The State Vs Babangida John (2013)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C. 

This is an appeal from the judgment of the Court of Appeal, Ilorin Division delivered on the 18th day of July, 2011. That court set aside the conviction and sentence of 14 years imprisonment with hard labour passed on the appellant by Saleeman J. of an Ilorin High Court and entered judgment acquitting and discharging the appellant.

The facts are these:

On the 18th day of June, 2007 the deceased, Memunatu Rasaki was on her way to her husband’s farm in Moro Local Government Area of Kwara State. She had a baby on her back and her young son was by her side. Suddenly the appellant approached her and repeatedly attacked her with a matchet. She had several cuts on her body and lost a lot of blood. Before the attack she gave the baby to her young son who ran off with his baby sister to the village. She died on the spot from a catalogue of appalling injuries. After the bloody massacre the appellant ran off and hid in the bush. He was later arrested in his house. On these facts the appellant was charged for the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code.

At trial, the state called three witnesses. The following were tendered and admitted as exhibits.

1. P1- Cutlass
2. P2-P5 (3 pictures of dead woman)
3. P6 – P7 (Medical Report, postmortem examination).
4. P8 – Confessional statement of acc / respondent.)

The appellant gave evidence in his defence but called no witness.

In a well considered judgment the learned trial judge in the concluding paragraph said:

“The prosecution has established the ingredients necessary in this homicide case. It has thus proved the case beyond reasonable doubt as required by Section 308 of the Evidence Act…. From the totality of evidence before the court, the accused person is found guilty of the offence of culpable homicide punishable with death. He is convicted of the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code.”

The respondent was not satisfied with the sentence passed on him. He lodged an appeal. It was heard by the Court of Appeal Ilorin Division.

In the penultimate paragraph the Court of Appeal said:

“In view of the above, I hereby over-rule the decision of the lower court and set aside, by that means the conviction and sentence as found in the judgment of the trial court dated 1st day of June 2010 as reflected on page 84 of the proceedings or conviction and sentence of 14 years imprisonment as argued by the respondent counsel in this appeal. The appellant is hereby discharged and acquitted.”

And in the final paragraph. The Court of Appeal directed as follows:

“Further the Nigerian Prison Authority is hereby directed to take him to a Government Psychiatrist Hospital for check-up and treatment before his final release.”

This appeal is against that judgment. Briefs of argument were filed and exchanged. The appellant’s brief was deemed filed on the 21st day of February 2013 while the respondent’s brief was also deemed filed on the 21st day of February 2013.

Learned counsel for the appellant formulated two issues for determination. They are:

1. Whether the lower court was right to have held that the defence of insanity avails the accused/respondent.
2. Whether the lower court was right to have held that the prosecution did not prove the essential ingredients of the offence of culpable homicide.

On his part learned counsel for the respondent also formulated two issues. They are:

1. Whether their lordships of the Court of Appeal Ilorin Judicial Division were wrong to have held that the trial court did not consider the defence of insanity, at the trial of the respondent herein.
2. Whether the appellant proved the ingredients of culpable homicide against the respondent at the trial court.

After considering the issues formulated by both sides, I am of the view that the issues formulated by the appellant best addressed the appellant’s grievance in this appeal. Those issues shall be considered.

At the hearing of the appeal on the 21st day of February 2013 learned counsel for the appellant, Mr. K. Ajibade, the Attorney-General of Kwara State adopted the appellant’s brief deemed filed on the 21st day of February 2013 and urged this court to allow the appeal.

Learned counsel for the respondent, Dr. A. Onigbinde adopted the respondent’s brief deemed filed on the 21st day of February 2013. He urged this court to dismiss the appeal and affirm the decision of the Court of Appeal that acquitted and discharged the appellant.

ISSUE 1

Whether the lower court was right to have held that the defence of insanity avails the accused/respondent.

Learned counsel for the appellant observed that from the totality of the evidence led before the trial court the defence of insanity cannot avail the respondent, contending that the Court of Appeal was wrong to conclude that the trial judge ought to have considered the defence of insanity raised in exhibit P8 before convicting the respondent. He submitted that there was no evidence of insanity or evidence of past history of insanity given on the respondents behalf prior to the date of the incident, contending that the contents of exhibits P8 is insufficient in law to conclude that the respondent is insane. Reliance was placed on

Oladele v. State (1993) 1 NWLR (Pt.269) p.294

Willie v. State (1968) NWLR p.213

He urged this court to resolve this issue in favour of the appellant.

