Mbanengen Shande V. The State (2004)
LawGlobal-Hub Lead Judgment Report
AMIRU SANUSI, J.C.A.
Mbanengen Shande, the appellant herein was arraigned before the High Court of Justice of Benue State sitting in Makurdi in suit No. MHC/5C/98 on a charge of culpable homicide punishable with death, contrary to section 221 of the Penal Code. She was tried, convicted and sentenced to death by the said court (hereinafter referred to as ‘the trial court’) Coram Kpojime, J. Dissatisfied with the decision of the trial court delivered on the 13th day of April, 1999, she appealed to this court.
The facts which gave rise to this appeal are summarized hereunder.
The appellant was the wife of the first prosecution witness, one Mr. Benjamin Iorumun Shande. On the 8th of May, 1992, the latter visited the deceased, one Mrumun Dera, his mistress in a village called Jato-Aka and slept there. On 9/5/97, he gave the deceased (his mistress) transport money on her request so that she could travel to his village Achia, where he used to stay with the appellant, his wife, in order to assist her (the appellant) in planting groundnut in the farm. The deceased was billed to travel to Achia village on 10/5/97 and join him (PW1) who was to leave for Achia on the 9/5/97.
The appellant’s husband (PW1) left for Achia on that same day and arrived there at around 8.00pm. Quite unexpectedly, the deceased did not wait until 10/5/97 but instead decided to travel to Achia on the same 9/5/97 and arrived there just a few hours after the appellant’s husband had arrived.
On being informed of the arrival of his mistress, the deceased, the PWI went out to receive her. The appellant also went out to welcome her. After exchanging pleasantries, the appellant prepared accommodation for the visitor, i.e., the deceased, who had earlier expressed her desire to sleep and had complained of feeling cold. Just few hours later, the PWI heard a sound of a cry from the hut where the deceased was led to sleep. On hearing such a cry, the PW1 and his brother (PW2) quickly rushed to the hut and met it locked. The PW2 forced the door open and on entering, they saw the body of the deceased set ablaze.
They tried to rescue her by tearing her clothing and brought her out of the room. They quickly arranged for a vehicle to convey her to the hospital as she suffered severe burns on her body. On asking the appellant what had happened later, the appellant refused to reply him but simply kept mute. The deceased later died in the hospital as a result of the severe burns she sustained.
At the trial court, the prosecution called four witnesses namely the husband of the appellant (PW1), his brother (PW2) and PWs 3 and 4 who were Police officers who investigated the case and tendered some exhibits which included the appellant’s confessional statement and medical report issued by the medical officer who examined the body of the deceased victim. The appellant, on the other hand, testified on her own defence but did not call any witness for the defence. In her defence, the appellant pleaded the defence of provocation which was rejected by the trial court. The trial Judge found her guilty as charged and convicted her and sentenced her to death. Aggrieved by the decision of the trial court, the appellant appealed to this court.
In compliance with the provisions of Order 6 rule 2 of the Court of Appeal Rules of 1981 (as amended), the appellant’s counsel filed brief of argument on behalf of the appellant on 15/4/2003.
Two issues for determination of the appeal were identified in the said brief of argument which are set out hereunder.
(1) Whether the learned trial Judge was right in law in holding that the appellant committed culpable homicide punishable with death, even though the prosecution had failed to discharge the onus placed upon it to prove the guilt of the appellant beyond reasonable doubt?.
(2) Whether the defence of provocation can avail the appellant to reduce the offence from murder to manslaughter, considering the circumstances of this case?.
As has been the practice, after being served with the appellant’s brief of argument, the respondent also filed a brief of argument on 28/5/2003. Therein, it also formulated two issues for the determination of the appeal which are also reproduced below:
(a) Whether the Judge was right in convicting the appellant of culpable homicide punishable with death under section 221 of the Penal Code based mainly on the appellant’s confessional statement, exhibit 5?
(b) The respondents adopts issue No.2 as formulated by the appellant.
The issues for determination of this appeal formulated by both parties are more or less the same. I shall therefore be guided by the issues identified by the appellant in treating this appeal, since they are more relevant to the issues at stake as raised. I also intend to consider the two issues serially.
