Sanusi Moh’d V. Kano State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A.:(Delivering the Leading Judgment)

The Appellant was arraigned before the Kano State High Court on 26/7/2005 on a one Count Charge of the offence of Culpable Homicide punishable with death. The charge reads:

“That you Sanusi Moh’d, of Brigade Quarters, Kano, on or about the 21st day of December, 2001 at Brigade quarters within Kano Judicial Division, did commit the offence of culpable homicide punishable with death to wit; you felled and thereafter struck with concrete blocks several times the head of one Bashir Jibrin which resulted in his death therefore, committing an offence contrary to section 221 of the Penal Code.”

He pleaded not guilty to the charge on the same day. Hearing in the matter commenced on 1/12/2005. The Prosecution called three witnesses, while the Defence presented five witnesses.

At the close of defence case, the parties, through their Counsel, addressed the Court by filing written addresses which were duly considered by the trial Court. On 30/9/2011 the trial Court in its judgment, held thus:

“There is no direct evidence which shows that at the time of the commission of the offence the accused was out of his mind and did not know the nature of what he was doing. It is not enough for the accused to merely plead I sanity (sic) at large, he ought to relate it to the tome (sic) the alleged offence was committed. It is my view therefore that the defence of insanity pleaded by the accused person cannot avail him and I so hold. From what has been adduced before me both oral and documentary, the prosecution has established its case beyond reasonable doubt. Consequently, the accused is hereby convicted as charged. The accused is hereby sentenced to death. He is to be hanged by neck until he dies.”

The Appellant was startled by this pronouncement that he lodged an appeal against the same by his Notice of Appeal dated 15/12/11 and signed by him. The record of appeal was compiled and transmitted to this Court on 24/4/12. The respective learned Counsel for the parties filed and exchanged their Briefs of Argument which were adopted at the hearing of this appeal.

In the Appellant’s Brief of Argument prepared by his learned Counsel, Nassir Abdu Dangiri, the lone issue propounded for determination of this Court is:

“Whether on the evidence before the Court, the defence of insanity under section 51 of the Penal Code was established and available to the defence.”

The Respondent adopted the lone issue propounded by the Appellant. It was contended on behalf of the Appellant that the Learned trial Judge erred in law and misdirected himself when he failed and/or neglected to consider the behaviour of the Appellant before the incident, at the time of the incident, and, after the incident as decided by the Supreme Court in Kure vs. State (1988) 2 SC Part 11 page 108 at 110 paragraph 25 (1988) 1 NWLR Part 71 page 404. He stressed that the behaviour of the Appellant before and at the time of the incident was given by D.W.1, while his behaviour after the incident was given by D.W.2 and D.W.5. He reproduced the provisions of section 51 of the Penal Code, Cap 105, Laws of Kano State (1991) which provides that “nothing is an offence which is done by a person who at time of doing it by reason of unsoundness of mind is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law”, and, emphasized that the record of appeal is replete with instances where the defence of insanity was raised. He relied on the evidence of D.W.1, D.W.2, D.W.4 and D.W.5. He also made reference to the judgment of the trial Court at pages 101-107, 112-114 of the record and submitted that the evidence of the witnesses and the findings of the learned trial Judge raised a serious question as to the state of mind of the Appellant. He emphasized that the patients treated in Psychiatric Hospital are people who are of unsound mind, i.e. people with mental diseases. He argued that notwithstanding the findings, the trial Court suddenly at pages 116-117 and 118-119, remarked that there is no direct evidence which shows that at the time of the commission of offence, the accused was out of his mind and did not know the nature of what he was doing, that it was not enough for the accused to merely plead insanity at large, he ought to relate it to the time the offence was committed. He contended that this differs from the position of the law as adumbrated by the Supreme Court in Kure vs. State (supra), where it was held that in insanity cases, it is not sufficient for the Judge to consider only the behaviour of the accused before the incident. He must consider his behaviour at the time of the incident and after the incident. He also highlighted the Supreme Court decision in Karimu vs. State (1989) 1 NWLR Part 96 page 124 at 147, per Obaseki J.S.C., that any un-contradicted evidence of mental illness with abnormal behaviour or loss of capacity to control his action discharges the burden. By that, it means if there is uncontradicted evidence that he was mentally ill, behaving abnormally, threatening the lives of others and has been receiving treatment for the illness without the cure, the burden is discharged. The proof can come from either the prosecution witnesses or defence witnesses.

