Legalpedia Citation: (2018-11) Legalpedia 71197 (CA)

In the Court of Appeal

Holden At Jos

Thu Nov 15, 2018

Suit Number: CA/J/317C/2017

CORAM

Habeeb Adewale Olumuyiwa Abi Justice, Court of Appeal

Tani Yusuf Hassan Justice, Court of Appeal

Boloukuromo Moses Ugo Justice, Court of Appeal

PARTIES

MELE ABATCHA

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appellant at the trial court was accused of slaughtering Aisha Abatcha and fleeing to evade arrest. Prior to the incident, he told the deceased Aisha Abatcha and Fanta Abatcha that he had something to tell them and a secret to show them. He asked them to form a WhatsApp group with him, which they did, and he started chatting with Aisha, the deceased. The next day, when Aisha came back from school, she asked Fanta if the accused had told her what was going on, to which she answered in the negative. Aisha, the deceased, then told Fanta that the accused told her that one of their father’s wives wanted to do something “Secret” for him. She said that the “Secret” was buried in an unused toilet in the house. That is how the accused lured Aisha into the unused toilet and slaughtered her with a kitchen knife which he had in his pocket.

When he resurfaced after a period of time, he was arrested, charged, tried, and convicted for the murder of Aisha Abatcha. He was charged before the High Court Maiduguri (Trial Court) for the offense of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code Laws of Borno State 1994.

He pleaded not guilty, and after the trial, he was convicted and sentenced to death. Dissatisfied with the judgment, he appealed to this Court.

HELD

Appeal dismissed

ISSUES

1. Whether the prosecution has proved its case against the accused/appellant beyond reasonable doubt?
2. Whether the defence of insanity avails the accused/appellant in the circumstances of this case?

RATIONES DECIDENDI

ISSUES FOR DETERMINATION – CONDUCT OF PARTIES IN FORMULATING ISSUES FOR DETERMINATION – THE PURPOSE OF ISSUES FOR DETERMINATION

Issues in an appeal are not formulated to coincide with the number of grounds of appeal. An issue must arise from one or a combination of grounds of appeal. Good practice does not command the formulation of an issue from every ground of appeal – Sakati Vs. Bako (2015) 4 NWLR (Pt. 1480) 531 at 540. See also Nwidenyi Vs. Aleke (1996) 4 NWLR (Pt. 442) 349. Contrary to the principle stated above, the learned counsel for the appellant formulated seven issues from his eight grounds of appeal. This practice is discouraged.

The purpose of issues for determination is to enable the parties to narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity, and brevity. Appeals are determined based on the issues raised from the grounds of appeal and not on the grounds of appeal – Husseni Vs. Mohammed (2015) 3 NWLR (Pt. 1445) 100 at 110. See also Oniah Vs. Onyia (1989) 1 NWLR (Pt. 99) 514.

In the case at hand, I have considered the grounds of appeal and the issues raised before the Court below. Issue 4 formulated by the appellant, distilled from ground I, has not been shown to relate to ground 1 of the Notice of Appeal. Where an issue for determination is not related to the ground of appeal, it is liable to be struck out, and all arguments in support of the said issue will be discountenanced. See Oniah Vs. Onyia (supra); Ugo Vs. Obiekwe (1989) 1 NWLR (Pt. 99) 566 and Kala Vs. Potiskum (1998) 3 NWLR (Pt. 540) 1. – Per T. Y. Hassan, JC

PROSECUTION – THE DUTY OF THE PROSECUTION IN A CRIMINAL TRIAL – THE INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE – HOW THE PROSECUTION MAY PROVE THEIR CASE

The duty on the prosecution throughout is to prove the offence against the appellant beyond reasonable doubt, not beyond a shadow of a doubt. In other words, the prosecution is to lead evidence that is cogent and compelling to an extent that no reasonable person will doubt that it was the accused person who committed the offence. See Okoh Vs. State (2014) 8 NWLR (Pt. 1410) 502; Onitilo Vs. State (2018) 2 NWLR (Pt. 1603) 239 and State Vs. Oladotun (2011) 10 NWLR (Pt. 1256) 542.

The ingredients of the offence of culpable homicide under Section 221 of the Penal Code read:

(a) The death of a human being has occurred.

(b) Such death was caused by the accused; and

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

The above ingredients must be proved before the prosecution can be said to have proved its case beyond reasonable doubt. If any of the ingredients is not proved, the case will collapse, and the accused person must be discharged. See Aliyu Vs. State (2013) 12 NWLR (Pt. 1368) 403 and Omotola Vs. State (2009) 7 NWLR (Pt. 1139) 148.

