THE STATE VS PASTOR SUNDAY ALFA
Abubakar Datti Yahaya (JCA); Joseph E. Ekanem Justice (JCA); M. Mustapha (JCA);
[Delivered by Abubakar Datti Yahaya, JCA]
This is an appeal against the judgment of the Kogi State High Court, sitting at Okpo, delivered on the 28th day of March 2013 in Charge No.OHC/4C/2012. The appellant was accused in the charge as follows –
“That you, Pastor Sunday Alfa, on or about the 24th day of February, 2012, at Ibalu Iyere village, Okpo in Olamoboro Local Government Area, within the Kogi State Judicial Division, did commit culpable homicide punishable with death, in that you caused the death of one Rose Sunday Alfa by inflicting wounds on her with a cutlass with the intention of causing her death and you thereby committed an offence punishable under section 221(a) of the Penal Code.”
The appellant was found guilty and sentenced to death by hanging.
The facts presented by the prosecution, are that the appellant, on the fateful day of 24th February 2014, left his bedroom and entered the bedroom of his wife, Rose Alfa, the deceased, at about 3:00am and thereafter, inflicted several cuts on her with the use of a cutlass.
She suffered several injuries and died on the way to a hospital, where she was being conveyed to.
In the course of trial, the prosecution called three witnesses to prove its case. It also tendered 12 exhibits – P1 – P12. In his defence, the appellant testified for himself and also called two witnesses. The conviction and sentence of the appellant to death by hanging resulted in to this appeal on three grounds of appeal.
From the three grounds of appeal, Mr. Adehi for the appellant, formulated two issues for determination by this Court. They are:
(i) Whether it was right for the learned trial judge to convict the appellant of the offence of culpable homicide punishable with death despite the failure by the prosecution to prove the said offence beyond reasonable doubt as required by law.
(ii) Whether the conviction and sentence of the appellant by the learned trial judge ought not to be reversed due to the court’s failure to fully consider the relevant defences available to the appellant.
I shall adopt the issues of the appellant in resolving this appeal as they have been based on the grounds of appeal.
ISSUE NO. 1
Whether it was right for the learned trial judge to convict the appellant of the offence of culpable homicide punishable with death despite the failure by the prosecution to prove the said offence beyond reasonable doubt as required by law.
In the instant appeal, the trial judge in his judgment, stated he had conducted a trial within trial in respect of the two confessional statements – Exhibits P11 and P12, in order to test their voluntariness, before admitting them. He held that he had also tested the two confessional statements and had found them positive, direct, unequivocal and pointing to only one direction.
It is true that the two confessional statements are positive, direct and unequivocal. This is so because the appellant in them, was positive and direct, that he was the one who inflicted cutlass wounds on his deceased wife, even though he was mistaking her for a goat. The appellant had the opportunity of committing the offence as he was in the same house with his deceased wife at the material time, even though in different rooms. The cutlass wounds as found on the body of the deceased as can be seen in exhibits P2, P3, P4, P6 and P7 (the photographs) and Exhibit 8, the post-mortem examination are evidence outside the confessional statement which are true as can be tested.
Further, the evidence of PW1, to the effect that he met the deceased in a pool of blood in her bedroom at all times material, is evidence that the confession is consistent with other facts which had been established. In view of all of these, the findings of the trial judge that the two confessional statements are “positive, direct, unequivocal and points to one direction only,” are well founded, and consistent with other facts proved before the court.
There was credible evidence before the trial court to hold that the prosecution had proved that it was the appellant that killed his wife, the deceased.
As to the intention of the appellant, there is evidence that the deceased was attacked by the appellant with a cutlass and several injuries inflicted on her face and thighs. She was so traumatized that she could not even get up. She bled and died on the way to the hospital where she was being conveyed to. It is as clear as daylight, that the nature of the weapon used in inflicting multiple injuries to her vulnerable parts of the body, is a manifest intention of causing her death, by the appellant. The learned trial judge held –
“I have no doubt in mind that using the weapon that the accused used on the deceased with the resultant injuries that the deceased sustained in the process, the accused ought to know that his intentional acts which caused the death of the deceased was done with the knowledge that death or grievous hurt was a probable consequence
of his act.”
It was a deliberate grievous and wicked act and the trial court was right when it held that the appellant committed the act with the knowledge that death or grievous hurt was a probable consequence of his act – GARBA VS. STATE (2000) 4 SCNJ 315.
As a result, I am in total agreement with counsel for the respondent, that the prosecution had proved the guilt of the appellant beyond reasonable doubt. Issue No. 1 is thus answered in favour of the respondent and against the appellant.
