Micheal Oji Ogbu Vs The State (1992)

LawGlobal-Hub Lead Judgment Report

E. O. OGWUEGBU, J.S.C. 

The accused who is the appellant in this court was tried and convicted at the Ikom Judicial Division of the High Court of the Cross River State of the murder of his father (Ogbu Mbeh) at Etomi Village in the said Ikom Judicial Division on 11th September, 1980. He was sentenced to death by hanging.

He was dissatisfied with the decision and appealed to the Court of Appeal sitting at Enugu. The Court of Appeal dismissed his appeal and affirmed the judgment of the trial court. The appellant has further appealed to this court.

From the grounds of appeal filed, the following issues for determination were identified in the appellant’s brief of argument filed on 13:11:91:-

“1. Whether the evidence of the accused alone as to the defence of insanity is insufficient to establish or prove insanity and whether the accused is bound to call other witnesses such as Doctor’s Medical History e.t.c. before he can prove the defence of insanity inspite of other evidence corroborative of insanity apart (sic) of accused own evidence;

2. Whether Exhibit D the statement of the accused amounted to a confession of the offence of murder under S.27(1) of the Evidence Act;
3. Whether in the circumstances of this particular case the absence of medical evidence is fatal to the case of the prosecution;
4. Whether the material contradictions and gaps in the case of the prosecution amounted to disparagement of the witnesses making it dangerous to convict on them or likely to result in miscarriage of justice.”

In its brief of argument, the respondent formulated six issues for determination in the appeal. They are:-

“1. Whether the defence of insanity and/or insane delusion in both limbs of S.28 of the Criminal Code was open to the appellant on the totality of the evidence led before the trial court and the Court of Appeal.

2. Whether S.27 of the Criminal Code Laws of the Federation of Nigeria Cap. 42 Vol. 2 does not place on the appellant the onus of proofing (sic) insanity.
3. Whether S.28 of the Criminal Code Laws of the Federation of Nigeria Cap.42 Vol.2 would relieve the appellant of the Criminal responsibility when there is no evidence to show that the appellant was insane.
4. Whether Exhibit D the statement of the appellant amounted to confession of the offence of murder under S.27(1) of the Evidence Act in the face of strong corroborative evidence given by the prosecution witnesses in favour of the prosecution.
5. Whether in the circumstance of this case the absence of medical evidence is fatal to the case of the prosecution.
6. Whether the contradictions and gaps in the case of the prosecution amounted to disparagement of the witnesses making it dangerous to convict on them or likely to result in miscarriage of justice.”

The two sets of issues are basically the same but I prefer to consider the appeal along the line of the issues formulated by the appellant.

Before I deal with the arguments proffered by both learned counsel, I would like to give a summary of the facts of the case.

The prosecution’s case is that on the day in question at Etomi Village in Ikom Judicial Division, the appellant shot and killed his father – Ogbu Mbeh. P.W.1 (Ngon Oji) was an eye witness. She testified that at about 8 p.m. on 11/9/80, she was cooking in the kitchen with the mother of the appellant (P.W.4) and P.W.3 Philomena Ogbu when suddenly the appellant emerged from the room of the deceased with a gun. The deceased was at the material time resting on a chair in his verandah. The appellant moved to the verandah, hid at a corner of the house and shot the deceased from a distance of two metres. The deceased died on the spot. P.W.2 reported the incident to the police who later arrested the appellant. He made a statement to the police.

The police also took possession of the gun which was tendered in evidence as Exhibit as “A”, P.W.1, P.W.2, P.W.3 and P.W.4 also made statements to the police. The appellant in his evidence admitted making Exhibit “D”. In his examination in Chief he said that he had something to add to his statement to the police, namely: “I was not myself when the killing of my father took place, I did not know what happened (sic) until the death of my father. I made my first statement to the police in September, 1980. I made Exhibit “D” in 1985……….. nothing took place between me and my father. (See page 17 lines 8 – 15 of the record of appeal).

The facts are not seriously in dispute. As rightly pointed out by the Court of Appeal in its judgment, the main issue in the appeal is whether on the totality of the evidence led, the defence of insanity or insane delusions under S.28 of the Criminal Code did not avail the appellant.

The learned appellant’s counsel submitted that every person must be presumed innocent until the contrary is proved. He referred to 5.33(5) of the Constitution of the Federal Republic of Nigeria, 1979 as amended.

