(2017) LPELR-42770(CA)

Transcription

1 OSENI v. STATE CITATION: MODUPE FASANMI In the Court of Appeal In the Ibadan Judicial Division Holden at Ibadan CHINWE EUGENIA IYIZOBA HARUNA SIMON TSAMMANI ON FRIDAY, 30TH JUNE, 2017 Suit No: CA/IB/573C/2014 Before Their Lordships: Between SAIDI OSENI - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal

2 1. CRIMINAL LAW AND PROCEDURE - DEFENCE OF INSANITY: Nature of the defence of insanity; how same can be established "The defence of insanity is provided for under Sections 27 and 28 of the Criminal Code of Ogun State Section 27 of the Criminal Code (supra) is to the effect that, every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved. However, Section 28 the Code stipulates that: "28. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission." The said Section 28 of the Criminal Code of Ogun State (supra), however has a proviso, which is to the effect that: "A person whose mind, at the time of his doing or omitting to do an act, is affected by delusion on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this Section, is criminally responsible for the act or omission to the extent as if the real state of things had been such as he was induced by the delusions to believe to exist." This provision, Section 28 of the Criminal Code (supra) and other enactments in pari materia to it, has been the subject of extensive judicial pronouncements. The overwhelming and thus accepted judicial opinion is that, in order to establish a defence of insanity, the defence has to lead credible evidence to prove that at the relevant time of committing the offence, the accused suffered or was suffering either from a mental disease or from natural mental infirmity; and that the mental disease or natural mental infirmity was such that, at the time of the commission of the act or omission, the accused was deprived of the 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. Any of the three mentioned conditions, if proved by evidence, will sustain the defence of insanity. See Mohammed v. State (1997) 9 NWLR (pt.520) p.169; Madjemu v. State (2001) 9 NWLR (pt.718) p.349; Ani v. State (supra); Guobadia v. State (supra); Aiworo v. State (1987) NWLR (pt.58) p.526 and Amako v. State (1995) 6 NWLR (pt.399) p.11. Now, since the general rule is that every person is presumed to be of sound mind, and to have been of sound mind at the time which comes in question, an accused person who pleads insanity, has the bounden duty to rebut the presumption which regards him as sane until the contrary is proved. The onus therefore on the accused who pleads insanity or insane delusion is to lead evidence in proof of the insanity or insane delusion. See Amako v. State (supra); Nkanu v. The State (1980) All N.L.R. p.121; Ndu v. State (1990) NWLR (pt.164) p.550; Kazeem Popoola v. The State (2013) LPELR (SC); Umaru Adamu v. The State (2014) LPELR (SC) and Chukwu v. State (1994) 3 NWLR (pt.335) p.640. Thus in the case of Ndu v. State (supra), Akpata, JSC said: "The law is that the burden of proving insanity rests on the accused person. Of course, the burden of proof which he has to discharge is a light one. It is proof by a preponderance of evidence or on a balance of probability. The defence of insanity is a special plea which must be positively put forward by way of defence and evidence should be adduced in support. It is not something to be inferred from the prosecution's case. It is not a matter which calls for speculation or guess work from the totality of the evidence adduced by the prosecution. A Court will not brand an accused person as insane without sufficient proof of such insanity." As stated above, the evidence required of proof of insanity or insane delusion is a light one. It is not as heavy as the evidence required of the prosecution to prove the guilt of the accused beyond reasonable doubt. The accused is only required to adduce evidence to support his plea of insanity, on a preponderance of evidence. See Ogbu v. State (1992) NWLR (pt.259) p.255; Arisa v. State (1988) NWLR (pt.83) p.386; Ex.Pc Vincent Achukwu v. The State (2014) LPELR (CA); The State v. Babangida John (supra); Guobadia v. State (supra) and Akhimien v. The State (1987) NWLR (pt.52) p.598."per TSAMMANI, J.C.A. (Pp , Paras. A-F) - read in context

