DANJUMA v. NIGERIAN ARMY (2020)

DANJUMA v. NIGERIAN ARMY

(2020)LCN/14484(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/IB/251C/2018

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

L/CPL PINDAR DANJUMA APPELANT(S)

And

NIGERIAN ARMY RESPONDENT(S)

RATIO

BURDEN OF PROOF IN CRIMINAL TRIALS

Now, it is the settled law that, the burden of proof in a criminal trial, whether before a Court or Tribunal, rests always on the prosecution. This is by virtue of Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which stipulates that:
“36.(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
By this provision therefore, there is a presumption of innocence created in favour of every person accused of having committed a criminal offence. Naturally, the accuser would by the prosecution. Accordingly, the burden will be on the prosecution who alleges that a person has committed a crime, to rebut the presumption of innocence created by the Constitution in favour of the person accused. This is because the burden is always on the person who assets the affirmative of an issue to prove that fact. In criminal trials, that burden, called the ultimate burden remains throughout on the prosecution and does not shift. SeeSection 131(1) and (2) of the Evidence Act, 2011. See also Ugboji v. State (2018) 10 NWLR (pt.1627) 346, Yusuf v. F.R.N. (2018) 8 NWLR (pt.1622) 502; Isah Suraju v. The State (2018) LPELR – 43658(CA); Ike v. The State (2010) 16 NWLR (pt.1218) 132 and Balogun v. State (2018) 13 NWLR (pt.1636) 321.
The standard of proof to be discharged where an allegation of crime is made, is that beyond reasonable doubt. It does not matter the nature of the proceedings, once an allegation of crime is made, it must be proved beyond reasonable doubt. It is therefore stipulated in Section 135(1) and (2) of the Evidence Act, 2011 as follows:
135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil of criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
It is therefore settled law that in a criminal trial, the burden of proof lies squarely on the prosecution, and which burden they must discharge beyond reasonable doubt. See Oladimeji Mohammed Edun & Anor v. Federal Republic of Nigeria (2019) LPELR – 46947; Moses v. State (2006) LPELR – 1915(SC); Ajayi v. State (2013) 9 NWLR (pt.1360) 589 and Adebesin v. State (2014) 9 NWLR (pt.1413) 609.
Proof beyond reasonable doubt does not entail proof beyond any or all shadow of doubt. It means proof that dispels with fanciful possibilities. Thus, as stated by Denning, J. in Miller v. Minister of Pension (1947) 2 All ER 372 at 373:
“If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence; of course, it is possible but not in the least probable”, the case is proved beyond reasonable doubt but nothing short of that will suffice.”
In the case of Egharevba v. State (2016) 8 NWLR (pt.1515) 433, My Lord, Ngwuta, JSC cited with approval the case of K. Gopal Predding v. State of AP ATR 1979 SC 387 wherein the Indian Supreme Court defined the phrase prove beyond reasonable doubt in these words:
“A reasonable doubt does not mean some light, airy, insubstantial doubt that may flip through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons.” PER TSAMMANI, J.C.A.

A PERSON SUBJECT TO SERVICE LAW

In the instant case, the Appellant was charged for having committed the offence of murder contrary to Section 106 (b) of the Armed Forces Act, Cap. A20, Laws of the Federation of Nigeria, 2004. He is said to have unlawfully killed his wife, one Mrs. Ruth Pindar. However, after the conclusion of trial and evaluation of the evidence adduced at the trial, the General Court Martial came to the conclusion that the defence of provocation availed the Appellant, and therefore convicted him of manslaughter which is an offence punishable under Section 105 of the Armed Forces Act (supra). It stipulates that:
“105. A person subject to service law under this act who –
(a) unlawfully kills another person in such circumstances as not to constitute murder; or
(b) with intent to kill or do some grievous harm to another person, unlawfully kills that person in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, is guilty of manslaughter and liable, on conviction by a Court Martial to imprisonment for life.”
From the above stated provision, for the prosecution to prove the commission of manslaughter under the Armed Forces Act (supra), they have to prove the following facts beyond reasonable doubt:
(a) That the death of a human being had occurred.
(b) That the death was caused by an unlawful act of the accused.
(c) That the act of the accused person that caused the death of the deceased was done in the heat of passion caused by sudden provocation.
(d) That at the time of the commission of the offence, the accused was subject to service law under the Armed Forces Act.
All the above facts or elements must co-exist before a conviction for manslaughter under Section 105 of the Armed Forces Act can be sustained. PER TSAMMANI, J.C.A.

PLEA OF INSANITY

For a successful plea of insanity therefore, the evidence adduced at the trial must show that the insanity complained of, deprived the person accused of the murder or manslaughter of:
(a) capacity to understand what he was doing; or
(b) capacity to control his actions; or
(c) capacity to know that he ought not to do the act or make the omission which resulted in the death of the deceased.
See Aiworo v. State (1987) 2 NWLR (pt.58) 526; Onyekwe v. State (1988) 1 NWLR (pt.72) 565 and Madjemu v. State (2001) 9 NWLR (pt.718) 349. To establish whether or not an accused person was insane at the time of commission of the offence, is a matter of fact to be deduced from the evidence placed before the Court in each case. It is not for the Judge to conclude without more that the accused was insane at the time he committed the offence. In the evaluation of the evidence in order to determine whether or not insanity has been proved, trial Courts are enjoined to consider any admissible medical evidence and the surrounding circumstances of the case, including:
(1) The nature of the killing;
(2) The conduct of the accused before, at the time and after killing; and
(3) Evidence of insanity in the blood or ancestral relation.
See Nwibo Nwode v. The State (2017) LPELR – 42799(CA); Madjemu v. State (supra); Udofia v. State (1988) 3 NWLR (pt.84) 533 and Danbaba v. State (2018) 11 NWLR (pt.1631) 426. Thus, in the case of The State v. Babangida John (2013) LPELR – 20590(SC); the Supreme Court, per Aka’ahs, JSC held as follows:
“To establish the defence of insanity, recourse could be had to the following relevant facts, namely.”
(a) Evidence as to the past history of the accused person;
(b) Evidence as to the conduct of the accused immediately preceding the killing of the deceased;
(c) Evidence from prison officials who had custody of the accused person before and during the trial;
(d) Evidence of medical officers who examined the accused;
(e) Evidence of relatives about the general behavior of the accused person and the reputation he enjoyed for sanity or insanity in the neighbourhood;
(f) Evidence that insanity runs in the family history of the accused; and
(g) Such other facts which will help the trial Court come to the conclusion that the burden of proof placed by law on the defence has been discharged.”
As stated earlier in the course of this judgment, the burden is on the accused person who asserts or pleads insanity to prove that fact. See Section 139(3) (c) of the Evidence Act, 2011 and the cases of Madjemu v. The State (supra);Guobadia v. State (2004) 6 NWLR (pt.869) 360; Peter v. State (1997) 12 NWLR (pt.531)1 and Loke v. State (1985) 1 NWLR (pt.1) 1. The burden will be discharged on a balance of probability. See Oseni v. State (2017) LPELR – 42770 (CA); Oghenereumu Ibane v. The State (2012) LPELR – 9326 (CA) and Danbaba v. State (2018) LPELR – 43841(SC). In the case of Amako v. State (1995) 6 NWLR (pt.399) 11, Iguh, JSC held as follows: “On the defence of insanity, the general rule is that, 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. An accused person who contends that he is insane or, indeed, that he suffers from insane delusion, has the duty to rebut this presumption of law which regards him as sane until the contrary is proved. The onus therefore rests on him to prove insanity or insane delusion.” PER TSAMMANI, J.C.A.

