Court name
Court of Appeal
Case number
A 472 of 2013

Pastor Alfa v S (A 472 of 2013) [2016] NGCA 70 (07 March 2016);

Law report citations
Media neutral citation
[2016] NGCA 70

 

 
 
IN THE COURT OF APPEAL
Holden at Abuja
 

 

Between

APPELLANT

PASTOR SUNDAY ALFA

and

RESPONDENT

THE STATE

 
JUDGEMENT

[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 tier 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 twelve 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. In keeping with the Rules of this Court, the record of appeal was transmitted to this Court on the 26/8/2013. The appellant filed his brief, settled by learned counsel Sir Steve Adehi, on the 3/10/13. The respondent filed its brief on the 17/2/14 but was deemed properly filed and served on the 27/1/16.
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.
For the respondent, the two issues identified by R. A. Alfa, are -
(i)Whether from the totality of the evidence adduced at the trial court the prosecution has proved the case against the appellant beyond reasonable doubt as required by law.
(ii)Whether it could be said that the appellant put up any defence worthy of consideration by the trial court.
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 his submission on this issue, learned counsel for the appellant, opined that it is the duty of the prosecution to prove the case against the accused person beyond reasonable doubt, even where the accused person in his statement to the police, admits committing the offence, referring to AMEH VS. STATE (1978) 6 - 7 SC 27 and OMONGA VS. STATE (2006) ALL FWLR (Pt. 306) 930 at 954. He referred to the ingredients of the offence of culpable homicide punishable with death as enumerated in TUNDE ADAVA VS. STATE Vol. 11 N.C.C. 191 at 198 and 205 -206

Learned counsel admitted that there is no dispute in the death of the deceased Mrs. Rose Alfa, on 24/1/12 but that there is no proof, that it was the appellant that caused the death. He criticised the reliance by the trial judge, on the evidence of PW1 which, though relevant and admissible under section 40 of the Evidence Act 2011, was not tested as to its veracity by independent corroborative evidence, he said. Counsel argued that the1 trial judge only relied on exhibits P11 and P12, the confessional statements, and totally failed to consider the statement of the appellant made on the 24th of February 2012 (Exhibit P9), where the appellant stated that he did not kill his wife. He further submitted that the two confessional statements -Exhibits P11 and  P12 - were made under questionable circumstances, and so, the trial judge should not have attached weight to them, the way he did, especially as the evidence of DWI and DWIII was to the contrary. Further, that the two exhibits P11 and P12 being doubtful, cannot corroborate the evidence of PW1, he said.

As regards the evidence of PW1, [earned counsel argued that since the Gago and other villagers were present when the deceased narrated what happened, the Gago should have been called to prove the offence since he was a relevant witness. The failure to call this Gago (the village head) was fatal to the case of the prosecution, he argued. There was thus no proof, that it was
the appellant who killed the deceased.

For the State, learned counsel referred to section 135(1) and (2) of the Evidence Act 2011 and the cases of AMALA VS. STATE (2004) 6 SCNJ 79 at 88; STATE VS. SQUADRON LEADER OLATUNJI (2003) 2 SCNJ 65; OBZAKOR VS. STATE (2002) 6 SCNJ 193 at 202, to submit that the onus is always on the prosecution to prove its case in criminal cases, beyond reasonable doubt. Counsel cited section 221(a) of the Penal Code and enumerated the ingredients of the offence which must be proved beyond reasonable doubt. On death of the deceased, learned counsel referred to the evidence of PW1, PW2, DWI and DW3 and submitted that there is proof of the death of the deceased. The evidence of PW1 was relied upon to the prosecution creditably established that it was the that caused the death of the deceased on the fateful
show the appellant night Further, that exhibits P11 and P12 confirm the evidence of
PW1 which is unchallenged and uncontroverted, proving that it was the appellant who caused the death of the deceased.

On the failure to call the Gago (village head) to testify, argued that the prosecution is not bound to call a host of counsel argued that the prosecurion witnessed as the evidence of one witness if believed, is sufficient to prove the case beyond reasonable doubt - AKPABIO VS. STATE (1994) 7-8 SCNJ (Pt 111) 429 at 458; IDIOK VS. STATE (2006) 12 NWLR (Pt. 993) 1 at 29; NWAEZE VS. STATE (1996) 2 NWLR (Pt. 428) 1 at 11, 15 and NKEBISI VS. STATE (2010) 5 NWLR (Pt. 1188) 471 at 491 - 493.
The findings of the trial judge at page 74 lines 3 - 8 of the record ;was referred to, showing that the evidence of PW1 stands unchallenged. The prosecution had thus proved that it was the appellant that killed the deceased, it was submitted.

It is the law that there are three ingredients of the offence of culpable homicide punishable with death, under section 221 of f the Penal Code. They are –
(1) the death of a human being has taken place (i.e. the deceased had died);
(2) the death of the deceased was caused by the accused person; and
(3) the act or omission of the accused person which caused the death of the deceased, was done intentionally to cause the death or that the accused person knew that death would be the probable, and not likely consequence of his act.

