3PLR – FRANCIS ASANYA V THE STATE

Published by Law Nigeria Admin at May 3, 2018

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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FRANCIS ASANYA

THE STATE

IN THE SUPREME COURT OF NIGERIA

FRIDAY, 19TH APRIL, 1991.

S.C. 43/1990

3PLR/1991/51 (SC)

BEFORE THEIR LORDSHIPS

MOHAMMED BELLO, C.J.N. (Presided)

ANDREWS OTUTU OBASEKI, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

SAIDU KAWU, J.S.C.

SALIHU MODIBBO ALFA BELGORE, J.S.C.

PHILIP NNAEMEKA-AGU, J.S.C. (Read the Leading Judgment)

OLAJIDE OLATAWURA J.S.C.

REPRESENTATION

Bankole Aluko – for the Appellant

Modupe Fasanmi (Mrs.) (Deputy Director of Public Prosecutions, Ministry of Justice, Ondo State) – for the Respondent

MAIN ISSUES

CONSTITUTIONAL LAW – FAIR HEARING:- Disregard of entire evidence on the grounds of inconsistency – Whether can amount to a denial of fair hearing – Where fact that party had opportunity to make his defence and has had the opportunity and exercised the right to cross-examine witnesses who testified against him – Effect

CHILDREN AND WOMEN LAW:- Women and Human Right/Security – Murder – Wife-killing – Wife macheted to death by husband for refusing him sex – How treated

HEALTHCARE AND LAW:- Insanity – Proof of – Claim of treatment with native medicine for madness – Whether sufficient to satisfy the burden of proof required in criminal proceedings

CRIMINAL LAW AND PROCEDURE:– Murder – Proof of – Relevant considerations

CRIMINAL LAW AND PROCEDURE – DEFENCES:- Defence of insanity – How proved – Standard of proof required – Whether on balance of probabilities – Onus of proof – On whom lies – Whether the accused person who raises the defence of insanity is required to prove this on a balance of probability

CRIMINAL LAW AND PROCEDURE – DEFENCES – INSANITY:- Proof of – Rule that there is the presumption of sanity – Section 27 and 28of the Criminal Code of the Laws of Ondo State – Duty of Court once a defence of insanity is raised, or even if not raised but there is evidence suggestive of insanity – Rule that it is unsafe to rely on the ipse dixit of the accused, and that such evidence cannot be accepted as proof of his insanity – Justification

CRIMINAL LAW AND PROCEDURE – DEFENCES – INSANITY:- Proof of – Date of crime and mental state – Proof that accused was not insane on the date of the alleged crime, even though insane previously – Attitude, conduct and behaviour of an accused during the trial – Whether are all relevant once he has set up a defence of insanity – Whether the state of mental disease or natural mental infirmity envisaged under section 28 of the criminal code must include acts done previously and subsequently to the date of actual commission of the offence

CRIMINAL LAW AND PROCEDURE:- Evidence of accused person – Whether an accused person who decides to give evidence is a witness in respect of his defence to the charge – Legal implications – Combined effect of sections 154 and 159 of the Evidence Act shows that an accused person is a competent witness even though not compellable – Effect

ETHICS – LEGAL PRACTITIONER:- Industry and erudition of Counsel – Attitude of Court thereto

ETHICS – LEGAL PRACTITIONER:- Proliferation of issues for determination by counsel – Attitude of court thereto

PRACTICE AND PROCEDURE – APPEAL:- Attitude of Supreme Court to the time-honored principle of stare decisis

PRACTICE AND PROCEDURE – APPEAL:- Purpose of issues for determination in relation to grounds of appeal – Need for each issue to be tied to at least one ground of appeal

PRACTICE AND PROCEDURE – COURT – JUDGMENT AND ORDER:- Presumption that the decision of the Court of trial on the facts is correct – Justification – Where the decision of the trial judge is based on the credibility of the witness – Attitude of appellate to invitation to interfere –

PRACTICE AND PROCEDURE – COURT – EVIDENCE:- Duty of a trial Judge in accepting or rejecting the evidence of a witness – Suborned or procured witness – Whether court rejection of the evidence of a suborned witness is not perverse

PRACTICE AND PROCEDURE – EVIDENCE:– Inconsistency rule – Inconsistent statements by an accused person – Whether accused can elect which of the statements the Court should believe – Credibility of witnesses

PRACTICE AND PROCEDURE – EVIDENCE:- Accused person who presents to the Court two inconsistent statements with respect to the same matter – Rule that he should not be allowed to elect which of the two he would wish the Court to believe – Proper treatment of

INTERPRETATION OF STATUTE:- Section 27 and 28 of the Criminal Code of the Laws of Ondo State – sections 154 and 159 of the Evidence Act – Interpretation of

MAIN JUDGEMENT

NNAEMEKA-AGU, J.S.C. (Delivering the Leading Judgment):

This is a further appeal by the accused person, Francis Asanya from the judgment of the Court of Appeal Benin Division, which had on the 30th June, 1989, confirmed his conviction on a charge of murdering his wife, Theresa Asanya, contrary to Section 254(1) and punishable under Section 257(1) of the Criminal Code (Cap.26) Laws of Western Nigeria, 1959 applicable in Ondo State and the sentence of death passed upon him. At the trial before Ogunleye, J., the prosecution had called six witnesses and the accused person (hereinafter called appellant) testified on his own behalf and called one witness.

The facts of the case as established in the court of trial are straightforward. The appellant lived in a one-room apartment at Ajede Camp in Own Local Government Area of Ondo State until 26th October, 1983. His landlord was one Mr. Elegbeleye who testified at the trial as P. W.1 . At about 12 mid-night on 26.10.83, P.W. I heard a female voice from the room of the accused and his wife. P.W. 1 and P. W .2 (one Mr. Odo) knocked at the door of the room of the accused and his wife but there was no reply. The door was locked from within. Suspicious of the situation, P. W.1 and P. W.2 climbed into the room and opened the door from within. In the room, with the aid of P.W. 1’s lighted lantern, P.W. 1 and P. W.2 saw appellant’s wife lying on the floor in a pool of her own blood. They noticed that she had matchet cuts on her face, chest and all over her body. The only other person in the room was the appellant. Asked, the appellant told P. W.1 and P. W.2 that the deceased had refused him sex. One Mr. Odan (P.W.3) followed the body of the deceased to St. Louis Hospital, Owo, where P. W.1 identified the deceased’s body to a medical doctor (P. W.5) who performed the autopsy. Then P. W.4 (C. Ali) carried P. W.1 on his motor-cycle to Ipele Police Station to report the incident. It was actually the police who removed the deceased’s body from the scene of the crime. According to P.W.5 (Dr. Akinwe) a Senior Principal Medical Officer who performed the autopsy on the body of the deceased at St. Louis Hospital, Owo, she had three deep cuts on her head and face and brain matters were exposed. There was extensive hemorrhage. Death in doctor’s opinion was the brain damage and the hemorrhage resulting from the injuries. In the opinion of the doctor, the injuries could not have been self-inflicted.

W.6, Sgt. F. Nwagbuzor investigated the case. He testified that on arrival at the scene he saw a pool of blood on the floor in a room where the deceased was lying and a blood-stained cutlass (Exh.B). He also arrested, charged and cautioned the appellant in English language and he volunteered a statement which was tendered as Exh.A at the trial.

Appellant also gave evidence on his own behalf. He said he had no quarrel with his wife, Theresa. He did not know the time he harmed his wife and matcheted her to death. It was at Akure police station that he came to know that she was dead. He remembered that on 25.10.83 when he attended a tribal meeting his body gave him signs and something was blowing a whistle in his ears. He did not even remember fighting his wife. He was mad in 1978 and was treated at Ekoko-Agbor in Bendel State by a native doctor and he became well. He was well until December, 1979 when he took ill again for only two days. Another native doctor treated him at Nsukka and he stayed with the native doctor for 14 days. He stated that in the night of 25.10.83 when he returned to his house he knocked at the door and his wife, Theresa, opened the door for him to enter and he did. Thereafter he went blank. He only remembered that he had had some drinks at the tribal meeting and that he knocked at his door. He agreed he made a statement to the police in his own handwriting on 30.10.83. He also agreed that he used his own cutlass on his wife.

The appellant’s only witness was one Mr. Obi (D. W.2), a convict who was serving a term of imprisonment for fraud. D. W.2 confirmed that in 1978 at Ikoko-Agbor the appellant was sick and D. W.2’s father treated him with herbal medicine. The witness stated that he never met the appellant again until 30.10.86 in Owo prison.

After listening to addresses of counsel and considering the evidence adduced before him, the learned trial Judge reached a number of conclusions which are important for the determination of this case. First, after considering the evidence as to whether the act of the appellant caused the death of his deceased wife, the learned trial Judge concluded as follows:

“Clearly the cause of death was the brain damage and external hemorrhage caused Theresa by the use of a matchet on her by her husband who is the accused. The prosecution has established, by evidence, the cause of death of Theresa as well as established in addition that the act of the accused caused her death. I hereby infer an intention to kill Theresa by the accused on 26/ 10/83. He is taken to intend the natural and probable consequences of his acts (See R. v. Dim (1952) 14 W.A.C.A.154 at p.155); and (2) (R. v. Nungu (1953) 14 W.A.C.A.379 at pp.379/ 380). There was no rebuttal evidence that the accused believed that the assault on his wife would probably not cause or contribute to her death. (See R. v. Amponsah & Ors. (1938) 4 W.A.C.A.120 at p.122). On the evidence, I found as a fact that the act of the accused caused the death of his wife; the deceased.”

Secondly, he gave a very careful consideration to the issue of whether or not on the evidence before him it was proved that the appellant was insane. Before reaching a conclusion on the point, he considered the evidence of the behavior before and at the killing. In this respect he considered the evidence of P. W.1, P.W.2, P.W. 3 and P. W.4. He also analyzed the appellant’s behavior which he himself meticulously recalled on oath. Also, the learned trial Judge noted that none of the appellant’s relations was called to support his evidence of his insanity (Dim v. The Queen (1952) 14 W.A.C.A.154 at p.157).Thirdly on the very vital evidence of D.W.2, the learned trial Judge commended as follows:

“He mentioned no occasions when his father needed his assistance either generally in 1978. Witness (D. W.2) was pretty close to the accused and other inmates in his father’s clinic. But it was the accused who recognized me at Owo prison and introduced himself to me” on 30/10/86. If the witness was actually “pretty close to the accused” in 1978 one would expect him (D. W.2) to, at least, recognize the accused in October, 1986. D.W.2 seemed to know more details of accused’s illness in 1978 than the accused himself. Accused did not mention the name of the herbalist who treated him for madness in 1978 nor did he tell court that he was then hospitalized in any herbal home. D.W.2 gave both details. That was the man who met accused in 1986 and could not even recognize him. D.W.2 is a shameless liar to say the least. He is doing his incompetent best to provide an escape route from justice for the accused. D. W.2 is a worthless witness and I reject his testimony as regards accused’s mental illness in 1978 and as to who offered him herbal treatment then. This witness (D.W.2) had every appearance of lying and lied unashamedly to this court when he claimed to have met accused at Ekoko-Agbor in 1978.”

Fourthly the learned trial Judge later continued –

“The accused may have suffered from a state of mental disease or natural mental infirmity but this did not lead to-any incapacity to control his actions or understand what he was doing at the material time. Accused alleged he had a black-out which is not the same thing as “partial delusion.” The former suggests a loss of memory which the accused, on the available evidence, did not experience at all material times. This is home out by Exhibit “A” and his oral evidence in court both of which described the events of 25/10/83 very vividly. (See I. Ojo v. The State (1973) 1 NMLR 447 at pp.450/451)”.

At the end, the learned trial Judge came to the conclusion that the appellant’s story about his mental illness or madness was his determination and conscious effort to save his neck from the consequences of his own voluntary act. He, therefore, rejected the evidence as a lie, particularly as the evidence in-court conflicted with his voluntary statement Exh.A. Thus the learned trial Judge found the appellant guilty as charged.

Appellant’s appeal to the Court of Appeal was dismissed. In the judgment of Salami, J.C.A. with which Uche-Omo and Ejiwunmi, JJ.C.A. concurred, learned Justices of the Court of Appeal noted, in particular, the conflict between the appellant’s statement (Exh.A) and his evidence in court and, on the findings, the appellant’s failure to prove his insanity.

