellant and wrote a report. The report was infact given to the Court in writing, though it was given to it by the agency of the Deputy Comptroller of Prisons; Section 320(4) of the CPC says that the medical officer who observed the Appellant “shall give to the Court his opinion in writing as to the state of mind of that person.” Nothing in Section 320(4) CPC says that the report is to be tendered at the trial. It is for the Court to look at the report and reach its conclusion. If it agrees with the medical report that the Appellant is of sound mind, it proceeds with the trial. But if it is

satisfied that the Appellant is of unsound mind, even though the medical report shows him to be of sound mind, it can override the report and not proceed with the trial. All these show that neither the prosecution nor the defence has a mandatory role to play in the Court reaching a conclusion or being satisfied one way or another. The issue of cross-examining the medical officer as a right by the defence or the prosecution, does not therefore arise. So no right has been breached at all and there could therefore have been no miscarriage of justice. The medical report had been “given” to the Court. It was of no consequence, that it was through the Deputy-Controller of Prisons. The record shows that when the report was given to the Court, the trial Judge read it and none of the counsel challenged or raised any objection to the mode of receiving the report or to its contents. Nothing stopped counsel for the Appellant to raise any issue regarding the report. Again, nothing stopped him to subpoene the medical officer to appear in Court to be examined on it. The counsel for the Appellant heard the report and made an application for adjournment in order

for the Appellant to enter his defence, showing that he was satisfied with the report. It does not therefore lie in his mouth to now raise a complaint on it. It is spurious.
Counsel for the Appellant has submitted that “there is no wherein (sic) the judgment of the lower Court that the nature of the killing, the conduct of the accused before, at and immediately after the killing was reviewed and considered before the learned trial Judge concluded that the accused was sane enough to stand trial.” I think there is a problem with this submission. A decision or conclusion that an accused person is fit to stand trial is not to be in the judgment of the Court. The decision is to be reached during trial for the purpose of finding whether the accused person is fit enough to stand trial or enter into his defence. This decision must perforce, come before the judgment and that is what happened here. I should point out that unsoundness of mind to stand trial is not synonymous with a defence of insanity at the time of committing the offence. An accused person may be sane at the time of committing an offence but may not be of sound mind to stand trial later

because of a supervening event. On the other hand, an accused may be sane enough to stand trial, but may successfully raise a defence of insanity at the time of committing the offence. Let us not confuse the two.

Again, counsel for the Appellant has criticized the trial Judge for “the contents of Exhibits A and B which it referred to as confessional statements inspite of glaring fact that both exhibits are mutually exclusive and contradict each other”. It is out of place to bring in the contents of Exhibits A and B into an issue as to whether the Appellant was sane enough to stand trial or not. This is because the trial Judge did not at all consider or even refer to the contents of Exhibits A and B in reaching a conclusion that the Appellant was mentally fit to stand trial. The submission is therefore discountenanced. However, Exhibits A and B regarding proof of the offence, would be considered in resolving issue No. 4.

Issue No. 3 is thus resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 4
Whether the learned trial Judge was right to rely on two different and contradictory statements, treating them both

as confessional statements to wit, Exhibits A and B to reach a decision on the mental state of the Appellant and whether such erroneous reliance is not fatal to his holding that the accused’s defence of insanity failed.

In arguing this issue, learned counsel for the Appellant referred to page 87 of the record where the trial Judge referred to Exhibits A and B to both be confessional statements of the Appellant. He argued that this cannot be. That although Exhibit A dated 8th May, 2012 admittedly “was direct and definitive of the alleged actions of the accused person”, Exhibit B denied knowledge of the act attributed to him. He submitted that Exhibit B contradicted Exhibit A and should not have been relied upon. He referred to OKONKWO VS. STATE (SUPRA) to submit that where the previous statement of a “witness” and his evidence in Court are clearly conflicting, the proper thing for the Court to do, is to disregard both and not place any probative value on them. Counsel argued that the trial Court failed to be so guided when the evidence of the accused completely contradicted Exhibit A, and used it to convict him. DOGO VS. STATE

(2013) ALL FWLR (PT. 686) 524 AT 538 – 539. He argued that the trial Court was wrong in law to do so and reasonable and cogent doubt had been raised about the fairness of the Court in treating the Appellant. He urged us to resolve the issue in favour of the Appellant.

On his part, learned counsel for the Respondent, enumerated the ingredients of the offence of culpable homicide punishable with death and submitted that the prosecution had established them. He referred to the evidence of the prosecution witnesses and the confessional statement of the Appellant which he said, is a strong evidence against him since it was positive, direct, unequivocal, free and voluntary. He urged us to so hold.

It is clear and I agree with learned counsel for the Appellant, that Exhibit B is not a confessional statement and should not have been regarded as such by the trial Court. It is however not every error committed by a Court, that results in the decision to be set aside. Where the error is not fundamental or substantial, and has not occasioned miscarriage of justice, the decision would not be set aside. See ADEUSI ADESINA VS. THE PEOPLE OF LAGOS STATE (2019)

LPELR – 46403 (SC) per Odili JSC at pages 19-20; BAYOL VS. AHEMBA (1999) 10 NWLR (PT. 623) 381; ALHAJI MUAZU ALI VS. THE STATE (2015) LPELR – 24711 (SC) AT PAGES 24 – 25; FRANK NNAMDI CHIAZOR VS. THE STATE (2018) LPELR – 44831 (CA) AT PAGES 11 – 12 per Adumein JCA where he held that “The law is quite settled that it is not every error committed by a trial Court that will result in its judgment being set aside. To warrant a decision of a trial Court to be set aside, the error committed by the Court must be substantial and it must have occasioned a miscarriage of justice. See TSOKWA MOTORS NIG. LTD. VS. UNITED BANK FOR AFRICA PLC. (2008) 2 NWLR (PT. 1071) 347 AT 376…..” The mere stating that Exhibit B is a confessional statement when it is not is not fundamental and has not occasioned any miscarriage of justice. The point of concern would be to see if there is evidence, apart from Exhibit B, upon which the conviction of the Appellant was grounded or could be sustained.

The trial Court in its judgment at page 84 of the record, correctly enumerated the ingredients of the offence for which the Appellant was

charged, as follows:-
a. that the deceased had died,
b. that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm would be the probable consequence of the act.

The trial Judge then considered the evidence led and held that the prosecution had discharged its burden of proving the offence and therefore convicted and sentenced the Appellant.

The evidence of PW1, the brother of the Appellant is very clear, direct and fundamental. He testified that he saw the Appellant holding a pestle on the fateful night, approaching Mairo, the deceased person. PW1 pursued the Appellant but before he could reach him, the Appellant used the pestle he was holding and hit the deceased with it on her head. She bled and died instantly. He reiterated his evidence when he was crossed examined. His evidence alone, is enough to establish the 1st and 2nd ingredients of the offence that Mairo (the deceased) had died and it was the Appellant that caused her death. As for the 3rd ingredient of the offence, a sane and reasonable person is presumed to know the consequences of his act. Every

reasonable person knows and should know, that hitting a person on the head with such a heavy object as a pestle, will be catastrophic and fatal. The Appellant did not hit her legs or hands. He hit the most vulnerable part of a human being, the head. He did so with a pestle! He pursued her when there was shouting until he reached her and hit her with it, showing a very determined and calculated act. He acted deliberately in a wicked manner. He acted with a clear intention of killing her or causing her grievous bodily injury that would probably result in her death. The third ingredient had thus also been proved by the prosecution. The evidence of PW1 alone is sufficient to convict the Appellant of the offence he was charged with. In addition, PW2 gave evidence and said he saw the Appellant with a pestle and he saw the victim he killed, thus corroborating the testimony of the PW1. The trial Judge believed them as they had not been impeached under cross-examination. Their evidence had established the guilt of the Appellant. Therefore, Exhibit A, which is even a confessional statement of the Appellant as to his guilt, is not strictly necessary. Without Exhibit A,

there is admissible and cogent evidence, establishing the guilt of the Appellant. So whether the trial Court relied upon it or not, there was evidence upon which the Appellant was guilty as sin. So the mere fact of giving Exhibit B the appellation of a confessional statement when it is not, is immaterial and of no relevant consequence. It is a minor discrepancy and not fatal. Again, the fact that Exhibit A and B do not tally or have “contradicted” each other is of no moment since both of them, are not the only evidence led before the court, that had established the guilt of the Appellant. Even if they are both discountenanced, there is other evidence establishing the guilt of the Appellant.

Furthermore, as the trial Court found, the Appellant did not lead evidence to establish insanity. The Court found him sane at the time of committing the offence and that finding has not been challenged or impeached.

Again, the Appellant was charged for committing the offence of culpable homicide punishable with death. “on or about 6th day of May, 2012 at Gandun Tsamiya Babba, Gezawa Local Government Area Kano.” The evidence of PW1 and PW2 is

that the Appellant committed the offence on 6th May, 2012. It is upon their evidence that the Appellant was found guilty. Therefore it is only hot air, to refer to the summary of evidence at page 3, to complain about the fact that the prosecution said it would adduce evidence to show that the Appellant committed the offence “on, or about 8th day of May, 2012.” The summary of evidence, is not the evidence upon which the Appellant was convicted of the offence. It was only meant to give the Court and the Appellant, a brief of what was to be adduced. If that was not adduced, there can’t be any complain. It is instructive, that although the prosecution applied to adopt the summary of evidence (page 6 of the record), there is no record showing that the application was granted. So what is the problem?

Issue No. 4 is resolved in favour of the Respondent and against the Appellant.

