John Imo V. The State (1991) LLJR-SC

John Imo V. The State (1991)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C.

The appellant was arraigned before the then High Court of Justice, Anambra State sitting at Enugu, on the following charge –

“Statement of Offence

Murder contrary to Section 319(1)of the Criminal Code Cap 30 Vol. II , Laws of Eastern Nigeria 1963 applicable in Anambra State.

Particulars of Offence

John Imo on or about the 29th December, 1985, at Egenyi 1 Effium Abakaliki Judicial Division murdered Alphonsus Nwonu.”

The appellant pleaded not guilty to the charge and the trial proceeded at the end of which he was found guilty as charged, convicted and sentenced to death. His appeal to the Court of Appeal against conviction was dismissed by that court, thus confirming the conviction and sentence passed by the trial court. He has now further appealed to this Court.

The facts of the case presented by the prosecution are all follows –

On the day the incident happened leading to the death of the deceased, PW1, a brother to the deceased was together with the deceased in their father’s compound. A girl, Nwankpu Nwokporo (PW6) came to the compound with a message to the deceased that the appellant was inviting him to a drink in their compound to celebrate the birth of a baby by Aragwu’s wife, another brother of the appellant. The deceased went to the appellant’s compound and joined Lazarus Imo (PW2) a full brother of the appellant. At that time the appellant was not there. While they were drinking wine, appellant came and joined them, His eyes were red and he was offered a glass of wine by PW2 which he drank.

Soon thereafter the appellant went out. About five to ten minutes later, he returned with some women following him and shouting “vulture had eaten me”. Apparently, it was dark and there was native lantern which was on at the time. The appellant, for no explained reasons, started cutting the deceased with a matchet. People that gathered there ran helter-skelter. The deceased ran back to their compound crying. PW1 tied a bleeding wound on the deceased’s left hand with a piece of cloth. He went out looking for a taxi to take the deceased to the hospital but before he could secure one, the deceased gave up.

At the compound where the party was going on at the time the incident happened, PW2 tried to grip the appellant as a result of which he received a matchet cut from him on the jaw. PW2 ran out, got a stick with which he struck the appellant, knocking him to the ground. The matchet slipped off the appellant’s hand. PW2 rescued it. He tied the appellant’s hands, but he managed to release himself and ran away, He was however apprehended by the village people the following day and who handed him over to the police.

With the Notice of Appeal the appellant filed only one ground – the omnibus ground, with an indication that further grounds of appeal would be filed on receipt of the record of proceedings. With the leave of this Court, two more grounds of appeal were filed. They were numbered 1 and 2 respectively, Ground 1 reads –

“MISDIRECTION IN LAW:

The Court of Appeal misdirected itself in law in its interpretation of S.29(2)(b) of the Criminal Code.

Particular of Misdirection

The Court of Appeal misdirected itself in law in holding that for the defence under S.29(2)(b) of the Criminal Code to avail the appellant, the intoxication must not cause temporary insanity and it must not be self induced by the appellant.”

There is no need to reproduce ground two as it is the same with the original ground filed with the Notice of Appeal. It is therefore deemed as abandoned and is hereby struck out.

Both the appellant and the respondent filed their respective briefs of argument which they adopted and elaborated upon orally in court.

In his brief, the appellant filed the following issues for determination-

(i) Whether the Court of Appeal correctly interpreted S.29(2)(b) of the Criminal Code, Cap.30 Vol. II Laws of Eastern Nigeria 1963 applicable in Anambra State.

(ii) Whether the Court of Appeal was right in affirming the judgment of the trial court that the defence of insanity, temporarily or otherwise caused by intoxication was not established to exonerate the-appellant from criminal liability, in view of the evidence at the trial.

On his part, the respondent formulated only one issue for determination in his brief to wit –

“Whether, on the facts of the case, both the trial court and the Court of Appeal were right in rejecting the defence of insanity by reason of intoxication raised by the appellant”.

The respondent’s issue has been encompassed in the two issues formulated by the appellant.

In her argument in support of the two issues formulated, learned counsel for the appellant referred to the evidence of the appellant, PW2 and the confessional statement of the appellant, Exhibits A and A1 and submitted that the defence of insanity caused by intoxication was established by the appellant on the balance of probability.

On the construction of section 29 of the Criminal Code, particularly subsections 1 and 2 of that section, learned counsel submitted that a literal interpretation of the section had to be employed without recourse to English authorities. To this effect she cited the cases of Odu v. State (1965) 1 ALL NLR 25 at pp.28-29 and Laoye v. State (1985) 10 S.C. 177 at 299, (1985) 2 NWLR (Pt.10) 832.

