Mbanengen Shande V. The State (2004)

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AMIRU  SANUSI, J.C.A.

Mbanengen Shande, the appellant herein was arraigned before the High Court of Justice of Benue State sitting in Makurdi in suit No. MHC/5C/98 on a charge of culpable homicide punishable with death, contrary to section 221 of the Penal Code. She was tried, convicted and sentenced to death by the said court (hereinafter referred to as ‘the trial court’) Coram Kpojime, J. Dissatisfied with the decision of the trial court delivered on the 13th day of April, 1999, she appealed to this court.
The facts which gave rise to this appeal are summarized hereunder.

The appellant was the wife of the first prosecution witness, one Mr. Benjamin Iorumun Shande. On the 8th of May, 1992, the latter visited the deceased, one Mrumun Dera, his mistress in a village called Jato-Aka and slept there. On 9/5/97, he gave the deceased (his mistress) transport money on her request so that she could travel to his village Achia, where he used to stay with the appellant, his wife, in order to assist her (the appellant) in planting groundnut in the farm. The deceased was billed to travel to Achia village on 10/5/97 and join him (PW1) who was to leave for Achia on the 9/5/97.
The appellant’s husband (PW1) left for Achia on that same day and arrived there at around 8.00pm. Quite unexpectedly, the deceased did not wait until 10/5/97 but instead decided to travel to Achia on the same 9/5/97 and arrived there just a few hours after the appellant’s husband had arrived.

On being informed of the arrival of his mistress, the deceased, the PWI went out to receive her. The appellant also went out to welcome her. After exchanging pleasantries, the appellant prepared accommodation for the visitor, i.e., the deceased, who had earlier expressed her desire to sleep and had complained of feeling cold. Just few hours later, the PWI heard a sound of a cry from the hut where the deceased was led to sleep. On hearing such a cry, the PW1 and his brother (PW2) quickly rushed to the hut and met it locked. The PW2 forced the door open and on entering, they saw the body of the deceased set ablaze.

They tried to rescue her by tearing her clothing and brought her out of the room. They quickly arranged for a vehicle to convey her to the hospital as she suffered severe burns on her body. On asking the appellant what had happened later, the appellant refused to reply him but simply kept mute. The deceased later died in the hospital as a result of the severe burns she sustained.

At the trial court, the prosecution called four witnesses namely the husband of the appellant (PW1), his brother (PW2) and PWs 3 and 4 who were Police officers who investigated the case and tendered some exhibits which included the appellant’s confessional statement and medical report issued by the medical officer who examined the body of the deceased victim. The appellant, on the other hand, testified on her own defence but did not call any witness for the defence. In her defence, the appellant pleaded the defence of provocation which was rejected by the trial court. The trial Judge found her guilty as charged and convicted her and sentenced her to death. Aggrieved by the decision of the trial court, the appellant appealed to this court.

In compliance with the provisions of Order 6 rule 2 of the Court of Appeal Rules of 1981 (as amended), the appellant’s counsel filed brief of argument on behalf of the appellant on 15/4/2003.

Two issues for determination of the appeal were identified in the said brief of argument which are set out hereunder.
(1) Whether the learned trial Judge was right in law in holding that the appellant committed culpable homicide punishable with death, even though the prosecution had failed to discharge the onus placed upon it to prove the guilt of the appellant beyond reasonable doubt?.
(2) Whether the defence of provocation can avail the appellant to reduce the offence from murder to manslaughter, considering the circumstances of this case?.

As has been the practice, after being served with the appellant’s brief of argument, the respondent also filed a brief of argument on 28/5/2003. Therein, it also formulated two issues for the determination of the appeal which are also reproduced below:
(a) Whether the Judge was right in convicting the appellant of culpable homicide punishable with death under section 221 of the Penal Code based mainly on the appellant’s confessional statement, exhibit 5?
(b) The respondents adopts issue No.2 as formulated by the appellant.

The issues for determination of this appeal formulated by both parties are more or less the same. I shall therefore be guided by the issues identified by the appellant in treating this appeal, since they are more relevant to the issues at stake as raised. I also intend to consider the two issues serially.

On the first issue for determination, the appellant’s counsel submitted that the trial court was wrong in convicting the appellant for the offence of culpable homicide punishable with death under section 221 of the Penal Code as it did not properly evaluate the entire evidence adduced before it especially, the pieces of evidence the trial court regarded as corroborating the confessional statement made by the accused appellant. He referred to the testimony of the appellant in cross-examination showing that there was a matrimonial problem which was not controverted.

He cited for example the evidence of the appellant that the husband of the appellant (PW1) at one time left the matrimonial home and spent two months just after the death of their child. He also cited an occasion when the appellant fought with the deceased when the latter visited their matrimonial home as well as the fact that the deceased person was a woman friend of her husband (PW2) and had been visiting their matrimonial home. All these pieces of evidence, according to the learned counsel for the appellant, are enough to create some doubts in the mind of the trial court as to the guilt of the accused appellant.

The learned counsel for the appellant also submitted that by retracting her confession, the court ought to have considered such retraction and decide whether the said confession was consistent with other facts which have been ascertained and have been proved. See (Kareem v. Federal Republic of Nigeria (2002) 8 NWLR (Pt.770) 664, (2000) FWLR (Pt. 104). It was also submitted on behalf of the appellant that the evidence of PW2 did not implicate the accused/appellant when he testified that the appellant was a person incapable of committing the offence since the deceased, the appellant and the children were also rescued from the house.

Responding to the above submissions, the respondent’s counsel submitted that the court was right in convicting the appellant even on her confessional statement alone which according to him, was clearly voluntarily made by her. He argued that the confessional statement was direct, positive, unequivocal and true and all the evidence are compatible with the contents of the statement. He said a court can convict even on the confessional statement alone without more or even without corroboration.