EX. PC VINCENT ACHUKU v. THE STATE
(2014)LCN/6962(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of March, 2014
CA/J/86C/2008
RATIO
BURDEN OF PROOF: ON WHOM LIES THE ONUS OF PROOF OF INSANITY?
In the sight of the law, insanity is a blanket term which encompasses a considerable variety of mental abnormalities, mental infirmities, neurosis and psychosis. The law presumes every person to be sane. The onus of proof of insanity resides in an accused person who pleads it as a defence. However, the burden is not beyond reasonable. It is on the balance of probability. An accused who erects the defence of insanity must show that he was, at the relevant time, suffering from either mental disease or from natural mental infirmity, as the case may be, which deprived him of the capacity to: (a) understand what he was doing; or (b) control his actions; or (c) know that he ought not to do the act or make the omission. Where any of these ingredients is proved, the law will take it that there is no consent of will and his act not punishable as a crime, see Sanusi v. State (1984) 10 SC 166; Guobadia v. State (2004) 6 NWLR (Pt.869) 360; Edoho v. State (2010) 14 NWLR (Pt.1214) 651; State v. John (supra); Popoola v. State (2013) 17 NWLR (Pt.1382) 96. PER OBANDE FESTUS OGBUINYA, J.C.A.
CRIMINAL PROCEEDING: WHETHER A CONVICTION MAY BE SECURED ON THE EVIDENCE OF ONE CREDIBLE WITNESS
It is a cardinal principle of criminal procedure that the prosecution is not bound to call a host of witnesses. One credible witness, usually, suffices and his evidence can fetch the prosecution conviction, see Eke v. State (2011) 3 NWLR (Pt.1235) 589; Aliyu v. State (supra); Victor v. State (supra). Furthermore, the law gives the appellant the right to call any witness whom the respondent refuses to call, see Odunlami v. Nigerian Army (2013) 12 NWLR (Pt.1367) 20; Aliyu v. State (supra); Victor v. State (supra). PER OBANDE FESTUS OGBUINYA, J.C.A.
INGREDIENTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF CULPABLE HOMICIDE: INTENTION
It remains to settle the third ingredient of the offence of culpable homicide punishable. Here, intention is central. Intention: “is the purpose or design with which an act is performed. It is the foreknowledge of the act coupled with the desire to do the act. The foreknowledge and desire form the cause of the act in so far as they fulfill themselves through the operation of the will”, see Nwokearu v. State (2013) 16 NWLR (pt. 1380) 207 at 235, per Ngwuta, JSC. An accused, the prosecution must prove, must have the criminal intent to do an unlawful act of grievous bodily harm to a deceased. By law, the criminal intention of an accused can be gleaned from the instrument used and the part of the body targeted. Where an accused uses a dangerous weapon in attacking the deceased, a court is at liberty to infer that the injury arising therefrom caused his death, see Michael v. State (2008) 13 NWLR (Pt.1104) 361; Sule v. State (2009) 17 NWLR (Pt.1169) 33; Nwokearu v. State (supra). PER OBANDE FESTUS OGBUINYA, J.C.A.
CONFESSIONAL STATEMENT: WHETHER A COURT MUST CONDUCT A TRIAL WITHIN TRIAL WHERE AN ACCUSED PERSON DENIES MAKING A CONFESSIONAL STATEMENT
The law is settled, beyond any peradventure of doubt, that a confessional statement obtained by inducement, threat, promise, oppression by a person on authority is rendered unreliable, irrelevant and inadmissible in criminal proceedings, see Section 28 of the Evidence Act, 2004, Section 29(2) (a) and (b) of the Evidence Act, 2011. Where a confessional statement is riddled with those defects, it is rendered inadmissible. In such a case, the trial court is enjoined to conduct a trial-within trial to ascertain the voluntariness of the confessional statement before its admission.An accused person would have accepted making such a confessional statement, but involuntarily. Where an accused person denies making a confessional statement, a trial court is not mandated to conduct a trial within-trial proceeding, but to admit it subject to the weight to be attached to it, See Akpa v. State (2008) 14 NWLR (Pt.1106) 72; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; State v. Rabiu (2013) 8 NWLR (Pt.1357) 585; Abiodun v. State (2013) 9 NWLR (Pt.1358) 138; Ibeme v. State (2013) 110 NWLR (Pt.1362) 333; Abdullahi v. State (2013) 11 NWLR (Pt.1366) 435; State v. Isah (2012) 16 NWLR (Pt.1327) 613. PER OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES:
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
Between
EX. PC VINCENT ACHUKU – Appellant(s)
AND
THE STATE – Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A.(Delivering the Leading Judgment): This appeal grew out from the decision of the High Court of Benue State, presided over by E. Eko, J., as he then was, in charge No.MHC/12C/2006, delivered on 31/05/2007, wherein the appellant was convicted of the offence preferred against him.
The facts of the case, which culminated in this appeal, are brief, but pathetic. On 02/03/2005, the appellant was a team-mate in a team of policemen, from ‘B’ Department, Operations and Training Makurdi, Benue State, which was on stop and search duty at Savanna Bus Stop, Low Level Roundabout, Wurukum, Makurdi. The team was headed by one Inspector James Iyallo. At about 20.05 hours, at the twilight of that day, the appellant demanded some money from Godwin Ido Anuka, the deceased, who was a driver of a commercial Mitsubishi L.300 bus with registration number XA 344 TAX. The deceased driver pleaded with the appellant to allow him gratify him on his return trip. The appellant was unpleased with the plea and he shot the deceased on the neck and he died instantly on the steering.
The leader of the team, Inspector James Iyallo, took all the team mates to the Police Headquarters, Makurdi, whereat all of them were arrested and detained. After investigations, the respondent, via counsel, on 03/03/2006, sought and obtained the leave of the lower court to prefer a two-count charge against the appellant pursuant to section 185(B) of the Criminal Procedure Code. In the two-count charge, the appellant was charged with two offences to wit: culpable homicide punishable with death and demanding gratification other than legal remuneration contrary to sections 221 and 115 of the Penal Code respectively.
