Francis Asanya V. The State (1991)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C 

This is a further appeal by the accused person, Francis Asanya from the judgment of the Court of Appeal Benin Division, which had on the 30th June, 1989, confirmed his conviction on a charge of murdering his wife, Theresa Asanya, contrary to Section 254(1) and punishable under Section 257(1) of the Criminal Code (Cap.26) Laws of Western Nigeria, 1959 applicable in Ondo State and the sentence of death passed upon him. At the trial before Ogunleye, J., the prosecution had called six witnesses and the accused person (hereinafter called appellant) testified on his own behalf and called one witness.

The facts of the case as established in the court of trial are straight-forward. The appellant lived in a one-room apartment at Ajede Camp in Owo Local Government Area of Ondo State until 26th October, 19S3. His landlord was one Mr. Elegbeleye who testified at the trial as P. W.1. At about 12 mid-night on 26.10.83, P.W.1 heard a female voice from the room of the accused and his wife. P.W.1 and P.W.2 (one Mr. Odo) knocked at the door of the room of the accused and his wife but there was no reply. The door was locked from within.

Suspicious of the situation, P.W.1 and P.W.2 climbed into the room and opened the door from within. In the room, with the aid of P.W.1’s lighted lantern P.W.1 and P.W.2 saw appellant’s wife lying on the floor in a pool of her own blood. They noticed that she had matchet cuts on her face, chest and all over her body. The only other person in the room was the appellant. Asked, the appellant told P.W.1 and P. W.2 that the deceased had refused him sex. One Mr. Odan (P.W.3) followed the body of the deceased to St. Louis Hospital, Owo, where P.W.1 identified the deceased’s body to a medical doctor (P.W.5) who performed the autopsy.

Then P.W.4 (C. Ali) carried P.W.1 on his motor-cycle to Ipele Police Station to report the incident. It was actually the police who removed the deceased’s body from the scene of the crime. According to P.W.5 (Dr. Akinwe) a Senior Principal Medical Officer who performed the autopsy on the body of the deceased at St. Louis Hospital, Owo, she had three deep cuts on her head and face and brain matters were exposed. There was extensive haemorrhage. Death in doctor’s opinion was the brain damage and the haemorrhage resulting from the injuries. In the opinion of the doctor the injuries could not have been self-inflicted.

P.W.6, Sgt. F. Nwagbuzor investigated the case. He testified that on arrival at the scene he saw a pool of blood on the floor in a room where the deceased was lying and a blood-stained cutlass (Exh.B). He also arrested, charged and cautioned the appellant in English language and he volunteered a statement which was tendered as Exh. A at the trial.

Appellant also gave evidence on his own behalf. He said he had no quarrel with his wife, Theresa. He did not know the time he harmed his wife and matcheted her to death. It was at Akure police station that he came to know that she was dead. He remembered that on 25.10.83 when he attended a tribal meeting his body gave him signs and something was blowing a whistle in his ears. He did not even remember fighting his wife. He was mad in 1978 and was treated at Ekoko-Agbor in Bendel State by a native doctor and he became well.

He was well until December, 1979 when he took ill again for only two days. Another native doctor treated him at Nsukka and he stayed with the native doctor for 14 days. He stated that in the night of 25.10.83 when he returned to his house he knocked at the door and his wife, Theresa, opened the door for him to enter and he did. Thereafter he went blank. He only remembered that he had had some drinks at the tribal meeting and that he knocked at his door. He agreed he made a statement to the police in his own handwriting on 30.10.83. He also agreed that he used his own cutlass on his wife.

The appellant’s only witness was one Mr. Obi (D. W.2), a convict who was serving a term of imprisonment for fraud. D. W.2 confirmed that in 1978 at Ikoko-Agbor the appellant was sick and D. W.2’s father treated him with herbal medicine. The witness stated that he never met the appellant again until 30.10.86 in Owo prison.

After listening to addresses of counsel and considering the evidence adduced before him, the learned trial Judge reached a number of conclusions which are important for the determination of this case. First, after considering the evidence as to whether the act of the appellant caused the death of his deceased wife, the learned trial Judge concluded as follows:-

“Clearly the cause of death was the brain damage and external haemorrhage caused Theresa by the use of a matchet on her by her husband who is the accused. The prosecution has established, by evidence, the cause of death of Theresa as well as established in addition that the act of the accused caused her death. I hereby infer an intention to kill Theresa by the accused on 26/10/83. He is taken to intend the natural and probable consequences of his acts (See R. v. Dim (1952) 14 W.A.C.A.154 at p.155); and (2) (R. v. Nungu (1953) 14 W.A.C.A. 379 at pp.379/380). There was no rebuttal evidence that the accused believed that the assault on his wife would probably not cause or contribute to her death. (See R. v. Amponsah & Ors. (1938) 4 W.A.C.A.120 at p.122). On the evidence I found as a fact that the act of the accused caused the death of his wife; the deceased.”

