UMAR MUSTAPHA USMAN v. THE STATE (2013)

UMAR MUSTAPHA USMAN v. THE STATE

(2013)LCN/5848(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 16th day of January, 2013

CA/A/186/C/2010

RATIO

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE

It is trite, that the three ingredients of the offence of culpable homicide punishable with death are –

(1) the deceased had died;

(2) the death of the deceased was caused by the act or omission of the accused person; and

(3) the accused person intentionally caused the said death or had reason to know that death or grievous hurt would be the probable consequence of his act.

See NWAEZE VS. STATE (1996) 2 NWLR (Pt. 428) 1; UBAMI VS. STATE (2003) 18 NWLR (Pt. 851) 224 AT 241 and OCHUBA VS. STATE (2011) 12 SCNJ 526 at 539. The proof must be beyond reasonable doubt. See AKINFE VS. STATE (1988) 3 NWLR (Pt. 85) 729. PER ABUBAKAR DATTI YAHAYA, J.C.A.

EVIDENCE: PRESUMPTION OF INTENDED NATURAL CONSEQUENCE OF AN ACT

EVIDENCE: WHETHER ABNORMAL BEHAVIOUR IS EVIDENCE PER SE OF INSANITY

Well, abnormal behaviour is not evidence per se, of insanity. It has to be to such a degree, that the person is not capable of understanding what he was doing, or that it was wrong or that he could not control himself. See OGBU VS. STATE (Supra); IMO VS. THE STATE (1991) 9 NWLR (Pt. 213) 1; and EJINIMA VS. STATE (Supra). PER ABUBAKAR DATTI YAHAYA, J.C.A.

CRIMINAL LAW: FACTORS CONSIDERED BY COURT IN DETERMINING WHETHER AN ACCUSED PERSON WAS INSANE AT THE OF COMMITTING THE OFFENCE

The decision as to whether an accused person was insane at the time of committing the offence is not for the doctors, but is left to the court to determine. In doing so, the court would normally take into consideration, the following: –

The conduct of the accused before and after the act and before the trial;
The nature of the injuries he inflicted on the deceased and his statement to the Police after he was arrested;
The report of a medical doctor and evidence of previous mental sickness and
The evidence of preparation of the act. PER ABUBAKAR DATTI YAHAYA, J.C.A.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

UMAR MUSTAPHA USMAN – Appellant(s)

AND

THE STATE – Respondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment): This appeal arose from the judgment of the High Court of Kogi State, Lokoja, delivered on the 25/3/09 convicting the appellant for the offence of culpable homicide punishable with death, and sentencing him to death by hanging.

The appellant was at the trial court, charged and tried for the offence of culpable homicide contrary to Section 221(a) of the Penal Code. The facts are that on the 10th day of November, 2007, at Lokoja, the appellant approached his father (the deceased) and requested for a cutlass to enable him to clear grass around the house. When the deceased father obliged him, the appellant used the cutlass to inflict “several matchet cuts” on the deceased’s head and face until he died on the spot. Thereupon, the appellant came out brandishing the cutlass which was stained with blood and singing. People feared to approach him. He then cleaned the cutlass and ran away

At the trial, the prosecution called five witnesses and tendered three exhibits. Exhibit 1 is the negative and postcard of the deceased father in a pool of blood, Exhibit 2 is the statement of the appellant recorded at “C” Division of the Nigeria Police Lokoja and Exhibit 3 is the statement of the appellant recorded at the State C.I.D. office, Lokoja.

When the prosecution concluded its case, the appellant gave evidence on his own behalf and also called two witnesses which included his mother.

It is the dissatisfaction with the judgment delivered on 25/3/09 that prompted the appellant to appeal to this court on ten grounds of appeal in the Notice of Appeal filed on the 22/6/09. From these ten grounds, the Appellant, in his Brief of Argument deemed filed on the 23/2/12 by his counsel, C. I Enweluzo, distilled two Issues for determination to be –

1. Whether the prosecution had proved the offence of culpable Homicide punishable with death under Section 221(a) of the Penal Code to warrant the conviction and sentence passed on the Appellant by the learned trial judge.