On the first issue for determination, the appellant’s counsel submitted that the trial court was wrong in convicting the appellant for the offence of culpable homicide punishable with death under section 221 of the Penal Code as it did not properly evaluate the entire evidence adduced before it especially, the pieces of evidence the trial court regarded as corroborating the confessional statement made by the accused appellant. He referred to the testimony of the appellant in cross-examination showing that there was a matrimonial problem which was not controverted.
He cited for example the evidence of the appellant that the husband of the appellant (PW1) at one time left the matrimonial home and spent two months just after the death of their child. He also cited an occasion when the appellant fought with the deceased when the latter visited their matrimonial home as well as the fact that the deceased person was a woman friend of her husband (PW2) and had been visiting their matrimonial home. All these pieces of evidence, according to the learned counsel for the appellant, are enough to create some doubts in the mind of the trial court as to the guilt of the accused appellant.
The learned counsel for the appellant also submitted that by retracting her confession, the court ought to have considered such retraction and decide whether the said confession was consistent with other facts which have been ascertained and have been proved. See (Kareem v. Federal Republic of Nigeria (2002) 8 NWLR (Pt.770) 664, (2000) FWLR (Pt. 104). It was also submitted on behalf of the appellant that the evidence of PW2 did not implicate the accused/appellant when he testified that the appellant was a person incapable of committing the offence since the deceased, the appellant and the children were also rescued from the house.
Responding to the above submissions, the respondent’s counsel submitted that the court was right in convicting the appellant even on her confessional statement alone which according to him, was clearly voluntarily made by her. He argued that the confessional statement was direct, positive, unequivocal and true and all the evidence are compatible with the contents of the statement. He said a court can convict even on the confessional statement alone without more or even without corroboration.
He cited Osakwe v. A.-G., Bendel State (1991) 1 NWLR (Pt. 167) 315, (1994) 2 SCNJ 57 at 60; Nwaebonyi v. State (1994) 5 NWLR (Pt. 343) 138. He said the confessional statement of the appellant (exhibit 5) having been proved have been freely and voluntarily made, it does not require any corroboration.
He conceded however that where a confessional statement is retracted, it is desirable to have corroborative evidence outside the confession which makes it probable that the confession was true. See Nwaebonyi’s case. He submitted that in this instant case, when exhibit 5 was tendered, nobody objected or attacked it on any ground. He said that that is enough to strengthen the truth and its voluntariness. He also stated that the trial court had duly evaluated the evidence adduced in the case before it convicted the appellant. He said there were ample evidence that corroborated the confessional statement of the appellant.
He added that the medical report, exhibit 4, had duly corroborated the confessional statement exhibit 4 which was also not challenged at all. It was also corroborated by the testimonies of PWs 1 and 2, as well as the testimony of the appellant too.
As I posited above, the prosecution in its effort to prove the charge it framed against the appellant had called PWI (the husband of appellant) and PW2 (the brother of PW1). Both witnesses confirmed that they made effort to rescue the deceased victim from the fire set on her body. There is also a confessional statement (exhibit 5) made by the appellant which was tendered and admitted without any objection from the defence. Therein, the appellant categorically admitted setting fire on the deceased person who slept in her hut in their compound.
The learned trial Judge, rightly in my view, specified the essential elements to be proved before a charge of culpable homicide punishable with death under section 221 of the Penal Code, can be said to have been established. The essential elements to be proved are:-
(a) that a death of a human being has been caused;
(b) that such death was caused by the accused;
(c) that the act was done with intention of causing death, or with intention of causing bodily injury as
(i) the accused knew or had reason to know that death would be the probable and not only likely consequence of her act; or
(ii) that the accused knew, or had reason to know that death would be the probable and not only the likely consequence of any bodily injury, the act was intended to cause.
The learned trial Judge, after considering and evaluating the evidence adduced before him, i.e., the testimonies of the prosecution witnesses, the documentary exhibits tendered before him including the appellant’s confessional statement and the medical report and the testimony of the appellant when she testified on her own defence, made the following finding on page 65 of the printed record of proceeding of the trial court:
“The prosecution, having proved the death of Mrumun Dera, having also proved that the accused person caused the death of the said Mrumun Dera and that the act was done with the knowledge that death would be the probable consequence of the bodily injuries she intended causing on the said Mrumun Dera, hold that the prosecution has proved the charge against the accused beyond reasonable doubt.”
It is an age-long established principle of our criminal law that the onus of proof in criminal trial is throughout on the prosecution which must prove its case against the accused person beyond all reasonable doubt. There is no principle in our law which placed any burden on an accused person to prove his innocence, since by our Constitution, his innocence is always presumed until his guilt is proved. See section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, section 138 of the Evidence Act of 1990 as amended. See also Ameh v. State (1978) 6 & 7 SC 27 at 31; Uso v. COP (1972) 11 SC 37 at 46/47.
Lord Denning J. (as he then was) shed more light on what the phrase ‘proof beyond reasonable doubt’ is all about in the case of Miller v. Minister of Pensions (1947) 2 All ER 372 when he said thus on page 373:
“…Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave 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.”
To my mind and in view of the above dictum, the basic necessity before a verdict of guilt in criminal charge can be pronounced is that the court must be satisfied that the guilt of the accused is proved beyond reasonable doubt. Indeed, it is trite law that where the essential ingredients of an offence are not proved, the accused is entitled to an acquittal. See Nwokedi v. COP (1977) 3 SC 35 at 40.
In the instant case, it is clear that from the evidence adduced, that the PWs 1 and 2 were the persons who rescued the deceased when on hearing her cry, they rushed to the hut where she was accommodated and was sleeping and found her body set ablaze and finally rushed her to the hospital where she later died of the burns.
All these pieces of evidence as rightly found by the trial court, corroborated her confessional statement. It is trite law that confession alone is sufficient to support conviction even without corroboration so long as the court is satisfied of the truth of the said confession. See Achabua v. State (1976) 12 SC 63. There is however nothing wrong in law for a court to convict an accused person on his own confession, even if there is no corroboration. See Muhammadu Sale Gashi v. State (1981) 2 PLR 343; Obosi v. State (1965) NMLR 129; Osakwe v. State (supra); Nwaebonyi v. State (supra).
The learned counsel for the appellant tried to make a heavy weather out of the fact that the appellant had retracted her own confession. From the evidence adduced in the case, it is clear that the appellant had admitted making the confession. A written confession of an accused person is relevant and should not be discarded or ignored simply because the accused had later retracted it or resiled from that voluntary statement. Once a confessional statement is proved to have been made voluntarily, as in this instant case, and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground a conviction, regardless of the fact that the maker resiled therefrom or retracted the same completely at the trial, as such retraction does not make it inadmissible or that the trial court should not act on it. See Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383; Nwangbomu v. State (1994) NWLR (Pt.327) 380; Idowu v. State (1998) 13 NWLR (Pt. 582) 391; Obisi v. Chief of Naval Staff (2002) 2 NWLR (Pt.751) 400 at 418. Once a confessional statement is proved properly then it is sufficient to sustain a conviction even if it is retracted by the maker as in this instant case. See Mumini & 3 Ors v. State (1975) 6 SC 79 at 94; Ojo v. State (1984) 6SC 127 at 130 to 132; Yesufu v. State (1976) 6 SC 167 at 173.
The law is that the prosecution always has a duty to prove its case beyond reasonable doubt in order to secure conviction. Even in a situation where there is a voluntary statement made by an accused person, the onus is still on the prosecution to prove the guilt of that accused person. See Mbenu v. State (1988) 3 NWLR (Pt. 84) 615.
As a matter of practice however, the courts normally require some evidence in additional to the confessional statement which makes the confession statement probable that same is true. The court normally would consider some issues such as
(a) whether there is evidence outside the confessional statement to show that it is true?;
(b) whether the confessional statement is in fact corroborated?;
(c) whether the statement of fact in the confessional statement could be tested as true?;
(d) whether the accused had really the opportunity of committing the offence?;
(e) whether the surrounding circumstance of the case the confession of the accused was possible?;
(f) whether the confession was consistent with other facts which were ascertained and proved at the trial?.
