MELE ABATCHA v. THE STATE
(2018)LCN/12143(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of November, 2018
CA/J/317C/2017
RATIO
CRIMINAL LAW: INGREDIENTS OF CULPABLE HOMICIDE
“That ingredients of the offence of culpable homicide under Section 221 Penal Code read: (a) the death of a human being has occurred (b) Such death was caused by the accused; and (c) That the act of the accused person which caused the death, was done with the intention of causing death, or that he knew that death would be the probable consequence of his act. The above ingredients must be proved before the prosecution can be said to have proved its case beyond reasonable doubt. If any of the ingredients is not proved, the case will collapse and the accused person must be discharged, see Aliyu Vs. State (2013)12 NWLR (Pt. 1368)403 and Omotola Vs. State (2009)7 NWLR (Pt. 1139) 148.” PER TANI YUSUF HASSAN, J.C.A.
DEFENCE; THE DEFENCE OF INSANITY
“In all criminal cases, there is the general presumption that every person is sane with sufficient reasoning and mental faculty that he is responsible for his crime, at the time he committed it until the contrary is proved -Guobadia Vs. State (2004)6 NWLR (Pt. 869) 360 and Ani Vs. State (2002)10 NWLR (Pt. 776) 644. It follows therefore, when an accused person charged with an offence, pleads insanity or insane delusion, he has the burden to prove before the Court, that at the time, of committing the offence, he was so afflicted or that he had such a mental block of mind, that he did not know the nature of the act or did not infact know that he was doing a wrong thing. The proof is however on the balance of probability not beyond reasonable doubt Sanusi Vs. State (1993)1 NWLR (Pt. 269) 294 and Madjemu Vs. State (2001)9 NWLR (Pt. 718) 349. He must prove to the Court that he lacked the capacity to understand what he was doing, to control his action and that he lacked the capacity to know that he should do what he did or make the omission -Loke Vs. State (1985)1 NWLR (Pt. 1)1.” PER TANI YUSUF HASSAN, J.C.A.
JUSTICES:
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
MELE ABATCHA – Appellant(s)
AND
THE STATE – Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Borno State Maiduguri, delivered on the 30th day of May, 2017 by Hon. Justice A.M. Ali in Charge No.BOHC/MG/CR/01/2017. The appellant herein, was charged before the High Court Maiduguri (Trial Court) for the offence of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code Laws of Borno State 1994. He pleaded not guilty and after the trial, he was convicted and sentenced to death. Dissatisfied with the judgment, he appealed to this Court.
The facts as disclosed by the prosecution, show that the accused prior to the incidence told the deceased Aisha Abatcha and Fanta Abatcha that he has something to tell them and a secret to show them. When they went to his room to call him to come and tell them what he wanted to say, he told them to allow him finish watching the TV. When he finished watching the TV, he requested to know where their mothers are, and they told him they are in their rooms.
He asked them to form a whatsapp group with him, which they did and he started chatting with Aisha the deceased. The next day when Aisha came back from school, she asked Fanta if the accused told her what was going on, which she answered in the negative. Aisha the deceased then told Fanta that the accused told her that one of their father’s wives wanted to do Secret for him. That the Secret was buried in an unused toilet in the house. That is how the accused lured Aisha into the unused toilet and slaughtered her. The accused disappeared. When he surfaced, he was arrested, charged, tried and convicted for the murder of Aisha Abatcha.
THE CHARGE reads:
That you Mele Abatcha M on or about the 12th of April, 2016 at Damboa Road, Maiduguri which is within the jurisdiction of this Court caused the death of one Aisha Abatcha F by slaughtering and stabbing her in the stomach and neck in an unused toilet, with the knowledge that death would be the probable consequence of your act and that you thereby committed an offence punishable under Section 221(b) of the Penal Code Laws of Borno State, 1994.
The prosecution in proof of their case called six witnesses and tendered four exhibits. The appellant testified for himself and called one witness to testify on his behalf. He tendered two exhibits.
In line with the Rules of Court. Parties exchanged their briefs of argument. The appellant’s brief settled by A.A. Airadion Esq. was dated 8th January, 2018 and filed on the 5th of March, 2018. In it the following issues were distilled for determination as follows:
1. Whether the appellant did not prove any sort of threat or force on him in the trial within trial before exhibit ST1 was obtained (Grd 2)
2. Whether the procedure used in obtaining both exhibits ST1 and ST2 were irregular? (Grd 3)
3. Whether the learned trial judge was not wrong in admitting carious exhibits as evidence that were objected to and failed in her judgment to adduce reasons for so admitting them despite her promise to do so? (Grd 5)
4. Whether the trial judge was wrong to have held that because of plea of insanity the prosecution is absolved from proving some ingredients of the offence of culpable homicide punishable with death.? (Grd 1)
5. Whether the trial judge was not wrong by incorporating extraneous matters not written by her into the judgment she delivered? (Grd 6)
6. Whether the appellant did not establish a case of insanity in the cause of the entire proceeding of the Court? (Grd 7)
7. Whether the trial judge was right in passing a sentence of death by hanging when it is not clear that the appellant was up to the age of 17 years at the date of commission of the offence. (Grd 8).