INGREDIENTS TO PROVE THE OFFENCE OF MURDER OR MANSLAUGHTER

It is trite that in a charge of murder or manslaughter, the Prosecution must prove that the act of the Accused Person led to the death of the deceased. In other words, it must be proved that there is a nexus between the act of the Accused Person and the death of the deceased. See OLALEKAN V. STATE (2001) 18 NWLR (PT. 746) 793; UKPONG V. STATE (2019) 6 NWLR (PT. 1667) 1; ANYASODOR V. STATE (2018) 8 NWLR (PT. 1620) 107; ABELEGAH VS. STATE (2018) 18 NWLR (PT. 1650) 172 and OLADAPO VS. STATE (2020) 7 NWLR (PT. 1723) 238 AT 250. PER OJO, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the General Court Martial of 2nd Division of the Nigerian Army sitting at the Headquarters of the 2nd Division, Adekunle Fajuyi Cantonment, Ibadan, in Court Martial No: 02NA/52/5151 delivered on the 1st day of March, 2013.

A fair summary of the case was presented by the Appellant in pages 1 – 2 (paras: 2.1 – 2.3) of the Appellant’s Brief of Arguments as follows:
“The Appellant lived with his deceased wife at the Headquarter 2 Division, Nigerian Army Barracks in Ibadan. An unfortunate incident occurred on a certain day when the Appellant was preparing to go to work, his deceased wife held him by the shirt to restrain him from going to his duty post. He pleaded with her to allow him go as she knows he was on duty. The deceased wife was adamant and the Appellant struggled to free himself. In the course of the struggle, he pushed her and she hit her head on the wall. The deceased was rushed to the medical facility at the cantonment and subsequently taken to the University College Teaching Hospital, Ibadan. She was diagnosed

for hypertension for which dopamine infusion was commenced and she later developed cardiopulmonary arrest and all efforts to resuscitate her proved abortive and she died. The cause of death was identified as “Traumatic Head Injury.”

The Appellant was then charged before the General Court Martial for the murder of his deceased’s wife which is an offence punishable under Section 106(b) of the Armed Forces Act, Cap. A20, Laws of the Federation of Nigeria, 2004. At the trial, the prosecution called six (6) witnesses and tendered nine (9) exhibits. The Appellant testified in his defence and called five (5) other witnesses. At the close of evidence, counsel filed and exchanged Written Addresses. The Appellant was then convicted for manslaughter and sentenced to twenty (20) years imprisonment. The Appellant is aggrieved by the conviction and has filed this appeal.

On the 22/5/2018, this Court granted the Appellant an extension of time to appeal. The Notice of Appeal was to be filed within 14 days. However, the Notice of Appeal was not filed within the 14 days as ordered by this Court. Consequently, the Appellant applied for and was granted

Further Extension of time to file the Notice of Appeal. The Notice of Appeal which had already been filed and served was deemed as properly filed and served on the 02/6/2020. This appeal was therefore heard on the Notice of Appeal which was filed on the 6/6/2018 but deemed filed and served on the 02/6/2020.

The Appellant’s Brief of Arguments was filed on the 06/6/2019 but deemed filed on the 02/6/2020. Therein, two (2) issues were distilled for determination as follows:
1. Whether the General Court Martial did not fail in its sacred duty to properly evaluate the evidence led before reaching its finding that the prosecution has proved the case beyond reasonable doubts. [Grounds 1 and 2].
2. Whether the failure of the General Court Martial to properly consider the defenses of insanity and provocation raised by the Appellant does not amount to grave error to vitiate the entire trial and findings. [Ground 3].

The Respondent’s Brief of Arguments was filed on the 22/4/2020 but deemed filed and served on the 02/6/2020. Like the Appellant, the Respondent distilled two (2) issues for determination as follows:
1. Having regard to the

circumstances of this case, whether the General Court Martial properly evaluated the evidence led before it to arrive at its findings that the prosecution has proved the case beyond reasonable doubt. [Grounds 1 and 2].
2. Whether or not the General Court Martial rightly considered the defences of insanity and provocation raised by the Appellant in the circumstances of this case.

A close look at the issues formulated by the parties will show that but for the wordings, the issues they have formulated are similar in substance and scope.

Now on issue one (1), Mr. Kadir Temim who settled the Appellant’s Brief contended that in law, the person who asserts has the burden to proof those assertions. Citing Sections 131 and 135(1) & (2) of the Evidence Act, 2011, learned counsel submitted that in criminal trials, the standard of proof required is that beyond reasonable doubt and that where there is any doubt, it should be resolved in favour of the accused. The cases of Friday Smart v. The State (2016) 9 NWLR (pt.1518) 447 at 479 – 478 paragraphs. G – B; The State v. Odunayo Ajayi (2016) 14 NWLR (pt.1532) 196 at 231 paragraphs C

– E; Kareem Sunday v. The State (2014) LPELR – 24415 (CA) and W/O Banni Yakubu v. Nigerian Army (2014) LPELR – 24129 (CA) were also cited in support and to further submit that, to succeed in securing a conviction, the prosecution must prove all the essential ingredients of the offence charged beyond reasonable doubt.

Learned Counsel for the Appellant then referred to Section 106(b) of the Armed Forces Act, Cap.420 Laws of the Federation of Nigeria, 2004, and the cases of Henry Chukwu v. The State (2012) 12 SCNJ (pt.1) 208 at 222; Tunder Adama & Anor v. State (2007) 2 NCC 191 at 198; Igabele II v. The State (2007) 2 NCC 125 at 135 and The State v. Aibangbee & Anor (2007) 2 NCC 648 at 689 – 690 to submit that, the essential ingredients which the prosecution must prove beyond reasonable doubt are:
(a) That the death of a human being has actually taken place;
(b) That such death has been caused by the accused; and
(c) That the act was done with the intention of causing death, or with the knowledge that death would be the probable consequence of his act.

Learned Counsel then went on to draw our attention to

the testimonies of PW1, PW2, PW3, PW4 and PW6, and to submit that the evidence of those witnesses cannot be said to have satisfied the requirements of proof beyond reasonable doubt. That, the prosecution was merely scrounging for evidence and failed to prove whether or not it was the act of the Appellant that led to the death of the deceased. That, the death of the deceased was shrouded in mystery as the evidence of the prosecution witnesses are riddled with contradictions which created doubts as to whether it was the act of the Appellant that caused the death of the deceased. Furthermore that the testimony of the prosecution witnesses was full of hearsay as there was no eye witness to the incident that led to the death of the deceased. The cases of Ezekiel Adekunle v. The State (1989) 12 SCNJ 184 at 192; Usman Kaza v. The State (2008) 7 NWLR (pt.1085) 125; Frank Onyenankeya v. The State (1964) 1 All N.L.R.151 and Eric Uyo v. A.G; Bendel State (1986) 2 S.C.22 – 23 were cited in support.

It was further submitted by learned counsel for the Appellant that the prosecution satisfied the first ingredient of the offence but that the prosecution did not

prove by cogent, direct and admissible evidence the other two ingredients of the offence. It was then submitted that the prosecution failed to establish that the Appellant intentionally caused the death of the deceased going by the testimony of the Appellant on what transpired between him and the deceased on the fateful day. That such testimony of the Appellant did not fall under cross-examination. That at page 143 of the record of appeal, the Appellant had specifically testified that:
“I did not believe that the push I pushed her will lead to her death.”

