Paul Eledan V. The State (1964) LLJR-SC

Paul Eledan V. The State (1964)

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BAIRAMIAN JSC

On the 26th March, at the hearing of this appeal, the Court dismissed it and will now give the reasons for the dismissal.

The charge is that the appellant murdered one Iwagu Eledan on 4th June, 1962, at Mbiri near Agbor in the Benin Judicial Division. She was his wife. They had married, he said in his statement to the Police on 5th June, 1962, twelve years and had children, and she was pregnant at the time he killed her; she had been neglecting him and was disrespectful of late; he thought she was pregnant by another man; he called her in her sleep and as she woke up, he matcheted her to death.

In this appeal his act of killing her was not denied, neither was it suggested that there was any circumstance of mitigation: the submission was that he was not fit to plead and take his trial, and should not have been tried without compliance with the provisions of section 223 of the Criminal Procedure Act; and the decision of the Court in R. v. Ogor [1961] All N.L.R., 70, was relied upon.

The judgment in Ogor discusses section 223 at length. In that case the doctor certified in July, 1960 that Ogor was mentally abnormal in a state of semi-stupor and was unfit to plead; the certificate was shown to the trial Judge in October, and he wrote in his notes that the question arose whether he should call for a medical report on Ogor’s fitness to stand his trial. Counsel for Ogor told the Judge he was satisfied that Ogor was fit to stand his trial-he had given proper and rational instructions; and in answer to the Judge Ogor said he knew he was charged with murder and had understood the proceedings to date.

The Judge wrote a note that he was satisfied the accused was capable of understanding the proceedings and making his defence; and the trial proceeded. In the appeal from conviction, this Court held that when the presumption of the sanity of an accused person was displaced or put in doubt by evidence-which the doctor’s certificate was-it was necessary to have evidence, be it in the shape of a medical certificate, that the accused had recovered and become fit to stand his trial; but there was no such evidence and the trial should not have continued.

What counsel for Ogor said from the bar was not evidence to resolve the doubt on Ogor’s sanity, but apparently it was treated as evidence by the trial Judge. Ogor gave evidence at his trial, the Judge formed the impression that his mind was “dangerously balanced “; he should not have been tried, for s. 223(1) provides that-

“When a judge holding a trial or a magistrate holding a trial or inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence the judge, jury or magistrate, as the case may be, shall in the first instance investigate the fact of such unsoundness of mind.”

We stress the words “has reason to suspect.”

The appellant in the present case was brought up before Peter Thomas, J. on 5th December, 1963. He had been under medical observation for a long time, and the doctor certified that he was fit to take his trial. He had no counsel on the 5th; on the 6th he had; and his counsel stated that he was unable to receive any coherent instructions from the appellant despite several attempts, and was of opinion that he was unfit to plead; whereupon counsel for the prosecution drew attention to the doctor’s certificate of 30th November, 1963, that he was mentally fit. The note continues to say – it is not clear from the transcript whether it is based on a statement of counsel or on the Judge’s observation-that the accused had twice interrupted the proceedings since he was called up. Someone was sworn to interpret, the charge was read, the plea was not guilty, and the trial was adjourned to the 9th, to enable counsel to receive further instructions; and on the 9th witnesses were called by the prosecution.

First, the little daughter; she was cross-examined on whether she was awake and how she could have seen the deed. Second, the appellant’s brother; he was cross-examined on the number of wives the appellant had had and why they left him, and whether there was any other house between that of the appellant and where the voice of the appellant came from which he heard when he went to the appellant’s house upon the little girl’s report. In addition the learned Judge asked him whether the appellant had ever acted abnormally, and he said no. The next witness was on the identification of the corpse to the doctor; he was not cross-examined. Then came a police witness who tendered the pathologist’s report and the appellant’s statement; he was asked in cross-examination whether he found it hard to record the statement, and he said no. Finally the Sessions Clerk produced the doctor’s deposition and a gazette on his having left.

That closed the prosecution case; the next note is –

“The accused states that he does not want to testify after getting into the witness box and that he would make a statement not on oath.

He then left the witness box and proceeded to make the following statement under examination.”

It is hard to say whether anything in it is relevant to the charge. Counsel for the defence submitted that it was abundantly clear from the demeanour of the accused at the trial and his incoherent statement that he was mental. After reviewing the evidence for the prosecution, the judgment under appeal goes on to say-

“The accused was represented by counsel and the Court then explained to him that there were three courses open to him and that it was up to him to make his choice. The accused then said that he was going to testify on oath. Just as he was about to be sworn, he changed his mind and said that he preferred to make a statement from the dock. He was allowed to leave the witness box and he then made a statement from the dock and that concluded the trial.”

Lower down the judgment notes that the statement from the dock was unintelligible and incoherent; it adverts to the defence of insanity and rejects it, and goes on thus-

“It is my considered opinion that he is quite sane and was just playacting when making his defence. At this distance of time, he finds it difficult to justify his action on the early morning of the 5th June, hence his simulation at the trial.”

He was convicted; that he killed his wife in circumstances amounting to murder was not disputed; the submission in his appeal was that he should not have been tried at all without an investigation having first been made by the trial Judge on whether he was of sound mind-or rather, on whether he was not of unsound mind and consequently incapable of making his defence. Attention was drawn to what learned counsel for the appellant told the trial court on the 6th December, 1963 (the first day of his appearance) and to the unintelligible statement made by the appellant from the dock. The argument was that the trial Judge should have taken the initiative of investigating the ability of the appellant to stand his trial in the circumstances and erred in not doing so.

It is needless to repeat what was said in R. v. Ogor; but the facts here differ. Not only is there a presumption of sanity: there was a medical certificate less than a week old before the trial court that the appellant was mentally fit; that court had no reason to suspect that his mind was unsound.

On the evidence of the doctor he was fit to stand his trial; and the learned Judge did not allow himself to be carried away by the statement of counsel for the defence on the 6th December, that he could not get any rational instructions from the appellant. He adjourned to the 9th to enable him to get further instructions; what they were one does not know, but from the trend of the cross-examination they appear to have been sensible.

It is of the highest significance that the appellant at first thought of testifying on oath and then changed his mind. The learned Judge explained to him the choice he had; he obviously made a choice, for he changed his mind from a course which would have made him in conscience bound to be truthful and in law liable to cross-examination; he elected a course which absolved him from that obligation and that liability. That made it clear that he was able to follow the distinction between the implications of sworn evidence and those of an unsworn statement, and

Other Citation: (1964) LCN/1149(SC)