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Home » Nigerian Cases » Supreme Court » Yusuf Saidu Danbaba V. The State (2018) LLJR-SC

Yusuf Saidu Danbaba V. The State (2018) LLJR-SC

Yusuf Saidu Danbaba V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Sokoto Divison; Coram: Paul Adamu Galinje, JCA (as he then was);

Tunde O. Awotoye, JCA and M. L. Shuaib, JCA, delivered on the 6th day of November, 2014 in appeal No.CA/S/64c/2012. In the said judgment, the Court of Appeal, (hereinafter referred to as “Court below”) had affirmed the decision of the Sokoto High Court, sitting in Sokoto, Coram: A.M.. Lamido, J. (herein after referred to as the “trial Court”) wherein the appellant and other co-accused were discharged and acquitted of the offence of conspiracy to commit culpable homicide but convicted and sentenced the appellant for the offence of culpable homicide punishable with death.

The gist of the case goes thus: The appellant claimed to be a muslim of the Shiite sect who used to go to a place called Marka, in Takakume village, Goronyo Local Government Area of Sokoto State where Shia muslims usually preach.

On 9th February, 2008 the appellant had observed the congregational Ishai (evening) prayer, led by the deceased, at the Takakume village mosque,

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Takakume. The Imam (deceased) was said to be of Kadiriyya sect. After the said evening prayer, the deceased left the mosque and sat in front of one Abdullahi’s Chemist shop. There, the appellant, who claimed to be in company of one Isha Gajere, attacked the Imam with cutlass and left him unconscious in the pool of his blood.

After seeing the deceased fell down, the appellant ran to his house with his blood soaked cutlass, hid it somewhere in the house and ran away from the village. He was later arrested when on the third night he had sneaked into the village.

The appellant was later arraigned before the trial Court, along with other persons charged with conspiracy to commit culpable homicide and homicide punishable with death, contrary to Sections 97 and 221(a) of the Penal Code, on 11th February, 2010. Appellant pleaded not guilty. Prosecution called eight (8) witnesses and tendered couple of documents and materials including two confessional statements of the appellant in evidence. At the end of the trial and in a reserved judgment, the trial Court acquitted and discharged the appellant from the charge of conspiracy to commit homicide contrary to

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Section 97 of the Penal Code but found him guilty of the offence of culpable homicide, punishable with death, contrary to Section 221(a) of the same Penal Code. He was then convicted and sentenced to death by hanging.

Dissatisfied with the judgment of the trial Court, the appellant had appealed to the Court below which dismissed the appeal. That has led to his further appeal to this Court upon five (5) Grounds of Appeal.

Upon service of the record of appeal, and pursuant to the Rules of this Court, briefs of argument were filed and exchanged. The appellant’s brief of argument settled by Boma Ozobia Esq. on 8/2/2016 was deemed properly filed and served on 20/9/2017. The respondent’s brief of argument was later filed on 17/10/2017 by Paul Kasim, Esq.

In the appellant’s brief of argument, the following two issues were distilled from the five grounds of appeal earlier filed by the appellant.

Issues for Determination:

  1. Whether there being evidence indicating insanity of the appellant, the doubt as to whether or not appellant was insane at the time he allegedly committed the offence ought not to have been resolved in his favour. (Grounds 1, 2,

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& 4)

  1. Whether the confessional statement upon which the appellant’s conviction was based satisfied the tests for proving the genuineness of same in order to sustain a conviction.

(Ground 3).

The above issues were argued in the brief of argument seriatim.

On issue 1, learned counsel contended that there is in law a presumption that every person is sane until proved otherwise, relying on Ejinima Vs State (1991) 6 NWLR (Pt.200) 627 at 645. He submitted that this presumption is rebuttable as the onus is on the accused to adduce evidence indicating insanity, whereupon the onus shifts on the prosecution to establish the sanity of the accused person. It was further contended that even where the defence has not adduced evidence which raises a defence of insanity, the Court will take into account the evidence led by the prosecution in order to determine whether the accused was insane at the time of committing the offence. And the Court may upon the evidence led by the Prosecution arrive at a conclusion that the accused is indeed insane. He relied on Kure Vs. State (1988) 1 NWLR (Pt.71) 404; Asuguo Ana Inyang Vs. The State (1972) 8-9 SC 169.<br< p=””

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He submitted that it is trite law, that proof of insanity is merely on a preponderance of evidence but not beyond reasonable doubt, relying on Ogbu Vs. State (1992) 8 NWLR (Pt.263) 714 at 7278-718; Suleiman Vs. State (1981) NCR 242 at 249 Asanya Vs. State (1991) 3 NWLR (Pt.180) 422 at 476.

