BUSARI TAIWO v. THE STATE (2019)

BUSARI TAIWO v. THE STATE

(2019)LCN/12920(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of March, 2019

CA/EK/34C/2017

RATIO

CRIMINAL LAW: INGREDIENTS OF MURDER

“It is trite that for the prosecution to succeed in a murder charge, prosecution must prove beyond reasonable doubt:
1. The death of a human being
2. That it was caused by the act of the accused
3. That the act or acts were done with the intention of causing death
4. The accused knew that death would be a probable consequence of his action.
See Omini v. State (1999) 12 NWLR (Pt 630) 168, Edoho v. State (Supra); Uwagboe v. State (2008) 12 NWLR (Pt.102) 621 S.C.” PER FATIMA OMORO AKINBAMI, J.C.A.

CRIMINAL LAW: PRESUMPTION OF AN ACCUSED PERSON

“It is a constitutional and statutory requirement encapsulated in Section 36(5) of the 1999 Constitution of FRN as amended and Section 135 (1) of the Evidence Act, 2011 as also judicially engraved in a plethoral of decisions like Ani vs. State (2009) 16 NWLR (Pt 1168) 443. The State vs. Nnolim & Anon (1994) 5 NWLR (Pt 345) 394, (also reported in (1994) 6 SCNJ 48), that a person accused of a criminal offence is presumed to be innocent until his guilt is proved beyond reasonable doubt by the prosecution.” PER FATIMA OMORO AKINBAMI, J.C.A.

CRIMINAL LAW: DEFENCE OF INSANITY

“In prosecuting the defence of insanity, the onus shifts on the defence to prove insanity since there is a presumption that every person is of a sound mind until otherwise proven. See Section 27 of the Criminal Code. This burden of proof required is on the balance of probability and not beyond reasonable doubt. See Ndu v. State (1990) 7 NWLR (Pt. 164) 550.

Requirements to rebut the presumption of insanity have been held to include the following;
?1. Evidence of medical doctors or psychiatrists who examined the accused person
2. Evidence of past history of the accused
3. Evidence of the accused person?s conduct immediately before and after the act
4. Evidence of the relatives about the general behavior of the accused person
5. Evidence of persons in the community about the accused person?s reputation for sanity or insanity in the neighborhood.
6. Evidence of prison warders who had custody of the accused person, who looked after him during the trial.

See Oladele v State (Supra), Adamu v State (Supra), Onyekwe v State (1988) 1 NWLR (Pt.72) 565 at 579, Udofia v State (1988) 11-12 S.C (Reprint) 33, Anyanwu v State (2012) 16 NWLR (Pt.1326) 221 C.A.”PER FATIMA OMORO AKINBAMI, J.C.A.

JUSTICES

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

BUSARI TAIWO Appellant(s)

AND

THE STATE Respondent(s)

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the judgment of the High Court of Ekiti State delivered by Hon. Justice E. B Omotosho on 20/2/2017, wherein His Lordship convicted the Appellant for murder but he acquitted him of the offence charged, on the ground of unsoundness of mind at the time at which he committed the act.

The Appellant was arraigned before the trial Court on information containing two count charge to wit:

Count 1

STATEMENT OF OFFENCE

MURDER, contrary to Section 316 (2) and punishable under Section 319 of the Criminal Code Law, Laws of Ekiti State of Nigeria, 2012.

PARTICULARS OF OFFENCE

BUSARI TAIWO, on or about the 21st day of October, 2015 at Ado-Ekiti, in Ado Judicial Division murdered one Aina Ogunlade.

Count 2

STATEMENT OF OFFENCE

ATTEMPTED MURDER, contrary to Section 320 of the Criminal Code Law, Laws of Ekiti State of Nigeria, 2012.

PARTICULARS OF OFFENCE

BUSARY TAIWO, on or about the 21st day of October, 2015 at Ado-Ekiti , in Ado Judicial Division attempted to kill Felicia Ogunlade.

The Appellant pleaded not guilty to the two count charge.

Evidence was led at trial by both parties. To prove its case, the Prosecution called three witnesses, the Appellant called one witness in his own defence but gave no evidence.

The PW1, Samuel Ogunlade, of No 12, Waterworks Road, Ado- Ekiti is a driver by profession. He claimed to know Aina Ogunlade and Felicia Ogunlade. According to him, Aina Ogunlade is his mother. Both Aina Ogunlade and Felicia are deceased. He stated that on 20th of October, 2015 he was in his office at Tosin Aluko Motor Park when he received a phone call from his younger brother, asking him to come home with his vehicle. That on getting home, he met Aina Ogunlade and Felicia Ogunlade in the pool of their own blood. Upon inquiry, he was informed that it was the Appellant that hit them with a wooden stick on their heads. He stated further, that he rushed them to the hospital, with Aina Ogunlade?s head already broken, whilst that of Felicia Ogunlade had swollen up. Unfortunately Aina Ogunlade died that same day. Felicia Ogunlade died on 13th of March, 2016. That he immediately lodged a complaint at Odo-Ado

Police Station where policemen were detailed to follow him to the scene of crime.

