DAVID v. STATE (2021)

DAVID v. STATE

(2021)LCN/15132(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, March 22, 2021

CA/IL/9C/2020

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Between

OGUNDELE DAVID APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

MEANING OF THE OFFENCE OF CULPABLE HOMICIDE

The Supreme Court has held in a plethora of cases that: “Generally, homicide means the killing of one person by another, it is also the act of purposely knowingly, recklessly or negligently causing the death of another human being. However, culpable homicide is a wrongful act that results in a person’s death but does not amount to murder.” Per Ariwoola in DANBABA VS. THE STATE (2018) LPELR 43841; APISHE VS. THE STATE (1969) 1 ALL NLR PG. 270; WILLIAMS VS. INSPECTOR GENERAL OF POLICE (IGP) (1965) NMLR PG. 470; ADAMU VS. THE STATE (2014) ALL FWLR PT. 1416, PG. 441. See also Blacks Dictionary 9th Edition, Pages 802 and 803. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

ESSENTIAL INGREDIENTS OF THE OFFENCE OF THE OFFENCE OF CULPABLE HOMICIDE

The ingredients of the offence of Culpable Homicide are: 1) The deceased died. 2) The death of the deceased resulted from the act of the Accused Person. 3) The Accused person caused the death of the deceased intentionally OR With the knowledge that death or grievous bodily harm was its probable consequence. Per Augie in SANI VS. THE STATE (2019) 43475. See S.221 of the Penal Code, SULE AHMED (ALIAS EZA) VS. THE STATE (2001) 18 NWLR PT. 746, PT. 622; AKPA VS. THE STATE (2007) 2 NWLR PT. 1019, PG. 509; USMAN ABUBAKAR VS. THE STATE (2017) LPELR 43197; OYAKHENE VS. THE STATE (2005) LPELR 11325; GALADIMA VS. THE STATE (2017) LPELR 43469; SA’ADU VS. THE STATE (2018) LPELR 44709; EDWINOGBA VS. THE STATE (1992) 2 NWLR PT. 222, PG. 164; AKINFE VS. THE STATE (1988) 3 NWLR PT. 85, PG. 729; ONAH VS. THE STATE (1985) 3 NWLR PT. 12, PG. 236. In BASIL AKPA VS. THE STATE (2006) LPELR 7603, the Court held that the three ingredients of the offence of Culpable Homicide must be proved or co-exists before a conviction could be secured. Failure to establish any of the ingredients would result in an acquittal. See ADAVA VS. THE STATE (2006) 9 NWLR PT. 984, PG. 152; SANI VS. THE STATE (Supra). PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

POSITION OF THE LAW ON THE INTENTION OF THE ACCUSED WHERE HE, BY AN UNLAWFUL ACT, CAUSES GRIEVOUS BODILY HARM ON ANOTHER PERSON LEADING TO THE DEATH OF THAT PERSON

It is the law that a person intends the natural consequences of his actions and if there was an intention to cause grievous bodily harm and death results, then the Appellant must be held culpable for the offence. See NWOKEARU VS. THE STATE (2010) 15 NWLR 1215, PG. 1; NJOKU VS. THE STATE (2013) 2 NWLR PT. 1339, PG. 548. See ABDU VS. THE STATE (2014) LPELR 22562. It is trite law that where a person by an unlawful act, causes grievous bodily harm on another person leading to the death of that person, he is presumed to have intended to kill that person and he will be guilty of culpable homicide punishable with death regardless of his intention. A man is presumed to intend the natural consequences of his act. AUDU VS. THE STATE (2003) 7 NWLR PT. 820, PG. 516; AFOLABI VS. THE STATE (2016) LPELR 40300. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

POSITION OF THE LAW ON THE INTENTION OF A PERSON WHO STABS OR STABS WITH A SHARP KNIFE ON VULNERABLE PARTS OF THE BODY OF ANOTHER

It is a matter of common knowledge that if one stabs or stabs with a sharp knife on vulnerable parts of the body, such person could be deemed to have intended to cause such bodily injury as he knew death could result from his action. See GARUBA VS. THE STATE (2000) 4 SCNJ PG. 315; ALAO VS. THE STATE (2011) LPELR 3700; AFOLABI VS. THE STATE (Supra); THE STATE VS. HARUNA (2017) LPELR 43351; NWOKEARU VS. THE STATE (Supra); HALLIRU VS. THE STATE(2016) LPELR 41310; THE STATE VS. HARUNA (2017) LPELR 43351. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

DUTY OF THE COURT TO CONSIDER ALL THE DEFENCE OPEN TO AN ACCUSED IN THE CASE BEFORE IT

A Court is under a duty to consider any defence open to an Accused in this case, the Appellant or raised by an Accused before convicting on a particular offence.LADO VS. THE STATE (1999) 9 NWLR PT. 619, PG. 369; ULUEBEKA VS. THE STATE (2000) 4 SC PT. 1, PG. 203; OFORLETE VS. THE STATE (2000) 7 SC PT. 1, PG. 80; ARABI VS. THE STATE (2001) 12 WRN PG. 158. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

ON WHOM RESTS THE BURDEN OF PROOF OF INSANITY ; FACTORS THAT MUST BE TAKEN INTO CONSIDERATION BY THE TRIAL COURT WHEN CONSIDERING THE DEFENCE OF INSANITY