She therefore submitted that having regard to the totality of the evidence before the court; the onus on the appellant had been discharged by establishing at least temporary insanity caused by intoxication which prevented him from knowing what he was doing at the time of committing the offence he was charged with and convicted. She relied on a host of authorities in support of her submission amongst which are R. v. Omoni (1949) 12 WACA 511; Echem v. R. (1952) 14 WACA 158; Loke v. State (1985) 1 ALL NLR (Pt. 1) 1 p.6; (1985) 1 NWLR (Pt. 1) 1; Karimu v. State (1989) 1 NWLR (Pt.96) 124; Onyekwe v. State (1988) 12 SCNJ (Pt.11) 354; (1988) 1 NWLR (Pt.72) 565; R. v. Onakpoya (1959) 4 FSC 150; (1959) SCNLR 384 and Aiworo v. State (1987) 2 NWLR (Pt.58) 526.

She urged this Court to allow the appeal and substitute the sentence of death with the order of detention of the appellant in a mental asylum the pleasure of the Governor. In support she cited Section 29(3) of the Criminal Code and the cases of Kayode Adams v. D.P.P. (1966) 1 ALL NLR 12 and Karimu v. The State (1989) 1 NWLR (Pt.96) 124.

In reply to the appellant’s submissions, learned counsel for the respondent referred to the evidence of PW2, PW6, that of the appellant and Exhibits A and A1 and submitted that the proper irresistible inference to be drawn therefrom is that the appellant was not by reason of intoxication insane, temporarily or otherwise, at the time he committed the offence.

On the issue as regards the interpretation of S.29(2)(b) he submitted that the Court of Appeal rightly construed the section and correctly applied it to the facts as presented. He contended that the appellant had failed to establish the defence of insanity by reason of intoxication at the time of the incident. He further submitted that the ipse dixit of the appellant was not enough to establish the defence under section 29(2)(b) of the Criminal Code. In support of these submissions he relied on Sanusi v. The State (1984) 10S.C. 166; R. v. Omoni (1949)12 WACA 511; Arum v. State (1979) 11 S.C. 91 at 129 and Aiworo v. The State (1987) 2 NWLR (Pt.58) 526. He urged this Court to uphold the concurrent findings of fact of both the trial court and the Court of Appeal as they are neither perverse nor based on wrong legal principle. He cited Elizabeth Ogundiyan v. The State (1991) 4 S.C.J.N. 44 at 45; (1991) 3 NWLR (Pt.181) 519 and Okosun v. A-G, Bendel State (1985) 3 NWLR (Pt.12) 283 at 289. He urged this Court to dismiss the appeal.

The germane and only issue that arises for determination in this appeal is whether, having regard to the undisputed and admissible evidence adduced by the prosecution, the appellant was entitled to benefit from the provisions of the proviso to section 29 of the Criminal Code. The section provides that

“29 (1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.

(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person, or

(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.

(3) ……………………………………..

(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention specific or otherwise, in the absence of which he would not be guilty of the offence.”

It is now necessary to examine the evidence adduced in order to see whether a defence under section 29 was established by the defence to the preponderance of probability.

PW2 in his evidence testified as follows –

“I know the accused. We are brothers of full blood. He is my junior.

“I know P.W.1. I knew the deceased Alphonsus Nwonu. I and the deceased and others were in our compound on the day of the incident. One Orogwu whose wife gave birth to a baby brought some palm wine. He gave us the wine. As we were drinking the accused came and joined us. I gave him a glass of palm wine which he drank. His eyes were red. After drinking the wine he went out. He came back about 5/10 minutes after. Some women were following the accused shouting “vulture had eaten me”. I don’t know what this means. A native lantern was on at the time. I saw the accused when he inflicted a matchet cut on the deceased. I got up to grip the accused. As I was about to grip him, he gave me a matchet cut on the jaw. (Witness shows the court a scar). I had no previous quarrel with him. I went to look for a stick. I brought a stick with which I struck him on the ground. The matchet fell down. I picked the matchet. The matchet is in my house.”

Under cross-examination, he testified thus:

“Did accused complain to you that day when he came back from work regarding his health

The accused met me somewhere around 4 p.m. and complained to me that he wasn’t feeling well.

You later returned to your compound

Yes.

You discovered accused’s eyes were red when you offered him a glass of wine

I noticed that his eyes were red at the time I offered him the glass of wine.

Have you ever noticed any signs of abnormal behaviour on the part of the accused

There was a time he went to Benue and complained to our relation there that some members of the family were planning to kill him.

Our relation brought him back and narrated the story to us.

We consulted a soothsayer who said that some day the accused would run mad. He demanded certain things. We gave him these things.

This was in 1979

Yes.

What has been the general behaviour of the accused after the soothsayer had performed those rituals

Sometimes after drinking, the accused would lock himself up and start crying.

How often has he behaved like this

He has done it about 3 times.

Has he behaved in any other way

No.

Some of his wives complained to you that he was at times hostile to them

They have never complained.

He was thrown into this mood when he has taking palm wine

No. Sometimes he would start behaving that way if he gets annoyed.

Do you know if accused had any previous quarrel with Alphonsus

I don’t know of any.”

PW5, Sgt. Richard Odunze, gave evidence that he investigated the case in the course of which the appellant volunteered a statement in Ibo language which he recorded, read it over to the appellant, said it was correct and thumb-printed it. The Ibo statement was later translated into English by the same witness. He tendered the original Ibo statement and its English translation and were admitted in evidence as Exhibits A and A1 respectively without objection by the defence. He said the appellant was very calm when he made Exhibit A.

