Ubong Sunday Akpakpan V. The State (2016)
LawGlobal-Hub Lead Judgment Report
CHIOMA EGONDU NWOSU-IHEME, J.C.A.
The Appellant in this Criminal appeal was arraigned before the High Court of Justice, Abak in the Abak Judicial Division of Akwa Ibom State, presided over by Joseph E. Ekanem, J, (as he then was) on an information of a one count charge of murder contrary to Section 326(1) of the Criminal Code, Cap. 38 Vol. 2, Laws of Akwa Ibom State, 2000.
At the close of the prosecution’s case the Appellant entered his defence and was subsequently convicted for the offence of murder and sentenced to death. The Appellant aggrieved by the said judgment has appealed to this Court.
A summary of the case as presented by the prosecution was that the Appellant, Ubong Sunday Akpakpan was charged along with two others, Monday Akpan Udom and Francis James Inyang before the Abak judicial Division of the Akwa Ibom High Court on a one count charge of Murder. Consequent upon a Ruling on no case submission, the two other accused persons were discharged while the Appellant entered his defence and was subsequently convicted.
The prosecution’s case was that on or about the 5th of August, 2008 at Obong Atai
1
Essien village, Etim Ekpo in Abak Judicial Division, the Appellant unlawfully killed his two children, Ekaete Ubong Sunday and Anyan Ubong Sunday aged 3 years and two years respectively.
Elder Emmanson who testified as PW 1 stated that the Appellant is his nephew who used to bring his two children to his house. After a while the children stopped coming and when the Appellant was asked the where about of his two children, he had nothing cogent to say. A search was conducted and the children were confirmed dead. He stated that the Appellant has never been insane.
PW2’s testimony followed the pattern of PW1. Chief Sambo Udo Uron who testified as PW 3 stated that the Appellant admitted killing his children and that the corpses were found inside a well. Dr. Igbemi Arthur (PW 4) who performed the post-mortem examination on the two corpses made a diagnosis of death by drowning.
The investigating police officer (PW 5) stated that the Appellant took him to the swamp where the bodies of the two children were found in a pond. The statements of the Appellant and the post mortem report, Exhibits 1- 5 were tendered through PW 5.
?At the conclusion of
2
hearing, the trial Judge in his judgment believed the case of the prosecution and disbelieved the defence of insanity presented by the Appellant. This appeal is predicated on that judgment.
Chijioke O. P. Emeka Esq of counsel for the Appellant in his brief, distilled three issues for determination as follows:
“1. Whether the prosecution discharged the burden of proof necessary to establish the offence of murder against the Appellant.
2. Whether it was right for the learned Trial Judge to convict the Appellant on Exhibit 3, the first extra-judicial statement allegedly made by the Appellant.
3. Whether the Appellant possessed the requisite Mens Rea to commit the offence of murder for which he was convicted.”
The Respondent’s counsel, Anietie Inyang, Esq., on his part distilled two issues for determination thus:
“(1) Whether from the evidence adduced at the trial in the lower Court, the prosecution had proved its case against the Appellant beyond reasonable doubt.
(2) Whether the trial Judge rightly held that the defence of insanity did not avail the Appellant.”
The issues raised by both counsel are similar though
3
couched differently and can conveniently be compressed into one straight forward issue. It is:
“Whether on the facts and circumstances of this case, the trial Court was right in rejecting the defence of insanity put forward by the Appellant and holding that the prosecution proved its case.”
In his brief of argument, learned counsel for the Appellant Chijioke O. P. Emeka Esq, submitted in summary, that the prosecution did not prove the essential elements of the offence of murder to justify the death sentence. He argued that it was unsafe to convict the Appellant for murder based on Exhibit 3, the first extra-judicial statement allegedly made by the Appellant, which was discredited by evidence. Counsel contended that the Appellant lacked the requisite Mens Rea to commit the offence of murder for which he was convicted. He cited numerous authorities to drive home these submissions.
?In his reply, learned counsel for the Respondent, Anietie Inyang, in his brief, referred to the evidence of PW1 – PW5 and submitted that their evidence sufficiently nailed the Appellant to the offence of murder as well as possessing the mental capacity and mens rea to
4
commit the offence of murder. He argued that it was then left for the Appellant to call independent witnesses to show that he was insane at the time he committed the offence.
Counsel contended that PW1 and PW2 who were very close relatives of the Appellant testified that he was not insane and has never been insane. He submitted further that it was only the Appellant himself that raised the defence of insanity. The defence never called the prison’s Doctor who he said treated him at the infirmary to testify to that, neither did the Appellant call any of the prison officials who were always with him. Counsel described the defence of insanity put up by the Appellant as an afterthought and that the trial Court was well within the law to have ignored same.
For the prosecution to effectively discharge the burden of proof reposed on it in a charge of murder, it has to lead credible evidence to establish these three basic ingredients among others:
a) That there was death;
b) That the death of the deceased was caused by the accused;
c) That the act of the accused was intentional with the knowledge that death or grievous bodily harm was its
5
probable consequence.
See OKEKE V. STATE (1994) NWLR (Pt. 590) 246; JIMMY V. STATE (2014) FWLR (Pt. 714) p. 103 at 120.
It is in evidence that the bodies of the deceased were recovered in a pond in the swamp where the Appellant himself took the police (PW5) Inspector Isaac Uwah to.