A.I. Alkali, the Principal State Counsel with the Borno State Ministry of Justice Maiduguri, settled the respondents brief dated 30th May, 2018. Four issues were identified for determination.
1. Whether the respondent has proved that the death of the deceased was caused by the appellant (Grd 1)
2. Whether trial Court rightly convicted the appellant on his confessional statement.? (Grds 2, 3, 5, & 6)
3. Whether the appellant was insane at the time of the commission of the offence? (Grds 4 and 7)
4. Whether the appellant has attained sufficient age of maturity at the time of the commission of the offence to enable the trial Court impose sentence of death on him? (Grd 8)
Issues in an appeal are not formulated to coincide with the number of grounds of appeal. An issue must arise from one or a combination of grounds of appeal. Good practice does not command the formulation of an issue from every ground of appeal Sakati Vs. Bako (2015)4 NWLR (Pt. 1480) 531 at 540. See also Nwidenyi Vs. Aleke (1996)4 NWLR (Pt. 442) 349. Contrary to the principle stated above the learned counsel for the appellant formulated seven issues from his eight grounds of appeal. This practice is discouraged.
The purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. Appeals are determined based on the issues raised from the grounds of appeal and not on the grounds of appeal Husseni Vs. Mohammed (2015) 3 NWLR (Pt. 1445)100 at 110. See also Oniah Vs. Onyia (1989)1 NWLR (Pt. 99) 514.
In the case at hand, I have considered the grounds of appeal and the issues raised before the Court below. Issue 4 formulated by the appellant distilled from ground I, has not been shown to relate to ground 1 of the Notice of Appeal. Where an issue for determination is not related to the ground of appeal, it is liable to be struck out, and all argument in support of the said issue will be discountenanced. See Oniah Vs. Onyia (supra); Ugo Vs. Obiekwe (1989) 1 NWLR (Pt. 99) 566 and Kala Vs. Potiskum (1998)3 NWLR (Pt.540)1.
Accordingly issue 4 in the appellants brief is struck out. It is also noted there is no issue distilled from ground 4 of the appellants appeal. Ground 4 is therefore deemed abandoned. Since this Court has the power to adopt the issues formulated by the appellant or the respondent, or even formulate its own issues, I choose to formulate the issues relevant to the determination of this appeal based on the remaining grounds of appeal.
ISSUE ONE
Whether the prosecution has proved its case against the accused/appellant beyond reasonable doubt.?
ISSUE TWO
Whether the defence of insanity avails the accused/appellant in the circumstances of this case.?
ISSUE ONE
Whether the prosecution has proved its case against the accused/appellant beyond reasonable doubt.?
Learned counsel for the appellant, referred to page 18 lines 3-6 of the record, the statement of the accused/appellant thus:
The IPO was high tension in a bad mood. I told him I did not know anything. The statement was by force. We were closed in the room.?
Page 18 lines 8.
My ear was held by the IPO. I gave voluntary statement, and criticized the finding of the trial Court, that the trial judge omitted the consideration of the piece of evidence adduced which threw more light as to the nature of force used on the appellant in the course of recording his statement. That the implication of the omission to consider this piece of evidence means that there was no proper evaluation of the evidence adduced before the trial judge before admitting exhibits STI as being voluntarily made.
Relying on the case of Bori Shade Vs. F.R.N. (2012)18 NWLR (Pt. 1332)347 at 401-402 para G and Section 29(2)(b) of the Evidence Act, it is submitted that all the appellant needed to show is that the statement was obtained as a result of oppression to render it unreliable and of no consequence. That exhibit ST1 irregularly obtained by the method of question and answer is contrary to the decision of the Supreme Court in the case of the State Vs. Salawu (2011)8NWLR (Pt. 1279) 580 at 604-605.
It is argued on behalf of the appellant that the burden is on the prosecution to prove the voluntariness of the statement of the accused/appellant beyond reasonable doubt.
It is also the contention of the appellants counsel that the ruling of the trial Court at page 18 lines 23-25 to page 19 lines 1-2 of the record goes to determine at the end, whether the confession is true and the weight to be attached to exhibit ST1 in view of the objection of the accused person. That it goes to show that the learned trial judge did not make up her mind as to the voluntariness of exhibit ST1. The Court was referred to Eke Vs. State (2011) 3 NWLR (Pt. 1235) 589 at 609 para C and Paras E-F.
With regard to exhibit ST2, learned counsel for the appellant argued that the IPO, PW6 who obtained the statement of the accused/appellant employed a method which is alien, in order to induce the appellant to part with the statement against his wish, which is contrary to Section 29(2)(a)(b) of the Evidence Act.
Submitting further, that the photographs exhibits wrongly admitted by the trial judge has affected her mind in arriving at her decision. That it is the law where in a trial an inadmissible evidence has been received with or without objection, it is the duty of the judge to reject it when giving judgment, and where he failed, it could be a ground for reversed on appeal if the evidence affects the decision which would have been different if such evidence was not admitted. Counsel referred to the case of Alhaji Vs. Fisher (1956) SCNLR 279 at 282 paras D-F.
