In The Supreme Court of Nigeria

On Friday, the 14th day of December 1990

SC 120/1989

Between

Donatus Ndu       .......            Appellant

And

The State  .......              Respondents

Judgment of the Court

Delivered by

Akpata, J.S.C.

On Thursday the 4th day of October.1990, the appeal of Donatus Ndu against his conviction and sentence to death was dismissed by me. I indicated then that I would give my reasons for the dismissal of the appeal today. I now proceed to do so

It is generally accepted that the hearing of addresses from counsel be-fore delivery of judgment i~ an important exercise in judicial proceedings in our courts. The entire proceedings may be declared a nullity if a counsel is denied the right to address the court at the close of evidence. The main issue that calls for a decision in this appeal is whether the refusal by the trial court to grant counsel adjournment to enable him prepare his address is necessarily a denial of his right of address. if by the refusal counsel could not address the court.

The appellant, Donatus Ndu, was charged upon an information with the murder of one Jernilatu Shoetan, a girl. The offence punishable under section 319 of the Criminal Code Law. Cap.319 ,Laws of Lagos State was said to have been committed on or about the 15th day of December. 1979 at Iganmu, Lagos State. The accused was also charged with the offences of (a) Arson, (b) Assault with intent to prevent arrest and (c) Wilful and unlawful damage to property, offences said to have been committed at the same time

and place.

At the address stage of the proceedings the three additional counts were withdrawn by the prosecution when attention was drawn by the court to section 339 of the Criminal Procedure Law of Lagos State regarding the impropriety of joining the said three counts with a charge of murder. The said three counts were therefore struck out and the accused discharged in respect of the three.

The prosecution called a total often witnesses. Three witnesses, including the accused, testified for the defence. At the close of the case for the defence on 11th November, 1982, learned counsel for the defence refused to address the court after his application for adjournment to another date had been turned down by the court. The reason for the refusal and its justification or otherwise will be adverted to later in this judgment. Only counsel for the State addressed the court.

In his judgment, after a meticulous review of the evidence adduced before him and after due consideration of the defences open to the accused along with the applicable laws, the learned trial Judge, Okuribido J., came to the conclusion that the prosecution had proved beyond reasonable doubt that the accused on the 16th day of December, 1979 with intent to do grievous harm to the deceased unlawfully killed her. The learned trial Judge was satisfied that the accused must be deemed to have intended the death of the deceased. He accordingly found the accused guilty of murdering the deceased contrary to section 316(2) of the Criminal Code Law. an offence punishable under section 319(1) of the same law. The accused was therefore sentenced to death by hanging.

Dissatisfied with the judgment, the accused appealed to the court of appeal on a number of grounds. One of the issues canvassed before the court of appeal was the question of the refusal of the learned trial Judge to grant the  application of the defence counsel for an adjournment to enable him prepare his address. The defence contended that the refusal amounted to a denial of fair hearing to the appellant.

In a reserved judgment. (concurred in by Ademola and Awogu, JJ.C.A.) Babalakin, J.C.A. was satisfied that the appellant was not prejudiced by the refusal to grant an adjournment for address in that all the defences open to the appellant on the fact of the case were adequately considered by the learned trial Judge and that the principle of fair hearing entrenched in the 1979 Constitution was not breached. He also considered other issues raised by the grounds of appeal and found the complaints of the appellant baseless. The court of appeal accordingly dismissed the appeal and affirmed the conviction and sentence passed on the appellant by the trial court.

Still dissatisfied. the accused has now appealed to this court on a number of grounds. For one to fully appreciate the reasonableness or uselessness of the complaints of the appellant, it is necessary to set out the relevant facts of the case placed before the trial court before drawing attention to the grounds of appeal and/or issues for determination in the appeal.

 The appellant was at the time material to this case a tenant at No.2A Adeleye Street. Orile Iganmu. His landlord was Tajudeen Adisa Shoetan, P.W.1., who lived at No.2 Adeleyc Street adjacent to No.2A. The deceased lived with P.W. I. her uncle. Going by the prosecution's case, on the night of 15th December, 1979 when P.W. 1 was walking along the corridor of No. 2A, the appellant blew some black powdery substance on him. This incident A led to an altercation between them. The appellant slapped P.W.1 and drew out a dagger. PW.1 accompanied by P.W.3, Oluwole Olawunmi, an accounts Clerk residing also at No.2 Adeleye Street reported the incident at Iponri Police Station.

Two police officers went to the scene in company of PW.1 and P.W.3. At the scene, on knocking at the door of appellant and was told he was being  invited to the police station, the appellant opened the door came out armed with a dagger and stabbed Corporal Adetunji, P.W.4 on the shoulder. Corporal Olabisi and P.W.4 sped away as they were pursued by the appellant. The appellant returned to his room, later came out armed with a dagger and carrying a pestle and a bottle of kerosine. With the pestle, he damaged P.W. l's car No.LAD 3897 and set it on fire after sprinkling kerosine on it. He damaged another car with registration No.OY 5713 W. He apparently returned to his room. While PW.3 and Jemilatu, the deceased, were trying to put out the fire, the appellant appeared at the scene still armed with a dagger and threatened to kill "all of you tonight."

The girl Jemilatu ran into PW. l's house where she lived. The appellant went after her, forced the door open, entered and the helpless girl was heard  shouting "help me help me Baba Chinedu (meaning the appellant) has entered. Baba Chinedu has stabbed me on the neck twice." PW.3 who had run into the boys quarters could see the accused stabbing Jemilatu because the door to the room had been forced open by the accused. According to him "as Jemilatu wanted to get out I saw the accused stab her by the neck and blood was gushing out The deceased Jemilatu fell down in a pool of her own blood, but the accused continued to stabbed her all over the body." The ac- F cused waked out of the house. Jemilatu was rushed to the Lagos University Teaching Hospital by PW. 1 and PW.3 where she died in the theatre.

Dr. Victor Emordi, PW.2, of the Department of Morbid Anatomy, University of Lagos, who was also a Consultant with Lagos University Teaching Hospital, performed post mortem examination on the body of the deceased on 18/12/79. He gave cause of death as due to excessive loss of blood arising from many cuts one of which caused internal bleeding. He stated that he had no cause to disagree that the age of the girl was twelve years as stated on the case note. His preliminary report, Exhibit C which gave the age of the deceased as twenty three years was the opinion of the police.

