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Rex V. Ashigifuwo (1948) LJR-WACA

Rex V. Ashigifuwo (1948)

LawGlobal Hub Judgment Report – West African Court of Appeal

Murder—Defence of insanity—Factors to be taken into account in decidingsuccess or failure of this defence—Nigeria Criminal Code, section 28—Quantum of proof.

Mere absence of any evidence of motive for a crime is not a sufficient ground upon which to infer mania.

As pointed out in R. v. Inyang (1); where there is sufficient evidence indicative of insanity rather than the opposite, the absence of any evidence of motive may become relevant to the point at issue and material to it.

If the facts proved by the defence are such as to make it most probable that the accused, by reason of mental disease or natural mental infirmity was deprived of his capacity to understand what he was doing or control his actions, then the defence has discharged the burden of proof required to establish the defence of insanity.

Cases referred to:

  1. R. v. Inyang, 12 W.A.C.A. 5.
  2. R. v. Nasamu, 6 W.A.C.A. 74.
  3. R. v. Afonja, W.A.C.A., 22nd February, 1947 (unreported).

Appeal from the Supreme Court of Nigeria.

Magnus Williams for Appellant.

Lloyd, Crown Counsel, for Crown.

The following judgment was delivered:

Verity, C.J. This is an appeal from a conviction for murder. The defence raised at the trial was that of insanity and the only substantial ground of appeal is in effect that the learned trial Judge erred in holding that the defence of insanity failed.

The facts in regard to the act of killing are that the appellant left his house carrying an axe and went to the house of the deceased, an old woman whom the appellant admits was ” like a mother to him “, and then for no apparent reason whatever, killed her with the axe and shortly afterwards was seen in the vicinity washing bloodstains from his wrapper.

It is well recognised that, as stated in Archbold, (31st Edition, p. 16), ” mere absence of any evidence of motive for a crime is not a sufficient ground upon which to infer mania “. But as was pointed out by this Court in R. v. Inyang (1) when there is sufficient evidence indicative of insanity rather than the opposite, ” the absence of any evidence of motive may become relevant to the point at issue and material to it “.

See also  E. T. Otoo Obuobi V. Yar Borley & Anor (1934) LJR-WACA

In the present case the defence called certain witnesses as to the past history of the appellant and as to his conduct immediately preceding the killing of the deceased, as also the Chief Warden of the Prison in which he was confined before trial. Medical evidence was also adduced, and we have the advantage of notes on the record as to the impression made upon the Judge by the appellant in the course of his giving evidence in the Court below. The doctor expressed the opinion that mentally he found the appellant’s behaviour to be normal. This conclusion was reached as the result of four interviews of from five to thirty minutes duration, some six months after the alleged crime, but unfortunately

the doctor was not given an opportunity of hearing the evidence as to the appel lant’s past history and conduct or of expressing an opinion thereon, save in regard to the evidence of the Warden who has stated that the appellant ” laughed irregularly “. This tendency, the doctor said, would raise the possibility of insanity. More experienced counsel would have examined the doctor further in the light of the other evidence, but this not having been done the trial Judge might have recalled the doctor for this purpose. There was also evidence that the appellant a year earlier became, in the opinion of his relatives, ” mad that he was treated with native medicine and recovered. This is not expert evidence of insanity but it is evidence of some abnormality of conduct. A brother of the appellant further testified that four days before the killing of the old woman the appellant ” went out of his senses “, further testimony of some mental abnormality noticeable to his relatives. There is also evidence that on the night before, he kept disturbing his brother, seeming ” to want to hunt a dog or some other animal “. For four days before he took no food, slept away from his home, refused food offered him by his wife and did not answer when she spoke to him. In the witness box he stated that he did not know why he was before the Court, that he did not know anything about killing the woman and did not know if he had struck her with an axe. At times his answers to questions were reasonable and at the other times were not. At times he did not answer questions at all and the learned Judge records that his demeanour throughout was listless and apathetic. The learned Judge found that ” some degree of feeble-mindedness ” was proved, but he had no doubt that at the time of the trial the appellant knew he had killed the woman and that his act was wrong, and further stated ” the accused’s conduct•throughout appears to be consistent with the view that he knew what he was doing and knew that it was wrong ” and added ” he knows now what he did and that it was wrong “.

See also  Rex V. Adegbola Thomas (1945) LJR-WACA

These findings of the learned Judge are not, in our opinion, wholly satisfactory, nor are we of the opinion that they indicate that he had fully addressed his mind to the law on the subject as enacted by section 28 of the Criminal Code and laid down by this Court in such cases as R. v. Nasamu (2) and R. v. Afcmja (3).

It is to be observed that section 28 of the Criminal Code which deals with insanity is the rule of law which must be observed in determining criminal responsibility, and that its provisions are not identical with what are usually called ” the rules in McNaughton’s case “. The section provides that a person,

” is not criminally responsible for an act . . . if at the time of doing the act . . . 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 . . . “

It is important to note that this enactment refers not only to mental disease but also to ” natural mental infirmity “. It would be sufficient to bring the matter within this provision, therefore, for the defence to have proved that by reason of such mental infirmity the appellant was deprived of his capacity to have understood what he was doing or to have controlled his actions. Again in regard to the burden of proof the learned Judge appears by his reference to the degree of proof adequate in a civil suit to have recognised that proof beyond reasonable doubt was not required, but in dealing with this aspect of the matter this Court in R. v. Nasamu (2) and in R. v. Afonja (3) held that, if the facts proved by the defence were such as to make it ” most probable ” that the accused by reason of mental disease or natural mental infirmity was deprived of his capacity to understand what he was doing or control his actions, then the defence has discharged the burden of proof required to establish the defence of insanity.

See also  S. D. Oshodi V. Momodu Aremu (1952) LJR-WACA

It does not appear from the judgment in this case that the learned Judge took into consideration either the particular provisions of the local statute as to criminal responsibility or the decisions of this Court as to the measure of proof.-

Taking into consideration all the evidence in this case, together with the Judge’s conclusion as to the feeble-mindedness of the appellant, we are of the opinion that the evidence is indicative rather of insanity as defined by section 28 of the Criminal Code than the opposite, that the absence of any evidence of motive becomes material to the issue and that in all the circumstances it is ” most probable ” that the appellant was by natural mental infirmity deprived at the time he killed the woman of his capacity to understand what he was doing. We are therefore of opinion that in this case the conviction and sentence must be set aside : this Court substitutes the order which the trial Judge should, in our opinion, have made, finding that the accused person committed the act alleged but acquitting him of the offence charged on the ground of unsoundness of mind at the time at which he committed the act.

It is, therefore, ordered that the appellant be kept in safe custody in His Majesty’s Prison at Lagos and that the case be reported for the order of the Governor.


Appeal allowed and special verdict substituted.

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