The law is that in all criminal cases, every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved. GUOBADIA VS. THE STATE (2004) 6 NWLR PT. 869 PG. 360; ANI VS. THE STATE (2002) 10 NWLR… Thus, an Accused Person who pleads insanity as a defence to an offence with which he is charged has the burden of proving that at the time he committed the act, he was suffering from insanity or insane delusion or that he was labouring under such defect of reasoning 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. GUOBADIA VS. THE STATE (Supra); ANI VS. THE STATE (Supra); R. VS. OGON (1961) 1 ALL NLR PG. 70. Whether an Accused is insane or not will be a question of fact to be deduced from the evidence placed before the Court in a particular case. Thus, in an attempt to establish the defence of insanity, the trial Court should consider any admissible medical evidence and the whole of the facts and the surrounding circumstances of the case which will include (a) the nature of the killing (b) the conduct of the accused before, at the time of the killing as well as thereafter, and (c) evidence of insanity in the accused … or blood relation. ANI VS. THE STATE (Supra); DIM VS. R. (1952) 14 WACA; R. VS. AYINDE (1963) 1 ALL NLR PG. 393. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

BURDEN AND STANDARD OF PROOF REQUIRED IN ESTABLISHING THE DEFENCE OF INSANITY

An Accused Person who pleads insanity as a defence to an offence with which he was charged must prove that he was insane at the time of committing the act. The standard of proof required of the Accused is, however, proof on the balance of probabilities or preponderance of evidence and not proof beyond reasonable doubt. GUOBADIA VS. THE STATE (SUPRA); ONAKPOYA VS. THE QUEEN (1959) NSCC PG. 130. (1959) SNLR PG. 384. It should be noted that evidence of insanity tendered by an Accused Person himself is suspect and should not be taken serious. GUOBADIA VS. THE STATE (Supra). Even evidence that an Accused Person had mental disorder which does not show that the disorder deprived the Accused of the capacity to understand what he was doing and to know that he ought not to have done the act in question is not a satisfactory evidence of defence of insanity. GUOBADIA VS. THE STATE (Supra). PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

POSITION OF THE LAW ON WHAT CONSTITUTES AN ATTEMPT TO COMMIT AN OFFENCE

To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation. OZIGBO VS. COP (Supra); SHURUMO VS. THE STATE (Supra); REV. KING VS. THE STATE (2016) LPELR 40046; Pats-Achalonu J.C.A. (as he then was), in IBRAHIM VS. THE STATE (1994) LPELR 14350 held as follow: “What is attempt? S.4 of the Criminal Code defines attempt as follows:- When a person intending to commit an offence begins to put his intention into execution by means adopted to its fulfilment and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.” PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

INGREDIENTS OF ATTEMPT TO AN OFFENCE

In the Penal Code, the ingredients of attempt to an offence are as follows: 1. An attempt to commit an offence by the accused OR that the accused attempted to abet the commission of an offence. 2. That the accused in attempt did some acts not of an ambiguous kind, directly towards the commission of an offence. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

CRITERIA THAT MUST BE MET IN PROOF OF AN ATTEMPT TO COMMIT MURDER

Following the law strictly, Pemu J.C.A. espoused the criteria of an attempted murder thus: “The criteria for proving attempted murder are threefold they are: a. Nature of the weapon used; b. Part of the victim’s body brutalized by the lethal weapon; and c. The extent of proximity of the victim with the lethal weapon.” MOHAMMED VS. THE STATE (2012) ALL WLR Pt. 621 PG. 1564. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Kwara State delivered on 15th October, 2019 by I. A. YUSUF, J.

The Appellant in this Appeal was charged on a Two-Count Charge on 25th April, 2018. The Appellant was charged with Culpable Homicide punishable with death under S.221 and attempted Culpable Homicide under S.291 of the Penal Code. The Prosecution called four (4) witnesses and tendered many Exhibits.

The Appellant put in his defence and called two (2) other witnesses. At the end of the trial, the learned trial Judge delivered his considered judgment finding the Appellant guilty on both Counts. The Appellant being dissatisfied filed this Appeal.

The Appellant had gone to the house of the deceased where he met the deceased and her mum PW2. There was an argument whether the deceased would change her mind about marrying the Appellant since he was already married. The argument and the supplications of the mum, PW2 for the Appellant to see reason why it is impossible for the deceased to marry the Appellant. The Appellant in the midst of this argument

stabbed the deceased and her mum, PW2. The deceased died on the spot. After the stabbings, the Appellant went into hiding but not before he withdrew money from the ATM Card of the deceased.

The PW2 thereafter, shouted for help. The Police arrived soon after and met the PW2 bleeding and the lifeless body of the deceased.

When the Appellant was arrested, he was arraigned before the High Court. Judgment of guilty was passed on him on the two Counts Charge and sentenced to death by hanging. He was naturally dissatisfied with the verdict and filed his Notice and four (4) Grounds of Appeal on 13th January, 2020.

The Appellant filed his Appellant’s Brief of Argument on 9th June, 2020 and deemed properly filed and served on 11th February, 2021. In it, the Appellant articulated two (2) Issues for determination as follows:-
ISSUES FOR DETERMINATION:
1. Whether the Court below was right in convicting the Appellant when the Appellant presented a valid defence of insanity (Distilled from Grounds 1 and 3 of the Notice of Appeal).
2. Whether the Court below was right in holding that the prosecution had proved its case against the

Appellant beyond reasonable doubt (Distilled from Grounds 2 and 3 of the Notice of Appeal).