However, the Police first called at the hospital, before heading to the scene of crime. PW1 further stated that he got to know that it was the defendant that hit the duo with wooden stick from his neighbors. He specifically mentioned the names of Comrade and one Janet Odeyemi Bamgbose as his informants.

PW2, Janet Bamgbose of 72 ldemo Street Ado- Ekiti is a petty trader. She claimed to know Madam Aina Ogunlade and Felicia Ogunlade who are deceased. She stated that on the 20th of October, 2015 when her child went to her in the toilet, and asked her to go and see the Appellant. That as she was about approaching the Appellant he locked up the door and she had to run back. She went to Appellants? father at Atikankan and asked him to come and see the Appellant who was already naked. That by the time, she returned home, she met the defendant holding a wooden stick, she could not move close to him. She rushed back to the Appellant?s father?s place. By the time she returned to the scene of crime, she met the two victims on the floor in their pool of blood.

PW2 testified further that they took the victims to the hospital. Aina Ogunlade gave up the ghost that night, whilst Felicia Ogunlade did not fully recover before she died. PW2 stated further that by the time they returned home from the hospital, the Appellant had run away, but was apprehended three days after the incident.

PW3- Inspector Whesu Felix the investigating police officer attached to the Homicide Section State CID. He claimed to know the alleged victims of the incident. That it was in the Court room that he learnt of the demise of Felicia Ogunlade. He stated further that he obtained the Statement of the witnesses, and that of the Appellant under caution. That after obtaining the Statements he led his team to the Ekiti State University Teaching Hospital where they met Felicia Ogunlade at the emergency ward receiving medical treatment, but they were unable to obtain her statement because of her condition. From there they proceeded to the Mortuary, where they saw the corpse of Aina Ogunlade. He stated that he obtained, and filled the coroner?s request form, but the complainant, and his relations objected to the post mortem examination to be carried out on their mother. PW3, identified the Statement obtained from the Appellant, and same was admitted in evidence and marked as Exhibit ?A?. Under cross examination PW3, stated that he took steps to investigate the mental state of the defendant by inviting his father, Alabama Busari, but the latter informed him that nothing of such happened to the Appellant before.
The Prosecution closed its case.

In his defence, the Appellant did not give evidence, he however called his father Alaba Busari Fasuba to give evidence as DW1. In his evidence DW1, claimed to be the father of the Appellant. He gave evidence that the Appellant was born on 17th November, 1997. He stated that in 2013, he observed that the Appellant was becoming mentally unstable consequent upon which he took him to a herbalist home at Odo-Ado, where he was receiving treatment.

At the conclusion of the trial, the Learned Trial found that the Appellant committed the offence of murder of Aina Ogunlade, but he acquitted him of the offence charged on the ground of unsoundness of mind at the time he committed the act.

Being dissatisfied with the said judgment, the Appellant instituted this appeal. His Notice of Appeal was dated 29th March, 2017, but was filed on 20th April, 2017.

The Appellant?s Brief of Argument was settled by Gboyega Oyewole Esq., on 23/6/17, Respondent?s Brief was settled by Gbemiga Adaramola Esq. Director Public Prosecution, Ministry of Justice, Ekiti State, on 13/3/2018 but deemed properly filed and served on 5/11/18.

These Briefs were respectively adopted by Gboyega Oyewole Esq., learned counsel for the Appellant and by Gbemiga Adaramola Esq. the learned D.P.P on the 26/2/19.

From the five grounds of Appeal, the Appellant distilled three issues for determination as follows:

(1) WHETHER, in the absence of medical evidence the lower Court was right to convict the Appellant for murder having regard to the fact that cause of death is not established by the totality of evidence adduced by the Respondent before the lower Court. (Grounds 1, 2, and 3).

(2) WHETHER the Respondent has discharged the onus of proof required by Section 135(1) of the Evidence Act to prove the guilt of the Appellant. (Grounds 1, 2, and 4)

(3) WHETHER the Court can suo moto consider the defence of insanity having regard to the fact that the guilt of the Appellant was not established. (Ground 5).

The Respondent in the Brief of Argument distilled two issues for determination as follows:-

(1) WHETHER the Respondent proved its case beyond reasonable doubt by pointing at the Appellant and no other person for the murder of Madam Aina Ogunlade and attempted murder of Madam Felicia Ogunlade. (Grounds 1, 2, 3, and 4).

(2) WHETHER the Learned trial judge was not right in holding that the Appellant was insane when he committed the offences of murder and attempted murder, justifying the order that the Appellant be kept in prison custody as a criminal lunatic pending the Governor’s pleasure. (Ground 5).

I have carefully studied the issues submitted for determination by the parties, they somehow overlap. I prefer Respondent’s issues. I will determine this appeal on Respondent’s issues.