ISSUE NO. 2
Whether the conviction and sentence of the appellant by the trial judge ought not to be reversed due to the court’s failure to fully consider the relevant defences available to the appellant.
Now, in offences which carry capital punishment, a trial court is bound to consider all the defences put up by the accused person, express or implicit, in the evidence before the court. It does not matter, that the defence put up is fanciful, doubtful or stupid. The trial court still has the duty to consider them, and show on the record that they have been considered. This is so because anything that is capable of throwing doubt in the mind of the court as to the guilt of the accused person, should be considered to ensure that there is proof beyond reasonable doubt and an innocent person is not made to suffer the harsh sentences involved in capital offences.
The issue is so important that if the trial court fails to consider the defences put up, an appellate court can do so on the evidence on the record – NAMSON VS- STATE (Supra) in the instant appeal, it is true that the appellant in his viva voce evidence in court as DWIII, totally denied committing the offence, and did not know who killed his wife. In such a scenario, there cannot be a defence to what he said he did not commit. The trial judge was right in that extent. However, the evidence before the court is not limited to the testimony of the appellant in court, or that of his daughter DWI.
There is Exhibit P12, the confessional statement, which was in fact relied upon by the trial court in arriving at its decision, that it was the appellant that inflicted the fateful wounds on the body of the deceased leading to her demise. Whatever defence was raised implicitly in Exhibit P12, should have been considered by the trial court. As it did not do so, this court is clothed with the jurisdiction to consider same.
Learned counsel for the appellant has submitted that when the appellant said he saw a goat and cut it, not knowing that it was his wife he was cutting, he was suffering from delusion, a state of mind that is at variance with reality.
The appellant was charged under Section 221(a) of the Penal Code. By Section 51 of the Penal Code, “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”
It is clear here therefore, that insanity is contemplated and even if an insane person was aware of his act, if he was mentally incapable of knowing that his act was wrong or contrary to law, he would still be entitled to the protection accorded by the section. The insanity has to be at the time of committing the act, and it can be permanent or temporary and may be in the form of an insane delusion in respect of a person who is otherwise sane.
It is therefore obvious, that insane delusion is a part of insanity.
In all criminal cases, there is the general presumption that every person is sane with sufficient reasoning and mental faculty, that he is responsible for his crime, at the time he committed it, until the contrary is proved – GUOBADIA VS. STAE (2004) 6 NWLR (Pt. 869) 360 and ANI VS. STATE (2002) 10 NWLR (Pt_ 776) 644. So, when an accused person charged with an offence, pleads insanity or insane delusion, he has the burden to prove before the court, that as at the time of committing the offence, he was so afflicted or that he had such a mental block of mind, that he did not know the nature of the act or did not in fact know that he was doing a wrong thing. The proof is however, on the balance of probabilities, not beyond reasonable doubt -SANUSI VS. STATE (1993) 1 NWLR (Pt. 269) 294 and MADEMU VS. STATE (2001) 9 NWLR (PL 718) 349. He must prove to the court that he lacked the capacity to understand what he was doing, to control his action; and that he lacked the capacity to know that he should not do what he did or make the omission – LOKE VS. STATE (1985) 1 NWLR (Pt.1) 1.
For the court, when it is called upon to make a consideration of the offence of insanity, it ought to consider and appreciate the nature of the crime that was committed, the conduct of the accused person before, during and after the crime and a history of insanity of the accused person or that of his family, It should also consider any medical evidence available – ANI VS. STATE (Supra). However, it is to be noted that it is solely for the judge to determine whether the accused person was indeed insane or suffering from insane delusion i.e. mentally deluded, at the time of committing the offence. So any medical report available to the court, is only a guide. It does not tie and bind the hands of the court; it should make the determination taking all the surrounding circumstances into consideration. Did the accused person prepare for the act? Was the act done in such a way that there was intention or desire to conceal it? Did the accused
person try to avoid being detected or apprehended after he committed the act? When he was eventually arrested, did the accused make false statement? See ANI VS. STATE (Supra) at 661. Besides, courts have to be careful in accepting evidence of insanity tendered by an accused person himself. This is important as all persons would more than likely, tender evidence of insanity in order to get away with crimes
they have committed.
In the instant appeal, learned counsel for the appellant has suggested that a defence of insane delusion had been raised. The appellant said he thought his wife was a goat and he proceeded to attack with a cutlass! The surrounding circumstances make it impossible to accept the story. After eating the meal prepared by his deceased wife, they prayed and he retired to his room. He waited until about 3:00am when he could not be seen. He then armed himself with a lethal weapon – a cutlass and proceeded to the deceased’s room to inflict grievous bodily wounds on her.