It was then submitted that, from the testimony of the Appellant quoted above, it can be naturally deduced that the act of pushing the deceased was a reasonable attempt to free himself from the hold of the deceased. That the Appellant by that act, did not intend to harm or cause the death of his wife. Furthermore, that there was uncontroverted evidence of the Appellant that the deceased was not immediately attended to at the 2 Division Military Hospital and University College Hospital (UCH), Ibadan, and which fact is supported by the testimony of PW2 who told the General Court Martial

that the deceased spent 17 hours at the UCH before she was certified dead.

Learned Counsel for the Appellant then submitted that, a Court, including a Court Martial has the duty to properly and dispassionately evaluate the evidence placed before it by the parties before arriving at its decision. The case of T.A. Dairo v. Federal Republic of Nigeria & 4 Ors (2012) 16 NWLR (pt.1325) 129 at 197 paragraphs D – H was then cited to submit that, in the instant case, the General Court Martial failed in its duty when it did not ascribe appropriate value to the available evidence on record to the benefit of the Appellant. That the General Court Martial merely accepted the evidence led before it, hook, line and sinker without proper evaluation to determine it’s admissibility and veracity before arriving at the guilt of the Appellant. That this failure led to a serious miscarriage of justice to the Appellant.

To buttress the point made above, learned counsel for the Appellant contended that, the evidence of PW1 and PW2 on the cause of death were obviously contradictory and inconsistent with common cause of events as narrated by them. That, PW1

could not describe the signs he saw, he never the less wittingly concluded that those signs might be the result of an accident or a fight. That PW2 on his part stated that the deceased developed hypertension for which dopamine infusion was commenced and she later developed cardiopulmonary arrest; and that all efforts to resuscitate her proved abortive. It was then submitted that, those witnesses did not lead any evidence on the medical condition of the deceased at the time of the examination which led to her developing hypertension and cardiopulmonary arrest. That worse still, the witness contradicted himself when he asserted that the deceased died of “traumatic head injury”, and thereby creating serious doubt about the causal link between the act of the Appellant and the death of the deceased without any intervening factor.

Learned Counsel for the Appellant then went on to submit that, no Court including a Court Martial is permitted to speculate as to the cause of death where the evidence is not clear or certain. In other words, that the Court must be satisfied that a causal link has been established between the act of the accused and the

death of the deceased. That in the instant case, two medical experts examined the deceased and came to different conclusions as to the cause of death. That in the circumstances, a serious doubt has been created as to whether the injury alleged inflicted by the Appellant on the head of the deceased caused her death; and that it is therefore unsafe to rely on such contradictory evidence to convict. We were accordingly urged to resolve such doubt in favour of the Appellant. The cases of Oforlete v. The State (2000) 12 NWLR (pt.681) 415 at 450 paragraphs C – D and Etim Etim Udo v. The State (2015) LPELR – 25767 (CA) were cited in support. That such contradictions also run through the testimonies of PW4, PW5 and PW6.

Flowing from the above, learned counsel for the Appellant contended that, it is glaring that none of the prosecution witnesses gave a clear account of what led to the injury on the deceased and whether or not it was the act of the Appellant that caused the injury. That indeed, none of the witnesses was at the scene and witnessed what actually transpired between the Appellant and the deceased. The case of Ochuko Tegwonor v. The State

(2007) LPELR – 4674 (CA) was then cited to submit that, in the face of the contradictions, the reasoning and conclusions of the General Court Martial to the effect that the prosecution discharged the burden of proof against the Appellant is perverse and has occasioned a serious miscarriage of justice. The case of Namsoh v. The State (1993) 5 NWLR (pt.292) 129 was then cited to urge us to set aside the finding and conclusion of the trial Court.

On his part, learned counsel for the Respondent contended that, the admissible evidence on record is strong enough to sustain the verdict of guilt handed to the Appellant. It was accordingly submitted that, where a person is attacked with a lethal weapon and he died either on the spot or shortly afterwards, it is reasonable to infer that the injury inflicted on him caused the death. That in the instant case, the Appellant pushed the deceased and she hit her head on the wall on the 5th September, 2011 and she died on the 7th day of September, 2011, and the Post Mortem examination revealed that she died of severe head injury. The case of Amaechi v. State (2014) LPELR – 22499 (CA) was then cited to submit

that, in the circumstances, the General Court Martial was right to infer that the Appellant had intended to push the deceased and that grievous bodily harm was a foreseeable consequence of such act. The case of Henry Chukwu v. The State (supra) cited by the Appellant favours the Respondent, as the General Court Martial considered all the essential ingredients of murder and manslaughter under Sections 105 and 106 of the Armed Forces Act (supra) before arriving at its findings. That the essential ingredients of murder under the Armed Forces Act (supra) are as follows:
a. The accused is subject to service law;
b. The deceased died;
c. The death of the deceased resulted from the act of the accused; and
d. The act of the accused was intentional with knowledge that death or grievous harm was a probable consequence.

It was then submitted that, the prosecution successfully proved all those ingredients of murder through its witnesses. The case of Chukwu v. State (2012) LPELR – 9829 (SC) was cited in support. That in the instant case, the evidence of the Appellant showed that he pushed the deceased, and the evidence of the Medical Doctor

strengthened the prosecution’s case by corroborating the testimony of the PW2 that the deceased died as a result of severe traumatic head injury. In other words, that the Appellant confessed that he pushed the deceased person and the deceased died as result of server traumatic head injury following the push by the Appellant. It was then submitted that, those facts were enough for the General Court Martial to conclude that the totality of the evidence led, it was the Appellant that caused the death of the deceased. We were accordingly urged, in line with the case of Adekunle v. State (supra) to hold that the deceased was in good health before the act of the Appellant that caused her death.

Learned Counsel for the Respondent went on to submit that, PW4 who was the Appellant’s neighbour also gave evidence that he saw the Appellant’s leg with boot on top of the decease’s stomach and that he tried to remove the Appellant’s leg but could not. That PW2 gave evidence and tendered Exhibit “A2” which confirmed the cause of death to be “severe Traumatic Head Injury” thus corroborating the testimony of the

Appellant that he pushed the deceased and she hit her head on the wall. That, the evidence of Pw1, PW2 and that of the Appellant established a causal link between the act of the Appellant and the death of the deceased. Furthermore, that the testimonies of the two Medical Doctors (PW1 and PW2) are not contradictory but only went to corroborate the evidence linking the act of the Appellant to the deceased’s death. The case of Chukwunyere v. State (2017) LPELR – 43725 (SC) was cited in support.

It was further submitted by learned counsel for the Respondent that, PW1 and PW2 did not lead any evidence as to the possibility of any intervening factor in the deceased’s death. That unlike in the cases of Etim Etim Udo v. The State (supra) and Oforlete v. The State (2000) 12 NWLR (pt. 681) 415 at 450 relied on by the Appellant; in the instant case, there was no intervening cause culminating in the death of the deceased. Furthermore, that in the instant case, the Appellant had testified to hitting the deceased on the head; and that in the Oforlete case, there was an intervening period of three months between the time of the injury occasioned to the

deceased and the time he was treated. That in the instant case, the post mortem report indicated that the deceased died as a result of traumatic head injury and there was no material difference in the testimony of the two medical (expert) witnesses. Again, that in the instant case, there was no long period between the act of the Appellant and the subsequent death of the deceased, and therefore, the death of the deceased was contemporaneous or approximately in time to the act of the Appellant that caused the death. The case of Hamza v. State (2016) LPELR – 41557 was then cited to submit that, in the circumstances, the Court can, without the post mortem report, infer the cause of death of the deceased in the circumstances of this case.