Secondly he gave a very careful consideration to the issue of whether or not on the evidence before him it was proved that the appellant was insane. Before reaching a conclusion on the point, he considered the evidence of the behaviour before and at the killing. In this respect he considered the evidence of P.W.1, P.W.2, P.W.3 and P.W.4. He also analysed the appellant’s behaviour which he himself meticulously recalled on oath. Also the learned trial Judge noted that none of the appellant’s relations was called to support his evidence of his insanity (Dim v. The Queen (1952) 14 W.A.C.A.154 at p.157).Thirdly on the very vital evidence of D.W.2, the learned trial Judge commended as follows:

“He mentioned no occasions when his father needed his assistance either generally in 1978.Witness (D.W.2) was pretty close to the accused and other inmates in his father’s clinic. But “it was the accused who recognised me at Owo prison and introduced himself to me on 30/10/86. If the witness was actually “pretty close to the accused” in 1978 one would expect him (D.W.2) to, at least, recognise the accused in October, 1986. D.W.2 seemed to know more details of accused’s illness in 1978 than the accused himself.

Accused did not mention the name of the herbalist who treated him for madness in 1978 nor did he tell court that he was then hospitalised in any herbal home. D.W.2 gave both details. That was the man who met accused in 1986 and could not even recognise him. D.W.2 is a shameless liar to say the least. He is doing his incompetent best to provide an escape route from justice for the accused. D.W.2 is a worthless witness and I reject his testimony as regards accused’s mental illness in 1978 and as to who offered him herbal treatment then. This witness (D.W.2) had every appearance of lying and lied unashamedly to this court when he claimed to have met accused at Ekoko-Agbor in 1978.”

Fourthly the learned trial Judge later continued –

“The accused may have suffered from a state of mental disease or natural mental infirmity but this did not lead to any incapacity to control his actions or understand what he was doing at the material time. Accused alleged he had a black-out which is not the same thing as “partial delusion.” The former suggests a loss of memory which the accused, on the available evidence, did not experience at all material times. This is borne out by Exhibit “A” and his oral evidence in court both of which described the events of 25/10/83 very vividly. (See I. Ojo v. The State (1973) 1 NMLR 447 at pp.450/451)”.

At the end the learned trial Judge came to the conclusion that the appellant’s story about his mental illness or madness was his determination and conscious effort to save his neck from the consequences of his own voluntary act. He therefore rejected the evidence as a lie, particularly as the evidence in court conflicted with his voluntary statement Exh. A. Thus the learned trial Judge found the appellant guilty as charged.

Appellant’s appeal to the Court of Appeal was dismissed. In the judgment of Salami, J.C.A. with which Uche-Omo and Ejiwunmi, JJ.C.A. concurred, learned Justices of the Court of Appeal noted in particular the conflict between the appellant’s statement (Exh.A) and his evidence in court and, on the findings, the appellant’s failure to prove his insanity.

The appellant has appealed further to this court. Based on the appellant’s grounds of appeal, original and further grounds, the following issues were framed by his counsel for determination in this appeal:

“(1) (i) Whether, upon a proper evaluation of the evidence, the learned Justices of the Court of Appeal were right to have upheld the learned trial Judge’s finding of inconsistency between the appellant’s “extra-judicial” statement (to the Police) and his subsequent oral testimony (in Court) (And should the answer to that question be in the negative):

(ii) Whether the adverse finding complained about in question 2(i) above was pre-judicial to the appellant’s right to a fair hearing, which has occasioned a miscarriage of justice against him thereby.

(2) Whether the passage of the judgment of this Honourable Court in Phillip Omogodo v. The State (1981) 5 S.C. p.5, at p.23, upon which the court below relied in dismissing the appellant’s appeal to them is in the nature of which therefore need not be followed in this appeal in determining the proper applicability of the rule in Regina v. Golder.

