Mfon Udo Mboho V The State (1966)

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IDIGBE, J.S.C.

The appellant was convicted of the murder of his brother, Edet Udo Mboho, and sentenced to death in the High Court of Eastern Nigeria (Nkemena, J.).

The motive for the murder does not appear from the record. Briefly, the facts given in evidence in support of the case for the prosecution are as follows: On Sunday, 4th October, 1964, the deceased was seen standing outside a house which he and the appellant had occupied together for many years; all of a sudden the appellant emerged from the house armed with a matchet with which he chased the deceased. Although the deceased ran for dear life he was soon overtaken by the appellant who inflicted several matchet cuts on him in consequence of which he (the deceased) died. No quarrel, immediately or remotely, preceded the action of the appellant.

In his written statement to the police (Exh 1), the appellant stated as follows:-

“….I know Akpan Udo Mboho, he is my brother. Both of us were living in one house …. I do not know where …. (he) is now…. I am now in the prison yard. I do not know why I was taken there …. I do not know why I killed my brother.” (brackets supplied)

The defence of the appellant, in court, was very much in keeping with Exh 1. The learned trial judge considered the defence of insanity and found that it was not established and he convicted the appellant as already stated earlier on.

The first ground of appeal put forward on behalf of the appellant reads-

”No evidence was led and there was no finding by the court that the appellant was fit to stand trial. The learned trial judge failed to draw a distinction between medical evidence relating to fitness to stand trial which the court upon its own motion had called for and evidence rebutting the defence of insanity.”

The second part of the ground of appeal set out above is directed against the fact that the court, while considering the defence of insanity put forward on behalf of the appellant, made use of the evidence given by the medical officer on the occasion when the court was investigating the appellant’s fitness to stand his trial; and the first part of that ground of appeal with which we are concerned in this judgment, is directed against the absence of any specific finding by the learned trial judge at the end of his investigation into the fitness of the appellant to stand his trial.

It all began like this: On 14th April, 1965 when the case came up for trial the court formed the impression that it was necessary to investigate the fitness of the appellant to stand his trial; and the following notes appear on the record.

“ ….charge read and explained in Ibibio (to the accused). Plea-not guilty. Court Order:-In view of the statement made by the accused to the police the accused is placed under medical observation for one month from to-day in order to ascertain his fitness to stand trial. The doctor is also ordered to appear on the next adjourned date to give evidence of his findings.”

(brackets and underline supplied)

Subsequently, the doctor gave evidence, and parts of his evidence read-

“…the accused is a man of low intelligence with a pre-morbid personality of introversion and emotional outbursts. During the interview he remained for most parts evasive, suspicious and unreliable. I can find no disturbance of his sensorium . My impression is that the accused is not suffering from any psychiatric disability and in my opinion cannot claim diminished responsibility for any act he might have committed.”

Later, in cross-examination, the doctor added-

“….the accused is a drunkard. He suffers from dipsomania which is a condition where a small quantity of alcohol disorganises the person. I formed the impression the first day I interviewed him. He admitted that he was drunk on that day when the incident took place ….He was not suffering from loss of sense. He was presenting what we call a Gauser Syndrome. This condition is seen in criminals, usually persons charged with murder…..”

The learned trial judge made no specific finding on his investigation into the fitness of the appellant to stand trial before he continued with the trial of the appellant. Before us it was contended by learned counsel for the appellant that this was a grave error in law, but learned counsel for the State submitted that it was not necessary for the learned trial judge to make any specific finding before continuation of the trial; if he (the learned judge) was satisfied that the appellant could stand his trial then, although he made no specific finding on the issue, the trial may continue.

We think it is necessary to examine the relevant provisions of the Criminal Procedure Act. Section 223 (1) provides-

“When a judge holding a trial or a magistrate holding a trial or an inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence the judge, jury or magistrate, as the case may be, shall in the first instance investigate the fact of such unsoundness of mind.”

We note that in the case in hand, the appellant had already pleaded to the charge before the learned trial judge deemed it necessary to make the investigation under consideration; but it is our view that the language of section 223 (1) of the Criminal Procedure Act is clear and wide enough to allow for such investigation at any stage whether before an accused pleads to the charge or after, and even after the court has begun to receive evidence. Learned counsel for the appellant drew our attention to the case of Reg. v. Ogor [1961] All N.L.R. 70 where sections 223 and 224 of the Criminal Procedure Act were discussed; that case, however, does not cover the precise point which calls for determination in this ground of appeal, because in that case (Ogor) a specific finding that the accused was capable of making his defence was in fact made by the learned judge. Section 224 (3) however, reads-

“The trial of the issue as to whether or not the accused person is of unsound mind and incapable of making his defence shall, if the finding is that he is of sound mind and capable of making his defence, be deemed to be part of his trial before the court.” (underline supplied).

In our view, this subsection envisages that if the trial is to continue there ought to be a specific finding on an investigation under section 223 of the Criminal Procedure Act if such an investigation was in fact made. This view is reinforced by the fact that if the trial had been before a judge and jury, it would have been necessary for the jury to make a finding on the facts given in the course of such investigation before the trial continued. Sections 223 and 224 of the Criminal Procedure Act have really not made any specific and/or detailed provisions for the procedure to be adopted by a court in the course of such investigations but section 363 of the Criminal Procedure Act proves as follows:-

“The procedure and practice for the time being in force of Her Majesty’s High Court of Justice in England in criminal trials shall apply to trials in the High Court in so far as this Act has not specifically made provision therefore.”

In England, the issue whether an accused person is fit to plead or take his trial is an issue upon which a final decision must be given by the jury; and if a jury trying such an issue is unable to reach an agreement a fresh jury must be impanelled to decide the issue before trial should proceed or continue. In Darkhu, the accused was charged with wounding with intent to murder.

Before his plea was taken a jury was sworn to determine whether he was fit to plead and evidence was given that he was suffering from paranoic schizophrenia. On this issue the jury disagreed and the question arose whether a further jury should be sworn to return a verdict on the issue or, whether, the evidence having failed to satisfy the jury of the accused’s insanity, the court should proceed to trial of the charge contained in the, indictment. Finnemore, J. held (accepting the submission by learned counsel for the Crown) that the issue was one on which a final decision must be made; he then discharged the jury and impanelled a new one-see (Practice Note); Regina v. Darkhu [1956]. 1 W.L.R. 989. We think the decision of Finnemore, J. in Darkhu represents the correct practice in England (See also Byme, J. in Reg. v. Beynon [1957] 2 W.L.R. 956). It is interesting to note that, although the case of Ogor (supra) did not decide the specific point raised in this ground of appeal, the final order of Bairamian, F. J. supports this view, and it reads-

“The conviction is quashed…. and the appellant Michael Ogor is ordered to be tried before a court of competent jurisdiction presided over by another judge, who shall first satisfy himself by evidence that Michael Ogor is of sound mind and capable of making his defence,…..” (underline supplied)-See [1961 ] All N.L.R. at p. 77.

We think, therefore, that the learned trial judge was very much in error when, without making any finding on his investigation on the fitness of the appellant to make his defence, he continued with his (appellant’s) trial. That being so we do not think that it is necessary to consider the other grounds raised in this appeal.

This appeal must be allowed. The conviction of the appellant is quashed and it is hereby ordered that the appellant Mfon Udo Mboho be tried before a court of competent jurisdiction presided over by another judge, who shall first satisfy himself by evidence that Mfon Udo Mboho is of sound mind and capable of making his defence, and in the meantime Mfon Udo Mboho should be under medical observation.

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Other Citation: (1966) LCN/1343(SC)