The Respondent filed its Respondent’s Brief of Argument on 8th July, 2020 but deemed properly filed and served on 11th February, 2021. The Respondent also articulated two (2) Issues for determination as follows:-
1. Whether the learned trial Judge was right in holding that the defence of insanity cannot avail the Appellant, having regard to the totality of evidence adduced at the trial. (Relates to Grounds 1) (sic).
2. Whether the learned trial Judge was right to have held that prosecution proved beyond reasonable doubt the ingredients of the offences of Attempt to Commit Culpable Homicide and Culpable Homicide against the Appellant as required by law. (Relates to Grounds 2 and 3).

I will use the two (2) Issues articulated by the Appellant in the determination of this Appeal since he is the owner of this Appeal.

ISSUE 1:
The learned Counsel for the Appellant put up a defence of insanity. He contended that insanity is a blanket term embracing a considerable variety of mental abnormalities, mental infirmities, nervous and

psychosis, SANUSI VS. THE STATE (1984) 10 SC PG. 166; POPOOLA VS. THE STATE (2013) 17 NWLR PT. 1382, PG. 92. Counsel referred the Court to S.51 Penal Code Law of Kwara State which provides as follows:-
“Nothing is an offence which is done by a person who at the time of doing it by reason of unsoundness of mind is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to the law.”

Counsel agreed that everyone is presumed to be sane and of sound mind and accountable for his actions, unless the contrary is proved. The burden of proof of insanity is satisfied if the fact proved by the defence is such that makes it most probable that the Accused was at the relevant time insane. See OGBU VS. THE STATE (1992) 8 NWLR PT. 259, PG. 255.

Counsel submitted that it is the duty of the Court to consider all the defence available in a trial for culpable homicide. In ADAMU VS. THE STATE (2014) 10 NWLR PT. 1416, PG. 441 the Court held that:
“In all trials of culpable homicide, the Court has the onerous duty to consider:
(a) All the defences raised by the evidence whether the accused person

specifically put up such defence or not; and
(b) Any defence raised by an accused person no matter how weak, inconsequential or stupid it may appear must be given due attention.”

He opined that in the event that the Court failed to consider it, the Appeal Court can consider the defences available to the Accused person, THE STATE VS. JOHN (2013) 12 NWLR PT. 1368, PG. 337:
“In a charge of murder (homicide), after the Court considers the defence raised by the accused person, the Court should go the extra mile to consider other defences available to the accused person on the facts established in the trial Court. The Appeal Court would consider defences available to the accused person if such defences were not considered by the trial Court.”

In ADAMU VS. THE STATE (Supra), the Supreme Court held that:
“Ordinarily in law, everyone is presumed to be sane and of sound mind and accountable for his action, unless the contrary is proved. But where there is defect or incapacity of the understanding, as there can be no consent of the will, the act is not punishable as a crime. In the legal sense, whether the accused was sane or

insane at the time when the act was committed is a question of fact to be decided by the trial Judge but not by medical men, however eminent or knowledgeable, and is dependent upon the persons and contemporaneous acts of the accused. Ani Vs. State (2002) 10 NWLR (Pt.776) 644.”

Counsel submitted that applying the above principle, the Appellant did not know what he was doing. Counsel referred the Court to Exhibit F where the Appellant recounted how he found himself in Ilorin whereas, he was getting ready for work in Omu-Aran. He also found himself in the deceased house. Appellant met the deceased and PW2 in their house. They exchanged pleasantries and the next minute he had stabbed the deceased and her mum, PW2. He left there immediately and went back to Omu-Aran. He met Police men at the Check Point on the way. He claimed he was in a fight when confronted with his shirtless body.

Counsel also recounted that DW1 and DW3 gave evidence to the fact that the Appellant acted abnormally before and after the murder. Counsel further submitted that the fact that he left the murder weapon at the scene and the lack of effort to clean his bloodied slippers

are actions showing lack of premeditation, motive or ill-will to commit homicide. These are actions compatible with temporary disease of the mind which made him incapable of knowing what he was doing. Counsel re-iterated that the Appellant had no motive to commit this murder. Motive is also a relevant consideration in deciding whether the Accused person was insane at the time of homicide. See MADUJEMU VS. THE STATE (2001) 9 NWLR PT. 718, PG. 319, ONIPEDE VS. QUEEN (1959) SCNLR PG. 7.

Finally, Counsel submitted that the abnormal behavior of the Appellant prior to and after the murder shows that he was insane and did not know what he was doing. Moreover, what the Appellant did was incongruous with his wish to marry the deceased. Counsel therefore, urged the Court to hold that the Appellant could not have had intention to kill the deceased and that at the time the Accused was alleged to have stabbed PW2 and the deceased, he was suffering from mental disease or natural mental infirmity at the relevant time and as such was, deprived of capacity to understand what he was doing, or to control his actions, or to know that he ought not to do the act he did.

In response, the learned Counsel to the Respondent submitted that every man is presumed to be sane and of sound mind and accountable for his actions unless the contrary is proved. DANBABA VS. THE STATE (2018) LPELR 43841; EDOHO VS. THE STATE (2010) ALL FWLR PT. 125, PG. 661. The onus therefore, rests on the Appellant to prove that he is insane or suffers from insane delusions as to deprive him of the Mens Rea of culpable homicide and attempt to commit it. Otherwise, a trial Court would regard him as sane. See AIWORO VS. THE STATE (1987) 2 NWLR PT. 58, PG. 526; ARISA VS. THE STATE (1988) 3 NWLR PT. 83, PG. 386.

Counsel also argued that for a defence of insanity to succeed, the Appellant must establish that at the time of committing the offence, he suffered from mental disease or natural mental infirmity as to deprive him of the capacity to:-
i. Understand what he was doing;
ii. Control his actions; or
iii. Know that what he was doing was wrong.