Learned counsel submitted that in the instant case, the testimony of the Prosecution’s witnesses and statements tendered by the prosecution show that the appellant was indeed insane.

Learned counsel referred to the testimony of the witnesses for the Prosecution, including PW4 & PW6, and contended that the failure of the prosecution to tender the psychiatric medical report following the police investigation at the Psychiatric hospital amounted to withholding of evidence contrary to Section 167 (d) of the Evidence Act, 2011. He urged the Court to so hold.

Learned counsel contended that the evidence adduced by the defence witnesses buttressed the fact that the appellant was insane. He referred to the testimony of DW1 and DW2 relating to the insanity status of the appellant. He submitted that before the trial Court was sufficient evidence of the

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appellants insanity which should have effectively rebutted the presumption of sanity on a balance of probabilities and placed on the prosecution the onus of proving the sanity of the appellant which they failed to do. He contended that there was therefore reasonable doubt as to the sanity or otherwise of the appellant which the trial Court ought to have resolved in favour of the appellant. He relied on Adamu vs. The State (2014) 10 NWLR (Pt.1416) 441, Augustine Onuchukwu & Anor vs The State (1998) 4 NWLR (Pt.547) 576 and Section 135 (1) of the Evidence Act, 2011. He submitted that there can be no proof beyond reasonable doubt unless the mental capacity of the accused at all times material to the act constituting the offence charged is established once raised or is apparent from the materials before the trial Court.

Learned counsel referred to the findings of the trial Court, which was affirmed by the Court below that the evidence of DW2 having only been volunteered during the case for the defence and not before then rendered his testimony as to the mental state of the appellant an afterthought and not to be believed. He contended that DW2 could

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reasonably be said to have had no reason to broach the insanity of the appellant being a layman without knowledge of law and the requirement to prove mens rea as an essential ingredient of the offence of murder.

He contended that Section 51 of the Penal Code ought not to have been read by the Lower Court as placing the burden of proof of both the insanity and knowledge of the nature and wrongfulness of the criminal act on the appellant where there are sufficient facts indicating the insanity of the appellant, as this will amount to requiring the appellant to prove his innocence contrary to the constitutionally guaranteed right to presumption of innocence.

He submitted that the doubt as to whether or not the appellant was insane at the time he allegedly committed the offence be resolved in appellant’s favour and that he be found not guilty by reason of insanity. He urged the Court to resolve issue No.1 in favour of the appellant.

On issue No.2, whether the confessional statement upon which the appellants conviction was based satisfied the tests for proving the genuineness of same in order to sustain a conviction, learned counsel referred

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to the test as set out in Okanlawon Vs. The State (2015) 17 NWLR (Pt.1489), 445 at 480 and contended that there is no evidence outside the confession to show that any of the statements relating to the commission of the offence allegedly made by the appellant is true. He contended that the evidence adduced by the prosecution on the strength of which the Court concluded that the confession was corroborated is laden with contradictions. He contended that it is ideal that prior to convicting on the basis of a confessional statement, evidence outside a defendant’s confession to the police which makes it probable that the confession is true should be available. He relied on Paul Onochie & Ors Vs. The Republic (1966) NMLR 307; Onuoha Vs. The State (1987) 4 NWLR (Pt.65) 331. Edhigere Vs. The State (1996) 8 NWLR (Pt.464) 1 at 10. He submitted that such evidence must be consistent with the confession.

Learned counsel referred to the prosecution’s adduced evidence, on how the weapon allegedly used by the appellant was recovered, which the trial Court used to corroborate the retracted confessional statement. He contended that the said evidence was contradictory

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in material respects and unreliable hence could not be used to corroborate the retracted confessional statement. He contended that to hang a man for such contradictory testimony would be a fatal miscarriage of justice. He contended that the evidence the trial Court thought corroborated the confessional statement, being circumstantial, is not conclusive and unequivocal. He submitted that for circumstantial evidence to constitute sufficient proof of guilt of an accused, the evidence must be conclusive and unequivocal convincingly accurate as to irresistibly point to no other direction but the guilt of the accused person. Thus, before circumstantial evidence can support a conviction, the totality of the admitted evidence must be such as leaves no reasonable grounds for speculation, which may lead to any inference or conclusion that some other persons, other than the accused committed the crime charged. He relied on Akinmoju Vs. The State (2000) 6 NWLR (Pt.662) 608.

