KAINE v. STATE (2022)

KAINE v. STATE

(2022)LCN/16974CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Friday, March 11, 2022

CA/AW/4C/2020

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

EMMANUEL OSITA KAINE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE OPTIONS IN LAW RESERVED FOR A RESPONDENT IN AN APPEAL

The settled position of the law on this is that a respondent has three options:
1) Adopt the issues formulated by the Appellant.
2) Give the Appellant’s issues a slant to favour his side of the case or
3) Formulate his own issues.
This was my finding in the case of PASTOR IKECHUKWU ONYEKWULUJE & 3 ORS V CHIEF AMAECHI NDUBA ONYEKWULUJE & 3 ORS IN CA/AW/641/2018 delivered on the 16th March, 2021 in which I relied on the cases of PATRICK V STATE (2018) LPELR – 43862 (SC); JOHN V STATE (2016) LPELR – 40103 (SC) and BRANDS CAPITAL LTD V CHIEF ADEBOLA DISU-IGE & ORS (2018) LPELR – 44812 (CA).
It is clear from the respondent’s brief that he has chosen the third option of formulating its own issues. This option is often fraught with challenges and it is an unnecessary option to take. For instance, in the instant case the respondent did not tie its issues to the grounds of appeal. This can be fatal. PER MAHMOUD, J.C.A.

ESSENTIAL ELEMENTS OF THE CRIMINAL OFFENCE OF MURDER

In dealing with issue (1) as raised by the appellant, it is necessary, even if elementary to restate the essential elements of the offence of murder: (a) that the deceased had died; (b) that the death of the deceased was caused by the accused and (c) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See OGBA V STATE (1992) 2 NWLR, PT 222, 164; GIRA V THE STATE (1996) 4 NWLR, PT 443, 375; ADEKUNLE V THE STATE (2006) 14 NWLR, PT 1000, 717; JIMMY V THE STATE (2013) 18 NWLR, PT 1386, 229 and OLADAPO V STATE (2020) LPELR – 50563 (SC). PER MAHMOUD, J.C.A.

WHETHER OR NOT ONLY MATERIAL CONTRADICTIONS ARE FATAL TO THE CASE OF THE PROSECUTION

The settled position of the law is that it is only material contradictions that are fatal to the case of the prosecution. The question to ask and answer is whether it is material if the deceased was stabbed by a broken bottle or a knife? The natural impulse would be to answer the question in the negative. This means that it does not really matter whether it was a broken bottle or a knife as they are both indeed sharp objects capable of inflicting the kind of deadly injury that resulted in the death of the deceased. What is more, the witness PW1 sufficiently explained this discrepancy in his evidence in cross examination as to the reason why he felt and told the Police that it was a broken bottle because while at the family meeting in his uncle’s sitting room they all heard the sound of a broken bottle from his uncle’s bedroom minutes before the stabbing of the deceased by the appellant who came from the said bedroom. PW1 explained that he changed his mind to the knife after they went back to the scene of crime with the Police who found the knife caked with blood stains. So no, the alleged discrepancy was not material. And even if was, PW1 has sufficiently explained the purported contradiction that it ceases to be fatal to the prosecution’s case: see IBEH V STATE (1997) 1 NWLR, PT 484, 632; MUKA & ORS V STATE (1976) 9 – 10 SC (REPRINT), 1993; AREHIA V STATE (1982) LPELR – 543 (SC). In the instant case, the explanation of PW1 finds corroboration in Exhibit D, the appellant’s confessional statement. This establishes the second ingredient of this offence beyond reasonable doubt. PER MAHMOUD, J.C.A.

THE POSITION OF LAW WHERE IT IS ACKNOWLEDGED THAT DEATH HAS RESULTED FROM THE ACT OF A PERSON IN A MURDER CASE

In every case where it is alleged that death has resulted from the act of a person as in this case, a causal link between the death and the act must be established and proved beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where the cause of death is ascertained, the next step in the enquiry is to link the cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence: OFORLETE V STATE (2000) 12 NWLR, PT 681, 415; UDOSEN V STATE (2007) 4 NWLR, PT 1023, 125 and ALAO V STATE (2015) 17 NWLR PT 1488, 245. PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant, Emmanuel Osita Kaine, an accused at the trial Court was alleged to have killed one Raphael Umunna Kaine by stabbing him with a knife on the neck, on the 16th September, 2013 at Onitsha, in Onitsha Judicial Division, contrary to Section 274 (1) of the Criminal Code, CAP 36 Vol II, Revised Laws of Anambra State, 1991.

