David Uche Ideh V. The State (2019)
LAWGLOBAL HUB Lead Judgment Report
PAUL ADAMU GALUMJE, J.S.C.
The Appellant herein, was arraigned before the Ogun State High Court holden at Abeokuta on the 1st of July 2015 on a one count charge of murder contrary to Section 316 and punishable under Section 319 of the Criminal Law of Ogun State.
The particulars of the offence are that on or about the 28th of March, 2014, at Block 11, Flat B, Laderin Estate, Abeokuta, the Appellant murdered Olufunmilayo Timeyin, a retired Chief Magistrate of the Ogun State Judiciary. Appellant pleaded not guilty to the charge. In order to prove its case, the prosecution called nine witnesses and closed its case. The appellant then as an accused testified in his defence and did not call additional witness. Learned Counsel for the respective parties addressed the Court. In a reserved and considered judgment delivered on the 15th July 2015, Akinyemi J. found the appellant guilty as charged and sentenced him to death by hanging by the neck until he be dead.
The Appellant’s appeal to the Court of Appeal, Ibadan Division was on the 30th June, 2016 dismissed. He has now brought this appeal.
Appellant’s notice of appeal at pages 203-206 of the printed record of this appeal, filed on the 25th July, 2016 contains two grounds of appeal.
Parties filed and exchanged briefs of argument. Mr. Ajibola Dalley, Learned Counsel for the Appellant distilled one issue for determination of this appeal at page 13 of the Appellant’s brief of argument filed on the 6th of January, 2017 as follows:-
“Whether the Learned Justices of the lower Court ought to have dismissed the appeal against the refusal by the Learned trial Judge, to permit the psychological evaluation of the Appellant at the instance of the Appellant’s Counsel bearing in mind that it amounts to a breached (Sic) of established procedures under Sections 223 and 224 of the Criminal Procedure Law of Ogun State 2006 and a violation of the Appellant’s Fundamental Right to Fair Hearing enshrined under Section 36(6)(b) and 36(6)(d) of the Constitution of the Federal Republic of Nigeria 1999, as amended.”
According to the Learned Counsel this lengthy and not so well formulated issue is distilled from the 1st and 2nd grounds of appeal.
Dr. Olumide Ayeni, Learned Attorney General of Ogun
State, who settled the Respondent’s brief of argument also formulated one issue for determination of this appeal which I reproduce hereunder as follows: –
“Whether the Learned Justices of the Court of Appeal correctly found the trial Court’s decision to refuse Appellant’s Counsel’s application for psychiatric examination of the Appellant as not in violation of the Appellant’s right to fair hearing or any other right in the entire circumstances of the case.”
Before I delve into the consideration of Learned Counsel’s argument in support of the issue they have each formulated, I wish to set out albeit in brief, the facts of this case which are straightforward and simple. The Appellant was employed as a house help by the deceased who was living in her house with her husband Lawrence Oluwole Timeyin and her Son Olumide Timeyin. On the 19th of March, 2014 when the deceased, her husband and her son had gone out, the Appellant who was now alone in the house, used a cutlass to break open the doors to the rooms of the deceased and her son and stole various items which include jewelries, wrist watch, phones, dresses and other sundry items. He packed
these things and was about to leave the house when the deceased’s son arrived. He escaped in a hurry with the stolen items in attempt to sell some of the items, he was arrested and handed over to the police, where he was detained at Adigbe police station.
The deceased decided not to pursue the prosecution of the Appellant, as she discontinued her complaints to the police. On the 25th March 2014, the Appellant was released from detention and was seriously warned not to step into the deceased’s house again. On the 27th of March 2014 at about 7.30pm the Appellant, despite the warning went to the back of the deceased’s house, collected a ladder from an uncompleted building and scaled the fence into the deceased’s compound and went straight to the room where he was staying when he was working in the house and slept there till the following day, being 28th of March, 2014. He remained in hiding and was watching the movements of the occupants of the house. The deceased, her husband and her son went out. At about 3.30 pm, the deceased returned and went straight to her apartment and locked the door. The Appellant who had sharpened the cutlass which he used to
cut grass when he was working in the compound cleverly tapped the gate with the cutlass. The deceased thought there was somebody at the gate and she therefore opened the door of her apartment to see who was at the gate.
The Appellant who was then waiting for her at the entrance of her apartment which was close to the gate, attacked her immediately and dealt several machete blows on the head, neck and other part of her body. She was shouting for help until when she could no longer shout, when the Appellant heard noises at the gate and escaped by scaling the back Fence after he dropped the cutlass. Appellant was pursued and arrested when he ran into the bush.