2. Whether the learned trial judge was right in holding that the defence of insanity does not avail and/or relieve the appellant of criminal liability with regard to the offence for which the appellant was charged at the lower court.

The Respondent’s brief was filed by H.E. Yusuf, the learned Deputy Director of Public Prosecution, on the 22nd of March, 2012. The two issues indentified therein, are: –

1. Whether form the totality of the evidence adduced at the trial, the prosecution has proved the ingredients of the offence of culpable homicide punishable with death contrary to Section 221(a) of the Penal Code beyond reasonable doubt.

2. Whether the defence of insanity which the appellant relied upon, avails him having regard to the circumstances of this case.

The appellant’s Reply Brief was abandoned by the appellant’s counsel on the date of the hearing of this appeal on 12/11/12. It is struck out.

I shall utilise the two Issues identified by the appellant to resolve this appeal.

ISSUE NO. 1

Whether the prosecution had proved the offence of culpable homicide punishable with death under Section 221(a) of the Penal Code to warrant the conviction and sentence passed on the appellant by the learned trial judge.

Learned counsel for the appellant submitted on this Issue, that apart from the three ingredients of the offence of culpable homicide punishable with death enumerated as (i) that the deceased died (ii) his death was caused by the accused and (iii) that the act or omission of the accused and death of the deceased was either intentional or done with the knowledge that death or grievous hurt was a probable consequence, the charge against the accused, must have been properly done, otherwise there cannot be proof “beyond all reasonable doubt”. He referred to OKEKE VS. STATE (2003) 15 NWLR (Pt. 842) 25 at 95 – 96 H – E. Learned counsel submitted that the evidence of PW1, PW4 and PW5, Exhibit 1 and 1 (a) and the evidence of the accused all clearly establish that the deceased has died and that it was the appellant that caused the death. He however agued that the prosecution had failed to prove beyond all reasonable doubt that the act of the appellant which caused the death of the deceased was either intentional or done with the knowledge that death or grievous hurt was a probable consequence. He referred to the evidence of PWs 2, 3 4 and 5 and submitted that none of them was in the room when the killing took place and so none of them could say that the appellant intentionally caused the death of the deceased. Instead counsel argued, the evidence of PW2 and the appellant, show that the appellant and his deceased father were on cordial terms with loving concern for each other and so there could not be any intention to kill him.

Learned counsel for the appellant also argued that the appellant was denied his Constitutional right to have the nature of the offence explained to him in detail and in the language he understands when his statement was to be taken, thereby violating Section 36(6)(a) of the 1999 Constitution. The effect, he argued, is that there was no proper charge and so there could not have been proof beyond all reasonable doubt. He referred to OYEGBU VS. STATE (1995) 4 NWLR (Pt. 391) 510; QUEEN VS. WILCOX (1961) 2 SCNLR 296; STATE VS. OKORO (1964) 1 ALL NLR 423 and OKEKE VS STATE (2003) 15 NWLR (Pt. 842) 25.

In his reply, learned counsel for the respondent, submitted on the authorities of AMALA VS. THE STATE (2004) 6 SCNJ 79 at 88; STATE VS. OLATUNJI (2003) 2 SCNJ 65 and OBIAKORA VS. THE STATE (2002) SCNJ 193 at 202, that the onus is on the prosecution to prove the offence beyond reasonable doubt and that it had done so in this instance. He referred to the evidence of PW1, PW4, PW5 and the appellant, to submit that these have established the two ingredients of the offence beyond reasonable doubt, since they show that one Mustapha Usman, the deceased, had died and that it was the appellant that was responsible for the death. Learned counsel also cited EHOT VS. STATE (1993) 5 SCNJ 65 at 77 – 78 and BUBA VS. THE STATE (1994) 7 – 8 SCNJ 472 at 478 to submit that a person is said to intend the natural consequences of his act. Here he argued, the appellant’s act of striking the deceased with a cutlass in his head and face, shows that he intended to cause the death of the deceased. This proves the third ingredient of the offence he said and urged us to resolve the Issue in favour of the respondent.

It is trite, that the three ingredients of the offence of culpable homicide punishable with death are –

(1) the deceased had died;

(2) the death of the deceased was caused by the act or omission of the accused person; and

(3) the accused person intentionally caused the said death or had reason to know that death or grievous hurt would be the probable consequence of his act.

