EDET OKON v. THE STATE
(2014)LCN/6801(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of January, 2014
CA/L/553/2010
RATIO
WHETHER A RETRACTED CONFESSIONAL STATEMENT IS INADMISSIBLE
It is trite law that a confessional statement does not become inadmissible merely because of a subsequent retraction. See Akpan v. The State (1992) 7 SCNJ 22 (1992) NWLR (pt. 248). Per CHINWE EUGENIA IYIZOBA, J.C.A
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
EDET OKON Appellant(s)
AND
THE STATE Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal emerged from the judgment of the High Court of Justice of Lagos State (the court below) by which it convicted and sentenced the appellant to death by hanging for the murder of his wife, a Mrs. Blessing Edet, contrary to section 319 (1) of the Criminal Code Cap. C17, Laws of Lagos State, 1973 (the Criminal Code).
The gist of the case was that the appellant slept with his wife, Blessing Edet, and their eleven (11) months old baby in their rented room at No. 23, Alafia Street, Aloagba, Iyana Ipaja, Ikeja, Lagos State, in the night of 14.11.1996. The cry of the baby was heard from the locked room at day break of the following day. It alerted the appellant’s landlord. He invited the police. They came. They forced the door open. It was discovered in the room that the appellant’s wife was lying dead in her pool of blood. Their baby was also covered with the blood. The appellant was nowhere to be seen. It was learnt upon enquiry that the appellant had escaped to his brother’s abode at No. 18 Johnson Street Onireke Cement bus-stop Agege. And it was there that the appellant’s brother handed him over to the police.
The appellant’s version was that he was treating typhoid fever for a couple of days and in that fateful night he suddenly woke up from sleep with violence and was poised to leave the room. His wife held him not to leave. He struggled with her. In the course of the struggle he stabbed her with a spoon. She then let go of him. According to the appellant he wandered toward Ifo. A friend found him naked. The friend took him to his brother’s house at No. 18 Johnson Street, Onireke, cement Bus-stop Agege where the police arrested him.
It was part of the appellant’s case through the DW2 that he was seen by the DW2 at Ifo wandering about like a lunatic. The appellant also stated that his brother and uncle were once mad.
The court below accepted the respondent’s case and rejected the appellant’s version and found the appellant guilty of the murder of his wife on account of which it convicted and sentenced the appellant to death.
Not satisfied with the judgment of the court below the appellant filed a notice of appeal with eleven (11) grounds of appeal. In a brief of argument filed on 15.12.10, the appellant raised four issues for determination as follows-
“1. Whether the delivery of the judgment by the trial court outside the statutory 90 days and after losing memory and grip of the evidence, as well as the demeanour of the witnesses who testified before the court did not occasion a miscarriage of justice against the Appellant?
2. Whether the defence of insanity and or insane delusion does not avail the Appellant in the instant appeal?
3. Whether the improper evaluation of evidence adduced before the learned trial judge, the consequential erroneous/perverse findings, conviction and sentence of death imposed on the Appellant based on the said improperly evaluated evidence did not occasion a miscarriage of justice against the Appellant?
4. Whether the prosecution discharged the burden of proving its case beyond reasonable doubt against the appellant as required by law?”
After referring to page 131 of the record of appeal (the record) to establish that final addresses were adopted by the respondent and the appellant on 14.5.2009, and judgment was delivered by the court below on 10.9.2009, the appellant argued that by not delivering the judgment within 90 days after the adoption of final addresses by the parties the court below infringed section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999, as altered, (1999 Constitution) read with the cases of Odi v. Osafile (1985) 1 NWLR (pt.1) 17 at 29, Ifezue v. Mbadugha (1984) 1 S.C.N.L.R. 427, F.C.A.A. v. Nwanna (1998) 4 NWLR (pt. 544) 73 at 88, which rendered the judgment a nullity on account of the fact that the lapse of time of over two years between the taking of evidence and judgment as computed by the appellant made the learned trial Judge in the court below to lose memory of the demeanour of the witnesses as well as the trend of evidence which adversely affected his proper evaluation of the evidence and occasioned, a miscarriage of justice to the appellant vide the cases of Lawal v. Quadri (2004) 6 NWLR (pt. 858) 1, Anyaoke v. Adi (1985) 1 NWLR (pt.25) 342, Owoyemi v. Adekoya (2003) 18 NWLR (pt. 852) 307 at 338-339, Omoregbe v. Edo (1971) 1 All NLR 282, Fashanu v. Adekoya (1974) 6 SC 77, Ivienagbor v. Bazauye (1999) 9 NWLR (pt. 620) 552.
Reference was made to the evidence of the PW5, the investigation police officer (I.P.O), in page 97 of the record to the effect that the appellant admitted committing the offence without, also, taking into account the defence of insanity raised by the appellant in pages 95-96 of the record to the effect that he was suffering from typhoid fever and that on the fateful night he woke up with force and grabbed the deceased who had a good relationship with him and in the course of the struggle between them he stabbed her with a spoon with no intention of killing her; that his senior brother, one Mr. Monday Okon, and his uncle, one Ukwak, had mental problem before.