Learned counsel for the respondent observed that the defence insanity was raised and disclosed on the confessional statement of the respondent, (exhibit p8) and so it was the duty of the trial court to hold that the respondent was not of sound mind and acquit and discharge him. Reliance was placed on

Ahmed v. State (2000) FWLR (Pt.34) p.438.

He argued that the trial court on its own ought to consider any defence that favours the accused person without the accused specifically raising same. Reliance was placed on

Nwankwoala v. State (2006) ALL FWLR (pt.339) p.801.

Contending that failure of the trial court to consider the defence of insanity has occasioned a miscarriage of justice.

He urged this court to hold that the Court of Appeal was correct to acquit and discharge the respondent on the fact that he was insane when he committed the offence.

The respondent, as accused person pleaded not guilty to the charge of culpable homicide contrary to section 221 of the Penal Code. Trial proceeded and his defence was Alibi. Aside from Alibi, he argued that the evidence against him was hearsay and that it was not safe to convict him solely on his confessional statement moreso as there was no nexus between the deceased and him. He never even remotely referred to his mental state or relied on the defence of insanity. The trial judge raised the issue of insanity and invited counsel to address him on it. Learned counsel for the respondent said he was not relying on the defence of insanity (see page 68 of the Record of Appeal). Insanity was considered for the first time by the Court of Appeal and reliance was placed solely on exhibit P8, the respondents confessional statement.

The well settled position of the law is that in a charge of Murder (homicide) after the court considers the defence raised by the accused person, the court should go the extra mile to consider other defence available to the accused person on the facts established in the trial court. Failure of the trial court to consider other defences that may be available to the accused person would not amount to miscarriage of justice. The Appeal Court would consider defences available to the accused person if such defences were not considered by the trial court. See Ojo v. State (1973) 11 SC. p.331

The Court of Appeal had this to say on the state of mind of the respondent.

“…However in this appeal, the plea of insanity is what the appellant is anchoring his defence upon so defers completely in essence from Sule’s case”

On page 43 of the Record of Appeal, the respondent entered a plea of not guilty and on page 67 of the Record of Appeal the learned trial judge raised the issue of the respondent’s state of mind suo motu and called on counsel to address him on it. This is what transpired.

State counsel: By position of the law, the onus is on the accused to raise the defence of insanity.

Accused counsel: We have not raised any defence of insanity. However, if the court feels in the interest of justice that the levy (sic) of sanity of the accused be tested or ascertain, we have no objection.

It is clear from the above the accused/respondent at no time in the trial court entered a plea of insanity. It was in the Court of Appeal that insanity was considered for the first time.

The Court of Appeal examined exhibit P8 and said:

“…it is necessary at this juncture to point out that the lower court never considered the defence in the statement of the appellant…”

After examining cases on insanity and exhibit P8 the Court of Appeal said:

“…I am of the candid view that as at the time the appellant committed the act he was not himself, he never ran away as he was arrested in the village, this is contrary to other cases where the accused will run away. If the lower court had considered this available defence she would not have come to that conclusion.”

With the above reasoning the Court of Appeal acquitted and discharged the respondent and ordered the Nigerian Prison Authority to take the respondent to a Government Psychatrist Hospital for check-up and treatment before his final release.

I will reproduce exhibit P.8, the respondent’s confessional statement made on 19/6/2007 relied on by the Court of Appeal to come to the conclusion that the defence of insanity is well established therein.

“…I know One Memunatu Rasaq, we are both living together at Atere Village via Rijoyi, I did not have any quarrel with her before. As I was coming from farm that one Tunde wife gave me to weed for her, I met Memunatu along the Road as she was going to her husband farm with one of his son and she backed the other small one. As I removed cutlass I cut her she quickly removed her daughter that is on her back and handed over her to the senior one. From there I started cutting her with my cutlass, she did not offended (sic) me before and nobody send me to go and kill her. I did not decide to have sex with her. She did not die immediately but I saw her struggling to death, then the son carried the junior sister and ran to the village and myself ran away and hide myself in the bush. The vigilante people did not arrest me in the bush, I was arrested in the village….