He stated that the onus of proof in every criminal case lies squarely on the prosecution throughout the duration of the case until judgment. He referred to Woolminglon v. D.P.P. (1935) A.C. 426 at 481. He further submitted that the fact that S.27 of the Criminal Code provided a presumption of sanity thereby shifting the onus of proof of insanity on the accused did not remove the general burden on the prosecution. He stated that this burden can be discharged either by the evidence coming from the prosecution or the defence.

Learned counsel referred the court to the statement of the appellant – Exhibit “D” where he said that evil spirit forced him to carry his father’s gun from his room and to use it in killing him.

In the same exhibit, the appellant said that after firing his late father, he went again and took a live cartridge, fitted it into the single barrel short gun with the aim of firing whoever he believed to have caused him to kill his late father and probably coming to kill him in addition to his late father.

The court was again referred to another portion of Exhibit “D” where the appellant said that after firing his father, he regained consciousness and became himself again.

Learned appellant’s counsel submitted that the oral testimony of the appellant was consistent with Exhibit “D”. He further stated that there were other pieces of evidence to corroborate this consistent evidence of the accused.

Counsel buttressed this with the finding of the Court of Appeal that there was no motive for the commission of the crime as well as the evidence of P.W.2 as to the strange behaviour of the appellant.

Based on these, learned counsel submitted that the Court of Appeal was in error in holding that there was “no evidence indicative of insanity.” He said that the Court of Appeal failed to consider Exhibit “D” and the consistent testimony of the appellant which was not challenged by the prosecution. Counsel stated that in the circumstances, only minimal proof was required. He cited the cases of Ukoha v. Okoronkwo (1972) 1 ALL NLR 100 and Kosile v. FoLarin (1989) 3 NWLR (Pt.107) 1.

Learned counsel further stated that since there was some evidence before the court of insanity and this evidence was corroborated by the absence of motives as held by the Court of Appeal, the Court of Appeal ought to have given its finding of lack of motive the necessary corroborative value it deserved. We were referred to the cases of Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565 at 567; Aiworo v. The Stare (1987) 2 NWLR (Pt.58) 526 at 536 and R. v. Inyang 12 WACA 5.

Counsel submitted that there was no need for the evidence of a medical doctor or medical history of the family since the prosecution did not dispute the story of the appellant as contained in Exhibit “D” or his consistent oral testimony which was further strengthened by absence of motive.

As to the treatment of Exhibit “D” as well as his evidence as admission, the learned counsel submitted that the value of an admission depended on the circumstances under which it was made. He submitted that Exhibit “D” was not an admission because it disclosed the defence of insanity or insane delusion and because P.W.5 did not test the truth of the facts stated in Exhibit “D” including the test of insanity with medical observation.

He stated that Exhibit “D” was not positive and directs enough to be relied on as admission or confession on which the accused was convicted. We were referred to 5.27(1) of the Evidence Act.

As to absence of medical evidence, counsel stated that it is not essential though desirable in proof of cause of death. He stated further that where the nature of the injury inflicted is in issue, medical evidence by a doctor who alone could prove a wound was imperative. He cited the case of Aruna v. The State (1990) 6 NWLR (Pt.155) 125 at 136.

He submitted that it was imperative on the prosecution where a post mortem examination was performed and medical report issued to call evidence of the cause of death. He referred to the case of The State v. John Ayo Adegbami (1968) NMLR 347.

Counsel referred to the contradictions in the evidence of P.W.1, P.W.3 and P.W.4. He said that P.W.1 claimed to have seen the appellant fire the gun when she was in the kitchen at about 8 p.m. whereas P.W.3 and P.W.4 who were in the same kitchen with her could not seethe appellant from the kitchen and P.W.4 stated under cross-examination that it was dark at the time of the incident. She did not see the appellant and would not know who killed the deceased.

Other contradictions were mentioned as to who were in the kitchen at the time of the incident and the alleged mis-understanding between the appellant and the deceased. It was submitted that the Court of Appeal did not resolve the contradictions in favour- of the appellant.

It was submitted that by the non-exclusion of the evidence of bad character of the appellant adduced by P.W.I, P.W.2 and P.W.3, the trial court acted contrary to Section 68(1) of the Evidence Act. We were urged to allow the appeal, discharge and acquit the appellant.

The learned respondent’s counsel submitted that the learned Justices of the Court of Appeal fully considered the defence of insanity and or insane delusions before coming to the conclusion that the evidence in respect of the said defence were insufficient. The evidence being that contained in Exhibit “D” where the accused alleged that some spirit pushed him to kill his father.

Counsel further submitted that the onus of establishing the defence of insanity under Section 28 of the Criminal Code lies on the appellant and that there is a presumption of sanity in every person charged under our law. He referred to Sections 140(1) of the Evidence Act and 27 of the Criminal Code. In addition, he cited the cases of R. v. Sunday Omoni 12 WACA 511 at 512-513 and Ngene Arum v. The State (1979) 11 SC 91.

Counsel further stated that the only evidence of insanity available to the appellant was that contained in Exhibit “D” which the learned defence counsel glossed over.

He stated that there was no evidence of a doctor who examined and watched the appellant over a period of time as to his mental state; no evidence of a relation who knew the appellant intimately as regards his behaviour generally and no medical history of the family to suggest the appellant’s state of mind. We were referred to the cases of Sanusi v. The State (1984) 10 SC 166 and R. v. Omoni (supra).

As to whether Exhibit “D” amounted to a confession of the offence of murder under Section 27(1) of the Evidence Act, it was submitted that the statement to the police was free and voluntary and amounted to an admission which was corroborated by the evidence of P.W.1, P.W.3 and P.W.4 which showed how the appellant emerged from the deceased’s room armed with a gun; the fact that the deceased was then resting in his verandah; the accused hiding himself by the corner of the house; shooting the deceased with the gun from a distance of two metres and the deceased dying on the spot. Counsel cited the case of Kanu & Ors v. R. (1952) 14 WACA 30.

Learned counsel reminded himself of the decision of this court Onochie & Ors v. The Republic (1966) NMLR 307 as to the desirability of having some evidence however slight outside a defendant’s statement which makes it probable that the confession is true. Learned counsel also stated that a conviction for murder can be based on the confessional statement of an accused. He referred to Mboho v. The Queen (1964) NMLR 49 at 52.

On the absence of medical evidence, it was the submission of counsel that in homicide cases where the cause of death is obvious, medical evidence ceases to be a necessity. We were referred to the cases of Adamu v. Kano N.A. (1956) SCNLR 65, Bukari v. The State (1965) NMLR 163 and Salako v. Attorney-General of Western Nigeria (1965) NMLR 107. He submitted that the absence of medical evidence was not fatal to the respondent’s case.

As to whether the contradictions and gaps in the case of the prosecution amounted to disparagement of the witnesses which made it unsafe to convict on them, learned counsel referred to the decision of this court in Akpuenya v. The State (1976) 11 SC 269. He submitted that the gaps in the prosecution’s case if any were of no material effect.

On the issue of motive, the learned counsel submitted that there was motive for the action of the accused, namely, the insistence of the deceased on the appellant going to Warri to further his education. Counsel further submitted that if this court holds the view that there was no motive for the killing, there was no evidence indicative of insanity. In the circumstance, the absence of motive ceased to be relevant. He referred to the cases of Salako v. Attorney-General, Western Nigeria supra, and R. v. Inyang 12 WACA 5. We were urged to dismiss the appeal and affirm the decision of the Court of Appeal.

The first issue for determination demands the consideration of Sections 27 and 28 of the Criminal Code, Section 141 of the Evidence Act Cap. 112 Volume V111, Laws of the Federation of Nigeria, 1990 and the evidence led which negatived the presumption of sanity.

Section 27 of the Criminal Code Act Cap. 77 Volume V Laws of the Federation of Nigeria, 1990 provides:-

“Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.”

Section 28 of the said Act provides that:-

“A person is not criminally responsible for an act or omission if at the time of doing that act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do, the act or make the omission. A man whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by delusions to believe to exist.”

Section 141 of the Evidence Act provides:-

“141 (1) Where a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged is upon such person.

(2) The burden of proof placed by this part of this Act upon an accused charged with a criminal offence shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution whether on cross-examination or otherwise, that such circumstances in fact exist.

(3) Nothing in S.138, 142 of this Act or in subsection (1) or (2) of this section shall …………….

(c) affect the burden placed on an accused person to prove a defence of intoxication or insanity.”

In his statement to the police Exhibit “D”, the appellant said:

“As my late father returned to his house, he brought out his chair into the verandah and sat on it. When he was sitting on the chair and as I was about eating my food a different spirit came to me forcing me to go and carry my father’s gun from his room and to use it in killing him. In a few minutes time I went into my late father’s room and carried his single barrel short gun fixed a cartridge (sic) to it and fired my late father while still sitting on the chair to death I regained myself again. I was still holding the gun which I used on him in firing him.”

