Kazeem Popoola V. State (2013)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Ibadan Division wherein the Appellant appealed against the conviction and sentence on a charge of Rape contrary to Section 357 and punishable under Section 358 of the Criminal Code Law, Laws of Ogun State of Nigeria 1978.
The Appellant was arraigned before the trial Court on 15th day of December, 2005 for the offence of rape. He was alleged to have raped the Prosecutrix, Bukola Adebajo, a secondary school girl within the school farm on or about the 29th day of January 2004. The Appellant pleaded “not guilty” to the charge. The Prosecution called four witnesses and tendered two exhibits 1 – 1A, the Yoruba and English version of the Appellant’s statement and Exhibit 2, the Medical Report. The Appellant did not testify but called two witnesses who gave evidence on his behalf.
At the end of the trial the learned trial Judge, Lokulo-Sodipe, J. (as he then was) found the Appellant guilty and sentenced him to a term of five years imprisonment with hard labour.
Dissatisfied, the Appellant proceeded to the Court of Appeal which dismissed his appeal, hence this process before the Supreme Court on appeal.
The facts of this case from the evidence adduced by the Prosecution revealed that, on the 29th day of January, 2004 at about noon, the Prosecutrix (Bukola Adebajo) was urinating at the school farm of the Abeokuta Grammar School, Abeokuta, Ogun State when the Appellant accosted her and threatened to report her to the school authority on the ground that students had been barred from defecating in the school farm. The Prosecutrix (PW1) pleaded with him but the Appellant demanded for money which the Prosecutrix said she did not have and in the process of further threat of reporting the Prosecutrix, the Appellant grabbed PW1 and dragged her further into the farm, overpowering her, he raped her before fleeing the scene.
The incident was later reported to the School Vice-Principal who took PW1 to the hospital and reported the matter to the police. The Appellant could not be found for arrest but on the 24th day of July, 2004 at about 9.20am at a place called Mortuary Junction in Abeokuta, PW1 saw the Appellant and she called her mother by phone who came over and got the Appellant arrested. He made a confessional statement the same day and he was charged to Court.
At the hearing on the 2nd day of May, 2013, the learned Counsel for the Appellant, Adekunle Ojo adopted the brief of argument he settled and filed on 2/11/2011. In it were crafted three issues for determination which are stated thus:
- Whether the failure of the trial Court to comply with the provisions of Sections 223 and 224 of the Criminal Procedure Laws of Ogun State to determine the insanity of the Appellant at the trial prejudiced the trial of the Appellant.
- Whether the extra-judicial statement of the Appellant in view of his defence of insanity is a corroboration of the sexual offence of rape.
The learned Attorney-General for Ogun State, Mrs. Abimbola Akeredolu adopted the brief of argument of the Respondent settled by B. A. Adebayo Esq. which was filed on 13th June, 2012 and deemed filed on 29th November, 2012. Learned Counsel adopted the issues as raised by the Appellant which are good enough in the determination of the appeal.
ISSUES 1 & 2
These two issues raise the questions whether the trial Court’s failure to comply with the provisions of Section 223 and 224 of the Criminal Procedure Laws of Ogun State to determine the insanity of the Appellant prejudiced the trial of the Appellant. Also, whether the Appellant discharged the burden of proof in establishing that he was insane on the date the offence was allegedly committed.
Learned Counsel for the Appellant pointed out that at the trial, DW1 and DW2 stated that Appellant had mental sickness and had escaped from where he was undergoing treatment until he was detained and arraigned. That there was no contrary evidence on his having recovered and the learned trial judge had not subjected him to any investigation on the state of his mind at the material time. He cited Sections 223 and 224 of the Criminal Procedure Law.
Mr. Ojo of Counsel went on to contend that when there is a reason to suspect that the accused is of unsound mind and consequently incapable of making his defence, the inquiry will be held and the findings made part of the trial. He referred to Mboho v The State (1966) ALL NLR 63; Odo v State (1998) 1 NWLR (Pt.532) 24.
Learned Counsel for the Appellant contended that by the provisions of Section 28 of the Criminal Code of Ogun State, a person who sets up a defence of insanity is only enjoined to prove same on the balance of probability and or preponderance of evidence. He relied on Anthony Ejinima v The State (1991) 7 SC (Pt.III) 1; Energy v The State (1973) 6 SC 215 at 226; Peter v State (1997) 12 NWLR (pt.531) 45; Sanusi v The State (1984) 10 SC 166 at 167 – 169.
