Donatus Ndu V. The State(1990)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.S.C.

On Thursday the 4th day of October, 1990, the appeal of Donatus Ndu against his conviction and sentence to death was dismissed by me. I indicated then that I would give my reasons for the dismissal of the appeal today. I now proceed to do so.

It is generally accepted that the hearing of addresses from counsel before delivery of judgment is an important exercise in judicial proceedings in our courts. The entire proceedings may be declared a nullity if a counsel is denied the right to address the court at the close of evidence. The main issue that calls for a decision in this appeal is whether the refusal by the trial court to grant counsel adjournment to enable him prepare his address is necessarily a denial of his right of address, if by the refusal counsel could not address the court.

The appellant, Donatus Ndu, was charged upon an information with the murder of one Jemilatu Shoetan, a girl. The offence punishable under section 319 of the Criminal Code law, Cap.31 , Laws of Lagos State was said to have been committed on or about the 15th day of December, 1979 at Iganmu, Lagos State. The accused was also charged with the offences of

(a) Arson,

(b) Assault with intent to prevent arrest and

(c) Wilful and unlawful damage to property, offences said to have been committed at the same time and place.

At the address stage of the proceedings the three additional counts were withdrawn by the prosecution when attention was drawn by the court to section 339 of the criminal procedure law of Lagos State regarding the impropriety of joining the said three counts with a charge of murder. The said three counts were therefore struck out and the accused discharged in respect of the three.

The prosecution called a total of ten witnesses. Three witnesses, including the accused, testified for the defence. At the close of the case for the defence on 11th November, 1982, learned counsel to the defence refused to address the court after his application for adjournment to another date had been turned down by the court. The reason for the refusal and its justification or otherwise will be adverted to later in this judgment. Only counsel for the state addressed the court.

In his judgment, after a meticulous review of the evidence adduced before him and after due consideration of the defences open to the accused along with the applicable laws, the learned trial Judge, Okuribido J., came to the conclusion that the prosecution had proved beyond reasonable doubt that the accused on the 16th day of December, 1979 with intent to do grievous harm to the deceased unlawfully killed her. The learned trial Judge was satisfied that the accused must be deemed to have intended the death of the deceased. He accordingly found the accused guilty of murdering the deceased contrary to section 316(2) of the Criminal Code law, an offence punishable under section 319(1) of the same law. The accused was therefore sentenced to death by hanging.

Dissatisfied with the judgment, the accused appealed to the court of appeal on a number of grounds. One of the issues canvassed before the court of appeal was the question of the refusal of the learned trial Judge to grant the application of the defence counsel for an adjournment to enable him prepare his address. The defence contended that the refusal amounted to a denial of fair hearing to the appellant.

In a reserved judgment, (concurred in by Ademola and Awogu, JJ.C.A.) Babalakin, J.C.A. was satisfied that the appellant was not prejudiced by the refusal to grant an adjournment for address in that all the defences open to the appellant on the fact of the case were adequately considered by the learned trial Judge and that the principle of fair hearing entrenched in the 1979 Constitution was not breached. He also considered other issues raised by the grounds of appeal and found the complaints of the appellant baseless. The court of appeal accordingly dismissed the appeal and affirmed the conviction and sentence passed on the appellant by the trial court.

Still dissatisfied, the accused has now appealed to this court on a number of grounds. For one to fully appreciate the reasonableness or uselessness of the complaints of the appellant, it is necessary to set out the relevant facts of the case placed before the trial court before drawing attention to the grounds of appeal and/or issues for determination in the appeal. The appellant was at the time material to this case a tenant at No.2A Adeleye Street, Orile Iganmu. His landlord was Tajudeen Adisa Shoetan, P.W.1., who lived at No.2 Adeleye Street adjacent to No.2A. The deceased lived with P.W.1, her uncle. Going by the prosecution’s case, on the night of 15th December, 1979 when P.W.1 was walking along the corridor of No.2A, the appellant blew some black powdery substance on him. This incident led to an altercation between them. The appellant slapped P.W.1 and drew out a dagger. P.W.1 accompanied by P.W.3, Oluwole Olawunmi, an accounts clerk residing also at No.2 Adeleye street reported the incident at Iponri police station.