Thereafter, on 29/03/2006, the appellant took his plea to the two counts.
He pleaded not guilty to them before the lower court. Then, the case proceeded to full-scale trial. The respondent called two witnesses and tendered two documentary evidence, exhibits A and B, in proof of its case. At the closure of the respondent’s case, the appellant, via learned counsel, made a no-case submission which was overruled by the lower court. Sequel to that, the appellant entered his defence during which he testified in person, as DW2, fielded two other witnesses, DW1 and DW3, and tendered exhibit C to disprove the case. After the conclusion of evidence and addresses of counsel, the Lower Court in a considered judgment, delivered on 31/05/2007, discharged the appellant on the second count of demanding gratification, but convicted and sentenced him on the first count, culpable homicide punishable with death pursuant to section 221 of the Penal Code.
The appellant was aggrieved by the decision. Consequently, the appellant lodged a ten-ground notice of appeal on 19/06/2007, located on pages 100 – 104 of the printed record of appeal. Following that, parties filed and exchanged their briefs of argument in the manner prescribed by the Rules of this court.
Thereafter, the appeal was heard on 06/02/2014. During the hearing, learned counsel for the appellant, Femi Atteh, Esq., adopted the appellant’s brief of argument, filed on 13/07/2009, but deemed filed on 06/02/2014, as representing his arguments in support of the appeal. He urged the court to allow the appeal. Similarly, learned counsel for the respondent, Peter O. Ahemba, Esq., adopted the respondent’s brief of argument, filed on 30/05/2013, but deemed filed on 06/02/2014, as representing his arguments against the appeal. He prayed the court to dismiss the appeal.
In the appellant’s brief of argument, he distilled four issues for determination. At the hearing of the appeal, he applied to withdraw one of them, issue C and the arguments thereon. I, without much ado, strike it out. On this note, issue (d) will replace issue C and the issues appear in the following manner:
a. Whether the prosecution proved its case beyond reasonable doubt.
b. Whether the lower court was right in rejecting the defence of accident raised by the accused.
c. whether the lower court was right in failing to consider defence, and all the defences of the accused.
The respondent, in its brief of argument, formulated three issues for determination to wit:
1. Whether the defence of mental sickness and all other defences raised in the evidence of the defence are credible and legally capable of absolving the Accused Person from criminal responsibility in this.
2. Whether the confessional statement of the Accused Person (Exhibit ‘A’) was rightly admitted by this Honourable Court and can rightly be relied upon to convict the accused person.
3. Whether the evidence of the prosecution has proved beyond all reasonable doubt, the allegations against the Accused Person and can be relied upon for the conviction of the Accused Person as charged.
I have married the appellant’s issues with the respondent’s. The respondent’s issues two and three can be conveniently subsumed under the appellant’s issue one. The appellant’s issues two and three accommodate the respondent’s issue one. In view of these symmetrical features, I will decide the appeal on the footing of the appellant’s issues. After all, it is the appellant that was irked by the decision of the Lower Court.
Arguments on the issues:
Issue one.
Learned counsel for the appellant submitted that there were contradictions in the evidence of the respondent as follows: that PW1 stated that the appellant had primary 4 certificate, but in exhibit C, he said he finished secondary school in 2000; that PW1 said that the appellant could not write his statement because he was shaking due to drunkenness, PW2 said he did not know why as he was normal and conscious and on the date PW2 made exhibit C. He posited that the physical state of the appellant and his inability to make his statement were vital to determine if exhibit A was voluntary. He solicited the court to resolve the contradictions in favour of the appellant, hold that exhibit A was involuntarily obtained and that PW1 and PW2 were liars. He placed reliance on the cases of State v. Onubogu (1974) 4 ECSLR LR 403; State v. Enice (1992) 9 SCNJ 296; Orepeken v, Amade (1993) U (sic) SCNJ 68 to support those submissions.
He further submitted that the respondent withheld the ammunition register thereby creating ambiguity as to the number of ammunition issued to the appellant. He referred to the evidence of PW2 and the appellant, DW2, on ammunition. He added that the evidence of PW1 and PW2, on the number of ammunition was hearsay since Mohammed Ologo was not called as a witness. He noted that the armourer, who issued rifle and ammunition to Mohammed Ologo, did not testify on the number of bullets he issued. He insisted that the court could not rely on presumption and speculation on the number of bullets. He relied on the cases of Ojukwu v. State (2002) FWLR (Pt.98) 843; Onyenanka v. State (2002) 1 All WLR 131 and section 149 (d) of the Evidence Act on the unproduced gun, ammunition register, rifle and expended shell as same could have been unfavourable to the respondent.
Learned counsel contended that the appellant gave unchallenged evidence that he was not allowed to write his statement whilst others were allowed; adding that it showed that he was forced to sign exhibit A. He further contended that in homicide charge, cause of death must be proved before considering who caused the death, relying on Ahmed v. State (2002) FWLR (Pt.90) 1358. He noted that exhibit B did not show when the deceased was brought to the hospital, his condition on arrival, mode of packing the corpse, date and hour of examination, height, colour of hair, eyes and other marks of the deceased. He added that the maker of exhibit B, a staff of the Federal Medical Centre, Makurdi, was not called to testify. He persisted that the respondent did not establish the cause of death. He reasoned that there was no evidence as to who identified the corpse for examination and no link of the corpse with exhibit B. He maintained that since the cause of death of the deceased was not established, the question of who caused the death did not arise. He opined that the evidence on the identity of the deceased was hearsay as Cpt. Charles Edeh, stated in exhibit B, was not called as a witness. He cited the cases of Emetulu v. State (1964) Vol. 10 Digest of Supreme Court Cases by Chief Gani Fawehinmi, pages 318-319; Msugha Ondo v. The State (1980) 2 NCR 23 for the view.