Learned counsel contended that in this case, the circumstantial evidence is a flawed foundation on which no conviction can safely stand. He submitted that the trial Court ought to have erred on

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the side of caution and refrained from convicting the appellant on the basis of the circumstantial evidence adduced.

Learned counsel contended that there was no act established by the evidence before the trial Court upon which an inference that the appellant killed the deceased could be made. He submitted that the contradiction raised doubt as to the veracity of the confession and this ought to be resolved in favour of the appellant.

He referred to Section 135 (1) & (2) of the Evidence Act, 2011 and contended that the burden on the shoulders of the prosecution to prove the commission of a crime never shifts. He submitted that failure of the prosecution to establish even one of the ingredients of the offence amounts to failure to prove the guilt of the accused beyond reasonable doubt. Any doubt arising in the circumstance must be resolved in favour of the accused person. He relied on Aigbadion vs. The State (2000) 7 NWLR (Pt.656) 686 at 704; (2000) 4 SCNJ 1; Tanko Vs. The State (2008) 16 NWLR (Pt.114) 597 at 636.

See also  Madam Jarawu Adeleke V. Liadi Ajadi Aserifa (1990) LLJR-SC

Learned counsel contended that none of the facts contained in the purported confessional statement was raised or proved at the trial. He

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relied on Nsofor Vs. The State (2002) 10 NWLR (Pt.775) 274 at 289 and contended that the contents of a confessional statement made to the Police should be tested by facts outside the statement by considering the said confessional statement along with other evidence led at the trial. He submitted that there being no evidence which strengthened the appellant’s alleged confession, as being possible and true, the trial Court should not have convicted the appellant for culpable homicide as charged. He urged the Court to so hold, allow the appeal, discharge and acquit the appellant.

In the respondent’s brief of argument, similar two issues were distilled from the five grounds of appeal filed by the appellant, for the determination of the appeal, only slightly differently couched.

Learned counsel for the respondent in arguing the appeal referred to the appellant’s case, that there was evidence that he had insanity problem, and therefore that the trial Court and the Court below should have found that same availed the appellant. He contended that the appellant’s plea of insanity presupposes or signifies that the appellant committed the offence with which he was

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charged. He cited Nkanu Vs. The State (1980) NSCC 114 at 117; Madjemu Vs. The State (2001) 25 WRN 1 at 19; (2001) 9 NWLR (Pt.718) 349.

Learned counsel contended that in trying any person for an offence, punishment for which is death upon conviction, a trial Court is duty bound to consider all defences available to the accused. He contended further that in the instant case, the trial Judge adverted his mind to the defence of insanity before coming to the conclusion on pages 206-207 of the record as he did. He referred to Section 51 of the Penal Code on the defence of insanity and submitted that an accused person who pleads insanity bears the onus of proof. In other words, the accused must prove that he was insane at the time of the commission of the offence. He however, conceded that the standard of proof required of the accused is proof on the balance of probability or preponderance of evidence, but not proof beyond reasonable doubt. He relied on Section 141 of the Evidence Act, 2011 and Kure vs The State (1988) 1 NWLR (Pt.71) 404, Madjemu Vs. The State (supra) Ejinima Vs. The State (1991) 5 NWLR (Pt.200) 627, on what an accused person is expected to

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adduce evidence on when relying on defence of insanity.

Learned counsel queried what evidence was adduced by the appellant at the trial in support of his defence of insanity. He referred to his confessional statements which were admitted without objection. Also, the statements of some of the co-accused persons on the state of the appellant’s mental health. And the testimony of PW4 and PW7, DW1 and DW2, both under examination in-chief and cross-examination.

Learned counsel referred to the statements made to the Police by DW1 and DW2 and their testimony before the trial Court, in particular, on the state of mental health of the appellant. He contended that the extra judicial statement contradicts the oral testimony before the Court. He urged the Court to reject same and treat DW1 as unreliable. He relied on Nwankwoala & Anor Vs The State (2007) 2 NCC 107 at 116, Ayanwale & Ors. Vs Atanda & Anor (1988) All NLR 24 at 38. He contended that DW2 in his statement made to the Police, Exhibit C1 did not say anything about insanity of the appellant, hence the trial Court treated his testimony in the open Court on the issue of insanity of the

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appellant as an afterthought at page 212 of the record.

Learned counsel further referred to Section 51 of the Penal Code and contended that an accused person who pleads insanity as a defence must prove that he was insane at the time of committing the act and that the insanity deprived him of the capacity to know the nature of his act or that he was doing anything that was either wrong or contrary to law. He relied on Guobadia Vs. The State (2004) 6 NWLR (Pt.869) 360. He contended that none of the witnesses called by the appellant testified to this fact. He submitted that this is fatal to the appellant’s case.