In proof of its case, the prosecution called four witnesses, PW1 – PW4 and tendered four exhibits, marked as Exhibits A – D. The accused/appellant on his part testified on his own behalf as DW1, called no other witness and tendered no exhibit. At the conclusion of hearing, the trial Judge, Justice Chudi Nwankwo in his judgment delivered on the 29th June, 2015 convicted the appellant and sentenced him to death.

Aggrieved by this decision, the appellant by a Notice of Appeal filed with leave of Court sought and granted on the 25th June, 2018 appealed to this Court on the 17th July, 2018 on the following two grounds not containing their particulars as follows:
(1) The learned trial Judge erred in law when he delivered judgment on 29/6/2015 sentencing the defendant/appellant to death by hanging on the premise and ground that the prosecution proved all the essential ingredients/elements of the alleged offence of murder beyond reasonable doubt.
(2) The learned trial (sic) erred in law when he held that the defence of insanity did not avail the defendant on the date and day in question.

The appellant’s brief settled by MR. J. O. Onwujekwe on the 5th March, 2020 was deemed as properly filed and served on the 2nd of February, 2022. In it the appellant distilled the following two issues for determination:
A) Whether on the totality of the evidence on record, the trial Court was right in finding the Appellant guilty of the offence of murder as charged (Ground 1).
B) Whether the defence of insanity availed the appellant in the whole circumstances of this case (Ground 2).

The Respondent on its part had its brief settled by P. N. Ofoma, Chief State Counsel (CSC), Ministry of Justice Anambra State on the 5th of August, 2020 and same was deemed as properly filed and served on the 2nd February, 2022. In it, the Respondent submitted these two issues for determination: (1) Whether the trial Court was not right in finding the appellant guilty of the offence of murder as charged?
(2) Whether the trial Court was not right in holding that the defence of insanity could not avail the Appellant in the circumstances of the case.

The two issues formulated by the Respondent are the exact replica of the appellant’s issues. It is therefore curious why the Respondent did not simply adopt the two issues as formulated by the Appellant. It is difficult to understand why a respondent whose sole role is to answer or respond to the appeal finds it necessary to formulate issues. The settled position of the law on this is that a respondent has three options:
1) Adopt the issues formulated by the Appellant.
2) Give the Appellant’s issues a slant to favour his side of the case or
3) Formulate his own issues.
This was my finding in the case of PASTOR IKECHUKWU ONYEKWULUJE & 3 ORS V CHIEF AMAECHI NDUBA ONYEKWULUJE & 3 ORS IN CA/AW/641/2018 delivered on the 16th March, 2021 in which I relied on the cases of PATRICK V STATE (2018) LPELR – 43862 (SC); JOHN V STATE (2016) LPELR – 40103 (SC) and BRANDS CAPITAL LTD V CHIEF ADEBOLA DISU-IGE & ORS (2018) LPELR – 44812 (CA).
It is clear from the respondent’s brief that he has chosen the third option of formulating its own issues. This option is often fraught with challenges and it is an unnecessary option to take. For instance, in the instant case the respondent did not tie its issues to the grounds of appeal. This can be fatal.

In determining this appeal, however, the two issues formulated by the appellant will be adopted. I do not find it necessary to summarize the submissions of both counsel in respect of the issues. I will however in the course of the judgment make reference to the submissions of counsel in their respective briefs as the need arises. Suffice it to remind counsel of the need to comply with ORDER 19(3) (4) of the Rules of Court, 2021. This provision stipulates that all briefs be concluded with a numbered summary of the arguments made in support of the issues. This practice not only gives a bird’s eye view of the arguments of the parties on the issues formulated but also saves ample judicial time as the summary can be lifted and used without the need of this Court to read and summarize the arguments in the brief.

In dealing with issue (1) as raised by the appellant, it is necessary, even if elementary to restate the essential elements of the offence of murder: (a) that the deceased had died; (b) that the death of the deceased was caused by the accused and (c) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See OGBA V STATE (1992) 2 NWLR, PT 222, 164; GIRA V THE STATE (1996) 4 NWLR, PT 443, 375; ADEKUNLE V THE STATE (2006) 14 NWLR, PT 1000, 717; JIMMY V THE STATE (2013) 18 NWLR, PT 1386, 229 and OLADAPO V STATE (2020) LPELR – 50563 (SC).

