Nwoye Igweze Onyekwe V. The State (1988)

LawGlobal-Hub Lead Judgment Report

AGBAJE, J.S.C. 

The appellant, Nwoye Igweze Onyekwe, was charged with the murder of one Prescillia Onyeonwu on the 10th day of May, 1981 at Ifite Division of the High Court of Justice of Anambra State contrary to Section 319(1) of the Criminal Code. He was tried by Achi-Kanu, J. sitting at an Onitsha High Court. In his judgment dated 12th day of December, 1984, the learned trial Judge found the appellant guilty as charged.

It will appear that at the trial court there was no dispute that the deceased died at the hands of the appellant under circumstances which, barring the success of any defence or defences open to the appellant, would amount to murder of the deceased by the appellant. The defence of the appellant to the offence with which he was charged was that of insanity. The learned trial Judge in a well considered judgment reviewed this defence of insanity and rejected it. So as I have just said, he convicted the appellant of murder and then sentenced him to death.

The appellant being dissatisfied with his conviction and sentence appealed against it to the Court of Appeal, Enugu Division. The grounds of appeal against the judgment of the learned trial Judge were as follows:

1. “The decision of the court is unreasonable, unwarranted and/or cannot be supported having regard to the weight of the evidence.
2. That at the time I committed the offence, I was so insane as not to be criminally responsible.
3. That the punishment is excessive.”

Counsel for the appellant in the lower court, one Mr. Chiekwu Onoliefo, filed in that court a document which he described as the appellant’s brief of argument pursuant to the Court of Appeal Rules 1981 as amended by the Court of Appeal (Amendment) Rules 1984. In the document counsel for the appellant, Mr. Onoliefo, having stated the offence of which the appellant was convicted and having stated the facts of the case in the trial Court and having referred to the grounds of appeal filed by the appellant concluded as follows:-

“After due consideration of the judgment and the appellant’s grounds of appeal, I have nothing to urge in favour of the appellant.”

This document has been heavily criticized by counsel for the appellant in this court Senator N.N. Annah. It was his submission that the document could not pass as a brief properly so called having regard to the relevant provisions of the Court of Appeal Rules as to what should be contained in a brief of arguments.

In the lower court there was a respondent’s brief of argument. The brief too followed the trend of the brief of arguments of the appellant in that court. However in the concluding part of that brief the learned State Counsel who filed it dealt with the defence of insanity raised in the trial court and the evidence in support of it and the law on the point and then said:

“I agree there is nothing to urge in favour of the appellant and the appeal should be dismissed.”

It was the submission of Senator Annah, counsel for the appellant in this court that this document too could not pass for a brief of argument for the reasons I have stated earlier on in this judgment.

When the appellant’s appeal came up for hearing before the Court of Appeal Enugu Division, Coram Aseme, Olatawura. Katsina-Alu, JJ.C.A., Olatawura J.C.A. in his lead judgment to which Aseme, and Katsina-Alu JJ .CA agreed dismissed the appellant’s appeal. In his lead judgment the learned Justice of the Court of Appeal held as follows:

“Briefs were filed and exchanged. Learned Counsel for the appellant and the respondent had nothing to urge in favour of the appellant.

The facts as found by the learned trial Judge are unassailable and are overwhelming. The only issues seriously canvassed before the lower court was the question of insanity. The learned trial Judge has given adequate consideration to this defence and has also rightly rejected it. It was a defence that was raised with little or no evidence in support. In fact, it was contrived.”

The appellant was not satisfied with the judgment of Court of Appeal and has lodged a further appeal to this court. In this court briefs of argument for both sides were filed. In the appellant’s brief of argument, the issues arising for determination in this court were identified as follows:

1. “Whether the trial Court and the Court of Appeal properly evaluated the evidence of the Appellant in his defence of insanity.
2. Whether the trial Court and the Court of Appeal considered all the elements of the defence of insanity as stipulated in S.28 of the Criminal Code and laid down in Effiong Udofia v. The State (1981) 11-12 SC 47 at pages 60 – 61.
3. Whether the Court of Appeal could have determined the appeal when there was not before it any brief recognised by the Rules and there was no application for a waiver of the Rules or a comment by the Court of Appeal that what were before it were no briefs but that notwithstanding it would hear the appeal.”

The respondent’s brief of argument confined itself to the issues identified that the appellant in his brief of argument as arising for determination in the appeal.