I have read through the Appellant’s brief of argument and it appears to me that the only quarrel of the Learned Counsel for the Appellant against the decision of the lower Court is its refusal to set aside the trial Court’s judgment on ground of the trial Courts refusal to accede to Learned Counsel’s request for psychiatric evaluation of the Appellant.
On the 15th of June 2015, during the course of proceedings at the trial Court at page 39 of the record, Learned Counsel
for the Appellant made an oral application for psychiatric examination of the Appellant in the following words:-
“When I interviewed the accused person, in the process, it occurred to me, based on the life history he told me, that he might be disturbed in some sense. I had a word with the welfare officer of the person (Sic prison) and requested for psychiatric evaluation of the accused, the psychiatric doctor said he must have some form of request from the Court. He intends to put the accused in the box to testify, but the Law says if he is of unsound mind, he will not (Sic) capable in Law of defending himself. I therefore apply that I will be guided by the Court and I have a letter from the prison, I am ready to proceed with the case, but I just want to ensure that the proper thing is done.”
Mr. Oshunfisan, Learned DPP, Ogun State who appeared for the prosecution opposed the application and cited in aid Sections 222 and 223 of the Criminal Procedure, Laws of Ogun State.
In its ruling delivered on the 16th of June 2015, after having heard further addresses of Counsel on the application, the learned trial Judge refused the application on the ground that
there was no sufficient material before him at that stage of the proceedings that warranted an order for psychiatric examination. After the testimony of the Appellant, Dailey Esq, of Counsel to the Appellant made another application for psychiatric examination of the appellant in order to determine the state of his health. Learned Counsel stated that he was not raising insanity as a plea.
Learned Counsel for the prosecution again raised objection on the ground that the appellant sounded intelligent when he testified in his defence. In his ruling, the Learned trial Judge held: –
“Today, as soon as he entered the witness box and before he commenced his testimony, fully conscious of my responsibility, I again asked him general questions to test his capacity to testify in his defence. The answers he gave to my questions which are well recorded convinced me that he was of a sufficiently sound mind and mental capacity to give his defence. During his testimony, the accused appeared to me very calm and collected, his evidence was logical and a product of a balance mind, even though he made reference to the fact that from his early years he used
to have certain attack thrice a year, his evidence as to the events of the fateful day in full case of 28th March, 2014 was graphic, detailed and unequivocal, I don’t think any sane mind could have given a none logical evidence.”
On the reason as reproduced above, the trial Court once more refused the oral application for psychiatric examination of the Appellant.
In arguing the sole issue formulated for determination of this appeal, Learned Counsel for the Appellant submitted that by refusing to permit the psychiatric evaluation of the appellant at the request of the Appellant’s Counsel, the Learned trial Judge breached established procedures under Sections 223 and 224 of the Criminal Procedure Law of Ogun State 2006 and equally denied the Appellant’s guaranteed right to fair hearing as enshrined under Section 36 (6) (b) and 36 (6) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). In aid Learned Counsel cited the authorities in Kazeem Popoola v The State (2013) LPELR 20973 (SC), and Mboho v The State (1966) All NLR 63.
In a further argument, Learned Counsel submitted that the issue concerning psychiatric evaluation of the Appellant was
to determine whether the Appellant was fit to take his plea or go through the trial. According to the Learned Counsel, the trial Court was bound to take a final decision on the matter after hearing evidence before considering the charge against him. Learned Counsel contended that the failure of the trial Court to do so amount to lack of fair hearing. In aid Learned Counsel cited Regina v. Darkhu (1956) 1 W.L.R. 989; The Queen v. Micheal Ogor (1961)1 SCNLR 121, (1961) All NLR 70.
Still in argument, Learned Counsel for the Appellant submitted that the Appellant was not given adequate time and facilities for preparation of his defence when he was kept in prison, thus denying him the opportunity to establish the defence of insanity. Learned Counsel argued forcefully on the issue of fair hearing as regard any person, standing trial, and concluded that the failure by any Court to adhere to the appellant’s right to fair hearing must with all due regard nullify the proceedings before such Court. In aid Learned Counsel cited Chime v. Onyia (2009) 2 NWLR (Pt.1124)1 at 77, Dingyadi v. INEC (2010) LPELR-952 ISC) at 167-196 paras C-D, and a host of foreign cases.
