(ABUJA DIVISION)
WEDNESDAY 2nd AUGUST, 2017
BEFORE THEIR LORDSHIPS
- ABUBAKAR D. YAHAYA, (Presiding) JCA
- TANI YUSUF HASSAN, JCA
- MUHAMMED MUSTAPHA, JCA
COUNSEL FOR PARTIES
F E Itula with
V. Edeh (Mrs.),
E. M. Odukuye and
O. Obi (Miss) for the Appellant.
M.G Chiroma (DPP) Niger State with
J.K Alfa (State Counsel) for the Respondent.
APPEAL This is an appeal against the decision of the Hon. Justice A.L.B Bwari of the High Court of Justice, Suleja Niger State wherein the appellant was convicted and sentenced to death by hanging for the offence of Culpable Homicide punishable with death under section 221 of the penal code.
ISSUES OF LAW INVOLVED
CMINAL LAW AND PROCEDURE: Proof of offence of culpable Homicide under the penal code.
EVIIDENCE: Burden of proof by the prosecution-Section 139(1) of the Evidence Act 2011
PRACTICE AND PROCEDURE: Number of witnesses to be cal2d in proving the case of the prosecution
EVIDENCE: Confessional Statement of an accused person-Meaning and Effect
EVIDENCE: Hearsay evidence-What constitutes
STATUTES Purport of Section 221 of the Penal Code
STATUTES: Section 27(1) & 29(2) of the Evidence Act-meaning and effect
EVIDENCE: Tendering of document without objection-Effect
PRACTICE AND PROCEDURE: Defence of insanity-How to prove
ISSUES FOR DETERMINATION
a. whether considering the totality of the evidence adduced by the prosecution at the trial court the' prosecution did not prove its case beyond reasonable doubt.
b. Whether the defence of insanity or any other defence availed the appellant.
SUMMARY OF THE FACTS OF THE CASE
The Accused/Appellant herein was charged at the court of first instance with the offence of culpable homicide punishable with death under section 221 of the penal code.
The Appellant pleaded not guilty to the charge. In proving his case, the prosecution called a total of 6 witnesses and tendered 3 Exhibits namely Exhibits A, B and C respectively while the Appellant in his defence called 3 witnesses and did not give evidence for herself.
At the end of the trial, the court convicted the Appellant for the offence charged and sentenced her to death by hanging. The Appellant being dissatisfied with the decision of the trial court appealed to the Court of Appeal which affirmed the decision of the trial court and dismissed the appellant's appeal as lacking merit.
HELD (Unanimously dismissing the appeal):
- The free and voluntary confessional statement of an accused person which is unequivocal, direct and positive is sufficient to ground his conviction without the necessity of any corroborative evidence.
PER EKO, JSC [RATIO 1]
ON CONVICTING AN ACCUSED ON CONFESSIONAL STATEMENT ALONE
When a person is charged with a crime, and he volunteers a statement admitting or inferring that he committed that crime, he is said to have confessed to the commission of the crime. The admission can be judicial or extra-judicial. It can be oral or in writing. See Section 27(1) of the Evidence Act; AKPAN V. THE STATE (2001)15 NWLR (Pt. 373); DARE JINLOH V. THE STATE (2014) LPELR -- 22464 (SC) and TIRIMISIYU ADEBAYO V. THE STATE (2014) 5 SCNLR 825. The law is clear. Once the court is satisfied of the truth of a confessional statement being free and voluntarily made by the defendant as to his guilt, and it is direct and positive, then it can convict him without the necessity of any corroborative evidence. -- Section 29(2) of the Evidence Act; YESUFU V. STATE (1976) 6 SC 167; OGOALA V. THE STATE (1991) 2 LRCN 66 per Olatuwara JSC; HASSAN V. STATE (2001) 15 NWLR (Pt. 735) 184 and OGEDENGBE V. STATE (2014) 6 SCNJ 221 at 243.
PER EKO, JSC [RATIO 2]
ON NEED FOR CORROBORATION OF CONFESSIONAL STATEMENT
Although it is the law, that a clear unequivocal direct, free and voluntary confession alone is sufficient to ground a conviction, the courts as a matter of practice, have tended to look for some evidence, no matter how slight, outside the confession itself, in order to be satisfied that the confession is true -- NJOKU V. THE STATE (1992) 8 NWLR (Pt. 263) 714.... Apart from the confessional statements, the trial courts referred to other evidence led, to see if the confessional statements were true and, have been corroborated in line with the practice enunciated in SHAZALI V. STATE (Supra) at pg. 135-136.
