Abraham Njoku V. The State (1992)

LawGlobal-Hub Lead Judgment Report

SYLVESTER UMARU ONU, J.C.A. 

Before Pats-Acholonu, J. in the Imo State High Court holden at Mbano-Etiti, the appellant, Abraham Njoku was arraigned for the offence of murdering his father, Mathew Njoku (hereinafter referred to as “the deceased”‘) on 31st January, 1984 at Umuezike Umuezeala Ama Mbano contrary to section 319(1) of the Criminal Code. Cap. 30 Vol.II Laws of Eastern Nigeria, 1963 applicable to Imo State. In a trial that lasted from 23rd June, 1988 to 4th November, 1988 where three witnesses, none of whom was an eyewitness in all testified for the prosecution and the appellant alone testified for the defence, the learned trial Judge convicted and sentenced the appellant to death.

The brief facts of this patricide are that on 14th January, 1984 at Umuezeala, Mbano, the appellant exchanged words with the deceased and as a result struck him (deceased) with a kitchen knife at the back. The deceased fell and was later rushed  to Geopath Inland Clinic, Ehime Mbano (Aba branch) where he was treated by Doctor George C. Ego Osuala, (PW1). After being referred to the University Teaching Hospital, Enugu, as a result of the injury received from the knife-stab, the deceased later died on 31st January, 1984.

After the trial of the appellant which was characterised by lack of counsel to represent him (two statements taken from him were in the interval tendered as confessional statements vide Exhibits ‘B’ and ‘C’ until a volunteer came in the person of E.C. Maraizu Esq., of counsel) had been concluded, the learned trial Judge as pointed out earlier, convicted him and sentenced him to death. Aggrieved by the said decision, the appellant has appealed to this court where he timeously filed his Notice of Appeal containing a lone ground of appeal, to wit: the omnibus ground. However, later with leave of Court, two more grounds of appeal renumbered 2 and 3 to follow the omnibus ground were filed attacking the decision.

Learned counsel for the appellant Mr. Chiobi Ekpechi representing Legal Aid Council and Mr. James Gozie Nzeh, Legal Officer, both filed and exchanged briefs of argument. The three questions formulated on behalf of the appellant consistent with the grounds of appeal are:

1. Whether the trial Judge was right in convicting and sentencing the appellant to death without any proof that the deceased was identified to the doctor who performed the autopsy by a person who knew the deceased when he was alive.

2. Whether the learned trial Judge was right to have based the conviction of the appellant on the purported confessional statements.
Exhibits B and C, without ensuring that there was some evidence, be it slight, of circumstances which make it probable that the confession was true consistent with Onochie & 7 Ors v. The Republic (1966) NMLR 307 at 308.

3. Whether the learned trial Judge was right in holding that the prosecution proved its case beyond all reasonable doubt when there were no eye-witnesses and the circumstantial evidence relied on, by the Honourable court, not being conclusive in consonance with the principle in R v. Onufrejezyk 39 CAR 1; R v. Tepper (1952) AC 480 at 489 and The State v. Omada Edobor (1975) 9-11 SC 69 at 75 -78.

At the hearing of this appeal on 12th February, 1992, learned counsel on either side adopted his brief of argument without any further expatiation or amplification, after which we reserved the case to today for judgment.

