Yakubu Kure Vs The State (1988)

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O. OBASEKI, J.S.C.

On the 3rd day of December, 1987, after hearing the submissions of counsel and perusing the record of proceedings and judgment of courts below, I, in concurrence with my learned brothers who heard the appeal, allowed the appeal by the accused person, acquitted him of the offence of culpable homicide contrary to section 221(b) of the Penal Code by reason of the unsoundness of his mind and ordered that he be detained in a safe place at the pleasure of the Military Governor of Kwara State. I thereafter adjourned the Reasons for the Judgment till today. I shall now proceed to give the reasons.

The main issue raised in the appeal was whether on the evidence before the court, the defence of insanity under section 51 of the Penal Code was established and available to the appellant. Section 51 of the Penal Code Cap 89 vo1.3 Laws of Northern Nigeria 1963 reads:

“Nothing is an offence which is done by a person who at the 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.”

It has the same or similar effect as section 28 of the Criminal Code of Western Region or of Eastern Region operative in the Southern States.

The appellant was charged with and tried on a charge of culpable homicide punishable with death under section 221(b) of the Penal Code Cap. 89 Laws of Northern Nigeria applicable in Kwara State by the High Court of Kwara state holden at Lokoja (Adeniyi, J.) convicted and sentenced to death. He appealed against the decision to the Court of Appeal and lost. His conviction and sentence of death passed by the High Court were affirmed. He then appealed to this Court.

Two grounds of appeal were, with the leave of this Court argued.

These were:

“(1) That the judgment of the High Court was unreasonable, unwarranted and cannot be supported having regard to the evidence;

(2) That the Court of Appeal erred in law in holding that insanity was not proved when on a balance of probability the appellant has satisfied the onus of proof on him as regards that defence.”

The facts are not in dispute. They are more clearly stated by P.W.4. Mrs. Mary Azaki. On 6/6/80, she was at Akpayan Village. While she was lying down she heard someone raise an alarm, shouting. She got up and saw the accused standing naked without his clothes and trousers on. That was unusual. As a precautionary measure. she took her two children to the bush and hid them there. She came back to meet the appellant, armed with and holding a big stick. She saw the accused/appellant hit Ana his daughter with the stick on the right hand and injured her. She is now paralysed in the right hand. Another girl, Aniya Nawa, the daughter of P.W.4 who was with Ana was the next victim.

The appellant hit her on the head with the big stick and she fell down and died. P.W. 4 said she had never seen appellant behave in such abnormal way before. P.W.5 Nawa Zaki identified the deceased to the doctor, P.W.1. Later, P.W.3 came to arrest the appellant. He met the appellant tied to the chair on which he was sitting looking blank into space and at them. On seeing his condition, P.W.3 took him to the General Hospital, Lokoja. From there, he was admitted to the psychiatric hospital. He spent 3 months there and a report was sent to the Magistrate before whom he was charged. Following the psychiatric report, the Magistrate discharged the appellant.

This piece of evidence raised a serious question as to the state of mental health of the appellant.

The patients treated in Psychiatric Hospitals are people who are of unsound mind, i.e. people with mental disease. The discharge of the appellant by the Magistrate after receiving the report of the psychiatrist is evidence of enormous weight rebutting the presumption that the appellant was sane at the time he committed the offence.