Michael Aiworo V. The State (1987)
LawGlobal-Hub Lead Judgment Report
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.
A reference to the earlier part of the judgment of the trial Court shows that the above submission is a misconception of what the learned trial Judge meant. At page 58 line 30 to page 59 lines I – 3 learned trial Judge had said that other than the ipse dixit of the appellant that he smoked a wrap of Indian Hemp he failed to call those people said to be responsible for giving it to him to corroborate his own evidence. Indeed the learned trial Judge not only carefully considered the evidence adduced by the prosecution on the conduct of the appellant which did not suggest any insane behaviour but he also thoroughly reviewed the relevant decided authorities of this Court on the point. For instance how can one reconcile the behaviour of the Appellant at the material time with that of an insane man In his statement (Exh. A) made to the police shortly after the commission of the offence he said that it was after he had cooked and eaten the rice brought from the market by his wife and slept that he woke up and started formenting troubles with his wife, and then killed his six months’ old baby and his mother and brother-in-law because he had smoked a wrap of Indian Hemp. But at his trial he told a different story that it was a friend who had bought the Indian Hemp from an old woman that induced him to smoke it which caused the whole trouble. However, his wife’s evidence contradicted that behaviour at the material time. She said that the appellant returned home late at night on the day of the incident had his bath and slept; and it was after he woke up that he said he would kill his son and that inspite of her protest he did. The wife (P. W. 7) said that the appellant had never at any time exhibited any previous insane behaviour and that she had even left the son with him to look after whenever she went to the market.
It is to be noted that there was no evidence that the appellant smoked Indian Hemp other than his own ipse dixit that he did. He did not call any corroborative evidence on the point; and the evidence of the psychiatrist suggesting that he could have been suffering from schizophrenia was rightly in my view regarded as hearsay by the trial Judge because he neither saw nor examined him at the time of the commission of the offence. The doctor based his opinion as to the appellant’s background on the story of his relatives.
This court has had occasions to consider the defences of insanity and intoxication under Sections 28 and 29 of the Criminal Code and the cases Ngene Arum v. The State (Supra) Egbe Nkanu v. The State (Supra) and Udofia v. The State (1981) 11 – 12 A.C. 49, have thoroughly dealt with the issue. The case of Egbe Nkanu v. The State is particularly relevant to this appeal in that the facts therein are similar to those herein.
In that case the appellant after drinking some quantity of palm wine and smoking a stick of cigarette (apparently a narcotic) looked for, and got hold of an old woman, dragged her to the front of his house and decapitated her. He claimed to be insane when he did it and that he did not know that what he did was wrong. But it was found that the act was pre-meditated.
In that case Obaseki J.S.C. said at page 12 thus:
“My Lord, it is my respectful opinion that the failure of the defence to adduce evidence from which intoxication can be inferred deprived the appellant of that defence. Intoxication is a question of fact to be established by evidence. It is not proved by the mere mention of the word. Similarly, insanity is not proved by the mention of the word …. These defences are also not proved by mere denial of knowledge when or that the act was committed. The burden of proof of intoxication as a defence rests on the person charged. Likewise the burden of proof of insanity rests on the person charged for there is presumption of sanity in every person charged under our law. (See S.140(1) of the Evidence Law (Cap. 49); R. v. Owarey (1939), 5 W.A.C.A. 66 applied; and see S. 27 of the Criminal Code”
I think that it will be a dangerous trend indeed for a Court to lay it down as a principle that every time it pleases a man to commit a heinous crime such as this, it will be enough to exonerate him from the consequences by saying that he was “mad” or insane because he had taken one form of narcotic or the other which deprived him of the ability to know that what he did was wrong, without calling sufficient credible corroborative evidence to support his own assertion. Section 140(1) of the Evidence Law places the burden on him to lead such evidence and if he failed to do so, he must face the natural consequences of his own action.
It was for the above reasons that I dismissed this appeal.
ESO, J.S.C. (Presiding): I am in complete agreement with Reasons for Judgment just delivered by my learned brother Kazeem, J.S.C a preview of which I have had.
The issue which was argued on the prompting of this Court was one of insanity. Insanity is a sort of exception to section 27 of Criminal Code (Cap 42) which presumes every person to be of sound mind. Everyone is presumed to be responsible for his act except it can he shown by or on behalf of that person that at the time of the commission of the crime he was not capable of understanding what he did or capable of controlling his action or of knowing that he ought not to do the act or make the omission which has resulted in the death of the deceased.
