M.A. Sanusi V The State (1984)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C.

This appeal was heard on the 27/8/84. Learned counsel for the appellant, Fola Akinrinsola Esquire relied on his brief which was seemingly erudite and unnecessarily copious. He then made a few observations in elaboration of the paints canvassed in his brief.

Learned counsel for the respondent R. A. Bello Esquire (P.S.C. Ogun State) also relied on his brief. After reading their briefs and listening to learned counsel on both sides, the court decided that the appeal should be dismissed. We then dismissed the appeal and agreed to give reasons for the dismissal on the 19th October 1984. Hereunder are my reasons.

The material facts of this sad case are simple, straightforward and in the main not disputed. It is common ground that the appellant on 10th April 1978 inflicted very serious and mortal matchet cut wounds on his own mother, who later died of those wounds on the 19th April 1978. The trial court – the Abeokuta High Court -believed the prosecution witnesses and found as a fact that the appellant killed the deceased. The actus reus of the offence of murder was thus established. In the Court of Appeal there was no quarrel about this aspect of the case.

The quarrel was whether or not the requisite mens rea was established and more particularly whether on the totality of the evidence led, the defence of insanity was not available to the appellant. It was also argued that from the appellant’s statement to the police during their investigation into the murder, the appellant was entitled to the further defences of provocation and self defence.

The Court of Appeal in a well reasoned judgment considered the defences of insanity, provocation and self-defence and came to the conclusion that on the evidence before the trial court none of these defences availed the appellant. That court accordingly dismissed the appellant’s appeal and affirmed and confirmed the judgment and sentence of the trial court.

The present appeal is against this judgment of the Court of Appeal. As in the Court of Appeal, the main arguments in this Court centred around the defences of insanity, provocation and self-defence. I will deal firstly with provocation and self defence. Provocation does not excuse murder, it merely has the effect of reducing it to a lesser offence of manslaughter. Self defence on the other hand is a complete answer to the charge of murder. But these defences cannot be set up in vacuo. That will be a futile, academic exercise. For any of these defences to avail the appellant in this case, there ought to be enough credible evidence on which to found each of these defences. From the proceedings in this case, it is clear that the appellant did not give evidence during his trial. He could not therefore, have raised the issues of either provocation or self defence. The prosecution called seven (7) witnesses and their evidence contained nothing remotely suggesting that the deceased offered the appellant any provocation; or remotely indicating the necessity of the appellant being compelled to defend himself against any attack (provoked or unprovoked) offered against him by the deceased.

There is however the appellant’s alleged statement to the police which was tendered by P.C. No.35269, Oladipo David, called as the 2nd p.w. In that statement appears the following:-

“At about 5 p.m. of Monday 10/4/78, when I wanted to cook, I saw my mother called Safu. She started to abuse me that I am useless and that I am a bastard and a eunuch. Three other women Adijatu, Musili and Atoke joined my mother to abuse me. Adijatu was talking when my mother gripped my hand and bit my right hand thumb. The hand pained me, and when she did not leave off the thumb I used the knife I was holding… to cut my said mother out (at) the mouth… It was when I used the knife which the police took from me to cut my mother’s mouth that she left my hand…”

Several questions arise out of the above statement, exhibit B viz:-

1. Is exhibit B evidence in this case If yes, evidence of what
2. How did the trial court deal with exhibit B
3. Did the appellant at the trial accept exhibit B as his statement to the police
4. In view of the answers to questions (1), (2), and (3) above can the appellant now rely on exhibit B to found and sustain his defence of provocation and self defence.

I shall now attempt to answer the four questions posed above. Firstly – Is exhibit B evidence in this case and if so evidence of what The police during their investigation into any criminal offence usually obtains statements from accused persons. These statements are usually also tendered by the investigating police officer who recorded the statement as part of the prosecution’s case. The question now is – At that stage what is the statement being tendered as Does the statement at that stage constitute proof and if yes, proof of what A review of the authorities will confirm that at best the prosecution will tender the statement of an accused person as a Res – as something the investigating police officer obtained during his investigation. It is then open to the trial court to consider that statement (along with other available evidence) accepting or rejecting it before coming to a decision. In Subramanian v Public Prosecutor (1956) 1 W.L.R. 965 at p.970 the necessary distinction was drawn between tendering an accused person’s statement as proof of the fact that it was made and tendering same as proof of the truth of its contents. It is my humble view that when the prosecution tenders the statement of an accused person they tender same only as proof that a statement was made, and not as proof of the truth of its contents. And that is why it is open to the accused to deny or confirm and affirm the said statement or else to admit the making of it but attack it on grounds of it not being voluntarily made.

Now how did the trial court treat exhibit B The learned trial Judge ab abundantia cautela considered the contents of exhibit B and exhibit B1 (the Yoruba statement & its English translation) and arrived at the following conclusions:-

“I find not proven evidence to the effect that deceased abused or called accused a bastard or labelled him a eunuch.”

The Judge in rejecting exhibits B & B1 said emphatically: