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Ngene Arum V. The State (1976) LLJR-SC

Ngene Arum V. The State (1976)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, C.J.N 

On 16th August 1976, the appellant was convicted at the Enugu High Court of the murder of one Aniagu Ugwu and sentenced to death. His appeal to the Federal Court of Appeal against the conviction was dismissed on the 24th day of April, 1978. He has now appealed to this Court.

The only point taken by learned counsel for the appellant at the hearing of the appeal was whether, on the evidence, which the trial judge accepted, he (the trial Judge) was right in finding as he did that the appellant was of sound mind at the time he killed the deceased.

In his submission that the appellant was insane at the time he inflicted the fatal matchet cuts on the deceased, learned counsel referred the court to the provisions of Section 28 of the Criminal Code, which read:

“28. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental infirmity as to deprive him of capacity to understand what he is doing or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission. A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist. ”

Learned counsel then submitted that the delusions which the appellant suffered from were such as to make it impossible for him to appreciate or understand the nature of his action and that he did not at the material time know that he ought not to have done what he did. After referring to the findings of the learned trial judge as to the delusions established for the appellant, learned counsel then submitted that once the learned trial judge accepted that the appellant did not know that he ought not to do what he did because of those delusions he should have found him to be insane and therefore not guilty of murder as charged. After stating that his submissions were based on the provisions of the second paragraph of Section 28 of the Code, learned counsel finally contended that the paragraph, if properly analyzed, can be interpreted in three ways and that if the evidence which the learned trial judge accepted fitted into anyone of the three categories, the appellant should have been given the benefit of the plea. He did not, however, elaborate on any of these three ways referred to him in his final submission.

Before considering the submissions of learned counsel for the appellant, I would refer to the findings of the learned trial judge on the point in issue, which read:

“I am prepared to accept as established that the accused person knew what he did but felt justified in what he did and did not know that he ought not to do it but in the absence of any evidence that he was suffering from a mental disease or from mental infirmity, the defence of insanity as provided for in the first paragraph of Section 28 of the Criminal Code is not available to him (see Rex v. Sunday Omoni 12 W.A.C.A. 511 pages 512 and 513).

All that has been established on behalf of the accused is that he was suffering from a delusion at the time he killed the deceased which delusion still persists and has not responded to treatment. The delusions from which he suffers are that the deceased stole his money, brought native doctors to bewitch him, said something adverse to his interest to his employers, and ganged up people against him. Assuming that his delusional beliefs are correct, under the provisions of the second paragraph of Section 28, his delusions will afford him no defence to the offence, which he has committed. The accused person is not justified in killing the deceased because he stole his money, brought native doctors to bewitch him, made adverse report to his interest to his employer and ganged up people against him.”

In my view, these findings are a complete answer to the points canvassed before us by learned counsel for the appellant. This is because an accused person, notwithstanding the delusions to which he is subject, is still criminally responsible for his act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist. In other words, before the defence of insanity based on a delusion can be of any avail to an accused person, the response of the accused to the state of things as believed by him must be such that it could be regarded as a legitimate and natural reaction to such a state of things. Thus, if an accused person, under the influence of his delusion, supposes that another man was going to kill him, and he then kills the man believing that he did so in self-defence, he would be exempted from punishment for the killing. But if his delusion was that the man had inflicted a serious injury to his character or his fortune, and he then kills him in revenge for such supposed injury, he would be liable to punishment for murder (see the Rules in McNaughten’s Case, (1843) 8 Eng. Rep. 718 at page 723).

Now to go back to the case in hand, the appellant was under delusions that the deceased:

(a) Stole his money;

(b) Brought native doctors to bewitch him;

(c) Said something adverse to his interest to his employers; and

(d) ganged up people against him.

Having regard to the first delusion that the deceased stole his money, the normal response would be to report the theft to the police but certainly not kill the thief. Killing because of a delusion that he was bewitched by a native doctor cannot also be justified; this is because a defence founded on witchcraft has always been rejected in murder cases. (See R. v. KONKOMBA 14 W. A. C. A. 236 ; and THE QUEEN v. TABIGEN (1960) 5 F.S.C. 8). Further more, killing a person because of a delusion that that person has said something adverse to the interest of the killer to the killer’s employers can certainly not be regarded as justifiable homicide. Lastly, since there is no clear evidence as to what those who ganged up against the appellant intended to do to him or did to him, there was no justification or excuse for killing the deceased on that account.

With respect, I think learned counsel for the appellant has missed the main point in his appeal, which, put simply, is this. Is there any excuse or justification for the appellant’s violent reaction to the delusions established by evidence, made manifest by the killing of the deceased For the reasons, which I have highlighted above, the answer must be in the negative.

For the same reasons, I am unable to discern any merit in any of the points urged upon us on behalf of the appellant. I would therefore dismiss the appeal which is accordingly dismissed. The judgment of the Enugu High Court convicting the appellant for murder of the deceased, and the order of the Federal Court of Appeal dismissing his appeal against conviction, are affirmed.

BELLO, J.S.C: I have had the opportunity to read the judgment written and delivered by the Chief Justice. For the reasons stated by him, I agree that the appeal should be dismissed.

