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Monday Chukwu V. The State (1994) LLJR-SC

Monday Chukwu V. The State (1994)

LawGlobal-Hub Lead Judgment Report

ADIO, J.S.C.

The charge preferred against the appellant at the High Court, Imo State, Owerri Judicial Division, was murder contrary to section 319 of the Criminal code, Cap. 30 of the Laws of Eastern Nigeria, 1963, applicable in Imo State. The allegation against him was that he, on the 6th day of September, 1980, along Owu Mbaise Road in Owerri Judicial Division unlawfully murdered one Vincent Chukwu.

When the charge was read and explained to the appellant, for his plea, he pleaded:

“I murdered him by right.”

The learned trial Judge, in view of the plea of the appellant, entered a plea of “not guilty” for the appellant. The evidence led by the prosecution was that on the 6th day of September, 1980, at about 5.30 p.m., the 1st P.W., was going from her home in Ikeduru to a maternity home in Mbaise when she saw the appellant hiding in a bush. The deceased was riding a bicycle towards the place where the appellant was hiding. When the deceased got there the appellant came out of the bush and attacked the deceased with a stick. The deceased fell down and the 1st P.W., ran home for assistance. The corpse of the deceased was found at the scene of the incident and was removed to the hospital for post-mortem examination. The deceased was the father of the 1st P.W. and the appellant was her uncle. He (the appellant) was a brother of the deceased.

The appellant, in his statement to the police, Exhibit “A”, and in his oral evidence in the court, agreed that he attacked the deceased. He gave reasons for the aforesaid attack and he alleged that it was the deceased who first attacked him.

There was evidence that the appellant was once mentally ill and that he had been cured since 1977 when he returned home. Since then it did not appear that there was a relapse.

The learned trial Judge, after due consideration of the evidence before him, found the appellant guilty of the charge and sentenced him to death. He held that the death of the deceased was caused by the act of the appellant. He considered whether any of the usual defences, such as provocation, self-defence and insanity, was available to the appellant and came to the conclusion that none of them was available to him. Dissatisfied with the judgment of the learned trial Judge, the appellant appealed to the Court of Appeal which dismissed the appeal. He has further appealed to this court.

In accordance with the rules of this court, the parties duly filed and exchanged briefs. Two issues were identified for determination in the appellant’s brief and two issues were identified for determination in the respondent’s brief.

The two issues for determination identified in the appellant’s brief, which were based on the grounds of appeal, as suitably amended, are sufficient for the determination of this appeal. They are follows:-

(1) Whether the Court of Appeal was right in endorsing the way in which the learned trial Judge dealt with the plea of the appellant.

(2) Whether the Court of Appeal was right in affirming the decision of the learned trial Judge that there was no evidence that the appellant was mentally ill at the time that he killed the deceased.

The question under the first issue is whether the Court of Appeal was right in endorsing the way in which the learned trial Judge dealt with the plea of the appellant. The learned trial Judge caused the charge to be read and explained to the appellant. That was on the 30th September, 1983 and the following was the plea of the appellant as recorded by the learned trial Judge:

” murdered him by right.”

The learned trial Judge entered a plea of “not guilty”‘ and ordered that the appellant, who alleged that he could not financially afford a counsel, should be assigned a counsel to defend him. That was the end of that aspect of the matter as far as the proceedings before the learned trial Judge were concerned.

The Court of Appeal gave consideration to the foregoing aspect of this appeal and Onu. J.C.A .. (as he then was) reading the lead judgment stated inter alia, as follows:-

“I will begin the consideration of this appeal by saying that the duty of a court is to record the evidence and events in proceedings before it including the recording of the accused person’s plea in the exact words of the accused …. This accords with what obtains in sections 156 and 157 (1) of the Criminal Procedure Code, applicable in the Northern States of Nigeria, the former which is in pari materia with the provisions of section 215 of the Criminal Procedure Law, Cap, 31 of the Laws of Eastern Nigeria 1963 applicable to Imo State. Be that as it may, I take the firm view and so agree with the respondent’s submission that this duty to record everything does not override the practice of entering a plea of ‘Not guilty’ in a capital offence irrespective of overt admission by an accused that he committed the offence”.