3 2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF MURDER: Nature of the offence of murder "Section 316 of the Criminal Code Law (supra) defines murder as follows: "316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say: (1) if the offender intends to cause the death of the person killed, or that of some other person. (2) if the offender intends to do to the person killed or some other person some grievous harm; (3) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life; (4) if the offender intends to do grevious harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence; (5) if death is caused by administering any stupefying or overpowering things for either of the purpose last aforesaid; (6) if death is caused by willfully stopping the breath of any person for either of such purpose;is guilty of murder." Section 319(1) of the Code punishes any person who commits murder, with a sentence of death. It has been settled in a long line of decided cases, that for the prosecution to secure a conviction for murder, it must adduce credible evidence which must prove the below stated ingredients, beyond reasonable doubt: (a) the fact that a human being has died; (b) the fact that the death of the human being was caused by an act of the accused; and (c) the fact that the act of the accused resulting in the death of the victim was intentional. All the above stated elements must co-exist before it can be said that the prosecution proved the charge of murder beyond reasonable doubt. Accordingly, where any of the above stated ingredients has not been established, it would mean that the prosecution has failed to prove the charge beyond reasonable doubt. See Henry Nwokeawu v. the State (2013) LPELR (SC); Vivian Odogwu v. The State (2009) LPELR (CA); Sunday Chijioke Agbo v. The State (2013) LPELR (SC); Uzoma Okereke v. The State (2016) LPELR (SC); Godwin Alao v. The State (2011) LPELR (CA) and Amayo v. State (2001) 18 NWLR (pt.745) p.251.?now, the first thing the prosecution must establish in a charge of murder is that the death of a human being, whom the accused is said to have killed has occurred. Generally, the fact of death can be proved by circumstantial evidence, notwithstanding that neither the body nor any trace therefore has been found and the accused has not confessed to have committed the crime. See R. v. Onufrejezyk (1995) 1 Q.B. p.388. Thus, if the accused confesses to having killed the deceased and there is corroboration of that confession, that would be sufficient to establish the death of the deceased. See also Arichie v. The State (1993) 6 NWLR (pt.302) p.752 where Kutigi, JSC (as he then was) held that: "It is settled that in a charge of murder the fact of death is provable by circumstantial evidence notwithstanding that neither the body nor any trace of it has been found and that the accused has made no confession of any participation in the commission of the crime so long as the circumstantial evidence is positive, cogent and compelling and leaves no ground for reasonable doubt. (See for example Lori & Anor v. State (1980) 11 S.C. 81; Efe & Ors v. State (1976) 11 S.C. 75; Ukorah v. State (1977) 4 S.C. 167; Ogundipe & Ors v. Queen 14 WACA 458; R. v. Onufrejezk (1955) 1 All E.R. 247; 39 CAR1; Onah v. State (1985) 3 NWLR (pt.12) p.36." Similarly, in the case of Bassey Edibi v. The State (2009) LPELR (CA), Ngwuta, JCA (as he then was) said: "A crucial element in a charge of murder as defined in Section 316(1) of the Criminal Code and punishable under Section 319(1) of the same Code is the death of a person. Therefore, in a prosecution for murder the prosecution must prove the death of a person as a starting point, and the easiest but not the only way is the body of the victim. In this case the body of the alleged victim was not seen, there was no eye witness to the alleged killing and the evidence upon which the trial Court relied was merely circumstantial." It is therefore beyond doubt, that for a person to be convicted of murder, it must be established beyond doubt that the death of a human being has occurred. If such evidence is lacking, a charge of murder cannot be sustained. See also Mohammed v. State (2007) 11 NWLR (pt.1045) p.303."per TSAMMANI, J.C.A. (Pp , Paras. E-D) - read in context

4 3. CRIMINAL LAW AND PROCEDURE - INTENTION: Meaning of intention "The Black' Law Dictionary (8th Ed) by Bryan A. Garner at p.826 defines intention as. "The willingness to bring about something planned or foreseen, the state of being set to do something - "Intention is the purpose or design with which an act is done. It is the foreknowledge of the act, coupled with the desire of it, such foreknowledge and desire being the cause of the act, in as much as they fulfill themselves through operation of the will. An act is intentional if, and in so far as, it exists in an idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied." The above definition is taken from the book John Salmond on Jurisprudence (10th Ed) by Glanville L. Williams. Similarly, P.H. Winfield in his "Textbook on the Law of Torts" (5th Ed 1950) at p.19 defined "intention" as follows:?"this signifies full inadvertence in the mind of the Defendant to his conduct, which is in question, and to its consequences, together with a desire for those consequences." In the case of Iden v. State (1994) 8 NWLR (pt.365) (1994) LPELR (CA), Tobi, JCA (as he then was) said: "An intention is a design or fixation of the mind on a particular line of act or conduct. And until intention is overtly applied or executed in a particular way or direction, it is lost to any human being other than the Almighty God. Therefore the intention which the law punishes in respect of attempted murder is that which the accused overtly expresses by any action or in action." It is therefore clear to me than intention is the state of the mind of the actor at the time he committed or performed the act. However, as the saying goes, not even the devil knows the intention of man. Only God who created us has that absolute prerogative. That being so, the only way the intention of a man can be presumed to be known is through the overt acts done by him in the execution of that presumed intention. See James Afolabi v. The State 2016 LPELR (SC) and Mannir Liman (Alias Manqwaso) v. The State (2016) LPELR "Per TSAMMANI, J.C.A. (Pp , Paras. A-A) - read in context 4. CRIMINAL LAW AND PROCEDURE - DEFENCE OF INSANITY: How to establish or prove insanity of an accused person "Now, as stated earlier, in order to establish the defence of insanity it must be shown that, at the relevant or material time, the prisoner was suffering from either a mental disease or from natural mental infirmity, which was such that it deprived the prisoner of the capacity to understand what he was doing or to control his actions; or to know that he ought not to do the act or make the omission. This fact can be done by any or a combination of the following ways: (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 behaviour of the accused person and the reputation be enjoyed of sanity or insanity in the neighbourhood. (f) Evidence showing that the insanity runs in the family history of the accused; or (g) Such other facts which will help the trial Court come to the conclusion that the Burden of Proof placed by law on the defence has been discharged. It should be noted that the defence may rely on any or a combination of the above stated factors in order to establish the defence. Also the list enumerated above is not conclusive, as there may be other factors which the Court may find as establishing that the plea of insanity has been proved. See also Akhimien v. The State (supra); Edet Okon v. The State (2014) LPELR (CA); Silas Ukadike v. The State (1973) All N.L.R. p.644 and Umaru Adamu v. The State (2014) LPELR (SC)."Per TSAMMANI, J.C.A. (Pp , Paras. A- C) - read in context 5. CRIMINAL LAW AND PROCEDURE - DEFENCE OF INSANITY: Purpose and effect of plea of insanity "Now, the purpose of the plea of insanity is to negative intent. In other words if the Court finds the accused person to have been afflicted by insanity or in sane delusion, it would mean that he was incapable, in law, of forming the necessary intent to commit the act. It would therefore mean that all the essential ingredients of the offence would not have been proved."per TSAMMANI, J.C.A. (P. 58, Paras. B-D) - read in context