Reference was further made by the appellant to the evidence of the DW2 in confirmation of the mental problem the senior brother of the appellant and his uncle had in the past and the strange behaviour of the appellant soon after he killed his wife as observed by the DW2 to contend that the defence of insanity under section 28 of the Criminal Code availed the appellant. The cases of Loke v. State (1935) 1 NWLR (pt. 1) page 1, Madjemu v. State (2001) 9 NWLR (pt. 718) 349, Walton v. R. (1978) 66 C.A.R. 25, Guobadia v. State (2004) 6 NWLR (pt.869) 360, Udofia v. State (1091) 11-12 SC 49 at 60-61, William Echem v. Queen (1952) XI W.A.C.A. 158, Dillon v. Queen (1939) 27 Cr. A.R. 152, Arum v. State (1979) 11 SC 91 were cited by the appellant in support of the submission (supra).
Submitting on the third issue the appellant referred to Exhibits A, B-B1; the defence of insanity raised by the appellant in his evidence and the evidence of the PW2, as well as the evidence of the PW5 to contend that the findings made by the court below on the said pieces of evidence were patently perverse, in that the voluntariness of the confessional statement was challenged by the appellant in page 80 of the record but the court below admitted it in evidence without conducting a trial-within-trial and relied on it to convict the appellant for the murder of his wife contrary to sections 27 and 28 of the Evidence Act, 2011 (on voluntariness of confessional statement) read with the cases of Akinmoju v. State (2006) 6 NWLR (pt. 662) 609 at 617, Nsofor v. State (2004) 18 NWLR (pt. 905) 292; that there was material contradiction between the evidence of the PW1 and the PW2 on whether it was the PW1 or the pw3, (the I.P.O.), that forced open the door to the appellant’s room that led to the discovery of the death of the deceased which materially affected the identity of the person that killed the deceased, therefore the failure of the court below to resolve the doubt in favour of the appellant occasioned a miscarriage of justice to the appellant vide the cases of Muka v. State (1976) 9-10 SC 305, Arehia v. State (1982) 4 SC 78, Queen v. Joshua (1964) 1 All NLR 1, Izurumba (?) v. State (1976) 3 SC 89, Karibo v. Grend (1992) 3 NWLR (pt. 230) 426 at 643, Ogoala v. State (1991) 2 NWLR (pt. 175) 509 at 526, Kalu v. State (1988) 4 NWLR (pt. 90) 503;
Consequently, it was urged that the improper evaluation of evidence by the court below deprived the appellant of the defence of insanity which was based on the uncontroverted evidence of history of insanity in the appellant’s family upon which the court below was bound to return verdict of not guilty by reason of insanity in favour of the appellant vide Loke v. State (supra), Echem v. Queen (supra), Dillon v. Queen (supra), Arum v. State (supra) as well as the cases of Karibo v. Grend (supra), Morenikeji v. Adegbosin (2003) 8 NWLR (pt. 832) (Pagination not supplied), Kalio v. Woluchem (1985) 1 NWLR (pt. 4) 610 at 622, Onuoha v. State (1995) 3 NWLR (pt. 385) 591 at 500, Jolayemi v. Alaoye (2004) 12 NWLR (pt. 887) 322, Fashanu v. Adekoya (1974) 6 SC 83, Oladele v. Aribi (1998) 9 NWLR (pt. 567) 559, Adeboye v. Ighodalo (1996) 5 NWLR (pt. 450) 507 on the effect of improper evaluation of evidence by a trial court in a criminal trial.
In the course of arguing the fourth issue the appellant conceded that the death of the deceased was not in doubt.
The appellant, however, contended that the evidence for the respondent was not conclusive that he killed the deceased. The appellant referred to the evidence of the PW1-PW3 on the person that forced open the door to the appellant’s room which, according to the appellant, was materially contradictory and, the doubt created thereby together with the wrongful admission of the confessional statement should have been resolved in his favour by the court below, so reasoned the appellant who placed reliance on the cases of Oguonzee v. State (1998) 5 NWLR (pt 551) 521 at 579, Muka v. State (1976) 9-10 SC 305, Arehia v. State (1982) 4 SC 78, Queen v. Joshua (1964) 1 All NLR 1, Izurumba (?) v. State (1976) 3 SC 89, State v. Aibangbee (1988) 3 NWLR (pt. 84) 548, Ogoala v. State (1991) 2 NWLR (pt. 175) 509 at 526, Akosile v. State (1972) 5 SC 332, Kalu v. State (1998) 4 NWLR (pt. 90) 503, Onubogu v. State (supra), Nsofor v. State (supra), Okoro v. State (supra), Ibe v. State (2001) 2 NCLR 367 at 387-388, Incar (Nig) PLC v. Bolex Enterprises (Nig) (2001) 12 NWLR (pt. 728) 646; consequently, the case against the appellant was not proved beyond reasonable doubt vide section 138 of the Evidence Act, Cap. 112 LFN 1990 and the cases of Adepetu v. State (1998) 61 LRCN 4519, State v. Aibangbee (supra), Moshood v. State (2004) 14 NWLR (pt. 893) 422, Madjemu v. State (2001) 9 NWLR (pt. 718 349.