The appellant has appealed further to this court. Based on the appellant’s grounds of appeal, original and further grounds, the following issues were framed by his counsel for determination in this appeal:

“(1) (i) Whether, upon a proper evaluation of the evidence, the learned Justices of the Court of Appeal were right to have upheld the learned trial Judge’s finding of inconsistency between the appellant’s “extra-judicial” statement (to the Police) and his subsequent oral testimony (in Court) (And should the answer to that question be in the negative):

(ii) Whether the adverse finding complained about in question 2(i) above was pre-judicial to the appellant’s right to a fair hearing, which has occasioned a miscarriage of justice against him thereby.

(2) Whether the passage of the judgment of this Honourable Court in Phillip Omogodo v. The State (1981) 5 S.C. p.5, at p.23, upon which the court below relied in dismissing the appellant’s appeal to them is in the nature of “obiter dictum”, which therefore need not be followed in this appeal in determining the proper applicability of the rule in Regina v. Colder.

(3) Whether the Rule in Regina v. Colder on the effect in law of inconsistency between the sworn oral testimony (in Court) and the previous statement(s) made (before a trial), both given by the same person is applicable both to statement (sworn and unsworn) made by an “ordinary witness” for the prosecution, as well as to statements (sworn and unsworn) made by an accused person standing trial in his own defence:

(4) Whether the decisions of this Honourable Court in (i) Omogodo v. The State (1981) 5 S.C. p.5, (ii) Stephen v.. The State (1986) 5 NWI.R (Pt.46) p.978; (iii) Oladejo v. The State (1987) 3 NWLR (Pt.61) p.419; (iv) Umani v. The State (1988) 1 NWLR (Pt.70) p.274; (v) Mbenu v. The State (1988) 3 NWLR (Pt .84) p.615, and in all other cases which hold that the rule in R. v. Golder is applicable to the inconsistent statements of an accused person standing trial deserve to be overruled, and/or to be adjudged as having been given “per incuriam”, and/or to he reviewed and explained.

(5) Whether, keeping only the admissible and relevant evidence on the question of insanity in view, both Courts below adequately, properly, and fairly directed themselves on the availability of the plea to the appellant in his defence.

(6) Whether the manner of conduct of the case in-the court of trial, and its review by the Court of Appeal were unfairly prejudicial to the appellant, thereby occasioning a miscarriage of justice against him.”

Learned counsel for the appellant, in arguing the first issue submitted that the Court of Appeal was wrong to have upheld the learned trial Judge’s finding of inconsistency between the appellant’s evidence in court and his extra-judicial statement, Exh.A, in that they were not inconsistent. Learned counsel for the respondent, on the other hand, submitted that the two pieces of evidence were clearly inconsistent. So, the learned trial Judge was right to have so held and the learned Justices of the Court of Appeal were right to have confirmed the finding.

The part of the judgment of the court below which came under attack by learned counsel for the appellant was where the court held:

“The appellant’s case was rejected on the ground that the statement to the police, exhibit ‘A’, is inconsistent with his oral evidence in court. There was no explanation proffered for the inconsistency. In the statement which he wrote by himself four days after the incident he said he killed his wife with his cutlass. But in his oral evidence he told the court that he did not know the time he did any harm to his wife. He admitted, however, under cross-examination that he told the police’ he used his own cutlass on his wife, Theresa. There is support for what the learned trial Judge did.”

Learned counsel submitted that the conclusion of inconsistency is not borne out by the evidence itself.

Now in Exh.A, which was the statement the appellant made to the police four days after the incident, he stated as follows:

“The name of my wife is Theresa Asanya she born two children for me. On 26/10/831 from where we drink at Ajede around 11 O’clock in the night I think the thing did not happen by empty hand, because we have no quarrel before. Whether is medicine we fight but I did not know when I use cutlass to fight with her. The cutlass is my own she died by our fight. I kill my wife with cutlass in the house.”

But in the witness-box, he testified as follows:

“I had no quarrel with my wife whatsoever, I did not know the time I did anything – any harm to my wife. I later knew at the police station, Akure, that she was already dead and that I was the one who killed her. There was no reason for me to kill her at all.”

There can be no doubt that the two pieces of evidence are inconsistent in that:

(1) In Exh.A he stated that he fought with his wife whereas in court he testified that he had no quarrel with her at all.

(2) In Exh.A he stated that he killed her with his cutlass in his house, in his

testimony he stated that he did not as much as know the time he did any harm to her and that it was only at the Police Station that he came to know that she was already dead.

(3) To make the matter worse, appellant’s landlord, P.W. 1, testified that when he and P. W.2 managed to force their way into the appellant’s apartment, they met the appellant alone with his dead and bleeding wife in their apartment, and that when he asked the appellant why he killed his wife, appellant told him (P.W.1) that his wife denied him sex.

In spite of the above state of the facts, learned counsel for the appellant after making his own analysis of them and examining the meaning of “inconsistency” submitted that the statements were not inconsistent. What then is the meaning of “inconsistent” in relation to the law of evidence? A number of definitions have been suggested. But the one I find most appropriate is that in black’s Law Dictionary (5th Edn.) p.6189. Citing a judicial opinion in Barry v. City of Forth Worth, Tex. Civ. App. 110 S. W. 2nd 95, 103, the learned author stated that two pieces of evidence are inconsistent when they are –

“Mutually repugnant or contradictory, contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other.”

In other words, two pieces of evidence are inconsistent when they are in essence mutually exclusive such that if one is true the other must be false because they are essentially contradictory. This is the sense in which the word has been understood in many decisions of this court. See – Isaac Stephen v. The State (1986) 5 NWLR (Pt.46) 978, p.1000; R. v. Ukpong (1961) 1 All NLR 25; (1961) I SCNLR 53, Onubogu & Anor. v. The State (1974) 9 S.C. 1. Examining the evidence set out above from the background of this concept of inconsistency can it be doubted that it is inconsistent of the appellant to have stated in one breath that he did not as much as quarrel with his wife but in another that he fought with her; or that he killed her with his cutlass and in another that he did not as much as know the time he did any harm to her? And he went ahead to give the reason why he killed her. I am therefore satisfied that the courts below were right when they held that the two pieces of evidence were inconsistent. As the appellant did not explain away the inconsistency, this should dispose of this appeal unless appellant’s counsel is able to show that the principle in R. v. Golder (1960) 1 WLR 1169 was wrongly applied by the courts below or establish any defence to the offence charged that could exculpate him from guilt.

Learned counsel to the appellant, however, went further to submit that even if the alleged consistency was rightly proved to exist, the Court of Appeal fell further into error in its statement as to what the consequences should be to the appellant’s case where their Lordships, per Salami, J.C.A., stated at p.85 of the record:

“The learned trial Judge having properly rejected the evidence of the appellant because it conflicts with his statement to the police, the appellant was without evidence upon which to anchor his defence of insanity which the law enjoins him to prove on balance of probability. This finding of the trial court knocked the bottom out of the defence of the appellant. See R. v. Yaro Biu (1964) NNLR 45 …

In trying to show that the Court of Appeal was in error, learned counsel for the appellant conceded it that there are binding decisions of the Supreme Court which vindicate the above decision of the Court of Appeal that when a subsequent sworn testimony of an accused person conflicts with his previous extra-judicial statement to the police his subsequent testimony should be regarded as unreliable and his prior extra-judicial testimony is no evidence upon which the court act. In addition to Omogodo v. The State (1981) 5 S.C. 5, the following other cases were referred to, namely – Isaac Stephen v. The State (1986) 5 NWLR (Pt.46) 978, p.1000; Oladejo v. The State (1987) 3 NWLR (Pt.61) 419, pp.427-428; Wasari Umani v. The State (1988) 1 NWLR (Pt.70) 274 at p.283; Nathaniel Mbenu v. The State (1988) 3 NWLR (Pt.84) 615 at p.627.

But he also contended that there are also a number of equally authoritative decisions of the Supreme Court which go to show that such results of inconsistency between the two sets of evidence should be limited to the testimony of an ordinary witness as distinct from the testimony of a person standing trial who also testifies on his own behalf. Reference was made to the following nine cases – The Queen v. Ukpong (1961) All NLR 25, p.26, (1961) 1 SCNLR 53; Joshua v. The Queen (1964) 1 All NLR 1, 3-4; Agwu & 2 Ors. v. The State (1965) NMLR 18, 20; The State v. Dominic Okolo & 3 Ors. (1974) 2 S.C. 73, pp.80-81; Christopher Onubogu & Anor. v. The State (1974) 9 S.C. 1; Asuquo William v. The State (1975) 9-11 S.C.139, p.148; Boy Muka & 2 Ors. v. The State (1976) 9-10 S.C.305; Akanbi Enitan & 2 Ors. v. The State (1986) 3 NWLR (Pt.30) 604, 611; Raphael Nwabueze v. The State (1988) 4 NWLR (Pt.86) 16, p.27.

He submitted that the correct view is to limit such a result of inconsistency between the prior extra-judicial statement and the testimony on oath to evidence of prosecution witnesses and not to extend it to evidence of “accused – witnesses.” On a calm view of the decision in Omogodo v. The State (supra) it will be seen that the statement in that case which was relied upon by the Court of Appeal was a mere obiter dictum, in that in the end the appellant was acquitted; in spite of all the discrepancies in his testimony the court still held they were not enough to establish his guilt. So, that case ought not be regarded as authority on the point and should therefore not have been relied upon. To buttress his argument, learned counsel submitted that the inconsistency rule as practiced in our criminal jurisprudence is germane and was designed to achieve the same objective as cross-examination to test the credibility of a witness. He then traced the rule to the Criminal Procedure Act of 1865 in England. In that Act, he submitted, the words “prisoner” and

“defendant” refer to an “accused person” whereas the word “witness” refers to “an ordinary” witness for the prosecution. There was no question of any indiscriminate use of those words. Sections 198 and 208 of our Evidence Act from which the inconsistency rule was worked out should be viewed in the same context, he submitted.

According to him, there is a more compelling or persuasive reason why the inconsistency rule, the so-called rule in R. v. Golder, should be reconsidered, and reviewed. He submitted that a continued application of the rule to accused persons who have made confessional statements may lead to grave injustice. Besides, for a long time, since the decision in The Queen v. John Agagariga Itule (1961) All NLR 462; (1961) 2 SCNLR 183, the attitude of this court has been that in the case of an accused person who, having made a confessional statement, subsequently testifies on oath in his own defence, his whole account of the incident must be considered by the court before arriving at its decision. What the courts below did amounted to ignoring the appellant’s case altogether. It is wrong. Brownson Etuk Udo v. The Queen (1964) I All NLR 21 at p.24. It amounts to not considering his defence at all, and is no trial.

He urged the court to over-rule the line of cases which treat an accused person who testifies in his own defence as just a witness, because it leads to injustice. This court has declared that it will not perpetuate injustice in the name of stare decisis, he submitted. He relied on – Bucknor-MacLean & Anor. v. Inlaks Ltd. (1980) 8-11 S. C.1 p.25; James G. Orubu v. N. E. C. & 13 Ors. (1988) 5 NWLR (Pt.94) 323 p.356; U.B.A. v. Stahlbau G.M.B.H. (1988) 3 NWLR (Pt.110) 374 p.406; Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250 pp.274-275.

I wish to begin my consideration of this aspect of the appeal by restating the attitude of this court to the time-honoured principle of stare decisis. This court respects precedent, even though it is not a court bound by precedent.

It is, as here as in many other parts of the Commonwealth, essential for the certainty of the law that it should generally follow its previous decisions. But, as a court of ultimate resort, it need not do so when the interest of justice dictates otherwise. So it will not hold itself hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. Nnamani, J.S.C., of blessed memory encapsulated the principle in James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 NWLR (Pt.94) 323 (also in (1988) 12 S.C.N.J. 254 at page 276) where he stated:

“I am afraid that this has not been the only considerations of this court in relation to its decisions. The question of the overruling of its decisions have been dealt with in numerous decisions which were referred to by counsel they include: Bucknor-Maclean and Anor. v. Inlaks Limited (1980) 8-11 S.C.1; Surakatu v. Nigerian Housing Development Society Limited (1981) 4 S.C.28; Odi & Anor. v. Osafile & Anor. (1985) 1 S.C.1; (1985) 1 NWLR (Pt-1) 17; Oduola v. Coker (1981) 5 S. C.187, 230-231; Bronik Motors v. Wema Bank Ltd. (1983) 1 SCNLR 288; Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt.35) 273, 323; Prince Yaya Adigun v. Attorney-General of Oyo State (1987) 4 S.C. 272,342-344; (1987) 2 NWLR (Pt.56)197. As I said, I am afraid that I do not agree with Mr. Jemide that what he stated have been the only considerations by this court. This court has always upheld the principle of stare decisis, and as was stated in Jones v. Secretary of State for Social Services, wishes to uphold the certainty of the law. In that connection, it does not make a habit of over-ruling its decisions without due consideration and haphazardly. But the court has, nevertheless, stated over and over again that where in a subsequent proceeding, an error is pointed out to it, it would not perpetuate such error. Idigbe, J.S.C. in Bucknor-Maclean’s case stated it thus at page 24.”