Learned counsel narrated what transpired between PW2 and the appellant before they left for work which showed that the appellant did not sign for a rifle due to his drunkenness. He took the view that the defence evidence showed that the appellant had bouts of mental sickness during dry season, mostly within February and March. He insisted that the appellant made out a clear case of mental infirmity for a period of 10 years. He referred to the cases of George v. The State (1993) 6 SCNJ 249; Nitta v. The State (1993) 3 SCNJ 28; Oladeke v. State (1993) 1 SCNJ 60 to support his view.
For the respondent, learned counsel argued, per contra, that the respondent proved the charge against the appellant under section 221, of the Penal Code. He placed reliance on the evidence of PW1, PW2 and exhibit A as showing that the respondent satisfied the ingredients of the offence. He posited that exhibit B corroborated the cause of death, bullet wound, and that in homicide cases death could be proved either by medical report or direct or circumstantial evidence with no room for doubt. In support of the referred to the cases of Adetola v. The State (1992) 4 NWLR (no part) 267; Thomas Akpan v. The State (1992) 7 SCNJ (Pt.1) 22; Oko Agwa Azu v. The State (1993) 7 SCNJ (Pt.1) 151. He stated that, from exhibit A, the appellant’s act was deliberate; noting that a man intends the natural and probable consequences of his acts, citing the case of Mohammed Garba v. The State (2000) 2 NSCQR (Pt.1) 402 for the view. He explained that when a person who is not proved mad shoots another who dies after, the proper conclusion is that he contemplated the act. He referred to the case of Adava v. The State (2006) 25 NSCQR 604 for the point.
Learned counsel further argued that exhibit A negated the appellant’s denial of the allegation and his case of suffering from mental disturbance. He maintained that the respondent proved the cause of death since same could be established even without a medical report as in exhibit B.
He further argued that exhibit A was an admission of guilt, being a confessional statement which was positive, direct and conclusive, showing that it was the appellant that killed the deceased. He reasoned that if an objection to an accused person’s statement to the Police is on the ground that he is not the maker, it is admissible and not a matter for trial within trial. He placed reliance of the cases of Solomon Ehot v. The State (1993) 5 SCNJ 65; Lt. Commander Steve Obisi v. Chief of Naval Staff (2004) 118 LRCN 3916; Daniel Madjemu v. The State (2001) 6 SCQR (Pt.1) 294 on the point. He added that a retracted confessional statement remained admissible if proved to be voluntary, citing the case of peter Dunugo v. The State (1992) 9 SCNJ 46 on the point.
Learned counsel took the view that the appellant did not show how he was induced or forced to sign exhibit A thereby making it admissible. He persisted that the court could convict the appellant based on exhibit A. In support of the argument, he relied on the cases of Ihuebeka v. The State (2000) 2 SCNQR (Pt.1) 186; Kenneth Ogoala v. The State (1991) 3 SCNJ 61. He noted that there were clear proof, outside exhibit A, which showed that the offence was committed so that the Lower Court rightly convicted the appellant on exhibit A, relying on the case of Kenneth Ogoala v. The State (supra) to buttress the point.
Learned counsel argued that the appellant’s evidence on mental disturbance were fabricated and unworthy of belief. He explained that the appellant never raised the defence in exhibit A; where he stated that he is suffering from drunkenness. He wondered how the appellant was having mental disturbance without informing his employer, the Police Force, and how the illness would not have occurred since 01/01/2002 till 02/03/2005. He described the defence a fabricated afterthought and facile which a court would not accept because of its subjective nature without objective standard. He placed reliance on the case of Benson Ihonre v. The State (1987) 11-12 SCNJ 143 on the point. He stated that for the appellant to raise the defence of drunkenness in court was a serious conflict which made both unreliable. In support of the contention, he referred to the cases of Matthew Oke Onwumere v. The State (1991) 5 SCNJ 150; Nwabueze v. The State (1988) 7 SCNJ (Pt.11) 248.
Learned counsel reasoned that the evidence of DW3 does not qualify as an expert evidence. He explained that his medical test was said to be God given and not limited to mental illness alone. He described him as a general herbal practitioner whose evidence was faulted by the non-appearance of the appellant’s mental illness from 2002 to 2005. He cited the case of Dickson Arisa v. The State (1988) 7 SCNJ (Pt.1) 76 for his view.
He further contended that the evidence of mental illness did not meet the legal requirement of section 51 of the Penal Code – that the mental condition should be known at the time of doing the act. He noted that the evidence of DW1 and DW2 concerned past years and there was no evidence on how the appellant behaved when the mental disturbance starts; adding that the defence would not absolve the appellant from criminal responsibility. He relied on the cases of Michael Ojogba v. The State (1992) 10 SCNJ 88; Toluso Oladele v. The State (1993) 1 SCNJ 60; Anthony Ejimma v. State (1991) 7 SCNJ (Pt.1) 318; Augustine Goubadia v. The State (2004) Vol.1175 LRCN 3723 to support the contention.
Issue two.
Learned counsel for the appellant submitted that the lower Court was wrong to have rejected the defence of accident when the appellant stated that “he did not know when the gun fired”. He called the phrase raising the defence of accident or accidental discharge. He maintained that the appellant was not contradicted on the point. He cited the case of Nwuguru v. State (1991) 1 NWLR (Pt.165) 49 in support of the submission. He postulated that when an accused raised a defence of accident, the onus still remained on the prosecution to prove its case and where it failed, the accused would be entitled to an acquittal. To buttress the postulation, he relied on the cases of Babuga v. State (1995) 5 NWLR (Pt.395) 329; Sholude v. Republic (1966) 4 NSCC 131; Oguonzee v. State (1998) 5 NWLR (Pt.551) 521.
On behalf of the respondent, learned counsel, tersely, submitted that the appellant’s act was deliberate and his intention was to kill the deceased.
Issue three.
Learned counsel for the appellant contended that the appellant raised the defences of accident and insanity, but the Lower Court proceeded straight to form an opinion in favour of the respondent’s case and the defences of the appellant stood no chance of success any more. He further contended that a trial court must first consider all the defences raised by an accused and all other defences surfaced in the course of trial. He persisted that failure to do so would occasion a miscarriage of justice such that a decision would be set aside. He placed reliance on the cases of Opeyemi v. The State (1985) 2 NWLR (Pt.5) 101 at 112; Nwosu v. State (1998) 8 NWLR (Pt.562) 433.
