Christopher Akhimien V. The State (1987) LLJR-SC

Christopher Akhimien V. The State (1987)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C.

Two issues arose in this appeal on a case in which the Appellant was charged with murder, namely,

(1) whether the defence of insanity had been established, and

(2) whether there was an amendment to the information after the address of Counsel, and if so, whether there was a non-compliance with sections 163, 164, 165 and 166 of the Criminal Procedure Law 1976 of Bendel State.

Before, however, resolving these issues, a short account of the background facts as established in evidence and accepted by the trial Judge, is necessary.

The Appellant who was a relation of the father of the deceased was working at Agbor as a mechanic before the incident in this case.

On 10th December 1982 P.W.5 (EDUZELA MICHAEL), who was the mother of the deceased and the wife of P.W.6 (MICHAEL NEHIZENA), was cooking in the kitchen in her house with her son, the deceased, when suddenly they saw the Appellant running towards the kitchen through the sitting room of their house, matchet in hand. When the appellant arrived at the kitchen he immediately proceeded to inflict cuts on the deceased, first on the right hand, and then on his chest and the third one on his waist. As P.W.5 was begging the appellant to stop matcheting her son, the appellant turned to her and cut off her right and left thumbs. He gave her one other cut at her elbow and three other cuts on her head. As P.W. 5 was yet shouting, P.W.1(SUNDAY OIAYA) who lived in the same house as the deceased and his mother, ran to the scene and saw the deceased on the ground in a pool of blood. The appellant promptly chased P.W.l who immediately retreated and escaped into a nearby bush. After chasing him into the bush the appellant returned and inflicted another matchet cut on the left leg of P.W.5 who was then still on her feet. With this last cut on her left leg, P.W.5 fell to the ground unconscious. She did not regain consciousness until the appellant had left the scene of the attack. The deceased’s hand was almost severed from his body.

MICHAEL NEHIZENA (P.W.6), the father of the deceased was not at home when the incident occurred. He returned to find his wife in a pool of blood and his son dead.

He went and reported to the Nigeria Police Station Ebelle, taking the body of his son to the police.

On receiving the complaint the police, one Sergeant Abraham Akhirevbu, went to the house of the appellant and found the front door securely locked. He forced the door open. He entered the house and did not find the appellant but found another door leading to an inner room, also locked. He forced open this second door and there was the appellant standing at the centre of the room with a blood dripping matchet in his hand. As soon as the appellant saw Sgt. Abraham Akhirevbu he lunged forward to strike him with his matchet. Sgt. Akhirevbu then dived and in the ensuing scuffle he was able to wrench the matchet from the hand of the appellant who was subsequently arrested and taken to the Police Station where he made a confessional statement (Exhibit B). The appellant was subsequently charged to court.

On these facts, there was no doubt that the Appellant caused the death of the deceased, IMAZENHIEBE MICHAEL. But the defence has alleged that the appellant was insane at the time he committed the act. By section 140(1) of the Evidence Act the onus is on the Appellant to rebut the presumption of law that every person is presumed to be of sound mind and to have been of sound mind at the time, in the case of this Appellant, when he killed Imazenhiebe Michael. The Appellant is entitled to rely not only on the evidence adduced for the defence, but also on that produced for the prosecution in discharging this onus on him; QUEEN v.YARO BIU (1964) N.M.L.R. 45; M. ONAKPOYA v. THE QUEEN (1959) 4 F.S.C. 150.

Let us now examine the evidence. The Appellant made a statement to the police soon after killing the deceased. He gave his gave his reasons, in the statement, why he killed the deceased. This was what he said:

“On 10/12/82, Eduzela called me a crasy man, then my wife ran away. I cut Eduzela with his piken with cutlass, as she called me crase man and na her husband Michael give me the crase.

And she do give me nonsense food.”

From the above the appellant complained

(i) that the mother of the deceased, EDUZELA, called him a mad man;

(ii) that it was indeed the husband of the said EDUZELA who poisoned him;

(iii) that she, EDUZELA, used to give him “nonsense food.”

In PETER ABU v. THE STATE (1976) 5 S.C. 21, this Court (per Sowemimo, J.S.C.) held the fact of an Appellant giving clear reasons for killing his victim to be incompatible with unsoundness of mind. This was what this Court said at page 26:

“The accused in his statement to the Police, which was exhibited in the proof of evidence, showed quite clearly that he gave reasons for killing his wife and this is incompatible with a person whose mind is unsound.”