So in spite of the fact that the principle in Golder’s care (supra) has been ruling the waves in this country since 1961 and has been applied in numerous cases and that this court is more reluctant to jettison its previous decision which has been followed so often and for so long, this court would not hesitate to over-rule it if it was satisfied that it was manifestly wrong, or given per in curiam some relevant constitutional or statutory provision or had led to injustice. See Johnson v. Lawanson (1971) 1 NMLR 311.

On the above approach, my first observation is that the learned counsel for the appellant has not satisfied me that the way the inconsistency principle has in the past been applied to accused persons who, having made previous extra-judicial statements to the police, testified on oath in their own defence, has led to injustice. Indeed the court has always, in addition to considering the evidence as a whole, insisted on one important safeguard before invoking the principle of regarding the inconsistent evidence of the witness as unreliable and his previous statement as no evidence upon which the court can act. It has always required that the witness, be he for the prosecution or the defence or the accused person himself, be given the opportunity while in the witness-box, of explaining the inconsistency. In Christopher Onubogu v. The State (1974) 9 S. C.1- a case of inconsistency in the testimony of a witness for the prosecution and his previous statement to the police – this court, per Fatayi-Williams, J.S.C. (as he then was) stated:

“In our view where a witness, such as the complainant (P. W.4) in the case in hand has made a statement before trial which is inconsistent with the evidence he gives in court, the court, provided that no cogent reasons are given for the inconsistency, should regard his evidence as unreliable. x x x x x x x x x x x x x

x x x x x x x x x x x x x x x x x x x x x x x x x x x We wish only to add that the learned trial Judge in the case in hand did not even cross-examine the complainant (P.W.4) as to why he had contradicted the written statement which he previously made to the police. ”

Also in the case of Saka Oladejo v. The State (1987) 3 NWLR (Pt.61) 419 the court had to consider not only the fact that the appellant had made two conflicting and inconsistent extra-judicial statements, tendered as Exhs.B and D, of which Exh.B was inconsistent with his testimony on oath but consistent with the evidence of the prosecution witness. Also other evidence called by the prosecution was consistent with the appellant’s guilt, and he could not explain the bristling inconsistency between Exh.D and his oral testimony on the one hand and Exh.B (a confessional statement) on the other. This court applied the principle and held that the learned trial Judge was right to have rejected the inconsistent statement, Exh.D, and in its place rely on the evidence adduced by the prosecution which was consistent with the confessional statement, Exh.B. A similar situation has arisen in this case. It follows, from what I have been trying to show, that the courts have never been applying the inconsistency rule as a rule of thumb. They have always satisfied themselves that the witness, be he an accused or an ordinary witness, has had the opportunity of explaining away the inconsistency but has been unable to do so. So, its application has not occasioned a miscarriage of justice. Indeed when a witness has made a voluntary statement on oath, often when the matter in issue is fresh in his memory, and he comes into court-and decides, for reasons best known to him to chop and change his story, I cannot see why any reasonable tribunal should take him seriously, unless, of course, he is able to explain the inconsistency.

I must point out also that much as I admire the learned counsel for the appellant for the obvious industry and research which he put into the matter, I do not agree with him for two other reasons. In the first place his distinction between an accused person who was a witness and any other witness for the prosecution or the defence is not supported by previous decisions of this court. At least, none of the fourteen cases he cited in argument supports the distinction between the cases of inconsistency by witnesses qua witnesses and accused persons as witnesses. I am aware, however, that Uwaifo, J.C. A., in the case of Hyacinth Ibina v. The State (1989) 5 NWLR (Pt.120) 238 at p.247-8 tried to make such a distinction where he stated:

“I must say, with due respect, that Saka Oladejo v. The State (supra) represents a departure from the principle well laid down as to how to treat the statement and evidence of an accused. I have always understood the principle in R. v. Golder (supra) which was considered in the relevant cases, particularly Jizurumba v. The State (supra), to relate to the ordinary witness and not an accused who testifies. The case of an accused person is quite differently treated and the guiding principles are fully established and have been applied before and after Saka Oladejo’s case. In R. v. Itule (1961) All NLR 462, the appellant retracted his confessional statement as a result of which the trial Judge did not consider it, and convicted him on other evidence of murder. The statement contained some facts of provocation. The Federal Supreme Court held that to have failed to consider that evidence because the statement was excluded from consideration, amounted to a substantial miscarriage of justice. The appeal was allowed and a conviction for manslaughter was substituted.”

With greatest respects to the eminent and brilliant Justice of Appeal, it is my view that he missed the point in Itule’s Case (supra). In my respectful opinion, the decisive point in Itule’s Case (supra) was not the inconsistency between the oral and written statements of the appellant as such. Rather, it was the omission of the learned trial Judge to consider the defence of provocation duly raised in the written statement on the ground that the appellant had denied making the statement, even though the learned trial Judge found as a fact that the appellant made the statement which turned out to be confessional. Obviously the course taken by the learned trial Judge touched on at least two fundamental principles in our administration of criminal justice, namely that the court must consider every defence open to an accused on the evidence and that the whole account which a person gives of a transaction must be taken and considered as a whole. He could not therefore take the unfavourable parts of the appellant’s statement in the case and refuse to consider the defence open to him on the same statement. It appears clear to me that it is one thing for a judge, as in Itule’s Case, to say that he would not consider a fact; but quite a different thing, as in the principle under consideration, for him to say, that on question of what weight he should attach to the evidence, he should regard the testimony as unreliable and the statement as no evidence upon which he can act.

Learned counsel for the appellant was right when he submitted that the principle was obiter in the case of Philip Omogodo v. The State (1981) 5-7 S.C. 5 which was relied upon by the Court of Appeal. But, it is clearly a mere slip which does not affect the justice of the case in that it is a principle which, as learned counsel has conceded in his brief, has been applied in many decisions of this court.

This brings me to the second reason why I cannot agree with learned counsel’s submission. It is the historical underpinning upon which he hoisted his submission. He submitted that sections 4 and 5 of the Criminal Procedure Act of 1865 (in England), which in his submission is in pari meteria with sections 198 and 208 of the Evidence Act of Nigeria; support his contention. According to him, in that Act, an accused person is a party and is referred to as a “prisoner. ” In my opinion, that submission looses sight of the fact that our own law contains express provisions making an accused person “a competent witness” for the defence: see section 159 of the Evidence Act. In point of fact section 159 of our Evidence Act was taken, verbatim, from section 1(f) of the English Evidence Act of 1898. In view of section 159 of the Evidence Act, it is not competent for us to make a backward expedition to England in 1865 to find out the meaning of a witness in relation to an accused person. For the same reason there is no need to invoke the principle of interpretation mentioned in Asuquo Eyo Okon v. The State (1988) 1 NWLR (Pt.69) 172 at pp. 181-182 and Ishmael Emelogu v. The State (1988) 2 NWLR (Pt. 78) 524 at pp.557-558, as we have been invited by learned counsel for the appellant to do. That section has not created any degrees or different classes of witnesses. So, once it is provided that an accused person shall be a competent witness, all the rules and safe-guards about witnesses shall apply to him mutatis mutandis, save, of course, where the law provides to the contrary.

The conclusion I have reached is therefore that there are no separate classes of witnesses and no difference in principle or practice as between an accused person who testifies as a witness and a witness, qua witness, with respect to the time honoured rule that where the court, after giving every necessary opportunity to the witness to explain or show the contrary and he fails to do, finds that the witness’s testimony is inconsistent with his previous extra-judicial statement, that it should treat the evidence in court as unreliable and the previous statement as no proof of the truth of the point in issue upon which the court could act, I have not been persuaded to hold that the law needs to be reviewed or that the several decided uses on the point need to be over-ruled.

Learned counsel for the appellant also submitted that the court below was in error to have upheld the decision of the learned trial Judge in that he did not give adequate consideration to the appellant’s defence of insanity.

The portion of the judgment of the learned trial Judge which came in for attack here was where his Lordship stated:

“Accused set upon and killed his wife with a matcher for denying him sex for which he grudged her. Accused’s story about his mental illness or madness is his determined and conscious effort to save his neck from the consequences of his own voluntary acts. I reject that part of his evidence as it is a lie. As accused’ testimony in court on 3/12/86 on this point is inconsistent with his statement to the police on 30/10/83 both are unreliable and must be ignored. No reasons are given for the obvious inconsistency (see P. Omogodo v. The State (1981) 5 S.C.5 at p.23). The case for the prosecution is clearly made out. Accused had no abnormality of mind which impaired his mental responsibility. There was no evidence and no circumstances surrounding the killing of Theresa on 25/10/83 which are indicative of insanity.”

As I have stated that the courts below were right to have held that the extrajudicial statement and the appellant’s testimonies were inconsistent and to have treated his evidence as unreliable it becomes quite unnecessary to go further into this. For that completely knocks bottom out of the defence of insanity which was raised in his testimony in court. As that was part of the evidence which, as I have held, was rightly held to be unreliable, it follows that, as that was the only defence, apart from bare denial which was rightly rejected, the appellant had no defence to the charge. Indeed a similar situation arose in the case of 01adejo v. The State (supra). Nnamani, J.S.C., of blessed memory stated at p.428 thus:

“In such cases the trial court would be entitled to reject the inconsistent defences and rely on the evidence adduced by the prosecution.”

So it is in this case. It is true that a defence of insanity is sustainable on evidence which proves the issue on a balance of probability. See – Nwoye Igweze Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565 p.572. But even though the law accepts that standard of proof which is appropriate for civil cases, it still requires that to attain it, the accused person must call credible evidence. The learned Judge meticulously went into the evidence of the appellant’s conduct before, during, and after the dastardly act as well as the conflict between his testimony in court with his extra-judicial statement and came to the conclusion that his evidence on the defence was not worthy of belief. On the printed evidence, I do not see that he was wrong.

I may add that before the above stage in the judgment of the court of trial was reached the learned Judge had found, on the evidence before him, that the only defence witness, was “a shameless liar and a worthless witness.” It follows that the case for the defence had no leg to stand upon. The court of trial was therefore right to have convicted the appellant, as charged, and the Court of Appeal right to have affirmed the decision and sentence. I have not been given any satisfactory reason why I should hold that there is anything in the conduct of the trial or the judgment of the trial court or its affirmation by the Court of Appeal that could be stated to be unfairly prejudicial to the defence or has occasioned a miscarriage of justice. I would therefore dismiss the appeal.

The appeal fails and is dismissed. I affirm the judgment of the Court of Appeal which had confirmed the conviction of the appellant with the offence of murder of his wife. I confirm the sentence of death passed upon him.

BELLO, C.J.N.:

I have read in advance the judgment of my learned brother, Nnaemeka-Agu, J.S.C. and I adopt it. For the reasons stated therein, I also dismiss the appeal and affirm the decision of the Court of Appeal confirming the conviction of the Appellant for the murder of his wife.

OBASEKI, J.S.C.:

The appellant was charged and convicted on an information charging him with the murder of his wife, Theresa Asanya and sentenced to death by the High Court. His appeal to the Court of Appeal against the decision of the High Court was unsuccessful. It was dismissed and the conviction and sentence confirmed. Still aggrieved, he has appealed to this Court on several grounds.