Resolution of the issues:
For orderliness, I will attend to the issues sequentially, in their numerical order, beginning with issue one. The issue (one) probes whether or not the respondent proved the offence laid against the appellant beyond reasonable doubt.
Before I delve into the hub of the issue, it is foremost to treat one tangential point raised by the appellant. It concerns and revolves around the admission of exhibit A, the appellant’s confessional statement made on 03/03/2005. The appellant derided its admission on account of its involuntariness. The law is settled, beyond any peradventure of doubt, that a confessional statement obtained by inducement, threat, promise, oppression by a person on authority is rendered unreliable, irrelevant and inadmissible in criminal proceedings, see Section 28 of the Evidence Act, 2004, Section 29(2) (a) and (b) of the Evidence Act, 2011. Where a confessional statement is riddled with those defects, it is rendered inadmissible. In such a case, the trial court is enjoined to conduct a trial-within trial to ascertain the voluntariness of the confessional statement before its admission.An accused person would have accepted making such a confessional statement, but involuntarily. Where an accused person denies making a confessional statement, a trial court is not mandated to conduct a trial within-trial proceeding, but to admit it subject to the weight to be attached to it, See Akpa v. State (2008) 14 NWLR (Pt.1106) 72; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; State v. Rabiu (2013) 8 NWLR (Pt.1357) 585; Abiodun v. State (2013) 9 NWLR (Pt.1358) 138; Ibeme v. State (2013) 110 NWLR (Pt.1362) 333; Abdullahi v. State (2013) 11 NWLR (Pt.1366) 435; State v. Isah (2012) 16 NWLR (Pt.1327) 613.
To determine the legality or otherwise of the admission of exhibit A, I will pay an expected visit to the record and invite the necessary proceedings therein. On 04/07/2006, PW1, Insp. Gilbert Ogbonna, the recorder of the document, testified. When it was tendered through him during his examination-in-chief, learned counsel for the appellant, I. Wombo, Esq., on page 19 of the record, stated. “We object to the tendering of the statement. Accused denied making the statement. He said the statement is not his own. He is not the maker of the statement”. In the crucible of cross-examination, the appellant, as DW2, on page 49 of the record, answered: “He recorded my statement – Exh. A. I refused to sign it. He forced me to sign it. The signature on Exh. A is mine”. Still in the furnace of cross-examination, the appellant, on page 51 of the record, replied: “I did not voluntarily sign Exh. A”.
It is discernible from the proceedings of 04/07/2006, when the document was tendered, that the appellant disowned the document by denying being its author. It stems from that frontal denial of making the document, that the requisite condition for the lower court to go into a trial-within-trial, with a view to discovering its voluntariness or otherwise, was glaringly absent. In the eyes of law, acceptance of authorship of extra-judicial confessional statement, like exhibit A, is a pre-condition that must be fulfilled before a trial court will inquire into its voluntariness or otherwise by dint of trial-within-trial proceeding, see Ibeme v. State (supra). What the appellant did, qua learned counsel, reeks of retraction for which the Lower Court was right to have admitted it as an exhibit, subject to the weight to be ascribed to it.
The appellant’s responses, during his cross-examination displayed above, are diametrically opposed to one another. In one breath, he maintained he did not sign the document. In another breath, he made a volte face, that he signed it by force, thereby admitting signing it. Apart from being irreconcilable, his acknowledgement of being the maker of the document was belated as to infuse competence in the lower court to engage in a trial-within-trial proceeding. It was too late in the day for the appellant to own up making the document. In the view of the law, the proper time to attack the voluntariness of an extra-judicial confessional statement is at the point of tendering it, not after its admission into the province of the prosecution’s (respondent’s) case, see Igri v. State (2012) 16 NWLR (Pt.1327) 522.
In the light of the foregoing, it is plain that the lower court was firma terra in law when it received the document in evidence as exhibit A. The Lower Court’s finding thereon was unassailable to warrant any interference. The appellant’s arguments, as dazzling as they appear, are idle and repel any credence. On this score, I welcome exhibit A as a properly admitted documentary evidence and usable in this appeal.
The law makes it desirable that a confessional statement be tested against other variable situations to ascertain its veracity and voluntariness, see Igri v. State (supra); State v. Isah (supra) where the necessary queries are chronicled thus: (a) is there anything outside the confession to show it is true? (b) is it corroborated? (c) are there relevant statements of fact made in it which can be tested as true? (d) was the accused one who had the opportunity of committing the offence? (e) is his confession possible? and (f) is it consistent with other facts which have been ascertained and proved?
I will satisfy the desire of the law vis-a-vis exhibit A. The uncontradicted evidence of PW1, the Investigating Police Officer, IPO, and PW2, the team leader on the fateful day, tangibly, corroborated and attested to its veracity. They, also, signify that exhibit A was consistent with the other ascertained and proved facts. The appellant, who was a member of the team at the roadblock and who bore arm, had the opportunity of committing the crime particularly as the expended bullet shell was found on him and his ammunition reduced by one. The appellant was a police officer who knew the implication of making a confessional statement thereby making the confession in exhibit A possible. It will be seen anon that exhibit B, the medical report, was an external evidence outside exhibit A which buttressed it as to its truth. I, therefore, hold that exhibit met those desirable tests.
Now, I move to the meat of the issue – was the offence proved beyond reasonable doubt against the appellant? The appellant was charged with culpable homicide punishable with death contrary to section 221 of the penal Code. It reads:
221. Except in circumstances mentioned in section 222 culpable homicide shall be punished with death –
(a) if the act by which the death is caused is done with the intention of causing death; or
(b) if the doer of the act knew or had reason to know that death would be probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.