It was however the case for the defence as testified to by the accused  himself that the whole incident started when at about 11 p.m. of 15/12179 he heard PW. 1 voicing out some incantations and mentioning the name of three of his (accused) children. This infuriated him. When he looked out he saw PW. 1 opposite his room. He reminded PW. 1 that he had warned him previously not to use incantation on his children. Pw. 1 then held his two hands and started to knock his (accused) head against the wall. People came to the H scene and separated them.He the appellant returned to his room and locked himself in.

Later at about 2 a.m. he heard PW.1 knock at his door and calling him. Because he refused to open the door, it was forced opened. He saw two po1ice men enter his room. One of them hit him with a detached part of the broken door, inflicting injury on his head. Blood gushed out. When he raised an alarm the police men ran away. In the process of running away one of the policemen inadvertently hit his head against a protruding nail on the damaged door. He at no time chased the police men. He, the accused, subsequently fell unconscious when he had bled profusely from the injury one of  the police men inflicted on him.

After the police men had left the scene five persons, including PW. 1 and Jemilatu (the deceased), jointly attacked him at the back of his house. It was during the assault on him that he wounded the deceased. He would not know with what object he hit the deceased, but it was something he picked from the ground. He hit her with the object in self defence and out of annoyance. As the deceased ran away the others who had joined in fighting  him ran towards her. He the appellant then made for the police station.

The trial Judge believed in the main the evidence adduced by prosecution witnesses. He was satisfied that the appellant set the car of PW. 1 on fire and that it was when PW.3 and the deceased were trying to put out the fire that the accused emerged and chased the deceased into the parlour of PW. 1 where he stabbed her many times. The learned trial Judge was firmly of the view that the only reason why the accused chased and stabbed the deceased was because he saw her and PW.3 trying to prevent PW.1's car from being completely destroyed by the fire he (the accused) had set it on.

He regarded the evidence of the accused that the deceased joined in beating him as "a wicked lie and an after-thought of the accused's own invention in his attempt to justify his act and presenting a defence of self-defence E and/or of provocation." He was of the view that the death of the deceased was the direct result of the barbaric act of the accused. He rejected the possible defence of self defence and provocation.

The Court of Appeal held that the findings of fact arrived at by the learned trial Judge could not be successfully impeached and that the defences open to the accused were well considered by the trial court and were  rightly rejected.

Four grounds of appeal were filed against the judgment of the Court of Appeal. The first brief filed in this court on behalf of the appe!lant by Chief Ugboma was based on the original grounds. A respondent's brief was also filed. However when Chief Ohwovoriole took over the conduct of the case of the appellant, he prepared a fresh brief based on four "amended grounds of appeal." The respondent had to file a supplementary brief to meet the new issues raised by the appellant's "amended brief of argument." In this court the issues formulated were based on the four "amended grounds of appeal." The amended grounds shorn of the copious and numerous particulars supplied read:

(1)     The learned Justices of the Court of Appeal erred in law or misdirected themselves on the facts when they upheld the procedure adopted by the learned trial Judge whereby he based his judgment on the address of the State Counsel without giving the appellant or his Counsel an opportunity to be heard and thereby occasioned substantial mis-carriage of justice.

(2)     The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held that:

Age of the deceased is not a material fact to be proved in a case of murder. Whether you kill an adult or an infant you are guilty under the provision of section 308 of Criminal Code Law quoted above Whereas there existed uncontradicted evidence that the identity of the deceased was not established beyond reasonable doubt and thereby occasioned miscarriage of justice.

(3)     The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they affirmed the conviction and sentence passed on the Appellant despite the fundamental conflicting and contradicting evidence of the prosecution wit nesses that were not resolved which would have ensured to the benefit of the Appellant and thereby occasioned miscarriage of justice.

(4)     The learned Justice of the Court of Appeal erred in law when they held that the defence of insanity was not available to the Appellant when in fact the defence raised the issue in the testimony of the Appellant but was not canvassed as there was no address by the defence Counsel and thereby occasioned miscarriage of justice.

The following four issues were identified in the Appellant's brief as arising from the grounds of appeal filed. They read:

1.     Whether the failure of the learned trial Judge to afford an opportunity to the Appellant's Counsel for an adjournment at the close of the defence's case so that he can address the Court has denied the Appellant of the right to fair hearing which denial has occasioned a miscarriage of justice.

2.     Whether serious doubts exist because of the failure of the prosecution to properly establish the identity of the deceased. 

3.     Whether the conviction and sentence of death against the Appellant can be sustained having regards to the conflicts and contradictions in the case of the prosecution.

4.     Whether the lower courts adequately considered the defence of insanity available to the Appellant in the circumstances of this case.

The issues formulated in the respondent's two briefs relevant to the amended grounds of appeal are identical with the four issues identified in the appellant's brief filed by Chief Ohwovoriole though differently worded. I need not set them out.

The first question that arises therefore is whether the Court of Appeal in holding that the refusal of the learned trial Judge to grant an adjournment to another date to enable the appellant's counsel address him was not prejudicial to the appellant.

When the prosecution closed its case on 4/7/81 proceedings were adjourned to 14/9/81, at the request of the defence counsel. On 14/9/81 learned counsel for the accused disclosed to the court that "children and relatives of the accused have still not paid for their services since they instructed the counsel. They have made promises only when they attend court but thereafter they never bothered to see the counsel in chambers or in their residence......................... He therefore applied for a further adjournment. His application was granted and the defence adjourned to 22/12/81.

On 22/12/81 counsel applied still for a further adjournment on the B ground that his instructions had still not been fulfilled. Counsel however promised that if the court grant his application for adjournment he would continue with the case on the next adjourned date whether or not instructions had been perfected. In adjourning further hearing to 20~/82, the court however warned that it would be the last adjournment it would grant at the instance of the defence.

On 21/1/82 defence counsel appeared in court and said he was unwell and that he had only come to court because of the undertaking he had given. He applied for an adjournment. The learned trial Judge adjourned to 24/2/ 82 "with the greatest reluctance............ as the court cannot compel a counsel who allege that he is unwell to proceed, even in the peculiar circumstances of this case.