(Italics is for emphasis only).

In his evidence on oath, the appellant admitted making Exhibit “D” to the police and volunteered to add something to it. He stated:-

“I was not myself when the killing of my father took place. I did not know what happened until the death of my father. After shooting my father, I came to my senses. It is not correct to say, I killed my father intentionally.”

This is the only evidence coming from the appellant suggestive of the plea of insanity. The learned appellant’s counsel referred to the evidence of P.W.2 where the witness described how the appellant was bringing a bed from the late father’s room to where he shot him and how the accused dropped the gun he was holding and was about to lay the father on the bed. Counsel also referred to the evidence of P.W.2 under cross-examination that the accused had never behaved in that manner before but was in the habit of destroying the father’s properties.

The learned appellant’s counsel urged us to hold that the foregoing pieces of evidence were consistent and uncontradicted; that there was some evidence of insanity which was further corroborated by the absence of motive.

Section 27 of the Criminal Code provides that every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

Having regard to the above provision of our law, the prosecution has no duty to prove that the appellant was sane or insane. The onus is on the defence to establish the defence or plea. The standard of proof however is on the balance of probability. See Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565 at 572 – 577, R. v. Wangara 10 WACA 236 and Loke v. The State (1985) 1 NWLR (Pt.1) 1.

In order to establish the defence of insanity, it must be shown that:-

(a) the prisoner was at the relevant time, suffering either from mental disease or from natural mental infirmity;

(b) that the mental disease, or the natural infirmity was such that, at the material time, the prisoner was as a result deprived of capacity to understand what he was doing or control his actions or to know that he ought not do the actor make the omission. See R. v. Omoni 12 WACA 511 at 512 and Ngene Arum v. The State (1979) 11 SC 91 at 119.

The evidence of the appellant and that of the P.W.2 as to his mental health are very thin and hardly sufficient to prove the fact that at the relevant time, the appellant was suffering from either mental disease or natural mental infirmity.

There was no evidence as to the past history of the accused or evidence as to his conduct immediately preceding the killing. There was also no evidence from prison warders who had the custody of the appellant and looked after him from the time he was arrested in September. 1980 till the time he testified in May, 1987.

If the defence was going to rely on insanity, effort should have been made by them for necessary medical examination/observation by a medical officer or a psychiatrist to be carried out when the appellant was in custody awaiting trial.

The defence took these for granted and hoped that a bare plea of insanity or insane delusion would do the magic. It might have been possible that the appellant was suffering from persecution mania. Unfortunately, this state of the mind which could be real and capable of leading a prisoner to commit similar offence is unknown to our criminal jurisprudence at least for now.

In this appeal, the issue of insanity is one of concurrent findings of fact by the trial court and the Court of Appeal, and unless there is a miscarriage of justice, this court will not interfere with the findings. See Ibodo v. Enarofia (1980) 5-7 SC 42 at 55, Fashoro v. Abdallah (1987) 3 NWLR (Pt.59) 134 at 141. There is in my view no miscarriage of justice which can lead to interference with the concurrent findings. Was Exhibit “D” a confessional statement On the admission of the appellant in his evidence-in-chief, he confirmed that he made Exhibit “D” to the police. It was properly proved. It was freely and voluntarily made and the law is that he can be convicted on the confessional statement alone without any further evidence. See The Queen v. Obiase (1962) 1 ALL NLR 651. In this case, there were other pieces of evidence corroborating the confessional statement. Exhibit “D” was direct and positive.

Medical evidence is not essential in this case. The appellant himself both in his evidence and in Exhibit “D” said that he shot his victim and he died on the spot. One therefore wonders what a medical doctor would come to say as the cause of death.

It is trite that medical evidence is not always essential where as in this case the victim died on the spot or in circumstances in which there is abundant evidence of the manner of death as in the instant case also. See Salako v. Attorney-General, Western Nigeria (1965) NMLR 107 and R. v. Omoni supra.

I am also of the firm view that what the appellant alleged to be contradictions and gaps are immaterial. They did not occasion any miscarriage of justice. They are mere inaccuracies which are not fatal to the charge. The appellant did not deny that he killed his father. See Akpuenya v. The State (1976) 11 SC 269.

I would like to say a word on absence of motive which the learned appellant’s counsel submitted was resolved in the appellant’s favour by the Court of Appeal. Absence of motive is by itself no basis for inferring insanity but when there is evidence of insanity, it can weigh in the balance. See Salako v. Attorney-General., Western Nigeria supra per Bairamian, J.S.C.