In the instant case there is no doubt that Raphael Umunna Kaine is no longer alive. That he is dead is evident from the testimonies of all the witnesses, from PW1 – PW4 and even the appellant as DW1. The appellant had contended in his brief that, “the essential elements/ingredients of the charge of murder were not present in this case.” I do not have a doubt in my mind that the appellant does not contest the fact that his cousin, Raphael Umunna Kaine is indeed dead. This ingredient of the offence is therefore proved beyond reasonable doubt.

The second element is that the death of the deceased was caused by the accused. The thrust of the Appellant’s contention under this issue is to focus on the discrepancies in the testimonies of the prosecution witnesses as to determine whether the deceased was stabbed with a knife or a broken bottle and on which part of his body he was stabbed. The appellant also argued that this omission in the ingredients of the offence charged cannot be cured by the confession of the accused person. PW1, Raymond Ikechukwu Kaine is the deceased’s elder brother and cousin to the appellant. His evidence was that he had arranged a family meeting on the 16th September, 2013 at the family house at No. 2 Otumoye street Odoakpu, Onitsha, to discuss the burial of his late sister, Grace Kaine. That while waiting for the meeting to commence at the sitting room of their uncle upstairs, the deceased was sent to purchase some kola nuts for the meeting. The evidence of PW1 was that in the interim they heard the sound of broken bottle in their uncle’s room. That the uncle excused himself and went into the room where they remained with the appellant for about a quarter of an hour and by which time the deceased returned from buying the kola nuts. That shortly thereafter, the uncle joined them in the sitting room. That the appellant at that point came out of the uncle’s bedroom and stabbed the deceased on the neck. PW1 held the deceased, took him downstairs and rushed him to the hospital. The evidence is that the deceased died in PW1’s arms on reaching the hospital. The appellant made heavy weather of the alleged contradiction in the evidence of PW1 as regards whether the deceased was stabbed with a broken bottle or a knife. In his statement to the Police, PW1 had stated that the deceased was stabbed with a broken bottle but in his evidence in chief, he testified that it was a knife. However, PW1 in cross examination explained these discrepancies. He stated in cross examination that he told the Police that the defendant stabbed the deceased with a broken bottle because when they were in the meeting they heard the sound of a broken bottle but when the Police went back to the house they saw the knife used by the appellant to stab the deceased which knife was admitted in evidence as Exhibit C. This piece of evidence was confirmed by the testimony of PW2, SGT. Paul Ihejirika who led the investigating team. His testimony was that when they went back to the scene of crime, they found a broken bottle and a sharp kitchen knife with blood stains.

The settled position of the law is that it is only material contradictions that are fatal to the case of the prosecution. The question to ask and answer is whether it is material if the deceased was stabbed by a broken bottle or a knife? The natural impulse would be to answer the question in the negative. This means that it does not really matter whether it was a broken bottle or a knife as they are both indeed sharp objects capable of inflicting the kind of deadly injury that resulted in the death of the deceased. What is more, the witness PW1 sufficiently explained this discrepancy in his evidence in cross examination as to the reason why he felt and told the Police that it was a broken bottle because while at the family meeting in his uncle’s sitting room they all heard the sound of a broken bottle from his uncle’s bedroom minutes before the stabbing of the deceased by the appellant who came from the said bedroom. PW1 explained that he changed his mind to the knife after they went back to the scene of crime with the Police who found the knife caked with blood stains. So no, the alleged discrepancy was not material. And even if was, PW1 has sufficiently explained the purported contradiction that it ceases to be fatal to the prosecution’s case: see IBEH V STATE (1997) 1 NWLR, PT 484, 632; MUKA & ORS V STATE (1976) 9 – 10 SC (REPRINT), 1993; AREHIA V STATE (1982) LPELR – 543 (SC). In the instant case, the explanation of PW1 finds corroboration in Exhibit D, the appellant’s confessional statement. This establishes the second ingredient of this offence beyond reasonable doubt.