On 24/2/82 the defence opened with the accused testifying. After the accused and DW.2 had testified, Chief Ugboma, learned counsel for the defence, applied yet for an adjournment to enable him call one of the children of the accused who had not been subpoenaed to testify. The accommodating learned trial Judge observed that "but for the fact that the accused is facing a capital charge, I would not have granted an adjournment for a witness who has not been subpoenaed. Case is adjourned to 4/5/82.

On 4/5/82 the defence counsel was absent. He wrote for an adjournment. In adjourning the case, much against his will, the learned trial Judge observed that the application was a disservice to the accused, but that in view of the seriousness of the charge he would not ask the accused to proceed with his defence. The case was adjourned to 29/6/82.

If one may observe. there was no indication from learned counsel whether or not his instructions had been perfected. It is therefore not clear whether his requests for adjoumments, following his undertaking to the court, were a strategy to enable him collect his fees before the conclusion of the case.

Apparently, the court did not sit on 29/6/82. There is nothing in the record of appeal to indicate what transpired on that day when the case came on for hearing on 12/10/82 counsel for the accused was absent. He again wrote for adjournment. The accommodating trial Judge adjourned the case again "for the fact that the accused is facing a charge which attracts a sentence of death." The case was adjourned to 28/10/82.

On 28/10/82 PW.3 Nicolas Ndu, one of the children of the accused testified. He was not an eye- witness of the incident leading to the death of the deceased Jemilatu. He was obviously brought to testify to the effect that when he was informed of the event of that night, he went to his father's house where, according to him, he observed that his father sustained injury on his left side and was bleeding. He also stated that he and the other children of the accused were arrested when the police could not locate their father. On their arrival at the police station they were released because the accused had given himself up.

At the conclusion of his evidence, the defence closed its case and Chief Ughoma was called upon to address the court. In what had become characteristic of him, he asked for adjournment. He claimed he was unable to prepare his address because he arrived Lagos the previous night and that there was an electricity failure. He also stated that he had not brought to court the authorities he intended to cite in support of the case for the defence. There was no intimation whether or not his instructions had been perfected.

The learned trial Judge rule thus on counsel's application for adjournment:

Every opportunity and all concessions possible had been given to the defence counsel as can be borne out by the record of these proceedings to enable him to present the defence of the accused with all diligence and responsibility up to the point of seeing to it that his instructions are perfected which should not be the concern of the court ordinarily. But I have gone that length because the accused is facing a capital offence for which his life is at stake. If the learned counsel has thought of addressing the court this morning knowing the type of evidence remaining for him to be led, he would have come here this morning prepared. I have had occasion once or twice to comment on the defence counsel's attitude in this case. This application is another instance of such attitude. If the learned counsel is not prepared to address the court this morning, I shall ask the prosecuting counsel to address me if he is so willing and thereafter adjourn for judgment. The application for adjournment is refused.

At this stage Chief Ugboma then asked for one hour to collect his authorities and the case was stood down till 12.05 p.m. On resumption at 12.05 p.m. learned counsel informed the court that he would not be able to address it because he would not be able to "satisfy himself." The learned trial judge made it clear that he would not rescind his decision to go on with the case. Chief Ugboma then sought leave to withdraw from the case because he had not prepared the address.

The learned trial Judge either by design or omission did not rule on counsel's application to withdraw. There is nothing on the record to suggest that Chief Ugboma was granted leave to withdraw from the case. Learned (3 counsel for the prosecution then took the stage and applied to withdraw counts 2 to 4 of the charge. The application to withdraw the counts was granted and the relevant counts were struck out. Counsel for the prosecution then addressed the court. At the conclusion of his address judgment was reserved.

In contending that failure to grant the request of counsel for adjournment to another date to enable him prepare his address amounted to not giving the appellant a fair hearing, Chief Ohwovoriole, who was not counsel for the appellant both in the trial court and Court of Appeal, relied on the case of Obodo V. Olomu and Anor. (1987) 3 NWLR (Part 59)111 where this court, per Belgore, J.S.C., in his leading judgment had this to say:

The procedure whereby the parties to a case at the conclusion of evidence are to address the Court on the evidence before the Court, enumerating the issues canvassed and adverting to the law governing the issues has taken such a root in our superior Courts that denial of it cannot be regarded as mere procedural irregularity. Just as a party is not compellable to give evidence to prove his case so is a party not compellable to address the Court where he has the right so to do. But when the right exists, a party must not be denied that right and denial of the right may render the proceeding a nullity if miscarriage of justice is occasioned.

In the same case Obaseki, J.S.C., at page 123 - 124 observed thus:

The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognised by the Constitution. It is to be given before judgment is delivered. See Section 258(1) of the Constitution of the Federal Republic of Nigeria 1979. Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its assistance to the Judge in arriving at a just and proper decision, though dependent on the quality of address, cannot be denied. The absence of an address can tilt the balance of the learned Judge's judgment just as much as the delivery of an address after conclusion of evidence can. It is not for this Court to speculate on what the effect of plaintiff's counsel's address would have been on the learned trial Judge's judgment as the Court of Appeal has done. Until the learned trial Judge's mind is exposed to an address, no one can say what effect it will have on his mind.

The fact of denial of opportunity to deliver the address has robbed the learned trial Judge the benefit the address would have had on his mind in arriving at a just decision.

The facts of the case under reference relevant to this appeal are these. At the close of the cases of the parties, the learned trial Judge ordered parties to send their addresses to him in writing, and he adjourned to the 2nd of August, 1983 for judgment. Only counsel for the defendant submitted his written address to the trial court. The written submission of the defendant was however not served on plaintiff's counsel. Plaintiff's counsel had no opportunity of replying to the defendant's submission as provided by the High Court (Civil Procedure) Rules. The trial judge dismissed the plaintiff's claim. The Court of Appeal also dismissed the plaintiff's appeal on the

grounds that: (a) The plaintiff/appellant disobeyed the order of the Court by failing to submit a written address as directed by the court and therefore could not blame the court for relying on the submission of the defendant's counsel. (b) That the judgment of the trial court would still have been the same if the plaintiff or his counsel had submitted a written reply.

On a further appeal to this court the appeal was allowed on the ground that the plaintiff or his counsel was denied his right to reply to the submission of the defendant or his counsel as provided by the relevant rules of court. The order of the trial Judge for a written address, would probably have been proper, that is, if written addresses were permissible, if he had made an order for service of the defendant's address on the plaintiff and an order as to when the plaintiff was to file his reply address. A person who has the right to reply cannot effectively reply without hearing the oral address or being served with the written address of his opponent.