I would take issue 3 first which questions the propriety of the Court of Appeal in determining the appellant’s appeal before it on the documents filed by counsel for both parties in that court purporting to be briefs of argument. It would appear that the contention of counsel for the appellant is that the said documents were defective because of non-compliance with the provisions of the Court of Appeal Rules 1981 as amended by Court of Appeal (Amendment Rules) 1984 which require that the appellant’s brief of argument shall contain the appellant’s view of the issues arising for determination in the appeal and his arguments and conclusions on those issues. There can be no doubt that counsel for the appellant is right in his criticism of the brief of arguments filed by counsel for the appellant in the lower court. Because of the defects in the document filed by both sides as briefs of argument in the lower court and because the lower court appeared to have treated the said documents as proper briefs in its judgment, counsel for the appellant has submitted to us that the lower court did not properly direct their minds to the defence of insanity of the appellant and, this being so, counsel urged this court to allow the appellant’s appeal against the judgment of the Court of Appeal and send the appeal back to that court for a rehearing of the appeal after proper briefs shall have been filed. Counsel for the respondent in his brief of argument drew our attention to the following Provisions Order 6 Rule 11 of the Court of Appeal Rules 1981 as amended by Court of Appeal (Amendment) Rules 1984:

“The Court may, where it considers the circumstances of an appeal to be exceptional, or where the hearing of an appeal ought to be accelerated in the interest of justice, waive compliance with the provisions of this Order in so far as they relate to the preparation and filing of briefs of arguments; either wholly or in part or reduce the time limits specified in this Order, to such extent as the Court may deem reasonable in the circumstances of the case.”

Counsel then submitted that non-compliance with the provisions of the Rules of the Court of Appeal as to filing of briefs will not necessarily prevent that Court from dealing with an appeal. In other words it was counsel’s submissions that the lower court could in the interest of justice waive compliance with the said provisions. Counsel for the appellant in his submissions in the appellant’s brief of argument has made the point that in so far as there was no express waiver of the relevant rules of court, it cannot be said that in the instant case the lower court had waived non-compliance with the rules of court in question.

It appears to me that counsel for the appellant seems to have overlooked the point that in the lower court, counsel for the respondent did not take any objection to the document filed as brief of argument by counsel for the appellant in that court. In fact counsel treated it as being regular. The Court of Appeal in its Judgment treated the briefs of arguments filed on both sides as being regular. In the circumstances I do not see how it can now be effectively argued that any irregularities in the briefs of argument filed in the lower court had not been waived albeit impliedly in that court.

There is also this aspect of the submissions of counsel for the appellant on the point I am now considering.

Counsel is here now complaining about the indulgence which the lower court must have granted his client the appellant. The indulgence came into being as a result of the defective brief of argument filed on behalf of appellant in the court below. Notwithstanding the defect in the brief, the lower court treated it as proper and allowed it to be used in the prosecution of the appellant’s appeal which, as I just said, must have been an indulgence, Needless to say that the act of counsel for the appellant in so far as the brief filed by him in the lower court is concerned was the act of the appellant. So for the appellant to now turn round now and complain about that indulgence granted to him can never be meritorious, unless of course, the lower court had no jurisdiction to grant the indulgence. But the latter is not in the case having regard to the Provisions of Order 6 Rule 11 of the rules of the Court of Appeal already quoted above. So for my part I cannot overturn the judgment of the Court of Appeal just because of the defects in the briefs of argument filed in that court and on which that court acted.

This now paves the way for me to consider issues 1 and 2 raised in the appellant’s briefs of argument. The two issues deal with the defence of insanity, and the point arising for determination under the two issues boils down to this: whether the defence of insanity raised by the appellant had been properly rejected by the trial Court and the lower court.

Having regard to the Provisions of Section 27 of the Criminal Code applicable to Anambra State to the effect that every person is presumed to be of sound mind and to have been of sound mind at the time which cornel it to question until the contrary is proved, the prosecution has no duty to prove that the appellant is sane or insane. The onus is on the defence to establish the defence or plea of insanity, the standard of proof in this regard being on a balance of probabilities. See R. v. Wangara 10 WACA 236 and Loke v. The State (1985) 1 NWLR 1.

The defence of insanity is provided for by Section 28 of the Criminal Code as follows:

“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”

And in R. v. Sunday Omoni 12 WACA 511 at 512 we have been told of what the defence must prove under the Nigerian Law to establish that defence of insanity. It states as follows:

“The Nigerian Law being what it is, it may be well to state quite clearly what, in our opinion, the defence must prove under that law, to establish insanity and to overcome the presumption that every man is sane and accountable for his actions. First it must be shown that the prisoner was, at the relevant time, suffering either from mental disease or from “natural mental infirmity” as we have interpreted its meaning.

Then it must be established that the mental disease, or the natural mental infirmity, as the case may be, was such that, at the relevant time, the prisoner was, as a result deprived of capacity:-

(a) to understand what he was doing; or

(b) to control his actions; or

(c) to know that he ought not to do the act or make the omission.

It must further be remembered that if the defence be one of partial delusion, the provisions of the second paragraph in the Nigerian section 28 are applicable and that they are similar to the rules in Macnaughten’s Case (1) as to delusions.”

