Micheal Oji Ogbu Vs The State (1992)

LawGlobal-Hub Lead Judgment Report

E. O. OGWUEGBU, J.S.C. 

The accused who is the appellant in this court was tried and convicted at the Ikom Judicial Division of the High Court of the Cross River State of the murder of his father (Ogbu Mbeh) at Etomi Village in the said Ikom Judicial Division on 11th September, 1980. He was sentenced to death by hanging.

He was dissatisfied with the decision and appealed to the Court of Appeal sitting at Enugu. The Court of Appeal dismissed his appeal and affirmed the judgment of the trial court. The appellant has further appealed to this court.

From the grounds of appeal filed, the following issues for determination were identified in the appellant’s brief of argument filed on 13:11:91:-

“1. Whether the evidence of the accused alone as to the defence of insanity is insufficient to establish or prove insanity and whether the accused is bound to call other witnesses such as Doctor’s Medical History e.t.c. before he can prove the defence of insanity inspite of other evidence corroborative of insanity apart (sic) of accused own evidence;

2. Whether Exhibit D the statement of the accused amounted to a confession of the offence of murder under S.27(1) of the Evidence Act;
3. Whether in the circumstances of this particular case the absence of medical evidence is fatal to the case of the prosecution;
4. Whether the material contradictions and gaps in the case of the prosecution amounted to disparagement of the witnesses making it dangerous to convict on them or likely to result in miscarriage of justice.”

In its brief of argument, the respondent formulated six issues for determination in the appeal. They are:-

“1. Whether the defence of insanity and/or insane delusion in both limbs of S.28 of the Criminal Code was open to the appellant on the totality of the evidence led before the trial court and the Court of Appeal.

2. Whether S.27 of the Criminal Code Laws of the Federation of Nigeria Cap. 42 Vol. 2 does not place on the appellant the onus of proofing (sic) insanity.
3. Whether S.28 of the Criminal Code Laws of the Federation of Nigeria Cap.42 Vol.2 would relieve the appellant of the Criminal responsibility when there is no evidence to show that the appellant was insane.
4. Whether Exhibit D the statement of the appellant amounted to confession of the offence of murder under S.27(1) of the Evidence Act in the face of strong corroborative evidence given by the prosecution witnesses in favour of the prosecution.
5. Whether in the circumstance of this case the absence of medical evidence is fatal to the case of the prosecution.
6. Whether the contradictions and gaps in the case of the prosecution amounted to disparagement of the witnesses making it dangerous to convict on them or likely to result in miscarriage of justice.”

The two sets of issues are basically the same but I prefer to consider the appeal along the line of the issues formulated by the appellant.

Before I deal with the arguments proffered by both learned counsel, I would like to give a summary of the facts of the case.

The prosecution’s case is that on the day in question at Etomi Village in Ikom Judicial Division, the appellant shot and killed his father – Ogbu Mbeh. P.W.1 (Ngon Oji) was an eye witness. She testified that at about 8 p.m. on 11/9/80, she was cooking in the kitchen with the mother of the appellant (P.W.4) and P.W.3 Philomena Ogbu when suddenly the appellant emerged from the room of the deceased with a gun. The deceased was at the material time resting on a chair in his verandah. The appellant moved to the verandah, hid at a corner of the house and shot the deceased from a distance of two metres. The deceased died on the spot. P.W.2 reported the incident to the police who later arrested the appellant. He made a statement to the police.

The police also took possession of the gun which was tendered in evidence as Exhibit as “A”, P.W.1, P.W.2, P.W.3 and P.W.4 also made statements to the police. The appellant in his evidence admitted making Exhibit “D”. In his examination in Chief he said that he had something to add to his statement to the police, namely: “I was not myself when the killing of my father took place, I did not know what happened (sic) until the death of my father. I made my first statement to the police in September, 1980. I made Exhibit “D” in 1985……….. nothing took place between me and my father. (See page 17 lines 8 – 15 of the record of appeal).

The facts are not seriously in dispute. As rightly pointed out by the Court of Appeal in its judgment, the main issue in the appeal is whether on the totality of the evidence led, the defence of insanity or insane delusions under S.28 of the Criminal Code did not avail the appellant.

The learned appellant’s counsel submitted that every person must be presumed innocent until the contrary is proved. He referred to 5.33(5) of the Constitution of the Federal Republic of Nigeria, 1979 as amended.

He stated that the onus of proof in every criminal case lies squarely on the prosecution throughout the duration of the case until judgment. He referred to Woolminglon v. D.P.P. (1935) A.C. 426 at 481. He further submitted that the fact that S.27 of the Criminal Code provided a presumption of sanity thereby shifting the onus of proof of insanity on the accused did not remove the general burden on the prosecution. He stated that this burden can be discharged either by the evidence coming from the prosecution or the defence.