Learned counsel referred to Exhibits S1 and U1, the statements and additional statement respectively, of the appellant and contended that there was nothing in the statements to suggest or show that the appellant did not know or appreciate the full nature of what he was doing at the time he committed the offence charged. In other words, he maintained his sanity and consciousness. He referred to appellant’s oral testimony before the Court in support of his plea of insanity but contended that it failed to satisfy the requirement of the law, hence

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he submitted that the appellant failed to prove that he was insane at the time the act was committed. He urged the Court to so hold.

Learned counsel referred to the submission of the appellant’s counsel on pages 4-6 of his brief of argument on the testimony of PW6 on the prosecution having appellant’s hospital card issued to him by Kware Psychiatric hospital and that the respondent withheld the medical report obtained upon medical examination of the appellant and urged the Court to invoke Section 167 (d) of the Evidence Act and hold that the prosecution failed to tender the report because it was not favourable to the prosecution’s case. He submitted that the said submission was misconceived. He contended that there was no iota of evidence, before the trial Court or in the entire record of proceedings to show that the hospital issued any medical report to the prosecution concerning the mental health of the appellant. And there is nothing to show that the respondent was ever in possession of any such report. He wondered whether the respondent can be said to have withheld something not shown to be in its possession. He submitted that the onus to prove

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that the appellant was insane or of unsound mind rests on the appellant and the appellant failed woefully to discharge that burden or onus.

Learned counsel referred to the concurrent findings of the two Lower Courts, that the appellant failed to prove that he was insane at the time he killed the deceased. He submitted that these findings ought not to be tampered with or disturbed by this Court, relying on Amuda vs. Adelodun (1997) 5 NWLR (Pt.506) 480 at 487.

He urged the Court to resolve the issue in favour of the respondent but against the appellant.

On the second issue, whether the appellant was not rightly convicted upon his confessional statement, learned counsel referred to the appellant’s contention that his extra-judicial statement to the Police did not meet laid down tests to which a trial Judge must subject confessional statement, to warrant the Court relying on it to convict an accused. Learned counsel contended that undoubtedly, on 9th February, 2008, the Liman of Takakume Mosque, Mallam Garba Liman was killed. And the proceedings that culminated in this appeal was conducted with a view to determining who killed the late Imam. He

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referred to the ingredients of the offence of culpable homicide, which the Prosecution is required to prove. He submitted that it is not in dispute that the death of Mallam Garba Liman actually took place. He referred to the findings of the trial Court on pages 319-320 of the record, and submitted that the first ingredient was clearly established.

On the second and third ingredients, learned counsel contended that in proving that a deceased was killed by a particular person, the prosecution must prove the guilt or involvement of the accused beyond reasonable doubt. He relied on Nwosu Vs. The State (1998) 8 NWLR (Pt.562) 433 at 444; Alabi vs. The State (1993) 7 NWLR (307) 511. He contended that the burden of proving the guilt of an accused may be discharged through any of the following means of proof.

(i) The confessional Statement of the accused person;

(ii) Circumstantial evidence; or

(iii) Evidence of eye witness.

He relied on Haruna Vs. AGF (2012) 49 NSQLR (Pt.111) 1410 at 1420; Igabele Vs. The State (2006) 6 NWLR (Pt.975) 1000.

In the instant case, learned counsel contended that, as noted earlier, the appellant did not deny

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killing the deceased. Rather, he merely set up a defence of insanity, which he has argued did not avail him. Learned counsel stated that, upon being arrested, appellant on the same 17/2/2008, volunteered statements to the Police. And these statements were notably admitted in evidence on 8/6/2011 without objection from either the appellant or his counsel. He referred to the two statements made by the appellant that were admitted and marked as Exhibits S1 and U1 respectively. Learned counsel submitted that in the said statements, the appellant clearly admitted that he killed the deceased. He submitted further that those statements are confessional in nature. He relied on Section 27 (1) of the Evidence Act, 2011. Learned counsel contended that the way the appellant described the state of the deceased in his said statement after he attacked him is clearly consistent with the testimony of PW5, one Mohammed Dan Luna on page 132 of the record.

Learned counsel contended that, of all the means of proof of the commission of a crime, earlier identified, confessional statement of an accused person is usually regarded as the evidence of the highest quality and the

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most satisfactory of all evidence. He relied on Onuoha Vs. The State (1987) 4 NWLR (Pt.65) 331. He contended further that where the confessional statement of an accused person is admitted in evidence, it obviates the need for the prosecution to prove the guilt of the accused person beyond reasonable doubt.