On the mental condition of the appellant, PW5 stated under cross-examination thus-

“Did you investigate the antecedent of the accused

No.

Why didn’t you find out if accused was normal

There was no evidence of any abnormal behaviour other than that accused said it was under the influence of alcohol.”

PW6, Nwankpu Nwokporo, was the girl sent by the appellant to invite the deceased to their compound for a drink. She gave her evidence as follows:

“I know the accused. I knew the deceased. The accused sent me to the deceased on the day of the incident. The accused asked me to invite the deceased to the accused’s house. The deceased said he would come later. The deceased later came and joined the accused, Lazarus and others. I saw the accused when he inflicted a matchet cut on the deceased. People started running. I joined them. Lazarus ran away.”

On the mental condition and behaviour of the appellant, she said under cross-examination

“I was born during the Nigerian civil war.

You have been living with John in the same compound

Yes.

You know that at times the accused would lock himself up and start crying

I don’t know.

The accused used to run mad at times

I don’t know.

You ran away. You did not see when the accused inflicted a cut I saw when he inflicted a matchet cut on the deceased.”

The appellant gave evidence on his own behalf but called no witness. He denied killing the deceased or sending PW6 to call him, but that he was told he is dead. He further testified that-

“When I came back from work on the day the incident was alleged to have taken place, I saw some people sitting in front of our compound. When I inquired as to why they were there, I was told that one of my brother’s wives gave birth to a child. I went back to my house. Nothing else happened. I wouldn’t know if any other thing happened. I went into my house when I came back that day from work as I was not feeling well. I felt something was disturbing me on the head. I can’t say how I was behaving at that time. My brother said he took me somewhere sometime ago for mental trouble. I have been having mental trouble. Each time I was afflicted I wouldn’t know what I was doing.”

In the appellant’s statement made under caution he stated-

“I also know one Nwankpu Nwokporo (f) [PW6] I am not the person who sent the little girl to call Alphonsus Nwonu to come and drink at my place. I did not go to invite Alphonsus Nwonu by myself. He came to my house on his own by himself. When he came, I brought out palm wine for us to drink. Myself, Alphonsus Nwonu (m), Lazarus Imo (m) and Alina Orogwu stayed and drank the palm wine. I have no quarrel with Alphonsus Nwonu. I matcheted him under the influence of alcohol, I was drunk. I cannot say whether it was at his hand or where that the matchet cut him. It was under the same influence of alcohol that I matcheted my brother Lazarus Imo. It was at Ezamgbo Police Station that I heard that Alphonsus Nwonu died as a result of the matchet cut I inflicted on him. There is no other thing I want to say other than everything was under the influence of alcohol. I do not know the date of that day. I do not know the number of cups of palm wine I drank that day. But I know I start to drink palm wine from morning till in the evening that time.”

The learned trial judge after a painstaking consideration and evaluation of the evidence adduced, made the following crucial findings-

“…it seems to me that the death of the deceased has been satisfactorily established. There is the evidence of JOSEPH NWONU, P.W.1; LAZARUS IMO, P.W.2, and DR. OKEREKE, as to the injuries sustained by the deceased. I believe their evidence, I also believe the evidence of Dr. Okereke as to the cause of death and find as a fact that the death of the deceased resulted from a matchet cut. Having established cause of death, the prosecution led evidence to connect the accused with the case. There is before me the evidence of Nwankpu Nwokporo, P.W.6 who said she was sent by the accused to invite the deceased. Accused has denied sending her on that mission. I do not believe him. The evidence of JOSEPH NWONU which I believe, confirms that NWANKPU NWOKPORO give evidence (sic). She impressed me as a witness of truth and was unshaken under cross-examination. She was not in doubt as to what message she was asked to convey to the deceased. I see no justifiable reason to disbelieve her. There is also before me the evidence of the accused’s full brother, LAZARUS IMO, who gave an eye-witness account of the incident. I believe his evidence. I find as a fact that it was the accused who inflicted the cut that resulted in the death of the deceased. This fact is also corroborated by the accused’s statement to the police, Ex. A.”

………………………………

“The issue now is whether the defence of insanity has been made out in this case. The accused in his defence, said he could not remember what happened that day; that he fell something was disturbing him in his head when he came back from work. He further said that he has been having mental trouble and each time he was afflicted he would not know what he was doing. He was told by his brother that he had to be treated some time ago for a mental trouble. So far, so good. But the authorities say that the defence of insanity does not rest with the ipse dixit of the accused who raises it – see Lasisi Saliu v. The State (1984) 10 S.C. 111 at 127. It ought not to be determined on the evidence of the accused himself – see Oviefus’s case (supra) at p.246. Now in the first place, there is a complete lack of evidence as to where he was treated and no evidence as to, the nature of the illness.”

……………………………….