(3) Whether the Rule in Regina v. Golder on the effect in law of inconsistency between the sworn oral testimony (in Court) and the previous statement(s) made (before a trial), both given by the same person is applicable both to statement (sworn and unsworn) made by an “ordinary witness” for the prosecution, as well as to statements (sworn and unsworn) made by an accused person standing trial in his own defence:

(4) Whether the decisions of this Honourable Court in (i) Omogodo v. The State (1981) 5 S.C. p.5, (ii) Stephen v. The State (1986) 5 NWLR (Pt. 46) p.978; (iii) Oladejo v. The State (1987) 3 NWLR (Pt.61) p.419; (iv) Umani v. The State (1988) 1 NWLR (Pt.70) p.274; (v) Mbenu v. The Slate (1988) 3 NWLR (Pt. 84) p.615, and in all other cases which hold that the rule in R v. Golder is applicable to the inconsistent statements of an accused person standing trial deserve to be overruled, and/or to be adjudged as having been given “per incuriam”, and/or to be reviewed and explained.

(5) Whether, keeping only the admissible and relevant evidence on the question of insanity in view, both Courts below adequately, properly, and fairly directed themselves on the availability of the plea to the appellant in his defence.

(6) Whether the manner of conduct of the case in the court of trial, and its review by the Court of Appeal were unfairly prejudicial to the appellant, thereby occasioning a miscarriage of justice against him.”

Learned counsel for the appellant, in arguing the first issue submitted that the Court of Appeal was wrong to have upheld the learned trial Judge’s finding of inconsistency between the appellant’s evidence in court and his extra-judicial statement, Exh. A, in that they were not inconsistent. Learned counsel for the respondent, on the other hand, submitted that the two pieces of evidence were clearly inconsistent. So, the learned trial Judge was right to have so held and the learned Justices of the Court of Appeal were right to have confirmed the finding.

The part of the judgment of the court below which came under attack by learned counsel for the appellant was where the court held:

“The appellant’s case was rejected on the ground that the statement to the police, exhibit ‘A’, is inconsistent with his oral evidence in court. There was no explanation proffered for the inconsistency. In the statement which he wrote by himself four days after the incident he said he killed his wife with his cutlass. But in his oral evidence he laid the court that he did not know the time he did any harm to his wife. He admitted, however, under cross-examination that he told the police he used his own cutlass on his wife, Theresa. There is support for what the learned trial Judge did.”

Learned counsel submitted that the conclusion of inconsistency is not borne out by the evidence itself.

Now in Exh.A, which was the statement the appellant made to the police four days after the incident, he stated as follows:

“The name of my wife is Theresa Asanya she born two children for me. On 26/10/83 I from where we drink at Ajede around 11 O’clock in the night I think the thing did not happen by empty hand, because we have no quarrel before. Whether is medicine we fight but I did not know when I use cutlass to fight with her. The cutlass is my own she died by our fight. I kill my wife with cutlass in the house.”

But in the witness-box, he testified as follows:-

“I had no quarrel with my wife whatsoever, I did not know the time I did anything – any harm to my wife. I later knew at the police station, Akure, that she was already dead and that I was the one who killed her. There was no reason for me to kill her at all.”

There can be no doubt the two pieces of evidence are inconsistent in that:

(1) In Exh. A he stated that he fought with his wife whereas in court he testified that he had no quarrel with her at all.

(2) In Exh. A he stated that he killed her with his cutlass in his house, in his testimony he stated that he did not as much as know the time he did any harm to her and that it was only at the Police Station that he came to know that she was already dead.

(3) To make the matter worse, appellant’s landlord, P.W.1, testified that when he and P.W.2 managed to force their way into the appellant’s apartment, they met the appellant alone with his dead and bleeding wife in their apartment, and that when he asked the appellant why he killed his wife, appellant told him (P.W.1) that his wife denied him sex.

In spite of the above state of the facts, learned counsel for the appellant after making his own analysis of them and examining the meaning of “inconsistency” submitted that the statements were not inconsistent. What then is the meaning of “inconsistent” in relation to the law of evidence A number of definitions have been suggested. But the one I find most appropriate is that in black’s Law Dictionary (5th Edn.) p.6189. Citing a judicial opinion in Barry v. City of Forth Worth, Tex. Civ. App. 110 S.W. 2nd 95, 103, the learned author stated that two pieces of evidence are inconsistent when they are-

“Mutually repugnant or contradictory, contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other.”