- The Court as a rule of practice will always consider pieces of evidence outside the confession of the accused in order to be satisfied that the confession is true
PER EKO, JSC [RATIO 3]
WHEN TO RAISE OBJECTION TO ADMISSIBILITY OF A STATEMENT
The two confessional statements in this case, Exhibits A and B, were tendered and although there was an initial objection b the defendant, this was withdrawn and the two statements were admitted in evidence without objection. When the confessional statement is tendered by the prosecution, and the defendant raises no objection, and it is admitted in evidence thereto, it is a conclusive evidence of the voluntariness of that confessional statement. See OSUAGWU V. STATE (2013) 1 -- 2 SC, 194. Further, in this appeal, the defendant never raised or led any evidence to establish that the confessional statements were not voluntary. They were therefore rightly admitted in evidence and correctly relied upon. It is too late in the day and therefore totally unacceptable, for any objection to the voluntariness of the confessional statements admitted without objection, to be raised afterwards. The time to raise an objection to the admissibility of a statement is at the point of its being tendered, not afterwards ADEBAYO V. STATE (2014) 5 SNNJ 825 at 883.
PER EKO, JSC [RATIO 4]
PRESUMPTION OF SANITY AND ELEMENTS TO PROVE THE DEFENCE OF INSANITY
On the issue of insanity, the law is that in all criminal cases, every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his criminal acts, until the contrary is proved -- GUOBADIA V. STATE (2004) 6 NWLR (Pt. 869) 360. In BABANGIDA JOHN V. STATE (2011) LPELR -- 8781 CA, this court following the case of ANI V. STATE (2007) 17 NWLR (Pt. 742) pg. 411 at 427-428, held that:
In order to establish the defence of insanity, the defence must prove:
(a.) that at the relevant time of committing the offence, the accused was suffering from either mental disease or natural mental infirmity; and (b.) that the mental disease or natural mental infirmity was such that at the relevant time, the accused was as a result, deprived of capacity to understand what he was doing to control his action or to know that he ought not to do the act or make the commission.
- Before the law, every man is presumed to be sane and to be responsible for his criminal acts. For the defence of insanity to be sustained under our criminal law, the defence must, on the balance of probability, prove same to the satisfaction of the court.
PER EKO, JSC [RATIO 5]
ON PROVING THE DEFENCE OF INSANITY
The trial court considered the defence of insanity put up by the appellant and dismissed it. It was right. It also considered the defences of mistake or accident and also dismissed them. The Court was right. At pages 141 -- 145, the trial court considered the evidence led in support of the defence of insanity, and held at page 145 that --
The testimonies of DW1 -- 3 and Exhibit 'A' do not in my firm humble view, provide a probable explanation to the defence of isanity by the accused.
The court was right because there was no credible evidence of mental disease or infirmity led before the court. No medical report or explanation was furnished. Headaches or silence during conversation are not firm evidence in themselves, of mental disease or infirmity. Even if there was anything remotely suggesting that the appellant was suffering from the mental incapacity, such was not at all connected to the day and time the appellant committed the offence. This is a crucial lacuna because the mental infirmity, for it to be a defence to the criminal action of the appellant, had to be at the relevant time of the commission of the crime, so that she could not understand what she was doing, to control her action or to know that she ought not to have done the act.
- Where the accused person relied on a defence of insanity in a criminal trial, such defence can only be sustained by credible evidence led by the defence and not otherwise.
PER EKO, JSC [RATIO 6]
WHEN DEFENCE OF INSANITY WILL FAIL
On the contrary, Exhibit A is explicit. She knew very well what she was doing and she said she was doing so, to extract revenge on the father of the deceased for conceiving her and denying the pregnancy. Revenge and not insanity seems to have been the motive. ...She stated in Exhibit A thus:
"...I killed her because I was annoyed with her father who put me in a family way and denied me and my child...Hence my evil thought, plan and execution....l am sorry about the whole thing....My action was to make sure that Timothy (deceased father) will feel it the way I have been bad about the way he kept me but I realized that my action was wrong at last..."
This is not the statement of a person suffering from any mental disease, mental infirmity or delusion. It is the statement of a person in full control of his senses, who meticulously planned and executed the act in order to revenge a wrong.
- Defence of insanity cannot in law avail a person who knew very well what she was doing and who said unequivocally that she was doing so.
PER EKO, JSC [RATIO 7]
NO PARTICULAR NUMBER OF WITNESSES REQUIRED TO PROVE A FACT
The fact that one Mike Ayemere, who the appellant sought to implicate in the dastardly act, in Exhibit B, was not celled is not a contradiction. He was also not a necessary or vital witness. A host of witnesses is not required to prove a case beyond reasonable doubt. One witness on vital points is sufficient. The defence is not in a position to dictate or require the prosecution to call particular witness or a number of witnesses and the onus is solely on the prosecution to prove a criminal case beyond reasonable doubt, and it is the master as to go about doing this, in any particular case without any impute or interference by the defence -- ODILI V. STATE (1977) 4 SC 1; IME V. STATE (2008) 13 NWLR (Pt. 11104) 225; SULE V. STATE (2009) 17 NWLR (Pt. 1169) 33 at 57 -- 58, and OCHIBA V. STATE (2011) 17 NWLR (Pt. 1277) 663
- In a criminal trial, the prosecution need not call a host of witnesses to prove a case beyond reasonable doubt and the defence cannot dictate to the prosecution who to call as a witness. What is required of the prosecution is to prove the vital ingredients of the case and if it achieves that with one witness, so be it. STATUTE AND RULES OF COURT REFERRED TO IN THE JUDGMENT
(a.)Section 221 of the penal code
(b.)Section 27(1), 29(2) and 41 of the Evidence Act, 2011
CASES REFERRED TO IN THE JUDGMENT
Adebayo V. State (2014) 5 SCNJ 825 at 883
AIhaji Isa V. Alhaji Bukar Saje (2012) ALL FWLR (Pt. C44) 127 at 133.
Ajayi V. State (2013) 18 NWLR (Pt. 1360) 589
Akpan V. The State (2001) 15 NWLR (Pt. 373
Alarape V. State (2001) FWLR (Pt. 41) 1872
Alhassan Maiyeki V. State (2008) ALL FWLR (Pt. 419) 520 (CA)
Amuneke V. State (1992) NWLR (Pt. 217) 335
Ani V. State (2007) 17 NWLR (Pt. 742) 411 at 427-428
Babangida John V. State (2011) LPELR-8781 (CA)
Dare Jimoh V. The State (2014) LPELR-22464 (SC)
Effiong Udofia V. The State (1981) 11-12 SC 49 at 60-61
Guobadia V. State (20040 6 NWLR (Pt. 869) 360
Hassan V. State (2001) 15 NWLR (Pt. 735) 164
Hodigwe V. State (2012) 18 NWLR (Pt. 1331) p. 1 at 11Akwuobi V. State (2017) 2 NWLR (Pt. 1556: 426-427
Ime V. State (2008) 13 NWLR (Pt. 1104) 225
Ishola Karimu V. The State (1989) 1 SCNJ 74
James Anyim V. The State (1983) 1 SCLR 37C at 377
Kakih V. PDP (2014) 7 SCNJ 65 at 108
Mbang V. The State (2013) 7 NWLR (Pt. 1352) 48
Ngene Aruni V. The State (1979) 11 SC 9 at 94
Njoku V. The State (1992) 8 NWLR (Pt. 263) 714
Oayinka V. State (2007) 9 NWLR (Pt. 1040) 561
Ochiba V. State (2011) 17 NWLR (Pt. 1277) 663
Odili V. State (1977) 4 SC 1
Ogedengbe V. State (2014) 6 SCNJ 221 at 243
Ogoala V. The State 91991) 2 LRCN 66
Okoh V. State (2014) ALL FWLR (Pt. 736) 443 at 460-461
Osuagwu V. State (2013) 1-2 SC 194
Sanusi V. The State (1784) 10 SC 166 at 177
Shazali V. State (1988) 5 NWLR (Pt. 93) 164
Sule V. State (2009) 17 NWLR (Pt. 1169) 33 at 57-58
The State V. Azeez & Ors (2008) ALL FWLR (Pt. 424) 1423
The State V. Babangida John (2013) LPELR 20390 (SC)
Tirimisuyu Adebayo V. The State (2014) 5 SCNJ 825
Walton V. The Queen (1978) A.C 788 (PD) at 793
Yesufu V. State (1976) 6 SC 167
JUDGMENT
Delivered by ABUBAKAR DATTI YAHAYA, JCA
This is an appeal against the decision of the Hon. Justice A.L.B Bwari of the High Court of Justice, Suleja Niger State wherein the appellant was convicted and sentenced to death for the offence of culpable homicide punishable with death under Section 221 of the Penal Code.
According to the prosecution, the appellant in this case was alleged to have on or about the 12th day of June, 2010 taken one Chinonye Timothy, a two year old girl to an uncompleted building and killed her. She thereafter put the deceased in a bagco bag and threw it in a bush dose to Mr. Peter Dabo's farm. The said Mr. Peter Dabo had seen the appellant on that fateful day with the bag as she walked passed him and they exchanged pleasantries. On the 28 of July, 2010 after 46 days since the child got missing, the remains of a child was discovered by Mr. Peter Dabo under a tree close to his farm where there was a strong smell and he thereafter alerted the authorities to his finding.
The appellant gave an initial statement claiming that one Mike Ayemere put her up to kidnapping the child with an intention to kill the child for ritual purposes but later reneged and said it was solely her own doing as payback for years of neglect she suffered in the hands of the deceased's father.
In order to discharge the burden on her, the prosecution called 6 witnesses and tendered 3 exhibits namely, Exhibits A, B and C. The appellant in her defence called 3 witnesses and did not give evidence for herself. At the end of the trial, the court convicted the appellant for the offence charged and sentenced her to death by hanging. Hence this appeal.
The appellant's brief of argument settled by Fredricks E. Itula is dated and filed on the 16th day of December, 2016. In it, four (4) issues for determination were raised. They are:
Whether the defence of insanity as raised in defence by accused ought to have availed the accused considering the compelling facts and circumstances of the matter.
Whether the reliance We trial court placed on the confessional statement and circumstantial evidence in this matter, in determining an offence with capital punishment did not occasion a miscarriage of justice.
Whether the honourable court was right in law to place reliance on hearsay evidence of the PW6
Whether the contradictions ought not to have been resolved in favour of the appellant.
The respondent's brief of argument settled by MG. Chiroma, Director of Public Prosecutions dated and filed on the 27th of March, 2017 but deemed filed on the 9th of May, 2017 raised two issues for determination. Vis:
Whether considering the totality of the evidence adduced by the prosecution at the trial court, the prosecution did not prove its case beyond reasonable doubt.
Whether the defence of insanity or any other defence availed the appellant.
I shall utilise the issues raised by the respondent to resolve this appeal.
ISSUE 1
Whether considering the totality of the evidence adduced by the prosecution at the trial court, the prosecution did not prove its case beyond reasonable doubt.
Learned counsel for the appellant submitted that in proof of a criminal case, the grounds upon which the crime can be proved as enunciated in the case of MBANG V. THE STATE (2013) 7 NWLR (Pt. 1352) 48, are (a) Evidence by eye witness; (b)The confession of the accused; and (c) Circumstantial evidence. Counsel to the appellant argued that the prosecution did not provide an eye witness who witnessed the actual killing of the deceased in line with section 126(a) of the Evidence Act 2011. As regards the confessional statement as a means of proof, counsel to the appellant argued that on the strength of section 28 of the Evidence Act, 2011 the court shall only allow a confessional statement to be given in evidence, if the said confessional statement was not obtained in a manner contrary to the provisions of the section. Counsel to the appellant further argued that the confessional statement was tainted with irregularity and as such, does not muster much strength in evidence as to warrant a conviction. Relying on the case of OLAYINKA V. STATE (2007) 9 NWLR (Pt. 1040) 561, counsel to the appellant argued that the two confessional statements of the accused person dated 1st of August, 2010 and 31st of July, 2010 marked as Exhibits "A" and "B" were contradictory in that one mentioned one Mike Ayemere as the brains behind the crime, while the other completely exonerated him (Mike) of any wrong doing. This according to counsel suggests that the statements were not voluntary, direct, and positive as required by law. Agreeing that the defence/accused person cannot dictate to the prosecution who to call as witness(es) in proof of its case, Counsel argued that the prosecution's failure to call the said Mike Ayemere during the trial weakened its case as Mike Ayemere is a vital witness.-THE STATE V. AZEEZ & ORS (2008) ALL FWLR (Pt. 424) 1423, AMLJNEKE V. STATE (1992) 1 NWLR (Pt. 217) 335.
Counsel also submitted that since Exhibit "B" had been retracted by the accused person, the weight to be attached to Exhibit "A" should be decided by the court by some evidence outside it, no matter how slight, to make the confession probable that it was true. -OKOH V. STATE (2014) ALL FWLR (Pt. 736) PC 443 at PACES 460-461. Counsel argued that the court should have cautioned itself to the frame of mind of the accused person where it was stated at page 85 lines 7-9 that the accused person had come with a different frame of mind and will want the statement put to her once again for the purpose of being admitted into evidence. Counsel to the appellant submitted that there was nothing outside the confession to show that it was true.
Counsel to the appellant also argued that where contradictions are found in the confessional statements of the accused person, such contradiction should be resolved in favour of the accused person. Relying on the tests formulated in the case of ALARAPE V. STATE (2001) FWLR (Pt. 41) 1872, counsel submitted that there is nothing outside the confession to show that the deceased was killed as the confessional statement was not corroborated as neither Mike Ayemere nor the dentist was called by the prosecution to give evidence and the confessional statement refers to an 18 month old child whereas the autopsy showed a 2 - 4 year old child as reflected in Exhibit "C", and Exhibit "A" was not in any way proved by the prosecution.
Arguing that the evidence given by PW1-PW6 are all circumstantial evidence, learned counsel to the appellant argued that the testimony of PW5 was not cogent and unequivocal as required by law. This, according to counsel, is because the remains of a 2 - 4 year old child was found on the 28th of July, 2010 whereas an 18 month old child went missing on the l2 of June, 2010. The only nexus counsel added was the white singlet as there was no DNA evidence to make it conclusive and as such cannot be used to warrant a conviction in law.
Learned counsel to the appellant argued that hearsay evidence of the PW6 is inadmissible and of no value in law. - Section 38 Evidence Act, ALHAJI ISA V. ALHAJI BUKAR SAJE (2012) ALL FWLR (Pt. 644) 127 at PG 133 Counsel argued that since PW6 (Dr Roberts), the pathologist who examined the remains of the deceased but did not examine the teeth and jaw of the deceased, the report received by him marked as Exhibit "C" amounts to hearsay which renders it inadmissible in law. Thus, the trial court erred when it held that the testimony of the prosecution witnesses especially the testimony of the PW5 and PW6 were direct evidence when in actual fact they were hearsay evidence. Counsel to the appellant further argued that the evidence of the prosecution was fraught with contradictions which should have been resolved in favour of the appellant. These contradictions according to counsel are that the bagco bag and the clothes in which the remains of the deceased was found was not produced before the trial court, that the testimony of the father of the deceased Le. PW1 as to the age of the child is 18 months whereas the medical examination shows that the remains belong to a 2 - 4 year old child and did not disclose the cause of death, that Exhibit "C" is unreliable and inadmissible as it is a product of hearsay and that there was no conclusive DNA test conducted. These contradictions counsel argued are most germane to the case of the appellant and were not conclusively resolved in anyway by the prosecution.
Counsel to the appellant finally submitted that the appellant's trial was fraught with irregularities in law and fact and as such the prosecution did not prove the case beyond reasonable doubt.
Learned counsel for the respondent in a response, submitted that standard of proof required in criminal trials, is proof beyond reasonable doubt and not beyond all shadow of doubt and not that is required of the prosecution is to put forward evidence that is strong, compelling and convincing against the accused person such that it leaves no reasonable man in doubt as to the probability of the accused person committing the offence. - SECTION 138 OF THE EVIDENCE ACT 2011, AJAYI V. STATE (2013) NWLR (Pt. 1360) P. 589, OKOH V. STATE (SUPRA)
Enumerating the means by which the prosecution can prove its case against the accused person, counsel to the respondent stated that it resorted to two ways of the three, namely, the circumstantial evidence and the confessional evidence. Counsel also enumerated the ingredients of the offence for which the accused person was charged under Section 221 of the penal code. On the first ingredient which is that a human has died, he referred to the evidence of PW1 who testified to having 5 children including Chinonye C. Onyekam who went missing on the l2'' of June, 2010. He testified further that on the 28th of July, 2010 the body of a child was discovered wearing the clothes she was last seen in.
Counsel on further proof that a human being had died stated that PW6, a medical doctor, testified that the examination revealed that the bones were that of a human child.
On the second ingredient of the offence, that the death was caused by the act of the accused, counsel relied on the confessional statements of the accused i.e. Exhibits A and B. These confessional statements explained how the child was killed and was duly admitted in evidence.
On the 3rd ingredient of the offence which is that the accused intended the death of the deceased, counsel submitted that Exhibit B explained in detail how the appellant dealt with the deceased.- ILODIGWE V. STATE (2012) 18 NWLR (Pt. 1331) P1. At P. 11.
Counsel to the respondent argued that the contention of the appellant that the failure of the prosecution to provide an eye witness in proof of the killing as a failure of the prosecution to prove its case beyond reasonable doubt, is misconceived as the prosecution is allowed to choose from one of the three ways in proof of its case against the accused. This counsel argued, is borne out of the fact that PW5, Mr. Peter Dabo saw the appellant on the day the child went missing, with the bagco bag that was later found to contain the remains of the deceased child., and that PW6 also confirmed that the remains were indeed that of a child. Counsel to the respondent submitted that although no one saw the appellant killing the deceased, the circumstances link the appellant to the death of the child.
Learned counsel to the respondent argued that the confessional statements i.e. Exhibits "A" and "B" were voluntarily made and admitted in evidence and the admissibility was not objected to at the lower court. --- AKWUOBI V. STATE (2017) 2 NWLR (Pt 1550) PAGES 426 427. Counsel further argued that the prosecution is under no obligation to call a particular witness and section 149 of the Evidence Act cannot be invoked in this case. On the testimony of the PW6 being hearsay evidence as contended by the appellant, counsel to the respondent argued that PW6 testified as an expert witness and is supported by the evidence of PW1 and Exhibit "B".
As to contradictions in the age of the deceased, counsel to the respondent argued that they are mere discrepancies and not material.
Counsel submitted that the prosecution proved its case against the appellant beyond reasonable doubt and all the ingredients of the offence of culpable homicide contrary to section 221 of the Penal Code have been proven beyond reasonable doubt.