“Now in the first place, the alleged trip to Benue was in 1979. The offence for which he has been arraigned was alleged to have been committed in 1983. Again, the alleged behaviour as testified by Lazarus Imo does not seem to me to mean that the accused was insane. I do not agree that this constitutes insanity within the meaning of S.28 of the Criminal Code. There is also before me the evidence of Nwokporo, P.W.6, who had lived with the accused in the same compound. Under cross-examination of this witness, I recorded the following questions and answers:

Q. You have been living with John in the same compound

A. Yes

Q. You know that at times the accused would lock himself up and start crying

A. I do not know.

Q. The accused used to run mad at times

A. I do not know.

This evidence again does not establish legal insanity.”

……………………………………..

“Although Counsel did not raise the issue of the defence of drunkenness, I think this Court should consider it since the accused in his statement, Ex. A said,

‘There is no other thing I want to say other than everything was under the influence of alcohol.’

Does the defence avail him The answer is to be found in S.29 of the Criminal Code. The issue is further dealt with in DPP. v. Majewski (1976) 2 ALL E.R. 142. In the first place, unless the offence was one which requires proof of a specific intent or ulterior intent, it was (sic) no defence to a criminal charge that by reason of self-induced intoxication, the accused did not intend to do the act alleged to constitute the offence. Under S.79(2)(a) of the Criminal Code, unless the accused’s state of intoxication was induced by the malicious or negligent act of another the defence is not available. It is further provided under S.29(2)(b) of the Criminal Code that such defence does not avail him if the intoxication did not give rise to temporary insanity or otherwise at the time of killing. Now a legal defence is usually not made by merely shouting it, there must be evidence to support such a defence per IRIKEFE J.S.C. as he then was, in Egbe Nkanu v. The State (1980) 3-4 SC. 1 at 23. It was the accused himself who introduced the question of intoxication. This has to be proved and it is not proved by the mere mention of the word. That evidence however, may come from the prosecution. But is there any evidence in the instant case to support that defence There is in my view, a complete lack of evidence on this issue. There is no doubt that the accused might have consumed some alcohol. But the accused on return from work on the day of the incident had discussed intelligently with his brother, Lazarus. He showed no signs of abnormal behaviour. Lazarus offered him a glass of palm wine. Up to this stage there is nothing to show that accused was so intoxicated as to be temporarily insane. He could not have been, realising that it was the accused who sent P.W.6, Nwokporo to invite the deceased. He certainly knew what he was doing. Thereafter and a few days after the alleged murder, the accused made a statement Ex. A. He had a vivid recollection of the event. He gave detailed particulars of the role he played. Surely this is not what should be expected from a man who was insane or who had not the requisite intent under S.29(2)(b) and S.29(4) of the Criminal Code. The defence appears therefore to me to be an afterthought. That being so, I hold that it does not avail him.”

In the unanimous judgment of the Court of Appeal, Uwaifo, J.C.A., dealt with the issue of insanity, after examining the evidence in support thereof, and came to the following conclusions

“From the above, it is clear that the appellant gets into his crying mood either when he drinks or is annoyed. I do not see how this can remotely be regarded as insanity. At best it is an unusual behaviour which is triggered off by the two identified causes. An unusual or abnormal behaviour does not itself constitute insanity:

see Sanusi v. The State (1984) 10 S.C. 166 at 203….”

“The other aspect of the evidence of insanity was given by the appellant himself. He said:

‘I went into my house when I came back that day from work as I was not feeling well. I felt something was disturbing me on the head. I can’t say how I was behaving at that time……. I have been having mental trouble. Each time I was afflicted I wouldn’t know what I was doing. All that I know is that I later found myself at the Police Station, Enugu.’

This is a mere ipse dixit of the appellant. It is the law that the evidence of an accused himself is not sufficient to prove his mental infirmity: see Idowu v. The State (1972) 1 ALL NLR (Pt.2) 5 at 9; Lasisi v. The State (1984) 10 S.C. 111 at 127-129; Arisa v. The State (1988) 3 NWLR (Pt.83) 386 at 397, 401, 406.

No evidence to satisfy the first arm of section 28 of the Criminal Code was therefore adduced to establish insanity…….”

On the issue of defence of temporary insanity caused by intoxication, whether induced by the malicious or negligent act of another person or voluntarily self induced, the learned Justice of the Court of Appeal made the following finding.

“The learned judge also dealt with intoxication as a defence or an aspect of insanity. Under section 29(2)(a) of the Criminal Code, the accused’s state of intoxication was induced by the malicious or negligent act of another person. Again, under section 29(2)(b) such a defence will not avail the accused unless the intoxication did not give rise to temporary insanity at the time of the killing: see D.P.P. v. Beard (1920) A.C. 479, provided it was not self-induced. In Egbe Nkanu v. The State (1980) 3 & 4 S.C. 1 at 12 per Obaseki J.S.C., it was held that the burden of proof of intoxication as a defence rests on the accused. The confessional statement of the appellant shows that he voluntarily intoxicated himself, if at all, by claiming that he drank from morning to evening of that day.”