Both counsel for the appellant and the respondent are ad idem that the first and second ingredients of the offence of culpable homicide punishable with death, have been proved by the prosecution, beyond reasonable doubt. I am in complete agreement with them for exhibit 1 shows that the deceased had died. The evidence of PW1, PW2 and PW3 also clearly shows that the deceased had died and it was the act of the appellant that caused the death. The issue in controversy is the third ingredient, i.e. whether the act of the appellant was intentional or done with the knowledge that death or grievous hurt was the probable cause.

The law is clear. When a person acts and results occur as a natural consequence of that act, then that person will be deemed to have intended the natural consequence of that act – EHOT VS. STATE (Supra). Here, the appellant borrowed a cutlass from his deceased father and used the same cutlass to inflict fatal injuries on the head and face of his victim. He did so until the deceased lay dead in the pool of his own blood. The appellant must be taken to have intended to kill the deceased since the use of such a lethal weapon on very vulnerable parts of the body, can point to nothing else, apart from that he intended to kill his victim. To that extent therefore, the prosecution had clearly established the third ingredient of the offence of culpable homicide punishable with death.

Learned counsel has raised the issue that the appellant was not accorded his constitutional right to have the nature of the offence explained to him in detail and in the language he understands, when his statement was to be recorded and this has rendered the charge improper and proof beyond reasonable doubt impossible. I have not seen any ground of appeal raising or attacking this point. Certainly, none of the issues distilled, has raised the fact that the constitutional right of the appellant was violated or that the charge was not proper. Once that is the position, then counsel cannot surreptitiously introduce argument on them. All the arguments and submissions in that regard are therefore hereby discountenanced.

However, if the arguments on the alleged violation of the constitutional provision and improper charge can be said to have been properly raised, then I must point out that they are not supported by the record. The statement of the appellant was recorded in English. He is a person with a diploma and is therefore a person who can speak English. There is nothing to show that he did not understand English as he had infact signed the cautionary words which are in English, as having understood them before he volunteered a statement. This court is not in the business of assuming things. There was no objection to the admissibility, of the statement by the appellant or his counsel at the trial court on the ground that when it was to be recorded, the nature of the charge had not been explained to him in the language he understands and in detail. Raising it in this court is only an afterthought.

Since there was no complaint by the appellant when the statement was to be admitted, and there is no ground of appeal against the order of admitting the statement in question, the appellant cannot now here seek to have the charge declared improper or a violation of the constitutional provision. This court will not have the jurisdiction to so do. See ADJOBI VS. THE STATE (2011) (Pt. 11) 6 SCNJ 409. Whatever it was, did not certainly, affect the charge of the appellant at the trial court or the evidence adduced by the prosecution to prove the case. The ingredients of the offence of culpable homicide punishable with death have been proved beyond reasonable doubt, to that extent. Issue 1 is therefore resolved in favour of the respondent and against the appellant.

ISSUE NO. 2

Whether the learned trial judge was right in holding that the defence of insanity does not avail and/or relieve the appellant of criminal liability with regard to the offence for which he was charged at the lower court.

Learned counsel for the appellant submitted that the appellant did not deny committing the offence but had raised the defence of insanity. He referred to Section 51 of the Penal Code and the case of MOHAMMED VS, THE STATE (1997) 9 NWLR (Pt. 520) 169 on how the defence of insanity can be established. On the authority of OKUNU VS. STATE 1997 – 1978 Vol. 11 NSCC 133 at 134, the onus is on the accused person to show that he was insane at the time of the commission of the crime and this is on the balance of probabilities. Counsel referred to the evidence of the appellant before the trial court, to the effect that when his deceased father gave him the cutlass, he did not know what came over him to turn against his father, and that at the time of the act, he did not know the consequence of what he was doing and had no power to control his actions on that day. He argued that even the evidence of PW3 corroborated that of the appellant when she said she had noticed “abnormal behaviors” from her brother. There was no evidence, he said, that the appellant was on hard drugs or alcohol, showing that it was not a self-induced status, but a natural phenomenon which occurs at different times, referring to MOHAMMMED VS. STATE (Supra) at page 199C, since evidence of a medical doctor is essential but not indispensable.