The Appellant?s counsel on their issue 1 submitted that the Appellant?s conviction for the offence of murder must be founded on facts that prove the cause of death. That cause of death is established by placing evidence, before the Court to show a substantial connection between an act or omission of an Accused person, in relation to the victim and the death of the victim as the resultant effect of such act of the Accused person. The Respondent at the lower Court called three witnesses i.e. PW1, PW2, PW3. The Respondent also tendered Exhibit A. Appellant?s counsel argued that the conviction of the Appellant cannot be grounded on the testimony of PW1, PW2, and PW3 as well as the purported confessional statement of the Appellant alone. He cited the cases of Uwa v State (2015)4 NWLR (1454) 438 @462-463: Dele v State (2011) 1 NWLR (Part 1229) 508 @542-543, para G-C.

It was reiterated by Appellant?s counsel that it is pertinent to state that medical evidence is crucial and indispensable to ascertain the cause of death in the instant case. He cited the case of Obi v State (2013) 5 NWLR(PT 1346) page 68 @85 para G 86 PARA C: Ali v State (2015) 10 NWLR (1466) 1 @38 para D-E.

The D.P.P in his reply submitted that this Court and other Courts of records, have not changed from the factors to be considered in order to sustain a charge of murder under the Criminal Code Law.

He enumerated the factors.

To reinforce the first factor he referred to the testimony of PW1 – Samuel Ogunlade on 14/11/2016 wherein he stated as follows :

On getting home I met my mother, Felicia Ogunlade and my sister Cecilia Ogunlade in their pool of blood. I asked them what happened. They said that it was the Defendant that hit them with a wooden stick on their heads. I took both of them inside my car. Aina Ogunlade?s head was already broken whilst Felicia Ogunlades?s head had swelled up. I took both of them to the Hospital where they were receiving treatment. Aina Ogunlade died on the same day.?

Respondent?s counsel further established the fact as given by PW3, that the Appellant admitted through Exhibit A, that he hit the deceased with a wooden stick on the head:

I hit the two woman Aina Ogunlade (f) and Felicia Ogunlade (f). I was later told that Aina Ogunlade ?F? HAVE DIED. I was also told that the second woman Felicia Ogunlade…in the hospital bed.

The D.P.P submitted that where the death of the deceased was instantaneous or almost immediately after the attack, the medical report is needless. He cited the cases of OPARA V STATE (1998) 2 NWLR (PT.536) 108@117-118: ONWUMERE V THE STATE (1991) 4 NWLR (PT.186) 428@ 448: AKPUENYA V STATE (1976) 11 SC 269.

The testimony of PW2, was referred to by the D.P.P wherein PW2, stated that when she returned home, the stick in his (Appellant?s) hand could not allow her to move near him. That when she went back and came to the house, she saw the two women in the pool of their blood. Under cross- examination PW2, maintained that she saw the Appellant holding a stick in his hand. Therefore there was no controversy or denial of the fact that the injury from the attack with the stick led to excessive loss of blood and consequently immediate death of Madam Aina Ogunlade.

The D.P.P submitted that in juxtaposing the testimony of the PW2, and Exhibit A that it is a well settled law that the guilt of an accused person can be proved by any of the following ways:
A. The confessional statement of the accused:
B. Circumstantial evidence; and
C. Evidence of eye witness of the crime. See: LORI V STATE (1980) 8-11 SC 81; and Maigari v State (2010) All FWLR (PT 546) 405 @427.

The D.P.P further submitted that on the strength of the evidence of the PW2 (i.e Eye witness) and Exhibit A (i.e confessional statement) that the wooden stick which the Appellant was holding was the lethal weapon used in killing the Deceased. The Appellant had admitted that it was the stick he was holding that he used to hit the two old women. The same woman that the PW2, saw in the pool of blood i.e. Madam Aina Ogunlade later died the same day. The same woman that the PW3, saw at the mortuary, while he led his team on investigation. The PW2, clearly saw the Appellant naked and holding the stick but because of his wild behavior, she reasonably ran away for assistance. The Appellant admitted in Exhibit A, that it was the stick he used to hit the two old women. The D.P.P submitted that it was the act or omission of the Appellant that caused the death of the Deceased.

It was clearly pointed out by D. P. P that the case of lshola v State (2007) 5 ACLR PAGE 437 @ 458 is instructive on the argument on issue of looking for intention, act, malice, motive etc. which are not excusable under Section 316 of the Criminal Code Law.

It was further reiterated by D.P.P that the unassailable evidence inundated in the Record of Appeal through the Prosecution witnesses, Exhibit A and the admission of the Defence witness both in examination-in-chief and under cross-examination, they all go to conclude that it was the act of the Appellant and nobody else that caused the death of the Deceased.