It is clear from examination of the evidence adduced, both the trial court and the Court of Appeal were right in making findings that neither the defence under Section 28 or section 29 of the Criminal Code was proved by the appellant on whom the onus rested. See R. v. Oliver Smith, (1910) 6 CR. APP. R. 19 and Section 14 of the Evidence Act.

The evidence of PW2 relating to the time that the appellant went to Benue and complained to a relation that some members of the family were planning to kill him as a result of which he was brought back and a soothsayer was consulted in 1979, who gave the opinion that the appellant would run mad one day is not per se, even if admissible [which I hold it is not] evidence of madness at the time he committed the heinous crime. This was amply brought out by the evidence of PW2, PW5 and PW6 and Exhibit A. The appellant was able to give a vivid account of himself that day, including the infliction of the matchet cuts on the person of the deceased. His evidence in the box did not give the impression of madness as he could seem to recollect where he was, what was happening in their compound, who and who were there and when he was offered a glass of palm wine by PW2 which he accepted and consumed. It was after then he went out only to come back later to inflict the injuries on the deceased which caused his death. He was able to remember that he came back home not feeling well in spite of the fact that he had been drinking palm wine throughout that day. These are conducts showing that he was not so drunk at the time he committed the offence as to be unable to know that what he was doing was wrong. See R. v. Majewski (1975) 3 ALL E.R. 296, and R. v. Hansen Owarey, (1939) 5 WACA 66.

Prima facie, drunkenness is not a defence to a criminal charge, as every person of the age of discretion is presumed to be sane and to have intended the natural consequences of his actions. But evidence of drunkenness which renders the accused person incapable of forming the specific intent essential to constitute the crime, with other facts proved, are taken into consideration in order to determine whether he had that intent.

Be it noted that mere absence of motive for a crime however atrocious it may be, in the absence of proof of insanity, or evidence of drunkenness that produces such a degree of madness, even for a time, as to render the accused incapable of distinguishing right from wrong, cannot avail the appellant of the defence provided in Sections 28 and 29 of the Criminal Code: see Nkwuda Nwelebe v. The Queen (1963) 1 S.C.N.L.R. 311. The test to be applied is whether by reason of drunkenness, the accused person was incapable of forming an intention of committing the offence. See Egbe Nkanu v. The State (1980) 3-4 S.C. 1 where Obaseki, J.S.C., gave a thorough consideration of both sections 28 and 29 of the Criminal Code.

The findings of fact so meticulously made by the trial court and subsequently affirmed by the Court of Appeal, are impeccable. They preclude a defence under both sections 28 and 29 of the Criminal Code being available to the appellant.

The statement by the Court of Appeal in its judgment that under section 29(2) the defence of drunkenness will not avail the accused while it is self induced, is too wide. It can reduce murder to manslaughter where it resulted in temporary insanity. But that not withstanding, no miscarriage of justice is occasioned in this case having regard to the evidence adduced and accepted.

The appeal lacks merit and it is dismissed. The judgments of both the trial court and the Court of Appeal are hereby affirmed.A. G. KARIBI- WHYTE, J.S.C.: I have read the judgment of my learned brother Wali, J.S.C. dismissing this appeal. I agree entirely with his reasoning and conclusion. I wish only to comment in amplification of the reasoning rejecting the defences of insanity and intoxication raised in the defence of the Appellant.

My learned brother Wali, J.S.C. has stated the facts compendiously and with admirable clarity. I adopt them. I shall confine myself in the determination of this appeal to the interpretation of the provisions of section 29(2) (b) of the Criminal Code Cap.30 Vol. 11, Laws of Eastern Nigeria; as applicable to the facts of this case.

Appellant was charged with the murder of Alphonsus Nwonu on or about the 29th December, 1983 contrary to section 319(1) of the Criminal Code. Appellant was alleged to have invited Alphonsus Nwonu, the deceased, for drinks at about 5 p.m. There were other persons at the party, including Lazarus Imo, a brother of the full blood with the Appellant. Appellant was said to have drank a glass of wine offered him by his brother Lazarus. His eyes were said to be red at the time. Appellant left the party briefly. He returned within 5-10 minutes followed by some women chanting that Vulture had eaten him. Immediately on his return, appellant dealt matchet blow on the right forearm of the deceased, inflicting a deep injury from which he bled to death a few hours thereafter. Appellant also inflicted matchet cut on the jaw of his brother Lazarus, who attempted to stop him. Nevertheless Lazarus, with the aid of a stick he picked up, knocked off the matchet from the Appellant. Appellant was subsequently apprehended and his hands tied. He escaped and was later apprehended by the villagers. The matter was reported to the Police.

In his statement to the Police made on the 5th January, 1984, Appellant stated as follows –

“I have no quarrel with Alphonsus Nwonu. I matcheted him under the influence of alcohol. I was drunk I cannot say whether it was at his hand or where that the matchet cut him. It was under the same influence of alcohol that I matcheted my brother Lazarus Imo. It was at Ezzambgbo Police State that I heard that Alphonsus Nwonu died as a result of the matchet cut I inflicted on him. There is no other thing I want to say other than everything was under influence of alcohol.