5 6. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in criminal cases; ways of proving the commission of a crime "Now, it is constitutionally enshrined in Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that; "every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty". This constitutional provision is an enshrinement of one of the general principles of legality which requires that a person should be presumed to be innocent until his accusers prove otherwise. Thus by this Constitutional Provision and Sections 131(1) & (2) and 132 of the Evidence Act, 2011, the prosecution has the onerous duty to prove that the person they accused of having committed a particular offence has infact and in law committed the offence charged. This burden is always on the prosecution, since if the prosecution fail to adduce any evidence at all, or the evidence adduced is weak or not credible the presumption of innocence would not have been rebutted. See Aruna v. State (1990) NWLR (pt.155) p.125; Usufu v. State (2007) 1 NWLR (pt.1020) p.94; Solola v. The State (2005) 11 NWLR (pt.937) p.460; The State v. Fatai Azeez & Ors (2008) 4 S.C. p.188; Posu & Anor v. The State (2011) LPELR (SC); Chidozie Anekwe v. The State (2014) LPELR (SC); Oladele v. Nigerian Army (2004) 6 NWLR (pt.868) p.166 and Onyedikachi Osuagwu v. The State (2016) LPELR (SC).?In discharging that burden, the prosecution must lead or tender credible and admissible evidence to establish all the essential elements of the offence charged. Accordingly where the prosecution is unable to lead any evidence on any of the essential elements of the offence or the evidence adduced is weak in the sense that it was controverted or discredited under Cross-Examination, the prosecution would have failed to prove the offence beyond reasonable doubt. See Niran Azeez Lawal v. The State (2016) LPELR (SC) per Kekere-Ekun, JSC; Oseni v. The State (2012) 5 NWLR (pt.1239) p.351 at 388; State v. Nnolim (1994) 5 NWLR (pt.345) p.394 and Captain K. A. Adeta v. Nigerian Army (2016) LPELR (CA). Thus, in the case of Onyedikachi Osuagwu v. The State (supra). Nweze, JSC state that: "In order, therefore to secure the conviction of an accused person for the offence of armed robbery, the prosecution must satisfy the requirements of these ingredients beyond reasonable doubt. Where this is not done, the case must fail. Put, differently, it is the prosecution's proof of these ingredients beyond reasonable doubt that would warrant a guilty verdict from the Court of trial,..."?by Section 138(1) of the Evidence Act, 2011, the prosecution will discharge the burden cast on them beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond any iota of doubt. It means that the Court should not allow any fanciful doubt or doubts which are merely ethereal to becloud its sense of justice. Proof beyond reasonable doubt therefore means proof that excludes every other reasonable hypothesis, other than that the accused and no other person committed the offence charged. See Oluwatoyin Abokokuyanro v. The State (2011) LPELR (CA): Shurumo v. The State (2010) 12 S.C. (pt.1) p.73 at ; Afolalu v. State (2010) 16 NWLR (pt.1220) p.584; Eke v. State (2011) 3 NWLR (pt.1235) p.589 and The State v.babangida John (supra). Thus, in the case of The State v. James Gwangwan (2015) LPELR (SC). My Lord, Ogunbiyi, JSC said: "A further reference made to the case of Oladele v. Nigerian Army (2004) 6 NWLR (pt.868) at 1166 is where this Court has this to say on what constitutes the phrase "beyond reasonable doubt." Proof beyond reasonable doubt in the realm of criminal justice connotes such proof as precludes every reasonable hypothesis except that which it tends to support. Certainly, it is not proof beyond all shadow of doubt." In an earlier case of Dibie v. State (2007) 9 NWLR (pt.1038) p.30, Tobi, JSC (of blessed memory) said: "Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. Once the proof downs the presumption of innocence of the accused, the Court is entitled to convict him, although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or the actus reus or both, the prosecution has discharged the burden placed on it by Section 138(3) of the Evidence Act." The prosecution can discharge the onus placed on it by any, or a combination of the following ways: (a) By evidence of eye witness(es) to the commission of the offense; or (b) By circumstantial evidence which leads conclusively that the accused person and no other person committed the offense; or?(c) By the voluntary confession of the accused, which is positive, unequivocal and duly proved that the accused admitted to have committed the offense. As stated earlier, the prosecution can establish the guilt of the accused by one or more of the above stated ways. See Mbang v. The State (supra); Igabele v. The State (2006) 6 NWLR (pt.975) p.975; Emeka v. State (2001) 14 NWLR (pt.734) p.666; Akpa v. State (2008) 14 NWLR (pt.1105) p.72; Stephen Haruna v. The A.G; Federation (2012) LPELR (SC) and Folorunsho Alufohai v. The State (2014) LPELR (SC) per Ariwoola, JSC."Per TSAMMANI, J.C.A. (Pp , Paras. E-C) - read in context