The appellant made oral and written confessional statement extra-judicially but at his trial, he was not as positive in the written statement on the role played by him in the death of his wife, Theresa. His grounds of appeal raised many issues for determination in this Court. As formulated in his brief, they read:

“(1) whether, upon a proper evaluation of the evidence, the learned justices of the Court of Appeal were right to have upheld the learned trial judge’s finding of inconsistency between the appellant’s “extra-judicial” statement (to the police) and his subsequent oral testimony in court (and should the answer to that question be in the negative)

(2) whether the adverse finding complained about in question 2(1) above was prejudicial to the appellant’s right to a fair hearing, which has occasioned a miscarriage of justice against him thereby;

(3) whether the passage of the judgment of this Honourable Court in Phillip Omogodo v. The State (1981) 5-7 S.C. p. 5 at – 23, upon which the court below relied in dismissing the appellant’s appeal to them is in the nature of obiter dictum, which therefore need not be followed in this appeal in determining the proper applicability of the rule in Regina v. Golder.

(4) whether the Rule in Regina v. Golder on the effect in law of inconsistency between the sworn oral testimony (in court) and the previous statement(s) made (before a trial) both given by the same person is applicable both to statement (sworn and unsworn) made by an ordinary witness for the prosecution as well as to statements (sworn and unsworn) made by an accused person standing trial in his own defence;

(5) whether the decisions of this Honourable Court in (1) Omogodo v. The State (1981) 5-7 SC. p.5; (ii) Stephen v. The State (1986) 5 NWLR (Pt.46) p.978; (iii) Oladejo v. The State (1987) 3 NWLR (Pt.61) p.419; (iv) Mbenu v. The State (1988) 3 NWLR (Pt.84) p.615 and in all other cases which hold that the rule in Regina v. Golder is applicable to the inconsistent statements of an accused person standing trial deserve to be overruled and/or to be adjudged as having been given “per incuriam” and/or to be reviewed and explained.

(6) whether, keeping only the admissible and relevant evidence on the question of insanity in view both Courts below adequately, properly and fairly directed themselves on the availability of the plea to the appellant in his defence;

(7) whether the manner of the conduct of the case in the court of trial, and its review by the Court of Appeal were unfairly prejudicial to the appellant thereby occasioning a miscarriage of justice against him.”

These issues have been elaborately dealt with in the judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C., the draft of which I had the privilege of reading. I agree with all the opinions expressed therein on all the issues for determination and I will for all those reasons and hereby dismiss the appeal.

Previous decisions of this Court are binding on this Court until overruled or departed from. Departing from previous decisions is not a matter to be lightly embarked upon. The court can only be persuaded to depart from previous decisions if the previous decisions were proved wrong given per in curiam, and perpetuating injustice. See Odi v. Osafile (1985) 1 S.C. 1 (1985) 1 NWLR. (Part 1) 17; Bucknor-MacLean and Anor. v. Iniaks Ltd. (1980) 81l S. C. 1. This is because the court has a twin duty to see that (1) justice is founded on the correct view of the law and (2) justice is not slaughtered on incorrect interpretation and application of the law and equity. The pursuit of these ideals are to go hand-in-hand with the pursuit of the ideal of certainty in the law.

The appellant has failed to make out a case for departure from the previous decisions of this Court enumerated above under Issue No. 5 in this appeal. Further, the facts of this case are too overwhelmingly incriminating to be obscured and buried by the technicalities of the law. A husband who kills his wife for denying him sex can have no refuge in our law.

I find no merit in the appeal and I hereby dismiss it and affirm the decision of the Court of Appeal.

KARIBI-WHYTE, J.S.C.:

Two issues of legal interest flow from the three grounds of appeal filed and argued by the Appellant in this appeal. The first which is of considerable legal interest is whether the Court of Appeal was right in affirming the trial Judge that having regard to the extra judicial statements of the accused, which is inconsistent with his testimony on oath at his trial, his evidence in his own defence should be regarded as unreliable and rejected.

The trial Judge relied on the principle of law enunciated in R. v. Golder (1960) 1 WLR 1169 which has been applied in our courts in R. v. Ukpon (1961) All NLR 25; (1961) 1 SCNLR 53. The second issue which relates to the defence of insanity is whether the learned trial Judge was correct to have rejected the uncontradicted and uncontroverted evidence of insanity of the accused given by him and on his behalf by the only witness, and whether the Court of Appeal was right in affirming the trial Judge.

It was submitted and I think rightly too that the conviction of the appellant was based on the views of the learned trial Judge on these two issues. The Court of Appeal affirmed the judgment of the trial Judge on each of these grounds.

I have read the judgment of my learned brother, Nnaemeka-Agu, J.S.C. in this appeal. I agree with his decision that this appeal ought to be dismissed. I only wish to add in amplification of the reasons so well stated, my own contribution to the issues so forcefully argued by Mr. Aluko for the appellant.

The facts of the case are not in dispute. It is clear from the Appellant’s own statement that he admitted that the death of his wife resulted from his act. Whether the act of the appellant in the circumstance constituted the offence of murder can only be determined after a critical analysis and consideration of the facts of the case. It is however necessary to restate the facts to enable a better understanding of the issues argued by learned Counsel to the Appellant.

Appellant, a farmer and bicycle repairer, lived with his wife the deceased, in one room at Ajede camp in Owo Local Government Area of Ondo State. They have been so living with others including some members of his own native Community, the Ibos, for at least four years before the 26th October, 1983. There was no known quarrel between appellant and his wife, and there was no evidence of his behaving abnormally towards his wife Theresa or to any one else in the camp. Appellant attended a tribal Union meeting on the 26th October, 1983, at the house of PW4, barely 200 yards away from his house, returning to his house at about 11 p.m. He admitted that at the meeting attended by about 20 people they had some three gallons of palm wine to drink. In his testimony at the trial, appellant said that when he returned home at about 11 p.m., on the 26th October, 1983, he knocked at his door and his wife, Theresa opened the door for him. Thereafter he was not aware of what happened.

He said he did not do anything to harm his wife. He later learnt at the Police Station, Akure that she was already dead. and that he had killed her. He stated that he had no reason to kill her. I think it is useful to quote his further evidence verbatim. He said at p.24,

I remember vividly that while at the meeting my body gave me signs and something was blowing whistle in my ears. My ear whistled. I did not know what was happening. I cannot remember fighting my wife.”

He then went on to say that he was mad in 1978 and was treated with native medicine in Ekoko-Agbor in Bendel State. In December, 1979 he fell ill again for only two days. This time another Native Doctor at Nsukka with whom he lived for 14 days treated him and he became well and was discharged. He said he was well thereafter till the 26th October, 1983.

In a statement Appellant made to the police on the 20th October, 1983, i.e. 4 days after the incident, he was said to have stated as follows –

“The name of my wife is Theresa Asanya she born two children for me. On 26/10/83 1 from where we drink at Ajede around 11 o’clock in the night. I think the thing did not happen by empty hand because we have no quarrel before. Whether is medicine we fight but I did not know when I use cutlass to fight with her. The cutlass is my own she died by our fight. I kill my wife with cutlass in the house.”

The oral evidence in court by the Appellant where he claimed to have been insane was corroborated by the DW1 who he met in Owo prison. This witness who claimed to be the son of the native Doctor who treated Appellant in 1978 said that it was appellant who recognised him. The evidence of the prosecution through PW1 and PW2 was that at midnight on 26/10/83, PW 1 and PW2 heard a female distress voice from the room of Appellant. He went there and found the door locked from inside. PW2 climbed into the room and opened the door from inside. PW 1 entered the room and both saw the deceased on the door in a pool of her own blood. She suffered matches cuts on her face, head and all over her body. According to PW1, appellant when asked why he did what they saw, said that the reason for the attack on the deceased was that she refused his advances for sexual intercourse.

The deceased died the same night even before the Police were brought to the scene.

Appellant was charged on information with the murder of Theresa Asanya contrary to S.254(1) and punishable under section 257(1) of the Criminal Code, Cap. 28 Vol. 1 Laws of Western Nigeria 1959.

In addition to the evidence of PW 1 and PW2 about the circumstances of the Murder of the deceased, the prosecution called PW3, Matthew Odan, and PW4 Clement Ali, who carried PW1 on his motor cycle to report the incident at Ipele Police Station. There was PW5, the Medical Doctor who conducted the autopsy on the deceased and certified that the injuries which were not self inflicted resulted in her death.

It seems clear from the evidence before the learned trial Judge that the prosecution was alleging that Appellant killed his wife Theresa in circumstances which could have amounted to Murder, the Appellant, admit ting that the deceased died from a fight with him and that he used his matches on her but that he did not remember how it happened. He further put up the defence that he has a history of insanity and probably was insane at the time the offence was committed.

The learned trial Judge found the appellant guilty on the evidence. He held that the intention to kill the deceased on 26/10/83 could be inferred from the use by the appellant of the matchet on the deceased. The appellant is to be taken to intend the natural and probable consequences of his acts.

The trial Judge considered and rejected the defence of insanity raised by the accused. In a detailed consideration of the evidence of the defence of insanity raised touching the behaviour of the accused before, at, and after the killing, his behaviour at the Nigeria Prisons at Own, the evidence of the accused and that of DW2 his only witness, which the learned Judge rejected, came to the conclusion that the accused was not insane at the time he committed the offence. In rejecting this defence the learned trial Judge said at p.50, lines 6-14.

“Accused’s story about his mental illness or madness in his determined and conscious effort to save his neck from the consequences of his own voluntary acts. I reject that part of his evidence as it is a lie, As accused’s testimony in Court on 3/12/86 on the point is inconsistent with his statement to the Police on 30110183 both are unreliable and must be ignored. No reasons are given for the obvious inconsistency, (See P. Omogodo v. The State (1981) 5 S.C. at p.23).”

In conclusion, learned trial Judge came out more forcefully in rejecting the defence of insanity when he declared at p.53 lines 13-20.

“The accused is presumed to intend the natural consequences of his acts. He was not proved to be insane to the legal sense. Accused’s story about his madness is incredible, fabricated and fantastic. It is unworthy of credit and I hereby reject it.”

He held that the motive for the murder was the refusal by the deceased of sex advances by the accused.

The trial Judge considered the evidence of the accused that he did not know what happened, describing it as a defence of black-out, which suggests a defence of loss of memory. He held on the evidence before him, that the accused remembered every incident, before, at and after the killing. Such a defence was not available to him. In any event he held that was no evidence of the insanity relied upon. The onus of proof of insanity on the accused which is on the balance of probabilities was not discharged.

The trial Judge considered and rejected the defence of intoxication for the accused. He held that even if there was intoxication, it was self induced and constituted no defence to the offence. Accused was found guilty of murder as charged, and sentenced to death.

Appellant appealed against both conviction and sentence to the Court of Appeal alleging two grounds of error. There was the general ground, and the rejection of the defence of insanity. The issues for determination formulated related only to the rejection of the defence of insanity put forward by the appellant.

Learned counsel to the Appellant in his brief of argument and in his oral expatiation in the court below without touching the omnibus ground, which was deemed abandoned, submitted that appellant adduced sufficient evidence in support of his defence of insanity and was entitled to the defence, since his testimony on oath and that of his witness, Monday Obi, remained unchallenged, uncontradicted and uncontroverted.

It was submitted relying on Modupe v. The State (1988) 4 NWLR 130 that the rejection of the evidence of insanity was not supported by any evidence adduced by the respondent and was therefore a conclusion arrived at without a valid legal premis. The burden of proof of insanity it was submitted was discharged by the evidence of the appellant and his witness.

Relying on R. v. Inyang 12 W. A. C. A.5 learned counsel submitted that Medical evidence is not an essential requirement to establish insanity.

The Court of Appeal in its judgment rejecting the submission held that the case of Modupe v. The State (supra) relied upon by appellant was not applicable and was clearly distinguishable. In the instant case appellant’s de fence of insanity, and the case before the court was rejected because his statement to the Police, Exhibit A was inconsistent with his oral evidence in court. There was no explanation for the inconsistency. In the Modupe case, the issue was whether the learned trial Judge could afford to believe or disbelieve when there was only one version of an essential fact, which was not obviously or patently improbable. In such a situation a trial court is without option and will be obliged to believe that which has not been contradicted or controverted in any way.

The Court of Appeal citing R. v. Ukpon (1961) All NLR 25; (1961) 1 SCNLR 53; R. v. Golder ((960) 1 WLR 1169; Omogodo v. State (1981) 5 S.C.5 agreed with the learned trial Judge that the extra-judicial statement of the appellant made to the Police four days after the incident, was different and inconsistent with his oral evidence on oath in court. The Court of Appeal then went on to hold that, (at p.85, lines 23-30).