On the 27th May, 1986 Appellant gave oral evidence in his defence of the charge and stated as follows-

“…I did not murder the deceased. I know the deceased Alphonsus. He was my in-law. I was told that he is dead. When I came back from work on the day the incident was alleged to have taken place, I saw some people sitting in front of our compound. When I inquired as to why they were there, I was told that one of my brother’s wives gave birth to a child. I went back to my house. Nothing also happened. I wouldn’t know if any other thing happened. I went into my house when I came back that day from work as I was not feeling well. I felt something was disturbing me on the head. I can’t say how I was behaving at that time. My brother said he took me somewhere sometime ago for mental trouble. I have been having mental trouble. Each time I was afflicted I wouldn’t know what I was doing. All that I know is that I later found myself at the Police Station, Enugu. I did not know when I was taken to Enugu.

x x x x x x

I did not tell the police that I killed Alphollsus because I was drunk……….”

This is a complete retraction of the defence of intoxication raised in the statement of the 5th January, 1984 and the introduction of insanity in substitution. Appellant no longer admitted having anything to do with the death of the deceased. The learned trial Judge considered the defence of intoxication even though learned Counsel to the accused did not raise it. Learned trial Judge, finding no evidence in support of the defence, accordingly rejected it. Similarly the learned trial Judge considered the defence of insanity and dismissed it also on the grounds of want of evidence. Appellant appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal and affirmed the conviction and sentence. The Appellant has appealed further to this Court.

Three grounds of appeal were filed. Appellant formulated the following two issues for determination-

(i) whether the Court of Appeal correctly interpreted S.29(2)(b) of the Criminal Code, Cap, 30 Vol. 11, Laws of Eastern Nigeria 1963, applicable in Anambra State.

(ii) whether the Court of Appeal was right in affirming the judgment of the trial Court that the defence of insanity temporarily or otherwise caused by intoxication was not established to exonerate the appellant from criminal liability, in view of the evidence at the trial.”

The only issue formulated by learned Counsel to the Respondent, appears to have taken into account the two defences of insanity and intoxication formulated by the applicant. Both learned Counsel adopted their briefs of argument and relied on them in oral argument.

I consider it appropriate and helpful to reproduce the provisions of section 29 (1)-(4) of the Criminal code.

29 (1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.

(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such an act or omission was wrong or did not ,know what he was doing and –

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.

(3) Where the defence under the preceding subsection is established, then in a case falling under paragraph (a) thereof the accused person shall be discharged, and in a case falling under paragraph (b) sections 229 and 230 of the Criminal Procedure Act shall apply.

(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.”

Learned Counsel to the Appellant’s submission is that the Court of Appeal misconstrued the law by stating that

“…Under section 29(2)(b) such a defence will not avail the accused unless the intoxication did give rise to temporary insanity at the time of the killing; See D.P.P. v. Beard (1920) A.C. 479 provided it was not self-induced.”

Learned Counsel submitted, and correctly too, that the correct interpretation of section 29 (1) is that intoxication is not a defence to a criminal charge. Learned Counsel went on to submit that where a person committed an offence as a result of intoxication caused by the malicious or negligent act of a third party, without his consent; the defence of intoxication will avail him; if as a result of the intoxication he did not know the act or omission was wrong or did not know what he was doing. So far so good – See R v. Owarey (1939) 5 WACA 66.

Relying on the provisions of seclion 29(2)(b) learned counsel submitted that temporary insanity produced as a result of intoxication, and which prevented a person from doing the act or making the omission, or knowing that what he was doing was wrong, or did not know what he was doing, constitutes a defence under the law. It is immaterial whether the intoxication was self-induced.

Intoxication apart, the defence of insanity can only be established in accordance with the first limb of section 28 of the Criminal Code. This provides that the accused must be doing the act or making the omission constituting the offence, must show that he was at such time in a state of mental disease or natural mental disease or natural mental infirmity which deprived the accused of the capacity to understand what he was doing or to control his actions or of capacity to know that he ought not to do the act or make the omission. The following decisions were cited and relied upon in support of the submissions – R. v. Omoni (1949) 12 W.A.C.A. 511; Echem v. R (1952)14 WACA 158; Loke v. The State (1985) 1 All NLR (Pt. 1) 1; (1985) 1 NWLR (Pt. 1) 1, Karimu v. The State (1989) 1 NWLR (Pt. 96) 124; Onyekwe v. The State (1988) 2 SCNJ (Pt. 11) 354; (1988) 1 NWLR (Pt.72) 565.

Learned Counsel, citing R. v. Owarey (1939) 5 WACA 66, Nkanu v. The State (1980) 3-4 S.C. 1 Karimu v. The State (1989) 1 NWLR (Pt. 96) 124, submitted that sections 28 and 29 (2)(b) of the Criminal Code if read together, intoxication which results in mental disease or natural mental infirmity, may cause an accused to know the act or make the omission or know that such act or omission was wrong. It is immaterial whether the intoxication was self-induced.