In proving its case beyond reasonable doubt as required by Section 138 of the Evidence Act, the prosecution may make use of the evidence of eyewitnesses or the confessional statement of the accused, which must be freely and voluntarily made, or circumstantial evidence. See Akwuobi Vs. State (2017) 2 NWLR (Pt. 1550) 421 and Adio Vs. State (1986) 2 NWLR (Pt. 24) 581. – Per T. Y. Hassan, JCA

CIRCUMSTANTIAL EVIDENCE – DUTY OF COURTS WHEN THE PROSECUTION RELIES ON CIRCUMSTANTIAL EVIDENCE – BURDEN OF PROOF IN CRIMINAL MATTERS

When the prosecution relies on circumstantial evidence to prove its case against an accused person, the Court must carefully and critically examine such evidence so that the Court will have no doubt in its mind that it is the accused person and no one else who committed the offence. This is important since proof is beyond reasonable doubt and there is no direct eyewitness evidence to the commission of the offence, and an innocent person must not be found guilty, especially when it is a capital offence. The duty of the Court in such circumstances is heavy and must be discharged with all sense of responsibility, diligence, and conviction as to the guilt of the accused person. The evidence thus must be strong, cogent, and compelling. See Njoku Vs. State (1992) 8 NWLR (Pt. 262) 174; Ubani Vs. State (2003) 4 NWLR (Pt. 809) 51 and Igabele Vs. State (2006) 25 NSCQR 21. – Per T. Y. Hassan, JCA

COURTS – CONDUCT OF COURTS WHEN A PARTY CLAIMS THAT A STATEMENT WAS MADE UNDER DURESS

I have carefully examined the record and note that when the extra-judicial statements were sought to be tendered, the appellant’s objection was that they were made under duress and involuntarily. In that circumstance, the learned trial judge is obliged to conduct a trial within a trial to determine its voluntariness. See State Vs. Salawu (2011) 18 NWLR (Pt. 1279) 580 at 905; Ogunye Vs. State (1999) 5 NWLR (Pt. 604) 548 at 570 and Onitilo Vs. State (2018) 2 NWLR (Pt. 1603) 239. – Per T. Y. Hassan, JCA

COURTS – CONDUCT OF COURTS WHERE AN ACCUSED RETRACTS HIS CONFESSION – THE CONSIDERATIONS OF A TRIAL COURT REGARDING A RETRACTED CONFESSIONAL STATEMENT

The confession was corroborated by the evidence of PW2 and DW1, the sister and the father of the appellant, respectively. The fact that the appellant retracted at trial is immaterial as it does not render it inadmissible in evidence – Eyop Vs. State (2018) 6 NWLR (Pt. 1615) 273 at 283, D-E. It can also be relied upon to convict the accused person once its veracity is ascertained. The trial Court would normally consider whether:

(a) There is anything outside it to show that it was true.

(b) It was corroborated.

(c) The statements of facts made therein are true as far as they can be tested.

(d) The defendant had the opportunity to commit the offence.

(e) The confession was possible.

(f) It is consistent with other facts which have been ascertained and proved. See Nweze Vs. State (2018) 6 NWLR (Pt. 1615) 197 at 210 G-H and Awosika Vs. State (2010) 8 NWLR (Pt. 1198) 49 at 78. Therefore, a free and voluntary confession of guilt, if direct and positive, and was properly established, is enough for the trial Court to rely upon to convict, even if there is no corroboration – Nweze Vs. State (supra) at 214. See also Adebayo Vs. State (2014) 12 NWLR (Pt. 1422) 613. – Per T. Y. Hassan, JCA

INSANITY – THE EFFECT OF THE PROOF OF INSANITY – BURDEN OF PROOF OF INSANITY – CONSIDERATIONS THE COURT SHOULD MAKE WHEN INSANITY IS RAISED AS A DEFENCE

The appellant was charged under Section 221(a) of the Penal Code, as provided by Section 51 of the same 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.”

It is clear, therefore, that insanity is contemplated, and even if an insane person was aware of his act, if he was mentally incapable of knowing that his act was wrong or contrary to law, he would still be entitled to the protection accorded by the section. The insanity has to be at the time of committing the act, and it can be permanent or temporary, as may be in the form of an insane delusion in respect of a person who is otherwise sane. It is, therefore, obvious that insane delusion is a part of insanity.