This appeal consequently lacks merit in its entirety and it is dismissed. I affirm the Judgment of the trial Court delivered by Hon. Justice Tani Yusuf Hassan in CHARGE NO. K/23C/2013 on 28th January, 2014.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein. I only wish to Comment on an aspect of the case.

Counsel to the Appellant complained of an alleged contradiction between the date stated on the charge sheet as the date of commission of the offence charged and the date stated in the summary of the evidence attached to the charge sheet as the date of commission of the offence. Counsel stated that while the charge sheet stated that the offence was committed on or about the 6th of May, 2012, the summary of the evidence stated that it was committed on or about the 8th of May, 2012. Counsel also complained that while the first, second and third prosecution witnesses testified that the offence was committed on the 6th of May, 2012, the confessional statement of the Appellant tendered as Exhibit A stated that the offence was committed on the 8th of May, 2012 and the fourth prosecution witness, the Medical Doctor

who examined the corpse of the deceased, testified that the corpse was brought to him on the 7th of May, 2012. Counsel stated that these contradictions in the dates occasioned a miscarriage of justice which justifies the setting aside of the judgment of the lower Court.

offence. Whereas it is stated in the charge that the offence was committed on or about 19th October, 2002, the prosecution witnesses including the confessional statement of the Appellant show that the deceased was killed on 19th May, 2002. For me, I think the resolution of this issue by the Court below cannot be faulted at all. On pages 165-168 of the record, the Court had this to say inter alia;
“The charge alleged that the offence of murder was committed on or about the 19th October, 2002. I wish to note that all the prosecution witness i.e. PW1, PW2, PW3, PW4, PW; and PW6 mentioned the date of the offence as 19/05/2002. The alleged confessional statement also bears the date of 19/05/2002 as date of the commission of the offence of murder. The medical report Exhibit A also disclosed probable date of death of the deceased Kyernum Korve as 19/05/2002. It is therefore an undisputed fact that the date stated on the charge being 19/10/2002 as the date of commission of the offence is at variance with the date the witnesses gave in their testimonies being 19/05/2002 as the date the alleged offence of murder was committed.”
The question is whether

the discrepancy as to date has occasioned miscarriage of justice.
As clearly stated in Awopejo’s case (Supra), when the phrase on or about is used in a charge, it is not necessary to prove the precise date the alleged offence was committed. It appears that except where an accused person could show that he was misled, the error regarding the failure of prosecution to state the precise date in the charge will not be fatal to the prosecution’s case… In the instant case, all evidence adduced point to the fact that deceased was killed on 19/05/2002. This includes the alleged confessional statement of the accused/appellant. The error notwithstanding, it appears appellant was not misled and so no miscarriage of justice has occasioned.
…If they had any misgivings about the charge, they ought to have raised an objection immediately after the charge was read to him and not later or now. By virtue of Section 167 of the Criminal Procedure Act, an objection to a charge for any formal defect on the face thereof, must be taken immediately after the charge has been read over to the accused …. And accused person, who acquiesced to an irregular procedure of his trial cannot

complain about the irregularity on appeal except and unless it has led to a miscarriage of justice.”
In the instant case, the first, second and third prosecution witnesses, the eye witnesses and the Investigating Police officer respectively, testified that the offence was committed on the 6th of May, 2012. It was not the case of the Appellant that he was misled as to the charge against him and/or that he did not understand the charge simply because the summary of evidence and his confessional statement, Exhibit A, stated that the offence was committed on the 8th of May, 2012. The entire agitation of Counsel to the Appellant over the alleged contradiction in the dates of commission of the offence is thus baseless.

The appeal is lacking in merit and I agree that it should be dismissed. I too hereby dismiss the appeal and affirm the judgment of the High Court of Kano State delivered in Suit NO. K/23C/2013 by Honorable Justice Tani Yusuf Hassan on the 28th of January, 2014, along with the conviction of, and sentence passed on the Appellant.

AMINA AUDI WAMBAI, J.C.A.: I had a preview of the leading judgment of my learned brother

ABUBAKAR D. YAHAYA, JCA with who I am in agreement that there is no merit in this appeal. The learned trial judge properly evaluated the evidence before the Court and rightly came to the conclusion that the Appellant was of a sound mind and mentally fit and capable of standing his trial. Also his conclusion that the prosecution (Respondent) proved the case of culpable homicide punishable with death against the Appellant is eminently supported by the unchallenged eye witnesses evidence on record.

In this wise, the appeal is bereft of any merit. There is thus no reason to fault the conviction and sentence of the Appellant by the lower Court. I therefore dismiss the appeal and affirm the judgment of the trial Court delivered on 28/01/2014 by Hon. Justice Tani Yusuf Hassan.

Appearances:

Saleh Mohammed Tirmizi, Esq., with him, Abubakar Salisu Mohamed, Esq., and Emmanuel Audu
For Appellant(s)

Salisu M. Tahir (CSC) with him, Mukhtar Salihi (PSC) Ministry of Justice, Kano State For Respondent(s)