All the facts proved in this case do not show that the appellant did not know when he killed his father. The defence of insanity failed.

For the above reasons, all the grounds of appeal failed. The appeal is dismissed. The judgment of the Court of Appeal is upheld. The conviction and sentence are affirmed.

A. G. KARIBI-WHYTE, J.S.C: I have read the judgment of my learned brother Ogwuegbu, J.S.C. in this appeal. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I however wish to express some opinion of my own on the various contentions of counsel to the appellant in this appeal.

This appeal is against the conviction for murder, contrary to section 319 of the Criminal Code and sentence of death passed on the appellant by Essang J. of the High Court, Ikom, on the 10th day of August. 1987. On the 11th day of September, 1980 appellant had killed his father. His appeal to the Court of Appeal against conviction and sentence was dismissed on the 7th day of May, 1990. This is an appeal against the judgment of the Court of Appeal.

THE FACTS:

The facts of this case are very simple and undisputed. The appellant, a 27 year old man was charged with the murder of his father on the 11th September. 1980. The evidence of the prosecution given by his half sister P.W.1, P.W.3 his sister and his mother, P.W4, was that appellant shot at and killed the deceased (his father) at close range with the single-barrel short gun of his father. The incident occurred at about 7.30 p.m. whilst the P.W.1, P.W.3, P.W4 were cooking in the kitchen, and the deceased was sitting in his verandah. The deceased, Ogbu Mbeh was immediately rushed to the hospital, but died even before reaching the hospital. Before he was taken to the hospital he was reported to have said; “O my son, you have shot and killed me.” These were his last words. Appellant was apprehended by the members of the village and who was not even attempting to run away, was handed over to the police at Ikom.

Appellant did not plead guilty to the charge against him. Appellant made a second statement to the police on the 25th May, 1986. He did not deny that he shot at his father, which resulted in his father’s death. But he claimed that he did so in obedience to a spirit forcing him to do so. The prosecution stated that the case file containing the first statement could not be found.

This defence is more elucidating and appreciated better in his words in Exhibit D, his statement to the Police. I quote him:-

“As my late father returned to his house he brought out his resting chair into the verandah and sat on it. When he was sitting on the chair and as I was about eating my food a different spirit came to me forcing me to go and carry my Father’s gun, from his room and to use it in killing him. In a few minutes time, I went into my late father’s room and carried his single barrel short gun fixed a cartridge to it and fired my late father while still sitting all the chair, to death. When I fired at him his last words were, “Oji my son, you are the only son I love best who will even inherit my property now you have shot me dead and (gave up) this was his last words before he fell and died. After firing him, I gained my consciousness and became myself again. I was still holding the short gun which I used (on him) in firing him ”

Appellant in his defence at the trial did not deny Exhibit “D”, but added the following:-

“I was not myself when the killing of my father took place. I did not know what happened until the death of my father.

X X X X X

I was not present when the Police recovered Exhibits A and B the gun and the expended cartridge from my house at Etemi on the date of the incident, nothing took place between me and my father ………….”

Appellant admitted under cross-examination that there was no quarrel between the deceased and himself, and that they loved each other dearly. He repeated the claim that he came to his senses after shooting his father. He said that he did not kill his father intentionally and that the witnesses were lying when they said there was a quarrel between his father and himself.

THE HIGH COURT:

The learned trial Judge found appellant guilty, convicted him and sentenced him to death. He held that the fact that appellant caused the death of the deceased was not in doubt. He accepted the evidence that there was a misunderstanding between the appellant and the deceased over the further training of the appellant in Bendel State.

The learned trial Judge believed P.W.1 who gave evidence of eye witness account of the shooting of the deceased. He also accepted the dying declaration of the deceased as forming part of the res gestae connecting the appellant with the killing of the deceased.

The question of insanity under S.28 of the Criminal Code was considered and rejected. He considered the defence of automatism under section 24 of the Criminal Code. This defence was also rejected on the ground that there was no evidence in support.

THE COURT OF APPEAL:

In the Court of Appeal, the main defence considered was the defence of insanity or insane delusions under section 28 of the Criminal Code. The Court considered Ex. D. the statement of the appellant and the totality of the evidence in the case and came to the conclusion that there was no evidence of insanity. The only suggestion of insanity or delusion is the evidence in Exhibit “D”, when he said, that some spirit pushed him to kill his father.

The Court of Appeal went on to consider the effect of delusion. The court also relied on the statement in Exhibit D, that” a spirit came to me forcing me to go and carry my father’s gun from his room and to use it in killing him” and held that it did not constitute evidence of delusions. The court held that there was no evidence that at the time of the commission of the offence, the mind of the appellant was affected by delusion on some specific matter or matters. The Court of Appeal agreed with the learned trial Judge that a defence under section 24 of the Criminal Code was not available to the appellant.

Appellant has appealed again to this Court.

IN THIS COURT:

Learned Counsel to the appellant sought and was granted leave to file and argue three additional grounds of appeal, (excluding particulars) which read as follows:-

‘1. The Court of Appeal erred in law and misdirected itself in law in holding that the defence of insanity could not avail the accused/appellant because the only evidence of insanity before the Court of Trial was that of the accused himself when there was on the record of proceedings other abundant evidence in support of insanity.

2. The Court of Appeal erred in law in failing to consider all defences available to the accused and in particular ought to have considered the material contradictions from the evidence on the record in the testimonies of the prosecution witnesses and such material contradictions ought to have been resolved in favour of the accused/appellant by the Court of Appeal.
3. The Court of Appeal misdirected itself in law in failing to consider whether in the circumstances of this case from the evidence on the record, medical evidence of cause of death was not imperative and absence of such medical evidence was fatal to the case of the prosecution and a valid defence for the accused.”

Learned Counsel filed and served their briefs of argument which they adopted and relied upon in their argument before us.

Learned Counsel to the appellant has formulated the following four issues for determination in this appeal.

“1. Whether the evidence of the accused alone as to the defence of insanity is insufficient to establish or prove insanity and whether the accused is bound to call other witnesses such as Doctor’s Medical History, etc. before he can prove the defence of insanity in spite of other evidence corroborative of insanity apart of accused own evidence;

2. Whether Exhibit D – the statement of the accused amounted to a confession of the offence of murder under S.27(1) of the Evidence Act;
3. Whether in the circumstances of this particular case the absence of medical evidence is fatal to the case of the prosecution;
4. Whether the material contradictions and gaps in the case of the prosecution amounted to disparagement of the witnesses making it dangerous to convict on them or likely to result in miscarriage of justice.”

Respondent has also formulated six issues. There are however a few differences in the formulation of the issues. Respondent’s six issues are as follows:-

“1. Whether the defence of insanity and/or insane delusion in both limbs of S.28 of the Criminal Code was open to the appellant on the totality of the evidence led before the trial Court and Court of Appeal.

2. Whether S.27 of the Criminal Code Laws of the Federation of Nigeria Cap. 42 Vol. 2 does not place on the appellant the onus of proofing insanity.
3. Whether S.28 of the Criminal Code Laws of the Federation of Nigeria Cap. 42 Vol.2 would relieve the appellant of criminal responsibility when there is no evidence to show that the appellant was insane.
4. Whether Exhibit D the statement of the appellant amounted to confession of the offence of murder under S.27(1) of the Evidence Act in the face of strong corroborative evidence given by the prosecution witnesses in favour of the prosecution.
5. Whether in the circumstance of this particular case the absence of medical evidence is fatal to the case of the prosecution.
6. Whether the contradictions and gaps in the case of the prosecution amounted to disparagement of the witnesses making it dangerous to convict on them or likely to result in miscarriage of justice.”

The six issues formulated by learned Counsel to the respondent can be reduced into four. This is because the first three issues founded on sections 27 and 28 of the Criminal Code are based on the burden of proof of insanity on the appellant. The remaining three issues correspond to the issues formulated by learned Counsel to the appellant. It is therefore convenient for the purposes of this judgment to adopt the four issues formulated by learned counsel to the appellant.

The issues adequately cover the grounds of appeal filed in this appeal.

Observation on the judgment of the Court of Appeal

I consider it necessary and in the interest of justice to refer to an issue not adverted to by learned Counsel in this appeal. I only discovered it in the process of writing this judgment. This is the possibility that the judgment of the Court of Appeal violated the provision of S.258(1) of the Constitution 1979 as to the period within which judgment must be delivered after address of counsel.