It is finally submitted on this issue that the death sentence imposed on the appellant is contrary to Section 270 of the Criminal Procedure Code which says No sentence of death shall be imposed on a person who is under seventeen years of age or on a pregnant woman. That the offence was committed on 12th April, 2016, and if the appellant was 17 years when evidence was given on 31/1/2017 by his elder brother who was 19 years then, the appellant was under 17 years old when the offence was committed and he is therefore not entitled to be sentenced to death by hanging.
He argued that if the trial judge had casted her mind to the evidence of PW2 and PW3 at the time of sentencing the accused/appellant she would have found that the appellant was below 17 years at the time of committing the offence. The Court was referred to Okaroh Vs. State (1990)3 NWLR (Pt. 140) 536 at 548 paras E-F; Kachi Vs. State (2015)9 NWLR (Pt. 1464) 213 at 227 paras D-H.
We are urged to allow the appeal and set aside the sentence and imposed a sentence remanding appellant at the pleasure of the Governor pursuant to Section 272(1) CPC.
For his part, learned counsel for the respondent agreed that proof beyond reasonable doubt rests on the prosecution as required by Section 135 of the Evidence Act, 2011. He submitted that proof of guilt of an accused person can be established in three ways (1) by direct evidence (2) by confessional statement of the accused person and (3) by circumstantial evidence.
He said to secure conviction for an offence of culpable homicide punishable with death the prosecution must prove.
(1) That the deceased has died
(2) That the death of the deceased resulted from the act of the accused
(3) That the act or omission of the accused was intended with the full knowledge that death or grievous bodily harm was the probable consequence.
That, although there was no direct or eye witness to the commission of the offence, slashing and stabbing the deceased several times with a knife on vital part of the body, the appellant intends the consequences of his act, that death would be the result of his act. Learned counsel for the respondent relied on Ochemaje Vs. State (2008)6 NSJC 143 at 175-176; State Vs. Babagana John (2014) 10 NCC 69 at 93 para a-b and Audu Vs. State (2003) NWLR (Pt. 820) 516. Relying also in the case of Uguru Vs. State (2002) FWLR (Pt. 103)330 para C-D, it is submitted that death can be inferred where the victim died immediately after the attack. That the deceased died as a result of the direct act of the accused/appellant.
On confessional statement, learned counsel for the respondent submitted that, a confessional statement once tendered and admitted as an exhibit in Court, it becomes part of the case of the prosecution and the trial Court is duly bound to consider its probable value. He referred to Amoshima Vs. State (2009) ALL FWLR (Pt. 488) 238 at 374. It is also submitted that where a confessional statement is direct, cogent, positive, unequivocal and compelling a Court can convict the accused on it, irrespective of whether the accused resiles, retracts or denies the statement he has earlier made to the police. The Court was referred to Nwachukwu Vs. State (2007) ALL FWLR (Pt. 390) 1380; Agboala Vs. State (2014)10 ACLR 382 at 411-414; Semiu Afolabi Vs. State (2014)10 NCC 459 at 482 and Ubierho Vs. State (2005)1 NCC 146 at 153 among others.
That for a confessional statement of an accused to ground a conviction, the statement could be tested with other evidence outside the confession to verify if the confession is true, as enumerated in the cases ofAdekunle Oluwafemi Alo Vs. State (2016)24 WRN 1-181 Pg. 37 at 52 and Ayedun Vs. State (2014)10 NCC 52 at 588-589.
Referring to the evidence of PW2 and the confessional statements of the accused/appellant exhibits ST1 and ST2, the appellant confessed to the commission of the offence in line with Section 126 of the criminal Procedure Code Laws of Borno State, 1994.
Relying on the case of Odogwus Vs. State (2014)10 NCC 386 at 451 para D, it is contended that the surrounding circumstances of this case are compelling, direct and unequivocal and lead to no other conclusion that it was the accused/appellant that caused the death of the deceased which is enough to sustain a conviction.
On the ingredients of the offence that it was the act of the appellant that caused the death of the deceased Aisha, learned counsel referred to the evidence of PW1-PW6 and exhibit ST1 and ST2 which show that the prosecution has discharged the burden placed on it by law. That proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. That having proved the ingredients of the offence charged, the prosecution has discharged its duty. The Court was referred to Obiekwe Vs. State (2016)2 WRN 1-186 at Pp. 1 and 7.
With regard to the age of the appellant, learned counsel referred to exhibits ST1 and ST2, that the age of the appellant indicated therein is 19 years. That even if appellant was 18 years as at the time he testified in his defence at page 29 line 16 of the record, by arithmetic calculation, the appellant was an adult. Learned counsel for the respondent drew the attention of the Court to the fact that this issue of age was never raised before the trial Court. It is raised for the first time on appeal and there was no leave sought and obtained which makes the ground of appeal incompetent. He relied on the case of Kayode Vs. Registered Trustees of United African Methodist Church (2016) LPELR 40195.
We are urged to expunge the ground of appeal and resolve in favour of the respondent.
The appellant was charged with culpable homicide punishable with death, contrary to Section 221(b) of the Penal Code Laws of Borno State, 1994.