At this stage I must pause to refer to all the printed evidence relevant to the issue of insanity.

It will appear that on 22nd June, 1982, the plea of the appellant was first taken at the trial court. However, on 17th November, 1982 we have the following record as to the state of well being of the appellant:

“The accused appears incoherent and out of balance in his attitude; and so the Senior State Counsel applies under Section 223(5) of the CPL for the accused to be placed under Medical observation.

Court: After noticing the behaviour of the accused person, both whilst he is in the dock, and immediately before entering there, this morning; and recalling the minutes of the court on 22/6/82 where the following passage appears:

“Accused talked too much; and his eyes are fiery sharp” I am satisfied that the accused requires to be placed under medical observation in order to be certain that the accused possesses the requisite mental balance to undergo his trial for the offence of murder with which he is charged.

Accordingly larder that the accused person be and is hereby remanded in custody for medical observations. The Medical Report on the accused person will be sent to the Assistant Chief Registrar who, in the first instance, will transmit this Order to the competent authority for implementation.”

From this record it will appear that the fitness of the appellant to make his plea was being re-examined and to this end a medical report on the appellant was sought.

After an interval of about six months we have this record as to what happened in the court on 4/5/85.

“Agdolu for the State indicates that the long-awaited Report on the Medical Observation to which the accused was exposed has arrived; and that the accused may now take his plea since the Report

shows that he is now fit to do so.”

The charge is read over in English language and explained in Igbo language to the accused person who seems to understand the same but in an aggressive posture pleaded ignorance of the offence.

Whereupon the Court hereby entered for him a PLEA of:

NOT GUILTY to the charge.”

The medical report is tendered as Exhibit 1 and the plea of the appellant was taken the second time after the medical report has established it that appellant was fit to make his plea.

The other evidence in the record of proceedings worthy of consideration on the issue of insanity is as follows:

P.W.1 said in examination in chief on the point of motive for the offence with which the appellant was charged:

“To the best of my knowledge there was no previous or any quarrel between my late mother and the accused. But there was a land dispute between me and the accused person’s uncle, Frank Onyekwe, about five to six months before the incident. On that occasion, the accused threatened me with a matchet at the site in dispute. I reported the matter to the Police; following the report, the accused fled home to evade Police arrest; and was not at home when the dispute between me and Frank was settled about three months after the threat on me. The accused person attacked my mother about 3 months after the settlement.”

On the state of the mental health of the appellant the witness said as follows in cross-examination

“I do not know if the accused person ever had mental illness, but I know him as one of a lot of youths of his age and going (sic) who take Indian Hemp.

Whether this causes insanity or not, I do not know; since I am not a Medical Doctor; nor otherwise placed to know.”

P.W.2 said in examination in chief as to what the appellant did after the deceased had been killed:-

“The accused had escaped before we came in.” And in cross-examination as to the state of health of the appellant he said as follows:-

“There was nothing wrong with the accused person.” I will go next to the evidence in chief of P. W.3 as to where and how the appellant was arrested after the deceased had been killed. It is as follows:-

“A search party was organized to apprehend the accused. The party got the accused in his house. I was in the search party. I saw the accused when we arrived at his premises, still bearing a cutlass. He paced up and down in front of his house.”

As to the mental health or state of mind of the appellant, this witness said in cross-examination:

“I never received any report that a member of my kindred-group is insane. I never observed that the accused person is a mental case”

and in answer to questions from the court this witness further said as follows:

“I heard once that the accused person went to the psychiatric hospital; but I did not go along with him. I do not know where the hospital is.”

And finally as regards the other evidence elicited from the witnesses from the prosecution on the plea of insanity. I would refer to the evidence of P.W.4 as to his opinion of the condition or behaviour of the appellant after he had been arrested for the offence for which he stood trial:-

“The accused person looked normal when he was brought before me at the Otuocha Police Station; the only thing unique about him was that he wore at the time a long- flowing red gown like that of member of Cherubim & Seraphim. The accused person also talked to me intelligently at the time.”

On the part of the defence there was only the evidence of the appellant for it, as to his state of mind at the time of the offence with which he was charged. The relevant part of his evidence is as follows:

“I am not aware if I committed the offence of murder with which I am charged…………

This was because I had some trouble. It was mental trouble. Following the mental trouble, I was taken to a Prayer House by my two sisters who are not here now. One is named Eunice Okafor; and the other is called Agbomma Odili Ilobi. The said Prayer House is located in Ogbunike. I spent about 3 months in the Prayer House; and thereafter I was attending there from home……………………

Apart from attending the Prayer House, I also was taken to the Psychiatric Hospital by my two sisters – aforesamed; Eunice and Agbomma. The Hospital is at Enugu. I went there several times.”