The Appellant in Exhibit 3, stated that he took his two children to the stream called Ajak and threw them into the river. In Exhibit 4 on the other hand, he stated that he took his children to the stream side, but did not put them inside the stream but only kept them by the side of the stream, abandoned them and ran away when he saw dangerous animals coming after him.
The learned trial Judge at page 101 of the Record stated:
“I shall therefore take Exhibit 3 which is confessional and disregard Exhibit 4 as an afterthought.”
I shall deal with the defence of insanity put up by the Appellant himself later. For now, I shall look at the said Exhibit 3 to ascertain whether or not it should be regarded as a confessional statement or not.
?It is on Record (see page 86 of the Record) that the Appellant stated in his trial that he could not remember making
6
the statement. He did not say that he did not make Exhibit 3.
Courts have always gone beyond the confessional statement seeking for relevant evidence of circumstances which make it probable that the confession was indeed true. Some of the test that govern confessional statements are:
(a) Whether there is anything outside the statement to show that it is true.
(b) If it is corroborated.
(c) The facts stated in the statement are truth in so far as can be tested.
(d) Whether the accused had the opportunity of committing the offence.
(e) Whether the confession of the accused is possible,
(f) And whether the confession is consistent with other facts which have been ascertained and proved.
See SAIDU V. STATE (1982) 4 SC. P.41.
?Exhibit 3 contains details such as the fact that he took the deceased children to the stream called Ajak and threw them into the said river. PW5 the IPO was taken to this same river where the decomposing bodies of the deceased children were recovered. The Medical Doctor Dr. Igbemi Arthur (PW4) make a diagnosis that the death of the two children were caused by drowning and not natural (see pages
7
72-73 of the Record). There were details in Exhibit 3 that nobody outside the Appellant would have had knowledge of. For example, the Appellant mention the stream called Ajak specifically and said he threw the deceased children into the said stream. He took the Ipo to the said stream were their bodies were found. These details couldn’t have come from no other person but the person who planned and executed the deed and he remembered every detail about his journey to the “stream of death.” I therefore agree with the learned trial Judge that the Appellant made Exhibit 3 and voluntarily too. His subsequent retraction was indeed an afterthought.
A retraction of a confessional statement does not automatically vitiate its admission as a voluntary statement. Once the statement is proved to have been voluntarily made and is direct, unequivocal and clear admission that the accused committed the offence, it is sufficient. See KASA v. THE STATE (2014) 10 ACLR P.260 at 282.
A major issue canvassed by the Appellant at the trial Court is the defence of insanity. It is trite that a person is not criminally responsible for an act or omission if at the time of doing
8
the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of the capacity to understand what he is doing or the capacity to know that he ought not to do the act or make the omission. See SANUSI v. STATE (1984) 10 SC. 166.
“insanity is a blanket term embracing a considerable variety of mental abnormalities, like mental infirmities, neurosis and psychosis, To constitute a defence, the mental condition relied on should be such that could and did deprive the accused of the capacity:
(a) To understand what he was doing.
(b) To control his action; or
(c) Know that he ought not to do the act or make the omission complained of as constituting the actus reus of the offence charged.”
See POOPOLA V. STATE (2013) 17 NWLR (Pt. 1382) 96 at 123, per ARIWOOLA, JSC.
The offence of murder is a very grievous offence. A trial Court therefore does not declare an accused insane merely because he has labeled himself insane. Such a report or testimony carries a lot of weight and is usually taken seriously. As such, it must come from a Medical Doctor, preferably a psychiatrist who treated the
9
accused or his neighbours and relatives who either lived with him, or watched his behaviour on a regular basis. One wonders why the Appellant did not take his two children to any bush near his house, but rather chose a far away stream where according to him he pushed the two very young children inside the stream to drown.
The Appellant was the only person who raised the defence of insanity by labeling himself insane. No other person corroborated this in any way whatsoever. This to me is making a mockery and a caricature of the defence of insanity and the learned trial Judge was right to jettison such a puerile defence.
In dismissing the defence of insanity and convicting the Appellant, the Learned trial Judge had this to say at page 97 of the Record:
“In the instant case, it was only the accused who stated that he was insane. The law is that an accused person is not a competent witness as regards his mental status. It is only where there is independent, relevant and admissible evidence confirming the accused’s mental status that the evidence given by him may be given some weight. See MOHAMMED V. STATE (1997) 52 LRCN 1967-1990. There was no such
10
independent evidence in this case. Rather, the PW1, the accused’s uncle, testified that the accused person has never been insane. Besides even if he was under insane delusion as he stated to PW3, that he was pursued by a lion, that state of things even if true, would not excuse the killing of the deceased?
The defence of insanity does not therefore avail the accused person.”
The above is a clear and succinct finding of fact which this Court has no reason or justification to distort or reverse.
In the same manner, the trial Judge made impeccable finding on Exhibit 3, the confessional statement after reviewing and evaluating the evidence.
In the final result, the issue is resolved in favour of the Respondent against the Appellant. This appeal is unmeritorious and is hereby dismissed in its entirety. The judgment of Joseph E. Ekanem, J., (as he then was) in Charge No. HA/3c/2012 delivered on the 19th of March, 2013, the conviction and sentence to death are hereby affirmed.
Other Citations: (2016)LCN/8738(CA)