For the Respondent, it is argued that Sections 223 and 224 of the Criminal Procedure Law of Ogun State, 2006 may only be invoked where, as a result of some physical or mental condition, an indicted person is deemed by a Court to be of unsound mind and consequently incapable of following the proceedings or making a defence. Learned Counsel cited in aid the decision in Popoola v. The State (Supra) and further submitted that in the instant case the trial Judge did not have reason at any time throughout the entire period of the trial of the Appellant to believe that the Appellant was of unsound mind.
In a further argument, Learned Counsel submitted that the Appellant neither raised the issue of unsoundness of mind at the time of the commission of the offence, nor did he assert any issue of unfitness to make his defence. It is Learned Counsel’s conclusion that the decision in Mboho v State (Supra) is inapplicable in this case. Finally Learned Counsel urged this Court to dismiss the appeal.
The lower Court at pages 192 to 193, after extensive consideration of submissions by Learned Counsel on either side held:-
“The Appellant did not raise any defence of
insanity or natural mental infirmity or even of partial delusion under the second paragraph of Section 28 of Criminal Code. The trial Judge was entitled to act on the presumption that everyone is presumed sane until the contrary is proved.” “I entirely agree with the lower Court.”
I entirely agree with the lower court.
In his first application for psychiatric evaluation, Learned Counsel for the Appellant at page 59 of the record ended his prayer thus: –
“I therefore apply that I be guided by the Court, and I have a letter from prison, I am ready to proceed with the case, but I just want to ensure that the proper thing is done.”
After the Appellant’s testimony in his defence at the trial Court, the following proceedings are recorded at page 66 of the record of this appeal as follows: –
“Dailey: Applies that the accused be subjected to medical examination, the Court having had the opportunity to witness and analyse the testimony of the accused, has now been provided with more insight as to the basis of the earlier request.
It does not prejudice what has happened this far:
I am interested not really in the judgment, but in what
happens to the accused thereafter.
The prison ought to have made an assessment on their own.
We have not raised insanity as a plea. An assessment should be made to determine the state of his health, not necessarily, at the time of commission of the offence.”
There is nowhere in the two oral applications made by the Learned Counsel for the Appellant at the trial Court that the issue of insanity or natural mental infirmity or even partial delusion was raised. Learned Counsel was even more explicit in the second application where he stated. “We have not raised insanity as a plea”Section 222 of the Criminal Procedure Law of Ogun State provides that an accused person shall be deemed to be of unsound mind and consequently incapable of making his defence if by reason of some physical or mental condition he cannot follow the proceedings and make a proper defence.
Section 223 and 224 of the same Law enjoin a trial Judge to do the following when the issue of insanity is raised at the trial, viz: –
(a) When he observes that the accused behaves abnormally, or
(b) When the fact of the mental instability of the accused is
raised in the course of the trial, or
(c) When the Counsel to the accused request for the inquiry.
The three conditions here can only arise when the issue of insanity is raised. For the Court to deem an accused person to be of unsound mind and consequently incapable of making his defence by reason of some physical or natural condition, the conduct or behavior of such an accused person must be taken into account by the trial Judge, whose opinion only will be relevant. In the instant case, at pages 67-68, the Learned trial Court said of the Appellant thus: –
“Today as soon as he entered the witness box and before he commenced his testimony, fully conscious of my responsibility, I again asked him general questions to test his capacity to testify in his defence:
The answers he gave to my questions which are well recorded convinced me that he was of a sufficiently sound mind and mental capacity to give his defence.
During his testimony, the accused appeared to me very calm and collected, his evidence was logical and a product of a balanced mind.”
Since the Learned trial Judge was of the opinion that there was no material upon which the Appellant
would be deemed to be of unsound mind, Section 222, of Criminal Procedure Law of Ogun State has been sufficiently complied with. Sections 223 and 224 of the same Law are irrelevant because none of the parties raised the issue of insanity. For a Judge to institute an inquiry into psychiatric disposition of an accused, at the instance of his counsel, the Learned Counsel representing the accused must not be casual in presenting their case of insanity on behalf of his client.
In Sanusi v the State (1984) 10 SC 166 at 177, this Court, per Aniagolu JSC said: –
“There is a tendency for some Counsel to be casual in presenting their case of insanity on behalf of accused persons. Some tend to treat the matter as if all that was required to establish the defence of insanity was to allude to insanity as the accused’s defence and proceed to show how unreasonable and motiveless the action of the accused had been, leaving it to the Court to infer that anyone guilty of such behavior as the one committed by the accused could not but be insane. Such an approach to the defence of insanity is wrong.”