Learned Counsel for the Respondent then gave a ran down of the evidence adduced by the prosecution witnesses and also cited the cases of Popoola v. State (2018) LPELR – 43853 (SC); Amaechi v. State (2014) LPELR – 22499 (CA); Edoho v. State (2010) LPELR – 1015 (SC) and Mohammed Mamman v. F.R.N. (2013) 6 NWLR (pt.1351) 569 at 581 to contend that, the case of the Appellant is irredeemably weak and should

not be disturbed.

Learned Counsel also cited the cases of Ibrahim v. Nigerian Army (2015) LPELR- 24596 (CA) and Akanni v. Nigerian Army & Anor (2016) LPELR – 41403(CA) to contend that, the provisions of the Evidence Act is not applicable to the General Court Martial proceedings. However, that in this case, the General Court Martial rightly evaluated the evidence led before it. That the evaluation was specifically done by the President of the General Court Martial as can be seen from pages 217-219 of the Record of Appeal and duly reflected in the findings of the General Court Martial at page 220 of the Record of Appeal in conformity with the law applicable to a General Court Martial. Learned counsel then submitted that it is not enough for the Appellant to complain that the learned trial Judge failed to evaluate the evidence before it; he must also convince this Court that the failure of the trial Court to evaluate the evidence has occasioned a mis-carriage of justice. The care of Olaloye & Ors v. Commissioner for Justice, Osun State &Ors (2014) LPELR – 23795 (CA) was then cited in urging us not to interfere with the findings of the

General Court Martial, and to resolve this issue in favour of the Respondent.

See also Ugboji v. State (2018) 10 NWLR (pt.1627) 346, Yusuf v. F.R.N. (2018) 8 NWLR (pt.1622) 502; Isah Suraju v. The State (2018) LPELR – 43658(CA); Ike v. The State (2010) 16 NWLR (pt.1218) 132 and Balogun v. State (2018) 13 NWLR (pt.1636) 321.
The standard of proof to be discharged where an allegation of crime is made, is that beyond reasonable doubt. It does not matter the nature of the proceedings, once an allegation of crime is made, it must be proved beyond reasonable doubt. It is therefore stipulated in Section 135(1) and (2) of the Evidence Act, 2011 as follows:
135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil of criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
It is therefore settled law that in a criminal trial, the burden of proof lies squarely on the prosecution, and which burden they must discharge beyond reasonable

doubt. See Oladimeji Mohammed Edun & Anor v. Federal Republic of Nigeria (2019) LPELR – 46947; Moses v. State (2006) LPELR – 1915(SC); Ajayi v. State (2013) 9 NWLR (pt.1360) 589 and Adebesin v. State (2014) 9 NWLR (pt.1413) 609.
Proof beyond reasonable doubt does not entail proof beyond any or all shadow of doubt. It means proof that dispels with fanciful possibilities. Thus, as stated by Denning, J. in Miller v. Minister of Pension (1947) 2 All ER 372 at 373:
“If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence; of course, it is possible but not in the least probable”, the case is proved beyond reasonable doubt but nothing short of that will suffice.”
In the case of Egharevba v. State (2016) 8 NWLR (pt.1515) 433, My Lord, Ngwuta, JSC cited with approval the case of K. Gopal Predding v. State of AP ATR 1979 SC 387 wherein the Indian Supreme Court defined the phrase prove beyond reasonable doubt in these words:
“A reasonable doubt does not mean some light, airy, insubstantial doubt that may flip through the minds of any

of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons.”
Without bandying words, proof beyond reasonable doubt in my view, simply means proof of all the essential ingredients of the offence charged as required by law. See State v. Onyeukwu (2004) 14 NWLR (pt.893) 340; Ajayi v. State (2013) 9 NWLR (pt.1360) 589; Ani v. State (2009) 16 NWLR (pt.1168) 443; Afolayan v. State (2018) 8 NWLR (pt.1621) 223 and Jibrin v. F.R.N (2018) 13 NWLR (pt. 1635) 20.
Flowing from the above, it would mean that for the prosecution to succeed in proving their case against the accused person, they must lead credible evidence which establishes all the essential elements of the offence charged. Accordingly where any one of the essential ingredients of the offence charged is not proved, it would mean that the prosecution has failed to prove the offences charged beyond reasonable doubt; and the accused will be entitled to an acquittal. In other words, in a criminal trial, the prosecution is required by law to establish all the essential ingredients of

the offence charged by credible evidence. See Godwin Chukwuma v. The Federal Republic of Nigeria (2011) LPELR – 863(SC); Ibrahim v. State (2015) 11 NWLR (pt.1469) 164; Afolalu v. The State (2010) 16 NWLR (pt.1220) 584; Emeka v. The State (2014) LPELR – 33020 (SC) and Ikaria v. State (2012) LPELR 15533(SC). The prosecution may adduce evidence in proof of their case by any of the following ways:
(a) by the testimony of eye witness or witnesses who saw when the offence was committed; or
(b) by the confessional statement of the accused person which is direct, positive, unequivocal and duly admitted; and point positively to the fact that the accused person has admitted to committing the offence; or
(c) by circumstantial evidence which point positively to the fact that the accused and no other person committed the offence charged.
In the instant case, it would appear that all the three ways were considered in the determination of the guilt or otherwise of the Accused/Appellant. It is indeed proper in law, because the prosecution is at liberty to prove the commission of the offence by one or a combination of the stated ways.

See Igri v. The State (2010) 7 WRN 31 at 47; State v. Isah (2012) 16 NWLR (pt.1421) 338; Musa v. State (2013) 9 NWLR (p.1359) 214; Maigari v. State (2013) 17 NWLR (pt.1384) 425; Famuyiwa v. State (2018) 5 NWLR (pt.1613) 515 and Segun Akinsuwa v. The State (2019) LPELR – 47621(SC).

caused by sudden provocation, and before there is time for his passion to cool, is guilty of manslaughter and liable, on conviction by a Court Martial to imprisonment for life.”
From the above stated provision, for the prosecution to prove the commission of manslaughter under the Armed Forces Act (supra), they have to prove the following facts beyond reasonable doubt:
(a) That the death of a human being had occurred.
(b) That the death was caused by an unlawful act of the accused.
(c) That the act of the accused person that caused the death of the deceased was done in the heat of passion caused by sudden provocation.
(d) That at the time of the commission of the offence, the accused was subject to service law under the Armed Forces Act.
All the above facts or elements must co-exist before a conviction for manslaughter under Section 105 of the Armed Forces Act can be sustained.

Now, the evidence on record shows clearly that the 1st and 4th elements, i.e; (a) and (d) were indisputably proved. What remains to be determined is whether it is the act of the Appellant that caused the deceased’s death. In a charge of

murder or manslaughter, it is necessary that the cause of death be first determined. As the Supreme Court held in the case ofAhmed v. The State (2001) 18 NWLR (pt.746) 622, the primary enquiry into the cause of death of a person is an enquiry into the biological cause of death. In a charge of murder or manslaughter therefore, if the cause of death has not be established, it will be a futile exercise to proceed to consider whether it was the accused who caused the death. Therefore, it is only after the cause of death has been determined or ascertained, that the issue of who and which act of the person accused is connected to the injury that resulted in the death of the victim. Thus, in a situation where the deceased did not die on the spot as in the instant case, the prosecution has an obligation to adduce concrete and lucid evidence which must give a clear and vivid description of the injury or injuries inflicted. Where there was treatment in the hospital, as in the instant case, the condition in which he was taken to the hospital and the hospital officials who attended to him, including the treatment he received up to the last moments leading to his death.

See Anthony Thompson Ebong & Anor v. The State (2011) LPELR – 3789 (CA); Usman Sule v. The State (2013) LPELR – 22323 (CA); Aliyu Bashir v. Kano State (2016) LPELR – 41561 (CA) and Nigerian Navy v. Lambert (2007) 18 NWLR (pt.1066) 300.