“The learned trial Judge having properly rejected the evidence of the appellant because it conflicts with his statement to the Police, the appellant was without evidence upon which to anchor his defence of insanity which the law enjoins him to prove on balance of probability. This finding of the trial court knocked the bottom out of the defence of the appellant.” (See R v. Yaro Biu (1964) NNLR 45 where it was held that the burden of proving insanity lies on the accused and can be discharged by tendering evidence that it was “most probable” that he was incapable of knowing the nature ‘,of his act.”

The Court of Appeal then went into a very detailed consideration of the evidence of insanity adduced by the defence. It also considered the behaviour of the appellant in the court of trial and agreed with the conclusion of the trial Judge that the defence of insanity was not established. The learned justice of the Court of Appeal Ayo Salami, J.C.A. declared:

“…it is not enough to show that the appellant was suffering from a disease which is capable of affecting his will the appellant should go further to lead evidence showing that by the mental disease or natural mental infirmity he was deprived of the control of his action at the time of dealing the fatal blows which is the time material to the determination of the point. See Phillip Upetire v. Attorney-General Western Nigeria (1964) 1 All NLR 204; Effiong Udofia v. The State (1981) 11-12 S.C.49; Loke v. The State (1985) 1 NWLR 6.1 am therefore satisfied that the burden of proof placed on the appellant to show that his will was affected at the time of the killing is not made out.”

The appeal of the Appellant was dismissed and the conviction and sentence were affirmed.

The appeal to this Court was by motion which was granted for an order extending time to Appeal, an Order deeming the appellant’s notice of Appeal given on the 12th day of October, 1989 as having been properly given and Orders extending time to file the appellant’s reply brief dated 21/1/91 and deeming the brief so filed and having been filed within time. Appellant filed four grounds of appeal against the judgment of the Court of Appeal. The grounds of appeal excluding their particulars are as follows –

Grounds of Appeal

“1. The Court of Appeal erred in law by confirming the appellant’s conviction and sentence on the grounds (as alleged) of inconsistency between his written statement to the Police, and his subsequent oral testimony in court.

The Court of Appeal erred in law by affirming the rejection by the trial Judge of the appellant’s evidence of his insanity on the grounds that due to the inconsistency as alleged) between his written statement to the Police and his oral testimony in Court his entire evidence was “unreliable”, and deserved to be “ignored.”
The Court of Appeal erred in law by affirming the trial Court’s rejection of the appellant’s defence of insanity, because had both courts below directed themselves adequately and correctly as to the only relevant and admissible evidence on the issue, and had the Court of Appeal accordingly disregarded the evidence irrelevant to the issue, the only safe and proper verdict could possibly be that his insanity was established by evidence “on a balance of probabilities.”
The Court of Appeal erred in law and on the facts by holding that the appellant’s conviction in the trial court was not predicated upon the Honourable Judge’s “disbelief’ of the evidence adduced by the appellant during trial, and in further holding that the principles enunciated in Modupe v. The State (1988) 4 NWLR (Pt.87) p.137 were not applicable to the proceedings under review, and furthermore, by failing to disturb the trial court’s findings of fact, and by also failing to interfere with his evaluation of the evidence.
The decision of the Courts below are unwarranted, unreasonable, and cannot be supported having regard to the.” Summarily stated the grounds relate to the issue of inconsistency between the written statement of the appellant and his sworn oral testimony in Court and the affirmation of the Court of Appeal of the rejection of the judgment by the learned trial Judge of the defence of insanity set up by the appellant. There was also the general ground of appeal that the decisions of the courts below are unwarranted, unreasonable and cannot be supported having regard to the evidence.

Learned counsel to the appellant and of the respondent filed and served their briefs of argument which they relied upon in argument before us. Both learned counsel to the Appellant and of the respondent have each formulated six issues for determination arising from the four grounds of appeal filed and relied upon. Learned counsel to the appellant has formulated the following issues –

(1) (i) Whether, upon a proper evaluation of the relevant evidence, the learned Justices of the Court of Appeal were right to have upheld the learned trial Judge’s finding of in- consistency between the appellant’s “extra-judicial statement (to the Police) and his subsequent oral testimony (in Court).

And should the answer to that question be in the negative)

(ii) Whether the adverse finding complained about in question (2)(i) above was prejudicial to the appellant’s right to a fair hearing, which has occasioned a miscarriage of justice against him thereby.

(2) Whether the passage of the judgment of this Honourable Court in Phillip Omogodo v. The State (1981) 5-7 S.C. p.5, at p.23, upon which the Court below relied in dismissing the appellant’s appeal to them is in the nature of “Obiter dictum,” which therefore need not be followed in this appeal in determining the proper applicability of the rule in Regina v. Golder.

(3) Whether the Rule in Regina v. Golder on the effect in law of inconsistency between the sworn oral testimony (in Court) and the previous statement(s) made (before a trial, both given by the same person is applicable both to statement (sworn and unsworn) made by an “ordinary witness” for the Prosecution, as well as to statements (sworn and unsworn) made by an accused person standing trial in his own defence;

(4) Whether the decisions of this Honourable Court in; (i) Omogodo v. The State (1981) 5 S.C. p.5.; (ii) Stephen v. The State (1986) 5 NWLR (Pt.46) p.978; (iii) Oladejo v. The State (1987) 3 NWLR (Pt.61) p.419; (iv) Omati v. The State (1988) 1 NWLR (Pt.70) p.274; (v) Mbenu v. The State (1988) 3 NWLR (Pt.84) p.615, and in all the cases which hold that the rule in R v. Golder is applicable to the inconsistent statements of an accused person standing trial deserve to be over-ruled, and/or to be adjudged as having been given “per incuriam, ” and/or to be reviewed and explained.

(5) Whether, keeping only the admissible and relevant evidence on the question of Insanity in view, both Courts below adequately properly, and fairly directed themselves on the availability of the plea to the Appellant in his defence.

(6) Whether the manner of conduct of the case in Court or trial, and its review by the Court of Appeal were unfairly prejudicial to the Appellant, thereby occasioning a miscarriage of justice against him.”

It could be seen even from a cursory perusal of the issues so formulated above that the main issues relate to –

(a) The rejection of the entire evidence of the appellant in the case on the ground that his extra judicial statement was inconsistent with his oral testimony given on oath at the trial. This formulation covers issues 1-4 of the appellant’s formulation.

(b) Issue 5 could be more intelligibly formulated by providing whether the courts properly considered the evidence of insanity raised by the accused at the trial.

(c) Issue 6 raised the general question of whether the conduct of the case in the court of trial and on appeal were unfairly prejudicial to the appellant and therefore occasioned a miscarriage of justice.

Accordingly appellant’s formulation of the issues could be reduced to three as above.

Similarly, but differently formulated learned counsel to the respondent has put forward the following issues –

“(1) Whether or not the appellant was insane at the time he committed the offence.

(2) Why did the appellant kill the deceased, or put in another way, did the appellant intend to kill the deceased?

(3) Whether or not the learned trial Judge and the Court of Appeal were wrong in law to have rejected the defence of insanity put up by the appellant.

(4) Whether the principle in R. v. Golder on the effect in law of inconsistency between the sworn oral testimony in (Court) and the previous statements made before (a trial both given by the same person is applicable both to (sworn and unsworn) trade by an ordinary witness for the prosecution as well as to statements (Sworn and unsworn) made by an accused person standing trial in his own defence or put in another way what is the purport or intent of this rule.

(5) Whether the application of the learned counsel to this Honourable Court to overrule or review the law on inconsistent statements of an accused person standing trial has any merit.

(6) Whether the manner and conduct of the case in the Court of trial were not fair and its review by the Court of Appeal has occasioned a miscarriage of justice against the applicant.”

A better and more concise formulation of these issues would be covered by the three issues formulated above. This is so because issues (1)(3) on the question of insanity are properly covered by issue 2. Issues 4, 5, on the rejection of the evidence of the appellant, are also covered by my formulation of issue 1. Title formulation in issue 6 represents the general ground and is covered by issue 3 in my formulation.

It has always been the well settled practice of this Court to advise counsel against the proliferation of issues for determination. See Ogbunyinya v. Okardo (No. 1) (1990) 4 NWLR (Pt. 146) 551. The purpose of issues for determination being to identify what is in issue in the grounds of appeal to be argued, the issues in a number of grounds of appeal which involved the same issue could be formulated in one issue and argued together – See Adelaja v. Fagoiki (1990) 2 NWLR (Pt. 131) 137. For a tidier presentation of the issues argued before us, I prefer the formulation of issues I have adopted above. I intend to adhere to them in this judgment.

I shall begin my consideration of this judgment with the first issue. It seems to me that learned counsel to the Appellant regarded this issue as the hub on which the judgment of the Court of Appeal revolves. In his view if the issue is faulted, there will be no rational basis for the judgment.

In a very detailed and seemingly incisive analysis of the alleged inconsistency between the appellant’s unsworn statement, and his sworn testimony at his trial, the learned counsel after referring to the view of the Court of Appeal that both statement being unreliable and must be ignored and no reasons being given for the inconsistency, submitted that the view was erroneous. Learned Counsel referred to the definition of the word “inconsistency” in Black’s Law Dictionary, 5th Ed. at p.689 and in Words and Phrases, Permanent Edition, Vol.20A pp.345-6 and Isaac Stephen v. The State (1986) 5 NWLR (Pt.46) p.978, 1000. Learned counsel analysing the two statements of the accused in consideration, submitted that there was in fact no inconsistency in the two statements referred to. It was submitted that “from a comparison of the 2 accounts given by the Appellant as shown above, one is unable to find any features which are “mutually repugnant or contradictory, such that “the acceptance of one implies the abandonment or abrogation” of the other, or its “negation, destruction or falsity.”

It was submitted that the two statements are similar and tell the same story.

Conceding that the accused did not use the words madness or insanity in his statements to the Police, it was the state of mind contemplated when he said, “I think the thing did not happen by empty hand”, and “whether is medicine.” This expression suggests a defence of insanity, which learned counsel submitted cannot be said to be “inconsistent” with nothing previous by way of defence.

Learned counsel then submitted referring to the dictum of the trial Judge at p.53, lines 16-20 that the learned trial Judge gave no real consideration to the appellant’s defence of insanity. The Court of Appeal by endorsing the view of the Court of trial, abdicated its own responsibility. Lawal v. Dawodu (1972) 1 All NLR (Pt.2) 270; Nwosu v. The State (1986) 4 NWLR (Pt.35) 348.

In his further submission, learned counsel argued that even if the statements were held to be inconsistent, which he did not concede, the Court below was wrong in respect of the consequences in law to the appellant’s defence, of such inconsistency. Learned counsel when quoted the dictum of the Court below and submitted that it did not represent the law. The Court of Appeal had expressed the opinion that

“The learned trial Judge having properly rejected the evidence of the appellant because it conflicts with his statement to the police, the appellant was without evidence upon which to anchor his defence of insanity which the law enjoins him to prove on balance of probability. This finding of the trial Court knocked the bottom out of the defence of the appellant.”

(See p.85 lines 23-31. Learned counsel then submitted that although there are binding decisions of the Court in support of the above proposition such as Omogodo v. The State (1981) S-7 S.C. 5 at p.23; Stephen v. The State (1986) 5 NWLR (Pt.45) 978; Oladejo v. The State (1987) 3 NWLR (Pt.61) 419; Umani v. The State (1988) I NWLR (Pt.70) 674; Mbenu & anor. v. The State (1988) 3 NWLR (Pt.84) 615. There are also binding decisions of the Supreme Court which hold that the rule is properly applicable to the evidence of an ordinary prosecution witness. Learned counsel cited and referred to the Queen v. Ukpong (1961) All NLR 25 at p.26; (1961)1 SCNLR 53; R. v. Golder (1960)1 WLR 1169; Joshua v. The Queen (1964)1 All NLR at pp.3-4; Agwu & Ors. v. The State (1965) NMLR 18; The State v. Okoto (1974)2 S.C.73, at p.80-81; Onubogu & Anor. v. The State (1974) 1 All NLR (Pt.2) 5,1-18; William v. The State (1975)11 S.C. 139; Boy Muka & Ors. v. The State (1976) 9-10 S.C.305; Enitan & Ors. v. The State (1986) 3 NWLR (Pt.30) p.6(W; Nwabueze & Ors. v. The State (1988) 4 NWLR (Pt.86) 16, at p.27, 29, 31. All these cases are those where evidence of prosecution witnesses, not accused persons were rejected on the grounds that the two were inconsistent.