Of all the recently decided cases in this Court in which insanity was raised as a defence, including MAKOSA v. THE STATE (1979) 1 All N.L.R. 363; PETER ABU v. THE STATE (1976) 5 S.C.21; OKEGBU v. THE STATE (1979) 11 S.C.I; ARUM v. THE STATE (1979) 11 S.C. 91; OKONOFIA v. THE STATE (1981) 6-7 S.C. 1 -the nearest, by way of comparison of facts, to the present case on appeal, is PETER JONNY LOKE v. THE STATE (1985) 1 N.WL.R. 1, but even then, there was fundamental distinguishing dissimilarities between the two cases. In LOKE (supra) the Appellant gave no reasons for killing the deceased in that case; there was evidence of his insane behaviour before and after the killing. He took the head of the victim to his home. Before the killing, the Appellant had been held in chains and had been brought back from Lagos in chains as a mad man. He was shouting and used to remove his clothes. After he had decapitated his victim who was riding past on a bicycle, he called on people to come and look at the headless body of the deceased, while clutching to the decapitated head and returning to his house with it. From the conduct of the Appellant in LOKE, before, during and after the commission of the act, it was obvious that he was insane, and insane at the time he committed the act. The evidence of the witnesses was believed by the trial Judge who, in spite of that, misdirected himself in saying that

“There was 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 appeal was for that reason allowed and a verdict of insanity substituted.

In the instant appeal, however, apart from the fact that the appellant gave reasons for his act, the learned trial Judge disbelieved (upon counterbalancing evidence to the contrary) the evidence adduced by the mother and the relatives of the Appellant that he was ever mentally unbalanced at any time or that his ancestors were ever insane. In disbelieving the evidence he rightly called attention to the fact that neither a medical doctor nor the native doctor, Mr. Ovienria, who was said to have treated the Appellant, was called as a witness. He said:

“No medical witness was called and the native doctor (Mr. Ovienria) who treated the accused was not called as a witness, to adduce affirmative evidence that the accused was suffering from mental disease at the time or shortly before or after the killing of the deceased.”

In respect of the mental history of some members of the Appellant’s father’s family, the learned trial Judge held that:

“The story of the 1st D.W. that some members of the family of the accused’s father have history of mental antecedents contradicts the evidence of the accused person himself, as well as the evidence of the 1st, 5th and 6th P.Ws. I find and hold that the 1st D.W. lied when she testified that some members of the family of the accused’s father have history of insanity. I believe the 1st, 5th and 6th P.Ws. who testified that the accused is normal and that none of his family members has history of insanity. I believe and accept the evidence of the 2nd and 3rd p.w.s. to the effect that the accused showed no sign of insanity or madness during their investigation of this case.”

The principle established in LOKE could not, obviously, be held to exist in this present case on appeal, where witnesses who ought to have been called were not called, and where those called were found by the trial Judge to be a bunch of lying witnesses.

The onus of proving insanity placed upon the defence – onus which, admittedly, was dischargeable, by the Appellant, like in a civil case, upon proof based upon balance of probabilities – was not discharged in this case.

Accordingly, the defence of insanity which was rejected by the trial Court and the Court of Appeal must, in the circumstances, be also rejected and is hereby rejected, by this Court.

There remains the issue which Appellant’s Counsel has regarded as an amendment of the information with the consequential statutory procedural requirements which follow such an amendment. Two further grounds of appeal were filed, with leave, by the Appellant. These further grounds of appeal were exhibited at page 3 of the Brief of the Appellant. The second further ground dealt with the amendment. Without the “particulars” this further ground of appeal reads:

“The trial Court erred in Law when he failed to observe the principles laid down in the case of Okasun v. The State (1979) 3-4 SC 36 when he suo motu (sic) amended the particulars of offence after the close of address by both the prosecution and defence.”

I have carefully read the proceedings in this case, including the judgment of the learned trial Judge, but there was no where that the information was amended. The learned trial Judge made a comment on the charge. He never amended it. Immediately after the close of the address by Counsel, the Record has this:

“COURT: – The judgment in this case is reserved to 30/4/85.

(Sgd.) G. E. Edokpayi

Judge

4/4/85”

In his judgment, the learned trial Judge commented on the charge preferred against the Appellant as follows:

“The accusation is that the accused person on or about the 10th day of December, 1982, at Oge Amahor, Ebelle, in the Ekpoma Judicial Division unlawfully killed one Imazenhiebe Michael. I wish to point out that the revised Edition of the laws of Bendel State of Nigeria titled “The Laws of Bendel State of Nigeria, 1976″ came into force on 3rd January 1978. See Bendel State Legal Notice (B.S.L.N.) III of 1977.”