In the instant case there was no eye witness account of what transpired that led to the injury that resulted in the death of the deceased. The only direct evidence on this came from the PW4 (L/CPL Awalu Isa) and the confession of the Appellant himself. The PW4 testified that he is a neighbor to the Appellant. He testified in his evidence in chief at pages 82 – 83 of the Record of Appeal as follows:
“On that day Sir, I and my wife and children were outside in the night and taking breeze. Pindar’s brother came to join us and later on Pindar’s wife came. I saw LCPL Pindar Danjuma coming from duty, he spoke his language to his wife but I don’t understand their language. So, Pindar’s wife gave her child to Mummy Mohammed, that is my wife. Then the wife went to meet the husband. Later on as I wanted to go and ease myself, I was hearing shouting. The shouting was

coming from Pindar’s room. I couldn’t go to ease myself any more. I ran there and knocked, nobody responded. I now forced the door opened; I saw Pindar’s leg with boot on top of the wife’s stomach. I tried to remove his leg but couldn’t. I then rushed downstairs to call the block NCO. As I was coming back with the block NCO, we saw some women trying to help Pindar’s wife, to take her to the hospital.”

The wife of the PW4, Mrs. Christiana Awalu testified as the PW5. Though she did not directly witness any confrontation between the Appellant and the deceased, she stated at pages 87 – 88 of the record of appeal as follows:
“We were outside taking breeze, not too long Pindar’s brother came in, later Pindar’s wife joined us and within a short while Pindar himself came in uniform and spoke their language to the wife. The wife then said I should carry the baby that she is waning (sic: weaning) and that she was coming. She then followed the husband. Not long after my husband ran down stairs, not long Pindar came that where is Jeremiah, which Jeremiah he said Jeremiah his son. Pindar was going

down and my neighbor put on the generator as I was about to carry the child to her mother since I didn’t see her, I got there and I met the woman, her face swollen up. I met ice blocks on her body. Then I shouted and people came and gathered there.”

It should be noted that the PW4 and PW5 were never discredited in cross-examination nor was any evidence led by the defence to controvert their testimony. The clincher to the testimonies of the PW4 and PW5 was supplied by the Appellant himself. After narrating the sequence of events that took place on that day, the Appellant stated at page 135 lines 5 – 10 of the record of appeal as follows:
“Immediately she held me that I was not going anywhere, I told her that you knew I am on duty allow me to go. She said no. I tried to remove her hand, she refused. I used force to pull her hands and pushed her. She fell and hit her head on the wall. She said “ah”. From there, I ran and did not enter the room again.”

The testimony of the Appellant in Court as the DW6 is not different from his extra-judicial statement which is in evidence as (Exhibit “P3”).

Though it is lengthy, but I find it necessary to reproduce the said statement as it will bring out the background facts that led to the tragic incident. The Appellant had stated as follows:
“On Monday 5th of September, 2011, I dismounted from duty at the Army Mammy Market, after I slept and woke-up, I now called my wife, Mama Jerry, carry the corn which you soaked for water to engine for grinding and from there she ask me I give her some money and I told her to follow me inside room, so that I will give the money to her and of which I gave her the sum of five hundred (N500) naira only, and it was there I open my box and brought out my shirt and at the same time, she put her hand inside the box and brought out wrapper and I told her to give me the wrapper of which she gave it to me and I locked the box back and from there I went out with my shirt and my pressing Iron to go and ironed the suit and it was there she came and sat with me and she ask me, as you are now ironing your suit today, where are you going and later she left and carry the corn for grinding at the Mammy market.
She did not take much time she came back home to come and

filtered the …. And I told her to put water for me for bucket, that I want to take bathe and of which she did so, she still ask me, where am I going and I told her that I want to go and check my T.V. which I gave for repair and also to collect my money from somebody at first – gate; after that I came back home by 5pm in the evening and as I came back, I saw my son was crying and from there I questioned her why she should allowed Jerry to be crying and she replied me that, nothing concerned me and from there I entered inside my room and pull-off my suit and I now dressed-up in camouflage trouser and shirt and still ask her if somebody do your child as she do so, would you be happy and from there I went to my guard mounting and after guard mounting, I still went back home to see my family and she was not at home, and I called her on phone almost three times, she could not pick her phone and from there I decided to call her father at home and explain what happen to him and my father in law told me that, I should not worry she would go back home and from there I went back to my duty-post at the Army Mammy Market and later she called me through phone

and ask me where I was and I told her that I am at that place where I sent somebody to go and buy us meat and she later came to the place and meet me, it was there I asked her why she refused to pick my call the time I called on her.
It was that time she started to abuse me and some people advised me not to talk to her, and later she left me and went inside mammy market and later on, I have to look for her of which I later saw her behind one Igala-woman shop at the mammy market and I told Igala woman to advised her and when I carry my child, she now followed me and after I handed over her child to her, she still went back to the Igala woman shop. I went and look for her, but she was not there and I also called her on phone, she could not pick the called, and after some times she came back to my duty-post to meet me and from there I told her that let us go back home of which she did so, on my way back to house, I now called my Father and explained what happen and my Father said I should give her and my brother money to come back home at Biu (BORNO State) and when both of us reached House in the Barracks, she dropped her child down and she hold me on my

uniform and slapped me and from there I hold her two hands and pushed her and she hited her face on the wall inside the room and from there I went back to my duty-post at the mammy market, while she was crying…..”

It can easily be deduced from the testimonies of PW4, PW5 and that of the Appellant, including his extra-judicial statement made to the Military Police, that prior to the final act that led to the death of the decease, there was a serious misunderstanding between the Appellant and the deceased who were husband and wife. This culminated in the last event of the Appellant pushing the deceased with force, which led to the deceased hitting her head on the wall. The PW2 who investigated the case, told the General Court Martial that when he was directed to investigate the case, he visited the Appellant’s room where he saw a broken door but by that time the victim had been evacuated to the 2nd Division Military Hospital in Ibadan. The PW2 then testified at page 71 lines 3 – 11 of the record of appeal as follows:
“Immediately, I proceeded back to 2nd Division Hospital to see the victim. I saw the victim at the

emergency ward of the 2nd Division Hospital. I saw that there was blood gushing out from her mouth. I sent the details to my Commander; I was told that the victim has been referred to UCH. On the 9th of September, 2011, my Commander received a letter from HQ 2nd Division authorizing us to investigate the case. As soon as we received the letter and the minutes sent to me to commence investigation, pronto, the investigation commenced immediately by inviting all the witnesses.”

The PW3 insisted that he visited the 2nd Division Hospital where he saw the deceased. That the victim had by then been admitted into the Emergency Ward “with blood gushing out from her mouth”. This witness (PW3) was never contradicted in cross-examination. The PW3 also stated that as part of his investigation, he requested for and was given a Medical Report from the 2nd Division Military Hospital. The Report is in evidence as Exhibit “C1”. It should be noted that the Report was admitted without objection. The said Report which was signed by one Dr. S. Aminu stated as follows:
“1. I was the doctor on duty on 05 Sep.11 the day when Mrs. Pindar

Ruth was brought around 10.40am. She was unconscious. Informants told me she was met in her room unconscious after being beaten up by her husband.
2. Examination revealed a young girl, breathing with Glasgow Score of 3/15. Heart sound S1 and S2 were hard and pupils were sluggishly reactive to light. There was pen orbit swelling and blood was noticed in victims mouth.
3. An assessment of a severe head injury was made. She was placed on IV fluid and I Dexamphasone and subsequently referred to UCH because the Hospital has no intensive care unit and CT Scan machine to assess the site and extent of head injury.”