Section 28 of the Criminal Code of Ogun State provides that
a person who is by reason of unsoundness of mind, prevented from exercising control of his own conduct and deprived of the power of passing rational judgment on the character of his actions, cannot be held legally responsible for the Criminal consequences of his actions. Protection is given by this section to an insane person, who although aware of the nature of his act, was mentally incapable of knowing whether his act was wrong or contrary to Law. To establish a defence of insanity it must be clearly pleaded and proved that at the time of committing the act, the accused was suffering from a defect of reason from disease of the mind so as not to know the nature and quality of his act or that what he was doing was wrong. The Court is concerned only with the state of mind of the accused at the time of the act. Once the issue of insanity is pleaded, the Court must determine whether or not the accused was conscious at the time of doing the act and that the act complained of was one which he ought not to do or which was contrary to the Law. Although the burden of proof that a person is insane lies on the Accused person who must
establish that he is insane on balance of probabilities, once the prosecution has been put on notice that a defence of insanity is to be raised at the trial, it has a positive duty to assist in the investigation of the case for the benefit of both sides, by inquiring into any evidence relating to such a defence and by arranging for the observation of the accused by a doctor or psychiatrist with a view to reporting on his mental condition. It will be unjust for the prosecution to leave it to the accused person especially an accused person from a rural community who has no access to legal representation to produce expert evidence of insanity simply because the burden of proof lies on the defence. See Suleiman v. The State (1981)1 NCR 242.
In the instant case, not only that the Learned Counsel for the Appellant did not raise any issue of insanity before the trial Court, he did not bring to the notice of the prosecution that he was going to raise the issue of insanity.
In our system of criminal trial, the Judge as an umpire is not expected to descend into the arena of contest. This illustrates the difference between the accusatorial and the inquisitorial method of trying an accused person.
Our system is accusatorial in the sense that the innocence of the accused is presumed until he is proved guilty by the prosecution. The major feature of the system we operate is the passive and inactive role of the Judge which emphasizes the active role of Counsel for the prosecution and for the defence. The duty of a Judge is not to investigate matters that are placed before him, but to attentively listen to parties and speaks mainly to deliver his judgments. See Godwin Josiah v. The State (1985) 1 SC. 406 at 443; David Uso v. C.O.P. (1972)11 SC. 37 at 46 – 47.
What Learned Counsel wanted the Learned trial Judge to do by ordering an investigation when an issue of insanity was not raised before him, was invitation to the Learned trial Judge to descend into the arena of contest. The Learned trial Judge was right when he declined the invitation.
I have stated elsewhere in this judgment that the Court is concerned only with the state of mind of the accused at the time of the act. The offence for which the Appellant was charged, tried and convicted took place on the 28th March, 2004. Learned Counsel for the Appellant purportedly called
for investigation into the mental status of the Appellant on the 15th of June, 2015, well over eleven years. When the Appellant gave evidence in his defence, he alluded to some fanciful stories of how he left his parents at the age of twelve years because of certain things that used to happen to him. He told the stories of how he used to scatter everything and people would run from him and that his father used to give him concoctions. He also narrated how he went to stay with his mother’s sister and did farming with his father’s brother at Oshogbo, but ended up destroying all the goods that his uncle’s wife used to sell like oil, gam etc.
Although these stories seem to be a product of tutorials, they could have helped the Appellant if his parents, his mother’s sisters and his mother’s brother were called to testify for the defence in order to confirm the story that he indeed was unstable in the past. The Appellant’s failure to call these witnesses that witnessed his mental instability has rendered his evidence unreliable. If the application for psychiatric examination is meant to arrest the trial on the ground that the appellant was not mentally fit to stand trial
by reason of insanity, Learned Counsel, as I have alluded to has not sufficiently provided the materials for the Learned trial Judge to act upon. The ipse dixit of a Counsel that his client is not mentally fit to stand trial and that such information was provided by the said client cannot avail the accused person. For evidence tendered by the accused is suspect and is not usually taken seriously for establishing his insanity. See Onyekwe v The State (1988)1 NWLR (Pt.72)565.
The only source of information available to the Learned Counsel for the Appellant is the Appellant himself. This clearly cannot be taken seriously.
The Appellant has not denied that he killed the deceased. Despite the fact that the deceased refused to pursue the prosecution of the Appellant for the theft of her properties and those of her son and even went to the extent of pleading with the police to release him from detention, yet the Appellant had the heart to terminate her life in a gruesome manner on the ground that he had some outstanding unpaid salaries with her, calls for no mercy. The lower Court is absolutely right when it affirmed the conviction and sentence passed on the Appellant.
It is not in the character of this Court to interfere with the concurrent findings of fact by the High Court and the Court of Appeal in absence of special circumstances. This appeal lacks merit and same shall be and it is hereby dismissed.