The incisive reasoning of Obaseki and Belgore, JJ.S,C., in the case under reference would only be applicable in this case if counsel for appellant was in fact denied his right of addressing the court and not that he waived the right to do so.

It is patently clear that learned counsel for the appellant was called upon to address the court after he had closed the case for the defence. It therefore seems to me misleading, to put it mildly, to submit that the defence was not afforded opportunity to address the court. Counsel, was given the opportunity to do so on 28/10/82. 

The right of address given to a party or his counsel does not confer on him the right to do so at his pleasure. A party or counsel may forfeit or be taken to waive his right of address if he fails to address when called upon by the Court to do so at the close of evidence.

On 12/12/81, ten months before the date he was called upon to address the court, counsel had given the court the assurance that he would play his role as counsel faithfully, if the court granted him an adjournment on that day regardless of any default thereafter by his client or his relations to fulfil their obligation to him as counsel. Adjournment was granted. There after, there were still applications from learned counsel for adjournment for one reason or another. One of such adjoumments was asked for by a letter on 4/5/82. The learned trial Judge noted that the application for adjournment was a disservice to the accused.

It is to be emphasized that the accused and DW.2 testified on 24/2/82 and that learned counsel had only one more witness to call. The nature of the evidence to be given by that witness was known to counsel. In effect between 24/2/82 and. 28/10/82, a period of eight clear months, learned counsel had ample time to prepare his address taking into account the evidence expected from DW.3, one of the children of the accused. As the learned trial Judge rightly put it, counsel knew "the type of evidence remaining for him to be led.

In the circumstances of this case, the excuse of learned counsel- that there was electricity failure the previous day which prevented him from preparing his address or that he had not brought his authorities to court would appear to be too fanciful and farcical to warrant any consideration for granting adjournment. Even then the learned trial Judge, in his accommodating stance, bending over backwards, granted appellant's counsel adjournment for one hour which he himself subsequently prayed for to prepare his address.

It was obvious to the learned trial Judge that the application for adjournment was to delay proceedings. He made the point that he had occasions "to comment on the defence counsel's attitude in this case. This application is another instance of such attitude." A trial court in exercising its discretion as to whether to grant an adjournment always bears in mind that it is the duty of the court to minimise costs of litigation and to see to it that justice is not unnecessarily delayed. The court will refuse an application by either party for an adjournment of the hearing if it is of the opinion that the application was made only for purposes of delaying the proceedings. (See Omega v. The State (1965) NMLR 58).

The importance of a court receiving addresses from counsel cannot be over emphasized. Obaseki, J.S.C., made this plain in Obodo V. Olomu (supra). A good address may provide a judge a clear mental opinion to perceive either the tenuousness in what had appeared impregnable or to see through the veneer and discover the hard core of a party's case.

There are however occasions when address from counsel are a matter of formality. They may not diminish or add to the strength or weakness in a party's case. The facts and the law applicable in such cases speak loudly for themselves to require address. It was in this light this Court, Per Oputa, J.S.C., in Niger Construction Limited V. Okugbeni (1987)4 NWLR (Pt.67) 787 at page 792 alluded to the fact that:

Addresses are design to assist the Court. When, as in this case, the facts are straightforward and in the main not in dispute, the

trial Judge would be free to dispense with final addresses. Cases  are normally not decided on addresses but on credible evidence.

No amount of brilliance in a final speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue.

The facts of this case are so straight forward and the law involved so commonplace that the failure of the learned counsel for the appellant to address the court not by itself have occasioned any injustice, particularly as the learned trial judge considered the possible defences open to the appellant. In effect if the learned trial Judge erred in his judgment, it would not be as a result of the refusal or failure of counsel to exercise his right of address, but because of the judge's own short coming.

The next issue is whether the prosecution established that Jemilatu Shoetan in fact died as a result of the injuries inflicted on her by the appellant. This issue was argued along with the third issue relating to alleged conflicts and contradictions in the case of the prosecution. Learned counsel for the appellant argued that it was not the identity of the victim only that was not established but that the prosecution also failed to show that Jemilatu Shoetan was dead and that it was her body PW.2, the doctor, performed the post mortem examination on. He made the point that the doctor PW.2 relied on the case note for the purpose of identifying Jemilatu Shoetan at the hospital where her age was recorded as 12 years whereas appropriate age of 23 years shown on Exhibit C. was the opinion of the police. He however pointed out that it was PW. 1 who told the police, PW.10, that Jemilatu Shoetan was aged 23 years.

Learned Counsel urged us to hold that the trial court and the Court of Appeal were wrong to accept the evidence of PW.2 that he perform the post mortem examination on Jemilatu Shoetan when he was not precise as to the correct age of the body on which he performed the post mortem. Learned counsel argued that even if Jemilatu was indeed dead the possibility that it was not her body that PW.2 performed the post mortem examination can-not be ruled out as there was never any identification of the corpse of Jemilatu to PW.2 for purpose of the post mortem examination. According to counsel the age and proper identity of the deceased are very material facts to be proved in establishing a charge of murder.

Babalakin, J .C.A., in his leading judgment in the Court of Appeal resolved the issue thus:

The appellant admitted both in his statement and evidence before the Court that he inflicted injury on the deceased whom he called Jemilatu and that she was bleeding from the said injury.

The said Jemilatu was the one living with PW. 1 at No.2 Adeleye Street, Sari lganmu that was wounded. There were no two Jemilatu living at the said No. 2 Adeleye Street, Sari Iganmu; it was this only Jemilatu that both PW. 1 and PW.3 rushed to Lagos University Teaching Hospital (LUTH) as a resuit of the wounds inflicted on her by the appellant. It was the same Jemilatu that later died in the Hospital. It was on this same Jemilatu that PW.2 performed post-mortem examination and both his report and the report of Coroner gave details of the wound sustained by the deceased. These agree with the evidence about the stabbing of the deceased given by PW.1 and PW.3....................

whether you say the deceased was aged 12 or 23 years; it is the one and only Jemilatu of 2 Adeleye Street, Sari lganmu living with PW.1 that died as a result of injury inflicted on her by the appellant.

I agree with his reasoning in the main.

