Dominic Alapa V. The State (2016)

LawGlobal-Hub Lead Judgment Report

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

This appeal is against the judgment of the Katsina State High Court in Charge No KHT/20C/2004 delivered by Honorable Justice Abdullahi Yusuf on the 12th of March, 2007. The Appellant was charged with culpable homicide punishable with death under Section 221, of the Penal Code of Katsina State. The Appellant was alleged to have caused the death of one Yohanna Dyeri on the 3rd of April, 2004 in Matazu Local Government Area of Katsina State by shooting him in the abdomen with a rifle with the knowledge that death would be the probable consequence of his act.

The Appellant pleaded Not Guilty and the matter proceeded to trial and in the course of which the Respondent called seven witnesses and tendered six exhibits in proof its case against the Appellant. The Appellant called three witnesses, including himself, to testify in his defence. At the conclusion of trial and after the final addresses of Counsel, the lower Court found the Appellant guilty of culpable homicide punishable with death and sentenced him to death by hanging. The Appellant was dissatisfied with the

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judgment of the lower Court and he caused his Counsel to file a notice of appeal against it. The notice of appeal is dated the 5th of June, 2007 and it contained four grounds of appeal.

In canvassing the case of the Appellant in this appeal, his Counsel filed a brief of arguments dated the 25th of February, 2008 on the 27th of February, 2008. In response, Counsel to the Respondent filed a brief of arguments dated the 11th of October, 2010 on the 9th of June, 2014 and the brief of arguments was deemed properly filed on the 11th of November 2014. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs as their oral submissions in this appeal.
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Counsel to the Appellant formulated two issues for determination in this appeal and these were:
i. Whether the trial, conviction and sentence passed on the Appellant were not a nullity in view of the failure of the trial Court to comply with the mandatory provision of Section 187 (1) of the Criminal Procedure Code and Section 33 (6) of the 1999 Constitution of Nigeria.
ii. Whether on the evidence before the Court the defence of insanity under

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Section 51 of the Penal Code was established and available to the Appellant.

In arguing the first issue for determination, Counsel referred to the provisions of Section 187 of the Criminal Procedure Code dealing with arraignment and of Section 33 (6) of the 1999 Constitution and stated that the combined effect of both provisions is that (i) an accused person must be present in Court unfettered unless there is a compelling reason to the contrary; (ii) the charge must be read over to the accused in the language he understands; (iii) the charge must be explained to the accused to the satisfaction of the Court; (iv) in the course of the explanation, technical language must be avoided; and (v) the accused will then be called upon to plead to the charge; he referred to the case of Offiom Vs State (2003) 3 ACLR 192. Counsel stated that these requirements were mandatory and not directory and they must be complied with and he referred to the cases of Ogunye Vs The State (1999) 4 SCNJ 44, Adeniji Vs The State (2001) 5 SCNJ 371.

Counsel referred to the records of the lower Court on the arraignment of the Appellant and stated that there was no record of the

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person who read the charge to the Appellant and neither was there a record that the charge was explained to the Appellant before his plea was taken and that as such there was non-compliance with the provisions of Section 187 of the Criminal Procedure Code and Section 33 (6) of the 1999 Constitution and that this nullified the entire proceedings before the lower Court and he referred to the case of State Vs Onagoruwa (1992) 2 NWLR (Pt 221) 33. Counsel stated that the fact that the Appellant spoke English language and that the language of the Court was English did not excuse the lower Court from explaining the charge to the Appellant and to reflect this fact in the records and that there was nothing on the record showing that the lower Court ordered that the charge be explained to the Appellant in the language he understood and this occasioned a miscarriage of justice. Counsel urged this Court to resolve this issue for determination in favour of the Appellant.
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On the second issue for determination, Counsel reproduced the provisions of Section 51 of the Penal Code dealing with the defence of insanity and stated that for an accused person to take benefit of

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the provisions, he must lead evidence to establish that he was insane at the time he committed the offence and that this meant that the Appellant had the onus of establishing that at the time of the killing of the deceased, he was in such unsound mind as to deprive him the capacity to know that what he was doing was wrong or contrary to law. Counsel stated that the Appellant led evidence showing that he had been behaving abnormally prior to the incident and that this was confirmed by his wife who testified as the second defence witness and she informed the lower Court of the illness of the husband in 1999 and which completely transformed him from being a normal person and that the abnormal behavior had continued since then.