6 7. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict solely on the confessional statement of an accused person "?It is not in doubt that the Court can convict on a voluntary confession which is direct, positive and duly proved in finding for the prosecution. In other words, the Court can convict on a Confessional Statement alone, once is found to be been voluntarily made and it is direct, positive, unequivocal and conclusive on the offence charged. See Kaza v. State (2008) 7 NWLR (pt.1085) p.125; Tanko v. State (2008) 16 NWLR (pt.1114) p.597; Odu'a v. Fed. Rep of Nigeria (2002) 5 NWLR (pt.261) p.615 at 637 and Dukku Ishaya & Anor v. The State (2013) LPELR (CA). In the case of Rabi Ismail v. The State (2011) LPELR (SC), Tabai, JSC relying on the case of Egboghonome v. State (1993) 7 NWLR (pt.306) p.383 at , etc, stated that: "It is the trite law that an accused person can be properly convicted on his or her Confessional Statement alone if it is proved to have been made voluntarily and it is positive and amounts unequivocally to his or her confession of guilt."per TSAMMANI, J.C.A. (Pp , Paras. E-D) - read in context 8. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict on a retracted confessional statement; Duty of Court to test for the truth of the confession "It is the settled law that the Court can convict on a retracted Confessional Statement. In other words, the fact that an accused person has retracted or resiled from his Confessional Statement does not mean that the Court cannot act upon it to convict. See Lukman Osetola & Anor v. The State (2010) LPELR (CA); Hassan v. The State (2001) 15 NWLR (pt.745) p.184; Nwachukwu v. The State (2007) 17 NWLR (pt.1062) p.31; Akpan v. State (2001) 15 NWLR (pt.737) p.745; Fatai Busari v. The State (2015) LPELR (SC). However, before the Court can convict on such retracted statement, the Supreme Court has enjoined, that the Court should test or verify the truth of the confession with other evidence outside the confession. This was first settled in England in the case of R. v. Sykes (1913) C.A.R. p.113 and applied by the Supreme Court in several cases such as Achabua v. State (1976) N.S.C.C. p.74 and Yusufu v. State (1976) 6 S.C. p.167. See also Uluebaka v. The State (2000) 7 NWLR (pt.665) p.404; Asanya v. State 3 NWLR (pt.180) p.422; Kareem v. State (2002) FWLR (pt.125) p.796 at 810; The State v. James Gwangwan (2015) LPELR (SC) and Ubierho v. The State (2005) 5 NWLR (pt.919) p.644. In the case of Ogunsanya v. The State (2016) LPELR (CA), this Court held that the purpose of applying the tests as laid down in the case of R. v. Sykes (supra) is not to search for evidence that implicates the accused. The purpose of applying the test is to determine the truth of the facts stated in the confession, so as to enable the trial Court determine the probative value of the statement which the prosecution allege to be Confessional. The principles that will guide the Court in evaluating the Confessional Statement were set out in the case of Shurumo v. The State (2000) 16 NWLR (pt.1218) p.65 at 119 paragraphs E - G as follows: (a) Whether there is anything outside the confession to show that it is true; (b) Whether the statement is corroborated; (c) Whether the confession was consistent with other facts which have been ascertained and proved at the trial; (d) Whether the accused person had the opportunity of committing the offence; (e) Whether the confession is possible; and (f) Whether the facts stated in the Confessional Statement so far as can be tested true. The above stated principles have been applied by the Supreme and this Court in several cases such as Akpan v. State (2007) 2 NWLR (pt.1019) p.500; Nwachukwu v. The State (2007) All FWLR (pt.421) p.540; Lasisi v. The State (2013) LPELR (SC); Okunade Kolawole v. The State (2015) LPELR (SC) and Obi v. Chief of Naval Staff (2002) 2 NWLR (pt.751) p.400."per TSAMMANI, J.C.A. (Pp , Paras. C-E) - read in context 9. EVIDENCE - PRESUMPTION OF SANITY: The presumption of the law as regards the sanity of an accused person "Generally, however, the law presumes that every person, unless the contrary is proved, is sane and accountable for his actions. However, circumstances may arise when that presumption of sanity may be negatived or rebutted. One of such circumstances may arise where the actor or assailant is found to be afflicted by insanity or insane delusion. In the case of Ani v. State (2002) 10 NWLR (pt.776) p.644, Katsina- Alu, JSC (as he then was) said: "Every person is, unless the contrary is proved, presumed by law to be sane, and to be accountable for his actions. But it there is an incapacity, or defect of understanding, as there can be no consent of the will, the act is not punishable as a crime. Whether the accused person was sane in the legal sense 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 is dependent upon the previous and contemporaneous acts of the accused."per TSAMMANI, J.C.A. (P. 42, Paras. A-E) - read in context

7 10. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: On whom lies the burden of proving insanity; the standard of proof required for proving same "As stated earlier, a prisoner who pleads insanity is not required to prove same beyond reasonable doubt. The burden cast on him to be discharged on a balance of probabilities. All the prisoner needs to do in a plea of insanity is to lead evidence which will satisfy a reasonable Court or tribunal that he was infact afflicted by insanity or insane delusion at the time he committed the act. The evidence led need not prove the fact of insanity beyond reasonable doubt. Once he is able to lead some evidence, the burden will be shifted on the prosecution to proffer evidence which will controvert the claims of the defence. If the defence leads such evidence and the prosecution fails to controvert or discredit same, the plea of insanity will be sustained. See Oghenereumu Ibane v. The State (2012) LPELR (CA), Loke v. State (1985) 1 NWLR (pt.1) p.1."per TSAMMANI, J.C.A. (Pp , Paras. C-A) - read in context