In his evidence PW.3 who saw the accused stab the deceased and wlio was one of those who conveyed the deceased to the hospital after she had been stabbed by the appellant testified thus:

In the car on our way to the hospital Jemilatu was already gasping. At one stage she said "daddy" and breathed down heavily. When we arrived at the Lagos University Teaching Hospital the nurses helped us to carry Jernilatu into the theatre and I followed while P.W. 1 remained outside crying. At the theatre three doctors were called one after the other and they all said "no way." At last she was certified dead.

Jemilatu was pronounced dead in the presence of PW.3. There can be no better evidence in the circumstances of this case that Jemilatu died as aresuIt of the injuries inflicted on her by the appellant. It is true that there is no evidence that anyone identified the corpse of Jemilatu to the doctor, PW.2, who performed the post mortem examination. P'W.2 however said that he "saw the body of Jemilatu Shoetan and performed post mortem examination on the body." His evidence was to the effect that there were numerous wounds on the neck and other parts of the body and that the death of the deceased was caused by excessive loss of blood due to "multiple partly penetrating cuts or wounds one of which caused internal bleeding." The nature of the injuries inflicted on Jemilatu as shown and testified to by PW .3 conforms with the findings of the doctor, PW.2. The evidence of PW. 1, the uncle of the deceased, put it beyond doubt that she died and was buried. He stated in his evidence that after the post mortem examination he was given a warrant to "bury the corpse of my niece. She was buried on 18th December, 1979.

The discrepancy as to the age of the deceased is highly immaterial in the circumstances of this case. In the recent case of Enewoh V. The State (1990) 4 NWLR (Pt.145) 469 page 482, the point was made by this court that:

if there are facts from which it can be inferred that the corpse examined by the doctor was that of the deceased, the evidence of the person, dead or alive, said to have identified the corpse is not indispensable. Indeed a conviction for murder can be made without the recovery of the dead body if there is positive evidence that the deceased has been killed. In effect the need for anyone to identify the body of a deceased to a doctor is not a sine qua non in all murder cases. See Edim v. The State (1972) 4 S.C.160.

In the same case, that is Enewoh V. The State, at the Court of Appeal stage, reported in (1989)5 NWLR (Pt.119) 98, Uwaifo, J.C.A., identified a number of ways evidence of identity could come. He reasoned thus at page 108, and I agree with him:

It could be given by the person who did the identification of the corpse to the doctor which itself will be tied to the evidence of the doctor. Admittedly, this is the normal and commonest way. It could be evidence of some peculiarities known about the deceased's physical features or found or associated with his or her body from which identity could hardly be mistaken. It could also be that from the nature of the available evidence there is reliable nexus of some sort between the injuries received by the deceased as given by those who saw them when or after he received them and  those described by the doctor on performing the autopsy. Or indeed, it could well be that it was accepted throughout the trial that no issue of mistaken identity could be raised or

did arise.

I find no other contradiction which was not satisfactorily resolved by the leamed trial Judge and the Court of Appeal. To say that the identity of the deceased Jemilatu was not established beyond reasonable doubt in the circumstances of this case cannot be correct.

The last and final issue is whether the lower courts adequately considered the defence of insanity available to the appellant. Another way of putting it, and as rightly formulated in the respondent's supplementary brief, is whether there was sufficient evidence before the trial court to sustain the defence of insanity.

It was the submission of learned counsel for the appellant that going by the evidence of prosecution witnesses, the appellant must have been insane. He referred to the following pieces of evidence, amongst others, as establishing insanity:

PW1:     As I was walking along the corridor out of No.2A I saw the accused came (sic) out of his room and blew powder like charm on me. When I asked him why he had done he slapped me and drew a dagger and I ran out." "The accused opened the door and came out with a dagger with which he pursued myself and the two Constables." "Also when I came with C.I.D. men I found the house burnt. There was sign that the fire was set in Mr. Ogunyinka's room. I found my car set ablaze and the glasses smashed. I saw Mr. Ogunyinka's car windscreen shattered.

PW.3:     The 1st PW and the accused were exchanging words infront of the accused's room. Other co-tenants who were at the scene were asking the accused to cool down. At the time they were exchanging words the body of the accused was shaking. The shaking of the body indicated that the accused was in a fighting mood. He was angry.

PW.5:     Suddenly the accused opened the door of his room and brought out a dagger and a cutlass in his hands. I saw the two Policemen ran (sic) and the accused pursued one of them and stabbed him. When the Policemen had escaped, the accused turned back and pursued everyone around with his dagger and cutlass. I ran to the front of the building. Later the accused came out and set fire on the roof of a shop erected in front of our house. I saw him pour (sic) kerosine in empty cartons and threw it on the shop.

The law is that the burden of proving insanity rests on the accused person. Of course the burden of proof which he has to discharge is a light one. It is proof by a preponderance of evidence or on a balance of probability (see Karimu V. The State (1989)1 NWLR (Pt.96) 124. The defence of insanity is a special plea which must be positively put forward by way of defence and evidence should be adduced in support. It is not something to be inferred from the prosecution's case. It is not a matter which calls for speculation or

guess work from the totality of the evidence adduced by the prosecution. A court will not brand an accused person as insane without sufficient proof of such insanity.

In the case of Sanusi V. The State (1984) 10 S.C.166, this Court by Aniagolu, J.S.C. at page 177 observed:

Defence counsel must always work hard to present before the court proof which could include among others, positive acts of the accused before and after the deed complained of, evidence of a doctor who examined and watched the accused over a period of time as to his mental state, evidence of relations who know the accused intimately relating to his behaviour and the change which had come upon him, the medical history of the family which could indicate hereditary mental affliction or abnormality, and such other facts and circumstances which will help the trial Judge come to the conclusion that the burden of proof of insanity, placed by the Criminal Code, on the defence, has been amply discharged....

Also in Onyekwe V. The State (1988)1 NWLR (Pt.72) 565 at 575, Oputa, J.S.C. also detailed some of the types of evidence defence counsel seeking to establish insanity as a defence would naturally like to adduce as follows:

1.    Evidence as to the past history of the accused.

2.    Evidence as to his conduct immediately preceding the killing of the deceased.

3.     Evidence from Prison Warders who had custody of the accused and looked after him during his trial.

4.     Evidence from Medical Officer and/or Psychiatrists who examined the accused.

5.     Evidence of relatives about the general behaviour of the accused and the reputation he enjoyed for sanity or insanity in his

neighbourhood.