From the provision, the Supreme Court in an avalanche of judicial authorities, had evolved the ingredients of culpable homicide punishable with death to be: that there is death of human being, the deceased; that the death was caused by the accused person and that the accused person had the intention or knew or had reason to know that death or grievous bodily harm would be the probable or likely consequence of his act, Jua v. State (2009) 15 NWLR (Pt.1184) 217; Musa v. State (2009) 15 NWLR (Pt.1165) 467; Akpa v. State (2008) 14 NWLR (Pt.1106) 72; Usman v. State (2013) 12 NWLR (Pt.1367) 76; Alay v. State (2013) 12 NWLR (Pt.1368) 337; Maigari v. State (2013) 17 NWLR (Pt.1384) 425; Ogbu v. State (2007) 5 NWLR (Pt.1028) 635; Dogo v. State (2013) 10 NWLR (Pt.1361) 160. These outlined elements of culpable homicide punishable with death must be proved conjunctively by the prosecution beyond reasonable doubt. Put starkly, where one is not proved, then the offence is not established against an accused person.
To begin with, exhibit A, the appellant’s pre-trial confessional statement,  which I had decked with veracity and voluntariness, on its admission, by the lower court, metamorphosed into a veritable part of the respondent’s case, see Egboghonome v. State (1993) 7 NWLR (Pt.306) 383; Akpan v. State (2001) 15 NWLR (Pt.737) 745. This court has the concurrent jurisdiction with the lower court in relation to the appraisal of exhibit A, see Odutola v. Mabogunje (2013) 7 NWLR (Pt.1354) 527.
In due obeisance to the law, I have read exhibit A with the finery of a tooth comb. It is encapsulated between pages 9 and 12 of the cold record of appeal. The relevant portion of the document is extracted out, verbatim ac litteratim, as follows:
…Then on 2-3-05 at about 2005 hrs, I corked (sic) my rifle, A/R M40933 which was issued to me at the OPS Makurdi for duty and I saw a commercial bus coming, I stopped him and he slowed down. I moved to him and told the Driver to show face but he pleaded that he will see me when he comes back. As I was not myself because I was already under the influence of Alcohol, (sic) I pointed my gun at him and as he could not give me any money, I did not know again when my finger went into the trigger and the gun exploded. The bullet went into the driver whom I later know his name to be Godwin Anuka and he died while on the steering. The Bus lost control and hit another Peugeot 504 car that was parked on the side of the Road…. At ‘B’ OPS Makurdi, the Inspector and other Police Authority started checking our Ammunition and they recovered nineteen rounds of live ammunition from me instead of twenty. They also saw the empty shell of the expended ammunition from me
It can be garnered from the reproduced integral part exhibit A that the deceased, Godwin Ido Anuka, a human being, died instantly whilst behind the steering of his Mitsubishi bus on 02/03/2005. It is, also, decipherable therefrom that it was the appellant’s acts of cocking his rifle, pointing it at the deceased, touching its trigger and the bullet moving out of it into the deceased that caused his death. In other words, it was clear that it was the appellant’s acts that snuffed the precious and priceless life out of the deceased. These are sufficient proof of the first two elements of the heinous offence.
Exhibit B, the medical report, goes a long way to fortify the presence of these two ingredients of the foul offence – that the deceased died by bullet wound. The appellant launched vitriolic attacks on the admission, validity and effect of exhibit B. To start with, the cause of death of the deceased was, as x-rayed above, known and not amenable to speculation. To this end, exhibit B ceased to be sine qua non for the cause of his death. In the case of Ubani v. State (2003) 18 NWLR (Pt.851) 224 at 247, Edozie, JSC, re-echoed the position of the law in these illuminating words:
…As noted earlier, it is settled law that although medical evidence is desirable to ascertain cause of death, it is not sine qua non in case of culpable homicide where the cause of death could be established by other evidence. In a case where a man was attacked with a lethal weapon and he died on the spot, it is not necessary to prove cause of death by medical evidence since it can be properly inferred that the wound inflicted thereby caused the death.
See, also, Adekunle v. State (2006) 14 NWLR (Pt.1000) 717; Ben v. State (2006) 16 NWLR (Pt.1006) 583; Akpa v. State (supra); Afosi v. State (2013) 13 NWLR (Pt.1371) 329; Maigari v. State (supra).
Even the appellant’s contention that the maker of exhibit B, Dr. E. E. Okwori, should have testified was, totally, misplaced in the wide domain of the law. The law views the tendering of exhibit B as sufficient as it effectively dispenses with the attendance of its maker to court, see section 42(1) of the Evidence Act, 2004, section 55(1) of the Evidence Act, 2011, section 249(3) of the Criminal Procedure Code, Edoho v. State (2010) 14 NWLR (Pt.1214) 651. It follows that the respondent’s failure or neglect to call Dr. E. E. Okwori, as a witness, did not vitiate the admission and validity of exhibit B and, de jure, its usage by the lower court.
By the same token, the appellant’s argument, as inviting as it is, on the identity or non-identification of the deceased, to the maker of exhibit B flies in the face of the law. The law is that where there are facts to infer that the corpse examined by a doctor was that of the deceased, then the evidence of the person who identified it is not indispensable, see Enewoh v. State (1990) 4 NWLR (Pt.145) 469; Afosi v. State (supra). It flows that the evidence of Cpl. Charles Edeh, who identified the deceased’s corpse, was not a desideratum in considering the identity of the deceased. After all, in our criminal jurisprudence a court has the licence of the law to convict an accused person without corpus delicti, the body of the crime, see Ubani v. State (supra); Edoho v. State (supra); Jua v. State (supra). These effectively deflate all the undeserving strictures which the appellant passed on exhibit B. l, therefore, hold that exhibit B is quite relevant even as it solidifies the vital point that it was the bullet wound from the appellant’s gun, which damaged the deceased neck, which proximately led to his cardio respiratory failure and ultimate death. Altogether, I hold that the respondent established that a man, the deceased, died and that it was the acts of the appellant that killed him.
