Juliana Ode V. The State (1974)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
This is an appeal against the conviction of the appellant for the murder of her newly born baby by Adewuyi, J., at the High Court Makurdi, contrary to section 221 of the Penal Code.
The prosecution case was that the accused was at the material time living with some other tenants in a house at Wadata, Makurdi. On October 27, 1973, some women tenants, who were sitting outside the house, heard the cry of a child and one of them went inside to check if it was her sleeping child but found that this was not the case.
The women then went to knock on the door of the bathroom from which the child’s cry was coming, but the door was not opened to them by the person inside. They, however, continued to hear the crying child being knocked against a”pan and being beaten until the crying stopped. Later, the accused emerged from the bathroom with a pan bowl in her hand which she took into her room.
One James Okpe, a Military Policeman, had the incident reported to him by the women, including his wife Alice, on his return to the house about 8 p.m. the same day. When he went to the accused and questioned her about what had happened in the compound on that day, the accused denied the report that she had been delivered of a child in the bathroom.
Okpe then went to the bathroom and saw blood. Okpe again asked the accused who then replied that she had been menstruating for three “days and nothing more. When one Augustine Adoga (P.W.2) returned to the compound later. Okpe”reported the matter to him, and both of them went to the “accused whom they found lying at her door. As the accused continued to deny the story about the delivery of a child, both of them demanded to search her room. She took them-in and, after bringing out certain boxes, a basin full of blood and containing the corpse of a child wrapped in her cloth was found. It was then, that the accused agreed she had given birth to the child and that she killed it because she did not want to lose her job as a nurse in the General Hospital, Adoga was then sent to bring in the Police who came and took away the accused with the dead child to the Police Station.
In her own story, Alice, the wife of P. W.1 (James Okpe) stated that when the accused emerged from the bathroom, she challenged them about the story of someone delivering a child in the bathroom and later after putting some water into the pan, the accused went back into the bathroom and locked the door again from the inside. The third of the three women did not give evidence because her whereabouts could not be traced.
In her defence, the accused adopted the two statements she made to the Police (Exs. 1 and 3). In Ex. 3, she stated that she was born on June 19,1957, and that she never told James Okpe (P.W.1) that she was delivered of a child and had killed it. In Ex. 1, however, the accused admitted that she was delivered of the child at Wadata Ward, that the child did not cry, that she therefore put the child inside the room, and that she later told Okpe that she had been delivered of a child in the bathroom but that the child died. The father of the accused gave evidence that she was born on June 17, 1957.
Counsel for the defence submitted that the whole prosecution evidence amounted to no more than mere suspicion of the accused, and further said that the prosecution case rested on the alleged confession to James Okpe (P.W.1). Counsel submitted that there was no such confession made by the accused and that, if at all such confession was made, it was not voluntary, because James Okpe to whom it was allegedly made was in the position of someone in authority over the accused at the relevant time: Queen v. Viabong (1961) N.N.L.R..47; Queen v. Kwaghbo (1962) N.N.L.R. 4. The last important submission of the defence was that nobody had identified the corpse of the deceased baby child to the doctor who conducted the post mortem, but who did not mention in his report the name of the Police Constable who identified the deceased to him.
It was counsel’s submission that, considering the date of the receipt of the corpse to be October 27,1973 and the doctor’s examination was’ conducted ‘on October 30, 1973, there was every likelihood of the corpse having been mixed in the meantime with other child Corpses, thus making it relatively certain that the corpse on which the medical doctor performed his post mortem. was in fact that of the child allegedly killed by the accused. The alleged trial judge accordingly convicted the accused of the murder of the child; It was against this conviction that the present appeal has been brought from the fellow of our ground:
“1. The judge erred in law in holding that James Okpe, an Idoma elder and Military Policeman, was not a man in authority over the appellant.
- The judge erred in law, in holding that the purported confession of the appellant to James Okpe was induced contrary to section 28 of the Evidence Law.
- The judge erred in holding that the deceased was sufficiently identified to the doctor.
- The decision is unwarranted unreasonable and cannot be supported having regard to the evidence.”
Mr. Anyebe, learned counsel for the appellant, submitted that the statement made to James Okpe was not voluntary because the latter was a person in authority, in that a Military Policemen need not purport to have authority over an accused person; this is because section 4(a) of the Armed Forces and Police (Special Powers) Decree 1967 provides in effect that every member of the armed forces shall have the powers and immunities of a Police Officer. It was his submission that, before the appellant made the statement to Okpe, the latter did not caution her, and that there is no record that the Judges’ Rules had been followed: See Madu Fatumani v. R. (1950) 13 W.A.C.A. 39. Learned counsel submitted that the relevant question to consider in this connection is that when in the course of investigating a crime, a Police Officer has made up his mind to charge an accused person, as in the instant case, caution must be administered before a statement is taken from the accused person. In this connection it is relevant to refer to the following provision of section 28 of the Evidence Act.
“A confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the court to have been caused by an inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the coon, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.”
It seems to us reasonable to suppose that James Okpe, to whom everybody would appear to be deferring and who was regarded with some measure of awe as a kind of paterfamilias of the compound, was a person in authority over the appellant for the purposes of this section.