It was also argued on the fourth issue that the reliance by the court below on the inadmissible confessional statements, Exhibits A and B occasioned miscarriage of justice to the appellant and the said Exhibits A and B should be expunged vide Nsofor v. State (supra), Okoro v. State (supra), Ibe v. State (2001) 2 ACLR 367 at 387-388, Incar (Nig) PLC v. Bolex Enterprises (Nig) (2001) 12 NWLR (pt.728) 646; also, that the evidence of the PW4 who was not listed among the witnesses as well as the evidence of PW5 which is a repetition of the inadmissible Exhibits A and B be expunged vide Alimi v. Obawale (1993) 6 NWLR (pt. 555) 591, Nsofor v. State (supra), Ahmed v. State (2001) 8 NWLR (pt. 746) 622, Babalola v. State 4 NWLR (115) 244, therefore the totality of the evidence did not attain the certainty of proof required in criminal trials citing in support the cases of Egbe v. King (1950) 13 W.A.C.A. 105 at 106, Onyenankeya v. State (1964) 1 All N.L.R. 151 at 153, State v. Onyeukwu (2004) 14 NWLR (pt. 893) 340 at 379-380; and that the evidence adduced by the respondent at the court below did not prove beyond reasonable doubt that the appellant murdered the deceased citing in support the cases of Obi v. State (1997) 7 NWLR (pt. 513) 352 at 360 and Ibeh v. State (supra) on account of which the appellant pressed for the appeal to be allowed and his conviction and sentence set aside with the entry of the consequential orders of acquittal and discharge in his favour by the Court.
The respondent’s brief of argument filed on 20.7.11 but deemed filed on 25.1.13 identified these issues for determination:-
“i) Whether the delivery of the judgment by the trial court outside the statutory 90 days necessarily afflict on the Judge: loss of memory; grip of evidence adduced by the witness and demeanour of same such that miscarriage of justice may have been occasioned.
ii) Whether the defence of insanity and or insane delusion does not avail the Appellant in the instant Appeal?
iii) Whether the Learned trial Judge improperly evaluated evidence and arrived at erroneous/perverse findings which invariably make the conviction of the Appellant and sentence of same to death by hanging a miscarriage of justice?
iv) Whether the prosecution discharged the burden of proving its case beyond reasonable doubt against the Appellant as required by law?”
Submitting on the first issue, the respondent relied on section 294 (5) of the 1999 Constitution, as altered, and the cases of Abdullahin v. Hedima (2011) 2 NWLR (pt.1230) 42 at 61, S.B.N. Ltd V. S. Ind. O. Corp. (2009) 8 NWLR (pt. 1144) 491 at 499 – 500, A. G., Federation v. Abubakar (2008) 16 NWLR (pt. 1112) 135 at 158 – 159, Lawal-Osula v. Lawal-Osula (1995) 3 NWLR 128 and 145, Fasesin V. Oyerinde (1997) 11 NWLR (pt. 552) 561, Adebayo v. A-G., Ogun State (2008) 7 NWLR (1087) 201 at 221 – 222 to contend that the appellant had caused the delay when he had applied for series of adjournments at the court below in pages 165-166 of the record, so the appellant’s hands were not clean and he cannot seek equity with unclean hands, and, that at any rate the appellant did not establish miscarriage of justice from the non delivery of the judgment within the constitutional period of 90 days, consequently the judgment of the court below should not be set aside.
It was argued on the second issue that there was no medical evidence to establish the appellant’s defence of insanity and that the evidence of the appellant and his sole witness that he was of unsound mind at the time he killed the deceased was not convincing, as the said evidence did not state that the mental disease or natural infirmity had deprived the appellant of his mental capacity to know that he ought not to have done the act or make the omission complaint of, that having relied on the defence of insanity, the appellant is taken to have admitted the commission of the offence of murder of his wife vide Edoho v. State (2010) 14 NWLR (Pt. 1214) 651; consequently, it was urged that the fact that the appellant and his witness had stated that the appellant’s brother and uncle were once mad without further evidence of proof of history of insanity in the appellant’s family is not enough, and, that the appellant’s statement that he heard a spirit urging him to kill the deceased and that he was seen naked after the incident were not enough to prove the defence of insanity on the balance of probabilities, showing the appellant was of sound mind at the time he murdered his wife. The following statutory provisions and cases were cited in support of the said submission, sections 27 and 28 of the Criminal Code Cap EC 17 Vol. 2 Laws of Lagos State 2003, Edoho V. State (supra) at 684 – 685, 688 – 689, 691 – 692, Mohammed V. State (2007) 11 NWLR (Pt. 1945) 303 at 320.
The respondent’s brief distinguished the case of Loke V. State (1985) 1 NWLR (Pt. 1) page cited by the appellant from the appellant’s case in that Loke (supra) had an unbroken chain of mental illness consistent with insanity, whereas the organised manner the appellant tied the deceased with wrapper before murdering her and thereafter locking the room before his escape were indications of a person acting consciously and with a sound mind as envisaged by section 27 of the Criminal Code; therefore the plea of insanity did not avail the appellant on the facts of the case.