The duty on the prosecution throughout is prove the offence against the appellant beyond reasonable doubt, not beyond shadow of doubt. In other words, the prosecution is to lead evidence that is cogent, compelling to an extent that no reasonable person, will doubt that it was the accused person that committed the offence. See Okoh Vs. State (2014)8 NWLR (Pt. 1410) 502; Onitilo Vs. State (2018)2 NWLR (Pt. 1603) 239 and State Vs. Oladotun (2011)10 NWLR (Pt. 1256)542.
That ingredients of the offence of culpable homicide under Section 221 Penal Code read:
(a) the death of a human being has occurred
(b) Such death was caused by the accused; and
(c) That the act of the accused person which caused the death, was done with the intention of causing death, or that he knew that death would be the probable consequence of his act.
The above ingredients must be proved before the prosecution can be said to have proved its case beyond reasonable doubt. If any of the ingredients is not proved, the case will collapse and the accused person must be discharged, see Aliyu Vs. State (2013)12 NWLR (Pt. 1368)403 and Omotola Vs. State (2009)7 NWLR (Pt. 1139) 148.
The prosecution in proving its case beyond reasonable doubt as required by Section 138 of Evidence Act, the prosecution may make use of the evidence of eye witness or confessional statement of the accused which must be free and voluntarily made or circumstantial evidence. See Akwuobi Vs. State (2017)2 NWLR (Pt. 1550) 421 and Adio Vs. State (1986)2 NWLR (Pt. 24)581.
In the instant case the prosecution relied upon circumstantial evidence and the confessional statement of the appellant to prove the appellants guilt. When the prosecution relies on circumstantial evidence to prove its case against an accused person, the Court must carefully and critically examine such evidence so that the Court will have no doubt in its mind, that it is the accused person and no else committed the offence. This is important since proof is beyond reasonable doubt and there is no direct eye witness evidence to the commission of the offence and an innocent person must not be found guilty especially when it is a capital offence. The duty of the Court in such circumstances is heavy and must be discharged with all sense of responsibility, diligence and conviction as to the guilt of the accused person. The evidence thus, must be strong, cogent and compelling. See Njoku Vs. State (1992)8 NWLR (Pt. 262) 174; Ubani Vs. State (2003)4 NWLR (Pt. 809)51 and Igabele Vs. State(2006)25 NSCQR 21.
It is the case of the prosecution in the instant case that prior to the day of incidence, the accused/appellant told the deceased and PW2 his sister that he had a secret to them to which he formed a group for the three of them on whatsapp so as to post the secret he promised to tell them. On the day of incident the deceased Aisha returned from School and told PW2 that the accused had finally told her the secret, that one of their father’s wives had buried a charm against him in an uncompleted toilet in the house. PW2 upon hearing this, she went looking for the accused person in the house but could not find him.
PW3 testified that he was in the room when the deceased came back from school around 1:00pm and since then he did not see her again. While they went to the room around 6:00pm with the accused, the accused asked one of the their younger brothers to go and collect Aishas (deceased) phone for him but she was not seen. Their mother asked them to go and look for her in her friend’s house, but she was not there. When they came back their brother told them that Aisha had been slaughtered in the toilet. PW1 went to the toilet and saw her in a pool of blood. He reported to the police and she was taken to the hospital.
PW4 also testified that on the day of incident, he was in the house when the accused person asked their brother Babakura the whereabout of Aisha as he has been calling her number but there was no response. He said they looked for her but could not see her. They later discovered her body. Her neck was slaughtered.
DW1, the father of the accused/appellant told the court in his evidence in chief that the appellant left home since the 13th of April, 2016 because he committed an offence, by killing his sister Aisha Abatcha. It was on the 3rd day of December, 2016 when he resurfaced that he was arrested and taken to the GRA Police Station and then to the state C.I.D.
The evidence of the witnesses on this fact has not been challenged or contradicted under cross-examination. The discussion the accused/appellant had with the deceased and PW2, prior to the incidence, by sending his brother to collect the deceased’s phone after the commission of the offence, and running away from the house a day after the incidence, and trying to find out where their mothers were, are inferences that can easily be drawn that the accused person was the perpetrator of the offence committed. This only goes to show his motive. No doubt the circumstantial evidence led by the prosecution is overwhelming, linking the appellant with the killing of Aisha. The circumstances point positively and unerringly to the appellant as the perpetrator, the person who killed the deceased.
The appellant has also challenged the admissibility of exhibit ST1 and ST2. I have carefully examined the record and note that when the extra-judicial statements were sought to be tendered, the appellants objection was that they were made under duress and involuntarily made. In that circumstances the learned trial judge is obliged to conduct a trial within trial to determine its voluntariness. See State Vs. Salawu (2011)18 NWLR (Pt. 1279)580 at 905; Ogunye Vs. State (1999)5 NWLR (Pt. 604)548 at 570 and Onitilo Vs. State (2018)2 NWLR (Pt. 1603)239. In the instant case, indeed trial within trial was conducted to determine the admissibility of exhibits ST1 and ST2 which the appellant challenged on grounds of involuntariness. The learned trial judge rightly concluded that the statements were made voluntarily. The accused/appellant admitted under cross-examination that he made the statement voluntarily.