Learned Counsel further referred to the dictum of Obaseki, J.S.C. that a sane and normal person is not taken to the Psychiatric Hospital for treatment and where a person is taken to Psychiatric Hospital and detained for treatment, the implication is that he is insane. The presumption of insanity under our law is thereby rebutted and displaced. He also referred to the remarks by Nnaemeka, J.S.C. in Kure vs. State (supra) at pages 117-118 that, “evidence of D.W.1 that the Appellant stripped himself naked in public’ confirmed that the Appellant had the Psychiatric treatment for a period of nine to ten months. Moreover, the statement of the Appellant to the Police, Exhibit 2 suggests that he was probably insane. The learned trial Judge did not properly advert his mind to the requisite standard of proof and the cumulative effect of the above pieces of evidence. He, then, urged this Court to hold in the like manner, allow the appeal and acquit the Appellant of the offence of culpable homicide by reason of unsoundness of his mind and order that he be detained in a safe place at the pleasure of the Executive Governor of Kano State.

In the Respondent’s response, it was contended that no issue relating to insanity was mentioned in grounds nine, thirteen, fourteen and fifteen of the Appellant’s grounds of appeal and as such those grounds ought to be struck out. Learned Counsel for the Respondent Mukhtar Sani Daneji Esq., Director Public Prosecution, Ministry of Justice, Kano relied on the decision in Dakolo vs. Rewane (2011) SCNJ 397 Regarding the defence of insanity trumped up by the Appellant, learned Counsel submitted that to establish a defence of insanity, it must be clearly proved that; (a) at the time of committing the act, the accused was suffering from a defect of reason from a disease of the mind so as not to know the nature and quality of his act; or (b) what he was doing was wrong. He argued that the burden of proving the same in defence to criminal charge lies on the accused and it can only be discharged by tendering evidence suggesting that it was most probable that he was incapable of knowing the nature, of his act. He referred to R vs. Yayiye 1957 NRNLR (without page citation). He referred to the testimonies of PW1, P.W.2, and P.W.3 and argued they did not reveal the accused was suffering from mental illness. He further referred to the statement of the Appellant in Exhibit “A” where he mentioned that they used to go hunting for cats at night, and, the manner by which the Appellant convinced the deceased to follow him despite P.W.1’s reservation because of the timing and the answer of the Appellant, tend to suggest that on that fateful day and time, the Appellant was of sound mind. Learned Counsel cited the case of Guobadia vs. State (2004) 6 NWLR Part 869 page 360 in which the Supreme Court stated that any evidence of insanity tendered by an accused person himself is suspect and is not usually taken seriously, and stressed that Appellant did not adduce sufficient evidence to support the defence of insanity particularly at the time of his action. Counsel, also, turned to the evidence of D.W.1 where he merely stated that in 2001, he took the accused twice to the Psychiatric Hospital. The first time he spent about two months, no date was given, while the second time was in April. Also focused on, were the testimonies of D.W.2. and D.W.3. He stated that D.W.3., claimed ignorance of the mental condition of the accused having spent only six months in the Hospital. He concluded by saying that they could not trace the accused file.

Learned Counsel submitted that there was no medical evidence which is the surest way of establishing insanity. The only evidence from the Hospital was Exhibit “E” which was shown to D.W.4., during cross examination and he said, it did not bear the date of admission. He expressed that the argument of the appellant that the trial Court was wrong to have convicted him in spite of the fact that it believed the evidence of D.W.1., D.W.2 and D.W.4 is not tenable. Learned Counsel submitted there was no serious question as to the state of mind of the appellant particularly at the time of the act. He submitted that by the trial Court making reference to the case of Okeke vs. The State (2003) FWLR Part 159 1381 at 1429, is very clear on the point and does not require interpretation. He referred to the case of Gbadamosi vs. Diaro. (2007) 3 NWLR Part 102 page 282 at 302 where Musdapher J.S.C., (as he then was) opined that when trial Court appraises the facts of a case, it is not the business of the appellate court to substitute its own for the view of the trial Court.

He, further drew the attention of this Court to the case of Kure vs. State (1988) 2 SC Part 11 page 108 at 110 paragraph 25 (1988) 1 NWLR Part 71 page 404, per Obaseki, J.S.C., relied on by the Appellant’s Counsel, and, argued that in the instant case, there was no direct evidence pointing to the insanity of the Appellant at the time of the act and, there was, equally, no Psychiatric report in the case at hand. He then urged that this appeal be dismissed.