Under cross-examination, he said he could distinguish the cry of a goat from that of a human being. So when he inflicted the first blow on his wife and she shouted, he ought to have distinguished her cry from that of a goat. From evidence, the deceased was dealt several cutlass cuts to the face, arm and thighs. So it was not only one blow
that he dealt. He continued to inflict several wounds on her body whilst she was shouting! He therefore clearly heard and knew it was a human being and his wife for that matter, that he was attacking, not a goat. He knew what he was doing and he intentionally continued inflicting fatal bodily injuries on her until he was satisfied that
she would not recover from them.
Furthermore, is it normal for a goat to be in the bedroom of his wife at 3:00am? Even if it was, do you just go and start inflicting cutlass wounds on a goat at that time of the night, when a goat does not present any danger to life? If he had said it was some dangerous animal, perhaps one could fall for it. But a goat! He should have simply tied it and led it outside, but not start cutting it into pieces. After maiming his wife to the stage when
she could not survive, he then afterwards spewed out false stories about thinking he was cutting a goat. His antecedent in arming himself with cutlass and proceeding to the deceased’s room at 3:00am, and his conduct after the act, of running away to the house of one John Ameh to avoid arrest, show a sane mind who knew what he was doing at the time he was committing the nefarious act, and who had clearly evinced the intention of killing his wife in a painful manner. He has not presented the court with any evidence of insane delusion and the surrounding circumstances are not in his favour. They show a sane but a murderous and vile person who had no thought for his wife and the children she bore.
The defence of insane delusion obliquely raised is incredible and not worth the paper it was written upon. I hold that the defence is not available to the appellant as he has failed to prove same, on the balance of probabilities.
Apart from defence of insane delusion, it may also appear from exhibit P12, the confessional statement, that the appellant was setting up a defence of mistake of fact, as he mistook his wife for a goat. By Section 222(1) of the Penal Code, “Culpable homicide is not punishable with death if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of any other person by mistake or accident”
If an accused person acted honestly and with reasonable belief, of a given fact, he can set up the defence of mistake provided that what he believed was true, would have justified his act. The defence is such that it will exculpate him of the crime. The story he put up, must be true, cogent and capable of being believed. It must not be a sham story such that it is incredible or an insult to the intelligence of an average person – AIGUOKHON VS. STATE (2004) 7NWLR (Pt. 873) 565. Honest belief on the part of the accused person, must disclose good faith and a complete absence of negligence or
recklessness in the belief of things at the time of committing the act. The surrounding circumstances must disclose reasonably, that his mind would be affected as to induce that belief.
In the instant appeal, the appellant said he found a goat in the room of his wife at around 3:00am. An average person with average intelligence, would expect the appellant to wonder and question its presence at that time. He is expected to have asked his wife, what the goat was doing at that time in her room. And if the presence of the goat in the room at that time was not acceptable to him, it was simply
a question of taking it out and tying it up. He did not do any of these things. He proceeded to inflict cuts on the “goat”. He did not deal one blow to the goat. He dealt several blows, and all the time his wife was shouting that he was killing her. One shout from a wife who has stayed married to him for such a time that four children had been born, is enough for him to recognize her cry of anguish and stop.
He did not. He continued to rain her with blows with the cutlass in several vulnerable parts of her body at 3:00am in the morning. She later died on the way to the hospital.
The story of mistaking his wife for a goat is as incredible as it is an insult to the intelligence of an average person. It was a concocted story fabricated to deceive in order to escape culpability. No reasonable tribunal would believe that tale! He had clearly formed the intention of killing his wife that night He prepared himself, hid his evil intention behind prayers, waited until that unholy hour and proceeded with a cutlass to her room to actuate his intention by dealing multiple fatal blows to her body.
What a despicable act. He did not mistake his wife for a goat. He intended to kill her and he did so. The tissues of lies he weaved have collapsed. I do not believe that he mistook her for a goat. Even if he did, his action was reckless and his mind was not affected to the extent that such belief was induced. The defence of mistake is therefore not available to him. Issue No. 2 is thus answered in favour of the respondent and against the appellant.
The result is that this appeal is totally devoid of any merit and it fails. It is dismissed. I confirm the conviction and sentence of the appellant of culpable homicide punishable with death by hanging, as contained in the judgment of the Kogi High Court sitting at Okpo, delivered on the 28th of March, 2013-counsel Mathew Ohoja for the appellant.
Mrs. R. A. Alfa DPP Kogi State Ministry of Justice, with H. E, Yusuf DDPP and D. E. Abu SLO for the respondent.
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