The confession was corroborated by the evidence of PW2 and DW1, the sister and the father of the appellant respectively. The fact that the appellant retracted at trial is immaterial as it does not render it inadmissible in evidence – Eyop Vs. State (2018)6 NWLR (Pt. 1615) 273 at 283. D-E. It can also be relied upon to convict the accused person once its veracity is ascertained. The trial Court would normally consider whether:
(a) There is anything outside it to show that it was true
(b) It was corroborated?
(c) The statements of facts made therein are true as far as they can be tested?
(d) The defendant had the opportunity to commit the offence?
(e) The confession was possible? And
(f) It is consistent with other facts which have been ascertained and proved? See Nweze Vs. State (2018)6 NWLR (Pt. 1615) 197 at 210 G-H and Awosika Vs. State (2010)8 NWLR (Pt. 1198)49 at 78. Therefore a free and voluntary confession of guilt, if direct and positive, and was properly established, is enough for the trial Court to rely upon to convict, even if there is no corroboration – Nweze Vs. State (supra) at 214. See also Adebayo Vs. State (2014)12 NWLR (Pt. 1422) 613.
PW5, the investigating police officer of GRA Police Station, at page 16 of the record, he testified that the accused/appellant confessed to him that he committed the crime and he volunteered a confessional statement under words of caution.
PW6, the investigating police officer of the state C.I.D also in his testimony said he cautioned the accused/appellant, who understood and signed. He then made a voluntary statement.
Section 28 of the Evidence Act, 2011 reads:
A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.
The accused/appellant in his confessional statement exhibit ST2 stated thus:
One day precisely 12/04/2016 at about 13:00hrs. I invited the deceased to the toilet on pretence to show her what I earlier promised to them. She follows me, and on getting there, I alerted her with my mission to kill her. But she questioned me on why I wanted to kill her, but I did not say a word. Instead I removed a kitchen knife which I hide in my pocket and stabbed her severally on different part of her body. She collapsed and fell down unconsciously. I left her in the toilet door. From there I went back to Kano. On 1st December, 2016, I left Kano and arrived Maiduguri.
Also in exhibit ST1 it is a repetition of what was stated in exhibit ST2. In exhibits ST1 and ST2 the appellant gave vivid, strong narration of how he committed the offence. It is clear from the content of exhibits ST1 and ST2 that it is only the appellant who could have knowledge of what is stated therein. The exhibits contain direct details of how the offence was committed such that only the appellant could know. They are positive and have been properly established. The appellant had the opportunity to commit the offence. Exhibits ST1 and ST2 are properly admitted.
Learned counsel for the appellant canvassed heavily on the age of the appellant, in response to which the respondents counsel said it was a new issue raised on appeal without leave, as it was not argued at the trial Court. In such circumstance learned counsel for the respondent ought to have come by way of motion on notice to challenge the ground of appeal. However I have painstakingly gone through the record, the observation of the learned counsel for the respondent is in order. There was nowhere the issue was raised and decided by the trial Court. The appellant in his argument has also not drawn our attention to the particular page of the record where the issue was raised and decided.
Ground 8 of appeal is incompetent and it is struck out. The issue canvassed under this ground is discountenanced. But for what it is worth, even if this issue of age of the appellant is competent, it will still not see the light of the day, since the age of the appellant contained in exhibits ST1 and ST2 is 19 years. Therefore address of counsel cannot take the place of evidence. The respondent discharged its duty as all the ingredients of the offence had thus been proved beyond reasonable doubt. Issue one is resolved in favour of the respondent against the appellant.
ISSUE TWO
Whether the defence of insanity avails the accused/appellant in the circumstances of this case.
On this issue, learned counsel for the appellant referred to page 49 lines 5-11, reasoning of the trial Court thus Since there was a plea of insanity, the accused has conceded the case of burden of proof of essential ingredients of the offence to the prosecution., and submitted that the reasoning of the trial judge negates the fundamental principle of criminal justice that the burden of proof of a crime beyond reasonable doubt squarely rests on the prosecution and does not shift throughout the proceedings. He referred to Section 138 of the Evidence Act and the case of The State Vs. Azeez (1995)1 NWLR (Pt. 372) 437 at 486 para D-F. that the onus of proving the guilt of an accused person under our jurisprudence is on the prosecution.
That whether the plea of insanity is put across or not, the onus is still on the prosecution to prove all the elements of the charge of culpable homicide punishable with death against the accused person. The Court was referred Along Vs. IGP (1959) SCNLR 516 and Aruna Vs. State (1990)6 NWLR (Pt. 155) 125 at 137. We are urged to uphold the submission and set aside the decision of the trial Court.
Responding, learned counsel for the respondent submitted that there is a total lack of evidence of insanity established on this issue. Referring to the case of Hill Vs. Baxter (1958)1 ALL ER 193 and Udofia Vs. State (1981) 11-12 SC at 61, it is summited that an act is not to be regarded as involuntary merely because the doer doesnt remember his act.
Learned counsel argued that the onus lies on the appellant to establish insanity or insane delusion and not on the prosecution to prove his insanity. He referred to Section 140 Evidence Act 2011. Submitting further, that there was no evidence as to the cause of his insanity before or after the commission of the crime, no medical report or family history was put in evidence before the trial Court. That the evidence of DW1, father of the appellant under cross-examination is that he did not take the appellant to hospital.