There is the contention by the appellant that there is no evidence of a causal link between the action of the appellant and the cause of death. From the eye witness evidence of PW1, it is apparent that there was no break in the chain of causation. The well settled principle of law is that in order to hold an accused person criminally liable for murder, the chain of causation must not be broken. Once the chain of causation is broken, that broken link in the chain must be resolved in favour of the accused person. The evidence in this case confirms that there was no broken link in the chain of causation. The undisputed evidence on record was that the appellant charged into the sitting room where they were all having a family meeting and stabbed the deceased. PW1 immediately carried the deceased downstairs and to the hospital where the deceased died in his arms on getting to the hospital. The evidence that abounds in this case is that there was no intervening link between the act of the appellant and the cause of death. The act of the appellant was the proximate or direct cause of death. In the circumstances, there is no doubt created which requires to be resolved in favour of the appellant.

The link between the death of the deceased and the act of the appellant in this case is so proximate and direct as shown by the evidence that medical evidence of the cause of death is superfluous. The evidence of PW1 is direct that the appellant stabbed the deceased who was rushed to the hospital but died immediately on getting into the hospital premises. This direct evidence of the act leading to the death of the deceased provided the necessary link between the death and the act of the accused person: UBIERHO V STATE (2005) 5 NWLR, PT 919, 644 and HALLIRU V STATE (2016) LPELR – 41310 (CA). It is safe to say that the prosecution proved this second ingredient of the offence of murder beyond reasonable doubt against the appellant. This finding also resolves the contention of the appellant on the discrepancy in the evidence of the prosecution as to whether it was a broken bottle or a knife that was used in stabbing the victim. The important consideration is that as confirmed by the medical evidence, it was a sharp object that was used to stab the deceased on the neck, which stabbing proved lethal. The question whether the instrument used was a broken bottle or a knife is therefore not relevant and so is any alleged discrepancy in the evidence of the prosecution as to the type of instrument used in the attack: ALI V STATE (2015) 10 NWLR, PT 1466, 1 and MUHAMMAD V STATE (2017) 13 NWLR, PT 1583, 386. The fact that death of the victim was almost instantaneous obliterates all these considerations. The point is therefore well made that the prosecution proved beyond reasonable doubt that the appellant stabbed the deceased with a sharp object which caused his death.

The third element was whether the act or omission of the accused which caused the death of the deceased was intentional. What determines the criminal liability of an accused person in a murder case is the unlawfulness of his act which caused the death of the deceased and not the motive with which the accused did the act. However, where ill motive of the accused is proved, it strengthens the case of the prosecution. See: AUDU V STATE (2003), 7 NWLR, PT 820, 516, AHMED V STATE (1999) 7 NWLP, PT 612, 641 and NJOKU & ORS V THE STATE (2013) 2 NWLR, PT 1339, 548.

The accepted maxim is that a man is presumed to intend the natural consequences of his act. AUDU V STATE (SUPRA). Accordingly, whereby an unlawful act, he causes another person grievous bodily harm leading to the death of that person, he is presumed to have intended to kill that person and he would be guilty of murder irrespective of his intention. In the instant case, the stabbing of the deceased on the neck with a sharp object by the appellant which caused such grievous bodily harm to the deceased which resulted in his death within a short time of the injury shows beyond every reasonable doubt that the appellant intended to kill the deceased.

What is more, authorities are agreed that the intention to kill can be inferred or deduced from the nature of the weapon used. ALI V STATE (SUPRA); MUHAMMAD V STATE (SUPRA); ASUQUO V STATE (2014) LPELR – 23490 (CA). Indeed, the apex Court summed up the position of the law on this matter when it held in the case of ISAH V STATE (2018) 8 NWLR, PT 1621, 341, that “a man who stabs another on the neck region with a bottle is deemed to have intended to kill or cause grievous bodily harm – See OWHORUKE V. C.O.P. (2015) 15 NWLR (PT 1483) 557.”

The intention to kill or cause grievous bodily harm in this case demonstrated by stabbing the deceased on the neck with a knife, which resulted in death will be and in this case was sufficient to establish not only the third ingredient of the offence but the offence as charged. In other words, from the evidence on record the prosecution has proved its case beyond reasonable doubt. I therefore resolve this issue in favour of the respondent and against the appellant.

The second issue as raised interrogates the finding of the trial Court to the effect that the appellant was not entitled to the defence of insanity. The law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved: GUOBADIA V STATE (2004) 6 NWLR, PT 869, 360 and ANI V STATE (2002) 10 NWLR, PT 776, 644. An accused who pleads insanity has the burden of proving that at the time he committed the act, he was suffering from insanity and insane delusions as not to know the nature of what he was doing.