See UKADIKE VS. THE STATE (1973) 6 S.C. 17, AIWORO VS. THE STATE (SUPRA), and LOKE VS. THE STATE (1985) PT.1, PAGES 11 and 12.

Counsel submitted that the Appellant has not led

convincing evidence to ground the defence of insanity by him. Counsel stated that at all times, the Appellant knew what he was doing. Counsel referred to Exhibits F and G Extra Judicial Statements of the Accused where he stated that:
“Tosin mum said she was happy to see me and we discussed for few minutes. Suddenly, the atmosphere changed and an argument began and before I knew it I have stabbed Tosin and her mum…” (Underlines supplied for emphasis).

Also, his viva voce evidence in Court where he said as follows:-
“…I called the deceased and told her that I was coming to see her and mother. I was aware she came to Ilorin over the weekend. I drove straight to the deceased’s house. I met her in the kitchen preparing food…..After some minutes the deceased mother came out from the bathroom… Thereafter, I did not know what happened until I saw the two of them on the ground in the pull (sic) of their blood. I cannot explain what happened. Immediately I left the scene, entered my car and drove away…. I went straight to Omuaran.
…On that fateful day I went to the deceased house

alone… I went to Omuaran first and thereafter to Oba – Ile on the same day…..” Underlines supplied for emphasis).

See also the evidence of PW2, the mother of the deceased:
“…Not long after my daughter returned from her office, I heard her shout, “Mummy mummy, David has come”. The accused person went inside the house and met my daughter inside the kitchen. The accused locked the door and put the key inside his pocket. He took a knife from the kitchen and told my daughter that he was going to kill her. Before this time, I had told the accused “happy to meet you” but he replied that “there is nothing like happiness”. I begged the accused not to kill my daughter…..” (Underlines supplied for emphasis).

Counsel submitted that the Appellant knew what he was doing. After stabbing the deceased and PW2, the Appellant dropped the murder weapon, the knife, the blood stained slippers and drove to Omu-Aran and thereafter, withdrew money from the ATM Account of the deceased. From the account of the Appellant who narrated the sequence of his action after the murder:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“… I left the place immediately for Omuaran and since then I have been moving from one place to the other …. After the whole thing. I dropped the knife on the floor beside the bed. After killing Tosin. I came out bare footed with blood all over my shirt. When I go (sic) to around Idofian I removed my shirt I threw it… I threw the shirt out on the road…
When I got very close to Oke Onigbin, Police stopped me and asked me what happened to me. I told them I was attacked just to have my way……”

In Exhibit G, Appellant equally stated thus;
“On 10th May, 2019, IPO called my number …. he was hearing a woman’s voice meanwhile I was the one speaking. I deliberately (put) set the phone to a woman’s voice thinking I can hide from my shadow. But the truth must travail (sic) and it has travailed (prevail) now…..” (Underlines supplied for emphasis).

Counsel contended that this act does not tally with the mind that is insane. Also insanity is not proved by the mere mention of the word or mere denial of knowledge of when the act was committed, as done by the Appellant.

In AIWORO VS. THE STATE (Supra) Kazeem, J.S.C. held that:
“…it will be a dangerous trend indeed for a Court to lay it down as a principle that every time it pleases a man to commit a heinous crime such as this, it will be enough to exonerate him from the consequences by saying that he was mad or insane… which deprived him of the ability to know that what he did was wrong, without calling sufficient credible corroborative evidence to support his own assertion…” (Underlines for emphasis).

Counsel submitted that the burden of proving insanity rests on the Appellant and where he fails to do so he must bear the consequences of his action; NKANU VS. THE STATE (1980) 3 & 4 SC PG.1; ARUM VS. THE STATE (1979) 11 SC PG. 91.

Counsel stated categorically that from the evidence that the Appellant’s attack on his victims was purely an outbreak of impulsive violence over which he had control. The Appellant was also able to recall every detail of what happened at the scene of crime to the point he was arrested by Police, see Exhibits F and G.

Counsel submitted further that the Appellant did not suffer any known

mental disability prior to the murder and after. Counsel referred the Court to the evidence of PW1 – PW4, DW1 and DW3 and Exhibits F and G. which were corroborated by the evidence of PW2 – eye witness, OLADELE VS. THE STATE (1993) 1 NWLR PT. 269, PG. 307.

Counsel also argued that there was no medical report as to this medical condition of insanity. Proof of insanity can also be proved by compelling evidence of relations stating the behavioural pattern of the Appellant before, during and after the offence was committed. See EJINIMA VS. THE STATE (1991) 6 NWLR PT. 200, PG. 627.

Nothing in the Appellant’s former behaviour that suggests insanity. The learned trial Judge in his judgment had this to say:
“The defence of insanity cannot avail the accused person in this case because there is nothing to suggest both in his evidence in Court and in his extra-judicial statements that he was insane at the time he matched (sic) PW2 and the deceased. I have no doubt in mv mind that the accused was sane and mentally alright before, during and after he committed the offence …

Evidence before the Court in the present case shows that the accused person exhibited some misbehaviour, particularly to DW1 between the time he met the deceased and the time he stabbed the deceased to death, he exhibited misbehaviours because he was obsessed with his passionate lust for the deceased and not that he was insane…”
For the defence of provocation to avail the accused, the conditions are as follows:
a) The act of provocation must be grave and sudden;
b) The accused must have lost self-control, actual and reasonable; and
c) The mode of retaliation must bear reasonable relationship to the provocation. See Muh’d Vs. State (2018) ALL FWLR (PT.936) P.1428 AT 1445-1446.
The argument which the accused said he had with PW2 and the deceased is not grave and sudden, and the advice which PW2 gave to the accused to stick to his legal wife is not such that would cause a reasonable person a sudden and temporary loss of self-control that will result to the death of another

person…
I am satisfied that the act of the accused person which caused the death of the deceased was done with the intention of causing her death. I reject the defence of insanity made by the accused person” (Underlines supplied for emphasis).

