Effiong Udofia V. The State (1981)

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OBASEKI, J.S.C. 

This appeal against the decision of the Federal Court of Appeal (affirming the conviction of the appellant and sentence of death on him for the murder of his girlfriend, Atim Nyaraowo entered and passed by the High Court of the Cross River State Umoh, J., on the 31st day of May, 1976), was heard by this court on the 29th day of October, 1981.

After hearing the submissions of the appellant’s counsel we decided not to call on the respondent’s counsel, for his submissions, dismissed the appeal for lack of merit and fixed delivery of Reasons for the Judgment for today. I shall now proceed to give my reasons.

The main question raised in the briefs filed was whether the defence of insanity was established by the evidence before the court to entitle the appellant to an acquittal of the offence of murder although not to a discharge from detention. A subsidiary question is whether the prosecution has any duty in law to produce the wife and mother of the appellant and the herbalist who treated appellant two years previously to testify on the mental health condition of the appellant.The facts established before the High Court found and accepted by the judge are positive, straight-forward and were not in dispute. Briefly, they are:

The appellant, a soldier attached to the 13th infantry Brigade, stationed at Calabar, slept with his girl friend Atim Nyaraowo in his quarters at the Army barracks on the night of 29th November to the morning of 30th November, 1974. He was a married man with children but had sent his wife and children away to his hometown before calling in his girlfriend. His recent medical history had not been so good. He has had one mental breakdown. This was in November, 1972.

There is no evidence of any violence by the appellant resulting from that mental illness. He was taken to a native doctor, Monday Udo Inyang for treatment. He was treated for 5 months and cured. He thereafter returned to Calabar and resumed his military duties. In his own words as recorded in his statement to the police Exhibit 3A, the story continues: “As I became well, I returned to Calabar and resumed duty gradually. I fell in love with one lady, I used to call her sister. It was on Friday 29/11/74 in the evening this lady came to my house in the Army Barracks. As we slept on bed, someone came and told me to kill that my girl friend. I did not see the person with my eyes, I only heard a voice. I brought out my matchet and matcheted that lady to death.”

His evidence in court was not different. It reads: “A voice from the air told me that I was going to be killed and I am to hide. I hid myself behind my door. I ran out to Captain Johnson (P.W.1). The voice told me that I should go to P.W.1’s house. To protect myself I went round cutting people. The deceased was with me that night. I heard the voice. The voice told me to kill the deceased and I killed her. (Underlining is mine). After killing his girl friend and inflicting matchet cuts on 7 people, he decided and went to the quarters of his commanding officer, Captain Johnson Adebusoye (P.W.1) to kill his wife and children. P.W.1 and his men did not succeed in locating him but P.W.2 (wife of P.W.1) did.

She saw him outside their quarters armed with a matchet and rifle and shouting “come out, all of you are dying today” in English and tried to scare him off by firing her husband’s double barrelled gun into the air. He was not scared. He took cover and was seen later crawling out of a flower bed armed with his rifle and matchet. He shouted “so you have gun, come out, you say you are a captain”. To disarm him, P.W.2 shot him in the legs; as he fell down, she rushed out to him, took the rifle and matchet from him and called on the soldiers to come and take him to hospital. That was the end of the drama.

Counsel’s submission was that the Federal Court of Appeal should have held that the failure to call the wife of the appellant, his mother and the native doctor or herbalist, in the light of the evidence of P.W.5 and Exhibit 7, occasioned miscarriage of justice in that the appellant’s acts cannot be said not to have been the direct result of the mental illness suffered by the appellant in 1972.This submission contravenes all known presumptions and principles of law as regards liability and proof of insanity.

The defence of insanity to criminal liability under our law is a creation of statute – The Criminal Code Section 28 Cap. 42 of the Laws of the Federation, the Criminal Code of the various southern states and the Penal Code Law of the North Section 51 Cap. 89 Laws of Northern Nigeria 1963 which governs the 10 Northern States. It is worthy of note that the learned trial judge, Umoh J., considered in detail, the defence of insanity although the record of proceedings contains little or no evidence of the accused’s mental ill-health at the time the offence was committed and either immediately before, or immediately after the commission of the crime. After examining a number of decided authorities on insanity including:

Rex v. Inyang (1946/1949) 12 WACA 6;

R. v. Echam 1952/55 14 WACA 158;

Upetire v. Attorney-General, Western Nigeria (1964) 1 All NLR 204;

Regina v. Yayiye of Kadi (1957) 4 NRNLR 207;