Considering the pieces of evidence adduced in the case, such as the testimonies of the prosecution witnesses and even that of the appellant, plus the medical report, one can easily say that the appellant did really commit the offence she was charged with and the trial court was therefore right in its finding and conclusion. See Kanu v. R (1952) 14 WACA 30. The evidence adduced in the case in my view, is credible and it really did corroborate the confessional statement of the appellant. These facts or pieces of evidence have provided the required corroboration of the confessional statement and have also gone a long way in proving that the contents of the confessional statement were true. The trial court had in my view, duly considered all these pieces of evidence before finding the accused/appellant guilty as charged.
It is my view therefore, that the prosecution had duly proved the charge against the accused/appellant beyond reasonable doubt as required of them by law. See section 138 of the Evidence Act. The court was therefore right in holding that the appellant committed the offence she was charged with that is to say, the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. The first issue is therefore resolved against the appellant.
The second issue or determination has to do with the defence of provocation posed by the appellant. The appellant’s counsel has submitted that the acts of the deceased amounted to grave provocation considering the background of the appellant. The acts were also wrongful and offensive. Recited the case of Akalezi v. State (1993) 2 NWLR (Pt. 273) 1; Ekpenyong v. State (1993) 5 NWLR (Pt. 295) 513 at 522.
Some of these acts include the long illicit association of the deceased with the appellant’s husband (PW1), the neglect of appellant by her husband (PW1) as a result of the association between the latter and the deceased, adulterous and amorous conduct of the PW1 with the deceased in the matrimonial home and other unromantic behaviour or conduct of PW1 towards the appellant which was as a result of the illicit association between the deceased and PW1 (her husband). It was further submitted by the appellant’s counsel that the pieces of evidence mentioned above made the provocation grave as would take away the appellant’s power of self control making her not to become mistress of her mind. He cited R v. Afonja (1955) 15 WACA 26; R v. Puffy (1994) 1 AUER 932; Nwede v. State (1985) 3 NWLR (Pt. 13) 444.
In his response, the learned counsel for the respondent submitted that the defence of provocation would not avail the appellant as there was no heat of passion and the alleged provocation was not grave and sudden. He also argued that there was also time for the passion to cool and the mode of resentment must be proportionate to the provocation. All these, according to the learned counsel, must co-exist for a defence of provocation to succeed. See Oladipupo v. State (1993) 6 NWLR (Pt. 298) 131, (1993) 6 SCNJ (Pt. 11) 233 at 239; Biruwa v. State (1993) 1 NWLR (Pt. 220) 633, (1992) 6 SCNJ (Pt.11) 191 at 195. He submitted that from the totality of the evidence adduced by the prosecution at the trial, the defence of provocation posed by the appellant fell short of satisfying the conditions laid down by the Supreme Court in Oladipupo’s case, hence, the defence of provocation can not avail the appellant in the circumstances of this case.
It is settled law that for a defence of provocation to succeed, it must be established by an accused person:
(a) That the act relied upon by an accused person is obviously provocative.
(b) That the provocative act had deprived the accused of self-control, that is to say, the provocative act is such as to let the accused person actually and reasonably lose self-control.
(c) The provocative act came from the deceased;
(g) The sudden fight between the accused and the deceased was continuous with no time for passion to cool down, that is, the retaliatory act to the provocation must be shown to be instantaneous to the act reacted against;
(h) the force used by the accused in repelling the provocation is not disproportionate in the circumstance.
Thus, it must be shown that the retaliatory act to the provocation must be proportionate to the act reacted against.All these ingredients set out above must co-exist to ground a plea of provocation. In my considered view, the evidence adduced at the trial in this instant case did not establish these conditions as would have availed the appellant. See the case of Nwede v. State (supra); Okonji v. State (1987) 1 NWLR (Pt. 52) 659; Akang v. State (1971) 1 All NLR 47; Ekpenyong v. State (supra). I am however aware of the fact that in determining whether a defence of provocation posed by an accused person, the trial court must apply an objective test. While applying such objective test, the court has to take into consideration the following antecedents, namely:
(i) The background of the accused person.