Learned counsel for the respondent argued that the appellant was sane at the time of committing the offence. He referred to Pp. 55-56 of the record. That for defence of insanity to succeed, the accused person must establish:
(i) That he was at the time of the commission of the offence was suffering from mental disease or from natural mental infirmity; and
(ii) That the ailment was such that at the relevant time he was deprived of the capacity:
(a) To understand what he was doing
(b) To control his action or
(c) To know what he ought not to do the act or make the omission for which he stand trial.
(iii) Evidence to the past history of the accused person
(iv) Evidence as to the conduct of the accused immediately preceding killing of the deceased
(v) Evidence from prison official who had the custody of the accused before or during his trial.
(vi) Evidence of medical officer who examined the accused
(vii) Evidence of relatives about the general behaviour of the accused person and reputation he enjoyed to sanity or insanity in the neighborhood.
(viii) Evidence showing that insanity runs in the family history of the accused and such other fact which will help the trial Court come to conclusion that the burden of proof placed by law on the defence has been discharged – Onyekwe Vs. State (1988)1 NWLR (Pt. 72) 565 and Ejinima Vs. State (1991)6 NWLR (Pt. 200) 677.
Learned counsel also referred to Section 51 of the Penal Code for defences available to an accused, but that the appellant cannot succeed on the defence of insanity. We are urged to resolve the issue in favour of the respondent.
The appellant was charged under Section 221(a) of the Penal Code. By Section 51 of the Penal Code.
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, of that he is doing what is either wrong or contrary to law.
It is clear here therefore, that insanity is contemplated and even if an insane person was aware of his act, if he was mentally incapable of knowing that his act was wrong or contrary to law, he would still be entitled to the protection accorded by the section. The insanity has to be at the time of the committing the act, and it can be permanent or temporary as may be in the form of an insane delusion in respect of a person who is otherwise sane. It is therefore obvious that insane delusion is a part of insanity.
In all criminal cases, there is the general presumption that every person is sane with sufficient reasoning and mental faculty that he is responsible for his crime, at the time he committed it until the contrary is proved –Guobadia Vs. State (2004)6 NWLR (Pt. 869) 360 and Ani Vs. State (2002)10 NWLR (Pt. 776) 644. It follows therefore, when an accused person charged with an offence, pleads insanity or insane delusion, he has the burden to prove before the Court, that at the time, of committing the offence, he was so afflicted or that he had such a mental block of mind, that he did not know the nature of the act or did not infact know that he was doing a wrong thing. The proof is however on the balance of probability not beyond reasonable doubt Sanusi Vs. State (1993)1 NWLR (Pt. 269) 294 and Madjemu Vs. State (2001)9 NWLR (Pt. 718) 349. He must prove to the Court that he lacked the capacity to understand what he was doing, to control his action and that he lacked the capacity to know that he should do what he did or make the omission –Loke Vs. State (1985)1 NWLR (Pt. 1)1.
For the Court, when it is called upon to make a consideration of the offence of insanity, it ought to consider and appreciate the nature of the crime that was committed, the conduct of the accused person before, during and after the crime and a history of insanity of the accused person or that of his family. It should also consider any medical evidence available – Ani Vs. State (supra). However, it is to be noted that it is solely for the judge to determine whether the accused person was indeed insane or suffering from insane delusion or mentally deluded, at the time of committing the offence. It should make determination taking all the surrounding circumstances into consideration. Did the accused person prepare for the act? Was the act done in such a way that there was intention or desire to concede it? Did the accused person try to avoid being detected or apprehended after he committed the act? When was he eventually arrested? Did the accused make false statement See Ani Vs. State (supra) at 661.
In the instant appeal, learned counsel for the appellant has suggested a defence of insanity. But it is noted there is no evidence of insanity proffered in his argument. DW1 the father of the appellant testified that in the year, 2015, the appellant went missing. When he eventually returned, he was behaving abnormally and even threatened to attack him (DW1) when we questioned him whether he was taking drugs. When DW1 was asked under cross-examination, he said he did not take the accused to hospital. DW1 did not also give history of insanity of the appellant or of the family. Also PW2 and PW3 who are relations of the appellant did not give any history of insanity in the family. Therefore the appellant knew what he was doing and he intentionally killed the deceased until he was satisfied that she was dead. The defence of insanity raised is incredible and not worthy of believe. I hold that the defence is not available to the appellant as he has failed to prove same, on the balance of probabilities. Issue two is resolved in favour of the respondent against the appellant.
Death is final. This finality makes it proper to regard death as the most serious harm that may be inflicted on another, and to regard a person who chooses to inflict that harm without justification or accuse as the most culpable of offenders. On the issue of photographs admitted as exhibits Photographs 1 and 2 which the appellants counsel said are inadmissible. Learned counsel did not proffer argument on the inadmissibility of the photographs. His argument with regard to the photographs was based on sentiment. A Court of law does not act on sentiment. After all the photographs of the body of the deceased show signs of injuries inflected with the intestines protruding outside and the face covered with blood. The confessional statement of the appellant is consistent with other facts verified, and the appellant had the opportunity to commit the offence. The trial Court has done nothing wrong for making reference to the photographs in the course of evaluation. The argument is discountenanced. The result is that the appeal is totality devoid of merit and it fails.