The learned trial Judge considered the defences available to the Appellant from the evidence available to the Court and reached its considered decision.
THE STATE VS. BABANGIDA JOHN (2013) LPELR 20590; ARUM VS. THE STATE (Supra); UDOFIA VS. THE STATE (1981) 11 – 12, SC PG. 41; KURE VS. THE STATE (1988) 1 NWLR PT. 71, PG. 404; IDOWU VS. THE STATE (1972) ALL NLR PG. 435.

Counsel finally urged the Court to hold that the defence of insanity did not avail the Appellant.

ISSUE 2:
The learned Counsel for the Appellant submitted that for there to be a crime there must be Actus Reus and Mens Rea. See ADEKOYA VS. THE STATE (2017) 7 NWLR PT. 1563, PG. 343. Counsel argued that there was Actus Reus but no Mens Rea from the evidence in the trial Court. Counsel argued that the prosecution ought to prove his case beyond reasonable doubt. See OBI VS. THE STATE

(2013) 5 NWLR PT. 1346, PG. 87 where the Supreme Court held that:
“The golden rule that runs through the conduit pipe of the criminal justice system, and which also remains immutable is that the prosecution must establish and prove by positive, credible and satisfactory evidence, the guilt of the accused beyond reasonable doubt, because an accused is presumed innocent until his guilt is established. In proving the prosecution case beyond reasonable doubt, every ingredient which constitutes the totality of the offence must be established. And failure to prove one element of the offence would amount to failure of the prosecution to prove its case beyond reasonable doubt”.

Counsel further stated that culpable homicide is committed when a person intentionally causes the death of another. See ALI VS. THE STATE (2012) 7 NWLR PT. 1299, PG. 209 where the Supreme Court held as follows:-
“To secure a conviction for culpable homicide punishable with death, the prosecution must establish the following ingredients of the offence:
(a) That the death of a human being has actually taken place;
(b) That his death was caused by the

accused; and
(c) That the act of the accused which caused the death was intentional having the knowledge that death or grievous bodily harm was the probable consequence of the act.
By the provision of Section 221 of the Penal Code, culpable homicide is punishable with death if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”

OCHEMAJE VS. THE STATE (2008) 15 NWLR (PT. 1109), PG. 57; See also ARCHIBONG VS. THE STATE (1972) 10 SC PG. 37 where the Supreme Court held as follows:-
“In order to secure conviction for a murder, there is the need to establish the cause of death and the cause of death must be referrable to the accused. It is not sufficient that death resulted from the act of an accused, it must be shown that there was the intention to kill, or to do grievous harm, or that the act was likely to endanger human life; before the offence of murder is established.”

Counsel argued that the necessary ingredient of intention was not proved in this case. In ABIRIFON VS. THE STATE (2013) 13 NWLR PT. 1372, PG. 587, the Supreme Court held that:
“In a murder charge, the prosecution has the burden to prove that:
(a) The accused person killed/murdered the deceased;
(b) The killing was unlawfully committed; and
(c) Killing was intentional.

Counsel still referred the Court to the case of AFOSI VS. THE STATE (2013) 13 NWLR PT. 1371 AT 329, PGS. 354 – 355, PARAS. F – H. where the Supreme Court had this to say:
“One of the ingredients which is necessary to impute to an accused person in order to find him guilty of the crime of murder is the intention of the accused person. Thus, before an act can be murder, it must be aimed at someone and must in addition be an act committed with one of the following intentions:
(a) The intention to cause death:
(b) The intention to cause grievous bodily harm, that is, really serious injury;
(c) Where the accused person knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits these acts

deliberately and without lawful excuse, the intention to expose a potential victim to that risk as the result of those acts.

Counsel went on to argue that there was no disagreement between the deceased and PW2 and so had no motive or intention to harm them. The evidence of the Appellant as to his lack of intention to harm the deceased and PW2 was unchallenged and uncontroverted by the prosecution as to his evidence viva voce in Court.
See CHUKWU VS. THE STATE (2013) 4 NWLR PT. 1343, PT. 16.

Counsel finally submitted that the prosecution did not prove its case beyond reasonable doubt and as such the Appeal must be resolved in favour of the Appellant.

In response, the learned Counsel to the Respondent submitted that the three ingredients of the offence of Culpable Homicide and/or the attempt was proved. See AMINU VS. THE STATE (2020) 6 NWLR PT. 1720, PG. 197; MUSA VS. THE STATE (2020) 2 NWLR PT. 1709, PG. 499.

Counsel also submitted that the prosecution proved that the Appellant attempted to murder the PW2. See OZIGBO VS. COP (1976) 2 SC PG. 67 where the Supreme Court held as follows:-
“To constitute an attempt” the act

must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the offence. See: R V EAGLETON, DEARS 515; R V ROBINSON 11 CR. APP, R, 124; CORNER VS. BLOOMFIELD 55CV APP. R.305; See also SHUROMU VS. STATE (2010) ALL FWLR PT.551, 1406 AT 1453.”