The ingredients of the offence of culpable homicide to be proved beyond reasonable doubt by the prosecution, are (a) the death of a human being (b) it was caused by the defendant and (c) the act of the defendant was with intention to cause death or that he knew that death would be the probable consequence of his act.
1 When a person is charged with a crime, and he volunteers a statement admitting or inferring that he committed that crime, he is said to have confessed to the commission of the crime. The admission can be judicial or extra-judicial It can be oral or in writing. See section 27(1) of the Evidence Act; AKPAN V. THE STATE (2001) 15 NWLR (Pt. 373); DARE JINLOH V. THE STATE (2014) LPELR - 22464 (SC) and TIRIMISIYU ADEBAYO V. THE STATE (2014) 5 SCNJ 825.
The law is clear. Once the court is satisfied of the truth of a confessional statement as being free and voluntarily - made by the defendant as to his guilt, and it is direct and positive, then it can convict him without the necessity of any corroborative evidence Section 29(2) of the Evidence Act; YESUFU V. STATE (1976) 6 SC 167; OGOALA V. THE STATE (1991) 2 LRCN 65 per Olatuwara JSC; HASSAN V. STATE (2001) 15 NWLR (Pt. 735)184 and OGEDENGBE V. STATE (2014) 6 SCNJ 221 at 243
2 Although it is the law, that a clear unequivocal direct, free and voluntary confession alone is sufficient to ground a conviction, the courts as a matter of practice, have tendered to look for some evidence, no matter how slight outside the confession itself, in order to be satisfied that the confession is true NJOKU V. THE STATE (1992) 8 NWLR (Pt. 263) 714. Is it corroborated? are the statements contained therein, so far as can be ascertained true? Did the defendant have the opportunity to commit the offence? Was the confession possible? Is it consistent with other facts which have been proved? See SHAZALI V. STATE (1988) 5 NWLR (Pt. 93) 164.
3 The two confessional statements in this case, Exhibits A and B, were tendered and although there was an initial objection by the defendant, this was withdrawn and the two statements were admitted in evidence without objection. When a confessional statement is tendered by the prosecution, and the defendant raises no objection, and it is admitted in evidence thereto, it is a conclusive evidence of the voluntariness of that confessional statement. See OSUAGWU V. STATE (2013) 1-2 SC 194. Further, in this appeal, the defendant never raised or led any evidence to establish that the confessional statements were not voluntary. They were therefore rightly admitted in evidence and correctly relied upon. It is too late in the day and therefore totally unacceptable, for any objection to the voluntariness of the confessional statements admitted without objection, to be raised afterwards. The time to raise an objection to the admissibility of a statement is at the point of its being tendered, not afterwards - ADEBAYO V. STATE (2014) 5 SCNJ 825 at 883.
Apart from the confessional statements, the trial court referred to other evidence led, to see if the confessional statements were true and have been corroborated, in line with the practice enunciated in SHAZALI V. STATE. (Supra), before convicting the appellant. In its judgment the following extracts at pages 135 --- 136 ---
"Moreover, the testimonies of PW1 Mr. Timothy, PM'S, Mr. Peter Dabo and PW6 Dr. Ibogbe Robert, are all corroborative of the confessional statement of the accused, Exhibit A. PW1 stated to the court that his little daughter of about 2 years old went missing from the home sometime in July 201tA Her remains were discovered and identified in a bagco bad under a tree near PW5 Peter Dabo's farm through the clothes worn by the little girl when she went missing. This bagco bad, PW5 had seen the accused dressed abnormally carrying past his farm on 12/6/2010 and when asked if all was well, she replied yes. She later came back without the bagco bag and sweating entirely. She again answered all was well when he asked her. The bagco bag was later discovered 100 metres away from PW5's farm under a tree by PW5 containing the decomposed remains of a child, identified later by PWJ as his little child Chinonoye who had gone missing. PW6 examined the contents of the bagco bag which was a smelly decomposed carcass of a human child consisting of long bones, a skull, and jaws with milk teeth. The teeth he sent to the dentist who gave a report of the teeth as belonging to a human child of between 2--- 4 years.... He issued exhibit "C" a medical report the contents of the bagco bag which he said also contained pieces of some clothing including a red cloth.
The trial court after reviewing the evidence led, came to the conclusion that ---
"The cause of death in this instant case, has been established by cogent and convincing evidence beyond reasonable doubt that it was as a result of the act of the accused and nothing else...."
The court was aided in this finding, by the contents of Exhibit A, which states that
"......she tied the red cloth round her neck and held it and only released her grip when discovered that the child was dead. She then put the dead body into a bagco bag went and disposed of the bag in the bush under a tree."
This was were the decomposed remains of the child was discovered later.