On question 1 which overlaps ground 2 of the appeal grounds, it queries whether the trial Judge was right in convicting the appellant for murder when the person who identified the corpse to PW1 for purposes of conducting the autopsy was not called as a witness. It is learned counsel for appellant’s submission, inter alia, that to establish that a crime has been committed the prosecution must prove that the body of the deceased on which PW1 performed autopsy on 1/2/84 was that of Mathew Njoku. This, it is argued, the prosecution failed to do. The case of The State v. Edobor (supra) was called in aid, adding that there is no evidence on record to show that the body P.W.1 performed autopsy on was indeed that of the deceased’s. After referring to excerpts in the trial court’s record, it is contended that the Levi Njoku said to have identified the corpse of the deceased to PW1 as that of Mathew Njoku did not testify as a witness, an omission which it is submitted is fatal to the prosecution’s case. It is further contended, that it is not enough for P.W.1 to say as he did in the instant case, that the body was identified to him by a person who was not called as a witness to testify. The cases of R v. Momodu Laoye & Anor (1949) 6 WACA 6 and The State v. Edobor (supra) were cited to buttress the contention, adding that the conviction cannot be sustained since the trial Judge was in error to hold that the appellant was guilty of murder, I take the view that the failure of the prosecution to call Levi Njoku as a witness is not fatal to their case. This is because even though before commencing his testimony before the trial court on 19th September, 1988 P.W.1’s memory had to be juggled, once he was allowed by court to refresh his memory by looking at the report in respect of the deceased, he no longer had any illusions as to his prior knowledge of the deceased, his autopsy on the over 70 year old man, his earlier treatment of him on 14/1/84 of the mortal stab on his shoulder blade allegedly inflicted by his son, the cause of death and how before Levi Njoku identified his remains to him, he had referred him to U.N.T.H. Enugu, for better medical attention. Hence, on 1st February, 1984 when the deceased’s body was before him for autopsy, the identity of the corpse was no longer strange to him regard being had to the over six days the deceased stayed under his Care and treatment at the Hospital. Geopath Inland Clinic, Ehime Mbano before he referred him to U.N.T.H. Enugu. There was therefore sufficient evidence adduced before the trial court as to the identity of the corpse of the deceased before the post-mortem examination. The absence of the evidence of Levi Njoku, whose evidence though was it adduced would have strengthened the prosecution’s case, is not in my view a necessity and so its exclusion not fatal. The Supreme Court held in Ukwa Egbe Enewoh v. The State (1990) 4 NWLR (Pt. 145) 469 inter alia that where the totality of evidence showed unmistakably that the body on which a doctor performed a post-mortem examination was that of the deceased, a separate witness though desirable is not a necessity. In that case, as in the instant case, the main issue before the Supreme Court was on the complaint of the appellant that there was insufficient evidence led by the prosecution before the trial court as to the identity of the body of the deceased examined by P.W.3 who performed the autopsy on the corpse. The contention was predicated on the fact that the person who identified the body could not be called to give evidence at the trial because he was dead, unlike in the case in hand. In the instant case, even though Levi Njoku is not shown to be dead and no explanation was infact offered for his absence from court, the evidence of P.W.1 standing alone, and whose patient the deceased was for some duration of time, was enough or pointed unequivocally to satisfying the trial court of the deceased’s identity as to leave no room for doubt. As Akpata, J.S.C. crisply put it with a stamp of authority and clarity in Enewoh’s Case (supra) at page 482 paragraph C – D:
“The position however is that there are facts from which it can be inferred that the corpse examined by the doctor was that of the deceased, the evidence of the person, dead or alive, said to have identified the corpse is not indispensable. Indeed a conviction for murder can be made without the recovery of the dead body if there is positive evidence that the deceased has been killed. In effect, the need for anyone to identify the body of the deceased to a doctor is not a sine qua non in all murder cases. See Edim v. The State (1972) 4 S.C. 160.”
Indeed, as held in the above case, the identification of a deceased’s corpse could be by circumstantial evidence but such evidence must be cogent, direct and unequivocal. In the case on appeal, much as it is now well settled that where relatives of a deceased are alive, they are the best persons to identify the corpse to the doctor performing the post-mortem examination i.e that identification must be by persons who knew the deceased very well before his death as exemplified in Rex v. Momodu Laoye (supra); Asabiaro v. The State (1978) 4 FCA 47 at 49, Osarodian Okoro v. The State (1988) 5 NWLR (Pt.94) 255 and The State v. Edobor (supra), in the instant case where the deceased’s proximity as a patient of P.W.1 made identification infallible, the question of any mistaken identify or identity of the deceased being shrouded in doubt, no long arises.

The issue is therefore answered in the affirmative. Question 2 which is related to ground 3 of the grounds of appeal has two limbs. It firstly questions whether the trial Judge was right in convicting the appellant on the strength of Exhibit ‘B’ and Exhibit ‘C – the confessional statements of the appellant. Secondly, it asks whether the defence of insanity as raised by the appellant was properly considered by the trial Judge. I will consider the first limb of the issue first by setting out in full the evidence of P.W.3 which for its shortness and strategic importance in the appellant’s conviction in the court below is as set out at page 16, lines 23-34 of the trial court’s Record thus:

“My name is Corp. Bassey Idam No. 98627 attached to Mbano Police. I know one Sgt. Joseph Ogunshola – I worked with him. I am familiar with his writing and signature, Sgt. Ogunshola is now on transfer to somewhere in Lagos State. We made serious efforts to get him down here but to no avail. He investigated this case. Witness identifies some documents shown to him.

No objection was raised. The document (4) in number. The accused statements; crime reports.
Court: The statements of the accused person hereby admitted into evidence as Exhibits B and C respectively, while the Crime Report is admitted as Exhibit ‘D’,”

Now, it is the contention of learned counsel for the appellant that the learned trial Judge was wrong to have based the conviction of the appellant on Exhibits B and C without ensuring that there was some evidence, be it slight, of circumstances which make it probable that the confession was true, consistent with the Supreme Court decision in Onochie v. The Republic (1966) NMLR 307 at 308. It is further contended that from the totality of the evidence before the court it is an established fact that the appellant had a history of insanity, I shall shortly come to this point which as earlier stated, forms the second arm and bedrock of the issue under consideration.

The respondent on the other hand argues that Exhibits B and C are the voluntary statements of the appellant; that in his defence, appellant had adopted these statements as part of his defence vide Page 17 lines 10-17 of the trial court’s record. The fact that appellant adopted them as part of his defence it is further maintained, clearly established that they were voluntarily made by him. However, the question is, were Exhibits B and C properly received in evidence in the criminal proceedings leading to the appeal herein. For them to have been properly received in evidence, the provisions of section 34(3) of the Evidence Act ought to have been called in aid. The subsection provides:-
“(3) In the case of a person employed in the public service who is required to give evidence for any purpose connected with a judicial proceeding it shall be sufficient to account for his non-attendance at the hearing of the said judicial proceedings if there is produced to the court, either a Gazette or a telegram or letter purporting to emanate from the head of his department, sufficiently explaining to the satisfaction of the court his apparent default.”

The above not being the case, when Exhibits B and C and a fortiori Exhibit D were produced through P.W.3 who claimed familiarity with the handwriting of Sergeant Ogunshola, they were inadmissible through the witness for want of laying the proper foundation for so doing. And if these documentary pieces of evidence are excluded then, the basis for the appellant’s conviction would crumble for failure to prove with certainty and beyond reasonable doubt the murder of the deceased. See section 137(1) of the Evidence Act and the cases of Mbenu v. The State (1986) 3 NWLR (Part 84) 615 at 626, Philip Omogodo v. The State (1981) 5 S.C. 5 at 21 and Paul Ameh v. The State (1978) 6-7 S.C. 27 at 35. Granted that Exhibits B and C were properly received as the free and voluntary confessional statements of the appellant, their acceptance in evidence does not terminate the prosecution’s duty for securing conviction albeit that an accused can be convicted on his own free and voluntary confessional statement. Although for such conviction to succeed by acting on such extra-judicial confessional statements of accused persons, the court must subject such statements to the necessary tests as laid down in R. v. Walter Sykes (1913) 8 CAR 233 at 236 followed in numerous cases in this country by Philip Kanu & Anor v. The King 14 WACA 30; R. v. Ajayi  Omokaro (1941) 7 WACA 146 and Edet Obosi v. The State (1965) NMLR 119. One of such tests as held by Ademola, C.J.N. in Kofar v. The State (1971) 1 All NLR 150 at 151 is that some independent evidence – call it corroboration, should be sought which tend to prove such confession. Admittedly, such corroboration does not, according to law, need to be direct evidence, but could consist of any material in the proceedings which could come from either the maker of the confession himself or by way of conduct or demeanour.