Two police officers went to the scene in company of P.W.1 and P.W.3. At the scene, on knocking at the door of appellant and was told he was being invited to the police station, the appellant opened the door came out armed with a dagger and stabbed Corporal Adetunji, P.W.4 on the shoulder. Corporal Olabisi and P.W.4 sped away as they were pursued by the appellant. The appellant returned to his room, later came out armed with a dagger and carrying a pestle and a bottle of kerosine. With the pestle, he damaged P.W.1’s car No.LAD 3897 and set it on fire after sprinkling kerosine on it. He damaged another car with registration No.OY 5713 W. He apparently returned to his room. While P.W.3 and Jemilatu, the deceased, were trying to put out the fire, the appellant appeared at the scene still armed with a dagger and threatened to kill all of you tonight.

The girl Jemilatu ran into P.W.1’s house where she lived. The appellant went after her, forced the door open, entered and the helpless girl was heard shouting help me help me Baba Chinedu (meaning the appellant) has entered. Baba Chinedu has stabbed me on the neck twice. PW.3 who had run into the boys quarters could see the accused stabbing Jemilatu because the door to the room had been forced open by the accused. According to him as Jemilatu wanted to get out I saw the accused stab her by the neck and blood was gushing out.

The deceased Jemilatu fell down in a pool of her own blood, but the accused continued to stab her all over the body.The accused walked out of the house. Jemilatu was rushed to the Lagos University Teaching Hospital by P.W.1 and P.W.3 where she died in the theatre. Dr. Victor Emordi, P.W.2, of the Department of Morbid Anatomy, University of Lagos, who was also a consultant with Lagos University Teaching Hospital, performed post mortem examination on the body of the deceased on 18/12/79. He gave cause of death as due to excessive loss of blood arising from many cuts one of which caused internal bleeding. He stated that he had no cause to disagree that the age of the girl was twelve years as stated on the case note. His preliminary report, exhibit C which gave the age of the deceased as twenty three years was the opinion of the police.

It was however the case for the defence as testified to by the accused himself that the whole incident started when at about 11p.m. of 15/12/79 he heard P.W.1 voicing out some incantations and mentioning the name of three of his (accused) children. This infuriated him. When he looked out he saw P.W.1 opposite his room. He reminded PW.1 that he had warned him previously not to use incantation on his children. P.W.1 then held his two hands and started to knock his (accused) head against the wall. People came to the scene and separated them. He the appellant returned to his room and locked himself in.

Later at about 2 a.m. he heard P.W.1 knock at his door and calling him. Because he refused to open the door, it was forced opened. He saw two policemen enter his room. One of them hit him with a detached part of the broken door, inflicting injury on his head. Blood gushed out. When he raised an alarm the policemen ran away. In the process of running away one of the policemen inadvertently hit his head against a protruding nail on the damaged door.

He at no time chased the policemen. He, the accused, subsequently fell unconscious when he had bled profusely from the injury one of the policemen inflicted on him. After the policemen had left the scene five persons, including P.W. 1 and Jemilatu (the deceased), jointly attacked him at the back of his house. It was during the assault on him that he wounded the deceased.

He would not know with what object he hit the deceased, but it was something he picked from the ground. He hit her with the object in self defence and out of annoyance. As the deceased ran away the others who had joined in fighting him ran towards her. He the appellant then made for the police station.

The trial Judge believed in the main the evidence adduced by prosecution witnesses. He was satisfied that the appellant set the car of P.W.1 on fire and that it was when P.W.3 and the deceased were trying to put out the fire that the accused emerged and chased the deceased into the parlour of PW.1 where he stabbed her many times. The learned trial Judge was firmly of the view that the only reason why the accused chased and stabbed the deceased was because he saw her and P.W.3 trying to prevent P.W.1’s car from being completely destroyed by the fire he (the accused) had set it on.