The cutlass that they brought to the Police Station is the one that I used to kill the woman. As I was matcheting her she was shouting but I did not live her. It is after I have done the crime I came to realize that what I have done is bad. I cannot say anything because I know that anybody that killed person himself will be killed… I have never killed anybody before yesterday 18/6/2007 was the first time…”

What the Court of Appeal did was to examine the confessional statement of the respondent, (exhibit p.8). Not being able to comprehend the reason for the vicious attack on the deceased by the respondent, concluded that the respondent must have been insane. Is this the correct position of the law

The position of the law is that every person is presumed to be sane until the contrary is proved. See (section 27 of the Criminal Code).

By virtue of Section 51 of the Penal Code (section 28 of the Criminal Code):

Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”

The burden of proof of insanity lies on the accused person and that burden is discharged on the balance of probabilities as in civil cases. See

Queen v. Yaro Biu 1964 NNLR p.45

Idowu v. State 1972 SC p.10

Emeryi v. State 1973 3 SC p.215

Arisa v. State 1988 3 NWLR pt.83 p.386

He must show that the evidence he relies on sufficiently proves insanity.

To satisfy the court that the defence of insanity can be sustained, the accused person must show that at the time of committing the offence he was suffering from mental disease which affected his will and ability to control his action. The respondent can only be found not guilty of culpable homicide by reason of insanity if and only if he is able to establish the defence of insanity under section 51 of the Penal Code. Put in another way the defence must prove that:

(a) at the time the offence was committed the accused was suffering from mental disease or natural mental infirmity, and

(b) as a result of the accused person’s state of mind he was doing, or control his actions or to appreciate the gravity of his action.

There was not even the remotest attempt by the respondent to establish the defence of insanity. In fact learned counsel for the respondent made it abundantly clear that insanity was not his defence when he said.

“We have not raised any defence of insanity (see page 68) of the Record of Appeal).

In view of the above the Court of Appeal fell into a painful error when in the absence of any evidence whatsoever it proceeded to sustain the defence of insanity and acquit and discharge the respondent. The question whether the defence amounts to one of insanity is a question of law to be decided by the judge on the basis of medical evidence. That is to say the accused person must show that he was insane within the meaning of section 51 of the Penal Code.

The Court of Appeal fell into grave error when it inferred (wrongly) after examining exhibit P8 that the respondent was insane because there was insane because there was absence of evidence of motive for the Murder. On no account should insanity be inferred on such reasoning. Insanity is established by compelling medical evidence produced by the accused person. It is not the business of the court to go on a voyage looking for motive. This is so because the absence of motive is not enough. The onus is not discharged by the respondent denying his own actions or/and claiming that he did not know what came over him when he killed Memmunatu Rasaq. Rather the onus on the accused respondent is discharged by credible evidence which was never produced in court. The defence of insanity ought to and must be rejected since no evidence of previous abnormality was given. See

Origbo v. State (1972) 11 SC p.133

Ughiakha v. State (1984) 2 SC p.1

The finding by the Court of Appeal that the defence of insanity was raised and disclosed on the confessional statement was wrong. The Court of Appeal was wrong to have held that the defence of insanity avails the accused/respondent.

ISSUE 2

Whether the lower court was right to have held that the prosecution did not prove the essential ingredients of the offence of culpable homicide.

Learned counsel for the appellant submitted that the prosecution (appellant) established the essential ingredients of the offence of culpable homicide pursuant to Section 221 of the Penal Code, contending that the act of the respondent was intentional with the knowledge that death or bodily harm was its probable consequence. Reliance was placed on

Sule v. State (2009) 6 – 7 NMLR p.40

Mufutau Bakare v. State (1987) 3 SC p.1

Concluding, he submitted that the appellant proved the case beyond reasonable doubt. He urged this court to allow the appeal.

Responding, learned counsel for the respondent argued that at the material time when the deceased lost her life, the respondent lacked the capacity to have the required guilty knowledge or murderous intention, due to his being unable to appreciate what he was doing, contending that the third ingredient of murder is lacking. Reliance was placed on

Alabi v. State (1993) 7 NWLR (Pt.307) p.511

Shehu v. State (2010) 4 SCM p.180

He further argued that the third ingredient was not satisfactorily proved and so the case was not proved beyond reasonable doubt, contending that the Court of Appeal was justified to conclude that the trial court did not afford the respondent the defence of insanity. He urged this court to dismiss the appeal and affirm the judgment of the Court of Appeal.