IDIGBE, J.S.C.: The facts, so far as are relevant to this appeal, are, indeed, in a very small compass. In the early hours of the 8th day of August, 1973 – to be precise, at 7a.m. – Odikenma Aniagu (P. W. 3), the wife of the deceased while still lying in bed, heard a voice, which she recognised to be that of her husband shouting the names of the appellant. At about the same time, Okoye Aniagu (P.W. 2) an uncle of the appellant and also son of the deceased, heard an alarm in which he recognised voices of some of his neighbours asking the appellant why he was inflicting matchet cuts on his brother, the deceased. Both the appellant and the deceased had always been on excellent terms and so far as members of the family know there never had been any previous quarrel or serious disagreebetween them. Following the direction of the alarm, Okoye Aniagu (P . W. 2) went to the premises of the deceased where he found him lying on the ground in a pool of blood. There were matchet cuts on the head and on the neck of the deceased and he was then still alive. About the same time Odikenma Aniagu (P.W. 3) arrived at the scene (the premises ofthe deceased) and saw the appellant walking to his (the appellant’s) house from the scene, a matchet in hand after wiping off blood stains from the same; that matchet was later identified in evidence as Exhibit D. Assisted by neighbours, Okoye Aniagu (P.W. 2) carried the father to the Central Police Station Enugu (where a report was lodged) and later to hospital for medical treatment. The deceased died a few hours after his admission to hospital- to be precise, at 1.30 p.m. – on the same day.

After police investigations into the complaint the appellant on being arrested made a statement in lbo, Exhibit G, the English translation of which is Exhibit G 1. In his statement, which the learned trial Judge found to have been voluntarily made after he was duly charged with the offence of murder and cautioned the appellant admitted that he inflicted matchet cuts on the deceased in effect, the reasons he gave for inflicting matchet cuts on the deceased, were that the deceased “stole his salary and never admitted it” (i.e. admitted having done so) and “kept silent while I (i.e. the appellant) continued suffering. So I went to his house to demand for that money from him when trouble arose between us and we fought and I gave him matchet cuts.

Following a pre-trial request by Mrs, Uche Offiah-Nwali, learned counsel to whom the defence of the appellant was assigned, the learned trial Judge (Umezinwa J.) ordered that the appellant “be medically examined as to his sanity.” At the trial, a consultant psychiatrist at the University Teaching Hospital, Doctor Warrick Onyeama, who observed the appellant on two occasions, that is, on 10th May, 1976 and 7th June, 1976 (about 30 months i.e. 21/2 years after the event) testified for the defence (as D. W. 1) on his findings following the said observations: Part of his evidence reads:

“In essence, I found his mental state to be normal on the two occasions. With regards to the attitude to the act which led to his arrest and detention he remained convinced of the justification of what he did and this attitude remained inaccessible to any contrary argument. It was my feeling at the time that he might be suffering from a delusion, the existence of which will suggest an underlying mental illness. . . His general behaviour was entirely normal given the circumstances that he was in the asylum. He had a falsely held belief (delusion) which refused to respond to treatment and as such I came to the conclusion that his delusional pattern of thinking was unlikely to change. . . He thought that he lost his job because a relative of his had said something adverse to his interest to his employers. He regarded that the situation Justified the killing of the deceased. . .” Later, under cross-examination the consultant psychiatrist gave a definition, with which I entirely agree, of the term “delusion”; he said:

“delusion in the con in which I use the term is a falsely held belief inaccessible to reason and which represents a departure from previously held patterns of belief and. . . which exists out of con with the patterns of belief held by the culture from which the subject derives.”

In a well considered judgment the learned trial Judge after reviewing the entire evidence before him and, in particular, the evidence of the psychiatrist, Dr. Warrick Onyeama, found the appellant guilty of the offence of murder; and his appeal from the said conviction was dismissed by the Federal Court of Appeal.

The only ground of appeal before us was on the basis that the learned trial Judge was wrong in failing to enter a verdict of “guilty but insane”. The way the argument in support of this ground of appeal was put in the brief filed on behalf of the appellant in this court, and also urged on us at the hearing of this appeal, is this:

“It is quite clear that the only point in favour of the appellant is whether in view of the evidence before the court, his defence of insanity should have been completely ignored. It is respectfully submitted for the appellant that his delusion was such as to make it impossible for him to appreciate or understand the nature of his action – in other words, that the appellant did not at the material time know that he ought not to have done what he did.

I will refer to the analysis of the defence as made by the trial Judge at pages. . . and specifically to his finding or conclusion in line. . . of page. . . where he held as established that the accused person ‘DID NOT KNOW THAT HE OUGHT NOT TO DO IT.’ It is therefore submitted. . . that once the trial Judge was prepared to accept as established that the accused was under a delusion he should have entered a verdict of guilty but insane.”

We were then referred to the case of Rex v. OMONI 12 W.A.C.A. 511 particularly at page 513. Now, the passage in the judgment of the learned trial Judge on which reliance is placed for the argument in quotation (immediately above) in the brief of learned counsel for the appellant is to be found in the earlier part of his judgement; and it reads:

“There is no evidence before me that the accused person was in a state of mental disease or natural infirmity. . . In order to establish the defence (of insanity), the defence must first prove that the prisoner was at the relevant time suffering either from mental disease or from natural mental infirmity and secondly that the mental disease or natural mental infirmity was such that at the relevant time the prisoner was as a result, deprived of capacity to understand what he was doing or to control his actions or to know that he ought not to do the act or make the omission.”

Then follows the passage which is intended to serve as a prop to the argument in support of the point being urged in favour of the appellant and I will put the passage in capitals:

“I AM PREPARED TO ACCEPT AS ESTABLISHED THAT THE ACCUSED PERSON KNEW WHAT HE DID BUT FELT JUSTIFIED IN WHAT HE DID AND DID NOT KNOW THAT HE OUGHT NOT TO DO IT but in the absence of any evidence that he was suffering from a mental disease or from natural mental infirmity the defence of insanity AS PROVIDED FOR IN THE FIRST PARAGRAPH of Section 28 of the Criminal Code is not available to him. . .

“All that has been established on behalf of the accused is that he was suffering from a delusion at the time he killed the deceased. . .The delusions from which he suffers are that the deceased stole his money, brought native doctors to bewitch him. .