It was the contention of the respondent on the third issue that the appellant having objected to the admission in evidence of his confessional statement to the police on the ground that he did not make the statement vide pages 58 and 80 of the record, the court below was right to admit that statement in evidence without conducting a trial within trial vide the cases of Akpa V. State (2008) 14 NWLR (Pt. 1106) 72 at 88 – 89, Aiguoreghian V. State (2004) 3 NWLR (860) 367 at 402, Ekey V. State (2011) 3 NWLR (Pt. 1235) 589; and that the court below was therefore right to use the confessional statements, Exhibits A and B – B1, against the appellant in its judgment vide Nsofor V. State (2004) 18 NWLR (Pt. 905) 292 at 308, R. V. Itule (1961) 2 SCNLR 183, Arogundade V. State (2009) 6 NWLR (Pt. 1136) 265, Amanchukwu V. F. R. N. (2009) 8 NWLR (Pt. 1144) 475, Nwachukwu V. State (2007) 11 NWLR (Pt. 1062) 31 at 65 – 66, Jua V. State (2010) 4 NWLR (Pt. 1184) 417 at 429.
Submitting further on the third issue, the respondent referred to pages 53 – 57 and 63 of the record to contend that save for the evidence by the PW3 that the door to the appellant’s room was open before the police arrived on the scene of crime, and the contrary evidence of the PW1 and the PW2 that the door was forced open by the police, the evidence on how the deceased was last seen alive with the appellant on the fateful day and how she was discovered dead in her pool of blood in the room the appellant had stayed with her and their baby was consistent and confirmed by the confessional statements in Exhibits B – B1, therefore the contradiction in question was not material or substantial and did not have adverse effect on the consistent evidence for the respondent that the appellant murdered the deceased vide the cases of Mohammed V. State (2007) 11 NWLR (Pt. 1045) 303 at 321, Ochemaie (2008) 15 NWLR (Pt. 1109) 57 at 79 – 80, 88 – 89, Eke V. State (2009) 3 NWLR (pt. 1235) 589 at 604 – 605, Maiyaki V. State (2003) 15 NWLR (Pt. 1109) 173 at 206; consequently, the respondent urged that the evaluation of evidence by the court below resulting in the conviction of the appellant for murdering the deceased, his wife, contained in pages 180, 185 – 186 of the record, in particular, should not be disturbed vide the cases of Abeke V. State (2007) 9 NWLR (Pt. 1040) 411 at 434, Managge V. Gwammi (2004) 14 NWLR (Pt. 893) 323 at 338, Dim V. Enemuo (2009) 10 NWLR (Pt. 1149) 353 at 396 – 397, Maiyaka V. State (supra) at 217 – 218.
The respondent contended on the fourth issue that the appellant confessed in Exhibits A and B that he killed the deceased and that the death of the deceased was confirmed by the evidence of the pathologist, PW4, who gave medical evidence in page 70 of the record that the deceased was kilted with a sharp object, which the PW4 stated in page 71 of the record was applied on the deceased with considerable force, and that the evidence of the PW1 – PW5 also corroborated the fact that the deceased died under murderous circumstances therefore the respondent proved beyond reasonable doubt that the death of the deceased was deliberately caused by the appellant thus discharging the burden of proof placed on the respondent to prove a crime beyond reasonable doubt vide section 138 (1) and (2) of the Evidence Act 2003, and the cases of Ismail V. State (2008) 15 NWLR (Pt. 1111) 593 at 597, Ochemaji v. State (supra) at 61, Ogbu v. State (2007) 5 NWLR (pt. 1028) 635 at 661, Michael V. State (2003) 13 NWLR (Pt. 1104) 361 at 377, Dim V. Enemuo (supra) at 395, Olabode V. State (2009) 11 NWLR (Pt. 1152) 254 at 273, Audu V. State (2003) 7 NWLR (Pt.820) 516 at 554, Ahmed V. State (1990) 7 NWLR (Pt. 612) 693, Mohammed V. State (2007) 22 NWLR (Pt. 1045) 303 at 320 – 321, Olabode V. State (2009) 11 NWLR (Pt. 1152) 234 at 273 – 274, Akpa V. State (2008) 14 NWLR (Pt. 1106) 72 at 95, Jua V. State (2010) 4 NWLR (Pt. 1184) 217 at 249, Nwachukwu V. State (2007) 17 NWLR (Pt. 1062) 31, Arogundare V. State (2009) 6 NWLR (Pt. 1136) 165 at 169 – 170.
The respondent finally urged that the appeal be dismissed and the conviction and sentence of the appellant by the court below be affirmed
The appellant’s reply brief filed on 31.1.13 argued that the respondent’s brief of 40 pages is incompetent and should be discarded for offending Order 18 Rule 3 (6) (a) of the Court of Appeal Rules 2011 by stretching beyond the 30 pages prescribed therefor.