In other words. two pieces of evidence are inconsistent when they are in essence mutually exclusive such that if one is true the other must be false because they are essentially contradictory. This is the sense in which the word has been understood in many decisions of this court. See ’97 Isaac Stephen v. The State (1986) 5 NWLR (Pt. 46) 978, p. 1000; R. v. Ukpong (1961) 1 All NLR 25; (1961) 1SCNLR 53, Onubogu & Anor. v. The State (1974) 9 S.C.1. Examining the evidence set out above from the background of this concept of inconsistency can it be doubted that it is inconsistent of the appellant to have stated in one breath that he did not as much as quarrel with his wife but in another that he fought with her; or that he killed her with his cutlass and in another that he did not as much as know the time he did any harm to her And he went ahead to give the reason why he killed her. I am therefore satisfied that the courts below were right when they held that the two pieces of evidence were inconsistent. As the appellant did not explain away the inconsistency, this should dispose of this appeal unless appellant’s counsel is able to show that the principle in R. v. Golder (1960) 1 WLR 1169 was wrongly applied by the courts below or establish any defence to the offence charged that could exculpate him from guilt.

Learned counsel to the appellant, however, went further to submit that even if the alleged consistency was rightly proved to exist, the Court of Appeal fell further into error in its statement as to what the consequences should be to the appellant’s case where their Lordships, per Salami, J.C.A., stated at p. 85 of the record:

“The learned trial Judge having properly rejected the evidence of the appellant because it conflicts with his statement to the police, the appellant was without evidence upon which to anchor his defence of insanity which the law enjoins him to prove on balance of probability. This finding of the trial court knocked the bottom out of the defence of the appellant. See R. v. Yaro Biu (1964) NMLR 45…”

In trying to ,how that the Court of Appeal was in error, learned counsel for the appellant conceded it that there are binding decisions of the Supreme Court which vindicate the above decision of the Court of Appeal that when a subsequent sworn testimony of an accused person conflicts with his previous extra-judicial statement to the police his subsequent testimony should be regarded as unreliable and his prior extra-judicial testimony is no evidence upon which the court act. In addition to Omogodo v. The State (1981) 5 S.C. 5, the following other cases were referred to, namely – Isaac Stephen v. The State (1986) 5 NWLR (Pt.46) 978, p. 1000; Oladejo v. The State (1987) 3 NWLR (Pt.61) 419, pp.427-428; Wasari Umani v. The State (1988) 1 NWLR (Pt. 70) 274 at p.283; Nathaniel Mbenu v. The State (1988) 3 NWLR (Pt. 84) 615 at p. 627.

But he also contended that there are also a number of equally authoritative decisions of the Supreme Court which go to show that such results of inconsistency between the two sets of evidence should be limited to the testimony of an ordinary witness as distinct from the testimony of a person standing trial who also testifies on his own behalf. Reference was made to the following nine cases – The Queen v. Ukpong (1961) All NLR 25, p.26, (1961) I SCNLR 53; Joshua v. The Queen (1964) 1 All NLR 1, 3-4; Agwu & 2 Ors. v. The State (1965) NMLR 18, 20; The State v. Dominic Okolo & 3 Ors. (1974) 2 S.C. 73, pp.80-81; Christopher Onubogu & Anor. v. The State (1974) 9 S.C. 1; Asuquo William v. The State (1975) 9-11 S.C.139, p.148; Boy Muka & 2 Ors. v. The State (1976) 9-10 S.C.305; Akanbi Enitan & 2 Ors. v. The State (1986) 3 NWLR (Pt. 30) 604, 611; Raphael Nwabueze v. The State (1988) 4 NWLR (Pt.86) 16, p.27.

He submitted that the correct view is to limit such a result of inconsistency between the prior extra-judicial statement and the testimony on oath to evidence of prosecution witnesses and not to extend it to evidence of “accused – witnesses.” On a calm view of the decision in Omogodo v. The State (supra) it will be seen that the statement in that case which was relied upon by the Court of Appeal was a mere obiter dictum, in that in the end the appellant was acquitted; in spite of all the discrepancies in his testimony the court still held they were not enough to establish his guilt. So, that case ought not be regarded as authority on the point and should therefore not have been relied upon. To buttress his argument, learned counsel submitted that the inconsistency rule as practiced in our criminal jurisprudence is germane and was designed to achieve the same objective as cross-examination to test the credibility of a witness. He then traced the rule to the Criminal Procedure Act of 1865 in England. In that Act, he submitted, the words “prisoner” and “defendant” refer to an “accused person” whereas the word “witness” refers to “an ordinary” witness for the prosecution. There was no question of any indiscriminate use of those words. Sections 198 and 208 of our Evidence Act from which the inconsistency rule was worked out should be viewed in the same con, he submitted.