It is dismissed.
I affirm the conviction and sentence of the appellant of culpable homicide punishable with death by hanging, as contained in the judgment of Borno State High Court, Maiduguri delivered on 30th day of May, 2017 in suit No. No.BOHC/MG/CR/01/2017.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Tani Yusuf Hassan, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.
The Appellant was charged with culpable homicide punishable with death and he was found guilty by the lower Court and sentenced to death, hence this appeal. Part of the evidence relied upon by the Respondent in proving the guilt of the Appellant was two confessional statements admitted and marked as Exhibits ST1 and ST2. The Appellant challenged the voluntariness of the two confessional statements at the time of their being tendered and consequent on which the lower Court conducted separate trial within trial to determine the voluntariness of the confessional statements. The first trial within trial was conducted by the lower Court on the 8th of February, 2017 and the parties led evidence therein and at the conclusion of which the lower Court delivered a Ruling saying that it preferred the evidence of the prosecution witness to that of the Appellant on the manner of the making of the statement and it admitted the first confessional statement as Exhibit ST1.
The second trial within trial was also conducted on the 8th of February, 2017 and the parties led evidence therein and at the conclusion, the lower Court delivered a Ruling wherein it noted that while the Appellant initially alleged that he made the statement under duress, he changed his position under cross examination that he did not make the statement and that he only signed a prepared text. The lower Court stated that this was not an issue of involuntariness, but one of retraction of the statement and of the probative value to be attached to it and it admitted the statement as Exhibit ST2.
The records of appeal show that the Appellant did not appeal against the conduct of any of the two trial within trial proceedings or against any of the two Rulings delivered by the lower Court either at the time Of their delivery or as part of this appeal against the final judgment. Counsel to the Appellant berated the lower Court severally in his brief of arguments for relying on the two confessional statements saying they ought not to have been accorded probative value because they were obtained by force and with the use of irregular procedure by the Police. Now, a trial within trial is a process that a trial Court undertakes when an accused person in a criminal trial protests the admission of a confessional statement allegedly made by him to the Police on the ground that the said statement was not and could not have been voluntarily made by him and that the statement was obtained under duress or some threat of whatever nature or actual physical torture to his person.
The main trial in the Court is abated and the accused person is made to face a mini trial, within the context of the main trial, to determine the veracity of the account of the accused person on whether his statement to the Police was voluntary or not.
The procedure at the mini trial is similar to that of the main trial as witnesses are called to give evidence on both sides and they are subjected to cross-examination by the other side. The trial Court writes a ruling at the conclusion of the mini trial either admitting the statement of the accused person or rejecting same and after which the main trial will resume. Findings of fact made by a trial Court in a trial within trial are based on the credibility of witnesses after watching their demeanour and an appellate Court should not upset such findings Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360, Abiodun vs State (2013) 9 (Pt 1358) 138
Further, it is settled that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties Amale Vs Sokoto Local Government (2012) 5 NWLR (Pt 1292) 181, SCC (Nigeria) Ltd Vs Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Nwaogu vs Atuma (2013) 11 NWLR (Pt 1364) 117. In effect the decision of the lower Court on the voluntariness of the second confessional statement remains binding and conclusive between the parties on the issue. It cannot be re-examined by this Court Alakija Vs Abdulai (1998) 6 NWLR (Pt 552) 1 and Opara Vs Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (Pt 1002) 342. The Appellant having failed to appeal against the Rulings of the lower Court on the trial within trial cannot contest the issue of the voluntariness or otherwise of the confessional statements or the regularity of the procedure by which the statements were obtained in this appeal.
Counsel to the Appellant complained against the failure of the lower Court to evaluate the several pieces of evidence contained in the records of proceedings to find that the defence of insanity availed the Appellant. It must be stated that the raising of the defence of insanity is an admission by the Appellant that he committed the offence, but he asserts that he is not responsible for his actions by reason of his insanity. The defence of insanity is not consistent with denial of commission of an offence charged and thus the entire vituperations of the Counsel to the Appellant against the findings of the lower Court that the Appellant killed the deceased were unfounded Madjemu vs State (2001) 9 NWLR (Pt 718) 349.
The defence of insanity raises the question of the criminal responsibility of the Appellant for his actions in causing the death of the deceased in the instant case. The criminal responsibility of a person for his actions in respect of offences under the Penal Code Law, like the Criminal Code Law, is a statutory matter. Sections 43 to 67 of the Penal Code Law outline the categories of people who are not criminally responsible for their actions. They include people suffering from automatism and insanity, people who were in a state of intoxication, children under the age of twelve years, people acting under compulsion, judicial officers in certain circumstances, people acting on or under a honest and reasonable mistaken belief, etc. see the cases of Ani vs State (2001) 17 NWLR (Pt 742) 411 and Amayo vs State (2001) 18 NWLR (Pt 745) 251.
Section 51 of the Penal Code Law provides that “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 law.”