See MAIGARI VS. STATE (2010) 16 NWLR (Pt. 1220) 439 at 466 - 467; ADEKUNLE VS. STATE (2006) 14 NWLR (Pt. 1000) at 736- All the three ingredients of the offence must be proved in order to sustain a conviction, as the absence of even one of them will result in a discharge and acquittal ~ ADAVAH VS STATE (2007) 2 NCC 191 at 193 and UWAGBOE VS. STATE (2007) 6 NWLR (Pt. 1031) 606.
4 It is the prosecution that has the burden throughout the trial, of proving the guilt of the accused person beyond reasonable doubt, as the burden never shifts, even if the statement of the accused person to the police, discloses an admission of the offence - OCHI VS. STATE (2007) 5 NWLR (Pt. 1027) 214 and AMALA VS. STATE (supra).
How does the prosecution go about discharging this duty? It has the option of proving the ingredients of the offence by presenting witnesses to the crime, confessional statement of the accused person (if available) and by circumstantial evidence. In this regard, the circumstantial evidence must be of the nature, inferences drawn in the totality of the case, strongly
points only to the guilt of the accused person - DURWODE VS. STATE (2000) 12 SC (Pt. 1) 1.

In the instant appeal, it is not controverted as both parties agree, that Mrs. Rose Alfa, the wife of the appellant, had died on the 24th of February 2012. The first ingredient of the offence had thus been established.
At page 4 of the brief of the appellant, learned counsel submitted that -
"The Learned Trial Judge in convicting the Appellant, placed reliance on the contents of Exhibits P11 and P12 together with the oral evidence of PWl, Constable Zakari Mohammed,"
The question is whether the learned trial judge was right in doing so.
Exhibits P11 and P12 are the confessional statements of the appellant. What is a confession in this regard? Section 28 of the Evidence Act 2011 provides -
"A confession is an admission made at any time by a person charged with a crime,  stating or suggesting the inference   that  he   committed that crime."
By section 29(1) of the Evidence Act 2011, when a confession is relevant to any matter in issue in the case, then it may be tendered as evidence against the maker.
An accused person can be convicted on his confessional statement alone, without corroboration. However, this is subject to the confessional statement being free and voluntary, direct, positive, duly made and satisfactorily proved to the satisfaction of the court as to its truthfulness. See NWAEZE VS. STATE (1996) 2 NWLR (Pt. 428) 1; SO LOLA VS. STATE (2005) 11 NWLR (Pt- 937) 460; OCHE VS. STATE (2007) 5 NWLR (Pt. 1027) 214 and MOHAMMED VS. STATE (2007) 11 NWLR (Pt. 1045) 303 at 320. In order to properly ascertain as to whether a confessional statement is true or not, it is some evidence outside the confessional statement itself that is looked at - NWAEBONYI VS. STATE (1994) 5 NWLR (Pt. 343) 130.

And because the truthfulness of the confessional statement is paramount, the courts have evolved some tests which will help to determine its truth and whether the court can convict on a confessional statement that has been retracted - DAWA VS. STATE (1980) 8 - 11 SC 236; OBIERHO VS. STATE (2005) 5 NWLR (Pt. 919) 644 and ONYENYE VS, STATE (2012) 15 NWLR (Pt. 1324) 586, 619. The tests include -
(a) Is there any evidence outside the confessional statement to show that it is true?
(b) Was it corroborated?
(c) Are the facts contained in the confessional statement true as can be tested?

(d) Did the accused person have the opportunity of committing the offence?
(e) Was the confession possible?
(f) Was the confession consistent with other facts which had been ascertained?
Apart from the truthfulness of a confessional statement, its voluntariness must also be ascertained, all in a bid to avoid convicting an innocent person. So once an accused person alleges that his confessional statement was not voluntary, then the court must conduct a trial-within trial, to ascertain the position before it can even be admitted in evidence.

In the instant appeal, the trial judge at page 72 of the record, 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. At page 73, 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.

Learned counsel for the appellant has attacked the trial judge for not considering exhibit P9. Well this statement is not a confessional statement but a denial of having any hand in the murder of the deceased. Since the trial judge had believed the two confessional statements, exhibit P9 was of no moment and failure to consider it or give it any weight, had not affected adversely, the trial of the appellant. I have myself looked at exhibit P9. In it, the appellant only said that two men entered his room to tell him that they were sent to kill his wife. He never said that they killed his wife or that she was killed or at what time. It was not a statement that established anything at all, in respect of the issue at hand.