After all, nothing can be weightier than the confession or admission of an accused person, that he was the one that committed the offence for which he is standing trial. He relied on Solola Vs. The State (2005) NSCQR 160 at 188-189.

Learned counsel submitted that the law is settled, that in appropriate cases, such as this, conviction may be based on confessional statement of an accused person, which is voluntary, direct, positive and unequivocal, even where same is inconsistent with his testimony in Court. He relied on Edhigere Vs The State (1996) 8 NWLR (Pt.464) 1 at 13-14; Bature Vs. The State (1994) 1 NWLR (Pt.320) 267 at 285.

See also  Helen Theresa Aneke V. Valentine H. Arewwe Aneke (1971) LLJR-SC

However, he contended that the general attitude of Courts is to view such statements with suspicion and to consider it desirable to have some corroborative evidence of the circumstances outside the said confessional statement to

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the Police, no matter how slight, which makes it probable that the confession is true. He relied on R Vs Kanu (1952) 14 WACA 30; Onochie & Ors Vs The Republic (supra) and Akpan Vs. The State (1992) 6 NWLR (Pt. 248) 439 at 460.

Learned counsel contended that, conscious of its duty to ensure that the appellant’s statements, admitted as Exhibits S1 and U1, were corroborated, the prosecution, in further proof of its case, by evidence, demonstrated that the appellant after carrying out his dastardly act, ran to his house and hid the cutlass, he confessed to have used to attack the deceased. To further show that the confessional statements were true, upon the arrest, it was by the same place where the appellant had confessed in his statements to have hidden the cutlass that the same was actually found in his house, and it had blood stains. The said cutlass was admitted in evidence as Exhibit A. He referred to the testimony of PW8 at pages 152-153 of the record on how Exhibit A was recovered from the appellant’s house.

Learned counsel referred to the medical report as to the cause of death of the deceased which was admitted as Exhibit T.

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the he contended that the content of the said medical report corroborates the appellant’s statements to the Police – Exhibits S1 and U1. He submitted that Exhibits A and T and the testimony on oath of PW5 and PW8 all offered corroborative evidence to show that the statements of the appellant were true.

Learned counsel further submitted that from the totality of the evidence led by the prosecution, the appellant truly intended the consequences of his act of cutting the deceased with cutlass until the latter became unconscious, after which he ran away, namely the death of the deceased. He submitted that the appellant did not only cause the death of the deceased, late Imam, but that he did it with the full intention and knowledge that death or grievous bodily harm was the probable consequence of his action. He urged the Court to so hold.

Learned counsel referred to the concurrent findings of both the trial and Lower Courts at pages 205-206 and page 324 of the record and urged the Court not to disturb the said concurrent findings of the two courts below but affirm same. He further urged the Court to resolve the issue in favour of

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the respondent and hold that the appellant was rightly convicted by the trial Court and the conviction was correctly affirmed by the Court below. He finally urged the Court to dismiss the appeal in its entirety.

As I stated earlier, the appellant had been found guilty, convicted and sentenced to death for the offence of culpable homicide, for killing Malam Garba Liman.

Generally, and it is settled, that for the prosecution to succeed on a charge of culpable homicide, punishable with death, the following ingredients of the offence must be proved:

(a) That the death of a human being has actually taken place;

(b) That such death has been caused by the accused;

(c) That the act was done with the intention of causing death, or that the accused knew that death would be the probable consequence of his act.

It therefore needs not be said, that the three ingredients of the offence must be proved together and that failure of the prosecution to prove any one of them means failure of the charge itself. See; Tunde Adava & Anor Vs. The State (2006) 9 NWLR (Pt.984) 152; (2006) 2 SC (Pt.11) 136; Okolo Ochemaje Vs The State (2008) 15 NWLR (Pt.1109) 57; (2008)6-7 SC (Pt.11) 1;(2008) LPELR- 2198.

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To establish the charge against the appellant, the prosecution called eight (8) witnesses and tendered statements obtained by the Police, including the statements made by the appellant. Also tendered and admitted was the weapon alleged to have been used to kill the deceased. The conviction and sentence of the appellant were affirmed by the Court below leading to the instant appeal. The first issue formulated for the determination of this appeal is, whether there being evidence indicating insanity of the appellant, the doubt as to whether or not the appellant was insane at the time he allegedly committed the offence ought not to have been resolved in his favour. And the second issue is, whether the confessional statements upon which the appellant’s conviction was based satisfied the tests for proving the genuineness of same in order to sustain a conviction. The two issues are to be treated together being interwoven.