It remains to settle the third ingredient of the offence of culpable homicide punishable. Here, intention is central. Intention: “is the purpose or design with which an act is performed. It is the foreknowledge of the act coupled with the desire to do the act. The foreknowledge and desire form the cause of the act in so far as they fulfill themselves through the operation of the will”, see Nwokearu v. State (2013) 16 NWLR (pt. 1380) 207 at 235, per Ngwuta, JSC. An accused, the prosecution must prove, must have the criminal intent to do an unlawful act of grievous bodily harm to a deceased. By law, the criminal intention of an accused can be gleaned from the instrument used and the part of the body targeted. Where an accused uses a dangerous weapon in attacking the deceased, a court is at liberty to infer that the injury arising therefrom caused his death, see Michael v. State (2008) 13 NWLR (Pt.1104) 361; Sule v. State (2009) 17 NWLR (Pt.1169) 33; Nwokearu v. State (supra).
Indisputably, the appellant used his service rifle in shooting the deceased. Unarguably, a rifle, a gun, is a very lethal weapon. In the ranking of dangerous instruments, it may concede first position to a bomb. It is a dreadful weapon which scares even its bearer. For the fact that the weapon used was too dangerous to spare the deceased, I am minded to draw the irresistible inference that the appellant had the intention to inflict grievous bodily harm on him and that death was the most likely consequence of his dastardly act. It is a known fact of life that nobody plays with a gun of any make. I, therefore, impute intention to kill the deceased to the appellant. The appellant was a trained police officer and knew which part of the body, the neck, to strike to kill the unarmed deceased.
Besides, it is trite law that a man is presumed to intend the natural consequences of his act, see State v. John (supra); Nwokearu v. State (supra). On the deceased’s justified refusal to ‘show face’, the appellant pointed his gun at the deceased and shot him to death instantaneously. The appellant is presumed to have intended to send him to an untimely death irrespective of his intentions. The apposite maxim is: Intentio Mea Impoint Namien Operi Meo – My intention gives a name to my action. It will be unreasonable and hostile to the law to presume otherwise, that is, want of intention in favour of the appellant. The third ingredient was, duly, fulfilled by the respondent.
The appellant struggled in vain to puncture the evidence of the respondent on ground of contradictions. In the realm of etymology, the word, contradiction, traces its lexical descent to Latin Language, id est, ‘contra’ and ‘dictum’ which connote ‘to say the opposite” see Eke v. State (2011) 3 NWLR (Pt.1235) 589.  In law, for contradiction to douse the case of a party, it must be on material, not peripheral, points, see Egwumi v. State (2013) 13 NSLR (Pt.1372) 525.Here, the appellant’s grouse was on his educational level, his physical state when exhibit A was made and the date exhibit C was made. In the first place, the law permits minor differences in evidence of witnesses. It regards prototype narration of events by witnesses as evidence of tutoring, see Egwumi v. State (supra). Those points were adjunct, unimportant to the determination of the mainstay of the case – whether or not the appellant killed the deceased. Moreover, they do not even qualify as contradictions. They are mere discrepancies, trifling differences in evidence of the respondent. They were not fundamental nor did they go to the root of the respondent’s case as to ruin it.
Not done, the appellant castigated the evidence of the respondent on the non-production of the ammunition register, the gun, the expended shell and non attendance of some witnesses. At the bottom of exhibit A, reproduced above, the appellant himself admitted that the 20 rounds of ammunition he collected were short by one and being in custody of an expended shell. The unqualified admission cancels the need for the production of any register and empty shell. It further makes mincemeat of the appellant’s clamour for invitation of the presumption in the provision of section 149(d) of the Evidence Act, 2004, section 167(d) of the Evidence Act, 2011 against the respondent. On this premise, I decline to honour the appellant’s invitation to invoke the provision against the respondent’s case. Again, failure to tender a weapon of crime is not fatal to a prosecution’s case, see Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; Victor v. State (2013) 12 NWLR (Pt.1369) 465. It follows that the respondent’s failure to tender the gun and the expended shell does not undermine the potency of the case which is hinged on exhibit A, a confession.
It is a cardinal principle of criminal procedure that the prosecution is not bound to call a host of witnesses. One credible witness, usually, suffices and his evidence can fetch the prosecution conviction, see Eke v. State (2011) 3 NWLR (Pt.1235) 589; Aliyu v. State (supra); Victor v. State (supra). Furthermore, the law gives the appellant the right to call any witness whom the respondent refuses to call, see Odunlami v. Nigerian Army (2013) 12 NWLR (Pt.1367) 20; Aliyu v. State (supra); Victor v. State (supra). Given these hallowed rule of practice, the appellant’s grievances here stand on quicksand. They have no backing of the law as to constitute any dents on the respondent’s case.
The law has saddled the respondent with the herculean duty of proving those ingredients of the offence beyond reasonable doubt, see section 138(1) of the Evidence Act, 2004, section 135(1) of the Evidence Act, 2011. Nevertheless, proof beyond reasonable doubt does not evince proof beyond all shadows of doubt, see Banjo v. State (2013) 16 NWLR (Pt.1381) 455. When the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, proof beyond reasonable doubt is achieved in law, see State v. John (supra); Maigari v. State (supra).
Above all, the critical nature of exhibit A in criminal trials cannot be overemphasized. It is a confession “an admission made by the appellant suggesting or stating the inference that he committed the crime”, see section 27(1) of the Evidence Act, 2004, section 28 of the Evidence Act, 2011,; Ogudo v. State (2011) 18 NWLR (Pt.1278) 1. It is one of the three ways of proving crimes cognizable in law in addition to eye witness and circumstantial evidence, see Abirifon v. State (2013) NWLR (Pt.1372); Maigari v. State (supra); Igri v. State (supra); State v. Isah (supra). Indubitably, in adjectival law, confession is the strongest evidence of guilt of an accused person charged with an offence in that it comes out from the horse’s mouth, see Akpa v. State (supra); Usman v. State (supra). By confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556.The exhibit A makes appellant the undoubted owner of the mens rea and actus reus vis-a-vis the foul crime of culpable homicide punishable with death preferred against him. The reason is obvious. The need to conduct an inquiry into his mens rea or actus reus over the offence fizzled out with the presence of exhibit A – an undiluted admission of the commission of the crime. All in all, the respondent proved the ingredients of the offence beyond all reasonable doubt. The lower court was right in his findings thereon.