D.P.P further submitted that on the strength of the here-fore stated, that what is important and relevant in our criminal law is the act of the Appellant which is unlawful. And that it is no longer necessary for the Court to look for Common Law ingredient of mens rea. See the Supreme Court case of Nwali v State (1991) 3NWLR (PT.182) 662@674 PARA F-G. He urged the Court to hold that the Respondent has proved beyond reasonable doubt that Madam Aina Ogunlade died, and that it was the act of the Appellant that was the remote cause of the death of the Deceased. See the case of Oforlete v State (2000) 12 NWLR (PT 681)415 @430.

ISSUE 2

WHETHER the Learned Trial Judge was not right in holding that the Appellant was insane when he committed the offences of murder and attempted murder justifying the order that the Appellant be kept in prison custody as a criminal lunatic pending the Governor’s pleasure.

The Appellant’s counsel on this issue submitted that the defence of insanity is available to a defendant charged with murder, but same is subject to the ability to discharge the burden of proof stipulated in Section 27 of the Evidence Act . By Section 27 of the Evidence Act, a person is presumed to be sane or sound until otherwise proven.

A defendant seeking to take benefit of the defence provided for in Section 27 must of necessity plead same. In a converse situation, the Court is allowed to suo moto consider from the facts presented to it any defence that may be available to the Defendant. The rationale for this is to ensure that substantial justice is done.

In his reply the D.P.P on issue 2 submitted that the learned trial judge was right when his lordship held that the Appellant was insane when he committed the offence of murder and attempted murder, and consequently ordered that he (the Appellant) should be kept in prison custody as a criminal lunatic pending the Governor?s pleasure.

The D.P.P referred to the available record that it clearly established that the Appellant was insane when he committed the offences. He referred to Appellant?s statement on page 11 which states thus:

I have once became mad and taken to Awo-Ekiti for treatment. It was my father that took me to Awo. The two woman did not do anything for me, it was the bad spirit that enter me that…me to kill two of them….That day 21/10/2015, l smoke Indian hemp in Mr. K Shop. I also drank hot drink before l went to ldemo in Janet house. I now know that l have kill but they should forgive me .

Also the testimony of DW1 was referred to by D.P.P

He reiterated the fact that it was the duty of the lower Court after considering all the circumstances of the case to consider the defence of insanity as it is evidently clear and well established in the record of appeal that the Appellant is insane.

The D.P.P asked the question whether the Learned Trial Judge was right to have ordered the Appellant to be kept in prison custody pending the Governor’s pleasure. He answered the question in the affirmative. He contended that the Learned Trial Judge rightly relied on the evidence of DW1, father of the Appellant on page 93 of the Record of Appeal wherein his Lordship stated thus:

The Defendant did not call any medical expert or tender any medical report of the mental infirmity of the Defendant. It was however held in EJINIMA V STATE (1999) 6 NWLR (PT.200) 627 @ 650 that evidence of the insanity of an accused?s ancestors, or blood relation is admissible. The Court further held that medical evidence though, probationer is not essential. In the instant case, the evidence of the Defendant?s father as to the medical instability of the Defendant was not challenged under cross-examination. This Court can safely act on it.”

The fact was reiterated by the D.P.P that apart from the evidence of the DW1, the evidence of the PW2, and Exhibit A, all support the fact that the Appellant was insane and not in his right senses on the day of incident, hence, the Learned Trial Judge was right in holding that he was most probably insane on the fateful day.

The D.P.P assumed, but did not concede that the Appellant did not say it that he was insane by himself, or by the DW1, the lower Court is obliged to consider every available defence in favour of the Appellant. He cited the case of Chukwu v The State (1994) LPELR-855 SC; Obiora Obianwu v The State (2016) LPELR-40955 (CA); Abraham v State (2017) LPELR-42873 (CA); Hassan v State (2017) LPELR-43116 (CA); Habibu v State (2015) LPELR-26006 (CA).

On the Order of the Learned Trial Judge, that the Appellant should be kept in prison custody as a criminal lunatic, pending the Governor?s pleasure was proper and just, the D.P.P referred to Section 223 (1) of the Administration of Criminal Justice Law of Ekiti State. He contended that the order was in line with the above provisions of the law. He urged the Court to resolve the second issue in favour of the Respondent.

Resolution

It is trite that for the prosecution to succeed in a murder charge, prosecution must prove beyond reasonable doubt:
1. The death of a human being
2. That it was caused by the act of the accused
3. That the act or acts were done with the intention of causing death
4. The accused knew that death would be a probable consequence of his action.
See Omini v. State (1999) 12 NWLR (Pt 630) 168, Edoho v. State (Supra); Uwagboe v. State (2008) 12 NWLR (Pt.102) 621 S.C.