6.     Evidence showing that insanity appears in the family history of the accused.

As already stated in this judgment, the defence at the trial court called two other witnesses besides the appellant himself. P.W.2 was one Stephen Ojo, a Senior Mortuary Supervisor at Lagos University Teaching Hospital who testified to the effect that police men on investigation were usually allowed to take photographs of corpses in the mortuary. He said nothing more. He did not testify as to the mental state of the appellant. P.W.3 was the son of the accused. I have already adverted to the substance of his evidence. He said nothing to suggest that his father was at any time mentally unbalanced.

What is more, defence counsel challenged strenuously by way of cross-examination the correctness of the pieces of evidence learned counsel now seeks to rely on as evidence of insanity which the learned trial Judge and the Justices of the Court of Appeal ought to have regarded as establishing insanity.

The ground of appeal raising the issue of insanity in my view is frivolous in the extreme. On the whole, the appeal lacks merit. It is for the reasons and conclusion stated above in respect of the issues identified in this appeal that I dismissed on 4th October, 1990 the appeal of Donatus Ndu against his conviction and sentence to death. The judgment of the Court of Appeal is upheld.

Judgment delivered by

Obaseki. J.S.C.

I dismissed this appeal against conviction and sentence of death by the appellant on the 4th day of October, 1990 after hearing the oral submissions of counsel and reading the briefs filed by the parties together with the record of proceedings and judgment in the court below. I then reserved the Reasons for my judgment till today and I now proceed to give them.

The appellant was tried and convicted on a charge of murder. He was alleged to have on 15th December, 1979 murdered one Jemilatu Shoetan (f) contrary to section 319 of the Criminal Code, Cap.31 Laws of Lagos State, A 1973. In addition, he also stood trial for the offence of (a) arson and (b) with intent to prevent arrest and (c) wilful and unlawful damage to property.

The three counts charging the three additional offences were later withdrawn and were accordingly struck out.

At the conclusion of the evidence led by the parties and their witnesses, the learned trial Judge invited learned counsel to the accused to address him. He instead applied for adjournment to enable him prepare the address. The B learned trial Judge then gave him a few hours to prepare the address. When the court resumed hearing, he was invited to address the court. He hesitated and sat down. The learned trial judge then invited the Director of Public Prosecutions to address and he did address the court.

The attitude of defence counsel from the time the prosecution closed its case has been one showing an unwillingness to proceed with the defence. The frequency of applications for adjournments was sickening and unbecoming of counsel instructed to conduct the defence of an accused person charged with murder.

Murder is a capital offence and once a trial of an accused person has opened, any defence counsel in the proceedings is not only bound to appear D but also bound to perform his duty to his client the failure of his client or inability of his client to pay his fee~ not withstanding.

The law is well settled that in all trial for capital offences when the accused person is unable to retain counsel for want of funds, the judge should assign him a counsel at State expense. A counsel should therefore not be heard to apply for adjournment as an instrument to pressurise the relations of the accused person to run helter skelter looking for funds to complete the fees charged by counsel. A counsel should not therefore also hold up the trial on this account.

In the instant appeal. the learned trial Judge should not have tolerated the delays caused by counsel on grounds other than grounds of ill-health.

Turning to the refusal to address the court, it is optional for counsel to address or not to address court at the conclusion of the hearing of evidence. F If he does address the court, he summarises the evidence, emphasises the salient points and makes his submissions on them citing legal authorities if any in support.

His failure to perform this task does not vitiate the proceedings al though the performance of this duty will be of immense assistance to the judge during the consideration of the case for judgment. 

At the hearing of this appeal, learned counsel for the appellant submitted that the refusal of the learned trial Judge to grant an adjournment at the request of counsel to enable him prepare his address amounts to a denial of fair hearing.

My learned brother, Akpata, J.S.C. has treated this issue adequately in his Reasons for Judgment which I had the advantage of readiitg in advance H and with which I am in complete agreement. However, I am, for emphasis, adding the following few comment. Fair hearing strictly involves compliance with the Rules of Natural Justice the twin pillars of which are 'audi aheram purtem meaning 'Hear the other party' and 'nemojudex in causasua' meaning 'never be a judge in your own cause'.

Both sides were heard by the learned trial Judge who is an independent and impartial arbiter. There has therefore been no breach of the Rules of Natural Justice and no breach of Fair Hearing under section 33(1) and (4) of the 1979 Constitution.

The failure of learned counsel to perform his duty of addressing the court has not obstructed the learned trial Judge in the judicial task of considering the case of the defence in his judgment. It has not affected his ability to consider the evidence, make findings of fact, enunciate the law applicable, examine every defence open to the accused/appellant in the light of the evidence adduced by the prosecution witnesses and the accused/appellant and his witnesses, apply the law and give his verdict. No doubt the learned trial Judge would have been assisted in this task if counsel had elected to address him. See Obodo V. Olomu and Anor. (1987)3 NWLR (Pt.59) 111, 123-124.

It was for the above Reasons and the Reasons ably set out in the Reasons for Judgment by my learned brother, Akpata, J.5.C. that I dismissed the appeal.

Judgment delivered by

Uwais. J.S.C.

 This appeal was dismissed on the 4th day of October, 1990 and I reserved the giving of my reasons for the dismissal till today.

I now give the reasons. I have had the opportunity of reading in draft the reasons given by my learned brother Akpata, J.S.C. I entirely agree with the reasons. I therefore adopt them as mine. I have no desire to say more.

Judgment delivered by

Belgore. J.S.C.

There is a world of difference between the case now at hand and the case of Obodo V. Olomu (1987) 3 N.W.L.R. (Pt.59) 111. Whereas in the latter case the appellant was not given an opportunity to make final address in that the written address of the other side was not

served on him. In the present case the appellant was availed all the privileges  of defending himself despite constant impediment by his counsel. The judgment of my learned brother, Akpata, J.S.C., is replete with constant quest for adjournment and the opportunity given to counsel to present his address. On this occassion, the counsel certainly was creating difficulty for the court, a conduct that should not be encouraged by any court.

Further, the judgment of the trial court dispassionately considered all the evidence - for the prosecution and for the defence - and despite the opportunity of appeal in the Court of Appeal and again in this court, the appellant has not indicated what would have been contained in the address he was not opportuned to give.