The second line of argument of learned Counsel to the Appellant was a defence of insanity simpliciter under the provisions of section 28 of the Criminal Code. Counsel relied on the oral evidence of the appellant at his trial, and the evidence of his brother, Lazarus Imo P.W.2. Learned Counsel conceded that the mere assertion of an accused person that he was insane at the time of the commission of the offence alleged is insufficient to establish the defence of insanity. There must be other evidence before the court, either from the prosecution or the defence – Nkanu v. The State (1980) 3-4 S.C. 1 Aiworo v. The State (1987) 2 NWLR (Pt.58) 526; Onyekwe v. The State (1988) 2 SCNJ (Pt.11) 354, (1988) 1 NWLR (Pt.72) 565. Learned Counsel to the Appellants criticized the Court of Appeal for rejecting the evidence of insanity given by Lazarus Imo, PW2, as hearsay and inadmissible.

PW2 had in his evidence under cross-examination answered that

“There was a time he went to Benue and complained to our relation there that some members of the family were planning to kill him. Our relation brought him back and narrated the story to us. We consulted a soothsayer who said that some day the accused would run mad. He demanded certain things. We gave him those things.”

Counsel referred to other pieces of evidence both by the Appellant and PW2 taken together which he regarded as sufficient evidence of insanity. In his brief of argument learned counsel set them out as follows –

“Therefore besides the mere assertion of the appellant that he was suffering from insanity caused by intoxication at the time of the commission of the offence, there were also the following evidence from PW2. Firstly, that the appellant had a history of mental trouble. Secondly, that when the appellant drank palm-wine he would cry and lock himself up. Thirdly, that on the day of the incident the appellant’s eyes were red before he was offered palm-wine and fourthly, that the appellant behaved abnormally and attracted a gathering of women to himself. These facts are sufficient taken in conjunction with the assertion of the appellant to establish that the appellant was at least temporarily insane at the time of the commission of the offence.”

Learned Counsel submitted that the appellant had discharged the onus of establishing at least temporary insanity caused by intoxication which prevented him from knowing what he was doing at the time he committed the offence. The Court of Appeal therefore erred in denying the appellant the defence of insanity caused by intoxication.

Finally, it was submitted, the appeal ought to be allowed and a verdict of not guilty by reason of insanity be substituted for the verdict of guilty of murder. Accordingly, in accordance with section 29(3) of the Criminal Code, appellant should be ordered to be detained in a mental asylum pending the pleasure of the Governor – See Kayode Adams v. DPP (1966) 1 All NLR 12.

Learned Counsel to the Respondent has formulated only one issue for determination as follows-

“whether on the facts of the case, both the trial Court and the Court of Appeal were right in rejecting the defence of insanity by reason of intoxication raised by the appellant.”

Although learned Counsel to the Appellant made submissions on the issues of insanity induced by intoxication and insanity simpliciter, the only surviving ground of appeal before us is in respect of insanity induced by intoxication. Hence the issue formulated by learned Counsel to the Respondent is more consistent with the ground of appeal before us, and the facts of this case.

It is now well settled that the issues for determination must not only relate to the grounds of appeal filed but must strictly be confined to them. Hence, since the only surviving ground of appeal is with respect to the construction of section 29(2) of the Criminal Code in its application to the facts of this case every other issue becomes irrelevant. However, since the two issues formulated by learned Counsel to the Appellant are not in substance different from the one issue formulated by the Respondent, it does not affect the judgment which ever formulation is adopted.

I have already summarized the submissions of learned Counsel to the Appellant. I agree entirely with the submission that the Criminal Code is exhaustive as to the offences and defences provided therein, and in construing its provisions recourse for assistance need not be had to English decisions or common law concepts in existence before its enactment. – See Odu v. State (1965) 1 All NLR 25.

It is undoubtedly helpful to read the provisions of section 28 and 29(2) of the Criminal Code together where the defence raised is one of insanity arising from intoxication. But the facts of the particular case may dictate the adoption of a different approach. I shall now proceed to attempt a construction of the provisions of section 28 and 29(2)(b) of the Criminal Code Cap. 30 Vol. 111, Laws of Eastern Region on which the defences in this appeal have been founded.

Section 28 of the Criminal Code provides for a defence of insanity based on mental disease or natural mental infirmity, such that the accused did not know the nature and quality of the act he was doing, or if did know it, he did not know he was doing what was wrong.

Again, if a person commits an offence under an insane delusion, which is not applicable to this case, and is not in other respects insane, he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real.

Under section 29, sub-section (1) states that intoxication per se does not provide a defence to a criminal charge, see Karimu v. State (1989) 1 NWLR (Pt.96) 124. It constitutes a defence under sub-section (2), if by reason of intoxication the accused did not know at the time of the act or omission, that such an act or omission was wrong or did not know what he was doing; and

(a) the intoxication was caused by the malicious, or negligent act of another without his knowledge or consent

(b) the accused was by reason of the intoxication temporarily insane, or otherwise, at the time of such act or omission. – See Karimu v. The State (supra).