Counsel then submitted that there is an obvious conflict between these two lines of authorities, and invited this court to resolve the conflict. In his view R v. Golder (supra) should be confined to, the evidence of a witness for the prosecution alone.

Learned counsel argued that the dictum in the decision of Omogodo v. The State (supra) relied upon was obiter, and that the case relied upon was a successful appeal against conviction and sentence for Armed Robbery, it was accordingly submitted that the Court below ought not to have followed that decision in determining the proper circumstances for the application for the principle in R v. Golder (1960) 3 All E.R.457, or 1 WLR 1169. It was submitted that the decision of the English Court of Appeal in R v. Golder (supra) applied in Omogodo v. The State (supra) by this court should be limited to the evaluation and consideration of the evidence of witnesses for the prosecution only. It was submitted that sections 4 and 5 of the Criminal Procedure Act, 1865 has used the expression “prisoner” and “defendant” to refer to an accused person, whilst the word “party” was used to refer to both the prosecution and the defence. Hence the word “witness” can only mean “an ordinary witness for the prosecution” and certainly did not include the accused it should not therefore be extended to the evidence of the accused. For this submission learned counsel referred to what he considered as the origins of the rule and the provisions of sections 198 and 208 of the Evidence Act, Cap. 62 Laws of the Federation of Nigeria, 198, now sections 199, 209 Cap. 112, Laws of the Federation of Nigeria, 1990, and sections 4 & 5 Criminal Procedure Act, 1865 of England, from which our own law was derived. The two provisions being in pari materia the same construction should be given to them.

Learned counsel pointed out, correctly in my view that the purpose of the rule on inconsistent statements is to cast doubt on the accuracy of the Evidence-in-Chief, and to impugn the credibility of the witness who has given two inconsistent versions of the same story. Consequently neither of the two versions of the story is worthy of any credit and therefore incapable of establishing the truth. Counsel cited the Queen v. Akanni (1960) 5 F.S.C. 120, (1960) SCNLR 239; Ifenodo v. The State (1967) NMLR 200. Also relied upon are The Criminal Law and Procedure of the Southern State…. by Madarikan and Aguda 2nd Ed. Part 10, paras. 1058, 1059, and 1069. Cross on Evidence 6th Ed. Chapter 8, section 3 pp. 278-281 Archbold; Pleading, Evidence and Practice in Criminal Cases, 42nd Ed. Book 1, Chapter 4 section xiv(B)(3).

Learned counsel submitted that all the cases on the issue were decided without the attention of their Lordships being invited to the statutory roots of the rule in the Criminal Procedure Act, 1865 and to our Evidence Act. Accordingly the decisions were made per incuriam; and this court is urged to so hold.

Counsel urged a reconsideration of the rule because of the effect on confessions and the injustice of rejecting the evidence at their trial. If the entire evidence of the accused including his extra-judicial statement should be considered at his trial, – See Queen v. Itule (1961) All NLR 462, 465, (1961) 2 SCNLR 183, it will result in grave injustice to reject a confession because of a subsequent inconsistent evidence at the trial. Learned Counsel referred to the views expressed by Uwaifo, J.C.A. in Ibina v. The State (1989) 5 NWLR (Pt.120) 238, 247-8; and commended it to this court. He also cited and relied on the view of Brett, J.S.C. in Brownson Etuk Udo v. The Queen (1964) All NLR 21, 24, where he referred to R v. Ukpong (1961) All NLR 25; (1961) 1 SCNLR 53 as not having any application to a confession made by an accused person. His Lordship limited the rule to. “… those cases … with previous statements inconsistent with a witness sworn evidence which are put to a witness in cross-examination in order to discredit his evidence.”

In concluding his submissions on this issue learned counsel to the appellant stated as follows – at p.22 of his brief.

“It is therefore submitted that further perpetuation of a rule which excludes both the previous statement and the subsequent oral testimony of an accused person from any consideration by the Court on the grounds of inconsistency will trivialize the notorious rule on confession – statement referred to above to nothing more than historical or notional significance, and will make non-sense of one of the most fundamental attributes of the guaranteed constitutional right to a fair hearing in criminal cases, namely, the right of a person accused with commission of crime to be heard in his own defence; this will always occasion a miscarriage of justice, and (it is submitted) has certainly done so in the instant case.”

“Put in another way, if neither his previously written or his subsequently spoken defence will be considered on the grounds of inconsistency, such an accused person may as well proceed to the gallows without the mere formality of a trial at all.”

Learned Counsel to the Respondent in her brief of argument and orally before us submitted that an accused who goes to the witness box to testify on his own behalf is regarded for that and all purposes as a witness. The rule relating to the inconsistency of the previous statement of a witness with the oral testimony in court is applicable both to accused persons and all witnesses. Learned counsel pointed out that the inconsistencies relied on for the rejection of appellant’s evidence were that

(a) his previous written statement did not contain any claim to his insanity or the history thereof.

(b) he did not say that he had a black out.

On appellant Counsel’s submission on Omogodo v. The State (supra) that the dictum relied upon was obiter, it was submitted that the obiter should be accorded the same weight as a ratio decidendi.

Learned counsel submitted that the invitation to this court to depart from its previous decisions has no merit. In any event it was submitted that there was no inconsistency in the evidence of any of the prosecution witnesses.

I find it more convenient to consider first the issue relating to the consideration of the effect of the inconsistency of the extra-judicial statement of the Appellant and the subsequent oral testimony made on oath. 1 do not agree with the submission that there is no inconsistency between the written statement of the accused which he made to the Public on the 30th October, 1983 and his evidence on oath at his trial. Learned counsel to the Appellant has endeavoured to make a microscopic analysis of what the words used are likely to mean, and has come out with the conclusion that they were likely to mean the same thing.

It is hardly arguable that the statement made to the Police on the 30th October, 1983 when the incident was very fresh in his mind did not contain any reference to the appellant being mad or insane. The nearest meaning of the construction of his expression “I think the thing did not happen by empty hand” “whether it is medicine” is that the incident was to him rationally inexplicable. Thus the written statement that the conduct of the appellant was rationally inexplicable and his subsequently oral testimony in his own defence at his trial that he was at the time of the commission of the offence insane or mad, cannot be anything but inconsistent. It seems to me that the two are mutually repugnant and contradictory, and both cannot stand. Both cannot obviously be relied upon, since the subsequent statement infers the falsity of the earlier. The inconsistency lies in his knowledge and awareness of how the deceased came to her death. I therefore agree with the finding of the two Courts below on the issue. The Court below did not abdicate its responsibility by agreeing with the trial Judge on the issue. This now leads us to the application in this case of the rule in R v. Ukpong (1961) 1 All NLR 25; (1961) 1 SCNLR 53, that where the evidence of a witness at his trial is inconsistent with his previous extra-judicial statement the court should not only regard the statement made in court as unreliable but also regard the previous statement whether sworn or unsworn as not constituting evidence upon which it can act.

Learned counsel to the appellant has challenged the scope of this rule, tracing its origins and pointing out that the rule was neither intended to apply to confessions, nor was it to apply to the evidence of accused persons. In his view, it ought properly to be limited to the evidence of prosecution witness only. The chief argument is that the reliance of the rule cited in Omodogo v. State (supra) is erroneous since the ratio decidendi of that case was not based on the application of the rule. The dictum was not necessary in that case and was obiter.

I have already set out in detail the submissions of learned counsel to the appellant on this issue. All the nine cases cited by learned counsel for the appellant are cases where the two inconsistent statement of prosecution wit nesses were rejected, and their evidence regarded as unworthy of credit. I do not think this by itself denied the cases of their judicial authority. It is a well settled principle of the administration of justice that the court is bound by the facts of the case established before it. Consequently the judgment of the court must necessarily be limited to and confined within the parameters of the facts as established. Thus when the evidence in consideration as in these cases are those of prosecution witnesses and the ratio of the judgment of the court is founded on the acceptance or rejection of such evidence, the principle of law relied upon in support of the judgment is limited to and confined to the facts as accepted.

I agree that the rule applied and relied upon by the Court of Appeal in this case with Omogodo v. The State as authority was not the ratio decidendi of that case. The appeal in that case was allowed because as this court held,

“… contrary to the conclusion of the Tribunal, considerable doubt exists about the guilt of the appellant. It was the duty of the prosecution to prove the appellant’s guilt not beyond any shadow of doubt but beyond reasonable doubt. That burden they have failed to discharge …” (See p.31 lines I1-18).

It is too well settled that the onus of proof of the guilt of an accused person rests throughout the case on the prosecution. this is the legal position even where the accused has chosen not to give evidence and make his defence.

It is important to point out also that in Omogodo v. The State (supra), the two statements of the Appellant, Exhibits K and L, and his testimony before the Robbery and Firearms Tribunal, were considered by this court to be in conflict. The several conflicting features in the statement were identified. This court also referred to the observation by the Tribunal that “the catalogue of lies presented by the accused coupled with his betraying demeanour point to only one conclusion – guilt.” Nevertheless, it came to the following conclusion on the burden on the prosecution,

“But having regard to the circumstances of this case, these conflicts and discrepancies in the appellant’s evidence by themselves are not enough, in any view, to establish his guilt with the requisite degree of certainty.” – See p.21, lines 32-37.

Although not the ratio decidendi of the case, this court considered and made a definite pronouncement on the issue of the inconsistency between the statements of the appellant and his testimony at the tribunal. This can be found at p.22, lines 33-34 and p.23 lines 1-8, where this court said,

“…in any case, since the evidence of the appellant before the Tribunal (which consisted of so many lies) was different from the contents of his statement to the Police, Exhibits “E” (sic) K and L, the Tribunal was entitled to have treated it as unreliable and ignored it. It would then have examined the rest of the evidence in determining whether the prosecution has discharged the burden of proof which is case on it.”

This dictum is nevertheless entitled to respect and binds all lower courts where the facts of the case are identical. Thus although the facts of the previous decision in Ukpong (1961)1 All NLR 25; (1961) 1 SCNLR 53, which applied the English Court of Appeal case of R v. Golder (1960) 3 All E. R.457 as well as R v. Golder were concerned with the evidence of prosecution witnesses (namely Mrs. Taylor in Golder and Adiaha Udo Akang, in Ukpong). The formulation of the principle in R v. Golder (supra) by Lord Parker, C.J., is wide enough to include the evidence of accused persons when testifying as witnesses at their trial. The learned Chief Justice said;

“In the judgment of this Court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.” (1960) 3 AIIER. 457 at p.459.

This principle was applied in Ukpong v. The Queen. It is pertinent to point out that the rationale of the rule as formulated is to ensure that the evidence of the accused is based on credible evidence upon which the court can rely in doing justice. It is the entire evidence on which the decision is based that is under such judicial scrutiny. It is not limited to the evidence adduced by the prosecution. It is a misconception of the scope of the rule to assume that its application was limited to the consideration of evidence of prosecution witnesses. See Omisade v. The Queen (1964) 1 All NLR. 233 and section 154 and 159 Evidence Act as to competent witness. Umole & Ors. v. LG. (1957) NRNLR 8.It is inconceivable that the rule can be limited only to the evidence of prosecution witnesses, as suggested by learned counsel to the Appellant. In his view it does not apply to the evidence of the accused and a fortiori witnesses for the accused. In support of this contention learned Counsel relies on Brownson Etuk Udo v. The Queen (1964) 1 All NLR 21, where at p.24, Brett, J.S.C. stated as follows:

“The Judge, however, decided to ignore the statement, as not being legal evidence, and he cited the decision in R. v. Ukpong (1961) All NLR 25; (1961) 1 SCNLR 53. With respect those cases deal with previous statements inconsistent with a witness’ sworn evidence which are put to a witness in cross-examination in order to discredit his evidence. They have no application to a confession made by an accused person. A man’s confession was always admissible in evidence against him at common law, and its admissibility remains unaffected by the fact that he is now competent to give evidence himself. The Judge was clearly mistaken in the view that the first statement, Exhibit B was not legal evidence.” The view in this dictum would seem at first glance to have excluded confessions from the application of the rule in R. v. Golder. This is not so. Confessions which are consistent with subsequent oral testimony in court are not affected. As was the case in The Queen v. Itule (1961) All NLR. 462; (1961) 2 SCNLR 183, the whole account of the incident given must be considered. The rejection of the evidence on the ground that the two versions of the same are inconsistent is clearly in my opinion a failure to consider the defence. Hence Opayemi v. State (1985) 2 NWLR (Pt.5) 101, based on the failure to consider the defence is therefore different. It is also not in conflict with Nwosu v. The State (1986) 4 NWLR (Pt.35) 348. The rule is clear and unequivocal. It only applies where the previous statement whether confession or not is inconsistent with subsequent oral sworn testimony at the trial. It is well settled that a confession if properly established is always admissible. – See Yesufu v. The State (1976) 6 S.C. 167; Seidu v. The State (1982) 4 S.C.41. However, where, a confession is subsequently retracted in an oral sworn testimony in Court, it throws the credibility of the story in the confession into doubt, and renders the entire evidence unreliable and incapable of belief.