For the prosecution to succeed in a charge of culpable homicide under section 221 of the Penal Code the following must be proved beyond reasonable doubt:

(i) that the person the accused person is charged of killing died.

(ii) that the deceased died as a result of an act by the accused person.

(iii) that the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence.

Both sides in this appeal agree that (i) and (ii) above were proved beyond reasonable doubt. learned counsel for the respondent agrees with the Court of Appeal that (iii) was not proved beyond reasonable doubt. In acquitting and discharging the respondent the Court of Appeal had this to say:

“…Back to the ingredients, it is clear from the record that there was the death of a human being and it is clear that the deceased died as a result of matchet cut from the appellant, but the bone of contentions is was the appellant that macheted the deceased to death sane or insane as of the time of his action

The Court of Appeal answered its question when it said:

“..I am of the candid view that as at the time the appellant committed the act, he was not himself, he never ran away as he was arrested in the village…”

The reasoning of the Court of Appeal was that at the time, the respondent hacked Memunatu Rasaq to death he was suffering from mental disease, and the position of the law is that the respondent is exempted from criminal responsibility in view of section 51 of the Penal Code.

Earlier on in this judgment I made it abundantly clear that the respondent was not insane, simply because there was not a shred of evidence put forward by this counsel to support the said defence. I further highlighted the fact that his counsel said that he would not relying on the defence of insanity (see page 68 of the Record of Appeal). Furthermore what the Court of Appeal did was to infer that the respondent was insane simply because the court was unable to identity motive, oblivious of the fact that insanity is not established by inference but by compelling evidence which includes but not restricted to a Medical Report. In view of these grave lapses and wrong application of the law on insanity ingredient (iii) is proved beyond reasonable doubt as the provision of section 51 of the Penal Code does not avail the respondent.

Once all the ingredients of an offence, have been proved by the prosecution to the satisfaction of the court, the charge is said to have been proved beyond reasonable doubt and the guilt of the accused person is pronounced by the learned trial judge. Indeed section 138(1) of the Evidence Act requires crimes to be proved beyond reasonable doubt. In Miller v. Minister of Pensions (1947) 2 ALL ER p.372 Lord Denning MR, said that:

Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted to fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as leaves only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice.”

See also Lori v. State 1980 8 – 11 SC p.81.

Memunatu Rasaq died after being dealt repeated matchet cuts by the respondent and at the time the respondent did the heinous act he was of sound mind. In view of this finding the ingredients to prove culpable homicide under section 221 of the Penal Code were proved beyond reasonable doubt. The trial court was right in its conclusion while the Court of Appeal was wrong.

I must observe that in a charge of culpable homicide, after the trial judge considers the defences put forward by the defence counsel, the judge should proceed to consider only defences not considered by the defence and which are available on the facts established in the trial court. The facts established at trial is one of cold blooded murder for reasons best known to the respondent, moreso as learned counsel for the respondent at no time intended to rely on the defence of insanity even when prompted by the learned trial judge.

The respondent inflicted several matchet cuts on the body of Memunatu Rasaq, (deceased) with a matchet. The postmortem report and postmortem examination, exhibits P6 – P7 confirms this fact. She bled to death. The matchet used to inflict the injuries which led to instant death is a lethal weapon. The settled position of the law is that a man is presumed to intend the natural consequences of his act. Where, as in this case the respondent caused Memunatu Rasaq (deceased) serious body injuries from which she died on the spot, he is presumed to have intended to kill her and he is guilty of culpable homicide irrespective of this intentions. Whether death was the probable or only a likely consequence of the act is a question of fact. The learned trial judge was correct when he found the respondent guilty of culpable homicide.