On the state of the appellant before the commission of the act, learned counsel referred to the evidence of the mother of the appellant, DW1, about the abnormal behavior of her son and the evidence of DW2 who stated that the appellant was treated in their herbal home, as showing that the activities of the appellant were not that of a normal person.

Learned counsel also referred to the behavior of the appellant after the commission of the act and submitted that it was suggestive of an abnormal behavior. He at the same time, criticized the learned trial judge for using the statement of the appellant made two days after the event, to judge the condition of the appellant, as wrongful which caused miscarriage of justice.

Counsel argued that there was no evidence of the appellant preparing to commit the offence, concealment of the act done after it was committed, consciousness of guilt and effort to avoid detection. When he went back home the following day, he was, it was argued, oblivious of what transpired the previous day.

On the contradiction between the evidence of the appellant and that of his mother DW1 identified by the trial judge, counsel argued that because insanity is an abnormality, there is no form of consistency in the conduct of an accused as it may vary from day to day. At any rate he argued, the evidence of the appellant was in respect of what transpired immediately before the act, whereas the evidence of the mother was in respect of what happened several years before the act. There was therefore no basis for contradiction, he argued.

Counsel also argued that the decision of the trial judge in stating that absence of motive is irrelevant, cannot be correct in view of the decision in MOHAMMED VS. STATE (Supra) at page 196 D – E and R VS. INYANG (1946) 12 WACA which decided that absence of evidence of motive may be relevant to prove insanity.

On the presumption under Section 149(d) of the Evidence Act, now Section 167(d) on the failure of the counsel for the appellant to tender the medical report of the examination of the appellant, counsel submitted that it was the prosecution which failed to tender it, not the defence and the presumption should be directed at it, and not the defence – Pages 20 – 21 of the record. When it was directed to the defence, a miscarriage of justice was occasioned, he argued.

Counsel submitted that the defence of insanity goes to the material time of the commission of the offence and so his mental condition before or after the commission of the act, or a history of mental illness in the family, are not relevant in considering the defence of insanity in a case of culpable homicide punishable with death. He placed reliance on MOHAMMED VS. STATE (Supra) at page 199. Counsel therefore urged us to hold that the defence of insanity avails the appellant, allow the appeal and set aside the conviction and sentence passed on the appellant.

In reply, learned counsel for the respondent submitted that the appellant in his evidence before the trial court, inferred that he was not in control of himself after he took the cutlass from his father and that he did not know that he killed his father until the following day after the incident. This defence of insanity put up by the appellant is a complete defence under Section 51 of the penal Code, but that the onus is on the appellant to establish it, and it concerns the time the act was committed, he argued, referring to EJINIMA VS. STATE (1991) NWLR (Pt. 200) 627 at 645; UDOFIA VS. STATE (1981) NSCC 465 at 472 – 473. As there is a presumption in law that every man is sane and accountable for his actions, an accused person has the duty to rebut the presumption – NNABO VS. STATE (1994) 8 NWLR (Pt. 361) 173 at 184; AUGUSTINE GUOBADIA VS. STATE (2004) NWLR (Pt. 869) 360 at 374; ONYEKWE VS. THE STATE (1988) 1 NWLR (Pt. 72) 565 at 572 and LOKE VS. STATE (1985) 1 NWLR (Pt. 1) 1. Counsel then enumerated the factors to be taken into consideration by a court, in deciding whether a defence of insanity has been made out – ANI VS. STATE (2002) 10 NWLR (Pt. 770) 644 at 663.

On the conduct of the appellant, learned counsel submitted that his evidence contained in his statement to the Police and the evidence of prosecution witnesses, does not show any abnormal behaviour amounting to insanity. Infact, he argued, the behaviour of the appellant after committing the offence, shows that he was conscious that he had done something wrong, was conscious of his moral guilt and concerned for his safety. These show that he knew that he ought not to have done what he did. Counsel also argued that even the events leading to the commission of the offence, show clearly that the appellant had prepared for it and had carried out what he had earlier threatened to commit. Counsel argued that the defence of insanity the appellant put forward, could not be a natural one as argued because he had been smoking Indian hemp, a self-induced behaviour which is not natural and which cannot be a defence. Counsel argued this because he contended, that the appellant’s statement about his insanity should be suspect and should not be relied upon to establish the defence. The danger is obvious, he said, relying on OGBU VS. STATE (Supra) 255 at 274 and ASANYA VS. STATE (1991) 3 NWLR (Pt. 180) 422 at 271.

