⦿ CASE SUMMARY OF:
The State v. Babangida John (2013) – SC
⦿ LITE HOLDING
The burden of proof of insanity lies on the accused person and that burden is discharged on the balance of probabilities as in civil cases.
The law is trite that the presumption of sanity on the accused can only be dislodged by the accused himself who alleged insanity on the balance of probability see R v. Echem (1952) 14 WACA 158 and Embryi v. The State (1973) 3 S.C. 215.
⦿AREA OF LAW
– Criminal Law (culpable homicide)
– Culpable homicide.
⦿ LEAD JUDGEMENT DELIVERED BY:
Bode Rhodes-Vivour, JSC
* FOR THE APPELLANT
– Mr. K. Ajibade, the Attorney-General of Kwara State.
* FOR THE RESPONDENT
– Dr. A. Onigbinde.
⦿ FACT (as relating to the issues)
On the 18th day of June, 2007 the deceased, Memunatu Rasaki was on her way to her husband’s farm in Moro Local Government Area of Kwara State. She had a baby on her back and her young son was by her side. Suddenly the appellant approached her and repeatedly attacked her with a matchet. She had several cuts on her body and lost a lot of blood. Before the attack she gave the baby to her young son who ran off with his baby sister to the village. She died on the spot from a catalogue of appalling injuries. After the bloody massacre the appellant ran off and hid in the bush. He was later arrested in his house. On these facts the appellant was charged for the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code.
The Trial Court found for the prosecution and sentenced the Appellant to 14 years imprisonment.
The Appellant appealed to the Court of Appeal which quashed the Appeal.
In the penultimate paragraph the Court of Appeal said: “In view of the above, I hereby over-rule the decision of the lower court and set aside, by that means the conviction and sentence as found in the judgment of the trial court dated 1st day of June 2010 as reflected on page 84 of the proceedings or conviction and sentence of 14 years imprisonment as argued by the respondent counsel in this appeal. The appellant is hereby discharged and acquitted.”
And in the final paragraph. The Court of Appeal directed as follows: “Further the Nigerian Prison Authority is hereby directed to take him to a Government Psychiatrist Hospital for check-up and treatment before his final release.”
This is an appeal from the judgment of the Court of Appeal, Ilorin Division delivered on the 18th day of July, 2011. That court set aside the conviction and sentence passed on the appellant by Saleeman J. of an Ilorin High Court and entered judgment acquitting and discharging the appellant.
1. Whether the lower court was right to have held that the defence of insanity avails the accused/respondent.
2. Whether the lower court was right to have held that the prosecution did not prove the essential ingredients of the offence of culpable homicide.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. In fact learned counsel for the respondent made it abundantly clear that insanity was not his defence when he said:
“We have not raised any defence of insanity” (see page 68) of the Record of Appeal).
In view of the above the Court of Appeal fell into a painful error when in the absence of any evidence whatsoever it proceeded to sustain the defence of insanity and acquit and discharge the respondent. The question whether the defence amounts to one of insanity is a question of law to be decided by the judge on the basis of medical evidence. That is to say the accused person must show that he was insane within the meaning of section 51 of the Penal Code. The Court of Appeal fell into grave error when it inferred (wrongly) after examining exhibit P8 that the respondent was insane because there was insane because there was absence of evidence of motive for the Murder. On no account should insanity be inferred on such reasoning. Insanity is established by compelling medical evidence produced by the accused person. It is not the business of the court to go on a voyage looking for motive. This is so because the absence of motive is not enough. The onus is not discharged by the respondent denying his own actions or/and claiming that he did not know what came over him when he killed Memmunatu Rasaq. Rather the onus on the accused respondent is discharged by credible evidence which was never produced in court. The defence of insanity ought to and must be rejected since no evidence of previous abnormality was given.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Memunatu Rasaq died after being dealt repeated matchet cuts by the respondent and at the time the respondent did the heinous act he was of sound mind. In view of this finding the ingredients to prove culpable homicide under section 221 of the Penal Code were proved beyond reasonable doubt. The trial court was right in its conclusion while the Court of Appeal was wrong.
ii. The respondent inflicted several matchet cuts on the body of Memunatu Rasaq, (deceased) with a matchet. The postmortem report and postmortem examination, exhibits P6-P7 confirms this fact. She bled to death. The matchet used to inflict the injuries which led to instant death is a lethal weapon. The settled position of the law is that a man is presumed to intend the natural consequences of his act. Where, as in this case the respondent caused Memunatu Rasaq (deceased) serious body injuries from which she died on the spot, he is presumed to have intended to kill her and he is guilty of culpable homicide irrespective of this intentions. Whether death was the probable or only a likely consequence of the act is a question of fact. The learned trial judge was correct when he found the respondent guilty of culpable homicide.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Rhodes-Vivour JSC
Before I conclude I must observe that the Record of Appeal was badly prepared. A Record of Appeal is a very important document that the appeal court relies on when hearing an appeal. The courts are bound by the Record of Appeal and so all proceedings relevant for the appeal as they occurred must be reproduced in the Record of Appeal. A proper table of contents must contain all that is in the Record of Appeal with correct pages reflected. In this Record of Appeal the judgment of the trial court was from page 70 to 84 while the allocutus is before the judgment on pages 68 to 69. It is elementary that allocutus comes after the finding of guilt and not before the judgment is read. The importance of this observation can be seen page 84 where the learned trial judge said: “From the totality of evidence before the court, the accused person is found guilty of the offence of culpable homicide punishable with death. He is convicted of the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code.” According to the above the respondent was sentenced to death. But turning to page 69 of the Record of Appeal one sees that the respondent was sentenced to 14 years imprisonment with hard labour after the learned trial judge listened to a moving allocutus. Once again Registrars or counsel who have the responsibility to prepare Record of Appeal should ensure that proceedings are collated with care to reflect the sequence in which they occurred. They must be legible and properly paged. That sadly was not the case under reference.