This section provides for the defence of insanity. Insanity is defined as any mental disorder severe enough that it prevents a person from having legal capacity and excuses the person from criminal or civil responsibility. It is a legal, not a medical standard and thus the defence of insanity is an affirmative defence alleging that a mental disorder caused the accused to commit the crime. In law, everyone is presumed to be sane and of sound mind and accountable for his actions, unless the contrary is proved. But, where there is a defect or incapacity of understanding, as there can be no consent of the will, the act is not punishable as a crime. In the legal sense, whether the accused was sane or insane at the time when the act was committed is a question of fact to be decided by the trial Judge, and not by medical men however eminent and knowledgeable, and is dependent upon and contemporaneous acts of the accused.
Where the defence of an accused person is unsoundness of mind or insanity, the onus is on him to plead same and produce credible evidence of insanity or unsoundness of mind at the time the alleged act was commuted. This can be done by (i) evidence as to the past history of the accused; (ii) evidence as to his conduct immediately preceding the killing of the deceased; (iii) evidence from prison warders who had custody of the accused and looked after him during his trial; (iv) evidence of medical officers and/or psychiatrists who examined the accused; (v) evidence of relatives about the general behavior of the accused and the reputation he enjoyed of sanity or insanity in the neighbourhood; and (vi) evidence showing that insanity appears in the family history of the accused. The absence of motive is not sufficient as it is not the duty of the Court to go on a voyage looking for motive Alapa Vs State (2016) LPELR 413220), Danbaba vs State (2018) LPELR 43841 (SC).
When considering the evidence available to or adduced by an accused person in his defence of insanity, the Courts have held the following radical and fundamental points to be important to be borne in mind and kept in view (i) the law presumes every person, including the person accused of crime, sane until the contrary is proved; (II) the prosecution does not set out to prove what the law presumes in its favour, (iii) an accused person who raises insanity as his defence has the onus of proving such insanity cast on him and the standard of such proof is not as high as that cast on the prosecution; it is not proof beyond reasonable doubt but it is proof of reasonable probability, proof sufficient to create a reasonable doubt in the mind of a fair minded jury as to sanity of the accused; (iv) insanity is a blanket term embracing a considerable variety of mental abnormalities, mental infirmities, neurosis and psychosis; (v) to constitute a defence, the mental condition relied on should be such that could and did, at the relevant time, deprive the accused of capacity (a) to understand what he was doing, or (b) to control his actions, or (c) to know that he ought not to do the act or make the omission complained of as constituting the regs of the offence charged Arum Vs The State (1979) 11 SC 91, Sanusi Vs The State (1984) 10 SC 166, Onyekwe vs The State (1988) 1 NWLR (Pt 72) 565, Ejinima vs The State (1991) 6 NWI.R (Pt 200) 627, Ogbu vs The State (1992) 10 SCNJ 88, Ani vs The State (2002) 10 NWLR (Pt 776) 644, Popoola vs The State (2013) 17 NWLR (Pt 1382) 96, State vs John (2013) 12 NWLR (Pt 1368) 337, Adamu vs The State (2014) 10 NWLR (Pt 1416) 441.
The lower Court considered the defence of insanity and rejected same as not proved by the Appellant. Reading through the evidence led at the trial on the record of proceedings, the evidence of the first defence witness and the pieces of evidence elicited in the course of the cross-examination of the second and third prosecution witnesses on abnormal behavior of the Appellant were as regards incidents that happened in July 2015 when the Appellant went missing and was found in Taraba State. The offence the Appellant was charged for occurred on the 12th of April. 2016 and the tenure of the evidence of the second and third prosecution witnesses and of the first defence witness was that at that time the behavior of the Appellant had returned to normal, he was attending school and using the social media mechanisms like any other person.
There was no evidence that the alleged abnormal conduct of the Appellant persisted to the time immediately preceding the killing of the deceased. There was no evidence from prison warders who had custody of the Appellant and looked after him during his trial of his said abnormal behaviour. There was no evidence of medical evaluation of the Appellant at any time before or after the killing of the deceased; the first defence witness stated that the alleged abnormal behavior of the Appellant did not warrant seeking medical help for him. There was no evidence of relatives or neighbours confirming that the Appellant had the reputation of insanity in the neighbourhood. There was also no evidence showing that insanity appears in the family history of the Appellant. The first defence witness testified that the Appellant ran away from home after the commission of the offence and called him that he wanted to return home after a few months. The Appellant apparently knew the gravity of his actions and this was why he absconded thereafter. The Appellant did not lead and there was no credible evidence elicited from the prosecution witnesses to the requirements of the defence of insanity Edoho Vs State (2007) 12 WRN 86. I am in agreement with the lower Court that the defence of insanity was not available to the Appellant on the evidence led on record.
It is for these reasons and the fuller exposition of the law in the lead judgment that I agree that there is no merit in this appeal. I too dismiss the appeal and affirm the judgment of the High Court of Borno State in Charge No BOHC/MG/CR/01/2017 delivered on the 30th of May, 2017 by Honorable Justice A. M. Ali convicting and sentencing the Appellant for the offence charged.
BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother Tani Yusuf Hassan, J.C.A. and I agree with her reasoning and conclusion.
I also dismiss the appeal and affirm the judgment of the lower Court.
Appearances:
A.A. Airadion For Appellant(s)
A.I. Alkali (PSC) For Respondent(s)