The above notwithstanding, the Supreme Court has held that there is no absolute rule that a confessional statement should always be corroborated before being used as a basis for conviction following their approval and adoption in the Australian High Court case of Mckay v. The King (1935) 5 CLR 1 at 8 – 10. See also Edet Akpan v. The State (1986) 3 NWLR (Pt.27) 225. It is in this respect that in the present case, learned state counsel has firmly submitted that the act of the appellant adopting Exhibits B and C. thereby admitting that he voluntarily made them, constitutes such corroboration.

The learned state counsel went ahead to postulate that as Exhibits B and C having shown that the information contained therein is plausibly true, the learned trial Judge was not in error when he convicted the appellant on the strength of these confessional statements.

Indeed, where a confessional statement is made voluntarily and freely, it constitutes enough evidence to convict upon if there are corroborative circumstances which make it probable that the confession is true as decided in R. v. Sykes (supra) and the host of Nigerian cases mentioned above. In Exhibit ‘D’, “the crime report on a case of Wounding” see Page 43 lines 19 – 24 of the trial court’s record under OPINION. Sgt. J. Ogunshola who never testified had this to say among others:-
“The suspect made a conventional (sic) statement and the endorsement by the D.C.O not made possible because of the suspect’s deteriorating condition mentally. I am of the opinion that the suspect has a mental retardation hence the suspicion that one in his right senses (sic) could not have been so inhuman to the father who begat him moreso at his ripe age of 72 years…” (Underlining above is mine).

The above excerpt, particularly the underlined portions, in my view, indicate clearly that at the time of committing the heinous crime of patricide, the appellant was mentally infirm. The next question is, what was his mental state before the crime was perpetrated?

P.W.2., Cyprian Njoku, the deceased’s brother and Uncle to the appellant in an effective and searching session of cross-examination by Maraizu, of counsel for the defence said thus:-
“Q. The accused person before the incident has been sick?
A. At the time the incident happened the accused was in good health but when he came back from Kano and before the incident he was sick.
Q. When he came back from Kano what type of ill health?
A. He had mental trouble.
Q. Where was he treated?
A. In a native Doctor’s clinic.
Q. Is there a document from the native doctor that his ill health was completely gone?
A. I do not know.
Q. You did not know whether Police did anything to get the accused mental history?
A. I cannot say.”

From the foregoing, Exhibit D having painted a picture of the appellant’s mental condition as that of a deranged man at the time of the commission of the offence and the cross-examination of P.W.2 clearly also disclosing that before the commission of the offence he was insane, then the history of the appellant’s infirmity of mind was pointedly before the trial court and calling for investigation.
It needs to be pointed out here that by section 27 of the Criminal Code, every person is presumed to be of sound mind and to have been of sound mind at any time in question unless the contrary is proved.

It is trite that an accused relying on the defence of insanity has the onus of establishing same although the onus would be discharged on a balance of probabilities. see R. v. Echem 14 WACA 158; David Agamonyi v. A.G. of Bendel State (1987) 1 NWLR (Pt.47) 26 and Sodeman v. The King (1936) WN 90. In R. v. Matthew Onakpoya (1956) 4 FSC 150 where the trial Judge in the court of first instance held inter alia that:-
“The prisoner need do no more than adduce evidence (or draw attention to the evidence adduced by the prosecution), which raises in the minds of the jury a reasonable doubt as to his sanity.”
The Federal Supreme Court said that this view is unduly favourable to the appellant. They (the Supreme Court) having agreed that that is the correct statement of the law on this subject preferred the statement propounded in R. v. Carr-Briant (1943) 29 Cr. App. R. 70 where the Court of Criminal Appeal held:-
“In our judgment, in any case where either by statute or at common law, some matter is presumed against an accused person ‘unless the contrary is proved’ the jury should be directed that it is for them to decide whether the contrary is proved; that the burden of proof required at the hands of the prosecution in proving the case beyond reasonable doubt; and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.”
In the Nigerian setting where there is no jury trial and the Judge is both the Judge and jury alike, the Judge should direct himself accordingly. In the case in hand, quite apart from the extra-judicial statements of the appellant (Exhibits B and C) admitted as his confessional statements, the appellant testified on oath on 5th October, 1988 (see Pages 17 and 18 of the Record). I need only quote some portions of his testimony to show that up to the time of his trial the appellant was still mentally afflicted. Said he: “My name is Abraham Njoku. I am now at Okigwe Prisons, I am awaiting trial. I knew Mathew Njoku, I heard that he is now dead…” Continuing, he further said in confirmation of what P.W.2 earlier testified to:-
“I could not tell whether anything happened to my father when I pushed him. When I left school I was residing at Kano. I was brought back because my brother said that I had mental problem.
After staying for sometime at Aba, I was brought back and sent to Atta-Ikeduru for more treatment. As at 14/1/84 I did not know what happened. I did not know the state of my mind. Previous to that date there was no quarrel with my father at all. At no time did any doctor come to check the state of my health…”