Now, it is my view that the proper approach to understanding the theme of the learned Judge’s analysis of Section 28 and his findings, in relation to the section, on the evidence before him is not to read in isolation the passages which I have set out in capitals (and at the margin of which I have endorsed the letter G); they should be read together with the continuing passages in his judgment which appear later (and along the margin of which I have endorsed the letter H). The evidence before the learned trial Judge indicate quite clearly that the appellant killed in revenge following his delusional belief that the deceased stole his money, tried to bewitch him, made adverse reports against him and tried to gang up people against him (see Exhibit G1); and this, in my view, is the sum of the findings of the learned trial Judge. There is no direct evidence of any disease of the mind on the part of the appellant prior to or at the time of the offence nor is there any evidence from which such inference can be drawn.

My Lords, I agree with the judgment which has just been read by, my learned brother My Lord, the Chief Justice but I consider the issue raised in this appeal of considerable importance that I think I ought to add a few words of my own on the need for careful consideration of Section 28 of our Criminal Code; that section may be conveniently set out in two limbs thus:

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“(28) [FIRST LIMB]: A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission;

[SECOND LIMB]: A person whose mind, at the time he is doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”

Now, Mr. Debo Akande, learned counsel for the appellant was at considerable pains to turn Rex v. Sunday Omoni (1949) 12 W.A.C.A. 511 and REX v. NASAMU (1940) 6 W. A. C. A. 74 to his advantage and use them as an effective plank in support of his argument set out in his brief and to which I have already referred. I regret, that I cannot accept his submissions, attractively though they were put. The submissions fail to appreciate the learned trial Judge’s entire analysis and consideration of the relevant section (i.e. Sec. 28 of the Criminal Code). With respect to the learned counsel for the appellant his arguments and submissions, when considered against the evidence of the consultant psychiatrist (D. W. 1) as well as the lack of any evidence either directly or impliedly of any “natural disease” or “natural mental infirmity” of the appellant, are manifestly untenable. The first limb of Section 28 deals with the defence of insanity; and the second limb clearly relates to delusions (sometimes loosely – though not necessarily the same – referred to as “insane delusions”); insanity is not a sine qua non to the experience of a delusion or hallucination. It is, indeed, not easy to distinguish between delusion and insanity when these terms are used in their ordinary meaning; but as far as Section 28 of the Criminal Code is concerned, there is a clear distinction for the purposes of establishing a defence under either limb of the section. For the first limb it must (A) first be established (by direct evidence or by inference from other evidence in the proceedings) that the prisoner was at the relevant time suffering from mental illness or from natural mental infirmity; and this is because the words of the section “such a state of mental disease or natural mental infirmity” must in the con of the section, be regarded as equivalent to: such a defect of reason produced by the disease of the mind, or following a defect in mental power neither produced by the prisoner’s own default nor as a result of the disease of the mind; and – thus established – (B) the prisoner must then go ahead to show that he was, as a result of the foregoing unable (1) to understand what he was doing or (2) to control his actions or (3) to know that he ought not to do the act or omission. On a complete and proper reading of the findings of the learned trial Judge in these proceedings, following his consideration of a possible defence under the first limb of Section 28 aforesaid, it is clear that (to borrow the language of Verity C.J. in Omoni (Supra) at p. 513):

“The learned Judge having heard the evidence. . . was not satisfied that the appellant was at the time of the commission of the offence in such a state of either mental disease or natural mental infirmity. . .”

In other words, although some passages in the judgment of the learned trial Judge appear to hold that there was evidence to show that the requirements for a defence in the first limb of Section 28 under (B) as set out above by me were established, he was on the entire evidence before him not satisfied that the requirements under (A) (again as set out above by me) had been established.

The learned trial Judge then went on to consider a defence, under the second limb of Section 28 because (to use his own words), as set out in a later portion of his judgment, it was quite clear to him

“That all that has been established on behalf of the accused is that he was suffering from a delusion at the time he killed the deceased which delusions still persists and has not responded to treatment. The delusions from which he suffers are that the deceased stole his money, brought native doctors to bewitch him, said something adverse to his interest to his employers, and ganged up people against him. Assuming that his delusional beliefs are correct, under the provisions of the second paragraph (i.e. the second limb) of Section 28, his delusions will afford him no defence to the offence which he committed. The accused person is not justified in killing the deceased because he stole his money, brought native doctors to bewitch him, made adverse reports to his interest to his employers and ganged up people against him. . .”

THAMU OF GUYOK v. THE QUEEN (1953) 14 W. A. C. A. 372.

As I stated earlier I am unable to accept the submissions, on behalf of the appellant, of his counsel and I agree with the views expressed in the judgment of My Lord, the Chief Justice. I would dismiss this appeal and it is accordingly dismissed.

OBASEKI J.S.C: The appellant now a middle-aged man was arraigned before the High Court Enugu on the 23rd day of August, 1976 charged on information with the murder of his elder brother named Anaego Ugwu on the 8th day of August, 1973 contrary to Section 319(1) of the Criminal Code. Upon his plea being taken, he was tried and convicted by Umezinwa J., the most vital piece of evidence against him being his confessional statement Exhibit G, G 1. Before the prosecution opened its case at the trial on the 23rd day of April, 1976, and following the observations and request of his counsel the learned trial Judge ordered:

“that the accused person be medically examined by the Prison Medical Officer as to his sanity over a period of 30 days and a report made in three (3) copies submitted to the Registrar of the Court before the next adjourned

date. ”

He was duly examined by Dr. Warrick Onyeama, a doctor and lecturer in Psychiatry at the University Teaching Hospital, Enugu and also a consultant in psychiatry who later gave evidence for the defence at the trial as D. W. 2. His findings and their acceptance by the learned trial Judge have been presented to us as sufficient to establish a defence under Section 28 of the Criminal Code although rejected by the Courts below i.e. the trial Judge in the High Court and the Justices of the Federal Court of Appeal, as insufficient to make the defence under Section 28 of the Criminal Code available to the appellant and earn him an acquittal.