It appears to me that the prosecution has discharged this burden in showing that all these ingredients were present. It is clear and uncontroverted that the Appellant killed the deceased. Appellant?s counsel is not arguing with this fact, nor is the Prosecution disputing that the Appellant has a history of mental illness, the Appellant?s counsel?s argument is that the Learned Trial Judge suo moto considered the Defence of insanity. That the said defence was not properly considered having regard to the guilt of the Appellant which was not established, before considering the defence. He relied on Section 28 of the Evidence Act to buttress his contention. He gave the implication of Section 28 to be that a person who has been found guilty or culpable of an offence, will be absolved of criminal liability, if the defence of insanity is successfully proved. The Prosecution must have succeeded in proving or establishing the guilt of the accused before the Court can consider the availability of the defence to the accused.

Let us look at the facts of the case on record. On the 20th day of October, 2015, the Appellant hit the deceased on the head with a wooden stick.

The deceased was taken to the hospital where it was confirmed that the deceased had died of hemorrhage, secondary to trauma from the cuts on her head which could have been caused by a wooden stick. P.W.1 reported the matter at the Police Station at Odo-Ado, Divisional Headquarters, Ado -Ekiti. Consequently the Appellant was arrested, and he made a statement Exhibit A, elucidating on the events that led to the killing of the deceased. The Appellant?s counsel is contesting the fact that the Prosecution has not proved according to law that the Appellant murdered Aina Ogunlade on the 20th of October, 2015.

It is a constitutional and statutory requirement encapsulated in Section 36(5) of the 1999 Constitution of FRN as amended and Section 135 (1) of the Evidence Act, 2011 as also judicially engraved in a plethoral of decisions like Ani vs. State (2009) 16 NWLR (Pt 1168) 443. The State vs. Nnolim & Anon (1994) 5 NWLR (Pt 345) 394, (also reported in (1994) 6 SCNJ 48), that a person accused of a criminal offence is presumed to be innocent until his guilt is proved beyond reasonable doubt by the prosecution.

The duty on the prosecution to prove an offence beyond reasonable doubt against an accused person entails proving each and every material ingredient of the offence beyond reasonable doubt. Okeke vs. State (1995) 4 NWLR (Pt. 392) 676, 707 Alabi vs. State (1993) 7 NWLR (Pt. 307) 511 at 523. The failure of proof beyond reasonable doubt, which is a sine qua non to the conviction and sentence of the accused person, entitles the accused to a discharge and acquittal. Adekoya vs. The State (2010) LPELR 3605 (CA). The prosecution will be said to have proved its case beyond reasonable doubt when it adduces evidence against the accused as to leave only a remote possibility in his favour which can be dismissed by the sentence “of course it is possible but not in the least probable”, see Michael vs. State (2008) 13 NWLR (Pt.1104) 361 SC and when it has proved all the ingredients of the offence with which the accused is charged Isiaka vs. The State, Namsoh vs. State (1993) 6 SCNJ (Pt.1) 55 at 59, Jamani vs. State (2005) 21 WRN 191, which must show with the certainty of the Law, that an offence has been committed and that no other person than the accused committed the offence, Oseni vs. State (2010) LPELR 4033 (CA), Mufutau Bakare vs. State (1987) 3 SC 1 at 5. The said evidence must, with a degree of compulsion, be consistent with a high degree of probability – Miller vs. Ministry of Pensions (1947) 2 ER 372, Shurumo vs. State (2010 19 NWLR (Pt 1226) 73.

However, proof beyond reasonable doubt does not mean proof beyond all shadows of doubt, nor proof beyond all possible or imaginary doubt or such proof that precludes every hypothesis except that which it tends to support. It is only such proof as satisfies the judgment and conscience of the Judge as a reasonable man applying his reason to the evidence before him that the crime charged has been committed by the accused as to leave no other reasonable conclusion possible. Afolalu vs. State (2010) LPELR – 197 (SC).

The prosecution is therefore required only to prove with credible evidence the material ingredients of the offences to support the charge against the Appellant with a high degree of probability that the Appellant committed the offences. Michael vs. State (Supra).

The offence for which the Appellant was tried, found guilty was murder contrary to Section 316 (2) which is punishable under Section 319 of the Criminal Code Law, Laws of Ekiti State. The learned trial Judge even though he found the Appellant guilty of the offence of murder of Aina Ogunlade but he acquitted him of the offence of murder, on the ground of unsoundness of mind at the time at which he committed the act.

For the offence of murder punishable with death, the prosecution must prove, as reiterated in the case of Maiyaki vs. State (Supra), Akpa vs. State (2007) 2 NWLR (Pt 1019) 500 the following ingredients.

“(1) That the death of a human being (the deceased) has taken Place.
(2) That such death has resulted from the act of accused and
(3) That the act or omission of the accused which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily injury/harm was its probable consequence.
All these three ingredients, must co-exist to secure a conviction, and where one of them is absent or tainted with some doubt, the charge cannot be said to have been proved.

In his Judgment, the Learned trial Judge identified two issues for determination:

1. Whether having regard to the facts and circumstances of this case, the Prosecution proved the guilt of the defendant beyond reasonable doubt.
2. If the answer to Issue No 1 is in the affirmative, whether the defendant has discharged the onus of proof of insanity placed on him to avail him of the provisions of Section 28 of the Criminal Code Law, Laws of Ekiti State of Nigeria, 2012.