The PW1, Dr. Olufemi Abayomi Akintunde on whose behalf Dr. Aminu signed Exhibit “C1” testified to the effect that, he was on night duty on the 05/9/2011 when the deceased (Ruth Pindar Danjuma) was rushed to the hospital, i.e. 2nd Division Hospital. That she was brought in at about 10.40p.m by her neighbours who informed him that she was assaulted by her husband. He then stated at page 61 lines 1 – 4 of the record of appeal that:
“When she was brought in, we did a quick examination and found out that the

young lady was unconscious with bruises over the face and bleeding from her mouth. The eyes were swollen; we call them pernicious anaemia.”

It is stated also in the Case File (Exhibit “A1”) that the deceased was admitted on the 05/9/2011 in an unconscious state. She was pale with severe head injury. That due to lack of facilities in the Military Hospital, she was referred to the University College Hospital, Ibadan. PW2, is one Dr. Egboduku Emmanuel, and he testified that he is a Senior Registrar in Pathology which is a branch of medicine that deals with diagnosis, diseases, etc. That he is with the Department of pathology, University of Ibadan Teaching Hospital. He testified that the deceased Mrs. Ruth Pindar was referred from the Military Hospital to the University College Hospital on the 06/9/2011, and was on admission at the Teaching Hospital for 17 hours before she died. A post mortem examination was conducted, and the Result tendered through PW2 as Exhibit “A2”. The post mortem Result stated as follows:
“The post mortem examination revealed a body of a young woman measuring 170cm in length. There was multiple

bleeding under the skin, excessive blood bleeding in the skull bone, swelling of the inner line of the stomach which resulted in blood trauma. Abrasion involving the face, the tip of left shoulder, right elbow posterity and right inguinal region.”

The PW2 then stated that the severe head injury can be due to blunt force, and that the cause of death was due to “severe traumatic head injury.”

From what I have tried to point out from the totality of the evidence adduced at the trial, particularly the testimonies of PW1, PW2, PW4 and that of the Appellant himself including Exhibits “A1”, “A2” and “P3”, the cause of death can be rightly attributed to the act of the Appellant. The PW4 testified that when he broke into the Appellant’s room, he saw the Appellant matching the deceased with his Military boots on her stomach and that he tried to remove the Appellant’s leg from the deceased’s stomach but failed. That could have caused the “swelling of the inner line of the stomach” of the deceased. The Appellant himself testified that he held the deceased hands and with force,

push her and she hit her head on the wall. The injuries sustained by the deceased as described by PW1, PW2, PW4 and PW5; and the Exhibits “A1” and “A2” are consistent with the violent act inflicted on the deceased by the Appellant. As can be inferred from the testimony of PW4, and the multiple injuries suffered by the deceased, I am of the firm view that the Appellant did more than forcefully push the deceased. It appears to me, that the Appellant practiced some of the military training he had acquired on the helpless wife and victim of his brutality.
Learned Counsel for the Appellant appear to suggest that there was an intervening event that led to the death of the deceased. He got that idea from the testimony of the Appellant in Court and that of the PW2. That, the Appellant had told the Court that, the University Teaching Hospital (UCH) refused to admit the deceased initially because he was unable to pay. The PW2 on the other had testified that:
“She developed hypertension for which dopamine infusion was commenced and she later developed cardiopulmonary arrest and all effort to resuscitate her proved abortive and she died.”

I think the answer to the Appellant’s suggestion can be found in the testimony of the same PW2. Thus, in answer to a question from learned counsel for the Appellant in cross-examination, the PW2 explained “cardiopulmonary arrest” as follows:
“It is a mechanism of death, not the cause of death. In other words, it is a road in which leads to death.”
In other words, cardiopulmonary arrest may be described as the death process, or road to death. It is however not the cause of death. It is the cause of death that sets-off or triggers the cardiopulmonary arrest that terminates in death.
In the instant case, no doubt the deceased did not die on the spot. As stated by PW1 and PW4, the deceased was taken to the 2nd Division Military Hospital in a comma and remained in that condition till her death about two days later. In that respect, it cannot reasonably be said that there was any break in the chain of causation and the death of the deceased. There is also no evidence of any intervening factor between the act of the Appellant and the eventual death of the deceased. I therefore hold that, there is no

possibility or the probability that the deceased died of another cause other than the injury inflicted on her by the Appellant. There is no doubt on the actual cause of death which doubt could be resolved in favour of the Appellant. See Oforlete v. The State (supra); Azu v. The State (1993) 6 NWLR (pt.299) 303; Idemudia v. The State (1999) 7 NWLR (pt.610) 202; Aiguoreghian v. The State (2004) 3 NWLR (pt.860) 367; Musa Hamza v. The State (2019) LPELR – 47858 (SC) and Uyo v. Bendel State (1986) 1 NWLR (pt.17) 418.
It is therefore my view that the proximate cause of death of the deceased is the “severe traumatic head injury” inflicted on her when the Appellant forcefully pushed to the wall. By the simply application of the principle of causation the deceased would not have happened but for the violent act of the Appellant. There is ample evidence from the prosecution witnesses that the deceased was hale and hearty on the date of the unfortunate incident. I am therefore satisfied that the trial General Court Martial was right when it found that it was the act of the Appellant that caused the “severe traumatic head injury and secondary

assault” that resulted in the death of the deceased.

The next issue to consider is whether the act of the deceased was done with the intent to kill or do some grievous harm. This then leads us to issue two (2) raised by the Appellant. Therein, learned counsel for the Appellant contended that, in a trial for the offense of murder, whether or not the accused raises any defence, the trial Court should consider all defences available to the accused before proceeding to convict. The case of Babangida John v. The State (2012) 7 NWLR (pt.1299) 336 at 351 – 352 paragraphs H – C was cited in support. It was then contended that, at the earliest stage of the proceedings and at the trial, the Appellant raised the defense of insanity and provocation and called witnesses who testified on how the Appellant had been acting in abnormal ways before the occurrence of the unfortunate incident that led to the death of the deceased. The case of Babangida v. The State (supra) was then cited to submit that, to prove insanity, it must be proved that the accused was suffering either from mental disease or from natural mental infirmity, which deprived him, at the

relevant time of the capacity:-
(a) to understand what he was doing; or
(b) to control his actions; or
(c) to know that he ought not to do the act or make the omission.

Learned Counsel for the Appellant then referred to the testimonies of DW1, DW2 and DW5 to submit that the Appellant had exhibited some mental infirmity and irrational behavior during the period the incident occurred.

That, from the testimony of the defense witnesses, which was never contradicted, the defense of insanity can properly avail the Appellant. Learned Counsel then submitted that, it can properly be said that, at the time of the unfortunate incident, the Appellant lacked the mental capacity to understand what he was doing and to control his actions. On that note, learned counsel submitted that, a Court of trial must subject all defences, whether specifically raised or not to scrutiny especially when the life of the citizen is at stake. The cases of DSP Godspower Nwankwoala & Anor v. The State (2006) 14 NWLR (pt.1000) 663 and Mbanengen Shande v. The State 22 NSCQR 776 at 772 – 773 were cited in support. The cases of Takida v. The State (1969) 1 All NLR 270

and Sampson N. Uwaekweghinya v. The State 21 NSCQR 570 at 584 were then cited to submit that, all defences raised by the evidence, no matter how weak or stupid, must be adequately and properly considered.