The rule does not question the admissibility of the previous written extra-judicial statement. It is concerned entirely with the credibility of that statement in the light of the subsequent oral statement on oath. The position taken in Brownson Etuk Udo v. The Queen (supra) is not in conflict with the general principle in Queen (supra). I agree with Brett, J.S.C., that the trial Judge was clearly mistaken that the first statement, Exhibit B was not legal evidence. It is without doubt legal evidence which has been rendered unreliable by subsequent evidence on oath. This view does not constitute a departure from Jizurumba v. State (1976) 3 S.C.89 and Oladejo v. The State (1987) 3 NWLR (Pt.61) 419 from the principle laid down in Ukpong (supra). It was contended that section 4 and 5 of the Criminal Procedure Act, 1865 on which our sections 198 and 208 of the Evidence Act, Cap.62 is based did not contemplate the accused. I do not consider it the proper approach in this case to construe the provisions of sections 198 and 208 of our Evidence Act in the light of section 3 of the Criminal Procedure Act, 1865.

I think the provisions of sections 198 and 208 of the Evidence Act are clear. I do not consider any excursion into the provisions of the English Criminal Procedure Act, 1865 for construing its provisions necessary. I accept the submission of learned Counsel to the Respondent that an accused person testifying in his own defence is a witness for that purpose – See Omisade v. Queen (supra). The testimony in Court of an accused person is to be tested by relevant cross-examination to elicit from him evidence favourable to the prosecution and to disprove the case he is presenting as his defence. This cross-examination is directed at establishing and testing the accuracy, veracity or credibility of the witness, or to shake his credit. An accused person is undoubtedly a witness in every connotation of the proceedings. – See 5.159 of the Evidence Act.

The contention of learned Counsel that to disregard the entire evidence of the appellant at the trial on the grounds of inconsistency will amount to a denial of fair hearing, seems to me to ignore the fundamental rule relating to fair hearing. The general principle of fair hearing has been outlined in Mohammed v. Kano N.A. (1968) 1 All NLR 424. Since the accused has made his defence and has had the opportunity and exercised the right to cross-examine witnesses who testified against him, he cannot claim not to have had a fair hearing – See Kano N.A. v. Obiora (1959) 4 PSC 226; (1959) SCNLR 577. Consideration by the judge of the evidence before him by the principles applicable is not a question of fair hearing. I am sure learned Counsel to the Appellant cannot be heard seriously to argue that the application of the rule denies the accused his right to fair hearing. It is important to advert to the fact that both the statements of the accused and his oral sworn testimony at the trial were admitted in evidence. The problem arises at the crucial stage of consideration of which of the two versions of the story put forward by the accused to his own defence should be accepted. Being inconsistent each of the versions challenges the credibility of the other. Hence the proper course for the judge to adopt in such a situation and in the interest of justice is to disregard both.

This is not in my opinion a denial of the right to fair hearing.

Accused was not denied the right to make his defence and actually made his defence. The Courts have not been unfair or biased in any manner whether in hearing the case or in considering the defence of the Appellant. I now turn to the issue of whether the defence of insanity was adequately considered by the two courts below. What is now being claimed as the evidence of insanity in the case is based on the ipse dixit of the Appellant in his oral testimony on oath at his trial where he gave the following evidence, at p.24, lines 4-16,

“I remember vividly that while at the meeting my body gave me signs and something was blowing whistle in my ears. My ear whistled. I did not know what was happening. I cannot remember fighting my wife. I was mad in 1978. 1 was treated at Ekoko Agbor in Bendel State. I was treated with native medicine and I became well in the same year. I was well until December, 1979. I took ill again in December, 1979 for only two days. another native doctor treated me at Nsukka and I became well but stated with him for 14 days. I was discharged after 14 days. I was quite well thereafter – until 161083.”

The other evidence which supported the story that Appellant was treated in 1978 in Ekoko-Agbor, with native medicine when he was mad was by his witness Monday Obi who in his evidence stated as follows – (p.25 line 18-30)

“I know the accused man. I knew him at Ekoko-Agbor in Bendel State of Nigeria in 1978. This was when he was sick in the head and he was brought to my father’s compound for treatment. My father, who is now dead, was a native doctor; herbalist. He was Ossai Obi. Accused was with my father for treatment throughout 1978. When he was brought to my father’s house from his home, he was tied down in my father’s hall. There he received herbal treatment. At the end of 1978 he was well and was discharged. We did not meet until I met him in Owo Prison on 30/10/86.”

Under cross-examination this witness admitted that it was the accused who recognised him at the Owo Prison and introduced himself to him. It is significant to observe that PW2, PW3 who had known Appellant and had been in Ajede Camp with him for upwards of 4 years before the date of the incident, i.e. since 1979, never observed that appellant had any history of insanity.

Learned counsel to the appellant submitted that the Appellant on the evidence, raised the issue of absence of “mens rea” at the time of the commission of the offence, and that if successful operates as a complete defence to the offence. It was also submitted that since the defence of insanity was not properly and fairly considered, the Appellate Court cannot conjecture the result of the case if the defence had been properly considered. Learned Counsel then referred to section 28 of the Criminal Code and to Karimu v. The State (1989) 1 NWLR (Pt.96) 124 and submitted that an incapacity to do any of the under mentioned is sufficient for a defence of insanity.

(a) incapacity to understand what he was doing, or

(b) incapacity to control his actions, or

It was submitted that the uncontradicted, unchallenged evidence of appellant which must be accepted, indicated that he could come within any or all of these capacities. Appellant was therefore able to establish legal insanity before the contemporaneous with the time of the killing. Learned counsel submitted that having raised prima facie evidence of insanity, the onus to prove the sanity of the appellant shifted to the prosecution. – See Onyekwe v. The State (1988) 1_NWLR (Pt.72) 565. It was submitted that the relevant time of inquiry as to the state of mind of the accused, is at the time of the commission of the offence – Ngene Arum v. The State (1979) 11 S.C. 1. The time of trial considered by the Court is irrelevant.

Learned counsel referred to the wholesale rejection of the evidence of DW3 which corroborated the evidence of the Appellant, by the trial Judge as perverse as the reasons for the rejection could not be justified. No question where put to this witness during cross-examination suggesting improper purpose for the evidence. Not being an accused evidence of his character need not affect his credibility. He was disbelieved because of extraneous considerations. The Court of Appeal was therefore wrong to have affirmed the trial Judge on the issue. – See Adimora v. Ajufo (1988) 3 NWLR (Pt.84) l ; State v. Aibangbee (1988) 3 NWLR (Pt.84) 548.

Appellant’s conviction was based, contrary to the view of the Court of Appeal, on the disbelief and rejection of all the material evidence by the accused and his only witness.

In reply to the submission of learned counsel to the Appellant, learned counsel to the Respondent referred to the presumption of sanity and pointed out that the prosecution had no duty to establish insanity of the accused. The onus was on the accused and had not been discharged.

Learned counsel referred to the evidence of DW2 and to that of the accused and pointed out that, none of the relations who visited accused when he was being treated at Ekoko-Agbor was called to give evidence. Again the native doctor who the accused claimed treated him at Nsukka who was not known to have died was not called as a witness to testify on his behalf. It was submitted that it is not sufficient to give evidence that appellant was suffering from a disease capable of affecting his will, it must be shown that his will was in fact affected at the material time- See Udofia v. The State (1981) 11-12 S.C.49; Loke v. The State (1985) 1 NWLR (Pt. 1) 1. It was submitted that if the evidence of the appellant was accepted it could be said he had a blackout, before the commission of the offence. This is not the same thing as a partial delusion. At best Appellant could be said to be suffering from the effect of self-induced intoxication. The learned judge was right to have rejected the defence of insanity by the Appellant. Learned judge referred to the extra judicial statement and the testimony on oath at the trial of the Appellant and submitted that the learned trial judge was right to have rejected the evidence. He also supported the rejection of the evidence of DW2.

This issue raises consideration of the defence of insanity, and particularly whether the rejection of the defence by the court amounts to its non consideration. It is well settled that the burden of establishing the defence of insanity rests on the accused. The burden is discharged if the accused leads evidence to show that it is most probable that at the time of the commission of the offence with which he is charged he was insane within the meaning of section 28 of the Criminal Code – See R. v. Ashigifuwo (1948)12 WACA. 389. This is that he was in such a state of mental disease or natural mental infirmity as to (i) deprive him of the capacity to understand what he is doing, or (ii) control his actions, or (iii) to know that he ought not to do the act or make the omission – See R. v. Tabigen (1960) 5 FSC 9; (1960) SCNLR 32. In establishing any of the above, and especially mental disease or natural mental infirmity evidence of the insanity of ancestors is blood relations is admissible – See R. v. Inyang (1946) 12 WACA 5. Although evidence by the appellant of his insanity is admissible, the question is whether his ipse dixit is sufficient to satisfy the burden of proof required. This Court has declared in Egbe Nkanu v. The State (1980) 3-4 S.C.1, that it is unsafe to rely on the ipse dixit of the accused, and that such evidence cannot be accepted as proof of his insanity. This has to be so since such evidence will constitute essentially a self-serving defence of the charge.

The contention of the Appellant is that his defence of insanity was not sufficiently considered. This was because his oral evidence where he raised the defence was rejected on the ground that it was inconsistent with his extra judicial written statement. Again, the evidence of his witness in support was rejected because it was not believed.

I have already considered the first issue in this judgment. I shall now consider the rejection of the evidence of Appellant’s witness.

It is well settled that the presumption is that the decision of the Court of trial on the facts is correct. This is because findings of fact which the issue of insanity is, being matters especially reserved for the Court of trial, the Court of Appeal has no right to substitute its own views. – See Balogun v. Agboola (1974) 1 All NLR. (Pt.2) 66. Where the decision of the trial judge is based on the credibility of the witness, the appellate court would be wary to interfere – See Kponuglo v. Kodaga (1933)2 WACA.24. The Court of Appeal will not interfere where the credibility or not of the evidence is based on the demeanour of the witness. In the instant case the learned trial judge did not believe Monday Obi, the witness of the Appellant. The Court of Appeal has been criticised for being silent on the issue. I do not consider this criticism to be fair. As I have pointed out already, the rejection of the evidence having been based on credibility, the Court of Appeal cannot interfere.

I now turn to the criticism that the defence of insanity was not considered. I agree that once a defence of insanity is raised, the Court must consider it. It is in this case not correct to say that the defence was not considered. Both the trial judge and the Court of Appeal adequately considered the defence of insanity.

A perusal of the record of proceedings, discloses that the Court of trial at pp.48-50, and the Court below at pp. 86-91 analysed the defence of the Appellant in considerable detail and came to the conclusion that the defence was not on the facts available to the Appellant. The Court of Appeal in rejecting the defence of insanity concluded as follows – p.90 lines 21, to p. 91 lines 1-3,

“The evidence led by the appellant also fell short of what he is required to do because nowhere did he show or could it be inferred that the mental disease or the natural infirmity was such that it deprived the appellant of the capacity, at the time of the commission of the offence of understanding what he was doing or to control his omission was wrong.”

The Court then went on to hold at p.91, line’s 3 as follows –

“I, therefore, agree with the submission of the Counsel for the respondent that it is not enough to show that the appellant was suffering from a disease which is capable of affecting his will the appellant should go further to lead evidence showing that by the mental disease or natural mental infirmity he was deprived of the control of his action at the time of dealing the fatal blows which is the time material to the determination of the point. – See Phillip Upetire v. Attorney-General Western Nigeria (1964) 1 All NLR 204; Effiong Udofia v. The State (1981) 11-12 S.C.49, 62; Loke v. The State (1985) 1 NWLR (Pt. 1) 1. I am therefore satisfied that the burden of proof placed on the appellant to show that his will was affected at the time of the killing is not made out.”