(ii) The accused’s station in life; and
(iii) The accused’s susceptibilities.
Similarly, evidence of premeditated intention to kill or inflict injuries or hurt is not consistent with the defence of provocation and would therefore defeat the defence. It is clear from the evidence adduced in the case that the appellant had formed a premeditated intention to cause injuries to the deceased. In exhibit 5, the confessional statement voluntarily made by her which was copiously quoted in the trial court’s judgment at pages 59 to 60 the appellant had this to say, inter alia;
“I tried to sleep with my children on the other bed but my mind could not rest because of the deceased who have caused my husband not to do my part-time NCE course, not to farm for me, clothes me and take me and our children for treatment when the need arise. Also my husband failure to pay the debt outstanding against me in our local bank. I had in mind to cause her some bodily injuries in order to make her keep away from my husband and so I took kerosene in a container, poured it on her and light matches and dropped it on her and her body catches fire and she waked up and started shouting and in her attempt to rushed out of the hut, fire catches on the roof of the thatched house and I started using the drinking water in the pot to put it off…” (Italics mine).
From these pieces of evidence coming from the mouth of the appellant, it can be said that the appellant had intended to inflict the injuries on the deceased victim. The evidence is as such inconsistent with her defence of provocation, and would therefore defeat her defence of provocation as rightly found by the trial Judge. The piece of evidence had also shown her to be an educated and civilized person who could have pursued her NCE course if not for the alleged in deference of her husband (PW1). The appellant not being an illiterate should be in a position to have a high measure of self-control.
Also, from the evidence adduced in the case, the alleged provocation was not grave and sudden and infact there was sufficient time for passion to cool down. Now, even if the acts of the deceased were provocative, by pouring kerosene on her and setting her ablaze, such act of the appellant can not be said to be commensurate or proportionate to the alleged provocation. In a culpable homicide, (or murder) case, the act of the killing must have been done in the heat of passion, before there was time for the passion to cool down and the retaliatory act must not be disproportionate to the provocation offered. The accused/or person provoked must have reasonable belief that his life is in danger and the quality of force used by him must also be the same that from which he defends himself. See the case of Ihunebeke v. State (supra).
In the circumstance of this case, I hold the view that the learned trial Judge was right in finding that the defence of provocation could not avail the appellant. The second issue is therefore resolved against the appellant too. In this instant case, there is abundant evidence of intention or motive to kill or cause severe bodily injury on the deceased on the part of the appellant. Such motive or intention need not be nursed for a long period. It could be formed instantly. The appellant said so in her own statement. Although I am not unmindful of the fact that proof of motive on the part of an accused facing charges of culpable homicide is not a sine qua non to his conviction for the offence, however, if there is such evidence, then it becomes relevant and in appropriate cases, strengthens the case of the prosecution. See Jimoh Isholah v. State (1978) 9 – 10 SC 81 at 104.
Now, this court being an appellate court, will not normally interfere or disturb the finding of a trial court unless and until it is shown to its satisfaction that such finding by the trial court is perverse or patently erroneous or that the decision was arrived at as a result of wrong approach to the evidence or that miscarriage of justice was occasioned or that there was violation of some principles of law or procedure in those findings which would warrant this or an appellate court to interfere or disturb. In my view, none of these conditions exist to warrant any interference with the decision of a trial court by this court. See Onyejekwe v. State (1992) 3 NWLR (Pt. 230) 444; Mbele v. State (1976) 5 SC 37; Nwachukwu v. State (1986) 2 NWLR (Pt. 25) 765; Onuoha v. State (1988) 3 NWLR (Pt. 83) 460; Wankey v. State (1993) 5 NWLR (Pt. 295) 542 at 552.
From the entire evidence adduced in the case and considering and applying the relevant laws as discussed above, I am of the firm view that the trial court was right in its findings and conclusion that the appellant committed the offence she was charged with and the trial court was also right in convicting the appellant of the offence of culpable homicide, punishable with death under section 221 of the Penal Code.
This appeal therefore deserves to fail and is hereby dismissed. The decision of the lower court delivered on the 13th of April, 1999 is hereby affirmed.
Other Citations: (2004)LCN/1573(CA)