We also think that some of the learned trial judge’s views were in the nature of speculations. We consider, for instance, that neither the sound of beating and banging of the child said to have been heard by the three women nor the medical evidence could be said to show convincingly who killed the child. There could have been another person present with her in the bathroom at the relevant time, and neither: the woman nor anyone else looked into the bathroom to ascertain whether she was alone there with the child. There is clear evidence that someone variously described as ‘brother’ and ‘relative’ was going in and out with the accused during the time of the investigation’ by the police. The learned trial judge certainly speculated when he said that the child was smothered to death possibly by using both hands to exclude air from the throat”; the learned trial judge also held as follows: “In his oral evidence Dr. Silwance has told the court that the child was born alive and what the accused wants this court to believe that the child was born dead is untrue. I hold that the child by the deliberate act of the accused” Now, it is only right for us to point out that nowhere in the record have we found that the appellant ever claimed that the child was born dead, and we are not at all certain that, upon the available evidence, the learned trial judge could have been so categorical that “the child died by the deliberate act of the accused”. Again, we note that two Policemen gave evidence at the trial: one was Iyorsuwe Agayo (P.W.4) and the other, Anongo Aju (P.W.6). When therefore, the doctor inserted “P.C.” as the person who in Ex. 2 identified the corpse of the child to him, one must doubt the learned trial judge’s conclusions that “it was the child born to the accused that was examined by the doctor on 30/10/73”. The relevant question is :Which of the two Constables did the identification We may also doubt whether it was conclusively established that it was the child brought from under the bed of the appellant that was in fact examined by the doctor four days later.
It seems to us strange that the learned trial judge should have continued dealing with the appellant as an accused person in terms of section 221 of the Penal Code of the Northern States after he had made the following finding:
“In Ex. 6 the medical officer put the age as 17 years. I quite appreciate the accused and the father have good reason to reduce the age but in spite of any observations that the age could not be less than 20 years I am bound to accept the age given by the expert which tallies with that of the father and. the accused. The present age will be accepted as 17 years. Thus if this were true, at the time of committing this offence, the age was only 16 years.”
The learned trial judge was clearly in error in not treating the appellant thereafter as a young person of 16 at the time of the commission of the alleged offence. Rather, he proceeded to hold that the local General Hospital should not have employed the appellant as a Ward Attendant since she was under 18 years and that such employment was contrary to the Labour Code Act. The learned trial judge even complained that the accused had an ulterior motive in not going to the maternity ward when she was under labour, and that she would not even give birth in her personal room but instead went to the bathroom to deliver her baby, and, in the very next sentence, he stated: “I have no doubt that the accused deliberately killed the new born male child.” We need say no more than; that the first two complaints of the learned trial judge are clearly irrelevant to the subject matter of the charge which he was required to try and the conclusion was an obvious non-sequitur. We also think that the learned trial judge was in error when he completely ignored the state intact of defence counsel who referred him to section 11 (2) of the Children and Young Persons Law, Cap. 21 of the Laws of Northern States of Nigeria, 1963 regarding the alternatives for dealing with an offender who is a young person. We are of the view that he should have stopped to consider the point for whatever it is worth.
Mr. Abdullahi, learned counsel for the respondent began his reply by maintaining that there was no evidence of any influence employed by James Okpe (P.W.1) before the appellant made the statement When, however, we asked him whether James Okpe as a Military Policeman had not somehow over-stepped his bounds by himself undertaking to call in Civil Police, learned counsel agreed that it is possible to take that view. This is so because, if James Okpe were to be regarded merely as a private citizen until the civilian police arrived, he would not have any legal right to conduct the search which he did; on the other hand, if he were to be regarded as a Police Officer in terms of section 4(a) of the Armed Forces and Police (Special Powers) Decree 1967, he should have administered a caution before receiving any statement from the appellant. The learned Acting Solicitor-General, as counsel for the respondent, finally drew our attention to section 235 of the Penal Code which provides in certain circumstances for imprisonment or a fine or both. We do not, however, agree that this section applies in the circumstances of this particular case. Learned counsel agreed with us that the learned trial judge should not have pronounced the appellant guilty of the charge, nor should he have sentenced her as he did, in view of the fact that he had found her to be under 17 years of age at the time the alleged offence was committed.
We, therefore, think that, since there was no definite evidence that it was the appellant alone that killed the child in the bathroom or even indeed in her sleeping room, it would be unsafe to convict her of the killing of the child. We also think that, even assuming that she was the lone killer of the child, her non-age would seem to recommend her for a probation and/or a conditional discharge. If we exclude the statement made to James Okpe (P.W.1), all material evidence showing what she might have done with the child during the relevant period will disappear. As we have held above, the alleged statement to Okpe is inadmissible on the ground that it was not voluntarily made after due caution. The second statement to the Police as well as her evidence in court did not at any time admit her liability for the offence charged.
We think it necessary to draw attention to the concluding remarks of Dr.Silwance (P.W.7), when under cross-examination:
“Lactation means breast feeding. Lactation produces emotions on mothers, can make them lose control of themselves. Even at labour mental changes can happen.”
It is common knowledge that a woman, during and around the period of labour normally loses all her self-control sometimes to the extent that she does not know what she is doing. Even if she were to be assumed to have killed the child within a few hours of birth, she would nevertheless have been entitled to plead it in defence. Considering her tender age and the fact that there was no parent or relative around to offer advice and guidance we think that her case would even then have deserved pity rather than condemnation.
In the result, we accordingly set aside the conviction and sentence imposed upon the appellant by Adewuyi, J., in the High Court, Makurdi, on June 27, 1974, in Suit No. MDI17C11974. We therefore acquitted and discharged the appellant.
Other Citation: (1974) LCN/1845(SC)