None of the circumstances in subsections (1) to (7) of section 222 could avail the respondent and so the learned trial judge found him guilty of culpable homicide under section 221 of the Penal Code. Once a judge finds an accused person guilty of culpable homicide under section 221 of the Penal Code, the only sentence he can pronounce is death. A judge has no jurisdiction to listen to allocutus and no discretion to reduce death sentence to a term of years once the accused person has been found guilty under section 221 of the Penal Code. The sentence of 14 years imprisonment after finding the accused/respondent guilty of culpable homicide contrary to section 221 of the Penal Code was wrong, it is a material irregularity in the proceedings of the trial court and this court could remedy it so that substantial justice might be done. The correct judgment of the trial court is that the respondent is/was sentenced to death.
Section 221 of the Penal Code.
Section 27 Criminal Code.
Section 51 of the Penal Code (section 28 of the Criminal Code): “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”
Section 222 of the Penal Code reads: “222(1) Culpable homicide is not punishable with death if the offence whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. (2) Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. (3) Culpable homicide is not punishable with death if the offender, being a public servant action for the advancement of public justice or being a person aiding a public servant so acting exceeds the powers given to him by law and causes death by doing an act which he in good faith believes to be lawful and necessary for the due discharge of his duty as such public servant or for assisting such public servant in the due discharge is such duty and without ill will towards the person whose death is caused. (4) Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel and unusual manner. (5) Culpable homicide is not punishable with death when the person whose death is caused being above the age of eighteen years, suffers death or takes the risk of death with his own consent. (6) Culpable homicide is not punishable with death where a woman intentionally causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the children or by reason of the effect of lactation consequent upon the birth of the child. (7) Culpable homicide is not punishable with death when a person causes the death of another by doing any rash or negligent act.”
⦿ CASE(S) RELATED
In Miller v. Minister of Pensions (1947) 2 ALL ER p.372 Lord Denning MR, said that: “Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted to fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as leaves only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice.”
⦿ NOTABLE DICTA
The well settled position of the law is that in a charge of Murder (homicide) after the court considers the defence raised by the accused person, the court should go the extra mile to consider other defence available to the accused person on the facts established in the trial court. Failure of the trial court to consider other defences that may be available to the accused person would not amount to miscarriage of justice. The Appeal Court would consider defences available to the accused person if such defences were not considered by the trial court. – Rhodes-Vivour JSC. State v. Babangida (2013)
To satisfy the court that the defence of insanity can be sustained, the accused person must show that at the time of committing the offence he was suffering from mental disease which affected his will and ability to control his action. The respondent can only be found not guilty of culpable homicide by reason of insanity if and only if he is able to establish the defence of insanity under section 51 of the Penal Code. – Rhodes-Vivour JSC. State v. Babangida (2013)
For the prosecution to succeed in a charge of culpable homicide under section 221 of the Penal Code the following must be proved beyond reasonable doubt: (i) that the person the accused person is charged of killing died. (ii) that the deceased died as a result of an act by the accused person. (iii) that the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence. – Rhodes-Vivour JSC. State v. Babangida (2013)
I now turn to the sentence passed by the learned trial judge. The judgment of the trial court is from page 70 to 84 of the Record of Appeal. The concluding paragraph of the judgment reads:
“The prosecution has established the ingredients necessary in this homicide case. It has thus proved the case beyond reasonable doubt as required by section 308 EA. See the case of State v. Azeez (2008) 35 NSCQR p. 426. From the totality of evidence before the court, the accused person is found guilty of the offence of culpable homicide punishable with death. He is convicted of the offence of culpable homicide punishable with death contrary to section 221 of the penal code.”
Page 69 of the Record of Appeal contains allocutus proceedings.
After the learned trial judge listened to counsel, his lordship said:
“The Court will temper justice with mercy hoping fervently that the convict will embrace the golden opportunity and be a complete changed being and even a professional in any of the trainings available in prison, the convict Babangida John is sentenced to 14 years imprisonment with hard labour.”
In the judgment the learned trial judge found the respondent guilty of the offence of culpable homicide punishable with death. After listening to allocutus the learned trial judge sentenced the accused person/respondent to 14 years hard labour. The questions to be answered are: 1. What is the sentence to pronounced when an accused person is found guilty of culpable homicide contrary to section 221 of the Penal Code. 2. Does a trial judge have discretion or jurisdiction to reduce a sentence under section 221 of the Penal Code. – Rhodes-Vivour JSC. State v. Babangida (2013)
It is basic that for an accused to establish the defence of insanity, he must depict the following:_ 1. That at the material time of committing the offence, the accused was suffering either from mental disease or natural mental infirmity, and 2. That the mental disease or natural mental infirmity was such that at the relevant time the accused was as a result, deprived of capacity – (i) to control his action; or (ii) to know that he ought not to do the act or make the omission. – John Afolabi JSC. State v. Babangida (2003)
To establish the defence of insanity, recourse could be had to the following relevant facts namely: (a) Evidence as to the past history of the accused person; (b) Evidence as to the conduct of the accused immediately proceeding 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 he enjoyed for sanity or insanity in the neighbourhood; (f) Evidence showing that insanity runs in the family history of the accused; and (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 – per Iguh JSC in Madjemu v. State supra at page 366. See also: Onyekwe v. State (1988) 1 NWLR (Part 72) 565; Ejinima v. State (1991) 6 NWLR (Part 200) 627. – Peter-Odili JSC. State v. Babangida (2013)