In his considered judgment delivered at the conclusion of the trial, Umezinwa J. said, inter alia.

“I have no difficulty in finding as a fact that it is the accused person who killed the deceased, his brother. In his voluntary statement to the police Exhibits G, G 1 accused stated that the deceased stole his salary and never admitted to him that he did so. The deceased kept silent after stealing his salary while he continued to suffer. So he went to the house of the deceased and demanded his money. They then quarreled and fought and in the course of the fight he gave the deceased matchet cuts. Under cross-examination, he stated that in the course of his quarrel with the deceased he used a matchet and matcheted the deceased because he was annoyed that the deceased kept away from him the paper that was sent to him from the Government and also gathered some people against him . . .

The defence of insanity has been set up on behalf of the accused. . .

After quoting the provisions of Sections 27 and 28 of the Criminal Code, the learned trial Judge observed and concluded:

“There is no evidence before me that the accused person was in a state of mental disease or natural infirmity. Indeed, the evidence of Dr. Onyeama is that on the two occasions he examined the accused he found that his mental state was normal. His behaviour was entirely normal given the circumstances that he was in an asylum. In order to establish the defence of insanity under our law, the defence must first prove that the prisoner was at the relevant time suffering either from mental disease or from natural mental infirmity and secondly that the mental disease or the natural mental infirmity was such that at the relevant time the prisoner was as a result deprived of capacity to understand what he was doing or to control his actions or to know that he ought not to do the act or make the omission. I am prepared to accept as established that the accused person knew what he did but felt justified in what he did and did not know that he ought not to do it, but in the absence of any evidence that he was suffering from a mental disease or from natural mental infirmity the defence of insanity as provided for in the first paragraph of Section 28 of the Criminal Code is not available to him. See REX v. SUNDAY OMONI 12 W. A. C. A. 511 at pages 512 and 513.”

The learned trial Judge then proceeded to consider whether the accused has any defence under the second paragraph of Section 28 of the Criminal Code and observed and concluded that:

“All that has been established on behalf of the accused is that he was suffering from a delusion at the time he killed the deceased which delusion still persists and has not responded to treatment. The delusions from which he suffers are that the deceased stole his money, brought native doctors to bewitch him, said something adverse to his interest to his employer and ganged up people against him.

Assuming that his delusional beliefs are correct under the provisions of the second paragraph of Section 28 his delusions will afford him no defence to the offence which he has committed. The accused person is not justified in killing the deceased, because he stole his money, brought native doctors to bewitch him, made adverse report to his interest to his employer and ganged up people against him. . .

In the final result, I am satisfied that the prosecution had proved the guilt of the accused person beyond reasonable doubt. I find him guilty of the offence as charged…”.

The appeal against this conviction to the Federal Court of Appeal was dismissed following the announcement in the Court by counsel on either side that they had nothing to argue in favour of the appellant.

Against that dismissal the appellant has brought this appeal.

The only ground argued before us at the hearing was the additional ground filed with the leave of this Court and reads:

“That the learned trial Judge erred in law in holding that the appellant was “guilty” instead of finding him “guilty but insane” and the Federal Court of Appeal also erred in law dismissing the appeal without reversing the verdict. ”

The facts of this case are not in dispute and briefly stated are as follows:

“The deceased was the elder brother of the appellant both being born of the same mother but different fathers. From the record of their ages, the deceased aged 60 was about 21 years older than the accused aged 39. Their compounds were close to each other being separated by only a distance of 60 yards. The relationship between them was or appeared to be cordial throughout life and the accused paid very frequent visits to the deceased in his house. In the words of Okoye Aniagu, a son of the deceased:

“My father and the accused do things in common. I had stayed about two weeks at home on my return from Aba when this incident happened. All the time I was at home I saw the accused quite often. During this time there was no dispute between the accused and my father. Accused person was frequently visiting my father before the incident.”

On the 8th of August, 1973 at about 7.00 a.m. the appellant armed with a cutlass, went to the house of the deceased, met the deceased and dealt very heavy matchet blows on his head, neck and other parts of the body leaving him with severe matchet cuts all over his body and half dead in a pool of blood. The alarm and mortal groans of the deceased caught the attention of the vigilant people around including Okoye Aniagu (P.W. 2) and Odimehma Aniagu (P.W. 3) who came rushing to the scene. As they were arriving they saw the appellant walking away armed with a blood-stained cutlass. The deceased, almost dead, was rushed to the Teaching Hospital at Enugu for treatment but died from the injury at 1.30 p.m. the same day at the said hospital. Following the complaint to the police, the appellant was arrested. He made a statement under caution to the police admitting that he inflicted matchet cuts on the deceased in the course of a quarrel and fight “because it has been long he had been punishing me”. The statement further said “what I was calling “order” was my salary. What I meant was that he stole my salary and never admitted he did. He kept silence while I continued suffering. So I went to his house to demand for that money from him when trouble arose between us and we fought and I gave him matchet cuts.” The medical examination carried out by Dr. Warrick Onyeama (D.W. 2) showed the state of his mental health on 10th May 1976 and 7th June, 1976 as normal. Testifying further, D. W. 2 said “With regards to the attitude to the act which led to his arrest and detention, he remained convinced of the justification of what he did and this attitude remained inaccessible to any contrary argument was my feeling at the time that he might be suffering from a delusion, the existence of which will suggest in itself an underlying mental illness. It was for this reason that I recommended the administration of a particular psychiatric drug and he did not respond to treatment. It made no difference to his thinking. His general behaviour was entirely normal given the circumstances that he was in the asylum. He has a falsely held belief which refused to respond to treatment and as such I came to the conclusion that his delusional pattern of thinking was unlikely to change. I have no doubt at all that the accused knew exactly what he has done but he believed that what he did was right. He asked me whether I would not have done the same if I were in his position. He thought that he lost his job because a relative of his had said something adverse to his interest to his employers. He regarded that the situation justified the killing of the deceased.