Generally, homicide means, the killing of one person by another. It is also the act of purposely, knowingly, recklessly or negligently causing the death of another human being. However, culpable homicide is a wrongful

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act that results in a person’s death but does not amount to murder. See; Black’s Law Dictionary, 9th Edition pages 802 and 803; Apishe Vs The State (1971) 1 All NLR 50; Takida vs. The State (1969) 1 All NLR 270; Williams Vs IGP (1965) NMLR 470; Umaru Adamu vs. The State (2014) All FWLR (Pt.1416) 441; (2014) 8 SCM 1; (2014) 4 & 5 SC 1; (2014) All FWLR (Pt.733) 1938; (2014) LPELR -22696.

It is trite under our criminal law, that in all cases, the burden or onus of proving that any person has been guilty of a crime or any wrongful act, subject to certain exceptions, is squarely on the prosecution. And if the commission of a crime is directly in issue in any civil or criminal proceedings, it must be proved beyond reasonable doubt. See; R Vs Basil Kanger Lawrence (1932) NLR 6; Per Lord Atkin; Abeke Onafowokan Vs The State (1987) NWLR (Pt.61) 538; (1987) LPELR 266.

It has however been held that, if at the end of the trial, there is a reasonable doubt created by the evidence, adduced by either the prosecution or the accused, as to whether the accused killed the deceased with malicious intentions, the prosecution has not made out the case and the suspect is

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entitled to an acquittal. See; Okagbue Vs COP (1965) NMLR 232.

In Onafowokan Vs. The State (supra) this Court, per Oputa, JSC opined as follows:

“It is legally correct that no onus of proof lies on the appellant. This however should be interpreted to mean that the primary onus of establishing the case or the guilt of the accused is always on the prosecution except in very special and limited circumstances like cases of insanity where the law presumes him sane and casts on him the onus of establishing the contrary. But where the prosecution has made out a prima facie case, which if unanswered will lead to his conviction then the duty of adducing such evidence as would make the jury find any issue in his favour is definitely on the accused”

See also; Osarodion Okoro Vs. The State (1988) 12 SC (Pt.11) 88; (1988) NWLR (Pt.94); Oteki Vs A.G. Bendel State (1986) 2 NWLR (Pt.24) 648; Laoye Vs The State (1985) NWLR (Pt.10) 832.

There is no doubt, and the law is very clear on this, that in all trials of culpable homicide, the Court has the onerous duty to consider; (a)all the defences raised by the evidence, whether the accused person specifically put up such

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defence or not; and (b) any defence raised by an accused person, no matter how weak, inconsequential or even stupid it may appear, must be given due attention and consideration. Therefore, an accused person whose defence to an alleged crime is insanity has the burden of proving that he was suffering from insanity or insane delusion at the time the offence with which he was charged was committed. This burden of proof on the accused is on the balance of probability or preponderance of evidence but not on the basis of proof beyond reasonable doubt. See; Augustine Guobadia Vs. The State (2004) 6 NWLR (Pt.869) 360 (2004) 2 SC (Pt.11) 1; (2004) 17 NSCQR 222; (2004) LPELR 1344.

As I stated earlier, amongst the statements tendered by the prosecution were that of the appellant, made to the police in Hausa but which were duly translated into English language and admitted as Exhibits S1 and U1. In the first statement Exhibit S1, the appellant clearly narrated the story of how he attacked the deceased with a cutlass, in company of one Isah Gajere, a co-accused, until the deceased fell and died. It is note worthy, that in his additional statement, admitted

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as U1, the appellant stated clearly that he was physically fit and does not have any mental problem. He stated that he was married with two children.

There is no doubt, that, of the three ingredients of the offence of culpable homicide as murder, as earlier alluded to, the first two, that is, (a) that someone, identified as Malam Garba Liman – the Imam of Takakume village mosque is deceased, and (b) that the death was caused by the appellant by the use of cutlass used to cut him on the neck. What is left is whether the act was done with the intention of causing death or that the appellant knew that death would be the probable consequence of his act.

It was noted by the trial Court that, even though the appellant did not testify directly by himself, the testimony by the witness (DW2) put up a defence of insanity for the appellant.

The law is that 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. See; Section 51 of the Penal Code.