According to him, there is a more compelling or persuasive reason why the inconsistency rule, the so-called rule in R. v. Golder, should be reconsidered, and reviewed. He submitted that a continued application of the rule to accused persons who have made confessional statements may lead to grave injustice. Besides, for a long time, since the decision in The Queen v. John Agagariga Itule (1961) All NLR 462; (1961) 2 SCNLR 183, the attitude of this Court has been that in the case of an accused person who, having made a confessional statement, subsequently testifies on oath in his own defence, his whole account of the incident must be considered by the court before arriving at its decision. What the courts below did amounted to ignoring the appellant’s case altogether. It is wrong. Brownson Etuk Udo v. The Queen (1964) 1 All NLR 21 at p.24. It amounts to not considering his defence at all, and is no trial.

He urged the court to over-rule the line of cases which treat an accused person who testifies in his own defence as just a witness, because it leads to injustice. This court has declared that it will not perpetuate injustice in the name of stare decisis, he submitted. He relied on – Bucknor-MacLean & Anor. v. Inlaks Ltd. (1980) 8-11 S.C.1 p.25; James G. Orubu v. N.E.C. & 13 Ors. (1988) 5 NWLR (Pt. 94) 323 p.356; U.B.A. v. Stahlbau G.M.B.H. (1988) 3 NWLR (Pt. 110) 374 p.406; Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250 pp274-275.

I wish to begin my consideration of this aspect of the appeal by restating the attitude of this court to the time-honoured principle of stare decisis. This court respects precedent, even though it is not a court bound by precedent. It is, as here as in many other parts of the Commonwealth, essential for the certainty of the law that it should generally follow its previous decisions. But, as a court of ultimate resort, it need not do so when the interest of justice dictates otherwise. So it will not hold itself hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. Nnamani, J.S.C., of blessed memory encapsulated the principle in James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 NWLR (Pt.94) 323 (also in (1988) 12 S.C.N.J. 254 at page 276) where he stated:

“I am afraid that this has not been the only considerations of this court in relation to its decisions. The question of the overruling of its decisions have been dealt with in numerous decisions which

were referred to by counsel they include: Bucknor-Maclean and Anor. v. Inlaks Limited (1980) 8-11 S.C.1; Surakatu v. Nigerian Housing Development Society Limited (1981) 4 S.C.28; Odi & Anor. v. Osafile & Anor. (1985) 1 S.C. 1; (1985) 1 NWLR (Pt. 1) 17; Oduola v. Coker (1981) 5 S.C.187, 230-231; Bronik Motors v. Wema Bank Ltd. (1983) 1 SCNLR 288; Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt. 35) 273, 323; Prince Yaya Adigun v. Attorney-General Oyo State (1987) 4 S.C. 272, 342-344; (1987) 2 NWLR (Pt. 56) 197. As I said, I am afraid that I do not agree with Mr. Jemide that what he stated have been the only considerations by this court. This court has always upheld the principle of stare decisis, and as was stated in Jones v. Secretary of State for Social Services, wishes to uphold the certainty of the law. In that connection, it does not make a habit of over-ruling its decisions without due consideration and haphazardly. But the court has, nevertheless, stated over and over again that where in a subsequent proceeding, an error is pointed out to it, it would not perpetuate such error. Idigbe, J.S.C. in Bucknor-Maclean’s case stated it thus at page 24.”

So in spite of the fact that the principle in Golder’s case (supra) has been ruling the waves in this country since 1961 and has been applied in numerous cases and that this court is more reluctant to jettison its previous decision which has been followed so often and for so long, this court would not hesitate to over-rule it if it was satisfied that it was manifestly wrong, or given per incuriam some relevant constitutional or statutory provision or had led to injustice. See Johnson v. Lawanson (1971) 1 NMLR 380.

On the above approach. my first observation is that the learned counsel for the appellant has not satisfied me that the way the inconsistency principle has in the past been applied to accused persons who, having made previous extra-judicial statements to the police, testified on oath in their own defence, has led to injustice. Indeed the court has always, in addition to considering the evidence as a whole, insisted on one important safeguard before invoking the principle of regarding the inconsistent evidence of the witness as unreliable and his previous statement as no evidence upon which the court can act. It has always required that the witness, be he for the prosecution or the defence or the accused person himself, be given the opportunity while in the witness-box, of explaining the inconsistency. In Christopher Onubogu v. The State (1974) 9 S.C. 1 – a case of inconsistency in the testimony of a witness for the prosecution and his previous statement to the police – this court, per Fatayi-Williams. J.S.C. (as he then was) stated:

“In our view where a witness, such as the complainant (P.W.4) in the case in hand has made a statement before trial which is inconsistent with the evidence he gives in court, the court, provided that no cogent reasons are given for the inconsistency, should regard his evidence as unreliable. x x x x x x x x x x x x x

We wish only to add that the learned trial Judge in the case in hand did not even cross-examine the complainant (P. W.4) as to why he had contradicted the written statement which he previously made to the police.” (Italics ours).