The distinction in the two situations drawn by learned Counsel to the Respondent is that under section 29(2)(b) the accused has to establish that his insanity was the direct consequence of intoxication caused without his knowledge or consent and that he was intoxicated by reason of the alcoholic drink he took immediately before or at the time of the incident. Whereas, a defence under section 28 is founded on mental disease or natural mental infirmity or on delusion. I accept the distinction as apt. But there is a common bond in the two defences. This is that in either case, the accused must establish that at the relevant time, he was deprived of capacity to understand what he was doing or to control his actions or to know that he ought not to do the act or make the omission – See Arisa v. The State (1988) 3 NWLR (Pt. 83) 386 S.C.; Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565 S.C.; Karimu v. State (1989) 1 NWLR (Pt. 96) 124

It is clear from what has been said above that the two defences based on insanity are predicated on two distinct origins. Section 28 is on mental disease or natural mental infirmity. Section 29(2) is founded on involuntary intoxication.

There is no doubt on the evidence before the Court that the only admissible defence is founded on insanity by reason of intoxication and falls under section 29(2) of the Criminal Code. I have already reproduced the statement of the Appellant to the Police where he stated unequivocally as follows –

“I have no quarrel with Alphonsus Nwonu I matcheted him under the influence of alcohol. I was drunk I cannot say whether it was at his hand or where that the matchet cut him. It was under the same influence that I matcheted my brother Lazarus Imo.”

x x x x x x x x

There is no other thing I want to say other than everything was under the influence of alcohol…”

As against this evidence, the evidence of insanity was first given in the oral testimony of the Appellant at his trial, almost two years after his statement to the Police. After denying that he killed the deceased and without remembering anything about the incident said:

“I went into my house when I came back that day from work as I was not feeling well. I felt something was disturbing me on the head. I can’t say how I was behaving at that time. My brother said he took me somewhere sometime ago for mental trouble. I have been having mental trouble. Each time I was afflicted I wouldn’t know what I was doing….”

Learned trial Judge did not believe him. The Court below agreed with him. I have no reasons to disagree. Learned Counsel to the Appellant had submitted that this piece of evidence, together with the evidence of PW2, Lazarus Imo, that Appellant’s brother in Benue sometime told him something amounting to appellant suffering from persecution mania, the redness in appellant’s eyes, and the soothsayer’s prognostics that appellant would some day run mad, and the occasional

behaviour of appellant after drinking alcohol, of locking himself in his room and weeping.

“I do not think learned Counsel to the Appellant fully appreciated the nature of the evidence being relied upon as evidence of insanity, Apart from the fact that the oral testimony of the Appellant’s insanity is his own mere ipse dixit, it is generally not sufficient as proof of his mental condition – See Karimu v. The State (supra), Idowu v, the State (1972) 1 AUNLR (Pt. 2) 5 at 9, Lasisi v. The State (1984) 10 S,C, 11I, Arisa v, The State (1988) 2 NWLR (PL83) 386, Besides, the other evidence being hearsay, is not admissible.

The law is well settled in favour of the presumption of sanity of the Appellant – See S27 Criminal Code, Hence where Appellant is claiming to be insane the onus is on him to establish that fact – See S.140(3)(c) of the Evidence Act. Similarly, the burden is on the accused to prove the defence of intoxication which also is a question of fact. – See Nkanu v. The State (1980) 3-4 S.C 1

I now turn to the discharge by appellant of the burden of proof on him, The Court of Appeal made the following findings-

“The learned Judge also dealt with intoxication as a defence or an aspect of insanity, Under section 29(2)(a) of the Criminal Code, the accused’s state of intoxication was induced by the malicious or negligent acts of another person, Again, under section 29(2)(b) such a defence will not avail the accused unless the intoxication did not give rise to temporary insanity at the time of the killing; See DPP v. Beard (1920) A.C. 479 provided it was not self-induced. In Egbe Nkanu v. The State (1980) 3 & 4 S.C 1 at 12 per Obaseki J.S.C. it was held that the burden of proof of intoxication as a defence rests on the accused. The confessional statement of the appellant shows that he voluntarily intoxicated himself, if at all, by claiming that he drank from morning to evening of that day”

It seems to me from the findings of facts in the Courts below that neither the burden of proof required of the defence of insanity under S.28 nor of intoxication under section 29 of the Criminal Code was discharged by the Appellant – See Mbenu v. State (1988) 3 NWLR (Pt. 84) 615 S.C The appeal therefore must fail. For the above reasons and the fuller reasons in the judgments of my learned brother Wali, J.S.C, I also will and hereby dismiss the appeal. Judgments of the courts below are affirmed.

The appeal lacks merit, it is hereby dismissed.


SC.21/1991

Published by

LawGlobal Hub

LawGlobal Hub is your innovative global resource of law and more. Among other things, we ensure easy accessibility to the laws of countries around the world.

Leave a Reply

Your email address will not be published. Required fields are marked *