However, to establish the defence of insanity,the following

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relevant facts must be considered, namely:

(a) Evidence as to the past history of the accused person;

(b) Evidence as to the conduct of the accused immediately preceding the killing of the deceased;

(c) Evidence from prison officials who had custody of the accused person before and during his trial;

(d) Evidence of Medical Officers who examined the accused;

(e) Evidence of relatives about the general behavior of the accused person and the reputation he enjoyed for sanity or insanity in the neighbourhood;

(f) Evidence showing that insanity runs in the family history of the accused; and such other facts which may help the trial Court come to the conclusion that the burden of proof placed by law on the defence has been discharged.

See also  Joseph Asuquo V The State (1967) LLJR-SC

See; Daniel Madjemu Vs The State (2001) 9 NWLR (Pt.718) 349; (2001) 5 SC (Pt.1) 84; (2001) 6 SCM 135; (2001) LPELR 1805.

In considering the above relevant facts, the trial Court resorted to examine the testimony of DW1 and DW2 and their extra Judicial statements made to the police at the earliest opportunity, and found, inter alia, as follows, on page 212 of the record:

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“Now DW1 who voluntarily gave the contents of Exhibit K1 to the police, which was tendered by the Prosecution without any objection and later proceeded to give evidence on oath contradicting the sole contents of Exhibit K1 does not deserve to be called or regarded as truthful witness.”

“Importantly, DW2 did not testify as to the mental condition of 1st accused (Appellant) at the time of the commission of the offence. For Section 51 of the Penal Code is very explicit on the point, that an accused who pleads insanity as a defence to an offence with which he was charged must prove that he was insane at the time of committing the act.”

As the trial Court was entitled to do, from the whole evidence adduced, and the surrounding circumstances of the case, including the nature of the killing, the conduct of the appellant before, during and after the killing of the decease, found as follows on page 213 of the records.

“The 1st accused person (Appellant) armed himself together with the 4th accused (Isah Gajere) and attacked the deceased with cutlasses. He died as a result of the injury he sustained. The 1st accused ran home, hid the cutlass and flew the village to

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another village called Gorau where he spent a night. He moved to another village called Sabon Gari and spent a night also. On the third day he went back to his village at night where he was arrested. (Brackets supplied).

The trial Court upon his findings above came to the following conclusion:

“From the totality of the evidence adduced before this Court, I hold the view that there is nothing to show that the 1st accused (Appellant) was insane or suffering from unsoundness of mind that deprived him of the capacity to know the nature of the act or that he was doing what is either wrong or contrary to law.”

On appeal, the Court below on pages 332-334 found, inter alia, as follows:

“On the evidence of DW1 and DW2, the learned trial Judge made reference to their extra judicial statements which were admitted as Exhibits K1 and C1 respectively. In Exhibit K1, which was admitted without objection, DW1 stated therein that the appellant is not a madman and that none of his family is mad. DW2 in Exhibit C1 never mentioned that the appellant is mad. It follows therefore that the testimony of the first defence witness is at variance with his

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extra judicial statement, and the evidence of DW2 is an afterthought since he had all the time at the earliest opportunity to tell the Police the mental status of the appellant

In a case where an accused is alleged to be suffering from insanity during the commission of the offence, it is the duty of the trial Court to consider the totality of the evidence, including the conduct of the accused before, during and after the commission of the offence and any other history of mental abnormality.

In the instant case, the appellant after the commission of the crime ran to his house, hid the cutlass and fled from Shinaka, his own village to Gorau where he spent the night. Thereafter he moved to Sabon gari, before he moved back to his village at night where he was arrested.

Upon the above findings by the Court below, their Lordships came to the following conclusion:

By the conduct of the appellant after the killing of the deceased, it will be unfair to common logic to hold that

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the appellant at the time of the killing was incapable of knowing the nature of his act or that what he was doing was wrong or contrary to law.

There is no doubt, from the vivid graphic description of what transpired on the day the deceased was killed, in Exhibits S1 and U1 by the appellant and the discovery of the blood stained cutlass Exhibit A from where it was hidden by the appellant, couple with the facts that the appellant ran away from the village as soon as the deceased was killed, it may not do justice to the deceased to hold that the appellant was insane or was of unsound mind or was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law at the material time when he inflicted the unwarranted attack on the deceased and cut his life short.

In Umaru Adamu Vs. The State (2014) 10 NWLR (Pt.1416) 441; (2014) 8 SCM1; (2014) 4 & 5 SC 1; (2014) All FWLR (733) 1938; the appellant had been convicted and sentenced to death by hanging until pronounced dead, having been found culpable and convicted by the trial Court in Sokoto on

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29/02/2008 for slaughtering his step mother – Inno-Adamu on 25/08/2002. The conviction and sentence were affirmed by the Court below, Sokoto Division, on the 11th January, 2010. The appellant further appealed to this Court.