Cf of the case of Daniel Oduluso v. The State Appeal No. CA/PH/91/91 decided by this court on 5th February, 1992 (unreported) where the appellant neither raised the defence of insanity in his extra-judicial statement nor did he testify at his trial.

The appellant under cross-examination went as far as claiming that he was not sound in health at the time of the incident and when it was put to him he stabbed his father, he flatly denied doing so.

From all that I have been saying and from the totality of the evidence available at the trial, the defence of insanity in my view, availed the appellant. See Peter Johnny Loke v. The State (1985) 1 NWLR 1 (Pt.1) and Yakubu Kure v. The State (1988) 1 NWLR (Pt.71) 404. The need to investigate criminal cases properly or to send an accused from the onset of trial to a psychiatrist for examination and report, particularly those attracting capital punishment where insanity as a defence ought to be considered, was stressed by the Supreme Court in Ogwa Nweke Onah v. The State (1985) 3 NWLR (Pt.12) 236. There, Kazeem, J.S.C. at pages 245-246 observed:-
“The need to investigate criminal cases properly particularly those attracting capital punishment, cannot be over emphasised. Occasions might arise to indicate that the accused might have been insane at the time of the commission of the offence, and that, that aspect of the matter was not properly investigated by the police. In such a case, I think it is incumbent on the prosecuting counsel from the Ministry of Justice to see to it that proper medical investigation is carried out on the accused before the trial of the case proceeds.
If that is done, there is no doubt that it would be quite helpful to both the trial and appellate courts to see that justice is done in the case.”

Cf the case of Udofia v. The State (1981) NSCC 465 in which the appellant was charged and found guilty of murdering his girl friend. He pleaded insanity but the court was not satisfied and he was convicted. On appeal, it was urged in favour of the appellant that the defence of insanity was sufficiently established before the court to entitle him to an acquittal of the offence of murder, although not to a discharge from detention. Counsel for appellant contended that the prosecution had a duty to call the family of the accused to testify on the mental health of the appellant two years previously and call the herbalist who treated him.
It was held that:-
(1). the defence of insanity cannot be established without evidence as to accused’s state of mind around the time of the commission of the offence with which he is charged.
(2). The prosecution has no responsibility either express or implied, to prove that an accused person is of unsound mind and/or suffers from delusion. It is the duty of the accused.
(3). The prosecution has no legal duty to produce the relatives of an accused to testify as to the accused’s mental state, two years before he committed the offence for which he is being charged.
See also Okonofua v. The State (1981) 6-7 S.C. 1; (1981) NSCC 233 where the Supreme Court examined the law on the duty of the prosecution to call witnesses and as to whether or not their names appear on the back of the information.

Having thus answered question 2 in the negative, it will in my view be superfluous to consider question 3 which overlaps ground 1, the gist of whose complaints are that the learned trial Judge was wrong to have convicted the appellant when there were no eye-witnesses and the circumstantial evidence on which the said conviction was based was inconclusive.

In the result, this appeal succeeds and it is allowed. The conviction and sentence passed on the appellant on November 4, 1988 by Pats-Acholonu, J. is accordingly set aside and the appellant is acquitted. Pursuant to section 401 of the Criminal Procedure Law Cap. 31 Laws of Eastern Nigeria, 1963 applicable to Imo State. The appellant is ordered to be detained during the Governor’s pleasure at a place to be determined by him.

Other Citations: (1992)LCN/0120(CA)