In all criminal cases, there is the general presumption that every person is sane with sufficient reasoning and mental faculty, and that he is responsible for his crime at the time he committed it, until the contrary is proved – Guobadia Vs. State (2004) 6 NWLR (Pt. 869) 360 and Ani Vs. State (2002) 10 NWLR (Pt. 776) 644. It follows, therefore, when an accused person charged with an offence pleads insanity or insane delusion, he has the burden to prove before the Court that at the time of committing the offence, he was so afflicted, or that he had such a mental block of mind, that he did not know the nature of the act or did not in fact know that he was doing a wrong thing. The proof is, however, on the balance of probability, not beyond reasonable doubt – Sanusi Vs. State (1993) 1 NWLR (Pt. 269) 294 and Madjemu Vs. State (2001) 9 NWLR (Pt. 718) 349. He must prove to the Court that he lacked the capacity to understand what he was doing, to control his action, and that he lacked the capacity to know that he should do what he did or make the omission – Loke Vs. State (1985) 1 NWLR (Pt. 1) 1.

For the Court, when it is called upon to make a consideration of the offence of insanity, it ought to consider and appreciate the nature of the crime that was committed, the conduct of the accused person before, during, and after the crime, and a history of insanity of the accused person or that of his family. It should also consider any medical evidence available – Ani Vs. State (supra). However, it is to be noted that it is solely for the judge to determine whether the accused person was indeed insane or suffering from insane delusion or mentally deluded at the time of committing the offence. It should make determination taking all the surrounding circumstances into consideration. Did the accused person prepare for the act? Was the act done in such a way that there was intention or desire to concede it? Did the accused person try to avoid being detected or apprehended after he committed the act? When was he eventually arrested? Did the accused make false statements? See Ani Vs. State (supra) at 661. – Per T. Y. Hassan, JCA

DEATH – CONDUCT OF COURTS REGARDING DEATH

Death is final. This finality makes it proper to regard death as the most serious harm that may be inflicted on another, and to regard a person who chooses to inflict that harm without justification or accuse as the most culpable of offenders. – Per T. Y. Hassan, JCA

TRIAL WITHIN TRIAL – MEANING OF A TRIAL WITHIN TRIAL – THE PROCESS OF A TRIAL WITHIN TRIAL

Now, a trial within a trial is a process that a trial Court undertakes when an accused person in a criminal trial protests the admission of a confessional statement allegedly made by him to the Police on the ground that the said statement was not and could not have been voluntarily made by him and that the statement was obtained under duress or some threat of whatever nature or actual physical torture to his person.

The main trial in the Court is abated, and the accused person is made to face a mini-trial within the context of the main trial to determine the veracity of the account of the accused person on whether his statement to the Police was voluntary or not.

The procedure at the mini-trial is similar to that of the main trial as witnesses are called to give evidence on both sides, and they are subjected to cross-examination by the other side. The trial Court writes a ruling at the conclusion of the mini-trial either admitting the statement of the accused person or rejecting the same, after which the main trial will resume. Findings of fact made by a trial Court in a trial within a trial are based on the credibility of witnesses after watching their demeanor, and an appellate Court should not upset such findings — Osuagwu Vs. State (2013) 5 NWLR (Pt 1347) 360, Abiodun vs. State (2013) 9 (Pt 1358) 138 – Per H. A. O. Abiru, JCA

APPEAL – WHERE THERE IS NO APPEAL AGAINST A FINDING OF FACT MADE BY A TRIAL COURT

Further, it is settled that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties — Amale Vs. Sokoto Local Government (2012) 5 NWLR (Pt 1292) 181, SCC (Nigeria) Ltd Vs. Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike Vs. Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Nwaogu vs. Atuma (2013) 11 NWLR (Pt 1364) 117. In effect, the decision of the lower Court on the voluntariness of the second confessional statement remains binding and conclusive between the parties on the issue. It cannot be re-examined by this Court — Alakija Vs. Abdulai (1998) 6 NWLR (Pt 552) 1 and Opara Vs. Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (Pt 1002) 342. The Appellant, having failed to appeal against the rulings of the lower Court on the trial within a trial, cannot contest the issue of the voluntariness or otherwise of the confessional statements or the regularity of the procedure by which the statements were obtained in this appeal. – Per H. A. O. Abiru, JCA

INSANITY – WHETHER RAISING THE DEFENCE OF INSANITY IS AN ADMISSION – THE QUESTIONS RAISED BY THE DEFENCE OF INSANITY – CATEGORIES OF PEOPLE WHO ARE NOT CRIMINALLY RESPONSIBLE FOR THEIR ACTIONS

It must be stated that the raising of the defence of insanity is an admission by the Appellant that he committed the offence, but he asserts that he is not responsible for his actions by reason of his insanity. The defence of insanity is not consistent with the denial of commission of an offence charged, and thus the entire vituperations of the Counsel to the Appellant against the findings of the lower Court that the Appellant killed the deceased were unfounded — Madjemu vs. State (2001) 9 NWLR (Pt 718) 349.