7 The fact that one Mike Ayemere, who the appellant sought to implicate in the dastardly act, in exhibit B, was not called is not a contradiction. He was also not a necessary or vital witness. A host of witnesses is not required to prove a case beyond reasonable doubt. One witness on vital points is sufficient. The defence is not in a position to dictate or require the prosecution to call particular witness or a number of witnesses and the onus is solely on the prosecution to prove a criminal case beyond reasonable doubt, and it is the master as to go about doing this, in any particular case without any impute or interference by the defence- ODILI V. STATE (1977) 4 SC 1; IME V. STATE (2008) 13 NWLR (Pt. 1104) 225; SULE V. STATE (2009) 17 NWLR (Pt. 1169) 33 at 57--58 and OCHIBA V. STATE (2011) 17 NWLR (Pt. 1277) 663.
The appellant has argued that there is a discrepancy in the age of the deceased. Whereas PW1, the father of the deceased said she was "1 year 6 months" i.e. 18 months, (page 74 of the record), the remains of the child found was put at 2 - 4 years old. It is has not been shown, that medical reports have pinpointed with exactitude, the age of dead bodies, but a range is given and as long as there is no patent and wide disparity, the difference will not be material. The father knew the age of his deceased child. One year 6 months is not far from 2 years and a limit of 4 years. If the medical report had said the remains was that of an adult, or an old person, that would thrown in a serious doubt. Here, a difference of six months is well within a reasonable estimate. It is perfectly acceptable, and no serious discrepancy has been shown. It is not material.
The defence has attacked Exhibit "C" as amounting to hearsay. I think there is a misunderstanding here. Exhibit 'C' is not the report of the dentist who only examined the jaw and teeth of the deceased. The dental report was "incorporated into the general report" (page 97 of the record when PW6 was being crossed examined, the PW6 had conducted his own examination and round a carcass "with pieces of long bones and skull and a set of jaw containing milk teeth. It is common knowledge that milk teeth belong to a child not an adult. The dentist had also used his professional and expert knowledge to pinpoint the approximate age of the deceased which was very near to the real age of the deceased as given by her father. Although hearsay evidence is not admissible and cannot be used by the court to ascribe criminal liability on the appellant - KAKIH V. PDP (2014) 7 SCNJ 65 at 108, Exhibit C was definitely not hearsay as it was a report based on technical expertise. It was rightly admitted and there was no objection raised by the defendant - Section 41 Evidence Act 2011.
I have looked at the totality ci the evidence adduced, including the confessional statements which were true, direct, positive, voluntary, relevant and admissible, which contain details that only the perpetrator could be aware of. I am satisfied that the prosecution had discharged the burden upon it of proving beyond reasonable doubt, the guilt of the appellant for the offence of culpable homicide punishable with death, she was charged. With Issue No. 1 is thus resolved in favour of the respondent and against the appellant.
ISSUE 2
- Whether the defence of insanity or any other defence availed the appellant.
Learned counsel for the appellant relying on section 139(1) of the Evidence Act, 2011 submitted that the burden of proving insanity rests on the accused person and the burden of proof is a light one similar to the burden of proof in civil cases which is on preponderance of evidence or balance of probability. He stated that the question whether an accused person is insane is a question of fact to be determined by the trial judge, as enunciated in JAMES ANYIM V. THE STATE (1983) 1 S.C.LR. 370 at 377 and WALTON V. THE QUEEN (1978) A.C 788 (PD) at P. 793. The trial judge is enjoined to take into consideration any admissible medical evidence, the whole facts and the surrounding circumstances of the case which will include the nature of the killing, the conduct of the accused before, at the time as well as after the killing and any history of mental abnormality. Counsel referred to evidence given by DWI, DW2 and DW3 and PW5 as the relevant evidence before the court from which the defence of insanity could be assessed. The evidence of this, counsel argued, is the testimony of the witnesses to her headaches and sometimes erratic behaviour. See page 103 line 3, page 108 lines 12 -14, page 110 lines 1-5 and page 90 Pines 13-17 respectively.
Counsel argued that the history of insanity predated the commission of the offence since it is in evidence that two blood relatives of the appellant died from mental illness. And that being put in the family way made the mental illness suffered by the appellant worse. Counsel referred to the cases of ISHOLA KARIMU V. THE STATE (1989) 1 SCNJ 74, SANUSI V. THE STATE (1984) 10 Sc 166 at 177, EFFIONG UDOFIA V. THE STATE (1981) 11-12 SC 49 AT PP. 60- 61 and NGENE ARUNI V. THE STATE (1979) 11 Sc 9 AT 94
Counsel submitted further, that the uncontradicted evidence of mental illness with abnormal behaviour or loss of capacity to control her action, discharges the burden on the accused, as the testimonies of witnesses before the trial court presupposes some sort of mental illness which runs in the family. - STATE V. BABANGIDA JOHN (2013) LPELR 20390 S.C. Counsel to the appellant added that the trial court erred in law and fact when it failed to warn itself of the sole need to fully consider the defence raised by the appellant. Also, that the defence of the accused person ought to be considered regardless of how weak, foolish or unfounded such a defence may appear. --- ALHASSAN MAIYAKI V. STATE (2008) ALL FWLR (Pt. 419) P 500 CA.