In establishing insanity, the trial Court is charged with the duty to consider any admissible medical evidence and the whole of the surrounding circumstances of the case which will include the nature of the killing; the time of the killing as well as thereafter and evidence of insanity in the accused ancestors or blood relations.
I have considered the submissions of the appellant’s counsel who has simply argued issue (2) at large and has failed woefully to show how the appellant has established those conditions. As the apex Court found in the case of DANBABA V STATE (2018) – 11 NWLR, PT 1631, 426, for the defence of insanity to succeed an accused person must establish –
1) That at the relevant time of committing the act complained of he was suffering from mental disease or from natural infirmity and
2) That the mental disease or natural mental infirmity was such that at the relevant time he was deprived of the capacity

a) To understand what he was doing;
b) To control his actions or
c) To know that he ought not to do the act or make the omission.

The only allegation counsel made against the trial Judge is that he did not give adequate consideration to the defence of insanity as raised by the appellant. Meanwhile, counsel itemized the following seven relevant facts that should be used in establishing the defence of insanity:
(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 had custody of 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 NEIGBHOURHOOD.
(f) Evidence that insanity runs in 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 on the defence has been discharged.

Counsel did not point to the Court any evidence on record in support of any of these grounds for considering insanity. Indeed, the appellant’s father was at the scene where the appellant committed the crime. He was alleged to have gone into his bedroom after appellant who was there broke a bottle and remained there with him for a while. It is quite curious that the father never testified in Court as to the insanity of his son if the appellant had an established case of insanity. The trial Judge contrary to the contention of the defence/appellant’s counsel considered all the evidence on record and came to the right conclusion that he could not speculate on the nature of the appellant’s illness. This was the finding of the Court:
“Again, if the nature and scope of the defendant’s alleged illness are placed before the Court, the Court would have been in a position to look at the said illness critically and know whether the said illness will avail the defendant as defence in this charge. The said illness has not been shown to be insanity or in fact any other illness for that matter. Again, the defendant never pleaded or raised insanity or any mental illness as a defence in this charge.
Assuming but not conceding that the defendant’s illness is insanity or mental disease which can avail a defendant in a murder trial, the defendant clearly stated in his statement to the police – Exhibit A that he has never been a psychiatric case. Hear the defendant as per Exhibit A as follows:-
“… I never being taken to sycratic before or have any sign of madness.”
Under the cross-examination, the defendant stated as follows:- Que:- Have you ever had any psychiatric problem.
Ans:- No.”
If the defendant did not introduce any evidence of psychiatric or mental problem and has flatly denied ever having such problem, I find it difficult to introduce such defence for him or consider for him a defence he has not raised before the Court even if counsel raised in his written address. There is no evidence before me or placed before me to enable me to do so. Like I earlier pointed out, no member of the Kaine family, including the defendant’s father who was also arrested in respect of this charge was called nor presented any mental problems. It is difficult for me to believe “sickness” simpliciter as raised by the defendant without stating the nature or scope of such sickness or without any concrete evidence placed before the Court, as a defence for the defendant in this charge.”

The Court is bound to consider every possible defence open to an accused whether the accused raised them or not. However, such consideration is limited to the evidence on record. I am satisfied that the trial Court properly considered the defence of insanity from the evidence on record and rightly came to the conclusion that the defence of insanity was not available to the appellant.

It is conceded that there was no motive established for this senseless murder of the deceased who was not only a first cousin to the appellant but said to be living with them, that is appellant’s family. The trite position of the law is that absence of motive alone is not sufficient to infer insanity: AKHIMIEN V STATE (1987) 1 NWLR, PT 52, 598; ANI V STATE (2002) 10 NWLR, PT 776, 644 and GUOBADIA V STATE (SUPRA).

There is no evidence from the records or any fact that will justify this Court upturning the sound decision of the trial Court in the instant case. I uphold his findings and consequently resolve this issue also against the appellant.
Having resolved both issues against the appellant, it follows that this appeal lacks merit. Same is accordingly dismissed.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, P. A. MAHMOUD, JCA.
I am in agreement with the reasoning therein and the conclusion and sentencing of the Appellant to death for the offence of Murder.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions reached in dismissing the Appeal as unmeritorious. I abide by the consequential orders made thereto.