It is note worthy that the appellant did not testify in his own defence after the Prosecution had called seven (7) witnesses. The evidence on appellant’s state of mental health came from Prosecution witnesses. There was sufficient evidence from the surrounding circumstances on the conduct of the appellant before, during and after the deceased was murdered.

The case of the Prosecution was that on the 25/08/2002, the appellant who is a Mason by profession returned to Sokoto from Abuja. No sooner he put down his bag that he started beating his sister whom he met in the house, but PW3, Bello Adamu, his elder brother intervened and separated them. Thereafter, the appellant brought out a knife from his bag and threatened to kill his sister with it. The incident was reported to the police who later settled the matter with a resolution that it was a mere family affairs.

Subsequently, in the early hours of the 25/08/2002 at about

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2.00a.m. the appellant had gone to his sister’s matrimonial home to see her but was driven away by the husband. On arrival back in the house after the morning prayer in the nearby mosque, the appellant used the same knife to cut the throat of his 70 years old step mother who was sleeping, slaughtered her and she died. After PW3 was alerted on the incident, he came and found the appellant licking the blood on the knife saying “Allahu Akbar” meaning God is Great.

The appellant was convicted and sentenced to death. The conviction and sentence were affirmed by the Court below. But in this Court, appellant’s appeal succeeded in part. The defence of insanity availed him. The Court found that from the testimony of PW3 and PW4, the appellant was said to have been of unsound mind from childhood. That even on the day the deceased was killed, the appellant did not run away from the house and did not hide anywhere. Infact, the fact of his licking the blood on the knife used to slaughter the deceased, saying Allahu Akbar was unnatural and showed unsoundness of mind and incapable of knowing the nature of the act.

Ordinarily in law, everyone is presumed to be sane and of

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sound mind, and accountable for his actions, unless the contrary is proved. But where there is defect or incapacity of the understanding, as there can be no consent of the will, then the act is not punishable as a crime.

In the instant case, from the statements of the appellant – Exhibits S1 and U1 which were admitted without objection, there is evidence that the deceased belonged to a different Islamic sect from Shiite sect, that of the appellant hence he was asked to kill the deceased. And that after the appellant committed the heinous act he fled from the village, knowing fully well that what he had done was contrary to law and was soon to be arrested. As I have noted earlier, there are concurrent findings of fact by the two Courts below on the status of appellant’s mental health.

It is already settled in several decisions of the Court, that findings on primary facts, particularly, those dependent on belief or non belief of witnesses, are matters peculiarly within the province of the Court of trial. Where such findings have been affirmed on appeal, as in this case, and there is sufficient evidence to support such concurrent findings of

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fact, it is the established policy of this Court not to interfere or disturb such findings. The findings can only be disturbed where they are perverse, or based on improper evaluation of evidence, or it is apparent that the trial Court has not taken proper advantage of its seeing and hearing the witnesses, or otherwise, there is an apparent error on the record or generally there are some miscarriage of justice. See; Chief (Alhaji) K.O.S. Are & Anor Vs Raji Ipaye (1990) NWLR (Pt.132) 298; (1990) 3 SC (Pt.11) 109; (1990) LPELR – 541. Azeez Akeredolu & Ors Vs. Lasisi Akinremi & Ors (1989) 2 NWLR (Pt.108) 164; (1989) LPELR – 328; Gilbert Onwuka & Ors Vs. Michael Ediala & Anor (1989) NWLR (Pt.96) 182; (1989) 1 SC (Pt.11) 1; (1989) LPELR – 2720

I am therefore, of the firm view that the concurrent findings of fact by the Courts below, on the state of appellant’s mental health should not be disturbed. The appellant did not discharge the burden to show that he was of unsound mind that he could not comprehend the consequence of what he was doing, when he used his cutlass to kill the deceased. He affirmed this in his confessional statements which

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were admitted without any objection. As a result the two issues formulated by the appellant are hereby resolved against the appellant but in favour of the respondent. In the circumstance, this appeal is devoid of any merit. It is liable to dismissal and shall be dismissed in its entirety. Accordingly, the judgment of the Court of Appeal, Sokoto Division delivered on 6th day of November, 2014 which affirmed the conviction and sentence of the appellant by the trial Court is hereby affirmed.

Appeal dismissed.


SC.52/2015

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