The reply brief also contended that the trial last 8 years and judgment was delivered 119 days after close of address which was enough to lead to miscarriage of justice as the learned trial Judge, as a human being, could not recollect the demeanour of witnesses after 8 years, and, that it is immaterial that the delay was caused by the defence, as it is a constitutional requirement.
The reply brief argued further that the submission on the plea of insanity was in the alternative, and does not concede the other submissions on non-culpability of the appellant argued under the other issues; and that the evidence of insanity satisfied all the conditions in Edoho v. State (2010) 14 NWLR (Pt. 1214) 651 as 691 – 692 supplied by the respondent in her brief; upon which the appellant urged for the appeal to be allowed.
True, the respondent’s brief is 40 pages. It offends Order 18 rule 3 (6) (a) of the Rules of this Court. However, this is a criminal trial involving the maximum sentence of death by hanging and justice is not only for the appellant as defendant at the court below, but justice is, also, for the respondent representing the society and further justice is for the victim of the crime, the deceased; therefore, in the circumstances of the case in which the appellant had the opportunity of the last word in the appeal through his reply brief to meet whatever new points raised by the respondent in her brief of 40 pages it cannot be said the appellant was prejudiced or taken by surprise by the respondent’s brief that was 10 pages in excess of the statutory requirement in Order 18 rule 3 (6) (a) of the Rules of this Court; consequently there was no miscarriage of justice and the said brief will be taken into account in the discussion.
The issues for determination identified by the appellant are, in my view, appropriate for the determination of the appeal and shall be followed in the discourse.
The final addresses were adopted on 14.5.2009. Judgment was delivered on 10.9.2009. The time lag between the adoption of final addresses and the date of the delivery of judgment was 27 days, not over two years as erroneously submitted by the appellant. Section 294(1) of the 1999 Constitution, as altered, provides in that wise that-
“Every court established under this Constitution shall after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”.
So by the clear words of section 294(1) of the 1999 Constitution, time started to run for the purpose of section 294(1) of the 1999 Constitution on 14.5.2009, when final addresses were taken in the case. See Onagoruwa v. State (1993) 7 NWLR (pt.303) 49 at 101 thus –
“The word ‘final’ means last, decisive, conclusive. It also connotes the end of a thing. The word ‘conclusion’ means the act of concluding; the end, close or last part. The expression ‘last’ is a common denominator in both expressions and here I mean the expressions ‘final’ and ‘conclusion’. Therefore on the bare face of the expression, the subsection can be construed to mean that a court of law shall deliver its decision in writing not later than three months after it has heard the last evidence of the witnesses and the last addresses of counsel or the parties”. (My emphasis).
The time lapse of 27 days after the expiration of the 90 days provided by section 294 (1) of the 1999 Constitution, as altered, was, therefore, not inordinate to dull the appreciation of oral evidence by the court below in the case.
Significantly, the appellant did not establish miscarriage of justice from delivery of the judgment 27 days after the 90 days stipulated by section 294 (1) and (5) of the 1999 Constitution. See the insightful lead judgment of Galadima, J.S.C., in the case of Atungwu and Anor. V. Ochekwu (2013) 14 NWLR (pt. 1375) 605 at 624 thus –
“However, in section 294(5) of the said Constitution it is provided that:
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section, unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof”.
In the light of the foregoing provisions, it must be noted that delay in delivery of judgment per se, does not lead to a judgment being vitiated. The delay must occasion a miscarriage of justice to result in such a conclusion. In other words, it has to be established that the delay occasioned a miscarriage of justice in that the trial Judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost his impressions of the trial due to such inordinate delay. See Akpan v. Umoh (1999) 7 SC (pt.11) 13, (1999) 11 NWLR (pt.627) 349.”
See also A.C.B. Ltd. v. Ajugwo (2012) 6 NWLR (pt.1295) 97 at 126, Jeu v. Dolo (2012) All FWLR (pt.641) 1513 at 1528 read with the cases cited by the respondent on the issue (supra).
Upon the appellant’s arrest by the police he made some statements to the police in which he confessed killing his wife with a kitchen knife. When the statement of the appellant to the police was sought to be tendered in evidence through the PW3, the I.P.O., the defence counsel objected to it verbatim in page 58 of the record –
“Mrs. Nwangwu: I am objecting on the grounds that the accused says that this is not his writing, he cannot read, he can write and the signatures are not his”.
Let me also go to Exhibits B-B1, the confessional statement of the appellant to the police. The defence counsel at the court below clarified in page 80 of the record thus-
“Mr. Okaka: we are saying that the accused did not make the statement.”
The appellant did not contest the voluntariness of the confessional statement. The court below was therefore right to admit the statement in evidence without conducting a trial – within – trial as the voluntariness of the statement was not challenged by the defence at the court below. See Ibeme v. State (2013) 10 NWLR (pt. 1362) 333 at 359 thus-
“… Where the statement is a confession and it is challenged not on the ground of involuntariness but on such grounds that the accused is not the maker or for incorrectly recording the confession and there being no issue of voluntariness, it should be admitted without holding a trial – within-trial.”