It was submitted for the Appellant that proof on the balance of probability means that the party who asserts in proof of the existence or non-existence of the fact he alleges shall adduce evidence which establishes a prima facie case of the fact and thereafter the burden shifts to the other party who disputes the claim. He cited Ogbu v Wokoma (2005) 7 SC (pt.II) 123; Onakpoya v Queen (1959) 4 FSC 150; Guobadia v State (2004) 6 NWLR (Pt.869) 380.
That it follows that by virtue of Section 136 of the Evidence Act, where an evidence adduced is unchallenged the Court is bound to accept that evidence and act on it. He referred to West African Shipping Agency (Nig.) Ltd v. Alhaji Musa Kalla (1978) 3 SC 21; Omoregbe v. Lawasi (1980) 3 – 4 SC 10, Lipede v. Sonetun (1995) 1 SCNJ 184.
For the Appellant, it was further stated that the onus where the balance is that of probability is that the onus of proof is not static but shifts from Complainant to Defendant and vice-versa depending on the case and the evidence offered by either party. He cited Nigerian Maritime Services Ltd v. Afolabi (1978) 2 SC 79; Onyekwe v The State (1988) 1 NWLR (pt.72) 565 at 579.
Responding, Mrs. Akeredolu of Counsel stated that it is clear from the provision of Section 222 of the Criminal Procedure Law, that an accused can only be said to be of unsound mind if by reason of some physical or mental condition he cannot follow the proceedings and so cannot make a defence. That it is after the Court has observed the condition of the accused person or his attention drawn to such fact for him to know whether the accused is fit to stand his trial. That it is after the observation that the procedure laid down in Sections 223 and 224 will be followed.
The learned Attorney-General for the Respondent said there was no reason on which the Court at trial could have seen signs of unsoundness of mind on the Accused/Appellant for which the application of Section 222 and the follow up Sections 223 and 224 would be made. Also of note, she said that at no time during the trial did Counsel for the Appellant call the attention of the Court to any mental impairment.
It was further submitted for the Respondent that in respect to Section 28 of the Criminal Code Law of Ogun State that the burden of proving insanity is on the defence and that is on the balance of probabilities and this was not done. She referred to Loke v The State (1985) 1 SC1; Egbe Kanu v The State (1980) 3-4 SC 1; Udofia v The State (1981) 11 – 12 SC 45.
That the Appellant merely raised the defence of insanity without discharging the onus placed on him by law. That the defence of insanity is not available to a person who denies committing an act that might give rise to the defence. She cited Okeke v The State (2003) 13 NSCQR 754.
The questions herein raised are, firstly if the failure of the trial Court to comply with the provisions of Sections 223 and 224 of the Criminal Procedure Laws of Ogun State to determine the insanity of the Appellant at the trial prejudice the trial of the Appellant. Secondly, if the Appellant was discharged on the preponderance of evidence, the burden placed on him to establish was that he was insane on the date the offence was allegedly committed.
To proceed I need to be reminded of the provisions of Section 222 of the Criminal Procedure Law of Ogun State which are thus:
“An accused person shall be deemed to be of unsound mind and consequently incapable of making his defence if by reason of some physical or mental condition he cannot follow the proceedings and so cannot make a proper defence.”
Sections 223 and 224 of the Criminal Procedure Laws of Ogun State enjoin the court to do the following when the issue of insanity is raised at the trial, viz:
a. When he observes that the accused behaves abnormally; or
b. When the fact of the mental instability of the accused is raised in the course of the trial; or
c. When the counsel to the accused request for the inquiry.
This court has handled the provisions of this statutory prescription in the case of Mboho v The State (1966) ALL NLR 63, thus:
“In our view, this subsection envisages that if the trial is to continue there ought to be a specific finding on an investigation under Section 223 of the Criminal Procedure Act if such an investigation was in fact made. This view is reinforced by the fact that if the trial had been before a judge and jury, it would have been necessary for the jury to make a finding on the facts given in the course of such investigation before the trial continued. Sections 223 and 224 of the Criminal Procedure Act have really not made any specific and/or detailed provisions for the procedure to be adopted by a Court in the course of such investigations but Section 363 of the Criminal Procedure Act provides as follows: “The procedure and practice for the time being in force of Her Majesty’s High Court of Justice in England in criminal trials shall apply to trials in the High Court in so far as this Act has not specifically made provision therefore.” In England, the issue whether an accused person is fit to plead or take his trial is an issue upon which a final decision must be given by the jury; and if a jury trying such an issue is unable to reach an agreement a fresh jury must be impaneled to decide the issue before trial should proceed or continue.”
Since we do not operate the jury system what in effect is expected is that the trial would be placed on hold while the inquiry into the soundness of mind of the accused is fully carried out so as to see if he cannot continue with his trial or not. The first stage of such an investigation is the invitation for medical examination. See Odo v. State (1998) 1 NWLR (Pt.532) 24.