After stating that the procedure adopted by the learned trial Judge did not breach the rule of fair hearing as defined in section 33 of the 1979 Constitution. His Lordship pointed out that the appellant had not shown how the plea of the appellant as recorded had affected the mind of the learned trial Judge in his judgment. On the question whether or not the appellant was fit to plead, His Lordship stated, inter alia as follows:-

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“On fitness of the appellant mentally to stand his trial, no reason was adduced and nothing on the record suggests, that he was either mentally impaired or that he was unfit to plead. Hence, the test was inapplicable. See Iboko v. The State (1965) NMLR 384 … A trial Judge need not carry out an investigation on the mental condition to determine the sanity or insanity of an accused if there is no reason to make him suspect that the accused is of unsound mind……… Hence, the presumption of sanity, in my view, prevailed and all I can venture to say about the plea in the exact words of the appellant recorded at his trial simply amounts to justification in self defence rather than even a plea of guilty as canvassed by the appellant and therefore does not raise the issue of a plea of “guilty” and ‘not guilty’ all in a wrap or at a go.”

The submission in the appellant’s brief was that the learned trial Judge erred in law in recording the exact statement of the appellant. when he was asked to plead to the charge. instead of entering a plea of not guilty which would have warranted the application of or compliance with section 217 of the Criminal Procedure Law, Cap. 31 of the Laws of the Eastern Nigeria, 1963. The appellant complained that the Court of Appeal erred in law in endorsing what the learned trial Judge did and in using the legal principle applicable to a civil matter to determine a criminal case and in applying the provisions of the Criminal Procedure Code of Northern Nigeria to a criminal case to which the Criminal Procedure Law of Eastern Nigeria, 1963, applied. Finally, it was submitted that the Court of Appeal failed to appreciate that the irregularity in the recording of the plea of the appellant by the learned trial Judge affected the mind of the Judge and led him to return a verdict of guilty in the case.

In the view of the appellant, the learned trial Judge treated the plea of the appellant as a plea of guilty.

The submission in the respondent’s brief was that the Court of Appeal was right in endorsing the act of the learned trial Judge in recording verbatim what the appellant stated in response to his being asked to plead to the charge, and in entering a plea of ‘not guilty’ for him and that by allowing the trial of the appellant to proceed on that basis the learned trial Judge had enabled the provision of section 217 of the Criminal Procedure Law to be complied with. It was also argued that a trial Judge was not under any obligation to investigate the fitness of an accused to stand his trial where there was no reason to suspect that the accused was insane.

One really can’t see the substance in the complaint against the recording, verbatim, by the learned trial Judge, which was endorsed by the Court of Appeal, of what the appellant said in response to his being requested to plead to the charge that was read and explained to him. It was not shown in what way the recording, verbatim, of the appellant’s plea had adversely affected the appellant or prejudiced his case. The situation is the same in relation to the entering of a plea of “not guilty” by the learned trial Judge for the appellant in the circumstance and which was endorsed by the Court of Appeal. On the question of the fitness of the appellant to plead, the provisions in Part XXIV of the Criminal Procedure Law, Cap. 31 of the Laws of Eastern Nigeria, 1963, applicable in Imo State and dealing with recording of plea are relevant. In particular, the provisions of sections 215, 217 and 220 thereof are as follows:-

“215. The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.

  1. Every person by pleading generally the plea of not guilty shall without further form be deemed to have put himself upon his trial.
  2. If the accused person when called upon to plead shall stand mute of malice or will not and cannot answer directly when called upon to plead to the charge the court shall enter or cause to be entered a plea of not guilty on behalf of such person and the plea so entered shall have the same force and effect as if such person had actually pleaded the same, or else the court shall thereupon proceed to try whether the accused person be of sound or unsound mind in accordance with the provisions of Part XXV and if he shall be found to be of sound mind shall proceed with his trial.”

There is nothing irregular if, pursuant to the provisions of section 215, the plea of an accused to a charge is recorded verbatim by the learned trial Judge. That will, apart from other things, be fair to all concerned (the prosecution and the defence) and will prevent any controversy in the future about what exactly the accused said in response to the request to him to plead to the charge. It is not unusual that some accused persons, instead of making the usual and straightforward plea of “guilty” or “not guilty”, engage in making pleas which could not be regarded as direct answer to the charge. In such cases, the provision of section 220 is inter alia, that a plea of ‘not guilty’ should be entered on behalf of such an accused person and that the plea so entered shall have the same force and effect as if such person had actually pleaded the same. Where that is the case, the provision of section 217 of the Law will become applicable and it is that every person by pleading generally the plea of not guilty shall without further form be deemed to have put himself upon this trial.

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Pleas which could not be regarded as direct answers to the charge take various forms. There was the once notorious or popular plea of “guilty with explanation.” It has been found that in some cases, the explanation, subsequently given after a plea of “not guilty” has been entered for such an accused, in fact, showed that the accused was innocent. See R. v. Ingleson, (1915) 1 K.B. 512. Each case depends upon its own facts and circumstances. What the accused says in response to his being requested to plead to the charge, instead of a plea of “guilty” or “not guilty” depends on the impression that he wants to give to the court. He may want to give the impression that he was justified in doing what he did. He may be merely play – acting as in Eledan v. The State, (1964) All N.L.R 138 or be really insane. It is only where a Judge, holding a trial, has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence that the Judge is required by section 223 of the Criminal Procedure Law, in the first instance, to investigate the fact of such unsoundness of mind. In law, every person is presumed to be sane. In the present case, there was evidence that the appellant was once insane and there was also evidence that he had been cured long before the day of the incident and had returned home. There was no evidence of a lapse.

Indeed, the statement, Exhibit “A”, which he made to the police soon after the time of the incident showed that he alleged certain reasons for doing what he did. Whether those reasons were true or genuine is a different matter. The appellant stated in the statement, inter alia. as follows:-

“I was the person who killed my Senior brother Vincent Chukwu (m) of the same address by giving him first blows all over his body including his chest while riding his bicycle along Owu Mbaise road. The reason why I killed him was because he has (sic) earlier showed (sic) me some planks which he deceased will (sic) use in bury me. Moreover, there was a day the deceased my brother tied me with a rope then I managed and loose the rope. Nobody helped me to loose the rope. When I regained freedom, the deceased Mr. Vincent Chukwu went and took a cutlass in order to matchet me, but I managed to ran (sic) away. He the deceased went out and I went along Owu Mbaise road and waylaid him. Immediately I saw him riding on his bicycle, I had to give him first blows till he died. When he (sic) saw that he was dead, I returned home where by people arrested me and tied both my hands and legs. I have to add that these my relations who arrested me are as follows: Michael Nwaneze, Christopher Opara, Longinus Ugwoji and Peter Ukadiala, that is all I know.”

If the reasons alleged by the appellant for the killing of the deceased are considered along with his answer in response to his being asked to plead to the, charge and with other circumstances of the case, it is quite clear or obvious that the appellant intended to give the impression that he was justified in killing the deceased or he must merely be play-acting. He was certainly of sound mind and was consequently capable of making his defence. The Court of Appeal was, therefore, right in endorsing the way in which the learned trial Judge dealt with the plea of the appellant. There was no miscarriage of justice as a result of the error, if any, committed by the Court of Appeal in dealing with this aspect of the matter.

I now come to the question raised under the second issue which is whether the Court of Appeal was right in affirming the decision of the learned trial Judge.

That there was no evidence that the appellant was mentally ill at the time that he killed the deceased. The learned trial Judge decided, and the Court of Appeal affirmed the decision that the defence of insanity was not available to the appellant. The Court of Appeal. on the point, stated, inter alia. as follows:-

“In the instant case, evidence disclosed that sometime around 1976, (appellant in his testimony put it at around 1978, the appellant was mentally ill and that he was treated by a native doctor); further, that since his return he had behaved normally until about two days to the killing of the deceased; i.e, 16th September, 1980, when there was a quarrel between the appellant and the deceased. Nothing was said by way of defence or evidence (medical or otherwise) at the trial of the appellant’s unsoundness of mind … In which case, it needs to be stressed that the respondent’s act constituted an act of revenge (for which motive is inferable. See R. v. Blake (1942) 8 W.A.C.A. 118.”