The defence of insanity raises the question of the criminal responsibility of the Appellant for his actions in causing the death of the deceased in the instant case. The criminal responsibility of a person for his actions in respect of offences under the Penal Code Law, like the Criminal Code Law, is a statutory matter. Sections 43 to 67 of the Penal Code Law outline the categories of people who are not criminally responsible for their actions. They include people suffering from automatism and insanity, people who were in a state of intoxication, children under the age of twelve years, people acting under compulsion, judicial officers in certain circumstances, people acting on or under an honest and reasonable mistaken belief, etc. — see the cases of Ani vs. State (2001) 17 NWLR (Pt 742) 411 and Amayo vs. State (2001) 18 NWLR (Pt 745) 251. – Per H. A. O. Abiru, JCA

SANITY – MEANING OF INSANITY – EVIDENCE THE ACCUSED SHOULD PRODUCE FOR THE DEFENCE OF INSANITY TO BE SUSTAINED – POINTS THE COURT SHOULD CONSIDER WHEN DEALING WITH THE DEFENCE OF INSANITY

Section 51 of the Penal Code Law provides 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.”

This section provides for the defence of insanity. Insanity is defined as any mental disorder severe enough that it prevents a person from having legal capacity and excuses the person from criminal or civil responsibility. It is a legal, not a medical standard, and thus the defence of insanity is an affirmative defence alleging that a mental disorder caused the accused to commit the crime. In law, everyone is presumed to be sane and of sound mind and accountable for his actions, unless the contrary is proved. But, where there is a defect or incapacity of understanding, as there can be no consent of the will, the act is not punishable as a crime. In the legal sense, whether the accused was sane or insane at the time when the act was committed is a question of fact to be decided by the trial Judge, and not by medical men, however eminent and knowledgeable, and is dependent upon and contemporaneous acts of the accused.

Where the defence of an accused person is unsoundness of mind or insanity, the onus is on him to plead the same and produce credible evidence of insanity or unsoundness of mind at the time the alleged act was committed. This can be done by (i) evidence as to the past history of the accused; (ii) evidence as to his conduct immediately preceding the killing of the deceased; (iii) evidence from prison warders who had custody of the accused and looked after him during his trial; (iv) evidence of medical officers and/or psychiatrists who examined the accused; (v) evidence of relatives about the general behavior of the accused and the reputation he enjoyed of sanity or insanity in the neighborhood; and (vi) evidence showing that insanity appears in the family history of the accused. The absence of motive is not sufficient as it is not the duty of the Court to go on a voyage looking for motive — Alapa Vs. State (2016) LPELR 413220, Danbaba vs. State (2018) LPELR 43841 (SC).

When considering the evidence available to or adduced by an accused person in his defence of insanity, the Courts have held the following radical and fundamental points to be important to be borne in mind and kept in view (i) the law presumes every person, including the person accused of crime, sane until the contrary is proved; (II) the prosecution does not set out to prove what the law presumes in its favor, (iii) an accused person who raises insanity as his defence has the onus of proving such insanity cast on him and the standard of such proof is not as high as that cast on the prosecution; it is not proof beyond reasonable doubt but it is proof of reasonable probability, proof sufficient to create a reasonable doubt in the mind of a fair-minded jury as to sanity of the accused; (iv) insanity is a blanket term embracing a considerable variety of mental abnormalities, mental infirmities, neurosis, and psychosis; (v) to constitute a defence, the mental condition relied on should be such that could and did, at the relevant time, deprive the accused of capacity (a) to understand what he was doing, or (b) to control his actions, or (c) to know that he ought not to do the act or make the omission complained of as constituting the regs of the offence charged — Arum Vs. The State (1979) 11 SC 91, Sanusi Vs. The State (1984) 10 SC 166, Onyekwe vs. The State (1988) 1 NWLR (Pt 72) 565, Ejinima vs. The State (1991) 6 NWI.R (Pt 200) 627, Ogbu vs. The State (1992) 10 SCNJ 88, Ani vs. The State (2002) 10 NWLR (Pt 776) 644, Popoola vs. The State (2013) 17 NWLR (Pt 1382) 96, State vs. John (2013) 12 NWLR (Pt 1368) 337, Adamu vs. The State (2014) 10 NWLR (Pt 1416) 441. – Per H. A. O. Abiru, JCA.

CASES CITED

STATUTES REFERRED TO

1. Penal Code Laws of Borno State, 1994
2. Criminal Procedure Code Laws of Borno State, 1994
3. Evidence Act, 2011

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