Augustine Guobadia V The State (2004)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE, J.S.C.

The appellant Augustine Guobadia was charged before the Benin High Court for the murder on 5th February, 1987 of his two year old half brother, Osazuwamen, an offence punishable under section 319(1) of the Criminal Code, Cap. 48, Vol. II Laws of Bendel State of Nigeria, 1976. At the trial in which six witnesses testified for the prosecution, the fact that the act of the appellant caused the death of the deceased was not contested. Indeed, both in his statement to the police exhibit B and his evidence in court, the appellant confessed to killing the deceased. What was canvassed on his behalf was the defence of insanity. But the learned trial Judge, Obi J., in his judgment of 29th July, 1988 exhaustively considered that defence and in rejecting it, he convicted the appellant of murder and passed a death sentence on him.

On appeal by the appellant to the Benin division of the Court of Appeal, the main plank of the appeal was that the learned trial Judge ought to have conducted an inquiry to ascertain the actual age of the appellant at the time the offence was committed since if he was found to be under 17 years of age, an appropriate sentence would have been for his imprisonment at the pleasure of the Governor.

The Court of Appeal in dismissing the appeal held that no issue about the appellant’s age arose during the trial of the appellant in the High Court to warrant an enquiry before that court as to the actual age of the appellant at the time of the commission of the offence.

In his further appeal to this court, the appellant by his counsel identified two issues for determination in his brief of argument. These are:

“1. Whether the defence of insanity did not avail the appellant.

2. Whether the Court of Appeal was right in not holding that there was sufficient material at the trial court to have justified an inquiry by the Judge into the actual age of the appellant at the time of the commission of the offence.”

In the respondent’s brief of argument, similar issues were raised, to wit:

“1. Whether the defence of insanity will avail the appellant having regard to the state of the overwhelming evidence before the court.

2. Whether it was right of the Appeal Court to hold that an inquiry into the age of the appellant was not necessary not being an issue before the court.”

Dealing with the first issue for determination, learned counsel for the appellant in his brief of argument referred to the evidence of P.W.2, the step mother of the appellant and mother of the deceased who testified that she had no quarrel with the appellant before the incident; he also referred to the evidence of P.W.3 the father of the appellant who in cross-examination stated that the appellant had mental problems in respect of which he was treated by a native doctor without any improvement when he, P.W.3 resorted to treating him at home. Attention was also drawn to the evidence of the investigating police officer (P.W.6) who testified that at the time he was recording the statement of the appellant, he, the appellant was behaving abnormally. Reference was also made to the evidence of the appellant to the effect that in the morning of the incident, he was having headache and pains in his ears. It was then submitted that these pieces of evidence from P.W.2, P.W.3, P.W.6 and the appellant himself establish that the appellant was insane at the material time. It was further submitted that where there exists some evidence pointing towards insanity or abnormal behaviour, then the lack of motive for the offence which ordinarily is of no moment becomes a relevant consideration in deciding whether the appellant was insane at the material time of the offence. For this proposition, counsel referred to the following cases: Onyekwe v. The State (1988) 1 NWLR (Pt. 72) 565; R. v. Inyang (1946) 12 WACA 5; R. v. Ashigifuwo (1948) 12 WACA 389. It was pointed out that the learned trial Judge relied heavily on the report (exhibit A) of the consultant psychiatrist Dr. Malomo (P.W.5) in coming to the conclusion that the appellant was not insane. Learned counsel argued that the evidence of P.W.5 to the effect that the appellant did not suffer from insanity or insane delusion ought not to have been treated as conclusive on the issue since he, P.W.5 did not examine the appellant immediately before or after the incident. It was further stressed that the examination of the appellant by P.W.5 was conducted in April 1988 that is, one year and two months after the offence was committed and therefore, not relevant in determining the mental condition of the appellant at the material time.

In response, learned counsel for the respondent referred to the statement (exhibit B) made by the appellant on 5th of February, 1987 the day the offence in question was committed and submitted that the appellant was fully in charge of himself. He argued that the appellant knew that what he was doing was wrong and that was why he ran away to a nearby village after killing the deceased. The defence of insanity under section 28 of the Criminal Code of Bendel State does not avail the appellant, learned counsel submitted relying on the following authorities: Ejinima v. State (1991) 6 NWLR (Pt. 200) 627; Dim v. R. (1952) 14 WACA 154; R. v. Omoni (1949) 12 WACA 511; Kure v. The State (1988) 1 NWLR (Pt. 71) 404, and Sanusi v. The State (1984) 10 SC 166.

It needs to be emphasized that the defence of insanity being canvassed for the appellant in this court is incompetent, since the defence was not raised in the court below. It is not competent for an appellant who raised an issue at the trial court, abandoned that issue at the Court of Appeal and only to take it up again in this court. Constitutionally, this court is enjoined to hear appeals from decisions of the Court of Appeal. It has no jurisdiction to entertain appeals directly from decisions of High Courts and in this regard it is apposite to refer to section 213(1) of the 1979 Constitution, now section 233(1) of the 1999 Constitution, Ogoyi v. Umagba (1995) 9 NWLR (Pt. 419) 283; Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244.

For the appellant to canvass before this court the defence of insanity which was raised at the trial court but abandoned in the Court of Appeal is tantamount to an appeal on an issue directly from the decision of the High Court to the Supreme Court which on the authorities referred to above is objectionable unless upon leave to argue it as a new issue. However, since no objection thereto was raised by any of the parties in this appeal, and having regard to the nature of the appeal involving life and death, I am prepared, for what it is worth, to hazard an opinion on the appellant’s defence under consideration.

In considering whether the defence of insanity avails the appellant, it is well to bear in mind that there is a general presumption that every person is sane until the contrary is proved. In this connection, section 27 of the Criminal Code Law of Bendel state applicable in Edo State provides that everyone is presumed to be of sound mind and to have been of sound mind at the time he committed the offence charged: see Onakpoya v. The Queen (1959) NSCC 130, (1959) SCNLR 384. Therefore, an accused person who pleads insanity as a defence to an offence with which he is charged has the burden of proving that he was suffering from insanity or insane delusion at the time the offence with which he was charged was committed. The burden of proof on the accused is on the balance of probability or preponderance of evidence and not on the basis of proof beyond reasonable doubt: see Daniel Madjemu v. State (2001) 9 NWLR (Pt. 718) 349. It must also be borne in mind that it is not every form of mental disorder that can relieve an accused person from criminal responsibility. The law requires that such mental disorder that can avail an accused person as a defence must fall within the ambit of section 28 of the Criminal Code Law supra which provides:

“28 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 a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he was 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 delusion 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 has been such as was induced by the delusions to believe to exist.”