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The submission, in the appellant’s brief, was that throughout the trial of the appellant his mental state was in doubt and that the Court of Appeal wrongly placed a very high burden of proving insanity on the appellant. It was the submission of the respondent that every person is presumed to be of sound mind until the contrary is proved as provided in section 27 of the Criminal Code and that the onus of proving insanity was on the appellant. It was also submitted that there was no evidence of abnormal behaviour on the part of the appellant at the time of the incident or shortly before it or even at the trial nor, was there any evidence of a relapse of the illness of the appellant.

The onus of proving insanity as a defence is on the accused since there is a presumption that every person is sane, and to have been sane at any time in question, until the contrary is proved. See section 27 of the Criminal Code. The burden is discharged if the accused adduces evidence to show that it was probable that he was insane at the time when the offence was committed. See Udofia v. The State, (1981) 11-12 S.C. 49; Ejinima v. The State, (1991) 6 N.W.L.R. (Pt.200) 627 and Arisa v. The State (1988) 3 N.W.L.R. (Pt.83) 386 at p.400. However, one could not, in fairness to the accused, strictly limit the inquiry into the question whether the defence of insanity was available to the accused to the date on which the accused allegedly killed the deceased. Acts of the accused immediately before and after the date of the actual commission of the alleged offence are relevant. See Kure v. The State, (1988) 1 N.W.L.R. (Pt.71) 404; and Asanya v. The State, (1991) 3 N.W.L.R. (Pt.180) 422. In Kure’s case the accused was in psychiatric hospital for treatment for nine months immediately after the alleged offence. In the present case, the evidence before the court was that the appellant had mental illness but that he had been cured some years before the incident in question, He had returned home and there was no evidence of a relapse immediately before, on the day of the incident or immediately after he committed the offence, The offence was committed on the 6th of September, 1980, and on the following day, that is 7th September, 1980 the appellant made a written statement (Exhibit “A”) to the police. What the appellant said in the statement was coherent and there was nothing therein to suggest that he was insane, Further, there was no evidence that the person who obtained the statement from the appellant had difficulty in doing so.

The fact that an accused had received treatment for mental illness or for insanity in the past may or may not be relevant for the purpose of determining whether the defence of insanity is available to him. It may not be relevant if the treatment was given a long time before the commission of the offence. See Udofia’s case, supra: and Sanusi v. The State. (1984) 10 S.C. 166.

Further, whereas in this case, the accused gave reasons for committing the offence, the reasons should be given due consideration and if they are incompatible with a person whose mind is unsound, the accused has not established the defence of insanity. See Abu v. The State. (1976) 5 S.C. 21. Some of the reasons alleged by the appellant in his statement were that the deceased showed him (appellantt) some planks which the deceased would use to bury the appellant and at another time the deceased wanted to inflict injury on the appellant with a matchet but the appellant managed to escape.

When he testified orally, the appellant told the court that it was the deceased who first hit him with his bicycle. When he asked the deceased why he did that, the deceased continued to hit and beat him. So, he (appellant) was provoked and he hit the deceased with his hand and the deceased fell down. There was nothing in the reasons given by the appellant in his written statement (Exhibit “A”) or his oral evidence capable of giving the impression or of making the court suspect that the appellant was insane. The Court of Appeal was, therefore, right in affirming the decision of the learned trial Judge that there was no evidence that the appellant was mentally ill at the time that he killed the deceased.

The appeal lacks merit and the judgment of the Court of Appeal is hereby affirmed. The appeal is hereby dismissed.

UWAIS, J.S.C: I have had the privilege of reading in draft the judgment read by my learned brother Adio, J.S.C. I entirely agree. Accordingly, the appeal lacks merit and it is hereby dismissed. The judgment of the Court of Appeal is hereby affirmed.


SC.211/1992

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