He regarded the evidence of the accused that the deceased joined in beating him as a wicked lie and an afterthought of the accused’s own invention in his attempt to justify his act and presenting a defence of self defence and/or of provocation. He was of the view that the death of the deceased was the direct result of the barbaric act of the accused. He rejected the possible defence of self defence and provocation.

The Court of Appeal held that the findings of fact arrived at by the learned trial Judge could not be successfully be impeached and that the defences open to the accused were well considered by the trial court and were rightly rejected.

Four grounds of appeal were filed against the judgment of the Court of Appeal. The first brief filed in this court on behalf of the appellant by Chief Ugboma was based on the original grounds. A respondent’s brief was also filed. However when Chief Ohwovoriole took over the conduct of the case of the appellant, he prepared a fresh brief based on four amended grounds of appeal. The respondent had to file a supplementary brief to meet the new issues raised by the appellant’s amended brief of argument in this court the issues formulated were based on the four amended grounds of appeal.

The amended grounds shown of the copious and numerous particulars supplied read:

“(1) The learned Justices of the Court of Appeal erred in law or misdirected themselves on the facts when they upheld the procedure adopted by the learned trial Judge whereby he based his judgment on the address of the state counsel without giving the appellant or his counsel an opportunity to be heard and thereby occasioned substantial miscarriage of justice.

(2) The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held that:

Age of the deceased is not a material fact to be proved in a case of murder. Whether you kill an adult or an infant you are guilty under the provision of section 308 of Criminal Code law quoted above. Whereas there existed uncontradicted evidence that the identity of the deceased was not established beyond reasonable doubt and thereby occasioned miscarriage of justice.

(3) The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they affirmed the conviction and sentence passed on the appellant despite the fundamental conflicting and contradicting evidence of the prosecution witnesses that were not resolved which would have enured to the benefit of the appellant and thereby occasioned miscarriage of justice.

(4) The learned Justice of the Court of Appeal erred in law when they held that the defence of insanity was not available to the appellant when in fact the defence raised the issue in the testimony of the appellant but was not canvassed as there was no address by the defence counsel and thereby occasioned miscarriage of justice.

The following four issues were identified in the appellant’s brief as arising from the grounds of appeal filed. They read:

1. Whether the failure of the learned trial Judge to afford an opportunity to the appellant’s counsel for an adjournment at the close of the defence’s case so that he can address the court has denied the appellant of the right to fair hearing which denial has occasioned a miscarriage of justice.
2. Whether serious doubts exist because of the failure of the prosecution to properly establish the identity of the deceased.
3. Whether the conviction and sentence of death against the appellant can be sustained having regards to the conflicts and contradictions in the case of the prosecution.
4. Whether the lower courts adequately considered the defence of insanity available to the appellant in the circumstances of this case.

The issues formulated in the respondent’s two briefs relevant to the amended grounds of appeal are identical with the four issues identified in the appellant’s brief filed by Chief Ohwovoriole though differently worded. I need not set them out.

The first question that arises therefore is whether the Court of Appeal in holding that the refusal of the learned trial Judge to grant an adjournment to another date to enable the appellant’s counsel address him was not prejudicial to the appellant.

When the prosecution closed its case on 4/7/81 proceedings were adjourned to 14/9/81, at the request of the defence counsel. On 14/9/81 learned counsel for the accused disclosed to the court that children and relatives of the accused have still not paid for their services since they instructed the counsel. They have made promises only when they attend court but thereafter they never bothered to see the counsel in chambers or in their residence. He therefore applied for a further adjournment. His application was granted and the defence adjourned to 22/12/81.

On 22/12/81 counsel applied still for a further adjournment on the ground that his instructions had still not been fulfilled. Counsel however promised that if the court grant his application for adjournment he would continue with the case on the next adjourned date whether or not instructions had been perfected. In adjourning further hearing to 20/1/82, the court however warned that it would be the last adjournment it would grant at the instance of the defence.