On the 24th October, 1989 learned Counsel to the parties in this case adopted their briefs of argument in the appeal. The court then reserved judgment. Again on the 26th day of February, 1990, the record discloses that learned Counsel again adopted the briefs of argument as they did, on the 24th October, 1989 and in respect of which arguments judgment had been reserved. The argument on the 26th February is not different from the argument on the 24th October, 1992. Judgment was delivered on the 4th May, 1990. But for the intervention of the proceedings of the 26th February, 1990 which itself did not disclose further argument the judgment of the 4th May, 1990 would have violated the mandatary provision of section 258(1) of the constitution 1979, which provided that judgment be delivered within three months of final addresses. This judgment appears not to have clearly avoided the net of the constitutional provision. The practice adopted by the Court of Appeal is not tardy.

Consideration of the Appeal

I shall now turn to consider the issues for determination in this appeal seriatim. I start with the first issue. In his brief of argument, Mr. Idigbe submitted and quite correctly that notwithstanding the general presumption of sanity required of all persons before the Court by Section 27 of the Criminal Code, the onus still lay on the prosecution to establish the guilt of the accused beyond reasonable doubt.

It was submitted, also rightly too, that the burden of establishing insanity is on the accused. But it is sufficient for the accused to discharge this burden on balance of probabilities – See Onakpoya v. R. (1959) FSC 150; (1959) SCNLR 384. Learned Counsel referred to passages in the statement of the appellant Exh.D. in support of the evidence of his insanity. Particular reference was made to appellant’s claim that “I was not myself when the killing of my father took place. I did not know what happened until the death of my father.” Again he relied on the statement “After shooting my father I came to my senses. “It is not correct to say I killed my father intentionally.”

Learned Counsel to the appellant referred to the finding of the absence of motive for the offence and strange behaviour of the appellant as some evidence before the court from which insanity could have been inferred. This is the more so since the evidence remain uncontradicted – He relied on Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565, Aiworo v. The State (19R7) 2 NWLR (Pt.58) 526: R. v. Inyang 12 WACA 5.

It seems to me learned counsel has misunderstood the principles applicable to the burden of proof of insanity. It is well settled that the burden is satisfied. if the facts proved by the defence is such that makes it “most probable” that the accused was at the relevant time insane within the meaning of section 28 of the Criminal Code. This is that he was suffering from mental disease or natural mental infinity such that at the time of committing the offence he did not know the nature and quality of the act he was doing, or if he did know it, he did not know that what he was doing was wrong – R. v. Omoni (1949) 12 WACA 511.

Learned Counsel to the appellant could not seriously regard absence of motive for the commission of an offence as sufficient evidence of insanity – See Nkanu v. The State (1980) 3-4 SC 1. Ngene Arum v. The State (1972) 11 SC 91. The fact that appellant claims not to have known what he was doing at the time of the commission of the offence by itself is not evidence of insanity – See R. v. Ashigifuwo (1948) 12 WACA 389.

In R. v. Ashigifuwo (supra) as in the instant case, accused claimed to have been prompted by evil spirit. It was held that, that was not evidence of insanity.

There was no evidence in this case of insanity either from the prosecution or from the defence. The strange behaviour of the appellant was not traced to his family history or his conduct before the commission of the offence or even afterwards when he was in custody. Thus there was no evidence previous and contemporaneous suggestive of the aberrant mental state of the appellant – See Sanusi v. The State (1984) 10 SC 166, Ejinima v. State (1991) 6 NWLR (Pt.200) 627.

Evidence by the accused of his own mental state is usually suspect and not reliable for establishing his insanity. – See Onyekwe v. State (1988) 1 NWLR (pt.72) 565.

In this case the Court of Appeal rightly considered the totality of the evidence before it and came to the conclusion that the evidence of the appellant in Exh. D, and inferences from other statements are not sufficient evidence of insanity in the appellant to require the learned trial Judge to consider the defence.

The second issue is whether Exhibit “D” amounted to confession of the offence of murder

Learned Counsel submitted that “Exhibit D” cannot amount to a confession because it also discloses the defence of insanity or insane delusion. Again that the truth of the facts stated therein was not tested by medical observation. It was also argued that Exhibit “D” was not positive and direct enough to be relied upon as a convicted.

Learned Counsel is right in his submission that the value of an admission depends upon the circumstances in which it was made.

There has been no suggestion that Exhibit “D” was anything other than free and voluntary. Appellant did not say he was induced to make the statement. The statement Exhibit “D”, was not in violation of section 27(1) of the Evidence Act. He indeed adopted the statement in his oral sworn testimony. It is pertinent to observe that this statement “Exhibit “D” was made more than five years after the commission of the offence.