Also in the case of Saka Oladejo v. The State (1987) 3 NWLR (Pt.61) 419 the court had to consider not only the fact that the appellant had made two conflicting and inconsistent extra-judicial statements, tendered as Exhs. B and D of which Exh. B was inconsistent with his testimony on oath but consistent with the evidence of the prosecution witness. Also other evidence called by the prosecution was consistent with the appellant’s guilt, and he could not explain the bristling inconsistency between Exh. D and his oral testimony on the one hand and Exh.B (a confessional statement) on the other. This court applied the principle and held that the learned trial Judge was right to have rejected the inconsistent statement, Exh.D, and in its place rely on the evidence adduced by the prosecution which was consistent with the confessional statement, Exh.B. A similar situation has arisen in this case. It follows, from what I have been trying to show, that the courts have never been applying the inconsistency rule as a rule of thumb. They have always satisfied themselves that the witness, be he an accused or an ordinary witness, has had the opportunity of explaining away the inconsistency but has been unable to do so. So, its application has not occasioned a miscarriage of justice. Indeed when a witness has made a voluntary statement on oath, often when the matter in issue is fresh in his memory, and he comes into court-and decides, for reasons best known to him to chop and change his story, I cannot see why any reasonable tribunal should take him seriously, unless, of course, he is able to explain the inconsistency.

I must point out also that much as I admire the learned counsel for the appellant for the obvious industry and research which he put into the matter, I do not agree with him for two other reasons. In the first place his distinction between an accused person who was a witness and any other witness for the prosecution or the defence is not supported by previous decisions of this court. At least, none of the fourteen cases he cited in argument supports the distinction between the cases of inconsistency by witnesses qua witnesses and accused persons as witnesses. I am aware, however, that Uwaifo, J.C.A., in the case of Hyacinth Ibina v. The State (1989) 5 NWLR (Pt. 120) 238 at p.247-8 tried to make such a distinction where he stated:

“I must say, with due respect, that Saka Oladejo v. State (supra) represents a departure from the principle well laid down as to how to treat the statement and evidence of an accused. I have always understood the principle in R. v. Golder (supra) which was considered in the relevant cases, particularly Jizurumba v. The State (supra), to relate to the ordinary witness and not an accused who testifies. The case of an accused person is quite differently treated and the guiding principles are fully established and have been applied before and after Saka Oladejo’s case. In R. v. Itule (1961) All NLR 462, the appellant retracted his confessional statement as a result of which the trial Judge did not consider it, and convicted him on other evidence of murder. The statement contained some facts of provocation. The Federal Supreme Court held that to have failed to consider that evidence because the statement was excluded from consideration, amounted to a substantial miscarriage of justice. The appeal was allowed and a conviction for manslaughter was substituted.”

With greatest respects to the eminent and brilliant Justice of Appeal, it is my view that he missed the point in ltule’s Case (supra). In my respectful opinion, the decisive point in Itule’s Case (supra) was not the inconsistency between the oral and written statements of the appellant as such. Rather, it was the omission of the learned trial Judge to consider the defence of provocation duly raised in the written statement on the ground that the appellant had denied making the statement, evel)though the learned trial Judge found as a fact that the appellant made the statement which turned out to be confessional. Obviously the course taken by the learned trial Judge touched on at least two fundamental principles in our administration of criminal justice, namely that the court must consider every defence open to an accused on the evidence and that the whole account which a person gives of a transaction must be taken and considered as a whole. He could not therefore take the unfavourable parts of the appellant’s statement in the case and refuse to consider the defence open to him on the same statement. It appears clear to me that it is one thing for a judge, as in Itule’s Case, to say that he would not consider a fact; but quite a different thing, as in the principle under consideration, for him to say, that on question of what weight he should attach to the evidence, he should regard the testimony as unreliable and the statement as no evidence upon which he can act.