The learned trial Judge resolved both issues in favour of the prosecution and entered a verdict of guilty, but he acquitted the Appellant of the offence charged on the ground of unsoundness of mind at the time at which he committed the act.

The contention of the Appellant’s counsel is that the prosecution/Respondent failed to prove its case beyond reasonable doubt against the Appellant.

As to whether the respondent as prosecution proved all the ingredients of the offence against the Appellant, there is no dispute that the death of a human being, Aina Ogunlade took place.
The Respondent proved same through PW1 to PW3, and in particular Exhibit A, the confessional statement of the Appellant.

The other ingredients are whether the death of the deceased was caused by the act of the Appellant, intentionally to cause death or with his knowledge or when he had reason to know that death would be the probable consequence of his action or of any bodily injury caused by him, Akpa vs. State (Supra) Adava vs. State (2006) 9 NWLR (Pt.984) 154, at 167, Edoho vs. State (2010) 14 NWLR (Pt.1214) 651.

It has now undoubtedly become settled Law that a crime may be proved by either one or a combination of the following ways:
(a) evidence of eye witness
(b) confessional evidence and
(c) circumstantial evidence.
Nweze vs. State (1996) 2 SCNJ 42.

In the instant appeal, there is no eye witness evidence, but a confessional statement of the Appellant, translated into English language as Exhibit A, as well as the evidence of PW1-PW3.

The Appellant?s counsel contended that the extra-judicial statement of the Appellant falls short of a confessional statement for being unclear and equivocal in nature. Learned counsel submitted that in a case of murder, the Court is duty bound to take cognizance of some salient factors before proceeding to convict the Appellant on the basis of confessional statement alone.

The learned counsel also argued that the absence of a medical report casts strong doubt on the speculative testimony of PW1, PW2, PW3.

The D.P.P countered the Appellant?s argument, he cited the case of Onwumere v The State (1991) 4 NWLR (PT186)428 @448. He reiterated the fact that the Prosecution has proved its case through its witnesses and Exhibit A.

The learned trial judge on the issue of medical report, stated on page 88 of the record of appeal thus:
?But in the present case, agreed that there was no medical report on the cause of death but the evidence of PW1, PW2, PW3 and Exhibit A, sufficiently linked the act of the defendant to the death of the deceased, AINA OGUNLADE. The act of the defendant is indeed traceable to the cause of death of the deceased. There was uncontroverted evidence that the death of the deceased occurred the same day when the defendant hit the deceased with a wooden stick. The defendant admitted in his extra judicial statement which was tendered in evidence and marked as Exhibit A, that he hit the two women, AINA OGUNLADE and FELICIA OGUNLADE.

The Prosecution witnesses gave evidence that the deceased died in the same day. The defendant?s father only gave evidence on the mental instability of the defendant. There were no intervening factors between the act of the accused and the time of death of the deceased. It is my considered view that the state of facts as to the cause of death of the deceased in this case is so clear that without medical evidence the cause of death was not in doubt…. In OROK V. THE STATE (1989) 1 CRLN 163 the evidence led established the death of the deceased as the result of the attack on him with lethal weapon by the accused. It was held that the cause of death need not be proved by postmortem medical examination as it could be properly inferred to be the wound suffered by the deceased from the attack.

The death of the deceased in this present case occurred on the same day when she was hit with a wooden stick by the defendant. The defendant confessed in his extra judicial statement that he was the one who hit the deceased and Felicia Ogunlade. new_annoPW1 and PW2 met the deceased in her pool of blood before she was taken to the hospital where she later died.

The learned trial judge in my view, drew the correct conclusion from the evidence adduced by the Prosecution, in proof of the offence of murder beyond reasonable doubt against the appellant.

The Appellant?s counsel argued that the Prosecution had not established the guilt of the Appellant. Therefore the learned trial judge did not properly consider the the defence of insanity as it did suo moto.

The real issue here therefore is the state of mental health of the Appellant at the time he killed the deceased, hence, the defence of insanity. A defence of insanity is an affirmative defence alleging that a mental disorder caused the accused to commit the crime. It is a defence available to all crimes that absolves the accused of liability by virtue of S. 28 of the CPA.

Historically, insanity was seen as grounds for leniency. In ancient England, there was no distinct Criminal Code; a murderer could pay compensation to the victim?s family. An insane person?s family members were expected to pay any compensation and look after the victim’s family. In Norman times, insanity was not seen as a defence in itself but as a special circumstance in which a guilty verdict would be delivered and the accused referred to the King for a pardon, the position was that an accused suffering from mental illness was no more than a wild beast or a brute, or an infant, see R v Arnold (1724) 16.