Learned Counsel for the Appellant went on to submit that the prosecution has the additional burden to prove the absence of such defence(s). The case of Abubakar Dan Shalla v. The State 32 NSCQR 277 at 300; Williams v. The State (1992) 8 NWLR (pt.261) 815 at 522; Udofia v. The State (1984) 12 S.C.139 and Ojo v. The State (1972) 12 S.C.147 were cited in support. It was then contended that, in purporting to consider the defence of insanity raised by the Appellant, the General Court Martial posed a question which it answered in the negative. Learned Counsel then cited the case of Shande v. State (supra) at 772 – 773 to submit that the approach of the issue by the trial General Court Martial was improper. The case of James Biruwa v. The State (1992) 1 SCNJ 121 at 128 – 129 was cited in urging us to hold that the defence of insanity avails the Appellant.

In response, learned counsel for the Respondent contended that the defense of insanity was

considered by the General Court Martial. The case of Ejinima v. The State (1991) 7 SCNJ (pt. II) 318 at 328 was cited to submit that, the best way of establishing insanity, is by medical evidence but in the instant case, none of the witnesses called by the Appellant tendered medical evidence suggesting that the witness was at the time of committing the offense insane. That at the time of his interrogation, he was asked whether he was intoxicated, and he answered that he was not. That at the trial, when the defence witnesses were cross-examined, none of them was able to give any satisfactory answer to prove that the Appellant was insane at the time of committing the offence. It was then submitted that, after evaluation of the evidence on the defence of insanity, the General Court Martial was right when it came to the conclusion that the evidence given by the defence only showed snippets of abnormal behavior by the Appellant which did not amount to insanity in the legal sense. Learned Counsel for the Respondent concluded that, the General Court Martial considered all the defences raised by the Appellant and came to the conclusion that the defence of insanity

was not properly raised. We were accordingly urged to affirm the findings of the trial General Court Martial.

Now, Section 143(1) of the Armed Forces Act (supra) stipulates that the rules as to evidence to be observed in proceedings before a Court Martial shall be the same as those observed in criminal Courts in Nigeria. Therefore, a General Court Martial shall be guided by the provisions of the Criminal Procedure Court or Criminal Procedure Act. In the instant case, the Appellant was tried by the General Court Martial in Ibadan. I am therefore of the view that the provisions of the Criminal Procedure Act will apply. As a general principle of law, and in order to satisfy the Constitutional requirements of fair hearing, a trial Court is enjoined to consider all defences put forward by the accused person whether or not such defense has been specifically raised. Once the evidence adduced at the trial tends towards any defence, such defence must be considered and pronounced upon. In other words, a trial Court has the duty to consider all the defenses available to an accused person on the evidence adduced, whether or not such a defence has been specifically

raised by the accused. This is more so where the accused has raised the defense. See Adebayo Idowu v. The State (2011) LPELR – 3597 (CA); Galadima v. The State (2012) 18 NWLR (pt.1333) 610; Simeon v. State (2018) 13 NWLR (pt.1635) 128 and Ashare Ayaba v. The State (2018) LPELR – 44495 (SC).
I should however be remembered that the defences the Court is enjoined to consider, must be such defence or defences that are disclosed by the evidence presented at the trial and as contained on the record of appeal. In other words, even where the accused did not raise it, where the evidence on record discloses such defence, it must be considered by the Court. See Wasiu Hamzat v. The State (2019) LPELR – 47406 (CA); Ojochogwu P. Abraham v. The State (2017) LPELR – 42873 (CA) and Ada v. State (2008) 13 NWLR (pt.1103) 167 at 168. Thus, my Lord, Nweze, JSC in the case of Ashare Ayaba v. The State (supra) held as follows:
“Thus, it is not a matter of speculation by the Court to consider every and all imaginable defences open to an accused person not raised in evidence before the Court or contained in the record of proceedings. It cannot be

by any stretch of imagination in my humble and respectful view. It is not, I repeat, it is not the duty of any Court including this Court, to look for all possible exculpatory evidence that is not borne out in the Records, in favour of an accused person. It is not the law.”

In the instant case, the Appellant called evidence through DW1, DW2 and DW5 which tended to raise the defence of insanity. Now, Section 27 of the Criminal Code presumes every person to be of sound mind. In other words, every person is by law presumed to be responsible for his acts except where it can be established that at the time of the commission of the crime charged, he was not capable of understanding what he did or controlling his actions, or of not knowing that he ought not to do the act or make the omission which has resulted in the death of the deceased. See Sections 27 and 28 of the Criminal Code Act, Cap.C.38, Laws of the Federation of Nigeria, 2004. For a successful plea of insanity therefore, the evidence adduced at the trial must show that the insanity complained of, deprived the person accused of the murder or manslaughter of:
(a) capacity to understand what

he was doing; or
(b) capacity to control his actions; or
(c) capacity to know that he ought not to do the act or make the omission which resulted in the death of the deceased.
See Aiworo v. State (1987) 2 NWLR (pt.58) 526; Onyekwe v. State (1988) 1 NWLR (pt.72) 565 and Madjemu v. State (2001) 9 NWLR (pt.718) 349. To establish whether or not an accused person was insane at the time of commission of the offence, is a matter of fact to be deduced from the evidence placed before the Court in each case. It is not for the Judge to conclude without more that the accused was insane at the time he committed the offence. In the evaluation of the evidence in order to determine whether or not insanity has been proved, trial Courts are enjoined to consider any admissible medical evidence and the surrounding circumstances of the case, including:
(1) The nature of the killing;
(2) The conduct of the accused before, at the time and after killing; and
(3) Evidence of insanity in the blood or ancestral relation.
See Nwibo Nwode v. The State (2017) LPELR – 42799(CA); Madjemu v. State (supra); Udofia v. State (1988) 3 NWLR (pt.84) 533 and

Danbaba v. State (2018) 11 NWLR (pt.1631) 426. Thus, in the case of The State v. Babangida John (2013) LPELR – 20590(SC); the Supreme Court, per Aka’ahs, JSC held as follows:
“To establish the defence of insanity, recourse could be had to the following relevant facts, namely.”
(a) Evidence as to the past history of the accused person;
(b) Evidence as to the conduct of the accused immediately preceding the killing of the deceased;
(c) Evidence from prison officials who had custody of the accused person before and during the trial;
(d) Evidence of medical officers who examined the accused;
(e) Evidence of relatives about the general behavior of the accused person and the reputation he enjoyed for sanity or insanity in the neighbourhood;
(f) Evidence that insanity runs in the family history of the accused; and
(g) Such other facts which will help the trial Court come to the conclusion that the burden of proof placed by law on the defence has been discharged.”
As stated earlier in the course of this judgment, the burden is on the accused person who asserts or pleads insanity to prove that

fact. See Section 139(3) (c) of the Evidence Act, 2011 and the cases of Madjemu v. The State (supra);Guobadia v. State (2004) 6 NWLR (pt.869) 360; Peter v. State (1997) 12 NWLR (pt.531)1 and Loke v. State (1985) 1 NWLR (pt.1) 1. The burden will be discharged on a balance of probability. See Oseni v. State (2017) LPELR – 42770 (CA); Oghenereumu Ibane v. The State (2012) LPELR – 9326 (CA) and Danbaba v. State (2018) LPELR – 43841(SC). In the case of Amako v. State (1995) 6 NWLR (pt.399) 11, Iguh, JSC held as follows:

“On the defence of insanity, the general rule is that, 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. An accused person who contends that he is insane or, indeed, that he suffers from insane delusion, has the duty to rebut this presumption of law which regards him as sane until the contrary is proved. The onus therefore rests on him to prove insanity or insane delusion.”