See also Saidu v. State (1982) N.S.C.C. (vol. 13) 70; Nnabo v. State (1992) 2 NWLR (pt.226) 716 at 727 -728; Nwachukwu v. State (2002) 2 NWLR (pt.751) 366 and Odeh v. State (2008) 13 NWLR (pt. 1103) page 1, Abdullahi v. State (2013) 11 NWLR (pt.1366) 435 at 460 following Onyenye v. State (2012) 15 NWLR (pt.1324) 586 and the series of cases cited on the issue by the respondent (supra). There is thus no substance in the contention of the appellant that a trial – within – trial was bound to be conducted by the court below before admitting his confessional statement to the police in evidence.
The PW1 and PW2 said police forced open the door to the appellant’s room. The I.P.O. (PW3) said on the other hand that the landlord of the appellant, PW1, opened the door before police arrived on the scene of crime. This is a contradiction. The contradiction does not, however, affect the ingredients of the offence of murder to wit – that the deceased died; that the accused killed the deceased; and that the killing was intentional. Besides, the deceased was last seen alive with the appellant, her husband, who had the onus to explain what happened to his wife.
It is plain from the totality of the evidence that at the time the door of the room was opened, the deceased was already stone dead. Her death did not therefore arise from the opening of the door. Whoever opened the door did not matter as the act of forcing the door open did not bear on the elements of the offence of murder. The contradiction between the evidence of the PW1 – PW2 and the PW3, the I.P.O. of the case, on the person that forced open the door to the appellant’s room is not material and did not strike at the jugular of the case, in my view. See Musa v. State (2009) 15 NWLR (pt.1165) 467 at 489 thus –
“Contradiction to be worthy of note, must relate to the substance and indeed the vital ingredients of the offence charged”.
See also Igbi v. State (2000) 3 NWLR (pt.648) 169 at 187, Isibor v. State (2002) 4 NWLR (pt.758) 741 at 757 read together with the host of cases cited by the respondent on the issue (supra).
The said immaterial contradiction did not, therefore, per se occasion a miscarriage of justice as it was not a substantial contradiction. The argument on the issue of contradictions is, accordingly, untenable and is hereby rejected.
The appellant admitted killing the deceased but put forward the plea of mental problem in his family without stating in clear terms that he suffered from insanity at the time the offence was committed, but mentioning the names of Monday Okon and Ukwak, his senior brother and uncle, respectively, as persons that had history of mental problem in the appellant’s family. The appellant added in his evidence in pages 95 – 97 of the record (unedited) that –
“I was wearing my pant when I stabbed my wife with the spoon. I was still wearing my pants along the street as I walked on the street. Apart, from that day, I had never worn pants walking on the Street before.
The pant I was wearing that day was a swimming pant. It looks like a normal pant, it was off-white in colour. Yes, I admitted in my evidence in chief that I stabbed my wife with a spoon, when I did she left me and sent out. I stabbed her just once. When I left the room, just left I did not lock the door. Yes. I wrote in exhibit B that I killed my wife. Yes, I stated the things contained in exhibit B. Yes by Exhibit B I have admitted that I killed my wife.
I was told that it was a spiritual attack but I was not told that my wife was behind that spiritual attack. My wife was with me when I was told I had a spiritual attack, she used to pray with me.” (My emphasis).
The court below gave extensive consideration to the defence of insanity in its judgment in pages 182-186 of record which it rejected on the ground that there was not a little of evidence to ground the defence.
I agree with the court below that the evidence of alleged mental problem in the appellant’s family given by the appellant and his witness did not prove the defence of insanity on the balance of probabilities as is the case with defence evidence. See Attorney-General West N. v. Uptire (1964) WNLR 72 at 76; Obiode and Ors. v. State (1970) 1 All NLR 34 at 40; Ogbu v. State (1992) 8 NWLR (pt.259) 255 at 268 following Onyekwe v. State (1988) 1 NWLR (pt.72) 565; R. v. Wangara 10 WACA 236 and Loke v. State (1935) 1 NWLR (pt. 1) 1.
Moreover, there was no scrap of medical evidence to sustain the defence of insanity. For it was held in the fairly recent case of State v. John (2013) 12 NWLR (pt. 1368) 337 at 367-368 per the lead judgment of Fabiyi, J.S.C., that-
“Let me say it right away that the burden of proving insanity in defence to a criminal charge lies on the accused. See: Queen v. Yaro Biu (1964) NNLR 45; Idowu v. The State (1972) All NLR 435 at 443; Emeryi v. The State (1973) 3 SC 215.
It is basic that for an accused to establish the defence of insanity, he must depict the following:
1. That at the material time of committing the offence, the accused was suffering either from mental disease or natural mental infirmity, and
2. That the mental disease or natural mental infirmity result deprived of capacity-
“(i) to control his action; or
(ii) to know that he ought not to do the act or make the omission – Refer to Sanusi v. The State (1984) 10 SC 166; Ihonre v. The State (1987) 4 NWLR (Pt. 67) 778.
The respondent herein, had no medical evidence as to the state of his mind immediately before the offence was committed. Medical evidence is a sine qua non to test a plea of insanity. See: Idowu v. The State (supra) of page 443.”