8 HARUNA SIMON TSAMMANI, J.C.A.(Delivering the Leading Judgmet):This appeal is against the judgment of the Ogun State High Court, delivered by O. O. Majekodunmi, J on the 10th day of March, 2014 in Suit No. AB/19C/2012. The Appellant herein was arraigned on a one count charge of murder contrary to Section 316 and punishable under Section 319 of the Criminal Code Law, Laws of Ogun State of Nigeria, He is said to have on the 25/4/2009 at Ibrara-Orile in the Abeokuta Judicial Division of Ogun State of Nigeria, killed one Sidikat Abeni by giving her several matchet cuts. The Appellant raised the defence that he was suffering from insanity or insane delusion so that he did not know the consequence of his action. In other words, the Accused/Appellant pleaded the defence of insanity. At the trial, the prosecution called only one witness, who was the Investigating Police Office, and tendered a cutlass and the Statement of the Accused/Appellant made to the Police. They were admitted in evidence as Exhibits P1, P2 and P3 respectively. The Appellant testified in his defence as DW1 and a Medical Doctor, a Consultant Psychiatrist was 1

9 summoned testify and did testify as DW2. The said DW2 tendered in evidence a Letter from the Neuro-Psychiatric Hospital (Exhibit D2). At the close of evidence counsel submitted Written Addresses and in a judgment delivered on the 10th day of March, 2014, the learned trial Judge found the Appellant guilty of the crime of murder. The Appellant is discontented with the judgment and has therefore filed this appeal. The Notice of Appeal at pages of the Record of Appeal was dated the 7/5/2014 and filed on the 15/5/2014. It consists of six (6) Grounds of Appeal. The parties then complied with the Rules of this Court by filing and exchanging Briefs of Arguments. The Appellant s Brief of Arguments was dated the 04/5/2016 and filing on the 10/5/2016. Therein, two issues were distilled for determination as follows: 1. Whether the trial Court erred in law in convicting the Appellant of murder inspite of the fact that the defence of insanity had been raised and established before it. [Grounds 3, 4, 5 and 6]. 2. Whether the trial Court erred in law in relying on Exhibit P2 and Exhibit P3 (alleged Confessional Statement of the 2

10 Appellant) to hold that the prosecution had established the offence of murder against the Appellant beyond reasonable doubt. [Grounds 1 and 2]. The Respondent s Brief of Argument was dated the 20/9/2016 and filed on the 22/9/2016. The Respondents formulated two (2) issues for determination as follows: 1. Whether the prosecution proved the offence of murder against the Appellant beyond reasonable doubt. 2. Whether from the totality of the evidence adduced by the prosecution, the trial Judge was right in convicting the Appellant of murder despite the defence of insanity raised by the Appellant. I have carefully reflected on the issues distilled by the Appellant and Respondents. I am of the view that from the totality of oral and documentary evidence adduced at the trial, as depicted on the record, this appeal can be effectively on only one issue. That is: Whether from the totality of the evidence adduced at the trial, the prosecution proved the charge of murder against the Appellant beyond reasonable doubt. Now, on the issue, learned counsel for the Appellant submitted that the trial Court erred in law in 3

11 convicting the Appellant of murder inspite of the fact that the defence of insanity had been raised and established before it. That it is now settled by Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 that the burden of proof of an allegation of crime rests squarely on the prosecution. That, this is against the backdrop of the presumption of innocence guaranteed an accused person, as the burden of proving his guilt rests permanently on the prosecution. That the burden must be discharged beyond reasonable doubt. The cases of Woolmington v. DPP (1935) A.C. p.24; Onafowokan v. State (1987) 3 NWLR (pt.16) p.538 and State v. Ajie (2000) 7 S.C. (pt.1) p.4 were cited in support. That proof beyond reasonable doubt does not mean proof beyond every iota of doubt. That all is required of the prosecution is to adduce evidence which will lead to no other explanation except that the accused committed the offence. Learned Counsel for the Appellant then submitted that the guilt of an accused person can be proved by, (a) Confessional evidence, (b) circumstantial evidence, and (c) direct evidence of eye witnesse(es). The case of Emeka v. The 4

12 State (2001) M.J.S.C. Vol.5 paragraph 1 was cited in support; and to further submit that, in the instant case, the prosecution relied on the alleged Confessional Statements of the Appellant to prove that he had committed the crime. Section 29(1) and (2) of the Evidence Act, 2011 and the cases of Adio v. The State (1982) NWLR (pt.24) p.581 at 584; Nwaebonyi v. State (1994) 5 NWLR (pt.343) p.138; Auta v. The State (1975) N.N.L.R, p.60 at 65; Adekanbi v. Attorney-General, Western Nigeria (1966) All N.L.R. p.47; Musa Saidu v. The State (1982) 4 S.C. p.41 and Jona Dawa v. The State (1980) 8 11 S.C. p.7 at 29 were cited to submit that a Confessional Statement can only ground a conviction if it is voluntary, direct, freely and positively made. That the burden of proving that a confession was voluntarily made by an accused person is on the prosecution. It was then submitted by learned counsel for the Appellant that the prosecution failed to establish the guilt of the Appellant beyond reasonable doubt as required by law in that the said Confessional Statements were retracted and thus the only evidence in favour of the prosecution is the testimony of PW1. 5