On 21/1/82 defence counsel appeared in court and said he was unwell and that he had only come to court because of the undertaking he had given. He applied for an adjournment. The learned trial Judge adjourned to 24/2/82 with the greatest reluctance as the court cannot compel a counsel who allege that he is unwell to proceed, even in the peculiar circumstances of this case.

On 24/2/82 the defence opened with the accused testifying. After the accused and D.W.2 had testified, Chief Ugboma, learned counsel for the defence, applied yet for an adjournment to enable him call one of the children of the accused who had not been subpoenaed to testify. The accommodating learned trial Judge observed that but for the fact that the accused is facing a capital charge, I would not have granted an adjournment for a witness who has not been subpoenaed. Case is adjourned to 4/5/82.

On 4/5/82 the defence counsel was absent. He wrote for an adjournment. In adjourning the case, much against his will, the learned trial Judge observed that the application was a disservice to the accused, but that in view of the seriousness of the charge he would not ask the accused to proceed with his defence. The case was adjourned to 29/6/82.

If one may observe, there was no indication from learned counsel whether or not his instructions had been perfected. It is therefore not clear whether his requests for adjournments, following his undertaking to the court, were a strategy to enable him collect his fees before the conclusion of the case. Apparently, the court did not sit on 29/6/82. There is nothing in the record of appeal to indicate what transpired on that day when the case came on for hearing on 12/10/82 counsel for the accused was absent. He again wrote for adjournment. The accommodating trial Judge adjourned the case again for the fact that the accused is facing a charge which attracts a sentence of death.The case was adjourned to 28/10/82.

On 28/10/82 P.W.3 Nicolas Ndu, one of the children of the accused testified. He was not an eye witness of the incident leading to the death of the deceased Jemilatu. He was obviously brought to testify to the effect that when he was informed of the event of that night, he went to his father’s house where, according to him, he observed that his father sustained injury on his left side and was bleeding. He also stated that he and the other children of the accused were arrested when the police could not locate their father. On their arrival at the police station they were released because the accused had given himself up. At the conclusion of his evidence, the defence closed its case and Chief Ugboma was called upon to address the court. In what had become characteristic of him, he asked for adjournment. He claimed he was unable to prepare his address because he arrived Lagos the previous night and that there was an electricity failure. He also stated that he had not brought to court the authorities he intended to cite in support of the case for the defence. There was no intimation whether or not his instructions had been perfected. The learned trial Judge rule thus on counsel’s application for adjournment.

Every opportunity and all concessions possible had been given to the defence counsel as can be borne out by the record of these proceedings to enable him to present the defence of the accused with all diligence and responsibility up to the point of seeing to it that his instructions are perfected which should not be the concern of the court ordinarily. But I have gone that length because the accused is facing a capital offence for which his life is at stake. If the learned counsel has thought of addressing the court this morning knowing the type of evidence remaining for him to be led, he would have come here this morning prepared. I have had occasion once or twice to comment on the defence counsel’s attitude in this case. This application is another instance of such attitude. If the learned counsel is not prepared to address the court this morning, I shall ask the prosecuting counsel to address me if he is so willing and thereafter adjourn for judgment. The application for adjournment is refused. At this stage Chief Ugboma then asked for one hour to collect his authorities and the case was stood down till 12.05 p.m. On resumption at 12.05 p.m. learned counsel informed the court that he would not be able to address it because he would not be able to satisfy himself. The learned trial judge made it clear that he would not rescind his decision to go on with the case. Chief Ugboma then sought leave to withdraw from the case because he had not prepared the address.

The learned trial Judge either by design or omission did not rule on counsel application to withdraw. There is nothing on the record to suggest that Chief Ugboma was granted leave to withdraw from the case. Learned counsel for the prosecution then took the stage and applied to withdraw counts 2 to 4 of the charge. The application to withdraw the counts was granted and the relevant counts were struck out. Counsel for the prosecution then addressed the court. At the conclusion of his address judgment was reserved.