See further the judgment of Aka’ahs J.S.C., in pages 375-376 of the law report as follows-
“Notwithstanding the fact that the manner in which the respondent attacked the deceased was mind – boggling, it was left for the respondent to state the reason which prompted him to carry out the vicious attack on the deceased and without a medical history indicating the accused insanity, a later claim by him to being insane will be highly suspect. It is not a defence of insanity that an accused behaved abnormally. If the abnormality arises from a mental condition which substantially impaired the ability of the accused to control his rationality or his responsibility in a given situation, it must be such as falls within section 28 of the Criminal Code and in the present instance under section 51 of the Penal Code. In the instant case, the strange behaviour of the respondent standing alone cannot be evidence of insanity. To accept that as evidence of insanity is to make the simulation of insanity easily available in matters of the nature of the respondent’s and this is what the lower court decided. See: Ogbu v. State (1992) 8 NWLR (pt. 259) 255; Madjemu v. State (2001) 9 NWLR (pt. 718) 349. 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 his 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 neighborhood;
(f) Evidence showing 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 – per Iguh, JSC in Madijemu v. State supra at page 366. See also: Onyekwe v. State (1988) 1 NWLR (pt. 72) 565; Ejinima v. State (1991) 6 NWLR (pt.200) 627.”
See in addition the case of Nnabo v. State (1992) 2 NWLR (pt.226) 716 at 731 as follows –
“I think it need be said again and again that bland statements as “accused behaved abnormally” and “accused behaved like an insane man” are without more insufficient to establish a defence of insanity under section 28 of the Criminal Code. At best such statements may show that the accused suffers from mental disease or natural mental infirmity. But it is still necessary to go further to establish that that state of mental disease or natural mental infirmity has produced an effect in the accused that deprived him of capacity to understand what he was doing; or to control his action; or to know that he ought not to do the act or make the omission. The recent case of Ejinima v. State (1991) 6 NWLR (pt.200) 627 is instructive. There was no evidence before the lower court that the appellant was deprived of the three capacities as stated in R. v. Omoni (supra).”
See also Amuneke v. State (1992) 1 NWLR (pt.217) 338 at 347 – 348, and the cases cited by the respondent on the issue (supra).
The absence of medical evidence of insanity as well as giving of evidence of alleged insanity by the accused himself and his witness is suspect and not usually taken seriously for establishing insanity – See Ejinima v. The State (1991) 6 NWLR (pt.200) 627 at 650 following Onyekwe v. The State (1988) 1 NWLR (pt.72) 565. The suspicion is heightened if the defence of insanity is not raised and put to the prosecution witnesses while in the witness box and comes up for the first time in defence evidence as happened in this case. See Okosi and Anor. V. The State (1989) A.N.L.R. 170 at 177. Moreover, the evidence of the appellant that he suffered from typhoid and suddenly woke up in the night to engage in a struggle with the deceased and the voice of a spirit urged him to kill the deceased can scarcely be taken as establishing evidence of insanity under section 28 of the Criminal Code.
The defence of insanity was, accordingly, not made out on the balance of probabilities by the appellant and was rightly rejected by the court below.
From the collective impact of the evidence from the respondent and the appellant, it is plain that the deceased was last seen alive with the appellant, her husband. The onus was therefore on the appellant to explain what happened to the deceased; all the more so the deceased was the appellant’s wife and their marital bond naturally placed responsibility on the appellant to protect, defend and safeguard the safety/well-being of the deceased, his wife.
The appellant admitted in his evidence in defence in pages 95 – 97 of the record that he killed the deceased. The appellant specifically stated under cross-examination in page 95 of the record that –
“Yes, by Exhibit B I have admitted that I killed my wife …”
The PW4, the pathologist, also confirmed the death of the deceased upon autopsy of her corpse in his evidence in pages 70 – 71 of the record where he stated in particular in page 71 thereof that –
“The cause of death is consistent with immoradic shock which is severe blood loss with the collapse of the cardio vascular system which means there is a complete breakdown of the system of the heart and its associated blood vessels. Going by the nature of the injury sustained, they are likely to have been caused by a very sharp object applied to these parts with considerable force”.
The PW4 went on to state in his testimony under cross-examination in page 71 of the record that –
“Sharp objects include a machete, a knife, a broken piece of bottle”.
The medical evidence also stated that the injury on the deceased that caused her death was inflicted with a sharp object. The appellant was represented by counsel at the court below. There was no protest against the evidence of the PW4 that he was not listed as a witness. The defence counsel cross-examined the PW4 on behalf of the appellant. So I fail to see the miscarriage of justice or prejudice or surprise caused the appellant by the alleged non inclusion of PW4’s name in the proof of evidence.
There is also the evidence of the appellant and his confessional statement to the police in Exhibit B admitting that he killed the deceased, but that he was insane at the time he killed the deceased. So, by pleading insanity the appellant admitted that he killed the deceased. See Madjemu v. State (2001) 5 – 6 SCNJ 31 at 40 thus-
“The raising of the defence of insanity provided in section 28 of the Criminal Code is prima facie an acceptance of the act complained of”.