Before I conclude I must observe that the Record of Appeal was badly prepared. A Record of Appeal is a very important document that the appeal court relies on when hearing an appeal. The courts are bound by the Record of Appeal and so all proceedings relevant for the appeal as they occurred must be reproduced in the Record of Appeal. A proper table of contents must contain all that is in the Record of Appeal with correct pages reflected. In this Record of Appeal the judgment of the trial court was from page 70 to 84 while the allocutus is before the judgment on pages 68 to 69. It is elementary that allocutus comes after the finding of guilt and not before the judgment is read. The importance of this observation can be seen page 84 where the learned trial judge said:

From the totality of evidence before the court, the accused person is found guilty of the offence of culpable homicide punishable with death. He is convicted of the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code.”

According to the above the respondent was sentenced to death. But turning to page 69 of the Record of Appeal one sees that the respondent was sentenced to 14 years imprisonment with hard labour after the learned trial judge listened to a moving allocutus. Once again Registrars or counsel who have the responsibility to prepare Record of Appeal should ensure that proceedings are collated with care to reflect the sequence in which they occurred. They must be legible and properly paged. That sadly was not the case under reference.

I now turn to the sentence passed by the learned trial judge. The judgment of the trial court is from page 70 to 84 of the Record of Appeal. The concluding paragraph of the judgment reads:

“The prosecution has established the ingredients necessary in this homicide case. It has thus proved the case beyond reasonable doubt as required by section 308 EA. See the case of State v. Azeez 2008 35NSCQR p. 426. From the totality of evidence before the court, the accused person is found guilty of the offence of culpable homicide punishable with death. He is convicted of the offence of culpable homicide punishable with death contrary to section 221 of the penal code.”

Page 69 of the Record of Appeal contains allocutus proceedings. After the learned trial judge listened to counsel, his lordship said:

“The Court will temper justice with mercy hoping fervently that the convict will embrace the golden opportunity and be a complete changed being and even a professional in any of the trainings available in prison, the convict Babangida John is sentenced to 14 years imprisonment with hard labour”.

In the judgment the learned trial judge found the respondent guilty of the offence of culpable homicide punishable with death. After listening to allocutus the learned trial judge sentenced the accused person/respondent to 14 years hard labour.

The questions to be answered are:

1. What is the sentence to pronounced when an accused person is found guilty of culpable homicide contrary to section 221 of the Penal Code.
2. Does a trial judge have discretion or jurisdiction to reduce a sentence under section 221 of the Penal Code.

Section 221 of the Penal Code states:

“221. Except in the circumstances mentioned in section 222 culpable homicide shall be punished with death –

(a) If the act by which the death is caused is done with the intention of causing death; or

(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.”

Section 222 of the Penal Code reads:

“222(1) Culpable homicide is not punishable with death if the offence whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

(2) Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.

(3) Culpable homicide is not punishable with death if the offender, being a public servant action for the advancement of public justice or being a person aiding a public servant so acting exceeds the powers given to him by law and causes death by doing an act which he in good faith believes to be lawful and necessary for the due discharge of his duty as such public servant or for assisting such public servant in the due discharge is such duty and without ill will towards the person whose death is caused.

(4) Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel and unusual manner.

(5) Culpable homicide is not punishable with death when the person whose death is caused being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

(6) Culpable homicide is not punishable with death where a woman intentionally causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the children or by reason of the effect of lactation consequent upon the birth of the child.

(7) Culpable homicide is not punishable with death when a person causes the death of another by doing any rash or negligent act.

None of the circumstances in subsections (1) to (7) of section 222 could avail the respondent and so the learned trial judge found him guilty of culpable homicide under section 221 of the Penal Code. Once a judge finds an accused person guilty of culpable homicide under section 221 of the Penal Code, the only sentence he can pronounce is death. A judge has no jurisdiction to listen to allocutus and no discretion to reduce death sentence to a term of years once the accused person has been found guilty under section 221 of the Penal Code. The sentence of 14 years imprisonment after finding the accused/respondent guilty of culpable homicide contrary to section 221 of the Penal Code was wrong, it is a material irregularity in the proceedings of the trial court and this court could remedy it so that substantial justice might be done. The correct judgment of the trial court is that the respondent is/was sentenced to death.

In conclusion this appeal has merit. The judgment of the Court of Appeal is hereby set aside and the judgment of the High Court in Suit No.KWS/4C/2009 delivered on the 1st day of June, 2010 by Saleeman, J. convicting the respondent of culpable homicide punishable with death under section 221 of the Penal Code and sentence of death are hereby restored.

---

SC.316/2011