In the instant case, the Judge Advocate summed up the evidence presented before the Court Martial and particularly on the plea of insanity and

the applicable law thereto and counseled at page 212 lines 13 – 27 of the record of appeal as follows:
“…My Lords, there is no evidence before this Honourable Court that the accused was insane at the time he committed the act as well as before this trial. The accused cannot hide under the cloak of insanity to escape justice. However, if you are of the opinion that the circumstances enumerated above confirms with the evidence of insanity adduced by the defence counsel, you will so hold, discharge and acquit the accused of the offence, but if otherwise you can safely convict the accused of the said offence. From the foregoing therefore, I shall leave it to the honourable Court to determine whether LCPL Pindar Danjuma “was normal,” when he conceived the idea to beat his wife, took steps to first and foremost report her behaviours to his father in-law and indeed executed his plan by beating her up and pushed her to hit her head on the wall, thereafter placed her on the bed and further took ice block and put in (sic) her body. Considering the victim’s state of unconsciousness, your Lordships will also determine whether a

reasonable person can shut the door against such a victim and thereafter proceed to his duty before being later arrested by his CSM.”

It is my view that the above findings of the Judge Advocate is supported by the evidence on record. The only evidence on record as to the mental state of the Appellant came from DW1, DW2 and DW5. The DW1 gave evidence of two instances where he found the behavior of the Appellant as abnormal. The first time was when the Appellant jumped from the rank and insulted one W.O. Oniwinde and the second time when he saw the Appellant standing and crying. That their RSM then directed that he be taken to the hospital for treatment and was given 7 days excuse duty. The DW1 did not say which department of the hospital they visited and the nature of treatment given to the Appellant. No medical report or other document from the said hospital was tendered. DW2 gave evidence of an instance when one W.O. Nicholas came to arrest the Appellant in company of two other soldiers but the Appellant resisted arrest, and threatened to deal with anyone that touched him. The DW2 did not state the reason for the arrest of the Appellant or whether

the Appellant engaged in any violent conduct. The DW5 only repeated the crying incident narrated by DW1 with the addition that he (DW5) took the Appellant to a man of God for prayers after the Appellant told him that he used to see people chasing him at night and also that he used to see masquerades.

It should be noted that, in all these, none of the Appellant’s neighbours in the Barracks testified to any unusual behavior by the Appellant that could be characterized as insanity. It is not unusual for people to experience some periods of “highs and lows” in everyday life precipitated by social, family, economic and official problems. But such feelings and reactions cannot by any pretext be equated with insanity. It is normal that people react differently to different experiences in life, so because a person behaves or acts outside the “normal” expectation of others, it should be equated with insanity. In any case, the Appellant’s father and his father in-law, testified as DW3 and DW4 to the good character of the Appellant. The DW3 (father in-law) testified that he knew the Appellant for a long time before he married his

daughter. He stated at page 111 lines 1- 4 of the record of appeal as follows:
“From that time I did not find him with any problem, since Pindar married to my daughter. I don’t think he has problem with my daughter until 2001 that they went to (Dafur) Sudan.”

The PW3 also narrated how the Appellant reported his daughter’s misbehavior to him and the effort he made to reconcile the couple. In all these, he did not narrate any conduct of the Appellant which could, even remotely, be equated with insanity.

The PW4 (Appellant’s father) told the Court that before the incident, PW3 had informed him of the quarrel between the Appellant and the deceased. He also told the Court that, since the Appellant was born, he did not fight with anybody, and that if he had any problem, it would be when he joined the army. From the testimony of PW3 and PW4 therefore, there is no history of insanity attributable to the Appellant.

The best evidence that could have settled the issue of insanity would be the medical evidence, but there was none. There is also no evidence that the Appellant was ever admitted to or treated in any hospital

for any mental ailment that could lead him to develop any insanity. It is therefore my humble and respectful view that the General Court Martial was right when it found no evidence of insanity that could negative the intent to kill on the part of the Appellant. The defence of insanity raised by the Appellant was therefore not proved.

On the issue of provocation raised by the Appellant, it is glaring from the record that the Appellant is misconceived. It is because the General Court Martial considered the issue of provocation that the conviction for murder was committed to that of manslaughter. Though the General Court Martial relied on Section 325 of the Criminal Code instead of Section 105(b) of the Armed Forces Act of supra, no injustice has been occasioned thereby. As rightly pointed out by the General Court Martial, proof of provocation does not negative intent as to lead to an acquittal. A successful plea of provocation only reduces the gravity of the punishment. This is evident in Section 105(b) of the Armed Forces Act which provides that a successful plea of provocation will attract a conviction for “manslaughter” and the punishment

thereon will be imprisonment for life.

Having resolved as above, it is apparent that all the issues raised for determination in this appeal, do not favour the Appellant. It means therefore, that this appeal lacks merit. It is accordingly dismissed. I accordingly affirm the decision of the General Court Martial of the 2nd Division of the Nigerian Army holden at Adekunle Fajuyi Cantonment, Ibadan delivered on the 1st day of March, 2013 in Court Martial No: 02NA/52/5151.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the draft of the lead Judgment of my learned brother SIMON TSAMMANI, JCA, just delivered.
I agree with my Lord’s reasoning and conclusion that this appeal lacks merit.
Accordingly, the appeal is also dismissed by me.
I abide by the consequential order made in the said lead Judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have had the opportunity to read the draft of the lead judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI, JCA and I agree with him that this appeal lacks merit and should be dismissed.

The instant appeal has its root in acts of domestic violence. It is evident from the record that

the death of the deceased was as a result of the violent assault meted on her by the Appellant, her husband.
It is trite that in a charge of murder or manslaughter, the Prosecution must prove that the act of the Accused Person led to the death of the deceased. In other words, it must be proved that there is a nexus between the act of the Accused Person and the death of the deceased. See OLALEKAN V. STATE (2001) 18 NWLR (PT. 746) 793; UKPONG V. STATE (2019) 6 NWLR (PT. 1667) 1; ANYASODOR V. STATE (2018) 8 NWLR (PT. 1620) 107; ABELEGAH VS. STATE (2018) 18 NWLR (PT. 1650) 172 and OLADAPO VS. STATE (2020) 7 NWLR (PT. 1723) 238 AT 250.
Premised on his own confession, the Appellant forcefully pushed his wife, the deceased who fell and hit her head on the wall. PW2 gave credible eye witness account of what he saw when he entered the Appellant’s house. He said he saw the Appellant standing on top of the deceased’s stomach with his boots on. This evidence is corroborated by the Post-Mortem report, Exhibit A2. It is stated in Exhibit A2 that there was a swelling of the inner line of the deceased’s stomach which resulted in blood trauma.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Prosecution established the cause of death of the deceased and linked it to the act of the Appellant. It proved its case against the Appellant beyond reasonable doubt. The Appellant should not be allowed to go unpunished for his barbaric acts.
Finally, I wish to lend my voice to the outcry against the alarming increase in domestic violence in our society. Domestic violence has resulted in unnecessary deaths of otherwise healthy partners in the marriage institution. My passionate appeal is that couples should pray for patience and endeavour to resolve issues between them amicably. Conflicts would arise but resort to violence should be avoided.

I am in complete agreement with my learned brother that this appeal lacks merit and should be dismissed. It is accordingly dismissed by me and I also affirm the decision of the General Court Martial sitting at the Headquarters of the 2nd Division, Adekunle Fajuyi Cantonment, Ibadan in Court Martial No: 02NA/52/5151 delivered on 1st of March, 2013.

Appearances:

Olalekan Thanni, Esq., with him, I. T. Oseni, Esq. For Appellant(s)

Kadir Temim, Esq. For Respondent(s)