Counsel argued that for the prosecution to succeed in establishing an attempt to the commission of a crime, the following must be proved:
1. An attempt to commit an offence by the accused OR that the accused attempted to abet the commission of an offence.
2. That the accused in attempt did some acts not of an ambiguous kind, directly towards the commission of an offence.

In MOHAMMED VS. THE STATE (2012) ALL FWLR PT. 621, PG. 1564 Per Pemu, J.C.A., stated the criteria of an attempt to commit murder thus:
“The criteria for proving attempted murder are threefold they are:
a. Nature of the weapon used
b. Part of the victim’s body brutalized by the lethal weapon and
c. The extent of proximity of the victim with the lethal weapon.”

Counsel submits that going by the above, the prosecution

was able to establish that:
a) That PW2, one Abisola Ashinwo was stabbed by the neck at Tanke Area, Ilorin, Kwara State on 25/4/2016 by the Appellant.
b) That the nature of the weapon used was a knife at a close range sufficient to pierce through her neck nerves.
c) That the knife was used to pierce the neck of the deceased.
d) That the unchallenged evidence of PW2 on pages 71-74 of the record points to the Appellant solely as the perpetrator of the crime.

Counsel finally urged the Court to hold that the Respondent had established a clear case of attempted murder against the Appellant and find the Appellant guilty of all the counts in the charge and dismiss this Appeal.

RESOLUTION:
The Supreme Court has held in a plethora of cases that:
“Generally, homicide means the killing of one person by another, it is also the act of purposely knowingly, recklessly or negligently causing the death of another human being. However, culpable homicide is a wrongful act that results in a person’s death but does not amount to murder.”
Per Ariwoola in DANBABA VS. THE STATE (2018) LPELR 43841; APISHE VS. THE STATE

(1969) 1 ALL NLR PG. 270; WILLIAMS VS. INSPECTOR GENERAL OF POLICE (IGP) (1965) NMLR PG. 470; ADAMU VS. THE STATE (2014) ALL FWLR PT. 1416, PG. 441. See also Blacks Dictionary 9th Edition, Pages 802 and 803.

The ingredients of the offence of Culpable Homicide are:
1) The deceased died.
2) The death of the deceased resulted from the act of the Accused Person.
3) The Accused person caused the death of the deceased intentionally OR With the knowledge that death or grievous bodily harm was its probable consequence. Per Augie in SANI VS. THE STATE (2019) 43475. See S.221 of the Penal Code, SULE AHMED (ALIAS EZA) VS. THE STATE (2001) 18 NWLR PT. 746, PT. 622; AKPA VS. THE STATE (2007) 2 NWLR PT. 1019, PG. 509; USMAN ABUBAKAR VS. THE STATE (2017) LPELR 43197; OYAKHENE VS. THE STATE (2005) LPELR 11325; GALADIMA VS. THE STATE (2017) LPELR 43469; SA’ADU VS. THE STATE (2018) LPELR 44709; EDWINOGBA VS. THE STATE (1992) 2 NWLR PT. 222, PG. 164; AKINFE VS. THE STATE (1988) 3 NWLR PT. 85, PG. 729; ONAH VS. THE STATE (1985) 3 NWLR PT. 12, PG. 236.
In BASIL AKPA VS. THE STATE (2006) LPELR 7603, the Court held that the three

ingredients of the offence of Culpable Homicide must be proved or co-exists before a conviction could be secured. Failure to establish any of the ingredients would result in an acquittal. See ADAVA VS. THE STATE (2006) 9 NWLR PT. 984, PG. 152; SANI VS. THE STATE (Supra).

In proof of these three (3) ingredients, the Prosecution called four (4) Plaintiff Witnesses (PWs) and tendered many Exhibits. There is no controversy whether the deceased died. The deceased died on the spot as a result of stabbings with a knife by the Appellant.

The Prosecution elicited in evidence the fact that the deceased died as a result of stab wounds inflicted on her by the Appellant. The Appellant too in his Extra Judicial Statements, Exhibits F and G and his viva voce evidence gave a graphic picture of how he stabbed and killed the deceased.

On the issue whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The prosecution proved this by the evidence of the Plaintiff Witnesses (PWs) and the Appellant himself.

The Appellant on getting to the deceased house met her and

her mum. There was an argument about whether he can marry the deceased seeing that he was already married.

The Appellant came into the kitchen, locked the door and put the key in his pocket. He took a knife and stabbed the deceased and her mum. Soon after that he ran away leaving his blood stained slippers.

The stabbing of the deceased was intentional. The Appellant locked the door so that the deceased and her mum cannot run away. After stabbing the deceased, her mum, PW2 was begging the Appellant to stop but he did not.
When the Appellant locked the door and put the key in his pocket, he has foreclosed all avenues of escaping his attack. He picked up the kitchen knife which on its own is a dangerous weapon and proceeded to stab the deceased and her mum.