Nothing can be clearer than the above in demonstration of the consideration and eventual rejection of the defence of insanity in the instant case. A defence should not be regarded as not considered merely because it was ultimately rejected by the Court.

I now come to the invitation of learned Counsel to this Court to depart from our previous decisions culminating in Omogodo v. The State (supra) and ors. and to overrule them. I have already held in this judgment that there is no inconsistency between the principle in R v. Ukpong (1961) All NLR 25; (1961) 1 SCNLR 53 which applied the principle in R. v. Golder (1960) 3 All E.R.457, and the principle as applied in Omogodo v. The State (supra). If it is necessary and in the interest of justice to depart from a previous decision found to have been held per incuriam, this Court will not hesitate to do so and will be anxious to depart to avoid the perpetuation of errors – See Bucknor-Maclean & Anor. v. Inlaks Ltd. (1980) 8-11 SC. 1; Oduola v. Coker (1981)5 S.C.187. I have not found any errors in the cases referred to necessitate their reconsideration.

The interest of justice demands that an accused person who presents to the Court two inconsistent statements with respect to the same matter should not be allowed to elect which of the two he would wish the Court to believe. The choice should be that of the court.

The determination of credibility of the witness is primarily within the jurisdiction of the trial Judge. It will in this circumstance constitute an inscrutable task for the Judge to chose which of the statements to accept as the truth of the matter. Hence it is in the interest of justice right to disregard both statements.

The trial Judge has examined the evidence before him with considerable and meticulous care. His findings of facts are amply supported by the evidence before him. The lower Court was right to have affirmed the conviction and sentence.

For the reasons I have given above and in addition to those of my learned brother, Nnaemeka-Agu, J.C.A., I also will, and hereby dismiss the appeal. I hereby further affirm the conviction and sentence affirmed by the Court of Appeal.

I must express appreciation for the industry, and erudition demonstrated in the very helpful brief of argument filed by Mr. B. Aluko learned Counsel to the Appellant.

KAWU, J.S.C.:

I have had a preview of the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C., which has just been delivered. I entirely agree with his reasoning and also with his conclusion that the appeal lacks merit and should be dismissed. On the evidence adduced at the trial, I am satisfied that the conviction of the appellant was absolutely justified and that the Court of Appeal was right in affirming the appellant’s conviction. I too would dismiss the appeal and uphold the appellant’s conviction and the sentence of death passed on him.

BELGORE, J.S.C.:

It is often found as a pattern, that statement of an accused person to the police before trial, conflicts with what he says on oath before the trial Court. Like all evidence, where there is such a conflict or inconsistency, and this goes to the root of the party’s case, it is the duty of the maker to explain the contradiction or inconsistency. Failure to resolve the conflict makes such evidence unreliable, a fortiori; if such evidence touches the substance of the case. The appellant in the instant case made a voluntary statement very much at variance with his sworn testimony in Court, it is incumbent on him to explain the contradictions and as he failed to explain, his testimony remains unreliable. But what obtains in the totality of the evidence before the Court is a clear case of murder where the appellant fought with his wife and killed her by inflicting on her matchet wounds that were fatal. Any person who as an accused wishes to anchor his defence on insanity must not only raise the plea either directly or indirectly, but must also prove the defence. Assuming that even though the inconsistent testimonies of the appellant – the voluntary statement to police and the sworn evidence at trial – could indirectly indicate some claim to disturbance of the mind, what is in the written record is far short of proving insanity. [Nwoye lgweze Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565, 572].

This appeal, with the greatest respect, has been based on a misconception of the state of decisions on inconsistent statements in our Courts. Once statements in respect of the same issue are totally at variance, unless they are explained to the satisfaction of the Court, no Court will rely on such statements. I see no merit in the appeal. For the fuller reasons ably elaborated in the judgment of Nnaemeka-Agu, J.S.C., with which I am in full agreement and the above reasons, I dismiss this appeal and affirm the decision of the Court of Appeal which upheld the judgment of the trial High Court.

OLATAWURA, J.S.C.:

The facts of this case on appeal have been adequately set out in the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. with which I am in complete agreement. I will deal first with issues 5 and 6 out of the issues set out in the appellant’s brief. For ease of reference they are as follows:

“(5) Whether, keeping only the admissible and relevant evidence on the question of Insanity in view, both Courts below adequately properly and fairly directed themselves on the availability of the plea to the Appellant in his defence.

(6) Whether the manner of conduct of the case in the Court of trial, and, its review by the Court of Appeal were unfairly prejudicial to the Appellant, thereby occasioning a miscarriage of justice against him.”

In respect of issue No.5, Mr. Bankole Aluko the learned Counsel for the Appellant has submitted thus:

“The Appellant’s main quarrel with the treatment of his defence of Insanity by the trial Court, and its tacit approval (whether express or implied) by the Court of Appeal lies in the fact that rather than restrict themselves to a dispassionate consideration of the only relevant matters discussed in this section, they extended (without invitation) the scope of the debate to also embrace irrelevant matters such as “coherent testimony” and all others of the kind complained about in sections 5.2-5.4 of this Brief’

In other words their consideration of the law and issue of insanity went beyond the permissible limit of the law of insanity. It is also the submission of Counsel that these considerations were prejudicial to the case of the Appellant. The Court has never accepted the ipse dixit of an accused person as proof of insanity: Egbe Nkanu v. The State (1980) 3-4 S.C. 1; should that be the law, it will be the easiest defence to a charge of murder before the court. The antecedent of the accused is very material. In this connection, the family history, any evidence of previous acts which show traits of insanity must be looked into so as to ensure that an accused is not found guilty of an act for which he is not responsible in law. It is a time honoured practice that those accused of murder or any other serious offence be put under medical observation. The slightest evidence of an unusual behaviour which is suggestive of a disturbance of the mind ought to be reported to the Prison Authority. Medical report based on medical observation enables the court to know if an accused is able to plead. An enquiry limited to the time or the date of an offence will operate unfairly and may be detrimental to the defence of the accused. A demented person as well as the ordinary man has a constitutional right and safeguard not to be convicted for any offence of which he is innocent. Once a defence of insanity is raised, or even if not raised but there is evidence suggestive of insanity, it must be considered. The accused person who raises the defence of insanity will prove this on a balance of probability. There is the presumption of sanity. See section 27 of the Criminal Code of the Laws of Ondo State. However the relevant section in this appeal is section 28 of the same Laws: It provides:

“28. A person is not criminally responsible for an act or omission if at the time of doing the 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 person 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 the delusions to believe to exist.”

In other words, no court can come to a fair decision without due consideration of the antecedent of the accused: Nkanu v. The State (1980) 3-4 S.C. 1. If an accused even at the time of his defence gave an incoherent answer, or exhibited such traits that are suggestive of insanity, will the court then conclude that he was sane at the time of the crime? I do not think so. The issue of insanity cannot be approached mathematically in the sense that once he was not insane on the date of the alleged crime, though insane previously he must be found guilty. The attitude, conduct and behaviour of an accused during the trial are relevant once he has set up a defence of insanity. Reliance is placed on the case of Ngene Ahem v. The State (1979) 11 S.C.91. The case does not go so far as to say that no reference must be made to the antecedent of the accused who sets up a defence of insanity. An inquiry limited to the date of crime without more is to treat insanity as if it is an outbreak of epidemic. Consequently, the state of mental disease or natural mental infirmity envisaged under section 28 of the criminal code must include acts done previously and subsequently to the date of actual commission of the offence; Karimu v. The State (1989) 1 NWLR (Pt.96) 124. It is therefore wrong on the part of the learned counsel to say that a consideration of the facts before and subsequent to the date of the offence is a bias against the appellant. I will on the facts before the trial court hold that both the trial court and the lower court have properly directed themselves and thereby came to the right decision.

Issue 6 as couched by the learned counsel is a misapprehension of the duty of a trial Judge in accepting or rejecting the evidence of a witness. The findings of a Judge on a witness that the witness has been procured or suborned cannot be right to reject the evidence of a witness of low credibility. It is one of the duties of a Judge to assess the credibility of witnesses who gave evidence before him. He must not limit his rejection of evidence to question of belief or disbelief without reasons. In this case on appeal D.W.2 has, on a sympathy trip, betrayed himself as a complete stranger to truth and the appellant whose cause he tried to champion. The submission of learned counsel on the opinion field by the trial judge of this witness is clearly misconceived. Learned counsel must appreciate that the events related by D. W.2 took place in 1978, i.e., about 8 years before he gave evidence. It was in the prison yard for the first time thereafter that he saw him. D.W.2 had more interest in the welfare of the appellant than the appellant and yet it was the appellant who recognised him in the prison yard. Stories will continue to be related by witnesses in court; but the truth of the accounts given will be determined by the court. To reject the evidence of a suborn witness is not perverse. The clear attempt to mislead the court in this case was therefore properly rejected.disturbed on appeal once the credibility of the witness is in doubt. A Judge has the

I now come to the issue of inconsistency on which learned counsel’s dissertation takes half of the Appellant’s brief. Learned counsel has urged us to depart from our previous decisions or to over-rule them. This is clearly set out in issue No.4. My learned brother Nnaemeka-Agu, J.S.C., has dealt admirably with all the cases in his lead judgment.

Judicial precedent is an insurance against inconsistent judgments. In matters affecting the administration of justice, liberty of the subject, interests of justice, there cannot be a posture of indifference in the name of stare decisis so as to enthrone injustice. That in itself will amount to a negation of justice. Where there is cause to depart from previous decision this court will not hesitate to do so: James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 N.W.L.R. (Pt.94) 323: Bucknor-Maclean & Anor. v. Inlaks Limited (1980) 8-11 S.C.1: Oduola v. Coker (1981) 5 S.C.187 to mention a few. However, it must be appreciated and clearly understood that this court will not depart from previous decisions on flimsy grounds. The law of evidence guides the orderly conduct of trials of cases. A witness who made a voluntary statement to the police so soon after the event which is the subject of inquiry or trial may be presumed to give a true and reliable account of what happened. A doubt will be cast on a subsequent account which departs drastically and materially from the previous account without a reasonable explanation. To allow both statements to stand or to be relied upon is to create a situation where witnesses will be allowed to choose freely between two statements on the same issue. Such unchecked practice will defeat the justice of the case.

The proposition made by learned counsel in an attempt to differentiate between a witness and an accused is to encourage an accused person who gives evidence in his own defence to disown his previous statement without any reason notwithstanding the earlier statement was made voluntarily. I fail to find a single instance, and learned counsel has not drawn our attention to any where this court made such a distinction. An accused person who decides to give evidence is a witness in respect of his defence to the charge. The combined effect of sections 154 and 159 of the Evidence Act shows that an accused person is a competent witness even though not compellable: Omisade v. The Queen (1964) 1 All N.L.R. 233.

The only relaxation in proof of insanity set up by the accused is that the onus on him is not as high as the one placed on the prosecution. The onus on the appellant is on balance of probabilities: Loke v. The State (1985) 1 NWLR (Pt.l) 1; Udofia v. The State (1981) 11-12 S.C.49/61-62. The ipse dixit of the appellant will not be enough; See Stele Noman Makosa v. The State (1969) 1 All NLR 363/366. It would appear that the learned counsel in his reply brief did not appreciate the fact that the evidence of an accused person alone on his mental illness will not be enough even if there is no contrary evidence. The evidence of P.W.2; P.W.3 and P.W.4 was in respect of the time they lived together with the appellant. They couldn’t have reliably and convincingly spoken of 1978 episode when they did not know the appellant. The issue of insanity is a question of fact to be determined by the trial Judge. The learned trial Judge has examined meticulously the evidence before him, and has made some findings of fact which are borne out by the evidence. These findings are set out in the lead judgment. I need not repeat them again. The lower court was right to have affirmed the conviction and sentence. For the above reasons and fuller reasons given by my learned brother, Nnaemeka-Agu, J.S.C., I will also dismiss the appeal. The conviction and sentence are also confirmed.

Appeal dismissed.

3PLR – FRANCIS ASANYA V THE STATE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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