Turning to the ground of appeal, I would like to say that there is nothing now like a verdict of ‘guilty but insane’ under our law. What we have is a verdict of “Not guilty by reason of the unsoundness of mind”. I think this is what learned counsel had in mind but erroneously stated in his only ground of appeal argued before us. In the celebrated case of KAYODE ADAMS v. DPP. (1966) 1 All NLR 12, it was held that in Section 28 of the Criminal Code the words “a person is not criminally responsible” import that he is not guilty of the offence charged and must be acquitted. (See also Onyema v. The State (1975) 12 Sc. 27.)

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Mr. Debo Akande took up the point that in as much as the doctor D. W. 2 testified that the delusion the appellant might have been suffering from suggests in itself an underlying mental illness, the defence of insanity was available to the appellant. This he submitted, was more so having regard to the acceptance by the learned trial Judge as established that the appellant did not know that he ought not to do what he did.

Learned counsel was at pains to support his argument that the appellant was entitled to an acquittal under the second paragraph of Section 28. This difficulty made counsel to shift his arguments forward and backward from paragraph 2 to paragraph 1 and vice versa of Section 28 of the Criminal Code. This forward and backward play is possible only when the evidence of Dr. Warrick Onyeama is sectionalised and each section considered in isolation. If taken as a whole, it portrays the appellant as a perfectly healthy mentally and physically fit human being trying to justify his action with some stories (1) of theft of his money; (2) of attempt to bewitch him; (3) of adverse reports to his employers and (4) of people ganging up against him.

The evidence from P. W. 2 and P. W. 3 of normal and friendly relationship appellant had with the deceased, and of frequent visits without cause for alarm from appellant to the deceased cannot support but destroy a case for insanity.

This piece of evidence taken and considered along with the findings of the doctor, removes the defence of insanity from the reach of the appellant.

Learned counsel submitted however that since the learned trial judge said:

“I am prepared to accept as established that the accused person knew what he did but felt justified in what he did and did not know that he ought not to do it.”

He was in error in his conclusion that there was absence of evidence that the appellant was suffering from a mental disease or from natural mental infirmity to deprive him of the defence of insanity as provided in the first paragraph of Section 28 of the Criminal Code.

He drew the Court’s attention to the portion of the evidence of Dr. Warrick Onyeama D. W. 2 which states:

“With regards to the attitude to the act which led to his arrest and detention, he remained convinced of the justification of what he did and this attitude remained inaccessible to any contrary argument. It was my feeling at the time that he might be suffering from a delusion, the existence of which will suggest in itself an underlying mental illness.” and submitted that there could be no clearer evidence of mental disease than that piece of evidence. Brilliant as this submission is, I find myself unable to find any merit in it. There is no dearth of Nigerian judicial authorities on the interpretation of Section 28 of the Criminal Code and it is settled law that it is the state of mental health of the appellant at the time of committing the act that is relevant and vital in the determination whether the defence will be available or not. Section 28 of the Criminal Code reads:

“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural infirmity as to deprive him of capacity to understand what he is doing or of capacity to know that he ought not to do the act or make the omission.

“A person whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”

The question which counsel’s submission impliedly raised is whether a feeling of justification for what appellant did to the deceased was synonymous with absence of capacity to know what he ought not to do the act. It is my respectful opinion that both are quite different climate of minds and they are mutually exclusive. The former in itself indicates knowledge of what is done that ought not to be done and a feeling of immense satisfaction for having done it in revenge. The latter climate indicates total absence of any capacity for such knowledge forbidding the act. What are the elements necessary to be proved to establish the defence under Section 28 of the Criminal Code In Rex v. Omoni (1946/1949) 12 W.A.C.A. 511, Verity C.J. delivering the judgment of the Court after very serious deliberation on the import of Section 28 of the Criminal Code said at page 512:

“The Nigerian law being what it is, it may be well to state quite clearly what, in our opinion, the defence must prove under that law, to establish insanity and to overcome the presumption that every man is sane and accountable for his actions.

First, it must be shown that the prisoner was at the relevant time suffering either from mental disease or from “natural mental infirmity” as we have interpreted its meaning – (i.e. a defect in mental power neither produced by his own default nor the result of disease of the mind)

Then it must be established that the mental disease or the natural mental infirmity, as the case may be, was such that, at the relevant time, the prisoner was as a result deprived of capacity:

(a) to understand what he was doing or (b) to control his actions or

(c) to know that he ought not to do the act or make the omission.

It must further be remembered that if the defence be one of partial delusion, the provisions of the second paragraph in the Nigerian Section 28 are applicable and that they are similar to the rules in Macnaughton’s case (1) as to delusions.”

What are the rules in Macnaughton’s case as to delusions They are expressed in the answers of the judges to the House of Lords given in consequence of Macnaughton’s case (1843) 4 ST TR (NS) 847. See Archbold Criminal Pleading Evidence and Practice 38th Edition Art. 33 and 35. The questions asked and the answers embodying the rules as to partial delusions are:

Art. 33 Question 1

“What is the law respecting alleged crimes committed by persons afflicted with insane delusions in respect of one or more particular subject or persons as for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law but did the act complained of with a view under the influence of insane delusion or redressing or revenging some supposed grievance or in jury or of producing some public benefit.”

Answer: “Assuming that your Lordships’ enquiries are confined to those persons who labour under such partial delusions only and are not in other respects insane, we are of the opinion, that notwithstanding the party did the act complained of with a view under the influence of insane delusion of redressing or revenging some supposed grievance or in jury, or of producing some public benefit he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law by which expression we understand your Lord to mean the law of the land. ” (4 St Tr (NS) 930. )

Art. 35 Question 4

If a person under an insane delusion as to the existence of facts commits an offence in consequence thereof, is he thereby excused.”