Subsequently, a successful prosecution of the defence of insanity would lead to an immediate discharge and acquittal with the accused becoming a regular free man. This was the position before the McNaughton case in 1843, the first real test for the defence of insanity. In that case, Daniel McNaughton had murdered Edward Drummond, whom he had mistaken for the British Prime Minister Mr. Robert Peel. McNaughton had fired a pistol at Edward Drummond, who was Mr. Peel’s secretary at the time. Drummond died five days later. McNaughton was charged with murder. Evidence was given of his mental state of health by doctors who had previously examined him and some who had formed opinions on hearing the evidence given by others. McNaughton was acquitted on the grounds that he was suffering from a morbid delusion which carried him away beyond the power of his control and left him no perception and that he was not capable of exercising any control over his actions. The acquittal stirred up a lot of controversy. The House of Lords then asked a panel of judges to review the law governing insanity and came up with the following rules:

1. Every defendant is presumed sane unless the contrary is proved.

2. To successfully plead insanity it must be clearly proved that at the time of committing the act, the defendant was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.

Under the McNaughton rule, there are three elements of the defence of insanity;

1. That the disease afflicting the accused affected his mind, causing a disease of his mind, whether it is one recognised medically as a mental disease since there is a difference between what is referred to as legally insane and medically insane. See R v Kemp (1957) 1 QB 399, R v Hennessy (1989) 1 WLR 287.

2. The disease of the mind caused the accused to lose his power of reasoning such that the accused did not know the nature and quality of what he was doing or did not know what he was doing was wrong. Being merely absent minded or confused enough to be unable to reason correctly is not sufficient. See R v Clarke (1972) 1 All ER 219.

3. Lack of knowledge that the act is legally wrong and not just morally wrong. The accused must not know that his actions are against the law. In R v Windle (1952) 2 All ER 1 246, the accused was suffering from mental illness but admitted he gave his wife a fatal dose of aspirin and telephoned the police saying I suppose I?ll hang for this. When he was arraigned accused pleaded insanity. His plea of insanity was not accepted. The Court of Appeal held that the appellant knew what he was doing was contrary to law.

Nigeria has adopted the concept of criminal responsibility as laid down by the Law Lords in England which are called the McNaughton?s Rules. They are part of our law by virtue of Sections 27 and 28 of the Criminal Code Act which is in pari materia with the Criminal Code C16 Laws of Ekiti State. They state 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 of capacity to control his action, or of capacity to know that he ought not to do the act or make the omission.

The McNaughton rules have been assimilated into Nigerian law by the Supreme Court. See Onyekwe v State (1988) 1 NWLR (Pt. 72) 565, R v Sunday Omoni 12 WACA 511 at 512, Idowu v State (1972) 1 All NLR (Pt 2) 5, Arisa V State (1988) 3 NWLR (Pt.83) 386 S.C, Lasisi v State (1984) 10 S.C. 111, John v State (2012) 7 NWLR (Pt 1299) 336 C.A.

From the above, there are different categories of mental illnesses based on legal insanity which may affect a person?s responsibility for an offence.

1. Natural Mental Infirmity and mental disease, which has been defined to mean any disorder that has manifested itself in violence and is prone to reoccur, at any rate it is a sort of disease for which a person should be detained in a hospital, rather than being given an unqualified acquittal. See Bratty v A.G. for Northern Ireland (1961) 3 All ER 523.
It is also defined as any disease which produces a malfunction of the mind. In R v Kemp (Supra) Delving J. held that;
‘The law is not concerned with the brain but with the mind in the sense that the mind is the mental faculties of reason, memory and understanding. If one reads for disease of the mind disease of the brain, it would follow that in many cases insanity will not be established because it would not be proved that the brain could not have been affected in any way, either by degeneration of the cells or by any other way. In my judgment, the condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable, transitory or permanent.’
Natural mental infirmity goes beyond the scope of mental disease and has been defined in R v Omoni (1949) 12 WACA 511 as a defect in mental power neither produced by the accused as own default nor the result of disease of the mind. It is important to note that a mental disease occasioned by the accused may still constitute insanity such as one induced by excessive drinking. See Sec 29(2) of the Criminal Code.

2. Uncontrollable impulse, as provided in Section 28 of the Criminal Code Act. See Echem v State (1952) 14 WACA 158, Arisa v The State (1988) NWLR (Pt 83) 386

3. A delusion that deviates from previously held patterns of beliefs and is out of con with those of the culture of the person. It is important to say that although a delusion may be a sign of an unsound mind, it does not necessarily arise from mental illness or natural mental infirmity. It has been held that where an accused person under the influence of his delusion supposes that another man was going to kill him and he killed that man believing he did so, on self defence, he would be exempted for the killing. See Arum v State (1979) All NLR 255, Udofia v The State (1981) 11-12 S.C (Reprint) 33.