Continuing the same comment, and dealing with the definition of murder, he said:

“By the definition of murder under the Criminal Code Law, Cap. 48, Volume II, Laws of the Bendel State of Nigeria. 1976, therefore, the use of the words “unlawfully killed” instead of the often-used word “murdered” in the particulars of offence of the information in this case is proper. I have to point this out here because, in spite of the revision of the Bendel State Law, it is the belief of many, that at any time the words “unlawfully killed” instead of “murdered” is used in the particulars of offence in an information for Murder, then the information is wrong as the words “unlawfully killed” can only be used to describe the crime of manslaughter.

Also, it is worthy of note to point out here that where the statute defines an offence and the charge describes the offence in the charge/information in the words of the legislation, that charge/information cannot be properly proclaimed to be wrongly descriptive of the offence in the charge/information. The information in this case is therefore not defective in law.”

(Italics mine)

The above last sentence suggests that there could not have been any amendment.

Respondent’s Counsel, Mr. Alufohai, has referred to the above comment of the trial Judge and stated that the interpretation placed by Appellant’s Counsel on it was that the comment amounted to an amendment. I must confess that this part of Appellant’s Counsel’s argument is difficult to understand. If, however, as stated by Mr. Alufohai, Appellant’s Counsel interpreted the above comment of the trial Judge as amounting to an amendment of the information, then his argument on that would be completely misconceived.

As I have said there was no amendment of the information on the Record and that ground of appeal must therefore be rejected.

And with that rejection, the appeal fails in its entirety and is hereby dismissed. The verdict and sentence of the High Court as well as the dismissal judgment of the Court of Appeal are hereby affirmed.

ESO, J.S.C. (Presiding): I had a preview of the judgment which has just been delivered by my learned brother, Aniagolu J.S.C., and I am in full agreement.

This is a gruesome murder, from all accounts, and even from the evidence contained in the statement of the appellant to the police, wherein he confessed to “killing” his own mother and his brother because the mother referred to him as a mad man whereas it was his mother’s husband who poisoned him and inflicted him with the madness.

The only question is, could he have been insane when he committed the act especially as he remembered so well and gave so much detail of his action, but only ascribing the source of his misfortune to his mother’s husband and that the mother referred to him as a mad man

I am in full agreement with my brother, Aniagolu, J.S.C., that in this case the evidence adduced, for the appellant, of insanity, that is, the evidence of the mother and other relatives of the appellant had not been accepted by the Court. There being no evidence therefore to base a finding of insanity upon, we are left with the evidence of the killing, and buttressed by the confession of the appellant, who only gave reasons for his dastardly act.

This is an unmitigated murder and the appeal must be dismissed and it is hereby dismissed. The verdict of the High Court and the sentence passed by the Court which have been affirmed by the Court of Appeal are hereby further affirmed.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, ANIAGOLU, J.S. C. and I agree with him that this appeal is without merit. It was not in dispute that it was the appellant who dealt those fatal matchet cuts on the boy Michael from which he died. The only weighty complaint in this Court by learned counsel to the appellant, Chief Milton P. Ohwovoriole related to the refusal of the High Court and the Court of Appeal to avail the appellant of the defence of insanity. Learned Counsel relied on Loke v. The State (1985) 1 N.W.L.R. 1 at pages 8-9and Makasa v. The State (1969) 1 A.N.L.R. 363, 366.

The only oral evidence adduced by the defence on the issue of insanity was the evidence of the appellant’s mother that the appellant had been mentally ill first for 13 years, and second 7 years prior to the date of the incident, and had received medical treatment from a native doctor in whose house it was alleged a relation of the deceased’s father was receiving treatment. The evidence was placed alongside the consistent insistence of the appellant that he was not mad, although he admitted in his statement to the Police Exhibit “C” that he was taken to Irrua for treatment between 1974 and 1975. The learned trial Judge rejecting the defence of insanity said-

“I find no basis for upholding the defence of insanity or blackout in favour of the accused in this case.”

He also dismissed the possibility of mental delusion.

It is well settled that the onus of proving insanity lies on the appellant, and that that onus can be discharged on a balance of probabilities. See Loke (Supra). The onus was not discharged in this case. There had to be evidence that the appellant was suffering from mental disease at the time or shortly before or after the act or omission in respect of which he was charged.

For instance in the Loke case on which learned counsel placed reliance, there was evidence that prior to and after the killing on 3rd May, 1978, the appellant therein was insane. In 1977 he was taken away from Lagos in chains mad, 3 months before the killing he displayed insane attitude, 1 month before the killing he was in chains because of madness.

In court his utterance and behaviour depicted an insane person. The conduct of the appellant herein may have been strange but it has long been held that absence of motive for the killing is not necessarily an indication of insanity. See Phillip Dim v. Queen 14 W.A.C.A. 154, 157.

In all these circumstances, this appeal is dismissed and the conviction and sentence passed on the appellant are further affirmed.

SC.37/1986