Answer: “The answer must of course depend on the nature of the delusion, but making the same assumption as we did before that he labours under such partial delusion only, and is not in other respect insane, we think he must be considered in the same situation as to responsibility as if the facts with respects to which the delusions exists are real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life and he kills that man, as he supposes in self-defence, he would be exempted from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune and he killed him in revenge for such supposed injury he would be liable to punishment.” (4 St Tr (NS) 938. See R. v. TOWNLY 3 F & F 839.)

It is settled law that whether the accused person was sane or insane in the legal sense at the time when the act was committed is a question of fact to be determined by a jury, (REX v. WANGARA 10 W. A. C. A. 236; WALTON v. R (1978) 66 CR. All PR 25) and not by medical man however eminent, (R. v. Rivett 34 Cr App R 87) and is dependent upon the previous and contemporaneous acts of the party. (Rex v. Ashiqufuwo 12 W. A. C. A. 389).

Evidence of insanity of ancestors or blood relatives and evidence of illness exhausting the brain is admissible and relevant

(REX v. INYANG 12 W. A. C. A. 5). Medical evidence is admissible but not essential.

In RICHARD WILLIE v. THE STATE (1968) 1 All NLR 152 this Court held that to avail himself of the defence of insanity in our law it is not sufficient for the appellant to establish that he was mentally abnormal at the time of his trial. He must go further to show that at the time of doing the act complained of he was insane within the meaning of the provisions of our Statute law. (See also UPETIZRE v. ATTORNEY GENERAL WESTERN NIGERIA (1964) 1 All NLR 204.)

But in fairness to D.W. 2, a medical witness, who never saw the defendant prior to the trial but who only saw him about 3 years after the commission of the offence and was present during the whole trial and the examination of the witnesses was not and could not, in strictness, be asked his opinion as to the state of the defendant’s mind at the time of the commission of the alleged crime, or his opinion whether the defendant was conscious at the time of doing the act, that he was acting contrary to law, that he was labouring under any delusion at the time because each of these questions involves the determination of the truth of the matter deposed to which it is for the jury to decide. (Rex v. Inyang 12 W.A.CA. 5.)

The defence therefore suffered from four defects:

(1) It was devoid of any evidence of the existence of insanity in either the ancestors or family of the appellant and none was produced about the appellant at or after the incident.

(2) The medical evidence adduced came from observation of D. W. 2 made about 3 years after the commission of the act complained of.

(3) The medical evidence in support of the partial delusions was not positive, it was conjectural and related only to the attitude of justification for committing the act.

(4) The truth or falsity of the complaints of the appellant against the deceased was never established as to enable a proper decision whether the appellant’s mind was affected by partial delusions indeed there was a total absence of evidence from both the prosecution and the defence in denial of the allegation to sustain the conclusion that there was a false premise which impelled the appellant to the course of action.

In the final analysis the finding of fact arrived at by the learned trial Judge that the appellant did not suffer from any disease of the mind or natural infirmity was fatal to the defence under Section 28 of the Criminal Code and to the conjecture or suggestion of D. W. 2 in his testimony that the delusion under which the appellant was labouring (which did not respond to treatment) suggested an underlying mental illness.

The laws of Nigeria permit no one to take the life of another on the grounds (1) that he has stolen his money;

(2) that he brought native doctors to bewitch him. See KONKOMBA v. THE QUEEN 14 W.A.C.A. 236;

IWUANYANWU v. THE STATE (1964) 1 All NLR 413 AT 414;

(3) that he said something adverse or detrimental to his interest to his employers;

(4) that he ganged up people against him.

It now remains to examine the two cases cited above to see what this Court said of the defence of witchcraft in the past. In the case of KONKOMBA v. The Queen 14 W. A. C. A. 236 Foster-Sutton P. delivering the judgment of the West African Court of Appeal said at 237:

“In murder cases a defence founded on witchcraft has always been rejected except in cases where the accused himself has been put in such fear of immediate danger to his own life that the defence of grave provocation has been held proved.”

In the case of IWUANYANWU v. THE STATE (1964) 1 All NLR 413 Onyeama, J.S.C. (delivering the judgment of the Supreme Court) said:

“It is clear from the evidence that the appellant believing that the deceased and others were going to kill him by witchcraft, killed the deceased first. Section 28 of the Criminal Code cannot avail him for if the facts were as imagined, the deceased had not attacked him when he stabbed him. He killed him to prevent him sending the evil spirits. He knew what he was doing and why he was doing it. . . On the assumption of the delusion, he was not acting in self-defence at the moment that he stabbed and is not exonorated under 2nd paragraph of Section 28.”

The power to punish for all or any of the above acts resides only in the law courts of the land after due process of trial and in no other authority and every citizen is entitled to the same full protection of the law for his life and property as if he had done no wrong to that other party.

I therefore find myself in entire agreement with the learned trial Judge when he said that:

Assuming his delusional beliefs are correct under the provisions of the second paragraph of section 28 of the Criminal Code his delusions will afford him no defence to the offence which he has committed.”

The Federal Court of Appeal was in my opinion justified in dismissing the appeal against the appellant.

For the above reasons, I find no merit in the appeal and I hereby dismiss it. The conviction and sentence passed by the High Court and affirmed by the Federal Court of Appeal are hereby affirmed.