In contending that failure to grant the request of counsel for adjournment to another date to enable him prepare his address amounted to not giving the appellant a fair hearing, Chief Ohwovoriole, who was not counsel for the appellant both in the trial court and Court of Appeal, relied on the case of Obodo v. Olomu and Anor. (1987) 3 NWLR (Part 59) 111 where this court, per Belgore, J.S.C, in his leading judgment had this to say:

The procedure whereby the parties to a case at the conclusion of evidence are to address the court on the evidence before the court, enumerating the issues canvassed and adverting to the law governing the issues has taken such a root in our superior courts that denial of it cannot be regarded as mere procedural irregularity. Just as a party is not compellable to give evidence to prove his case so is a party not compellable to address the court where he has the right so to do. But when the right exists, a party must not be denied that right and denial of the right may render the proceeding a nullity if miscarriage of justice is occasioned. In the same case Obaseki, J.S.C., at page 123 – 124 observed thus:

The hearing of addresses by every court established by the constitution of the Federal Republic of Nigeria is recognised by the constitution. It is to be given before judgment is delivered. See section 258(1) of the constitution of the Federal Republic of Nigeria 1979. Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its assistance to the Judge in arriving at a just and proper decision, though dependent on the quality of address, cannot be denied. The absence of an address can tilt the balance of the learned Judge’s judgment just as much as the delivery of an address after conclusion of evidence can. It is not for this court to speculate on what the effect of plaintiff’s counsel’s address would have been on the learned trial Judge’s judgment as the Court of Appeal has done. Until the learned trial Judge’s mind is exposed to an address, no one can say what effect it will have on his mind.

The fact of denial of opportunity to deliver the address has robbed the learned trial Judge the benefit the address would have had on his mind in arriving at a just decision.

The facts of the case under reference relevant to this appeal are these. At the close of the cases of the parties, the learned trial Judge ordered parties to send their addresses to him in writing, and he adjourned to the 2nd of August, 1983 for judgment. Only counsel for the defendant submitted his written address to the trial court. The written submission of the defendant was however not served on plaintiff’s counsel. Plaintiff’s counsel had no opportunity of replying to the defendant’s submission as provided by the High Court (Civil Procedure) Rules. The trial judge dismissed the plaintiff’s claim. The Court of Appeal also dismissed the plaintiff’s appeal on the grounds that: (a) The plaintiff/appellant disobeyed the order of the court by failing to submit a written address as directed by the court and therefore could not blame the court for relying on the submission of the defendant’s counsel.

(b) That the judgment of the trial court would still have been the same if the plaintiff or his counsel had submitted a written reply.

On a further appeal to this court the appeal was allowed on the ground that the plaintiff or his counsel was denied his right to reply to the submission of the defendant or his counsel as provided by the relevant rules of court. The order of the trial Judge for a written address, would probably have been proper, that is, if written addresses were permissible, if he had made an order for service of the defendant’s address on the plaintiff and an order as to when the plaintiff was to file his reply address. A person who has the right to reply cannot effectively reply without hearing the oral address or being served with the written address of his opponent.

The incisive reasoning of Obaseki and Belgore, JJ.S.C., in the case under reference would only be applicable in this case if counsel for appellant was in fact denied his right of addressing the court and not that he waived the right to do so.

It is patently clear that learned counsel for the appellant was called upon to address the court after he had closed the case for the defence. It therefore seems to me misleading, to put it mildly, to submit that the defence was not afforded opportunity to address the court. Counsel was given the opportunity to do so on 28/10/82.

The right of address given to a party or his counsel does not confer or him the right to do so at his pleasure. A party or counsel may forfeit or be taken to waive his right of address if he fails to address when called upon by the court to do so at the close of evidence.

On 12/12/81, ten months before the date he was called upon to address the court, counsel had given the court the assurance that he would play his role as counsel faithfully, if the court granted him an adjournment on that day regardless of any default thereafter by his client or his relations to fulfil their obligation to him as counsel. Adjournment was granted. Thereafter, there were still applications from learned counsel for adjournment for one reason or another. One of such adjournments was asked for by a letter on 4/5/82. The learned trial Judge noted that the application for adjournment was a disservice to the accused.