Learned counsel for the appellant has also complained about the reliance on the evidence of PW1, by the trial court, on the ground that although it is relevant and admissible under section 40 of the Evidence Act 2011, its veracity has not been tested. I am unable to agree with this line of reasoning. The evidence led before the trial court is that the deceased was severely macheted in her room. The evidence of PW1 to the effect that he saw the deceased in a pool of blood in her room, is a clear indication that he was telling the truth. The trial judge also found his evidence unchallenged and uncontroverted, which go to authenticate his testimony.
As earlier stated, it is the duty of the prosecution to prove its case beyond reasonable doubt. It therefore controls the nature of evidence it intends to present to the court in the discharge of this onerous duty. It is not subject to the control and direction of any body and if only one credible witness will be called to prove its case, the defence has no say in it - IJIOFOR VS. STATE (2001) 9 NWLR (Pt. 718) 371; NKEB1SI VS. STATE (2010) 5 NWLR (Pt. 1188) 471 at 493. This is because credibility does not depend on the number of witnesses called. Here, the fact that the Gago (the village head) had not been called to give evidence, is not fatal to the case of the prosecution, as the court had found the confessional statements to be direct, positive and unequivocal, pointing inevitably, to the guilt of the appellant. Further, the evidence of PW1 was found to be unchallenged and uncontradicted.
A trial court has the advantage of having evidence led before it. It thus, is in a vintage position of seeing, hearing and observing the demeanour of witnesses that testify before it Its findings of facts in that regard cannot be lightly jettisoned and the rebuttable presumption is that they are right - ADEYEMO VS. STATE (2015) 16 NWLR (Pt 1485) 311 at 334-335.

The learned trial judge did not believe the evidence of DWI, the daughter of the appellant. He said he "refused to be swayed by her dramatization in court which was characterized by sobbing from beginning to the end of her testimony." He saw her and observed her demeanour. This Court is not in a position to fault his findings. Furthermore, her evidence is different in a material particular from that of her father, the appellant. In her evidence at page 49 of the record, she said -
".....my father went to his bedroom while we the children went with our I mother to her bedroom, we went to sleep unknown person came inside and killed our mother. In that process our father ran to our own bedroom and saw our mother lying down......"
But in his evidence at page 54 of the record, the appellant said that he was -
"sleeping in my room when my daughter ran to me to inform me that my wife was killed by unknown person...,."

If he locked his door before sleeping on that fateful night as he said, how did his daughter get access to his room to inform him of the death of his wife? The evidence of both DWI and DWIII are contrary to the confessional statements believed by the trial court. The trial judge was therefore entitled to reject not only the evidence of DWI but also of her father DWIII.
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.

It was submitted for the appellant, that a trial court has a duty to consider every defence put forward by the accused person, in a criminal trial, when they arose from evidence before the court. The case of OLOWOYO VS. STATE (2012) 17 NWLR (Pt. 1329) 346 at 377 was referred to. Learned counsel then argued that Exhibit P12 shows that the appellant said he saw a goat and he proceeded to cut it, not knowing that it was his wife. He was therefore not within the perception of reality and so could not know or understand the import of his action, since he was in a state of delusion. This being so, the trial court ought to have considered the defence of insane delusion and return a verdict of culpable homicide not punishable with death. Although the trial court did not so consider, this court can do so - NAMSON VS STATE (1993) 5 NWLR (Pt. 292) 129 at 143. He urged us to do so.
The respondent conceded on the authority of NDUKWE VS. STATE (2009) 37 NSCQR 425 at 494 - 495 and EDOHO VS. STATE (2010) 4 SCNJ 100 at 117 - 118, that a trial court must consider any defence put up by an accused person, no matter how stupid it appears to be, In the instant appeal, counsel submitted that the trial court had infact considered the totality of the evidence adduced by the prosecution and the defence before arriving at the conclusion that the appellant did not raise any defence to the charge against him. Page 75 lines 1 - 27, page 76 lines 1-26 and page 77 lines 1 - 8 of the record were referred to. The appellant had in his viva voce evidence, completely denied committing the crime and so there was no issue of raising any defence in that vein, it was argued.

Learned counsel for the respondent further argued that if insane delusion was raised in Exhibit P12, the onus is on the appellant to prove same as same cannot be implied from the evidence since everyman is presumed to be sane and in control of his senses, until the contrary is proved - EDOHO VS, STATE (Supra) at 119 - 120. Since the appellant has not proved the contrary, the defence cannot be available to him it was argued.
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 infact 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 infact 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 for 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, cogeant 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) 7 NWLR (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 reign 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-

CA/A/472C/2013
JOSEPH E. EKANEM, JCA
I had the privilege of reading in advance the judgment just delivered by my learned brother. A. D. Yahaya, JCA. I am in complete agreement with the reasoning and conclusion therein.
The appellant deliberately inflicted several machete cuts on his wife, the deceased leading to her death. The story put up by the appellant about seeing and inflicting machete cuts on a goat is the figment of his imagination aimed at escaping the consequences of his Mephistophelian conduct,
I also dismiss the appeal for being devoid of merit. 

CA/A/472C/2013

MOHAMMED MUSTAPHA, JCA.
I had the privilege of reading before now in draft form the lead judgment just delivered by my learned brother, A-D- Yahaya, JCA.
I agree with the conclusion that the appeal is devoid of merit and  deserves  to fail;   same  is accordingly dismissed by me for Sacking in merit. I also affirm the judgment of the Kogi High Court sitting at Okpo, delivered on the 28th day 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.