Michael Aiworo V. The State (1987)

LawGlobal-Hub Lead Judgment Report

KAZEEM, J.S.C. 

On 26th February, 1987, this appeal was summarily dismissed and the conviction and sentence of death was confirmed. I now, give my reasons for doing so.

The appellant was convicted for murder and sentenced to death at the High-court of justice. Bendel State sitting at Benin City on 15th March, 1985, His appeal to the Court of Appeal Benin City was also dismissed as being unmeritorious. He has now appealed to this court.

It was a bizarre and gruesome murder. The appellant decapitated his six months old son and also successfully killed his mother and brother-in-law for no just cause. In the statement made to the police he was said to have come in one night cooked and eaten the rice bought from the market by his wife, and then slept. Waking up a little later he started picking up trouble with the wife and shortly after he said he would kill his son and did so inspite of the wife’s protest. He then knocked out the wife unconscious and killed the two others later.

At the trial, his testimony was at variance with his extra judicial statement to the police. He did not deny the killings. In fact he thought he killed the wife too. But he denied knowing that what he did was wrong. He attributed his action to having smoked a wrap of Indian Hemp which a friend bought from an old lady and gave him to smoke. He did not call those two persons to corroborate his evidence. But a psychiatrist who saw him on 9th August, 1984, about seventeen months later in the prison testified and opined that the appellant could have been suffering from a disease of the mind called schizophrenia; and that being of unsound mind he could not stand his trial at that time. The appellant was later treated and thereafter he was declared fit to plead and to stand his trial. The psychiatrist did not however see or examine him at the time of the commission of the offences but he based his opinion on the hearsay facts obtained from appellant’s relatives about the appellant’s background.

The learned trial judge meticulously considered the evidence of the prosecution witness and the defence of the appellant. He carefully considered the defence of insanity, insane delusion and intoxication in relation to the provisions of sections 28 and 29 of the Criminal Code of Bendel State. And after examining the principles laid down in a long line of cases by this court on issues of insanity and allied defences particularly in Ngene Arum v. The State (1979) 11 S.C.91 and Egbe Nkanu v. The State (1980) 3 & 4 S.C. 1, he came to the conclusion that the defences of insanity, insane delusion and self induced intoxication did not avail the appellant.

In the course of his judgment the learned trial Judge said:

“The mere assertion of the accused person that three minutes after his smoking Indian Hemp. he did not know what he was doing he started fighting his son and wife, this statement of the accused person is certainly not proof’

But earlier on the learned trial Judge after referring to Section 140(1) of the Evidence Law that the burden was on the appellant to prove that he became temporarily insane from intoxication as a result of smoking Indian hemp, observed that:

“In this instant case, there is no evidence that the accused person smoked the Indian hemp, other than the fact that he said he smoked it. He did not call the Odede (old woman) who sold it to his friend nor called (sic) the friend who he said gave him the wrap of Indian hemp to smoke. In fact he said he did not know the name of his friend”.

In the end, the appellant was convicted of the offences as charged and sentenced to death. On an appeal to the Court of Appeal, Benin City that Court in dismissing it, found that:

“The Appellant in this case was not for a moment oblivious of what he was doing and his voluntary statement and evidence on oath in court bear this out. Udofia v. The State (1981) 11- 12 S.C. 49. The appellant knew what he was doing and he is responsible for the consequence of his act”

On a further appeal to this court the first brief filed by Chief Akinrele (S.A.N.) who represented the appellant was that he had nothing to urge in favour of the appellant having regard to the circumstances of the whole case. But during the hearing of the appeal, an observation was made by some members of the court that the learned Senior Advocate of Nigeria who was not then present in Court to defend his brief should look further into the issue of insanity and intoxication caused by the alleged smoking of Indian hemp by the appellant, to see whether or not they could have availed him as defence under sections 28 and 29(2) of the Criminal Code. It was then that a further brief was filed. In that brief the two defences of insanity and intoxication by taking a narcotic were thoroughly examined. Learned counsel still felt that no sufficient evidence was adduced to support a defence of insanity. But with respect to the defence of intoxication caused by alleged smoking of Indian hemp, it was submitted that it was misdirection on the part of the Learned trial Judge to say that the mere assertion of the Appellant that three minutes after his smoking of Indian hemp. he did not know What he was doing and started fighting his son and wife, was certainly not proof that he smoked the Indian hemp.

It was further argued that there was the testimony of the Appellant himself that he smoked the Indian Hemp and whether that evidence was believed or not by the learned trial Judge was a different matter. But to say that it was “certainly no proof’ was a gross misdirection by the learned trial Judge which was sufficient to vitiate his findings on the issue of intoxication under Section 29(2) of the Criminal Code. We were therefore urged to allow the appeal on that point alone.