It is to be emphasized that the accused and DW.2 testified on 24/2/82 and that learned counsel had only one more witness to call. The nature of the evidence to be given by that witness was known to counsel. In effect between 24/2/82 and 28/10/82, a period of eight clear months, learned counsel had ample time to prepare his address taking into account the evidence expected from DW.3, one of the children of the accused. As the learned trial Judge rightly put it, counsel knew the type of evidence remaining for him to be led.

In the circumstances of this case, the excuse of learned counsel that there was electricity failure the previous day which prevented him from preparing his address or that he had not brought his authorities to court would appear to be too fanciful and farcical to warrant any consideration for granting adjournment. Even then the learned trial Judge, in his accommodating stance, bending over backwards, granted appellant’s counsel adjournment for one hour which he himself subsequently prayed for to prepare his address.

It was obvious to the learned trial Judge that the application for adjournment was to delay proceedings. He made the point that he had occasions to comment on the defence counsel’s attitude in this case. This application is another instance of such attitude. A trial court in exercising its discretion as to whether to grant an adjournment always bears in mind that it is the duty of the court to minimise costs of litigation and to see to it that justice is not unnecessarily delayed. The court will refuse an application by either party for an adjournment of the hearing if it is of the opinion that the application was made only for purposes of delaying the proceedings. (See Omega v. The State (1965) NMLR 58).

The importance of a court receiving addresses from counsel cannot be over emphasized. Obaseki, J.S.C., made this plain in Obodo v. Olomu (supra). A good address may provide a judge a clear mental opinion to perceive either the tenuousness in what had appeared impregnable or to see through the veneer and discover the hard core of a party’s case. There are however occasions when address from counsel are a matter of formality. They may not diminish or add to the strength or weakness in a party’s case. The facts and the law applicable in such cases speak loudly for themselves to require address. It was in this light this court, Per Oputa, J.S.C., in Niger Construction Limited v. Okugbeni (1987) 4 NWLR (Pt.67) 787 at page 792 alluded to the fact that: Addresses are designed to assist the court. When, as in this case, the facts are straightforward and in the main not in dispute, the trial Judge would be free to dispense with final addresses. Cases are normally not decided on addresses but on credible evidence. No amount of brilliance in a final speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue.

The facts of this case are so straightforward and the law involved so common place that the failure of the learned counsel for the appellant to address the court not by itself have occasioned any injustice, particularly as the learned trial judge considered the possible defences open to the appellant. In effect if the learned trial Judge erred in his judgment, it would not be as a result of the refusal or failure of counsel to exercise his right of address, but because of the judge’s own shortcoming.

The next issue is whether the prosecution established that Jemilatu Shoetan in fact died as a result of the injuries inflicted on her by the appellant. This issue was argued along with the third issue relating to alleged conflicts and contradictions in the case of the prosecution. Learned counsel for the appellant argued that it was not the identity of the victim only that was not established but that the prosecution also failed to show that Jemilatu Shoetan was dead and that it was her body P.W.2, the doctor, performed the post mortem examination on. He made the point that the doctor P.W.2 relied on the case note for the purpose of identifying Jemilatu Shoetan at the hospital where her age was recorded as 12 years whereas appropriate age of 23 years shown on exhibit C. was the opinion of the police. He however pointed out that it was P.W.1 who told the police, P.W.10, that Jemilatu Shoetan was aged 23 years.

Learned counsel urged us to hold that the trial court and the Court of Appeal were wrong to accept the evidence of P.W.2 that he performed the post mortem examination on Jemilatu Shoetan when he was not precise as to the correct age of the body on which he performed the post mortem. Learned counsel argued that even if Jemilatu was indeed dead the possibility that it was not her body that P.W.2 performed the post mortem examination cannot be ruled out as there was never any identification of the corpse of Jemilatu to P.W.2 for purpose of the post mortem examination. According to counsel the age and proper identity of the deceased are very material facts to be proved in establishing a charge of murder.