It is clear that there is in this case, no doubt in either party’s mind about who killed the deceased or whether the Appellant actually has a history of mental infirmity, since these were not made an issue. The trial Court also had no doubt that the Appellant killed the deceased, nor that he had a history of mental infirmity. The question then is whether the Appellant was insane at the material time the offence was committed. In prosecuting the defence of insanity, the onus shifts on the defence to prove insanity since there is a presumption that every person is of a sound mind until otherwise proven. See Section 27 of the Criminal Code. This burden of proof required is on the balance of probability and not beyond reasonable doubt. See Ndu v. State (1990) 7 NWLR (Pt. 164) 550.

See Oladele v State (Supra), Adamu v State (Supra), Onyekwe v State (1988) 1 NWLR (Pt.72) 565 at 579, Udofia v State (1988) 11-12 S.C (Reprint) 33, Anyanwu v State (2012) 16 NWLR (Pt.1326) 221 C.A.

The most important thing in determining criminal responsibility is that the perpetrator must understand what he did to be wrong at the time it was being done. l have carefully perused Exhibit A, it does not show the thoughts of a sane man imbued with mental capacity. On the contrary it shows the ravings of a madman.

It is trite that an accused can be found guilty and convicted on his confessional statement, but in a case where the defence of insanity is raised, it is always best to address the issue of insanity first because if the defence succeeds, it will affect the weight to be attached to the confessional statement made by the accused. The irrational actions of the Appellant as contained in Exh. A, it does not show the thoughts of a sane man imbued with mental capacity. On the contrary it shows the ravings of a madman.

It is trite that an accused can be found guilty and convicted on his confessional statement, but in a case where the defence of insanity is raised, it is always best to address the issue of insanity first because if the defence succeeds, it will affect the weight to be attached to the confessional statement made by the accused. The irrational actions of the Appellant as contained in Exh. A, I believe is proof of his insanity. The act of hitting AINA OGUNLADE with a wooden stick on the head, and the killing of the deceased for no reason is proof of the insanity of the Appellant. There is no motive to the killing of the deceased.

If we believe Appellant was mentally ill before and also after the killing, with nothing to prove the contrary, we also have to believe that the Appellant was mentally ill during the unfortunate incident as well. The position of Sergeant J in Reniger v Forgosson (1552) 1 Ploud 1 at 79 is that Appellant’s counsel did not object to it and yet, the learned trial judge in his wisdom decided to admit same. The position of Sergeant J in Reniger v Forgosson (1552) 1 Ploud 1 at 79 is that,

If a man non sanaememoriae kills, he has broken the words of the law, yet he has not broken the law because he has no memory or understanding but mere ignorance which came to him by hand of God.

The Criminal Procedure Act provides in Sections 229 and 230 as follows:-

229. Whenever any person is acquitted by virtue of the said Section 28 or 29 (2) (b) of the Criminal Code the verdict of the Court before which the trial has been held or, in the case of a trial with a jury, of the jury shall state specifically whether he committed the act alleged or not.

230. Whenever the finding state that the accused person committed the act alleged, the Court before which the trial has been held shall, if such act would but for incapacity found have constituted an offence, order such person to be kept in safe custody in such place and manner as the Court thinks fit and shall report the case for the order of the Governor.

The Governor may order such person to be confined in a lunatic, prison or other suitable place of safe custody during the pleasure of the Governor.

What the above means is that where the defence of insanity has been successfully proved, the judge sitting alone or jury shall make a finding of whether in fact the accused committed the offence. After a specific finding on that issue, where the accused committed the act,

S. 28 of the Criminal Code makes the accused not responsible for the action. The Court enters a verdict of Not Guilty by reason of insanity. S. 230 (1) of the Criminal Procedure Act is then activated and even though there is an acquittal, the person of unsound mind is ordered to be kept in safe custody at the pleasure of the Governor.

The learned trial judge was clearly right to have found that the Appellant committed the offence of murder of Aina Ogunlade, but acquitted him of the offence charged on ground of unsoundness of mind at the time which he committed the act. See Section 222 of the Administration of Criminal Justice Law, 2011. I also find that the Appellant is guilty but not criminally liable for the offence and a finding of Not Guilty by reason of insanity is hereby entered. I hereby order that the Appellant be remanded at an insane asylum and to be released when medically certified sane by medical doctors at the pleasure of the Governor of Ekiti State. The Orders of Hon. Justice E. B. Omotosho in Charge No HAD/58C/2016 is hereby affirmed. Appeal is hereby dismissed.

PAUL OBI ELECHI, J.C.A.: I agree.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lead judgment delivered by my learned brother, F.O. AKINBAMI JCA and I agree with the reasoning and conclusion reached therein.

In consequence, I also dismiss the appeal and affirm the judgment of the Hon. Justice E. B. Omotosho delivered on February 20th 2017.

Appearances:

Gboyega Oyewole, Esq.For Appellant(s)

Gbemiga Adaramola (D.P.P Ekiti State) with him, I. U. Ibrahim, Esq.For Respondent(s)