ANIAGOLU, J.S.C.: The only issue calling for the determination of this Court is the state of mind of the appellant when he killed him, admittedly, the deceased, one Aniagolu Ugwu at Akegbe Ngwu village of Nkanu Clan within the Enugu Judicial Division that fateful morning of 8th August 1973, and whether, by that state of mind, the appellant was insane within the meaning of Section 28 of the Criminal Code Law Cap. 30 Vol. II Laws of Eastern Nigeria, 1963 which reads:

“28. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to know that he ought not to do the act or make the omission. A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”

See also  Otuaha Akpapuna & Ors Vs Obi Nzeka Ii &ors (1986) LLJR-SC

Before dealing with the law, the short facts of the case need here to be mentioned. The appellant and the deceased were half brothers – of the same mother – but not the same father. They were on very good terms and, as the evidence disclosed, planned their affairs mutually in common. They lived in separate houses. In the early hours of the morning of 8th August 1973, the appellant went, with his matchet, to the house of the deceased, and without preliminaries, proceeded to inflict matchet cuts on him, the injuries from which the deceased later died that day. Barring what the appellant later told the police, there appeared to be no reason whatever for the appellant doing what he did. In his statement to the police, Exhibit G, translated into English in Exhibit G1, the appellant stated that last year an official promotion letter was sent to him from Lagos. He kept it inside the pocket of one of his dresses and began to look for it later. He enquired from the deceased who said he did not see it. Later Government authorities began to make a check and finally discovered that it was the deceased who stole it. It was then he gave the deceased matchet cuts because the deceased, in the words of the appellant, “has long he had been punishing me”.

In his evidence-in-chief on oath before the Court he swore that the deceased was his elder brother and they had a quarrel because a paper which was sent to him by the Government requiring him to give particulars of his home, did not reach him and that was the cause of the trouble between him and the deceased. The deceased has brought a native doctor to cure him but he did not realise that the deceased in fact brought the native doctor to bewitch him. Because he could not get hold of the paper from the Government he was not paid a certain sum of money that was due to him. The deceased handed the said Government paper over to the Coal Corporation and only the workers under that Corporation were paid the sums due to them. It was because of the quarrel he had with the deceased that he used a matchet and matcheted the deceased. Under cross-examination he stated that he was annoyed that the deceased took the paper sent to him by Government and incited people against him.

From both his evidence in Court and his statement to the police the appellant conceived that:

(i) A paper promotion came to him from the Government of Nigeria which the deceased intercepted and would not hand over to him;

(ii) In the alternative (according to his statement to the police) that the appellant received the letter, kept it in his pocket and later lost it, only to find later that the deceased stole it;

(iii) That as a result of the interception or stealing of the letter by the deceased he was not paid by Government a certain amount of money due to him;

(iv) That the deceased brought a native doctor ostensibly to cure him of his illness but it transpired that, in fact, the native doctor was brought by him to bewitch him;

(v) That all this led to a quarrel between him and the deceased in the course of which he (the appellant) matcheted him.

For the FIRST PART of S.28 of the Criminal Code to avail the appellant, he must be suffering from such a state of mental disease or natural mental infirmity as to deprive him:

(a) of capacity to understand what he is doing, or

(b) of capacity to control his actions, or

(c) capacity to know that he ought not to do the act or make the omission.

For the SECOND PART of the said S.28 to avail him he must be suffering from delusions on some specific matter or matters, but he is criminally responsible for the act or omission committed under the delusions to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist. If the state of things he was induced by the delusions to believe were to be real and would have afforded him a defence in law, that defence would be available to him as if the facts were real; if not, they would not afford him the defence and he would be fully criminally responsible for his said acts or omissions.

Counsel for the appellant, Dr. Debo Akande, obtained leave of this Court to file and serve his bnef out of time and to argue the additional ground of appeal – and that was the only ground argued:

“that the verdict should not have been “GUILTY” but “GUILTY BUT INSANE” .

Mr. D. N. Oguadi, Legal Advisor, Anambra State, who appeared for the respondent had no objection to Mr. Akande’s application and waived his right to file a reply brief. In the reply Mr Akande argued the only ground of appeal without any counter-argument from the respondent.

In his argument Mr. Akande relied on two prongs, firstly, on the third portion of the first part of S. 28, namely, that the appellant had not the capacity to know that he ought not to do the act he did; secondly, part two of the said S.28, on delusion. He argued that there was no doubt that the appellant was responsible for killing the deceased but that he was” blocked in his mind” when he did the act. He cited R. v. SUNDAY OMONI 12 W.A. C.A 51I at 513 and submitted that the appellant’s delusions were such as to make it impossible for him to appreciate or understand the nature of his action.

The evidence of the doctor who examined the appellant, is very pertinent on this crucial issue. For its importance I prefer to reproduce in full the evidence of the said doctor – one Dr. Warrick Onyeama – who testified as the second witness for the defence:

“I live at 8 Chime Lane Enugu. I am a doctor, a lecturer in psychiatry at the University Teaching Hospital, Enugu and a consultant in psychiatry. I have seen the accused before. He was referred to me for psychiatric examination. I examined the accused person’s state on two occasions and prescribed treatment. I saw him on the 10th May, 1976 and 7th June, 1976. I made a report of his examination. In essence I found his mental state to be normal on the two occasions. With regards to the attitude to the fact which led to his arrest and detention he remained convinced of the justification of what he did and this attitude remained inaccessible to any contrary argument, it was my feeling at the time that he might be suffering from a delusion, the existence of which will suggest in itself an underlying mental illness. It was for this reason that I recommended the administration of a particular psychiatric drug and he did not respond to treatment. It made no difference to his thinking. His general behavior was entirely normal given the circumstances that he was in the asylum. He had a falsely held belief which refused to respond to treatment and as such I came to the conclusion that his delusional pattern of thinking was unlikely to change. I have no doubt at all that the accused knew exactly what he had done but he believed that what he did was right. He asked me whether I would not have done the same if I were in his position. He thought that he lost his job because a relative of his had said something adverse to his interest to his employers. He regarded that the situation justified his killing the deceased.