The appellant was never denied the opportunity of presenting his address, rather his counsel chose not to present it. There is no indication up to now of what the address would contain that has not surfaced in the grounds of appeal and written briefs in the Court of Appeal and in this court, and as guch I find no evidence of miscarriage of justice in view of the overwhelming evidence of the prosecution which the trial court believed and convicted upon and which was upheld by the Court of Appeal.

It was for the foregoing reasons and fuller reasons in the reasons for judgment of my learned brother, Akpata, J.S.C. that I dismissed this appeal on 4th day of October, 1990 and upheld the decision of the Court of Appeal which affirmed the conviction and sentence of the trial High Court.

Judgment delivered by

Nnaemeka-Agu, J.S.C.

 On the 4th of October, 1990, I dismissed the appeal of Donatus Ndu summarily after I had read the record of appeal and the briefs filed by the parties and considered the arguments of both parties to the appeal. I stated that I would give the reasons for my judgment today. I now do so.

This is a further appeal from the judgment of the Court of Appeal, Lagos Division, which confirmed the appellant's conviction of murder by the High Court.

My learned brother, Akpata, J.S.C., has stated the facts of the case leading to this appeal. I do not intend to repeat them. I shall confine myself to a summary reference to such facts as can make the short comments I wish to make meaningful. 

Furthermore, the reasoning and conclusions of my learned brother on the last three issues agree with mine so much that I do not intend to repeat them. In sum, I shall confine my comments to the first issue which is:

1.     Whether the failure of the learned trial Judge to afford an opportunity to the Appellant's Counsel for an adjournment at the close of the defence's case so that he can address the Court has denied the Appellant of the right to fair hearing which denial has occasioned a miscarriage of justice.

For a proper appreciation of this issue it is helpful to recapitulate the relevant facts. In a High Court of Lagos State, the appellant was on the 4th of November, 1980 charged with the murder of a girl, Jemilatu Shoetan, an offence which carries capital punishment. The offence was alleged to have been committed on the 15th of December, 1979. Chief P. C. Ughoma appeared for his defence. There is not before us any complaint of any unreasonable delay by the prosecution throughout the trial. It was when the prosecution closed its case on the 4th of July, 1981 that the whole drama which led to this appeal began. On that day learned counsel for the appellant applied for an adjournment to enable him get ahead with the defence. The learned trial Judge, Okuribido, J., adjourned the case to the 14th of September, 1981. On that date, learned counsel would not get ahead with the defence because, according to him, his fees had not been paid. The case was adjourned to the 22nd of December, 1981. The same reason was given for seeking a further adjournment on the 22nd of December, 1981. In reluctantly adjourning the case to January, 21, 1982 the learned trial Judge made it clear that that was to be the last adjournment. On the adjourned date, learned counsel changed gear. Although he was present in court, he claimed to be unwell. Though, there was no medical evidence in support of his claim, the learned Judge adjourned "with the greatest reluctance." However, on the 24th of February, 1982, that is over seven months since the prosecution closed its case, the accused and his first witness testified. After this, learned counsel for the appellant applied for a further adjournment. The reason given was that the 2nd witness who, as it turned out as the facts of the case unfolded themselves, was a child of the accused who was not an eye witness to the incident and had not been subpoenaed to testify, was not in court. Again the learned trial Judge adjourned most reluctantly solely on the ground that the accused was facing a capital charge. The case was adjourned to the 4th of May, 1982. On that day, appellant's counsel was absent and applied in writing for an adjournment. The court, after observing that the adjournment was a disservice to the accused, still had to adjourn because of the seriousness of the charge. For reasons not disclosed the case could not go on on the next adjourned date, 29th June, 1982. When the case came up again on the 12th of October, 1982, Chief Ugboma again applied for an adjournment which was again reluctantly granted because of the seriousness of the charge. Resumed on the 28th of October, 1982, learned counsel called P.W.3, Nicholas Ndu, one of the children of the accused to testify. I must confess that I cannot see the materiality of his evidence that could justify the delay of the proceedings for eight months.

At any rate, after the testimony of D.W.3, (Nicholas~Ndu) Chief Ugboma closed the case for the defence. Then another phase of the unending drama began. Learned counsel for the defence applied for yet another adjournment for him to address the court. His reason was that he had travelled outside Lagos and came back the previous day to find there was blackout in Lagos. So he did not prepare his address. Also, even though from the record, he knew, as counsel for the defence, that he had only one short witness to call, he said he had not brought with him the authorities he intended to cite. Pressed by the Court, he applied for a one-hour stand-down of the case to enable him gather the authorities. This was granted by the court. When the case resumed learned counsel again changed gear and applied for an adjournment to another day. In refusing the application, the learned trial Judge recalled all the opportunities and concessions given to the defence in the case, mainly because of the seriousness of the charge. Then counsel applied for permission to withdraw from the case.

At this point, I must pause to make an observation. There is nothing on record to show that Chief Ugboma was discharged or that he withdrew from further participation in the proceedings. Nor, indeed, has the accuracy of the record been impugned or challenged in any way. I am therefore bound by the record as it stands. On this view which I have taken, the conclusion I feel bound to reach is that when his application for an adjournment was over-ruled and a subsequent application to withdraw from the proceedings was not granted, he stayed in court all through the proceedings, listened to the learned counsel for the prosecution address the court, but did not address the court himself. Viewed from this perspective the proper issue should have been on the result and effect of such a situation rather than the first issue as framed above. However; as this was not the issue as argued before us, I shall decide this appeal on the cases of both parties before us.

Adverting to the first issue as framed, it is clearly not true, from the facts I have outlined above, that the learned trial Judge failed to "afford an opportunity to the Appellant's counsel for an adjournment at the close of the defence's case" so that he could address the Court. He was given every opportunity, but he decided not to take it. In point of fact, he abused it. To that intent, I must point out that the very essence of fair hearing under section 33 of the Constitution of 1979 is a hearing which is fair to both parties to the suit, be they plaintiffs or defendants or prosecution and defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather it imposes an ambidexterous standard of justice in which the court must be fair to both sides to the conflict. It appears clear to me from the facts I have outlined above that the court was not only very fair, but also extremely patient and indulging to the appellant because of, as the court stated, the seriousness of the charge. The appellant cannot now be heard to complain of not having been given an opportunity to address the court. His counsel had deliberately, unreasonably and irrationally delayed the proceedings for a period of nearly eighteen months since the close of the case for the prosecution, for one unreasonable excuse or the other. Counsel came in that morning knowing that he had only one short and unimportant witness to call, and that he would be required by law to address the court after that. He would not address the court. Rather, he applied for yet another adjournment which application was, rightly in my view, refused. He has not appealed against the refusal of the court to adjourn the address. In my opinion, his failure to appeal against the order refusing him an adjournment makes his complaint of not being given the opportunity to address the court illogical.