13 That in his defence, the Appellant testified at the trial that he did not make any statement to the effect that he killed the deceased. That he maintained that he could not remember attacking the deceased but could remember being tied up and handed over to the Police. That in any case, even if the Appellant did not retract the Confessional Statement, by Section 29(2)(b) of the Evidence Act, 2011, such admission is not conclusive proof the matters admitted and that circumstances may exist at the time of making it which is likely to render unreliable such confession. That in the instant case, the Appellant testified to suffering a mental illness which is enough to render the confession unreliable. It was further contended by learned counsel for the Appellant that, the Appellant having denied the contents of Exhibits P2 and P3, the trial Court ought not to have admitted same as Confessional Statement unless the Respondent proved its authenticity beyond reasonable doubt. The cases of Ogudo v. The State (2011) 18 NWLR (pt.1278) p.1; R v. Sykes (1913) 8 C.A.R. p.233; Kanu & Anor v. The King (1952) 14 W.A.C.A. p.30; Dawa v. State (supra); Nwachukwu v. The 6

14 State (2002) 12 NWLR (pt.782) p.543, etc were then cited to submit that before the trial Court could properly convict on the retracted Confessional Statement, it ought to have examined the confession in line with other evidence adduced at the trial so as to determine whether the confession is true. That in the instant case, the learned trial Judge failed to apply the test in order to verify the truth of the confessions made by the Appellant in Exhibits P2 and P3. It is also the submission of learned counsel for the Appellant that if the Confessional Statements were excluded, the only other evidence would be the testimony of the PW1. That the testimony of the PW1 did not meet the standard required for the proof of the crime of murder; because: (i) The murder was committed on the 25/4/09 but the contact of the PW1 with the Appellant was only on the 14/5/09, about twenty days after the crime was committed. (ii) The Appellant and exhibits were handed over to her by officers from another Police Station, and therefore the PW1 was not the investigating Police Officer of the crime and was not at the scene soon after the 7

15 commission of the offence and was not able to witness the demanour of the Appellant at any material time of the commission of the offence. (iii) There was nothing to show that PW1 and her team conducted any investigation as she could not remember the name of any of the witnesses that made statements as witnesses to the crime. None of the makers of those statements was called to testify and that everything PW1 knew about the matter came from the earlier statements made at Lafenwa Police Station. It was therefore submitted that the PW1 was an incompetent witness as her testimony was based on information she received from other people, and therefore hearsay. Learned Counsel then reeled out about several posers which he contended raised reasonable doubts which were never resolved by the prosecution. The case of Oludamilola v. State (2010) 18 NWLR (pt.1197) p.565 was then cited to contend that the prosecution did not discharge the burden of proof placed on it by law and therefore the prosecution should not have relied on the alleged Confessional Statements without applying the tests set out in R. v. Sykes (supra). On the defence of insanity raised 8

16 by the Appellant, learned counsel contended that, if an accused person contends that he was insane or suffers from insane delusions, he has the duty to rebut the presumption of law which regards all persons to be sane until the contrary is proved. He referred to Sections 27 and 28 of the Criminal Code Law of Ogun State, 2006 to submit that, it is the law that, an accused person who pleads the defence of insanity must establish that he is in such a state of mental disease or natural mental infirmity as to deprive him of (a) the capacity to understand what he was doing; or (b) of the capacity to control in actions; or (c) of the capacity to know that he ought not to do the act or make the omission. The cases of Onyejekwe v. The State (1988) 1 NWLR (pt.72) p.565 at 579; M. A. Sanusi v. The State (1984) 10 S.C. p.166 at and Imasuen v. State (2014) LPELR (CA) were cited to list some of the methods of proving whether or not the defence of insanity can be supported; to wit: (a) Past history of the accused; (b) Conduct of the accused immediately preceding the killing. (c) Testimony of prison officials who had custody 9

17 of the accused pending and during trial. (d) Evidence of a Medical Officer or Psychiatrist who had examined him. (e) Evidence of relatives who can testify about the general behavior of the accused and his reputation for insanity. (f) Evidence that insanity appears in the family history of the accused. Learned Counsel for the Appellant then submitted that the standard of proof of insanity is by preponderance of evidence. The cases of Kure v. The State (1998) 1 NWLR (pt.72) p.404; R. v. Inyang (1946) 12 WACA p.5; Karimu v. The State (1989) 1 NWLR (pt.96) p.124; Ogbu v. The State (1992) 10 SCNJ. p.88 at 99 and Okon Edoho v. The State (2010) 4 S.C.N.J. p.100 were cited in support. That in the instant case, the Appellant as DW1 gave uncontroverted evidence at the trial that he suffered from occasional bouts of mental illness even when growing up as a child, which deprived him of the ability to control himself and his actions. That the DW2, Dr. Adegboyega Ogunwale, a Consultant Psychiatrist testified as to his findings on the mental health of the Appellant. That the DW2 testified that he observed a positive family history of mental 10