By Anyaduba: A delusion in the con in which I use the term is a falsely held belief inaccessible to reason and which represents a departure from previously held patterns of belief and crucially which exists out of the con with the patterns of belief held by the culture from which the subject derives. ”

From the above evidence there was no doubt that the appellant knew exactly what he had done although he believed what he did was right. In other words he knew he was killing the deceased for what the deceased did as herein before itemized, but felt that the deceased deserved to be killed for that. It was for this reason that he asked the doctor if he would not kill the deceased as he did were he (the doctor) to be in his shoes. Undoubtedly it was unreasonable of the appellant to hold the view that the deceased deserved to die, even if it was shown that he committed all the faults the appellant ascribed to him, earlier mentioned. One might argue, as indeed was argued by Mr. Akande, that the fact of the appellant holding that utterly unreasonable view was, in itself, evidence that he was suffering from “natural mental infirmity”, or from “a state of mental disease”. But to suffer from either is not enough under S.28.It must be shown further, as was clearly decided in REX v. OMONI (1949) 12 W.A.C.A. 511 at 513 relied on by Mr. Akande, that the mental disease or the natural mental infirmity was such that at the relevant time, the appellant was, as a result, deprived of capacity;

(a) To understand what he was doing; or

(b) To control his actions; or

(c) To know that he ought not to do the act or make the omission.

As found by the doctor, the appellant was normal on the occasions he examined him. On the evidence the appellant knew what he was doing when he killed the deceased although he felt the deceased deserved to die, just as in OMONI (supra) the appellant in that case had the delusion that the deceased killed his mother and that he should avenge her death by killing the deceased. The facts in both cases are clearly not to be held similar to those in REX v. ASHIGIFUWO (1948) 12 W.A. C.A 389 where there had been evidence led of the appellant’s mental illness, before and after the act, even though the doctor who examined him six months afterwards found that he was then normal.

The learned trial judge, Umezinwa, J., dealing with the issue of the appellant’s delusions held:

“All that has been established on behalf of the accused is that he was suffering from a delusion at the time he killed the deceased which delusion still persists and has not responded to treatment. The delusions from which he suffers are that the deceased stole his money, brought native doctors to bewitch him, said something adverse to his interest to his employer and ganged up people against him. Assuming that his delusional beliefs are correct, under the provisions of the second paragraph of Section 28, his delusions will afford him no defence to the offence, which he has committed. The accused person is not justified in killing the deceased because he stole his money, brought native doctors to bewitch him, made adverse report to his interest to his employer and ganged up people against him.”

I find myself in complete agreement with the learned trial Judge on his above findings.

The test of insanity in England is based on the answers of the judges to the House of Lords in the McNaughten’s Case (1843) 4 St. Tr. (N.S.) 847(a). The 4th answer, which deals with insane delusions, is similar to the provision of the SECOND PART of our S.28 as was found in OMONI(supra) atp.513. The 4th question and in answer in the McNaughten’s Case read:

“35. Question 4. “If a person under an insane delusion as to the existing facts commits an offence in consequence thereof, is he thereby excused”

Answer – “The answer must, of course, depend on the nature of the delusion; but making the same assumption as we did before, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, he kills that man, as he supposes in self-defence, he would be exempted from punishment. If his delusion was that the deceased has inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. ”

In order, therefore to properly appreciate the delusion part of S.28 and to determine their legal consequences, it is necessary to imagine the delusion facts to be true and determine what legal consequences those facts would, as real, come to. If they, as real, would exculpate the accused then he is exonerated; if they, as real, would not avail him, then he takes the legal responsibility for his action. This has necessarily got to be so, for, every person is presumed, under S.27 of the Criminal Code Law of Eastern Nigeria 1963, to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

The burden of this proof in Eastern Nigeria from which the present appeal emanated, has been placed upon the appellant by the provisions of S.140(1) of the Evidence Law Cap. 49 Vol. III Laws of Eastern Nigeria 1963 which requires that:

“Where a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any exemption or exemption from, or qualification to, the operation of the law creating the offence with which he is charged is upon such person.”

This burden is not necessarily discharged by the defence merely showing that the act of the accused was utterly bizarre, or entirely inexplicable upon any rational grounds, or could not be the act of a sane person, or, as was decided in R. v. DIM (1952) 14 W.A.C.A. 154, was motiveless. Colloquially, in a sort of off-handed manner, it is common for people to ascribe to inexplicable acts as “madness” and to say that persons who commit those acts “must be mad”. But that is a manner of saying which does not necessarily satisfy the legal criteria for insanity – criteria which, in order to avail an accused, must fall within the ambit of the four walls of the provisions of S.28 of the Criminal Code Law.

Once they do, then an accused “is not criminally responsible”for the act or omission in relation to the FIRST PART of the section; or “is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist” in relation to the SECOND PART.

It follows that there is no room, within the Laws of Eastern Nigeria as at present, for the verdict of “Guilty but insane” which Mr. Akande has asked us, in his motion and brief, to return in substitution for the verdict of the trial Court. This had been the subject of the Supreme Court decision in OHAEGBULAM OYEMA v. THE STATE (1975) 12 S.C. 27 AT 33, a progeny of an earlier Supreme Court decision (though not cited in the case) in TED KAYODE ADAMS v. DIRECTOR OF PUBLIC PROSECUTIONS OF THE FEDERATION (1966) 1 ALL N.L.R. 12 (a case emanating from Lagos) .

The facts of the present case on appeal evoke some sympathy for the accused but, however, that may be, criminal law has to be aplied as required by law.

In the result, I am of the view that this appeal should be dismissed and is hereby dismissed. The verdict and sentence of the lower Court are, in consequence, hereby affirmed.


Other Citation: (1976) LCN/2206(SC)

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