On the evidence of DW1, the mother of the appellant, counsel argued that the trial judge was right in not relying on her evidence as it was at variance with what the appellant himself stated and was therefore viewed as an attempt by a mother to save her son. He urged us to resolve the Issue in favour of the respondent and to dismiss the appeal.

Insanity at the time an offence is committed, exculpates the offender, as provided by Section 51 of the Penal Code thus

“Nothing is an offence which is done by a person who at the time of doing it by reason of unsoundness of mind is in capable of knowing the nature of the act or that he is doing what is either wrong or contrary to law.”

It is clear from above, that the unsoundness of the mind, or insanity, must be present at the time of the commission of the offence, such that the accused person would be incapable of knowing the nature of his action, or that he is doing what is wrong or contrary to law. The onus is on the accused person to establish it and he is to do so on the balance of probabilities. Learned counsel for the appellant kept harping about the abnormal behaviour of the appellant before and after the commission of the offence. Well, abnormal behaviour is not evidence per se, of insanity. It has to be to such a degree, that the person is not capable of understanding what he was doing, or that it was wrong or that he could not control himself. See OGBU VS. STATE (Supra); IMO VS. THE STATE (1991) 9 NWLR (Pt. 213) 1; and EJINIMA VS. STATE (Supra).

1. The conduct of the accused before and after the act and before the trial;

2. The nature of the injuries he inflicted on the deceased and his statement to the Police after he was arrested;

3. The report of a medical doctor and evidence of previous mental sickness and

4. The evidence of preparation of the act.

In the instant appeal, there is no evidence of a medical report. Although the trial court made its presumption under Section 149(d) now Section 167(d) of the Evidence Act 2011, against the appellant, it really should have been against the prosecution (the respondent) since it was the one that was to produce the medical report.

However, it is not shown that that was the only point used by the trial court to reach the conclusion it did. There is therefore no miscarriage of justice in that regard at all.

As regards previous mental sickness, the appellant, DW1 and DW2 gave evidence of the conduct of the appellant before the event. The evidence given by the appellant himself in this regard, should be suspect and no weight should be attached to it, since it is most likely going to serve its own purpose. Further, every accused person will surely use same to escape culpability, totally. The evidence of DW1, the mother of the appellant, was not given any credibility by the trial judge, who had the advantage of seeing her and observing her demeanor, when she was testifying. This court is not in a position to depart from the evaluation of the trial court, since it is on credibility. See OSHE VS. OKIN BISCUITS (2010)3 SCNJ 38. Suffice it to say however, that a mother would most likely go to any length to save her child. This cannot be a different situation. Moreover, the instances of sickness she painted, were remote, well before the commission of the offence and not at the time of the happening of the events. They certainly have not been shown to have affected the action of the appellant at the time he was killing his father. The same yardstick applies to the evidence of DW2.

As to the conduct of the appellant, he had given evidence and had said that immediately he handled the cutlass given to him by his father, he went out of his mind and senses, and did not know what happened or what he did

“until I overheard my neighbor saying that that is the boy that killed his dad and that was the following day. I did not know, at the time I committed the act that I was not supposed to such a thing. I was not in a position to exercise restraint at the time.”