Learned counsel for the appellant was right when he submitted that the principle was obiter in the case of Philip Omogodo v. The State (1981) 5-7 S.C. 5 which was relied upon by the Court of Appeal. But, it is clearly a mere slip which does not affect the justice of the case in that it is a principle which, as learned counsel has conceded in his brief, bas been applied in many decisions of this court. This brings me to the second reason why I cannot agree with learned counsel’s submission. It is the historical underpinning upon which he hoisted his submission. He submitted that sections 4 and 5 of the Criminal Procedure Act of 1865 (in England), which in his submission is in pari material with sections 198 and 208 of the Evidence Act of Nigeria, support his contention. According to him, in that Act, an accused person is a party and is referred to as a “prisoner.” In my opinion. that submission looses sight of the fact that our own law contains express provisions making an accused person “a competent witness” for the defence: see section 159 of the Evidence Act. In point of fact section 159 of the Evidence Act was taken, verbatim, from section l(f) of the English Evidence Act of 1898. In view of section 159 of the Evidence Act, it is not competent for us to make a backward expedition to England in 1865 to find out the meaning of a witness in relation to an accused person. For the same reason there is no need to invoke the principle of interpretation mentioned in Asuquo Eyo Okon v. State (1988) 1 NWLR (Pt. 69) 172 at pp.181-182 and Ishmael Emelogu v. The State (1988) 2 NWLR (Pt. 78) 524 as we have been invited by learned counsel for the appellant to do. That section has not created any degrees or different classes of witnesses. So, once it is provided that an accused person shall be a competent witness, all the rules and safe-guards about witnesses shall apply to him mutatis mutandis, save, of course, where the law provides to the contrary.

The conclusion I have reached is therefore that there are no separate classes of witnesses and no difference in principle or practice as between an accused person who testifies as a witness and a witness, qua witness, with respect to the time honoured rule that where the court, after giving every necessary opportunity to the witness to explain or show the contrary and he fails to do, finds that the witness’s testimony is inconsistent with his previous extra-judicial statement, that it should treat the evidence in court as unreliable and the previous statement as no proof of the truth of the point in issue upon which the court could act. I have not been persuaded to hold that the law needs to be reviewed or that the several decided cases on the point need to be over-ruled.

Learned counsel for the appellant also submitted that the court below was in error to have upheld the decision of the learned trial Judge in that he did not give adequate consideration to the appellant’s defence of insanity. The portion of the judgment of the learned trial Judge which came in for attack here was where his Lordship stated:

“Accused set upon and killed his wife with a matchet for denying him sex for which he grudged her. Accused’s story about his mental illness or madness is his determined and conscious effort to save his neck from the consequences of his own voluntary acts. I reject that part of his evidence as it is a lie. As accused’s testimony in court on 3/12/86 on this point is inconsistent with his statement to the police on 30/10/83 both are unreliable and must be ignored. No reasons are given for the obvious inconsistency (see P. Omogodo v. The State (1981) 5 S.C.5 at p.23). The case for the prosecution is clearly made out. Accused had no abnormality of mind which impaired his mental responsibility. There was no evidence and no circumstances surrounding the killing of Theresa on 25/10/83 which are indicative of insanity.”

As I have stated that the courts below were right to have held that the extrajudicial statement and the appellant’s testimonies were inconsistent and to have treated his evidence as unreliable it becomes quite unnecessary to go further into this. For that completely knocks bottom out of the defence of insanity which was raised in his testimony in court. As that was part of the evidence which, as I have held, was rightly held to be unreliable, it follows that, as that was the only defence, apart from bare denial which was rightly rejected, the appellant had no defence to the charge. Indeed a similar situation arose in the case of Oladejo v. The State (supra). Nnamani, J.S.C. of blessed memory stated at p.428 thus:

“In such cases the trial court would be entitled to reject the inconsistent defences and rely on the evidence adduced by the prosecution.”

So it is in this case. It is true that a defence of insanity is sustainable on evidence which proves the issue on a balance of probability. See – Nwoye Igweze Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565 p.572. But even though the law accepts that standard of proof which is appropriate for civil cases, it still requires that to attain it, the accused person must call credible evidence. The learned Judge meticulously went into the evidence of the appellant’s conduct before during and after the dastardly act as well as the conflict between his testimony in court with his extra-judicial statement and came to the conclusion that his evidence on the defence was not worthy of belief. On the printed evidence. I do not see that he was wrong.