It is true that when a person is facing a capital charge in court, every opportunity ought to be given to him to be actually and effectively represented by counsel and that an adjournment ought to be normally granted to him to ensure that that is the case:

see Galos Hirad & Anor. v. R. (P.C.) (1944)2 All E.R. 50;

Lateef Saka v. The State (1981) 11-12 S.C.65;

Michael Udo Udo v. The State (1988) 3 N.W.L.R. (Pt.82) 316

Gokpa V. Inspector-General of Police (1961) All N.L.R. 423. 

But this need to adjourn in order to meet the ends of justice does not entitle any counsel to hold the court to ransom, as was clearly the case in the instant case.

This brings me to the conduct of the learned counsel for the appellant in the High Court. By every stretch, it leaves very much to be desired. He obviously decided to frustrate the proceedings in the trial before the court at every turn. Now he wants to cash in on the fact that the court, after exercising what amounts to the patience of a saint, decided to call off his ill4ounded bluff; he must make his refusal to address the court, after full opportunity so to do, an issue ensuring to the benefit of the appellant. This should not be. In saying so, I must bear in mind the fact that certain rights conferred by the Constitution can be expressly or impliedly waived: see Ariori V. Elemo  (1983)1 SCNLR 1, at pp. 18-19. The right of a person to address a court is one personal to himself and is not one in the sole control of the court. In the circumstances of this case, it would be a mockery of justice to say that the appeal rnust be allowed because the learned counsel for the appellant, due to his own fault. refused to address the court when given full opportunity to do so. I must remember that the right to address the court is ordinarily a right exercisable by the appellant through the same counsel who was responsible for the default. In deciding what attitude I should adopt to the situation, I wish to recall and adopt the opinion of the Supreme Court of the United States when it declared in Daniels v. Tearney (1980)102 U.S. 415, at p.422.

A nascent democracy begins ill if it begins by countenancing bad faith and disregarding the pledged word given after full knowledge and if it upholds claims which involve a mockery in judicial admirnstration and a violation of the plainest principle of reason and justice.

I am satisfied that the appellant had full opportunity for his counsel to address the court but that he refused to accept it; that his counsel's behaviour throughout the trial and in particular on the date when he refused to address the court was a deliberate attempt to delay the proceedings; and that the learned Judge's conduct of the case was completely without blemish. In this respect I wish to reiterate what this court stated in the case of Udo V. The State (1988) 3 N.W.L.R. (Pt.82) 316. at pp.334-335 I laid down the guiding principles thus:

1.     Legal representation in capital cases is guaranteed by both theConstitution and the Criminal Procedure Act and Laws of this country. For this reason a counsel who has been briefed or assigned either by the Court or Legal Aid to represent a person standing trial on a capital charge shall be present in court, throughout the bearing and conduct the case from the beginning to the end with all the seriousness and professional skill at his disposal.

2.    No more important protessional duty.. ..falls to members of the Nigerian Bar than that of representing persons charged with murder (and other capital offences) and once counsel accepts instructions in such a case he is expected to give it priority to all other engagements, however important or lucrative they maybe. (See Queen V. Uzorukwu (1958) 3 F.S.C.14); (1958) S.C.N.L.R.319.

3.    Only in the most exceptional cases should a brief for the defence of a person charged with a capital offence be returned when once accepted and then only if sufficient time remains for another counsel to master the case. In no circumstances should a brief for the defence in murder (and other capital) cases be 'devilled'. (See: The Queen V. Uzorukwu (1958) 3 F.S.C.14); (1958) S.C.N.L.R.319.

4.     I may refer to Practice Note reported in (1964) 2 All E.R.400 which read "Counsel who has accepted dock brief and finds that he has conflicting commitments, still incurs the obligation to represent the accused unless, on his application to the court, the court relieves him of this obligation. In such circumstances he may expect the court to be helpful. This statement does not detract from the right of counsel to demur to being selected for a dock brief, if he is of opinion that an existing commitment prevents him from undertaking the brief.

5.     I should recommend it to the General Council of the Bar thatthey take time to draw up some more guiding rules on this most important matter for the legal profession so as to lay down definite rules to guide counsel as to when they can reject a brief in a capital charge, what is required of counsel who accepts such a Bbrief, what course a counsel who finds on his hands two such cases fixed on the same day take, and so on.

I should leave this aspect of the matter here, meantime. I would commend this for application to counsel briefed or assigned to defend persons charged with capital offences, mutatis mutandis.',

No doubt, the Constitution has given to a person charged with an offence carrying a capital punishment a right to counsel and a right to an adjournment during the proceedings when failure to adjourn will result in injustice against the accused person. And, as this Court has stated before, the addresses of counsel are an essential part of the trial. That can be the only possible inference from the fact that the Constitution itself used the conclusion of addresses as a very important determinant of the time limit for delivery of judgments under section 258 of the Constitution of 1979. See Obodo v. Olomu & Anor. (1987) 3 N.W.L.R. (Pt.59) 111, at p. 123-124. But it is fundamental in our system that the law will never protect any person against his own deliberate default or misdeed. Once it is abundantly clear, as was the case here, that the application to adjourn the case in order to enable counsel prepare and deliver his address was made mala fide, or simply, in view of so many concessions and indulgences already granted, to deliberately hold the court to ransom, the same party cannot be heard to successfully complain.

For the above reasons and the fuller reasons contained in the Reasons For judgment of my learned brother, Akpata, J.S.C. which I adopt as my own, I dismissed the appeal on the 4th of October, 1990.1 have now given my reasons.

Counsel

Chief P. C. Ugboma.    …….           For the Appellant

Titi Duggan -  Senior State Counsel   ……..     For the Respondent 

Ministry of Justice - Lagos State