The statement Exhibit “D” is an admission by the appellant that he committed the offence with which he was charged. His confession was corroborated by the independent evidence of P.W.1, P.W.3, P.W.4, outside the confession which clearly indicated that the confession is true. See Onochie & ors. v. Republic (1966) NMLR 307. The confession in “Exhibit D” contains all the elements of the offence. It is well settled law that a conviction for the offence of murder can be based on the confession of the accused alone. – See Ojegele v. State (1988) 1 NWLR (Pt.71) 414 SC. Udedibia v. State (1976) 11 SC 133. The appellant could be convicted of the offence of murder on the strength of “Exhibit D” alone.

The third issue for determination is whether absence of medical evidence of death was fatal to the case of the prosecution Learned Counsel to the appellant has conceded the proposition that medical evidence of death is not essential but desirable. It was however, submitted that where the nature of the injury inflicted is in issue medical evidence by a doctor to determine the cause of death becomes imperative – See Aruna v. State (1990) 6 NWLR (Pt.155) 125.

It was argued that there was a post mortem examination on the body of the deceased. It was imperative therefore that the post mortem examination report which was available should be tendered to prove the cause of death – See State v. Adegbami (1968) NMLR 347. Learned Counsel to the appellant relied on section 148(d) of the Evidence Act to submit that failure to give that evidence which if given would be favourable to the appellant is fatal to the case of the prosecution.

It would seem to me learned Counsel ignored the facts of this case. The evidence before the learned trial Judge by all the witnesses, including the appellant was that the deceased died within a few minutes of the shooting by the appellant and in fact before he was taken to the hospital. It is an accepted principle of proof of cause of death in homicide cases that where cause of death is obvious medical evidence ceases to be necessary. See Lori v. The State (1980) 8-11 SC 81, Uyo v. A-G Bendel State (1986) 1 NWLR (Pt.17) 418; Salako v. A.G, Western Nigeria (1965) NMLR 107.

It is therefore accepted that where the deceased died in circumstances which renders the cause of death abundantly clear, medical evidence will not be necessary to ascertain the cause of death – See Akinfe v. State (1988) 3 NWLR (Pt.85) 729.

It follows therefore that in the instant case the absence of the report of the post mortem examination raises no adverse inferences prejudicial to the case of the prosecution. The application of Section 148(d) of the Evidence not being necessary, failure to tender such evidence will not be unfavourable to the case of the prosecution. There is no evidence in this case that the prosecution was withholding evidence which was available – See Asariyu v. The State (1987) 11-12 SCNJ 125; (1987) 4 NWLR (Pt. 67) 709.

The fourth issue for determination concerns the question of contradictions in the evidence of the prosecution witnesses; and whether it is dangerous to convict on their evidence.

Learned Counsel to the appellant relied on the evidence of P.W.1 who claimed to be an eye witness to the commission of the alleged offence. P.W.1 was in the kitchen with P.W.3 and P.W.4, whilst P.W.1 said she saw the appellant when he fired at the deceased. P.W.3 said she could not see the appellant from where she was in the kitchen. P.W.4 said it was dark and she could not see the accused and did not know who killed the deceased.

P.W.1 said P.W.3 was not in the kitchen at the relevant time, but P.W.3 said she was in the kitchen when she heard the sound of gun. P.W.1 and P.W.3 gave evidence of regular quarrels between appellant and the deceased. P.W.4 did not know of any such quarrels.

I think learned Counsel to the respondent is right in his submission that learned Counsel to the appellant had merely pointed to discrepancies in the accounts of the prosecution witnesses but not to material contradictions with respect to their evidence on the essential ingredients of the offence.

The evidence complained of do not affect the evidence that appellant shot at the deceased with a gun and that he died as a consequence. Appellant is not denying that he committed any or all of the essential ingredients of the offence. His defence was that he was prompted by a spirit to shoot at and kill his father, the deceased. He did not know what he was doing at the time. The differences in the evidence of P.W.1, P.W.3 and P.W.4 are not material. They are, as I have said, not contradictions. They are minor inaccuracies, which are not fatal to the proof of the offence charged – See Akpuenya v. The State (1976) 11 SC 269. They did not go to neutralize any of the essential elements of the offence.

Having resolved all the issues against the appellant, the appeal fails and is accordingly dismissed. The judgment of the Court of Appeal is accordingly hereby affirmed. The conviction and sentence of death imposed on the appellant by the learned trial Judge is accordingly affirmed.

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Other Citation: (1992) LCN/2556(SC)