This piece of evidence given in court, about one year after the commission of the act, is different from the statement of the appellant to the Police in Exhibit 3, two days after the act, a statement that was admitted without any objection by the appellant. In it, the appellant said that he used the cutlass to matchet his father and he stood until the deceased “could move no more.” He hid the cutlass at the back of the veranda when he heard people shouting, washed his body clean, and ran away to an uncompleted filling station to hide. He later went to the bush “along NTA and slept there”. It was then that he began to question himself why he killed his father. He decided to go and change his cloth at home and he went through the back door. When people saw him, they surrounded the house. He “decided to lock all the entrances and later jump out through one of the windows.” People pursued him and arrested him. He said he used to smoke Indian hemp. The trial judge saw the appellant and he did not place much weight on his evidence in court. Instead, he relied upon Exhibit 3 and the evidence of PW2, the wife of the deceased who testified that the appellant was behaving normally and had asked his father to give him a cutlass to clear grass around the house. He followed the father to his room, locked the door and inflicted wounds on the deceased. The deceased was shouting her name to come and help him but she could not gain access as the appellant had locked the door.

In my view, the act of the appellant was deceitful when he had to go and pretend that he was going to clear the bush around the house. He lured his father into the room and locked it. When he got the cutlass, a new one which was different from the one he had used previously to cut grass, he used it to inflict wounds repeatedly on the vulnerable parts of the body of the father, until he lay motionless and dead. He unlocked the door and came out brandishing the cutlass in order to chase or prevent people from apprehending him. He washed himself and the cutlass clean of the blood and then ran away to hide from people, strongly showing that he knew what he had done was wrong and he fled from the scene to avoid the consequences of his act. There is no credible evidence believed by the court to show that the appellant was insane before the incident, especially as PW2 said he was behaving normally, not abnormally as he and his mother would want people to believe.

The deliberate and cunning preparation and the ploy to get his father to an isolated place when people could not see what he intended to do, let alone restrain him, show the act of a person who was in full control of his mental faculties and who had set out to achieve a purpose he knew was wrong. His action was an exhibition of a wicked intent with pre-meditation to kill his father. He had no fits of insane behaviour, before, during or after he had committed the offence. There is no evidence, on the balance of probabilities, that at the time he was committing the heinous offence of murder most foul, he did not know what he was doing, or that he was doing what was wrong or contrary to law. Standing and watching his father bleed to death, shows an intent to finish a cause, and the cleaning of the cutlass was to destroy evidence with a fixated deliberateness and so escape the wrath of the law. It is therefore not correct to submit as counsel for the appellant did at page 14 of the appellant’s brief that the appellant went home the following day after the event, because he was oblivious of what transpired the day before. This is not borne by the evidence accepted by the trial court.

On motive, there is no evidence that the appellant had a motive for killing his father, and this, according to the appellant is relevant. However, this is relevant only when there is acceptable and credible evidence by a doctor or a herbalist, who had previously examined the appellant and who had given indication of the insanity of the appellant. Here, there is no credible evidence accepted by the trial court indicating the insanity of the appellant, an insanity that made him unaware of his act or that it was wrong. So, the words of Mohammed JSC in MOHAMMED VS. THE STATE (Supra) have set the issue straight. He said: –

“it is however very clear from the testimony of PW2 that there was no motive for the violent attack on these two victims. I know that mere absence of any evidence of motive for a crime is not sufficient ground on which to infer mania ……”

The trial judge was therefore right when he did not infer insanity, because of lack of motive. The 2nd issue for determination is thus resolved in favour of the respondent and against the appellant.

The respondent had proved the guilt of the appellant beyond reasonable doubt. The appellant has not been able to establish the defence of insanity as at the time he killed his father. The trial judge was therefore right in his decision. Consequently, this appeal has no merit and is dismissed. The judgment of the trial court delivered on the 25th March 2009, convicting and sentencing the appellant to death by hanging, is hereby confirmed.

HUSSEIN MUKHTAR, J.C.A.: I have had the pleasure of reading in draft the judgment of my learned brother, Yahaya, JCA, and I agree entirely with the views expressed therein and the conclusion that the appeal is lacking in substance.

For the comprehensive reasons given in the lead judgment, the appeal cannot but be dismissed. I hereby so order and subscribe to the consequential orders made in the judgment.

REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in draft the lead judgment of my learned brother Yahaya, JCA, just delivered. I agree with the conclusion contained thereat that this appeal lacks merit and is hereby dismissed.

Appearances

H. E. Yusuf, DDPP Kogi State Ministry of Justice with M. A, Abaji SLOFor Appellant

AND

Sir C. I. EnwuluzoFor Respondent