Babalakin, J.C.A., in his leading judgment in the Court of Appeal resolved the issue thus:

The appellant admitted both in his statement and evidence before the court that he inflicted injury on the deceased whom he called Jemilatu and that she was bleeding from the said injury. The said Jemilatu was the one living with P.W.1 at No.2 Adeleye Street, Sari Iganmu that was wounded. There were no two Jemilatu living at the said No. 2 Adeleye Street, Iganmu; it was this only Jemilatu that both P.W.1 and P.W.3 rushed to Lagos University Teaching Hospital (LUTH) as a result of the wounds inflicted on her by the appellant. It was the same Jemilatu that later died in the hospital. It was on this same Jemilatu that P.W.2 performed post mortem examination and both his report and the report of coroner gave details of the wound sustained by the deceased. These agree with the evidence about the stabbing of the deceased given by P.W.1 and P.W.3

whether you say the deceased was aged 12 or 23 years; it is the one and only Jemilatu of 2 Adeleye Street, Sari Iganmu living with P.W.1 that died as a result of injury inflicted on her by the appellant.

I agree with his reasoning in the main.

In his evidence P.W.3 who saw the accused stab the deceased and who was one of those who conveyed the deceased to the hospital after she had been stabbed by the appellant testified thus in the car on our way to the hospital Jemilatu was already gasping. At one stage she said and breathed down heavily. When we arrived at the Lagos University Teaching Hospital the nurses helped us to carry Jemilatu into the theatre and I followed while P.W.1 remained outside crying. At the theatre three doctors were called one after the other and they all said no way. At last she was certified dead.

Jemilatu was pronounced dead in the presence of P.W.3. There can be no better evidence in the circumstances of this case that Jemilatu died as a result of the injuries inflicted on her by the appellant. It is true that there is no evidence that anyone identified the corpse of Jemilatu to the doctor, P.W.2, who performed the post mortem examination. P.W.2 however said that he saw the body of Jemilatu Shoetan and performed post mortem examination on the body. His evidence was to the effect that there were numerous wounds on the neck and other parts of the body and that the death of the deceased was caused by excessive loss of blood due to multiple partly penetrating cuts or wounds one of which caused internal bleeding.The nature of the injuries inflicted on Jemilatu as shown and testified to by P.W.3 conforms with the findings of the doctor, P.W.2. The evidence of P.W.1, the uncle of the deceased, put it beyond doubt that she died and was buried. He stated in his evidence that after the post mortem examination he was given a warrant to bury the corpse of my niece. She was buried on 18th December, 1979.

The discrepancy as to the age of the deceased is highly immaterial in the circumstances of this case. In the recent case of Enewoh v. The State (1990) 4 NWLR (Pt. 145) 469 page 482, the point was made by this court that, if 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 a deceased to a doctor is not a sine qua non in all murder cases. See Edim v. The State (1972) 4 S.C.160.

In the same case, that is, Enewoh v. The State, at the Court of Appeal stage, reported in (1989) 5 NWLR (Pt.119) 98, Uwaifo, J.C.A., identified a number of ways evidence of identity could come. He reasoned thus at page 108, and I agree with him. It could be given by the person who did the identification of the corpse to the doctor which itself will be tied to the evidence of the doctor.

Admittedly, this is the normal and commonest way. It could be evidence of some peculiarities known about the deceased physical features or found or associated with his or her body from which identity could hardly be mistaken. It could also be that from the nature of the available evidence there is reliable nexus of some sort between the injuries received by the deceased as given by those who saw them when or after he received them and those described by the doctor on performing the autopsy. Or indeed, it could well be that it was accepted throughout the trial that no issue of mistaken identity could be raised or did arise.

I find no other contradiction which was not satisfactorily resolved by the learned trial Judge and the Court of Appeal. To say that the identity of the deceased Jemilatu was not established beyond reasonable doubt in the circumstances of this case cannot be correct.