In the reproduced segment of exhibit A, the appellant stated: “As I was not myself because I was already under the influence of Alcohol, I pointed my gun at him”. From this phrase, the appellant evoked the defence of intoxication. By virtue of section 44 of the Penal Code, a person in a state of intoxication is presumed to have the same knowledge which he would have had if he had not been intoxicated. Then, by section 52 of the Penal Code, an act done by a person by reason of intoxication caused by something administered to him without his knowledge is not an offence. So, whilst self-intoxication, under section 44 of the Penal Code, is not a defence, induced- intoxication constitutes a statutory defence under section 52 of the Penal Code.
Incidentally, the appellant raised the defence in an inchoate manner in that he did not state whether the intoxication, Dutch courage, was self-induced or drug-induced so as to inculpate or exculpate him of the offence respectively. It is not part of the adjudicative function of the court to fill such crucial lacuna for the appellant. Perhaps, it was because of its incomplete nature that he abandoned the defence in his viva voce evidence for mental disturbance. Be that as it may, the law does not take kindly to drinking alcohol by policemen on duty, see Oludamilola v. State (2010) 8 NWLR (Pt.1197) 565. In sum, the defence, owing to its haphazard nature, was not available to absolve the appellant of the crime.
Another legal defence which the appellant relied on was mental disturbance, insanity for short. In this wise, the provision of section 51 of the Penal Code comes in handy. It states:
51. 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.
In the sight of the law, insanity is a blanket term which encompasses a considerable variety of mental abnormalities, mental infirmities, neurosis and psychosis. The law presumes every person to be sane. The onus of proof of insanity resides in an accused person who pleads it as a defence. However, the burden is not beyond reasonable. It is on the balance of probability. An accused who erects the defence of insanity must show that he was, at the relevant time, suffering from either mental disease or from natural mental infirmity, as the case may be, which deprived him of the capacity to: (a) understand what he was doing; or (b) control his actions; or (c) know that he ought not to do the act or make the omission. Where any of these ingredients is proved, the law will take it that there is no consent of will and his act not punishable as a crime, see Sanusi v. State (1984) 10 SC 166; Guobadia v. State (2004) 6 NWLR (Pt.869) 360; Edoho v. State (2010) 14 NWLR (Pt.1214) 651; State v. John (supra); Popoola v. State (2013) 17 NWLR (Pt.1382) 96.
Did the appellant establish any of those three ingredients so to take shelter under the defence of insanity? I have my doubts. In the first place, the appellant’s evidence on the point is suspect and will not be taken seriously, see Guobadia v. State (supra); Edoho v. State (supra). That position of the law renders his evidence that he had mental disease idle. The evidence of DW1, appellant’s maternal relation, found on page 46 of the record, was: “When accused was in school he behavon (sic) as if he was mental”. DW3, a native doctor, herbal medicine practitioner, on page 52 of the record, testified that: “I know that the Accused had mental problem because I have that gift from God. The moment I looked at person touch him I would know what is wrong with the person” Both DW1 and DW3 claimed that the appellant’s mental disease was seasonal, February and March yearly.
The purport of the DW1’s evidence was that the appellant behaved like somebody who was infested with the disease of mind and not that he was actually plagued by mental infirmity. No wonder the lower court disbelieved him and the finding is faultless. In the same vein, the evidence of DW3, predicated on divine inspiration, which assigned insanity to the appellant is, dangerously, subjective. Being evidence from a native doctor, it has the semblance of evidence premised on witchcraft which the law does not accommodate. Thus, in the case of Edoho v. State (supra), at 689, Ogbuagu, JSC, re-echoed:
However, a defence founded on belief of witchcraft or juju, is a defence that is untenable because, it is a defence founded on the subjective belief of the accused person, rather than on the objective requirements of the law relating to the particular relevant defence.
In the domain of criminal law, the surest way of proving insanity is by medical evidence, see Ejinima v. The State (1991) 7 SCNJ (Pt.II) 318; Edoho v. State (supra). That is to say, the appellant should have called an orthodox medical practitioner, preferably a psychiatrist, to proffer objective evidence on his mental illness. As it stands, even when the pieces of evidence, offered by DW1 and DW3, are pooled together, they are impotent in proving that the appellant was, on the fateful day, afflicted with disease of the mind in relation to the offence charged. Put shortly, the appellant was unable to establish, by dint of credible evidence, any of those three ingredients depicting that he was stricken by mania.
In the light of these legal expositions, festooned with ex cathedra judicial authorities, I am of the view that the respondent proved the offence of culpable homicide punishable with death beyond reasonable doubt against the appellant. On this premise, I must, pronto, return a positive answer to the question posed at the cradle of this issue. In effect, the findings of the lower court, on all the points raised by the appellant, are quite unassailable. I will be defiling the law to tinker with them in any manner. Contrariwise, I have no option than to resolve the issue (one) against the appellant and in favour of the respondent.
Having done away with issue one, I will proceed to handle issue two –
whether the Lower Court was right in rejecting the defence of accident raised by the appellant. The applicable law here is the provision of section 48 of the Penal Code. It states:
48. Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the course of doing a lawful act in a lawful manner by lawful means and with proper care and caution.
For this provision to avail the appellant, he must show that: (a) the act was done by accident; (b) there was no criminal intention or knowledge; and (c) the act was done in the course of doing a lawful act in a lawful manner by a lawful means and with proper care and caution. Accident is: “an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that would be reasonably anticipated”, see Oludamilola v. State (2010) 8 NWLR (Pt.1197) 565 at 582, per Fabiyi, JSC. Where a defence of accident is successful, an accused is absolved of committing the alleged crime. It is incumbent on the prosecution to disprove accident when raised by an accused, see Babuga v. State (supra); Sholude v. Republic (supra); Oguonzee v. State (supra); Adekunle v. State (supra); Sule v. State (2009) 17 NWLR (Pt.1169) 33.The defence can only be considered where an accused person testified as in this case, see Adekunle v. State (supra).
