Ohaegbulam Onyema V. The State (1975) LLJR-SC

Ohaegbulam Onyema V. The State (1975)

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The appellant was tried in the High Court of the Umuahia Judicial Division of the East Central State holden at Umuahia by Aniagolu, J., for the offence of murder of one Olukwu Nwankwo and found guilty but insane on the 6th day of July, 1975. He was then ordered to be kept in the State’s Prisons at Aba as a Criminal Lunatic until the pleasure of the administrator of East Central State be known.

Being aggrieved by the conviction the appellant filed a Notice of Appeal on 7 (seven) grounds. Mr. F.O. Akinrele learned counsel assigned to argue the appeal informed the court that he had nothing to urge in favour of the appeal.

Mr. D. O. Edosie (Senior State Counsel East Central State) who appeared for the respondent stated that on perusal of the records he associated himself with appellant’s counsel but drew the court’s attention to the conviction recorded which he submitted was not in accordance with the terms of the provisions of the Criminal Procedure Law of the East Central State.

The verdict of guilty but Insane he submitted was contrary to the provisions of the law which absolves a person found to be of unsound mind from criminal responsibility.

We found the submission of the learned Senior State Counsel well founded and we allowed the appeal against conviction and altered the verdict to one of “Not Guilty by reason of the accused person’s unsoundness of mind at the time he committed the act.”

We now give our reasons.

The information on which the appellant was tried charged him with the offence of “murder contrary to Section 319(1) of the Criminal Code.” Although it is not so stated it is assumed that the particular law under which the appellant was charged is the Criminal Code Law Chapter 30 Vol. II of the Laws of Eastern Nigeria 1963 applicable in the East Central State of Nigeria.

The facts of the case found by the learned trial Judge are as follows:-

The appellant was a school teacher resident in ISINGWU OFEME village. The deceased was a farmer also in Isingwu Ofeme village. Both of them were on very friendly terms. Both of them belonged to the same village ISINGWU OFEME and their relationship was so intimate that the sister of the deceased P.W.4 described the deceased as the appellant’s best friend. The wife of the brother of the deceased P.W.1 described the appellant as being on good terms with the deceased. She never heard the appellant complain against the deceased.
The wife of the deceased had the same to say of the relationship between the deceased and the appellant. She testified that there was never any land dispute between them and that the deceased never threatened to kill the appellant.

In 1971 the appellant was involved in a motor accident and since then the soundness of his mind became cause for concern to his wife and his family. Apparently nothing much was done about it to restore his normal mental health.

On the 6th day of October 1972, Olukwu Nwankwo was matcheted to death in his house, by the appellant.

There was no eye witness to the act. Before anyone knew what had happened P.W.1 heard the appellant saying with satisfaction to himself on his way back from the stream after mentioning the name of Ulukwu Nwankwo “I have killed him. Today I am happy I have killed him.” When he was met at the front of the house of Ulukwu Nwankwo still thinking he has triumphed over his enemies he was saying “Yes I have killed him, let him come out and talk.”

When P.W.1 and others were crying in sorrow he hushed them up and ordered them to leave the compound.  He asked whether they were not happy that he had killed the deceased.

The appellant complained to P.W.2 of the deceased as a man in the village who did not want progress and who was waiting for him to die so that he might come and dance around his grave but that the deceased would carry the trouble on his head. After his arrest the appellant made statement to the Police as follows:-

“This man Ulukwu Nwankwo the deceased is a native doctor. Since about 13 weeks I had been sick and the deceased told me I will die. This caused fighting between myself and the deceased Ulukwu Nwankwo yesterday 6th October, 1972 at the deceased’s house in the morning at 10 a.m. That time every body had gone either to the farm or market. He pushed me and I gave him matchet cuts. Besides this thing he said he had taken 3 different pieces of my father’s land. At the time I gave him matchet cuts he fell down. Nobody knew of it. It was when I was talking with annoyance that people suspected me.”

Dr. Ariwodo Kalunta (P.W.4) who kept the appellant under observation; for a year found according to his evidence that:

He was a very sensitive person who presented a moody posture, withdrawn, inclined to be suspicious, and presented unstable temperament. He appears to resent what he thinks is unjust whether real or imaginary and allowed the emotions of rage and hate to dominate him …………
Because of his unstable temperament he suffers from episodes of depression during which phase he can become desperate, misinterprete intentions, events and situations and would act impulsively under delusional beliefs ……that the appellant was suffering from depressive illness with paramount feature…. if the appellant had a motor accident he could be prone to some of the symptoms.”
The learned trial Judge after reviewing the facts and considering  decided cases on section 28 of the Criminal Code Law “was satisfied that the appellant was suffering from such mental infirmity that he had not, at the time he killed the deceased, the capacity to control his actions” and held that the defence of insanity provided by Section 28 of the Criminal Code Law was made out and available to the appellant.

What we have found wrong in the judgment is the verdict entered against the appellant after a satisfactory assessment of the facts on the evidence. It reads thus:

“Accordingly, the verdict of this court on the information preferred against the appellant is that he is guilty of the act charged against him in the indictment but that he was insane at the time he committed the act.
‘guilty but Insane’ “.

Having held that the defence of insanity under section 28 of the Criminal Code Law Cap 30 Vol. II Laws of Eastern Nigeria had been made out it is relevant and indeed necessary for our purpose to examine the content of the provision of that section. The section reads as follows:-

“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 capacity to control his actions, or of capacity to know that he ought not to do the act or omission. A person whose mind, at the time of 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”. (Underlining  is ours).

The provisions of this section do not in our view permit of a verdict of guilty. A verdict of Not Guilty is demanded and this is apparent from the provisions of section 229 of the Criminal Procedure Law Cap 31 vol. II Laws of Eastern Nigeria which reads:

“When any person is acquitted upon the ground that at the time at which  he is alleged to have committed the offence he was by reason of unsoundness of mind incapable of knowing the nature of the act alleged as constituting the offence or that it was wrong or contrary to law the finding shall state specifically whether he committed the act or not”. (Underlining is ours).

An acquittal in this con must be proceded by a finding of ‘Not Guilty’ and we find ample support for this view in the provision of section 246 of the Criminal Procedure Law Cap 31 vol. II Laws of Eastern Nigeria which reads:

“If the court finds the accused person not guilty the accused person shall be discharged and a verdict of acquittal recorded”. (Underlining is ours).

We wish at this juncture to draw the attention of the lower court to the requirement of our law and the need to keep strictly to the terms of the provisions thereof. Since “Guilty but Insane” was never prescribed by our law, there can be no legal basis for the return of such a verdict on the appellant or any person tried by any of our courts.

For the above reasons we allowed the appeal against conviction and entered a verdict of –

“Not Guilty by reason of unsoundness of mind” in favour of the appellant. The appellant being found to be of unsound mind we affirmed the order made under section 230(1) of the Criminal Procedure Law for the safe custody of the appellant in Aba Prisons, pending the order of the Military Governor.

Other Citation: (1975) LCN/1994(SC)

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