These are intentional acts that the Appellant intended to cause grievous bodily harm. The use of the kitchen knife was an intentional act. It is the law that a person intends the natural consequences of his actions and if there was an intention to cause grievous bodily harm and death results, then the Appellant must be held culpable for the offence. See NWOKEARU VS. THE STATE (2010) 15 NWLR

1215, PG. 1; NJOKU VS. THE STATE (2013) 2 NWLR PT. 1339, PG. 548. See ABDU VS. THE STATE (2014) LPELR 22562. It is trite law that where a person by an unlawful act, causes grievous bodily harm on another person leading to the death of that person, he is presumed to have intended to kill that person and he will be guilty of culpable homicide punishable with death regardless of his intention. A man is presumed to intend the natural consequences of his act. AUDU VS. THE STATE (2003) 7 NWLR PT. 820, PG. 516; AFOLABI VS. THE STATE (2016) LPELR 40300.
It is a matter of common knowledge that if one stabs or stabs with a sharp knife on vulnerable parts of the body, such person could be deemed to have intended to cause such bodily injury as he knew death could result from his action. See GARUBA VS. THE STATE (2000) 4 SCNJ PG. 315; ALAO VS. THE STATE (2011) LPELR 3700; AFOLABI VS. THE STATE (Supra); THE STATE VS. HARUNA (2017) LPELR 43351; NWOKEARU VS. THE STATE (Supra); HALLIRU VS. THE STATE(2016) LPELR 41310; THE STATE VS. HARUNA (2017) LPELR 43351.

With the above, I believe the Prosecution in the lower Court established the three ingredients in the

offence of Culpable Homicide.

The Appellant put up a defence of insanity – that he was not aware of what he did to endanger the life of the deceased that killed her and caused grievous bodily harm on PW2, the mother of the deceased.

Thus, an Accused Person who pleads insanity as a defence to an offence with which he is charged has the burden of proving that at the time he committed the act, he was suffering from insanity or insane delusion or that he was labouring under such defect of reasoning 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.
GUOBADIA VS. THE STATE (Supra); ANI VS. THE STATE (Supra); R. VS. OGON (1961) 1 ALL NLR PG. 70.

Whether an Accused is insane or not will be a question of fact to be deduced from the evidence placed before the Court in a particular case. Thus, in an attempt to establish the defence of insanity, the trial Court should consider any admissible medical evidence and the whole of the facts and the surrounding circumstances of the case which will include (a) the nature of the killing (b) the conduct of the accused before, at the time of the killing as well as thereafter, and (c) evidence of insanity in the accused … or blood relation. ANI VS. THE STATE (Supra); DIM VS. R. (1952) 14 WACA; R. VS. AYINDE (1963) 1 ALL NLR PG. 393.

In this Appeal, the Appellant did not show any sign of insanity or that he was not corpus mentis at the time of the crime. The Appellant drove all the way from Omu-Aran, called his wife and proceeded to the deceased house. They were in a form of

conversation or argument. He knowingly locked the door with the key and pocketed the key. This is a clear sign that he had his full senses. He did not want his victims to escape. He took the knife in the kitchen and stabbed them. The weapon he used manifestly showed that he knew the knife would cause the maximum damage to the body. PW2 was stabbed at the neck and she went to at least three hospitals for the repair and treatment of the stab wounds on her neck.

The Appellant in his own words said that his eyes cleared when he saw his victims on the floor bleeding out. He left them there and ran away. He drove from Ilorin to Omu-Aran. On the way, he realized that he had blood stains on his shirt. He removed the shirt and threw it away. On getting to a Police Check Point, topless, he was asked why he was shirtless. He answered, he was attacked. He also withdrew money from the deceased Account via ATM. The Appellant went to the Sister’s house and to his family house. He was deliberately evading arrest. Is this the act of a man who is insane? He knows what he is doing. The Accused did not show any sign of insanity before the crime, during and after.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In establishing insanity, medical evidence is of course desirable but it is not essential. Indeed, insanity is primarily a question of fact to be determined by the trial Judge and not by a medical man, however, eminent. ANI VS. THE STATE (Supra); R. VS. INYANG (1946) 12 WACA PG. 5.

DW1, the Appellant’s wife only gave evidence as to his philandering and the effect it had on their marriage. His philandering was what was affecting their marriage not any form of mental health. His strange behaviour was as a result of the affair with the deceased. DW3 gave evidence as to how the Appellant came to stay with them after he committed the crime. She stated that the Appellant stayed with her and her family for twelve (12) days. The only abnormal thing was that the Appellant did not talk to any one of them. In all, the DW3 did not think anything was strange by that behaviour to even call it insanity. She also claimed that in her own family house, the Appellant complained of headache and was treated by a herbalist. Nothing was elucidated in evidence to show that the Appellant had mental health challenges.

In all, there was no scintilla of evidence to

show that the Appellant had episodes of mental health or lucid moments that will deprive him of his senses momentarily or otherwise. The defence of insanity was therefore not proved. An Accused Person who pleads insanity as a defence to an offence with which he was charged must prove that he was insane at the time of committing the act. The standard of proof required of the Accused is, however, proof on the balance of probabilities or preponderance of evidence and not proof beyond reasonable doubt. GUOBADIA VS. THE STATE (SUPRA); ONAKPOYA VS. THE QUEEN (1959) NSCC PG. 130. (1959) SNLR PG. 384.

It should be noted that evidence of insanity tendered by an Accused Person himself is suspect and should not be taken serious. GUOBADIA VS. THE STATE (Supra).

Even evidence that an Accused Person had mental disorder which does not show that the disorder deprived the Accused of the capacity to understand what he was doing and to know that he ought not to have done the act in question is not a satisfactory evidence of defence of insanity. GUOBADIA VS. THE STATE (Supra).

The burden of proof rests solely on the Appellant who put up a defence of insanity. He could

not prove with the evidence placed before the Court that he was insane at the time of the commission of the crime, Or even before or after the crime. He acted normally and the lower Court was not persuaded by his evidence in Court and so are we not persuaded that the defence of insanity could avail the Appellant.

Coming to the issue of attempted culpable homicide, the Appellant stabbed PW2 leaving her for dead. If there was no intention to cause grievous bodily harm, the Appellant would have called for help to assist the injured. But No!