I may add that before the above stage in the judgment of the court of trial was reached, the learned Judge had found on the evidence before him, that the only defence witness was “a shameless liar and a worthless witness.” It follows that the case for the defence had no leg to stand upon. The court of trial was therefore right to have convicted the appellant, as charged, and the Court of Appeal right to have affirmed the decision and sentence. I have not been given any satisfactory reason why I should hold that there is anything in the conduct of the trial or the judgment of the trial court or its affirmation by the Court of Appeal that could be stated to be unfairly prejudicial to the defence or has occasioned a miscarriage of justice. I would therefore dismiss the appeal. The appeal fails and is dismissed. I affirm the judgment of the Court of Appeal which had confirmed the conviction of the appellant with the offence of murder of his wife. I confirm the sentence of death passed upon him.M. BELLO, C.J.N.: I have read in advance the judgment of my learned brother, Nnaemeka-Agu, J.S.C. and I adopt it. For the reasons stated therein, I also dismiss the appeal and affirm the decision of the Court of Appeal confirming the conviction of the Appellant for the murder of his wife.

A. O. OBASEKI, J.S.C.: The appellant was charged and convicted on an information charging him with the murder of his wife, Theresa Asanya and sentenced to death by the High Court. His appeal to the Court of Appeal against the decision of the High Court was unsuccessful. It was dismissed and the conviction and sentence confirmed. Still aggrieved, he has appealed to this Court on several grounds.

The appellant made oral and written confessional statement extra-judicially but at his trial, he was not as positive in the written statement on the E role played by him in the death of his wife, Theresa. His grounds of appeal raised many issues for determination in this Court. As formulated in his brief, they read:

“(1) whether, upon a proper evaluation of the evidence, the learned justices of the Court of Appeal were right to have upheld the learned trial judge’s finding of inconsistency between the appellant’s “extra-judicial” statement (to the police) and his subsequent oral testimony in court (and should the answer to that question be in the negative)

(2) whether the adverse finding complained about in question 2(1) above was prejudicial to the appellant’s right to a fair hearing, which has occasioned a miscarriage of justice against him thereby;

(3) whether the passage of the judgment of this Honourable Court in Phillip Omogodo v. The State (1981) 5-7 S.C. p. 5 at – 23, upon which the court below relied in dismissing the appellant’s appeal to them is in the nature of obiter dictum, which therefore need not be followed in this appeal in determining the proper applicability of the rule in Regina v. Golder.

(4) whether the Rule in Regina v. Golder on the effect in law of inconsistency between the sworn oral testimony (in court) and the previous statement(s) made (before a trial) both given by the same person is applicable both to statement (sworn and unsworn) made by an ordinary witness for the prosecution as well as to statements (sworn and unsworn) made by an accused person standing trial in his own defence;

(5) whether the decisions of this Honourable Court in (1) Omogodo v. The State (1981) 5-7 S.C. p.5; (ii) Stephen v. The State (1986) 5 NWLR (Pt. 46) p.978; (iii) Oladejo v. The State (1987) 3 NWLR (Pt. 61) p.419; (iv) Mbenu v. The State (1988) 3 NWLR (Pt. 84) p.615 and in all other cases which hold that the rule in Regina v. Golder is applicable to the inconsistent statements of an accused person standing trial deserve to be overruled and/or to be adjudged as having been given “per incuriam” and/or to be reviewed and explained.

(6) whether, keeping only the admissible and relevant evidence on the question of insanity in view both Courts below adequately, properly and fairly directed themselves on the availability of the plea to the appellant in his defence;

(7) whether the manner of the conduct of the case in the court of trial, and its review by the Court of Appeal were unfairly prejudicial to the appellant thereby occasioning a miscarriage of justice against him.”

These issues have been elaborately dealt with in the judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C., the draft of which I had the privilege of reading. I agree with all the opinions expressed therein on all the issues for determination and I will for all those reasons and hereby dismiss the appeal.

Previous decisions of this Court are binding on this Court until overruled or departed from. Departing from previous decisions is not a matter to be lightly embarked upon. The court can only be persuaded to depart from previous decisions if the previous decisions were proved wrong given per incuriam, and perpetuating injustice. See Odi v. Osafile (1985) 1 S.C. 1 (1985) 1 NWLR. (Part 1) 17; Bucknor-MacLean and Anor. v. Inlaks Ltd. (1980) 8-11 S.C. 1. This is because the court has a twin duty to see that (1) justice is founded on the correct view of the law and (2) justice is not slaughtered on incorrect interpretation and application of the law and equity. The pursuit of these ideals are to go hand-in-hand with the pursuit of the ideal of certainty in the law.

The appellant has failed to make out a case for departure from the previous decisions of this Court enumerated above under Issue No.5 in this appeal. Further, the facts of this case are too overwhelmingly incriminating to be obscured and buried by the technicalities of the law. A husband who kills his wife for denying him sex can have no refuge in our law.

I find no merit in the appeal and I hereby dismiss it and affirm the decision of the Court of Appeal.

SC.43/1990