18 illness in the mother of the Appellant; and the said medical Report of the Appellant s mental history was tendered in evidence as Exhibit D3. Learned Counsel for the Appellant then submitted that evidence was placed before the trial Court which established that the Appellant indeed had a history of mental illness. It was further submitted by learned counsel for the Appellant, that the facts of the case show on a preponderance of evidence that the Appellant was insane at the time of the commission of the offence. That the testimonies of the Appellant and that of DW2 were uncontroverted and unchallenged and therefore ought to have been accepted by the trial Court. The case of Imo & Ors v. The State (2000) LPELR 5871 (CA) was cited in support. Learned Counsel then submitted that, where an accused person has led evidence which show that at the time of the commission of the offence with which he is charged, he was of unsound mind such that he was unable to comprehend either the nature or consequences of his actions, such an accused person must, as a matter of law, be discharged and acquitted of the crime. That it is so because, insanity robs 11

19 the accused person of one of the fundamental elements required to proof the offence of murder, i.e. intention. The cases of Okebata v. State (2013) LPELR (CA) and Umar v. State (2014) LPELR (SC) were then cited with reference to the ingredients of murder, to further submit that the necessary implication of the proof of the defence of insanity is that the element of intention has been disproved. Section 28 of the Criminal Code Law of Ogun State (supra) was then cited to submit that the Appellant adduced sufficient evidence to establish the defence of insanity, and that the trial Court erred in convicting him of the offence of murder. On that note, we were urged to allow the appeal. Responding, R. B. Kadiri (Mrs.) of learned Assistant Director of Public Protections, Ogun State Ministry of Justice, began by citing the cases of Edoho v. The State (2010) 6 S.C.M. p.52 at 69; Mbang v. The State (2012) 10 S.C.M. p.31 at 44 paragraphs B C and Ochiba v. State (2011) 12 S.C.M. (pt.2) p.284 at 302, to list the ingredients of the offence of murder. Learned Counsel then referred to Exhibits P2 and P3 wherein the Appellant is said to 12

20 have confessed to have killed the deceased, to submit that the 1st ingredient, i.e; that the deceased Sidikat Abeni died is not in issue. Learned A.D.P.P. also referred to the testimony of PW1, Exhibits P1, P2 and P3 to submit that the second (2nd) ingredient, to wit: that death of the deceased resulted from the act of the Appellant was also proved. We were then urged to hold that the evidence before the Court had discharged the burden of proving that the Appellant caused the death of the deceased. On the third ingredient of murder, which is to the effect that the Appellant had the intention to kill the deceased, learned counsel for the Respondent referred to the case of Nwokeanu v. State (2013) 9 S.C.M. p.124 to contend that intention has been defined as the purpose or design with which an act is performed; or the foreknowledge of the act coupled with the desire to do the act. That in law, intention can be inferred from the instrument used and the force applied; and that in the instant case, the weapon used is a cutlass which is a lethal weapon. The case of Michael v. State (2008) 10 S.C.M. p.83 at 85 was also cited in support. Learned Counsel 13

21 then contended that Exhibits P2 and P3 were tendered without objection wherein the Appellant admitted that he killed the deceased because she was hiding his lover from him. The case of Iliyasu v. State (2015) 2 S.C.M. p.114 at pp paragraphs A C was then cited to submit that though the Appellant retracted from the Confessional Statement, the law is that retraction does not render Exhibits P2 and P3 in admissible. Learned Counsel for the Respondent also argued that the trial Court had erred in admitting Exhibits P2 and P3 and relying on same to convict the Appellant. It was then submitted that the Appellant did not object to the admissibility of Exhibits P2 and P3 at the trial even though he was represented by counsel. That the proper time to raise objection to the admissibility of those Exhibits was at the point of tendering them, and therefore it was late at this stage to raise the objection. It was further submitted that the learned trial Judge was therefore right to have relied on Exhibits P2 and P3, as a Voluntary Confessional Statement made by an accused person and tendered without objection does not need any further 14

22 corroboration. On the number of witnesses called by the prosecution, learned counsel for the Appellant submitted that, the prosecution has a discretion as to the number of witnesses it will call. The case of Akalolu v. State (2002) 14 S.C.M. p.43 at was then cited to submit that the prosecution need not call a multitude of witnesses. That in the instant case the prosecution called one witness, i.e. PW1 in the person of Philomena Imaria, a Woman Police Sergeant attached to the Homicide Section at the State C.I.D, Eleweran, Abeokuta, who gave the vivid role she played in the investigation of this case. It was thus submitted that the testimony of PW1 cannot therefore be hearsay considering that she recorded the statement of the Appellant and the role she played in the investigation of the case. That, apart from recording the statement of the Appellant, PW1 visited the scene of crime and also had contact with the Appellant. We were then urged to hold that the PW1 was a competent witness and as such the learned trial Judge was right to have relied on it. On the defence of insanity raised by the Appellant, learned counsel for the Appellant 15

23 cited Section 27 of the Criminal Code Law of Ogun State, 2006 to contend that, every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his actions until the contrary is proved. He then cited the cases of Edoho v. The State (2010) 6 S.C.M. p.52 at and The State v. Babangida John (2013) 11 S.C.M. p.172 at 192 to submit that the presumption of sanity can only be dislodged by the accused who alleged insanity on the balance of probability. That in the circumstances, the accused would have to lead credible evidence to show that he was suffering from insanity or insane delusion at the time he committed the offence. Learned Counsel then cited the case of Ejinima v. State (1991) 6 NWLR p.627 at 646 paragraphs E G (wrongly cited) to list the several ways of proving insanity. That in the instant case, the past history of the Appellant was relayed by the Appellant himself in Exhibits P2 and P3. That the Appellant claimed that he first had the problem in 1998 whereof his father took him to Ope-Oluwa Hospital, Shokori, Abeokuta and one Musibau Oseni also took him to Aro Psychiatric Hospital, Abeokuta 16