It needs be said that the ad hoc procedure which this inquiry is cannot be held in vacuo or on its own without the conditions precedent to its process being present. Those conditions are in the main that the trial judge himself has observed certain abnormal behavior of the accused which convinces him that there may be a danger of the trial not being conducted with a stable accused fit to stand his trial or learned Counsel on behalf of the accused calling the Court’s attention to the mental impairment of the accused such as to put the trial in jeopardy if carried on. However, none of these two possible conditions arose and so making it futile for learned Counsel for the Appellant to raise and attempt to impugn the integrity of the trial on the ground that Sections 223 and 224 CPL had not been complied with.
Then comes up the matter of whether at the time the crime was committed the accused/appellant was mentally unsound for which it can be said that he was not responsible for his act.
In this regard Section 28 of the Criminal Code Law of Ogun State provides thus:
“A person is not criminally responsible for an act or omission if at the time of doing the act or omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing or the capacity to know that he ought not to do the act or make the omission.”
The kernel of the provision in Section 28 Criminal Code Law is that the onus of establishing the insanity of the Appellant at the material time of the offence is on no other than the Appellant himself. The burden of proof however is on the balance of probability. Placing this prescription within the con of the facts before us and that brings about showing that the offence was committed on 29/1/2004 and Appellant was arrested on 24/7/2004. No evidence was adduced by the defence as to the hospitalization of the Appellant at any point relevant or anytime at all. Nothing said about any medical consultation made to any doctor and what such had thrown up. None whatsoever. All that was proffered by the defence, through the evidence of DW1 and DW2 was that about June of 2003 before the incident the Appellant had been at a prayer house due to mental illness and getting normal absconded. No more no less. The Appellant did not testify for himself. Those circumstances placed alongside the extra-judicial statement of the Appellant, Exhibit “1A” which was comprehensive, clear, coherent and confessional which I shall quote verbatim hereunder, viz:
“….I am married with children and also I am a taxi driver. On the 25/1/2004 at about 11.30hrs or thereabout, was at one Celestial Church behind Abeokuta Grammar School where something told me to enter the nearby bush. When I went to the bush, there I met a student of Abeokuta Grammar School, who came there to deficate (sic: defecate). I held the girl and dragged her away from nearby people into the bush. I forced her, pulled her pant, she dragged with me, she pour me sand on my face, I beat her or assaulted her by given (sic: giving) fist blow which made (sic: made) her weak. I unlawfully had a carnal knowledge of her. I did not tear her pant, I don’t know what pushed me to the bush. I Kazeem Popoola of Itoku Abeokuta on the 29/1/2004 at the bush beside Abeokuta Grammar (sic: school) Idi-Aba Abeokuta unlawfully had a carnal knowledge of one female student of the school. The name of the student is yet unknown. Today 24/7/2004 at about 092 hrs. I was on my way to my boss house at Mortuary Junction where three boys on bike chased me and arrested me to their garage. While we were there the lady came and high jacked my shirt and started saying I am the one who raped her at Idi-Aba. They later took me down to Ibara Police Station. I am the one raped the girl.”
Taken together, it is easy to see that the attempt to show insanity of the Appellant at the time material even went to the advantage of the Prosecution in that by the time the Appellant left the prayer house he was of sound mind. His confessional statement gave details of his life and details of what transpired between him and the Prosecutrix and nowhere within the statement can it be said to have emanated from a person of unsound mind. So in effect how the Appellant is supposed to prove by the balance of probability or preponderance of evidence on his unstable mind at the time of the alleged offence, this Court cannot just see it and I dare say such evidence is not existing. Therefore, the trial Court and the Court of Appeal which agreed with it were right not to have taken that very weak clutching of straw in an attempt to raise insanity at the time of the offence as inadequate to raise a dust not to talk of being considered on the balance of probability. I place reliance on the cases:
Egbe Kanu v. The State (1980) 3- 4 SC 1;
Udofia v The State (1981) 11 – 12 SC 45:
Okeke v The State (2003) 13 NSCQR 754.
Clearly the two issues herein raised are resolved in favour of the Respondent.
This issue asks the question whether the extra-judicial statement of the Appellant in view of his defence of insanity is a corroboration of the sexual offence of rape.
In answer to the poser, learned Counsel for the Appellant said that in line with the position of the Supreme Court in Sambo v. The State (1993) 6 NWLR (pt.300) 399 and Edet Okon Iko v The State (2001) 7 SC (pt.II) 115 corroboration is required to support conviction for the offence of rape.