I have taken the trouble to set down all the evidence that could possibly be relevant on the issue of insanity because the sum total of the judgment of the lower court on the point is that there was little or no evidence to support the plea. So in the consideration of the issues raised in this appeal to the effect that the evidence for the appellant on the defence of insanity was not properly evaluated by the trial court and the lower court, it behoves me to set down the relevant evidence as I have done above.

What remains for me to do now is to determine whether having regard to the law on the point at issue and the evidence given and available on the point, the Court of Appeal and the trial court were right in rejecting the appellant’s plea of insanity.

The authorities starting from R. v. Omoni (supra) to the recent cases of Effiong Udofia v. The State (1981) 11-12 SC.49 at pages 60-61 and Loke v. The State (1985) 1 NWLR. I have established it that for a plea of insanity to succeed under our law proof by the defence on a balance of probabilities as I have said above that the accused was at the relevant time suffering either from mental disease or from “natural mental infirmity” is a sine-qua-non for success.

It is when this mental disease or natural infirmity must have been established that the next question would arise whether as a result of the mental disease or natural mental infirmity, it can be said on the evidence before the trial court that the accused person was deprived of capacity:

“(a) to understand what he was doing;

(b) or to control his actions or

(c) to know that he ought not do the act or make the omission.”

The authorities are also clear on the point that the evidence of the accused person himself as to his state of mind or mental health is hardly sufficient in proof of the fact that at the relevant time he was suffering from either mental disease or natural mental infirmity. See Idowu v. The State (1972) 1 All NLR part II p.5 at 9 and Lasisi v. The State (1984) 10 SC. 111 at pages 127-129: So little or no weight in this case has to be attached to the evidence from the appellant to the effect that he was not aware of the commission by him of the offence with which he was charged and that at the material time he had some mental problem.

From the evidence elicited from the prosecution witnesses which I have quoted above, there was nothing indicative of mental disease or natural mental infirmity on the part of the appellant. There is equally nothing in the evidence from the prosecution suggesting that at the time of the offence of whose commission the appellant was accused, he was affected by delusions on some specific matter or matters. So on a proper appraisal of the totality of the evidence before the trial court it cannot rightly be said that there was sufficient evidence indicative of insanity under Section 28 of the Criminal Code.

This now takes me to the point as to the apparent lack of motive for the killing of the deceased by the appellant. Since, as have just held there was hardly evidence indicative of insanity on the part of the appellant, the absence of evidence of motive for the offence of which the appellant was accused ceases to be a relevant factor in the consideration of the plea of insanity raised by the appellant. For the authority on the point is to the effect that when there is evidence indicative of insanity the absence of any evidence of motive becomes a relevant factor. See R. v. Inyang 12 WACA 384; R. v. Ashigifuwo 12 WACA 389 in Loke and The State (supra).

The criticisms by learned counsel for the appellant both in the appellants brief of argument and in the oral submissions of counsel to us of the following findings of the trial court on the issue of insanity namely:

“(a) why did the accused in his Exhibit 2 deny killing anybody In my opinion the most probable reason was that the accused appreciated the gravity of admitting. I hold that, that posture is in consistent with that of an insane person;

(b) The accused possessed his capacity and understanding to appreciate that what he did was bad; otherwise he would have most probably admitted the crime;

(c) Why One may ask again, was it necessary for the accused to hide; and it took villagers time to search for and apprehend him

(d) Again the accused would have made some mistakes in the course of planning and executing the murder but the accused did not make the slightest mistakes at all. I hold that an insane person would not exercise such meticulousness as the accused did;” I beg the question that there was in fact on the totality of the evidence before the trial court, enough evidence indicative of insanity on the part of the appellant.

If, as submitted by counsel for the appellant the learned trial Judge was wrong in the views he expressed in the above passages from his judgment, those errors will not alter the fact that in law on the totality of the evidence before the trial court, there was not sufficient evidence to support a plea of insanity under Section 28 of the Criminal Code.

And I have just held having reviewed all the possible evidence before the trial court that the evidence was not sufficient to establish the defence of insanity. So I am not prepared to reverse the finding of fact on the issue of insanity made by the trial court and which was affirmed by the Court of Appeal.

As counsel for the appellant himself realised, the situation before us on the issue of insanity is one of concurrent findings of fact by the Court of Appeal and the trial court. Unless there is no evidence to support such a finding or there is a miscarriage of justice this court will not interfere with the findings. See Ibodo v. Enarofia (1980) 6-7 SC 42, 55, Fasoro v. Abdallah (1987) 3 NWLR 134, 141, (p.159) as examples of the numerous authorities on the point. As I have just said there is evidence to support the findings. And I cannot see any miscarriage of justice.

In the result the appellant’s appeal fails and it is hereby dismissed by me. The conviction of the appellant and the sentence of death passed on him are hereby affirmed by me.

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SC.128/1987