Learned counsel for the respondent submitted that the trial court was right to have rejected the defence of insanity. This counsel argued, was because there was no medical report to support the claims of insanity as raised by the counsel to the appellant. Counsel to the respondent added that the evidence of DW2 and DW3 were mere statements without support to show it is true. DWl, counsel argued, had never taken the appellant to a hospital in connection with the psychiatric problem as such; the defence was an afterthought which should not avail the appellant. According to counsel, the evidence of PW5 can also not be taken as evidence of insanity as an insane person has no need for secrecy. Counsel added that in any case, the fact of whether or not the appellant killed the child is no longer in issue as it is a fact already admitted by the appellant when she put up a defence of insanity.
He urged us to dismiss the appeal.
4 On issue of insanity, the law is that in all criminal cases, every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his criminal acts, until the contrary is proved - GUOBADIA V. STATE (2004) 6 NWLR (Pt. 869) 360. In BABANGIDA JOHN V. STATE (2011) LPELR 8781 CA, This Court following the case of ANI V. STATE (2007) 17 NWLR (Pt. 742 411 at 427---428, held that ---
"In order to establish the defence of insanity, the defence must prove: - (a) that at the relevant time of committing the offence, the accused was suffering from either mental disease or natural mental infirmity; and (b) that the mental disease or natural mental infirmity was such that at the relevant time, the accused was as a result, deprived of
capacity to understand what he was doing, to control his action or to know that he ought not to do the act or make the commission"
5 The trial court considered the defence of prosecution put up by the appellant and dismissed it. It was right. It also considered the defences of mistake or accident and also dismissed them. The Court was right At pages 141 --- 145, the trial court considered the evidence led in support of the defence of insanity, and held at page 145 that --
"The testimonies of DW 1 --- 3 and Exhibit 'A' do not in my firm but humble view, provide a probable explanation to the defence of insanity by the accused"
The court was right because there was no credible evidence of mental disease or infirmity led before the court. No medical report or explanation was furnished. Headaches or silence during conversation are not firm evidence in themselves, of mental disease or infirmity. Even if there was anything remotely suggesting that the appellant was suffering from the mental incapacity, such was not at all connected to the day and time the appellant committed the offence. This is a crucial lacuna because the mental infirmity, for it to be a defence to the criminal action of the appellant, had to be at the relevant time of the commission of the crime, so that she could not understand what she was doing, to control her action, or to know that she ought not to have done the act. 6 On the contrary, Exhibit A is explicit. She knew very well what she was doing and she said she was doing so, to extract revenge on the father of the deceased for conceiving her and denying the pregnancy! Revenge, and not insanity seems to have been her motive. Besides1 she was allegedly conceived by the father of the deceased in 2004, when she was 16 years old, according to DW3. The appellant committed this dastardly act in 201.0, six years after the alleged pregnancy. Whatever anger possessed her in 2004 should have cooled down six years later. She stated in Exhibit A thus ---
"..i killed her because I was annoyed with her father who put me in a family way and denied me and my child Hence my evil thought, plan and execution I am sorry about the whole thing. My action was to make sure that Timothy (deceased father) will feel it the way I have been bad about the way he kept me but I realized that my action was wrong at last.." "
This is not the statement of a person suffering from any mental disease, mental infirmity or delusion. It is the statement of a person in full control of his senses, who meticulously planned and executed the act in order to revenge a wrong. If the appellant was wronged by the PW1, she should have taken a civil action or so, but not to take away the life of his innocent daughter who had done her no wrong. The fact that she hid the body away from all and lied about it, shows that she knew what she was doing was wrong and she was on her full senses. The defence of insanity has not availed her and the trial court was right when it rejected it, together with provocation. This issue is resolved in favour of the respondent and against the appellant. In the result, this appeal lacks merit in toto and it fails. It is hereby dismissed. I affirm the conviction and sentence of death by hanging as pronounced by the trial court in its judgment, dated the 30^th^ of September 2014 in Suit No. NSHC/SD/IC/2011.
Delivered by TANI YUSUF HASSAN, JCA
I have read before now, the leading judgment of my learned brother Yahaya JCA just delivered. I agree that the appeal lacks merit. I dismiss it.
Delivered by MOHAMMED MUSTAPHA, JCA
I had the privilege of reading before now the judgment of my learned brother, Abubakar Datti Yahaya JCA, and I agree with his reasoning and conclusion. I also dismiss this appeal and uphold the judgment of the trial court, for same reasons adduced in the lead judgment.