The Appellant first disappeared and went into hiding. All these show that he intended the consequences of his distarded act.

offence begins to put his intention into execution by means adopted to its fulfilment and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.”

The Appellant’s stabbing of PW2 was not preparatory. He stabbed PW2 with the intention of killing her. Even when she was bleeding out he left the house to Omu-Aran.

In the Penal Code, the ingredients of attempt to an offence are as follows:
1. An attempt to commit an offence by the accused OR that the accused attempted to abet the commission of an offence.
2. That the accused in attempt did some acts not of an ambiguous kind, directly towards the commission of an offence.

Following the law strictly, Pemu J.C.A. espoused the criteria of an attempted murder thus:
“The criteria for proving attempted murder are threefold they are:
a. Nature of the weapon used;
b. Part of the victim’s body brutalized by the lethal weapon; and
c. The extent of proximity of the victim with the lethal weapon.”
MOHAMMED VS. THE STATE (2012) ALL WLR Pt. 621 PG. 1564.

The Appellant stabbed his victims with a kitchen knife. This piece of evidence was not disputed. The PW2 was stabbed severally in the neck almost removing her iota. That part of the body is critical to life cutting off the iota means snuffing the life out of PW2.

The Appellant was in the kitchen with his victims alone. The door was locked and the keys in his pocket. The victims were in the nearest proximity with the Appellant and his weapon. These pieces of evidence were not challenged by the Appellant. It remains unchallenged and uncontroverted and as such remained the evidence as regards that.

The Prosecution proved the case of attempted culpable homicide against the Appellant. The injuries sustained by the PW2 were by sheer luck that she survived after being referred to several hospitals. For this, the Respondent had proved his case against the Appellant in the two Counts.

This Appeal is unmeritorious. It is dismissed. I affirm the judgment of the learned trial Judge, I. A. Yusuf. The Appellant is convicted for the offence of attempted Culpable Homicide and sentenced to 25 years imprisonment.

To the offence of Culpable Homicide, the Appellant is convicted for this offence and sentenced to death by hanging.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading a draft copy of the judgment just delivered by my Noble Lord, UZO I. NDUKWE-ANYANWU, J.C.A. I entirely concur with the reasonings and decision reached in dismissing the appeal because it is without merit. I too, dismiss the appeal for it is unmeritorious.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the lead judgment of my learned brother UZO NDUKWE-ANYANWU, J.C.A. I agree entirely with the reasoning and conclusion that the appeal lacks merit. Where the prosecution has discharged the onus of proving the guilt of the accused beyond reasonable doubt as required by law, the onus of proving insanity is on the accused who raises same as a defence because the law presumes every person, including any person accused of a crime sane until the contrary is proved. Section 139 of the Evidence Act provides that:
“139. (1) where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or

qualification to, the operation of the law creating the offence with which he is charged is upon such person.
(2) The burden of proof placed by this Part upon a defendant charged with a criminal offence shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution, whether on cross-examination or otherwise, that such circumstances in fact exist.
(3) Nothing in Sections 135 and 140 or in subsection (1) or (2) of this Section shall:
(a) prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged.
(b) impose on the prosecution the burden of proving that the circumstances or facts described in subsection (2) of this Section do not exist; or
(c) affect the burden placed on a defendant to prove a defence of intoxication or insanity.”

In ONYEKWE V. THE STATE (1988) LPELR-2732 (SC) AT 26-27 (E-C), the Supreme Court stated the duty of the defence counsel in a case where insanity is put forward as a defence as follows:

“… Also in Sanusi v. The State (1984) 10 SC 166 this Court re-emphasised the duty of defence counsel in a case where insanity is put forward as a defence. Aniagolu, J.S.C. at p.177 observed:- “There is a tendency for some counsel to be causal in presenting their case of insanity on behalf of accused persons… Defence counsel must always work hard to present before the Court proof which could include, among others, positive acts of the accused, before and after the deed complained of, evidence of a doctor who examined and watched the accused over a period of time as to his mental state; evidence of relations who know the accused intimately relating to his behaviour and the change which had come upon him, the medical history of the family which could indicate hereditary mental affliction or abnormality and such other facts and circumstances which will help the trial Judge come to the conclusion that the burden of proof of insanity, placed by the Criminal Code, on the defence has been amply discharged.”
See POPOOLA V. STATE (2013) LPELR- 20973 (SC) AT 34-35(A-A). DANBABA V. STATE (2018) LPELR-43841 (SC) AT 25-26 (A-D). The appellant casually presented the defence of

insanity without any iota of credible evidence from which the trial Court could infer a defence of insanity. The evidence before the Court rather negates any inference of insanity. The appellant who was moving from one place to another in a bid to avoid arrest for the crime he committed and was still able to withdraw money from the account of the deceased using her ATM card cannot in all seriousness claim that he was suffering from insanity or insane delusion at the time the offence with which he was charged was committed. For these and other reasons well-articulated in the lead judgment, I too dismiss the appeal.

Appearances:

OLALEKAN BADE-JOHN, ESQ. For Appellant(s)

JIMOH ADEBIMPE MUMINI, SAN, DIRECTOR PUBLIC PROSECUTION, (DPP) With him, A. A. ORE, ESQ., PRINCIPAL STATE COUNSEL, (PSC); AMINA ADESINA, ESQ., STATE COUNSEL I (SC1); and YETUNDE AJAYI, ESQ., STATE COUNSEL I (SC1) MINISTRY OF JUSTICE, ILORIN, KWARA STATE For Respondent(s)

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