See also Edoho V. State (supra). Whether the appellant was sane or insane at the time he killed the deceased is another matter which was earlier resolved against the appellant in the course of the discussion.
It follows from the discussion above that the death of the deceased, Mrs. Blessing Okon, and the fact that the appellant killed the deceased in cold blood were established beyond reasonable doubt by the respondent at the court below.
It was held in the case of Ganiyu v. State (2013) 10 NWLR (pt.1361) 29 at 43 – 44 on the constituent of criminal justice per the judgment of Ngwuta, J.S.C., that –
“The concept of justice is a triplet of justice for the victim whose life was cut short in a brutal manner and whose innocent blood cried to high heavens for vengeance, the perpetrator who cannot be denied the benefit of the procedure ordained by God in the Garden of Eden (fair trial/hearing) and the society whose membership has been depleted by one by desecration of its values. See Josiah V. The State (1985) 1 SC 406 at 477 (1985) 1 NWLR (pt. 1) 125”.
See also Okegbu v. The State (1979) 11 S.C. 1 and Kalu v. The State (1988) 4 NWLR (pt.90) 503 at 513 and Elijah V. State (2013) 9 NWLR (Pt. 13) 51 at 67 per the lead judgment of Muntaka-Coomassie, J.S.C., re-echoing that criminal justice is a three way traffic – justice for society or the state; justice for the victim of the crime; and justice for the accused.
And from the entire circumstances of this case, justice to society and justice to the victim of the crime outweigh the other element of justice to the appellant who should reap what he had sown: Blood for blood. For it has been said that thou shall not kill and whoever kills in cold blood deserves death as his reward or punishment. See Ismai’il v. State (2011) 17 NWLR (pt.1277) 601 at 633. Moreover, the rising crime against the senseless killing of womenfolk, the vulnerable segment of the society, leaves much to be desired and must be seriously frowned upon as has been done by the Supreme Court in the case of Fatai v. The State (2013) 10 NWLR (pt.136) page 1 at page 22 per Ngwuta, J.S.C.
I conclude by holding that the appeal is unmeritorious. I hereby dismiss it and affirm the conviction and sentence of the appellant to death by hanging imposed on the appellant by the court below (Oyebanji, J.). I commend Mr. Obiagwu, for the appellant, and Mr. Sanusi, for the respondent, for their well prepared briefs which were helpful in the determination of the appeal.
CHINWE EUGENIA IYIZOBA, J.C.A: I had the privilege of reading in advance the lead judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH JCA.
The facts of the case are not in dispute. The Appellant made confessional statements in which he admitted the heinous crime. The issue of the voluntariness of the confessional statements did not arise as his counsel in the lower court, on the insistence of a clarification by the learned trial judge maintained that the statements were not made by the Appellant. It is trite law that a confessional statement does not become inadmissible merely because of a subsequent retraction. See Akpan v. The State (1992) 7 SCNJ 22 (1992) NWLR (pt. 248). Although the issue of voluntariness was not raised by learned counsel, it is incumbent on a trial Judge to satisfy himself that the statement was made voluntarily before basing a conviction on it.
In the instant appeal, apart from the retraction, the appellant admitted in open court during the trial that he killed his wife but the variation was that he stabbed her with a spoon and not a knife. The confessional statement was rightly admitted by the trial judge who at page 180 of the record of Appeal adopted the correct procedure in dealing with the confessional statement. The learned judge observed:
“It is imperative to state that the fact that an accused person resiles from his statement does not make the statement inadmissible. In this case, the accused before this court admitted that the made exhibits A and B, he only changed the story in court when he urged the court to believe that he used a spoon and not a knife to stab his wife. It is therefore perfectly in order to rely on the said statements. Firstly, because the accused admitted that he made the statements. Secondly because even when retracted it does not therefore become inadmissible. To make assurances doubly sure, I have subjected both statements to necessary tests as outlined in R. V. SYKES (1913) CAR 233, See also EMEKA V. THE STATE (1998) 7 NWLR (Pt.55) 578 and am satisfied that all the questions are answered in the affirmative.”
The only real issue here was whether the defence of insanity was open to the appellant. The issue was most ably and exhaustively dealt with in the lead judgment. I agree with my learned brother that this appeal is totally lacking in merit. I also dismiss it and affirm the conviction and sentence of the Appellant by the lower court.
TIJJANI ABUBAKAR, J.C.A.: I read the horrendous tale surrounding the senseless act of the Appellant, my lord Ikyegh was able to circumvent the sham defence put up by the Appellant to hoodwink the court; my brother did a thorough analysis of the issues submitted for determination, I agree with him and have nothing useful to add.
I also agree that the Appeal is completely devoid of merit, it is therefore dismissed. I also affirm the judgment of the lower court delivered by Oyebanji J.
Appearances
Mr. E.C. Obiagwu (with Miss Ogundeji and Miss N. U. Odimegwu)For Appellant
AND
Mr. S. Sanusi (with Mr. F. Adamson, A. C. S. C. Lagos State Ministry of Justice and Mr. A. Abaniwonda)For Respondent