The appellant said he smoked a wrap of Indian hemp then he said in his statement that after he had smoked the wrap his body became unusual and he told his wife so. I would like to quote some passages of this statement –
“I cooked the rice while my wife went to see the mother at the opposite house, after cooking the rice I removed some quantity which I ate with her, after the first, I carried the second one and my wife said that it was too much, I told her that I will finish it. After about two hours time my body was not sound because smoke one wrap of Indian Hemp. I told my wife that I am not sound and she said that I have started my crazy, again, I told her that I am not crazy, when N.E.P.A. took light. I asked her about the paper we use to fan ourselves when there was no light. I told her to bring the paper. We come quarrel over the paper and she come bring the paper. I asked her where she keep it before, this time Godspower my son don sleep. My father told me when he was alive that I should not marry from the family of my wife that they are very strong, that they can kill me. When I took the paper from my wife I was confused that I can kill, I started fighting her with hands and the axe used on her little. When I was fighting with my wife, my mother-in-law came and knocked the door of my house. I was fighting my wife and son, Godspower with axe of the same time.”
When I opened the door I see that my in-law locked it outside. This time my wife and my son were already lying dead on the floor of my room. As I was shouting, my in-law opened the door from outside. She saw me when I hold the axe she ran back to her house I pursued her and killed her near her house back side after killing the woman as I was coming I saw Igbinosun by the main road I said he is the one supporting his people and I killed him with same axe. This is the axe I used in killing all of them. There was nobody who told me to go and kill this people. I did not plan this before simply it come to my mind and”‘ started killing people”
In his own evidence the doctor D.W.2 after examining the background of the Appellant said:
“Since admission into prison custody, the warder reported that the accused has been physically aggressive. He used to stay in one place all day and night. He was lacking in interaction with fellow inmates and even warders when he talked to me his speech was slow and was devoid of any emotional expression. From the above I am of the opinion that the accused was suffering from major psychiatric illness called schizophrenia that he was of unsound mind, and could not stand trial then. As a result, he was commenced on appropriate treatment, since then he showed remarkable improvement, he is fully aware of the gravity and consequence of his action, that smoking of Indian hemp only precipitated, acute manifestation of this illness, also I am of the view that he was in a disturbed state of mind (unsound mine) when he committed the offence”
What did the learned trial Judge find in regard to the Appellant’s mental state The learned Judge said-
“That from the totality of the evidence in this court outside the evidence of the Medical Doctor (D.W.2) there is completely no evidence of previous or contemporaneous acts, suggestive of insanity. The accused person himself had not said he was insane.He submitted that the evidence of D.W. 2 is only relevant to show that at about August, 1984, nearly one year after, the accused person was suffering from mental disease, the doctor (D.W.2) named and that is how far the evidence can go.He urged the court to disregard the evidence of tracing the history as they were hearsay and if the offence was serious he should have called those relatives to give direct evidence. That this was also the reasoning of Obaseki J.S.C. at page 104 in the Arum’s case (Supra). He urged the court to take the reasoning of Obaseki J.S.C. in this case, as the doctor saw the accused person months after the commission of this crime”
He then examined S.28 of the Criminal Code as to the onus of proof and content of proof of insanity. The learned Judge then relied on our decision in Arum v The State (1980) 1 N.C.R. 81, and after full consideration concluded that the actions as enumerated by the Doctor were certainly not sign of insanity. He regarded the statements credited to the report of the doctor as mere hearsay as the relatives of the appellant who made the statements to the doctor were not called. Pausing here for a moment, the learned Judge was right. And short of this hearsay upon which the doctor based his conclusion is there any evidence to infer insanity. The answer as given by the learned trial Judge and the Court of Appeal is certainly No.
The appellant’s statement to the police on the day of the mass murder is potent enough to believe the later cloak of insanity. He gave a detailed account of how he committed the gruesome murders. Certainly it would be grave danger to reduce the Law of insanity to one of mere fancy and one in which some airy fairy pretence could exonerate an accused person.
It is true the appellant had no duty to prove his own defence of insanity beyond reasonable doubt. But there must be credible evidence weighed along the circumstances.
The detailed account of the dastardy act by the appellant is certainly not consistent with a mind afflicted with insanity.
For these reasons I too will dismiss the appeal and affirm the Judgment and orders of the Trial Court and the Court of Appeal.