The last and final issue is whether the lower courts adequately considered the defence of insanity available to the appellant. Another way of putting it, and as rightly formulated in the respondent supplementary brief, is whether there was sufficient evidence before the trial court to sustain the defence of insanity.

It was the submission of learned counsel for the appellant that going by the evidence of prosecution witnesses, the appellant must have been insane. He referred to the following pieces of evidence, amongst others, as establishing insanity:

P.W.1: As I was walking along the corridor out of No.2A, I saw the accused come (sic) out of his room and blew powder like charm on me. When I asked him why he had done he slapped me and drew a dagger and I ran out.

The accused opened the door and came out with a dagger with which he pursued myself and the two constables

Also when I came with C.I.D. men I found the house burnt. There was sign that the fire was set in Mr. Ogunyinka’s room. I found my car set ablaze and the glasses smashed. I saw Mr. Ogunyinka’s car windscreen shattered.

P.W.3: The 1st P.W. and the accused were exchanging words in front of the accused’s room. Other co-tenants who were at the scene were asking the accused to cool down. At the time they were exchanging words the body of the accused was shaking. The shaking of the body indicated that the accused was in a fighting mood. He was angry.

P.W.5: Suddenly the accused opened the door of his room and brought out a dagger and a cutlass in his hands. I saw the two policemen run (sic) and the accused pursued one of them and stabbed him. When the policemen had escaped, the accused turned back and pursued everyone around with his dagger and cutlass. I ran to the front of the building. Later the accused came out and set fire on the roof of a shop erected in front of our house. I saw him pour (sic) kerosene in empty cartons and threw it on the shop.

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 (see Karimu v. The State (1989) 1 NWLR (Pt.96) 124. 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.

In the case of Sanusi v. The State (1984) 10 S.C.166, this court by Aniagolu, J.S.C. at page 177 observed:

…. Defence counsel must always work hard to present before the court proof which could include among others, positive acts of the accused before and after the deed complained of, evidence of a doctor who examined and watched the accused over a period of time as to his mental state, evidence of relations who know the accused intimately relating to his behaviour and the change which had come upon him, the medical history of the family which could indicate hereditary mental affliction or abnormality, and such other facts and circumstances which will help the trial Judge come to the conclusion that the burden of proof of insanity, placed by the criminal code, on the defence, has been amply discharged…

Also in Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565 at 575, Oputa, J.S.C. also detailed some of the types of evidence defence counsel seeking to establish insanity as a defence would naturally like to adduce as follows:

1. Evidence as to the past history of the accused.
2. Evidence as to his conduct immediately preceding the killing of the deceased.
3. Evidence from prison wardens who had custody of the accused and looked after him during his trial.
4. Evidence from medical officer and/or psychiatrists who examined the accused.
5. Evidence of relatives about the general behaviour of the accused and the reputation he enjoyed for sanity or insanity in his neighbourhood.
6. Evidence showing that insanity appears in the family history of the accused.

As already stated in this judgment, the defence at the trial court called two other witnesses besides the appellant himself. P.W.2 was one Stephen Ojo, a senior mortuary supervisor at Lagos University Teaching Hospital who testified to the effect that policemen on investigation were usually allowed to take photographs of corpses in the mortuary. He said nothing more. He did not testify as to the mental state of the appellant. P.W.3 was the son of the accused. I have already adverted to the substance of his evidence. He said nothing to suggest that his father was at any time mentally unbalanced.

What is more, defence counsel challenged strenuously by way of cross-examination the correctness of the pieces of evidence learned counsel now seeks to rely on as evidence of insanity which the learned trial Judge and the Justices of the Court of Appeal ought to have regarded as establishing insanity.

The ground of appeal raising the issue of insanity in my view is frivolous in the extreme. On the whole, the appeal lacks merit. It is for the reasons and conclusion stated above in respect of the issues identified in this appeal that I dismissed on 4th October, 1990 the appeal of Donatus Ndu against his conviction and sentence to death. The judgment of the Court of Appeal is upheld.

---

Other Citation: (1990) LCN/2403(SC)