24 for treatment. That, however, the Appellant neither called his father as a witness to testify to the past mental sickness as claimed nor was there any Medical Report from the said Ope-Oluwa Hospital. That in the instant case, there is no independent evidence on record to corroborate the assertion of the Appellant as regards his past mental illness. Furthermore, that from the testimony of PW3, the Appellant was first presented at Aro Psychiatric Hospital on the 30/4/09, and that there is no such evidence of earlier treatment of the Appellant in the Aro Hospital prior to the 30/4/09. We were then urged not to rely on the past mental record of the Appellant. It is also the contention of learned counsel to the Respondent that, the duty of the Appellant who raised the defence of insanity was to show that, at the time the offence was committed, he was suffering from either a mental disease or natural mental infirmity. That in the instant case, PW2 stated that upon presentation at the emergency unit of the Hospital on the 30/4/2009, the Appellant gave account of the incident that brought him into contact with the law. That the Appellant gave a recollection of 17

25 the events of what transpired between him and the deceased and was not under any delusion. Learned Counsel then drew our attention to the testimony of PW2 and Exhibit P3 to urge us to hold that the act of the Appellant was premedated. That this is more so as none of the relatives of the Appellant gave evidence about the general behavior of the Appellant and the reputation he had for either sanity or insanity in the neighbourhood. That neither the mother of the Appellant nor the social worker came to Court to testify nor any reason given for not calling them to testify. It was further submitted that, an overview of the evidence of DW2 show clearly that there is no conclusive diagnosis of insanity in respect of the Appellant, though he had exhibited certain abnormal behaviours. That Exhibit D3 (the Medical Report) is not more helpful than the oral testimony of DW2. Furthermore, that the testimony of DW2 on the past medical record was only relayed to the DW2 by the Appellant, and that there is no independent account of the past mental record of the Appellant outside what the Appellant relayed to DW2. We were then referred to the case of Isibor v. The State 18

26 (2002) 2 S.C.N.J. p.162 at 168 for the submission that, when a trial Court has performed its primary duty of assessing and evaluating the evidence before it, and has made findings which justify the verdict, this Court should not make contrary findings particularly when those findings depend on the credibility of the witnesses. We were then urged not to believe that the Appellant was insane at the time he killed the deceased. The case of Agbamji v. The State (1995) NWLR (pt.369) p.22 to submit that the findings of the trial Court are supported by the evidence on record. That, the learned trial Judge found as a fact that the Appellant committed the offence charged, and that the plea of insanity did not avail him. We were accordingly urged not to disturb the findings of facts made by the trial Court, as same was neither perverse nor erroneous. Now, it is constitutionally enshrined in Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that; every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. This constitutional provision is an enshrinement of one 19

27 of the general principles of legality which requires that a person should be presumed to be innocent until his accusers prove otherwise. Thus by this Constitutional Provision and Sections 131(1) & (2) and 132 of the Evidence Act, 2011, the prosecution has the onerous duty to prove that the person they accused of having committed a particular offence has infact and in law committed the offence charged. This burden is always on the prosecution, since if the prosecution fail to adduce any evidence at all, or the evidence adduced is weak or not credible the presumption of innocence would not have been rebutted. See Aruna v. State (1990) NWLR (pt.155) p.125; Usufu v. State (2007) 1 NWLR (pt.1020) p.94; Solola v. The State (2005) 11 NWLR (pt.937) p.460; The State v. Fatai Azeez & Ors (2008) 4 S.C. p.188; Posu & Anor v. The State (2011) LPELR 1969 (SC); Chidozie Anekwe v. The State (2014) LPELR (SC); Oladele v. Nigerian Army (2004) 6 NWLR (pt.868) p.166 and Onyedikachi Osuagwu v. The State (2016) LPELR (SC). In discharging that burden, the prosecution must lead or tender credible and admissible evidence to 20

28 establish all the essential elements of the offence charged. Accordingly where the prosecution is unable to lead any evidence on any of the essential elements of the offence or the evidence adduced is weak in the sense that it was controverted or discredited under Cross-Examination, the prosecution would have failed to prove the offence beyond reasonable doubt. See Niran Azeez Lawal v. The State (2016) LPELR (SC) per Kekere-Ekun, JSC; Oseni v. The State (2012) 5 NWLR (pt.1239) p.351 at 388; State v. Nnolim (1994) 5 NWLR (pt.345) p.394 and Captain K. A. Adeta v. Nigerian Army (2016) LPELR (CA). Thus, in the case of Onyedikachi Osuagwu v. The State (supra). Nweze, JSC state that: In order, therefore to secure the conviction of an accused person for the offence of armed robbery, the prosecution must satisfy the requirements of these ingredients beyond reasonable doubt. Where this is not done, the case must fail. Put, differently, it is the prosecution s proof of these ingredients beyond reasonable doubt that would warrant a guilty verdict from the Court of trial,.. By Section 138(1) of the Evidence Act, 21