For the Appellant it was contended that whether the accused denies the offence of rape or not the offence must be corroborated by medical evidence. That the extra-judicial statement was not corroborative of the Appellant’s commission of the offence. That the offence of rape can only be ascertained by a medical evidence showing injury to the private part of the complainant or an injury to other parts of the woman’s body which may be occasioned in a struggle or eye witness or account.
Mr. Ojo of Counsel for the Appellant said in all practicality, it is only medical evidence that can prove an act of sexual intercourse and the offence of rape. That it therefore translates to the fact that it is compulsory that medical evidence of the examination of the victim confirming the allegation of forcible intercourse and the existence of recent semen in the vagina of the victim traced medically to accused must be conducted at the instance of the Prosecution. He said failure of the Prosecution to call the Medical Doctor who examined the Prosecutrix or Medical Doctor who can testify on a medical report is fatal to the case of the Prosecution as it fails to provide any corroboration to the evidence of the victim on penetration.
For the Appellant, it was further canvassed that the Appellant who allegedly made the confessional statement, Exhibit A1, was not a competent witness by reason of the insanity and so both the statement and plea were void in law. He relied on Makosa v The State (1969) 1 ALL NLR 363 at 366. That the evidence of the victim cannot be corroborated by the untested, unverified extra-judicial statement not made on oath.
Learned Counsel for the Respondent stated that the duty on the Prosecution is to establish the guilt of the accused beyond reasonable doubt. She cited Ogidi v State (2005) 1 SC 98. She submitted that in a case of rape, the evidence of the Prosecutrix must be corroborated but the nature of the corroboration depends on the peculiar facts of each case. That where the offence is denied by the accused, the Court is therefore enjoined to look for the corroboration from the medical report showing injury to the private part of the victim or other parts of her body. She referred to Iko v The State (2001) SCNJ 39.
The learned Attorney-General went on to say that in the case in hand, the Appellant did not deny committing the offence rather he claimed to be of unsound mind at the time material. That in the circumstance the non-calling of the Medical Doctor is not fatal and the confessional statement thereby offered the needed corroboration. That a plea of not guilty is not the same as retraction of an extra-judicial statement.
The grouse of the Appellant herein is that though conceded that a confessional statement of an accused can be corroboration of the evidence of a Prosecutrix in an allegation of rape, such a statement must have come from a sound mind not as Appellant contends here that the Appellant was mentally sick at the time material and at the time of making the statement. Also Learned Counsel for the Appellant insists that medical evidence of the rape is a necessity for the proof as required by law.
That posture for the mandatoriness of medical report would only be relevant if there was denial of the offence by the accused, which the circumstances prevailing having not supported. Also, it cannot be correct that once there is denial of the offence by an accused, no other corroborative evidence would suffice. This is because each case must be considered on its own peculiar facts and circumstances as it is not the law that once there is a denial without medical report, the Prosecution fails. What is required is that once denial is at play the Court is encouraged to look for a medical report showing injury to the private part of the Prosecutrix or any other part of her body. See Iko v The State (2001) SCNJ 39.
In the case in hand, where there is no medical report but the confessional statement of the Appellant is direct, cogent, positive and in fact lends strong support to the evidence of the Prosecutrix. It stands to reason therefore that the corroboration desired is in place and the requirement of the law complied with. The assertion by the Counsel for the Appellant that the confessional statement should not be such corroboration as according to him, the Appellant was insane at the time is a flying of a kite without purpose as that insanity posture has been effectively debunked and unsupported by any evidence worth its salt.
I shall recant the finding of the learned trial Judge at this point to at least lay to rest the shadow of insanity which Appellant is touting. That Court per Lokulo-Sodipe held thus:
“I have given serious consideration to the evidence before the Court and I am of the settled view that it will be perverse for me to hold that the accused person was as at 29/1/2004 suffering from any mental disease or infirmity given the fact that the accused person as at 21/12/2003 had sufficiently recovered from whatever it was that he was being(sic) for by DW2………. I do not only not find the accused person on the evidence of DW1 and DW2 to have established the defence of insanity he has set up at the trial of his case on balance of probability ….. But I also do not find him to have been suffering from any mental infirmity as at 24/7/2004 when he made his statement ….which statement was admitted without objection at the trial of this case.”
The Court of Appeal reviewing those findings found them unassailable within the records as I have no option doing herein. It is therefore my conclusion that this issue is also resolved in favour of the Respondent. I cannot fail to express my disappointment however on the lenient terms of imprisonment of five years dished by the trial High Court which not having been appealed against has to remain, sadly in a heinous crime such as this.
That said, this appeal lacks merit and is hereby dismissed. I affirm the judgment of the Court of Appeal, Ibadan Division which affirmed the decision, conviction and sentence of the trial High Court.