Flowing from the reproduced version of exhibit A, the appellant had cocked or unlocked his gun even before stopping the deceased. This, clearly, punctures the defence of accident which he raised. This is because, had his gun been locked, as expected in a country with teeming population of unarmed citizens, it would have not exploded even when his finger touched the trigger. The same reason neutralises the defence of accidental discharge being brandished by the appellant, see Agbo v. State (2006) 6 NWLR (Pt.977) 545. In the latter, it is expected that a gun discharges or explodes on its own without the bearer operating it. In the case of Adekunle v. State (supra), at 749, Ogbuagu, JSC, observed:
… I suppose that when a gun is properly locked, stray bullets and accidental discharge syndrome will not occur. Invariably, accidental discharge always occurs when some of the drivers are unwilling and refuse to pay the 20.00 (twenty naira) or such money being extorted by the police at every check point, (and there are so many on our roads, separated by very short distances)…. This state of affairs, is of common knowledge and it is notorious fact on our Nigerian roads.
The point I am labouring to ram home is that the appellant’s shooting of the deceased was not independent of the exercise of his will. It was a willed act. He threw caution and care, two admirable qualities of a police officer, to the whirlwind. Worse still, he was relishing in an illegitimate act-demanding gratification. In law, willed or deliberate act are incompatible with the defence of accident, see Sule v. State (supra); Adekunle v. State (supra); Oludamilola v. State (supra). Both are incapable of existing judicially. Even then, the appellant’s confession, in exhibit A, and his defence of accident are mutually exclusive, one must necessarily displace the other. Having admitted the commission of the crime, the appellant cannot contrive the defence of accident for an act done intentionally can never be accidental.
On account of these, the lower court’s finding on the defence tallies with mine. I have not seen any extenuating circumstances to disturb the impeccable finding reached by the lower court. In the result, I resolve issue two against the appellant and in favour of the respondent.
That takes me to issue three. The issue quarrels with the manner the lower court considered the appellant’s defences after it had formed an opinion on the respondent’s case. From the tenor of the appellant’s terse arguments on the issue, it is crystal clear that the lower court duly, considered his defences. I have given a microscopic examination to the 16-page well-honed judgment of the lower court, spanning pages 85-99 of the printed record. Therein, I find that 9 pages thereof were devoted to a meticulous and dispassionate consideration of the defences raised by the appellant and others, patently and latently, showcased in the evidence. I am unable to see, even with judicial lens, where the lower court formed an opinion on the respondent’s case before examining the appellant’s defences. The trite law is that a court must consider all defences open by an accused person charged with a capital offence, whether meritorious or stupid. The cases of Opeyemi v. State (supra) and Nwosu v. state (supra), upon which the appellant placed high premium on the issue, would have availed him if the lower court had erred by not looking into the legal defences presented or disclosed by the appellant.
Given the foregoing, I find nothing offensive in law in the method the lower court adopted in assessing the defences of the appellant. The mode does not depict any failure on the part of the lower court to do justice. It does not, in the least, smack of miscarriage of justice, as canvassed by the appellant, to justify my interference, see Olatunbosun v. State (2013) 17 NWLR (Pt.1382) 167. To this end, I will desist from honouring the appellant’s inciting invitation to set aside the decision on account of a non-existent miscarriage of justice. On the contrary, I resolve issue three against the appellant and in favour of the respondent.
Before the final verdict, let me observe by way of obiter, that this case, like others of its ilk, presents a paradox. The harmless deceased was a tax-payer whose income was used to pay for the gun and the services of the appellant for the latter’s preservation of his priceless life and property against assailants and trespassers respectively. Regrettably, the hapless deceased, an innocent and a law-abiding citizen, became a prey to the trigger-happy appellant for failing to commit, or postponing the commission of, a crime-graft or gratification. This is a barbaric act which has become endemic in the Nigeria Police Force. There is crying need, therefore, for the appropriate authority to rid it of officers of the appellant’s class in order to conserve its fast- waning public image and the precious lives of the Nigerian citizenry.
On the whole, having resolved the three issues against the appellant, in a manner ordained by the law, the fate of the appeal is obvious. It is, totally, drained of any jot of merit and deserves dismissal. Consequently, I dismiss the appeal. For the avoidance of doubt, I affirm the decision of the lower court, delivered on 31/05/2007, wherein it convicted and sentenced the appellant to death for culpable homicide punishable with death.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
MOHAMMED A. DANJUMA, J.C.A.: I agree that this Appeal be dismissed. This Appeal is akin to that decided in Agbo Vs. State (2006) Vol 5 LRCNCC 86.
I have read before now the lead judgment rendered by my learned brother Obande Festus Ogbuinya, JCA and in its draft form, and agree completely that this appeal should fail. The Appellant tried in desperation to create the defences of insanity, drunkenness or even accident in exculpation. He “forgot” that he had clearly stated the motive for his stopping the victim of his act with cocked-gun containing life ammunition. The motive – to be paid gratification by force, clearly evidenced the mens rea of intent to shoot or release the trigger if demand was not complied with. It negatived the mens rea of insanity and/or drunkenness.
The defence of accident does not avail an act done unlawfully or recklessly or rashly like Pats Ocholonu, (JSC) of blessed memory stated in Agbo Vs. State (supra).
“I have no doubt that there are downright incontestable, weighty and contradictory statements of the Appellant. There is evidence of improvisation to give himself a credible defence in respect of what he did.” My lord F. Obande Ogbuinya JCA has meticulously captured the versions of the denials and claims that do not tango nor weave into any legally admissible or legally cognisible defence in law for the Appellant.
The Appellant deserves a residence in the same quarters he had intended his victim to be if he failed to show face.
That Quarters/Residence as confirmed in the lead judgment is the right place.
In consequence, I abide by the lead judgment and dismiss the Appeal herein.
Appearances
Femi Atteh, Esq. (with him, N. I. Aniekwe, Esq. and S. T. Akohol, Esq.) For Appellant
AND
P. O. Ahemba, Esq., DCR, Ministry of Justice, Benue State For Respondent
