Peter Johnny Loke V. The State (1985)

LawGlobal-Hub Lead Judgment Report

O. COKER, J.S.C 

The appellant, Peter Johnny Loke, was charged with and convicted of the murder of one Kaine Dike (m) on the 3rd day of May, 1978 at Anigbe Farm, in Kwale Division of Bendel State, and sentenced to death. That he killed the deceased was admitted and not disputed. The crux of the appeal is concerned with whether the trial Court properly considered relevant evidence relating to the defence of insanity before it, and whether the Court of appeal which dismissed the appeal, and affirmed his conviction, was right in its judgment that there was no evidence on which the defence could be founded.

The facts of the case may be summarised as follows- The appellant, who described himself as an apprentice tailor, was working in Lagos as a messenger, until sometime in August 1977 when he was brought back to Umukwala because he was sick. A relation named Uzor with whom he lived in Lagos and through whom he secured employment, brought him home sick, he was mad. According to his mother, P.W.4, the nature of the illness was madness. She described his behaviour as follows:

“He was shouting . . . he used to shout and remove his shirt and trousers and go about the town in pants. That was why we concluded that he was mad. His uncle, Olisa Anufe brought a native doctor to treat the accused. By the time of the incident, the accused had not fully recovered. It appeared that he was getting better and that was why I allowed him to go to the farm. I told the police . . . the accused was suffering from madness.”

His brother, P.W.6, with whom he went to the farm on that day testified how three of them proceeded to the farm on the morning of that day, and after working there for sometime, the appellant left him and his other brother for the adjoining road and he heard him saying “nei, nei,” as the accused took his bicycle and rode away. He (witness), saw a man lying on a bicycle. The spot was about seven yards from the hut “nei, nei” in Ukwani language, means “look, look”. The man lying on the bicycle was the headless body of the deceased, Kaine Dike, whom the appellant had beheaded with his matchet. The witness testified that when he returned to their village, Umukwata, in April 1978, following the death of their father, he met the appellant at home in chains, because he was mad and was still sick when he went to the farm that day. He spoke of his mental condition; “His head was still not balanced.” Another prosecution witness, P.W.7, Paul Ilo, also a maternal relation, testified how the appellant trekked to his aunt’s house at Okikwale about 8.00 p.m. on the day of the murder. The aunt (mother of the witness) remarked that the appellant was “going to start it all over again.” The witness then testified that the appellant had not been of normal behaviour before then. In his own words:

“My mother told the accused that he was going to start again because the accused had not been normal. I knew that the accused was not well when about three or four months before this incident, the father of his mother died. I traveled to Umukwata for the ceremonies. There I noticed that the accused was behaving abnormally. He started driving people away.”

In his statement to the Police and his testimony before the Court, the appellant confessed that he chopped off the head of the deceased, whom he had never met before and with whom he had no previous quarrel. It was with one stroke of the matchet that he cut off the head. That was the manner of the killing. His evidence in court and his statement to the police appeared rational, but in part contained material facts which either never existed or are better described as imaginary and illusory.

The trial judge accepted the evidence of P.W.4 that the accused was brought back from Lagos in August 1977, because he had mental insanity. However, he went further to consider section 140(1) of the Evidence Law, Cap. 57 Vol. III Laws of Bendel State 1976, and then stated:

“The evidence of the accused as to how he killed the deceased, Kaine Dike is very clear. It is consistent with what he told the Police in exhibit “A” on that point. As much as the killing was without motive there is nothing to suggest that the account of the killing incidency as given by the accused in exhibit “A” and his evidence in Court is the account of a person who is of unsound mind.”

Later, the trial judge said- “There is evidence which I accepted earlier on, that at sometime in 1977, August, to be precise, the accused suffered from mental illness. There is no evidence that on 3-5-78, when the accused chopped off the head of Kaine Dike that he was suffering from any mental illness the accused does not come within the ambit of section 28 of the Criminal Code of this State.”

He therefore returned a verdict of murder and sentenced him to death by hanging. The point in this appeal is that there was evidence and circumstances, surrounding the killing indicative of insanity and which the trial judge failed to consider.

The appeal against the conviction was dismissed by the Court of Appeal. The Court, in a well considered judgment in which recent authorities on the subject of insanity and delusion were correctly examined and considered, similarly fell into the same error as the trial Judge. In its lead judgment, delivered by Nasir, P., stated inter alia:

“In respect of burden of proof the law is that the appellant has the duty of proving the contrary. The proof that a person is insane is a proof of the contrary. As earlier stated section 27 of the Criminal Code has created the presumption of soundness of mind. This issue also came up for consideration in the case of E. Udofia v. The State (which has just been considered above). On this the Supreme Court held: “Who is to prove the contrary The prosecution has no responsibility either expressly or impliedly to prove that an accused is of unsound mind and/or suffers from delusion. It is the duty of accused; see section 140 of the Evidence Act, Cap. 62 LFN. 1958.”

After stating that he had perused the record of appeal in the light of all the submissions made before the Court, finally came to the decision: