DAVID UCHE IDEH v. THE STATE
(2019) LCN/4841(SC)
In The Supreme Court of Nigeria
On Thursday, the 21st day of February, 2019
SC.924/2016
RATIO
CONDITION THAT MUST BE SATISFIED BEFORE THE DEFENCE OF INSANITY CAN AVAIL AN ACCUSED SEEKING TO RELY ON SAME IN DEFENCE TO A CHARGE AND THE DUTY INCUMBENT ON THE PROSECUTION WHEN PUT ON NOTICE THAT A DEFENCE OF INSANITY IS TO BE RAISED AT THE TRIAL
In Sanusi v the State (1984) 10 SC 166 at 177, this Court, per Aniagolu JSC said: – “There is a tendency for some Counsel to be casual in presenting their case of insanity on behalf of accused persons. Some tend to treat the matter as if all that was required to establish the defence of insanity was to allude to insanity as the accused’s defence and proceed to show how unreasonable and motiveless the action of the accused had been, leaving it to the Court to infer that anyone guilty of such behavior as the one committed by the accused could not but be insane. Such an approach to the defence of insanity is wrong.” Section 28 of the Criminal Code of Ogun State provides that a person who is by reason of unsoundness of mind, prevented from exercising control of his own conduct and deprived of the power of passing rational judgment on the character of his actions, cannot be held legally responsible for the Criminal consequences of his actions. Protection is given by this section to an insane person, who although aware of the nature of his act, was mentally incapable of knowing whether his act was wrong or contrary to Law. To establish a defence of insanity it must be clearly pleaded and proved that at the time of committing the act, the accused was suffering from a defect of reason from disease of the mind so as not to know the nature and quality of his act or that what he was doing was wrong. The Court is concerned only with the state of mind of the accused at the time of the act. Once the issue of insanity is pleaded, the Court must determine whether or not the accused was conscious at the time of doing the act and that the act complained of was one which he ought not to do or which was contrary to the Law. Although the burden of proof that a person is insane lies on the Accused person who must establish that he is insane on balance of probabilities, once the prosecution has been put on notice that a defence of insanity is to be raised at the trial, it has a positive duty to assist in the investigation of the case for the benefit of both sides, by inquiring into any evidence relating to such a defence and by arranging for the observation of the accused by a doctor or psychiatrist with a view to reporting on his mental condition. It will be unjust for the prosecution to leave it to the accused person especially an accused person from a rural community who has no access to legal representation to produce expert evidence of insanity simply because the burden of proof lies on the defence. See Suleiman v. The State (1981)1 NCR 242. PER PAUL ADAMU GALUMJE, J.S.C.
DUTY OF A JUDGE WITH RESPECT TO CRIMINAL TRIALS
In our system of criminal trial, the Judge as an umpire is not expected to descend into the arena of contest. This illustrates the difference between the accusatorial and the inquisitorial method of trying an accused person. Our system is accusatorial in the sense that the innocence of the accused is presumed until he is proved guilty by the prosecution. The major feature of the system we operate is the passive and inactive role of the Judge which emphasizes the active role of Counsel for the prosecution and for the defence. The duty of a Judge is not to investigate matters that are placed before him, but to attentively listen to parties and speaks mainly to deliver his judgments. See Godwin Josiah v. The State (1985) 1 SC. 406 at 443; David Uso v. C.O.P. (1972)11 SC. 37 at 46 – 47. PER PAUL ADAMU GALUMJE, J.S.C.
EFFECT OF NOT CALLING THE WITNESSES THAT WITNESSED THE MENTAL INSTABILITY OF THE ACCUSED WHO SEEKS TO RELY ON THE DEFENCE OF INSANITY IN A CRIMINAL TRIAL
The Appellant’s failure to call these witnesses that witnessed his mental instability has rendered his evidence unreliable. If the application for psychiatric examination is meant to arrest the trial on the ground that the appellant was not mentally fit to stand trial by reason of insanity, Learned Counsel, as I have alluded to has not sufficiently provided the materials for the Learned trial Judge to act upon. The ipse dixit of a Counsel that his client is not mentally fit to stand trial and that such information was provided by the said client cannot avail the accused person. For evidence tendered by the accused is suspect and is not usually taken seriously for establishing his insanity. See Onyekwe v The State (1988)1 NWLR (Pt.72)565. PER PAUL ADAMU GALUMJE, J.S.C.
WHAT AN ISSUE FOR THE PURPOSE OF AN APPEAL ENTAILS
An issue for the purpose of an appeal is a substantial question of law or fact or both arising from the grounds of appeal which, when resolved, one way or the other, will affect the result of the appeal. See Chief Imonikhe & Anor. V Attorney-General Bendel State & Ors. (1992) NWLR (Pt. 248) 396 at 407. PER WALTER SAMUEL NKANU ONNOGHEN, C.J.N.
EFFECT OF AN APPEAL BEFORE THE SUPREME COURT COMPLAING OF WHAT THE TRIAL COURT DID OR COULD NOT DO AND NOT ABOUT WHAT THE COURT OF APPEAL DID OR FAILED TO DO
Learned counsel, throughout his argument complained of what the trial Court did or could not do and ended without reference to the decision of the Court of Appeal. There is no complaint about what the Court of Appeal did or failed to do. In other words, the appeal is not against the Judgment of the Court of Appeal, but against the Judgment of the trial Court. The Supreme Court of Nigeria, is a creature of the Constitution of the Federal Republic of Nigeria 1999 as amended; See Section 230 (1) therefore It derives its powers from the same source: See Section 233 (1) of the Constitution (supra). The Court of last resort has no jurisdiction to hear appeal from the trial Court. Since the entire argument of the appellant in the sole issue was directed at the Judgment of the trial Court, the respondent has nothing to reply to in the appeal, which leaves the Judgment of the Court of Appeal intact and subsisting.. PER WALTER SAMUEL NKANU ONNOGHEN, C.J.N.
JUSTICES
WALTER SAMUEL NKANU ONNOGHEN – Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS – Justice of The Supreme Court of Nigeria
EJEMBI EKO – Justice of The Supreme Court of Nigeria
PAUL ADAMU GALUMJE – Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE – Justice of The Supreme Court of Nigeria
Between
DAVID UCHE IDEH Appellant(s)
AND
THE STATE Respondent(s)
PAUL ADAMU GALUMJE, J.S.C. (Delivering the Leading Judgment): The Appellant herein, was arraigned before the Ogun State High Court holden at Abeokuta on the 1st of July 2015 on a one count charge of murder contrary to Section 316 and punishable under Section 319 of the Criminal Law of Ogun State.
The particulars of the offence are that on or about the 28th of March, 2014, at Block 11, Flat B, Laderin Estate, Abeokuta, the Appellant murdered Olufunmilayo Timeyin, a retired Chief Magistrate of the Ogun State Judiciary. Appellant pleaded not guilty to the charge. In order to prove its case, the prosecution called nine witnesses and closed its case. The appellant then as an accused testified in his defence and did not call additional witness. Learned Counsel for the respective parties addressed the Court. In a reserved and considered judgment delivered on the 15th July 2015, Akinyemi J. found the appellant guilty as charged and sentenced him to death by hanging by the neck until he be dead.
The Appellant’s appeal to the Court of Appeal, Ibadan Division was on the 30th June, 2016 dismissed. He has now brought this appeal.
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Appellant’s notice of appeal at pages 203-206 of the printed record of this appeal, filed on the 25th July, 2016 contains two grounds of appeal.
Parties filed and exchanged briefs of argument. Mr. Ajibola Dalley, Learned Counsel for the Appellant distilled one issue for determination of this appeal at page 13 of the Appellant’s brief of argument filed on the 6th of January, 2017 as follows:-
“Whether the Learned Justices of the lower Court ought to have dismissed the appeal against the refusal by the Learned trial Judge, to permit the psychological evaluation of the Appellant at the instance of the Appellant’s Counsel bearing in mind that it amounts to a breached (Sic) of established procedures under Sections 223 and 224 of the Criminal Procedure Law of Ogun State 2006 and a violation of the Appellant’s Fundamental Right to Fair Hearing enshrined under Section 36(6)(b) and 36(6)(d) of the Constitution of the Federal Republic of Nigeria 1999, as amended.”
According to the Learned Counsel this lengthy and not so well formulated issue is distilled from the 1st and 2nd grounds of appeal.
Dr. Olumide Ayeni, Learned Attorney General of Ogun
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State, who settled the Respondent’s brief of argument also formulated one issue for determination of this appeal which I reproduce hereunder as follows: –
“Whether the Learned Justices of the Court of Appeal correctly found the trial Court’s decision to refuse Appellant’s Counsel’s application for psychiatric examination of the Appellant as not in violation of the Appellant’s right to fair hearing or any other right in the entire circumstances of the case.”
Before I delve into the consideration of Learned Counsel’s argument in support of the issue they have each formulated, I wish to set out albeit in brief, the facts of this case which are straightforward and simple. The Appellant was employed as a house help by the deceased who was living in her house with her husband Lawrence Oluwole Timeyin and her Son Olumide Timeyin. On the 19th of March, 2014 when the deceased, her husband and her son had gone out, the Appellant who was now alone in the house, used a cutlass to break open the doors to the rooms of the deceased and her son and stole various items which include jewelries, wrist watch, phones, dresses and other sundry items. He packed
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these things and was about to leave the house when the deceased’s son arrived. He escaped in a hurry with the stolen items in attempt to sell some of the items, he was arrested and handed over to the police, where he was detained at Adigbe police station.
The deceased decided not to pursue the prosecution of the Appellant, as she discontinued her complaints to the police. On the 25th March 2014, the Appellant was released from detention and was seriously warned not to step into the deceased’s house again. On the 27th of March 2014 at about 7.30pm the Appellant, despite the warning went to the back of the deceased’s house, collected a ladder from an uncompleted building and scaled the fence into the deceased’s compound and went straight to the room where he was staying when he was working in the house and slept there till the following day, being 28th of March, 2014. He remained in hiding and was watching the movements of the occupants of the house. The deceased, her husband and her son went out. At about 3.30 pm, the deceased returned and went straight to her apartment and locked the door. The Appellant who had sharpened the cutlass which he used to
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cut grass when he was working in the compound cleverly tapped the gate with the cutlass. The deceased thought there was somebody at the gate and she therefore opened the door of her apartment to see who was at the gate.
The Appellant who was then waiting for her at the entrance of her apartment which was close to the gate, attacked her immediately and dealt several machete blows on the head, neck and other part of her body. She was shouting for help until when she could no longer shout, when the Appellant heard noises at the gate and escaped by scaling the back Fence after he dropped the cutlass. Appellant was pursued and arrested when he ran into the bush.
I have read through the Appellant’s brief of argument and it appears to me that the only quarrel of the Learned Counsel for the Appellant against the decision of the lower Court is its refusal to set aside the trial Court’s judgment on ground of the trial Courts refusal to accede to Learned Counsel’s request for psychiatric evaluation of the Appellant.
On the 15th of June 2015, during the course of proceedings at the trial Court at page 39 of the record, Learned Counsel
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for the Appellant made an oral application for psychiatric examination of the Appellant in the following words:-
“When I interviewed the accused person, in the process, it occurred to me, based on the life history he told me, that he might be disturbed in some sense. I had a word with the welfare officer of the person (Sic prison) and requested for psychiatric evaluation of the accused, the psychiatric doctor said he must have some form of request from the Court. He intends to put the accused in the box to testify, but the Law says if he is of unsound mind, he will not (Sic) capable in Law of defending himself. I therefore apply that I will be guided by the Court and I have a letter from the prison, I am ready to proceed with the case, but I just want to ensure that the proper thing is done.”
Mr. Oshunfisan, Learned DPP, Ogun State who appeared for the prosecution opposed the application and cited in aid Sections 222 and 223 of the Criminal Procedure, Laws of Ogun State.
In its ruling delivered on the 16th of June 2015, after having heard further addresses of Counsel on the application, the learned trial Judge refused the application on the ground that
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there was no sufficient material before him at that stage of the proceedings that warranted an order for psychiatric examination. After the testimony of the Appellant, Dailey Esq, of Counsel to the Appellant made another application for psychiatric examination of the appellant in order to determine the state of his health. Learned Counsel stated that he was not raising insanity as a plea.
Learned Counsel for the prosecution again raised objection on the ground that the appellant sounded intelligent when he testified in his defence. In his ruling, the Learned trial Judge held: –
“Today, as soon as he entered the witness box and before he commenced his testimony, fully conscious of my responsibility, I again asked him general questions to test his capacity to testify in his defence. The answers he gave to my questions which are well recorded convinced me that he was of a sufficiently sound mind and mental capacity to give his defence. During his testimony, the accused appeared to me very calm and collected, his evidence was logical and a product of a balance mind, even though he made reference to the fact that from his early years he used
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to have certain attack thrice a year, his evidence as to the events of the fateful day in full case of 28th March, 2014 was graphic, detailed and unequivocal, I don’t think any sane mind could have given a none logical evidence.”
On the reason as reproduced above, the trial Court once more refused the oral application for psychiatric examination of the Appellant.
In arguing the sole issue formulated for determination of this appeal, Learned Counsel for the Appellant submitted that by refusing to permit the psychiatric evaluation of the appellant at the request of the Appellant’s Counsel, the Learned trial Judge breached established procedures under Sections 223 and 224 of the Criminal Procedure Law of Ogun State 2006 and equally denied the Appellant’s guaranteed right to fair hearing as enshrined under Section 36 (6) (b) and 36 (6) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). In aid Learned Counsel cited the authorities in Kazeem Popoola v The State (2013) LPELR 20973 (SC), and Mboho v The State (1966) All NLR 63.
In a further argument, Learned Counsel submitted that the issue concerning psychiatric evaluation of the Appellant was
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to determine whether the Appellant was fit to take his plea or go through the trial. According to the Learned Counsel, the trial Court was bound to take a final decision on the matter after hearing evidence before considering the charge against him. Learned Counsel contended that the failure of the trial Court to do so amount to lack of fair hearing. In aid Learned Counsel cited Regina v. Darkhu (1956) 1 W.L.R. 989; The Queen v. Micheal Ogor (1961)1 SCNLR 121, (1961) All NLR 70.
Still in argument, Learned Counsel for the Appellant submitted that the Appellant was not given adequate time and facilities for preparation of his defence when he was kept in prison, thus denying him the opportunity to establish the defence of insanity. Learned Counsel argued forcefully on the issue of fair hearing as regard any person, standing trial, and concluded that the failure by any Court to adhere to the appellant’s right to fair hearing must with all due regard nullify the proceedings before such Court. In aid Learned Counsel cited Chime v. Onyia (2009) 2 NWLR (Pt.1124)1 at 77, Dingyadi v. INEC (2010) LPELR-952 ISC) at 167-196 paras C-D, and a host of foreign cases.
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For the Respondent, it is argued that Sections 223 and 224 of the Criminal Procedure Law of Ogun State, 2006 may only be invoked where, as a result of some physical or mental condition, an indicted person is deemed by a Court to be of unsound mind and consequently incapable of following the proceedings or making a defence. Learned Counsel cited in aid the decision in Popoola v. The State (Supra) and further submitted that in the instant case the trial Judge did not have reason at any time throughout the entire period of the trial of the Appellant to believe that the Appellant was of unsound mind.
In a further argument, Learned Counsel submitted that the Appellant neither raised the issue of unsoundness of mind at the time of the commission of the offence, nor did he assert any issue of unfitness to make his defence. It is Learned Counsel’s conclusion that the decision in Mboho v State (Supra) is inapplicable in this case. Finally Learned Counsel urged this Court to dismiss the appeal.
The lower Court at pages 192 to 193, after extensive consideration of submissions by Learned Counsel on either side held:-
“The Appellant did not raise any defence of
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insanity or natural mental infirmity or even of partial delusion under the second paragraph of Section 28 of Criminal Code. The trial Judge was entitled to act on the presumption that everyone is presumed sane until the contrary is proved.” “I entirely agree with the lower Court.”
I entirely agree with the lower court.
In his first application for psychiatric evaluation, Learned Counsel for the Appellant at page 59 of the record ended his prayer thus: –
“I therefore apply that I be guided by the Court, and I have a letter from prison, I am ready to proceed with the case, but I just want to ensure that the proper thing is done.”
After the Appellant’s testimony in his defence at the trial Court, the following proceedings are recorded at page 66 of the record of this appeal as follows: –
“Dailey: Applies that the accused be subjected to medical examination, the Court having had the opportunity to witness and analyse the testimony of the accused, has now been provided with more insight as to the basis of the earlier request.
It does not prejudice what has happened this far:
I am interested not really in the judgment, but in what
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happens to the accused thereafter.
The prison ought to have made an assessment on their own.
We have not raised insanity as a plea. An assessment should be made to determine the state of his health, not necessarily, at the time of commission of the offence.”
There is nowhere in the two oral applications made by the Learned Counsel for the Appellant at the trial Court that the issue of insanity or natural mental infirmity or even partial delusion was raised. Learned Counsel was even more explicit in the second application where he stated. “We have not raised insanity as a plea”Section 222 of the Criminal Procedure Law of Ogun State provides that an accused person shall be deemed to be of unsound mind and consequently incapable of making his defence if by reason of some physical or mental condition he cannot follow the proceedings and make a proper defence.
Section 223 and 224 of the same Law enjoin a trial Judge to do the following when the issue of insanity is raised at the trial, viz: –
(a) When he observes that the accused behaves abnormally, or
(b) When the fact of the mental instability of the accused is
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raised in the course of the trial, or
(c) When the Counsel to the accused request for the inquiry.
The three conditions here can only arise when the issue of insanity is raised. For the Court to deem an accused person to be of unsound mind and consequently incapable of making his defence by reason of some physical or natural condition, the conduct or behavior of such an accused person must be taken into account by the trial Judge, whose opinion only will be relevant. In the instant case, at pages 67-68, the Learned trial Court said of the Appellant thus: –
“Today as soon as he entered the witness box and before he commenced his testimony, fully conscious of my responsibility, I again asked him general questions to test his capacity to testify in his defence:
The answers he gave to my questions which are well recorded convinced me that he was of a sufficiently sound mind and mental capacity to give his defence.
During his testimony, the accused appeared to me very calm and collected, his evidence was logical and a product of a balanced mind.”
Since the Learned trial Judge was of the opinion that there was no material upon which the Appellant
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would be deemed to be of unsound mind, Section 222, of Criminal Procedure Law of Ogun State has been sufficiently complied with. Sections 223 and 224 of the same Law are irrelevant because none of the parties raised the issue of insanity. For a Judge to institute an inquiry into psychiatric disposition of an accused, at the instance of his counsel, the Learned Counsel representing the accused must not be casual in presenting their case of insanity on behalf of his client.
In Sanusi v the State (1984) 10 SC 166 at 177, this Court, per Aniagolu JSC said: –
“There is a tendency for some Counsel to be casual in presenting their case of insanity on behalf of accused persons. Some tend to treat the matter as if all that was required to establish the defence of insanity was to allude to insanity as the accused’s defence and proceed to show how unreasonable and motiveless the action of the accused had been, leaving it to the Court to infer that anyone guilty of such behavior as the one committed by the accused could not but be insane. Such an approach to the defence of insanity is wrong.”
Section 28 of the Criminal Code of Ogun State provides that
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a person who is by reason of unsoundness of mind, prevented from exercising control of his own conduct and deprived of the power of passing rational judgment on the character of his actions, cannot be held legally responsible for the Criminal consequences of his actions. Protection is given by this section to an insane person, who although aware of the nature of his act, was mentally incapable of knowing whether his act was wrong or contrary to Law. To establish a defence of insanity it must be clearly pleaded and proved that at the time of committing the act, the accused was suffering from a defect of reason from disease of the mind so as not to know the nature and quality of his act or that what he was doing was wrong. The Court is concerned only with the state of mind of the accused at the time of the act. Once the issue of insanity is pleaded, the Court must determine whether or not the accused was conscious at the time of doing the act and that the act complained of was one which he ought not to do or which was contrary to the Law. Although the burden of proof that a person is insane lies on the Accused person who must
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establish that he is insane on balance of probabilities, once the prosecution has been put on notice that a defence of insanity is to be raised at the trial, it has a positive duty to assist in the investigation of the case for the benefit of both sides, by inquiring into any evidence relating to such a defence and by arranging for the observation of the accused by a doctor or psychiatrist with a view to reporting on his mental condition. It will be unjust for the prosecution to leave it to the accused person especially an accused person from a rural community who has no access to legal representation to produce expert evidence of insanity simply because the burden of proof lies on the defence. See Suleiman v. The State (1981)1 NCR 242.
In the instant case, not only that the Learned Counsel for the Appellant did not raise any issue of insanity before the trial Court, he did not bring to the notice of the prosecution that he was going to raise the issue of insanity.
In our system of criminal trial, the Judge as an umpire is not expected to descend into the arena of contest. This illustrates the difference between the accusatorial and the inquisitorial method of trying an accused person.
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Our system is accusatorial in the sense that the innocence of the accused is presumed until he is proved guilty by the prosecution. The major feature of the system we operate is the passive and inactive role of the Judge which emphasizes the active role of Counsel for the prosecution and for the defence. The duty of a Judge is not to investigate matters that are placed before him, but to attentively listen to parties and speaks mainly to deliver his judgments. See Godwin Josiah v. The State (1985) 1 SC. 406 at 443; David Uso v. C.O.P. (1972)11 SC. 37 at 46 – 47.
What Learned Counsel wanted the Learned trial Judge to do by ordering an investigation when an issue of insanity was not raised before him, was invitation to the Learned trial Judge to descend into the arena of contest. The Learned trial Judge was right when he declined the invitation.
I have stated elsewhere in this judgment that the Court is concerned only with the state of mind of the accused at the time of the act. The offence for which the Appellant was charged, tried and convicted took place on the 28th March, 2004. Learned Counsel for the Appellant purportedly called
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for investigation into the mental status of the Appellant on the 15th of June, 2015, well over eleven years. When the Appellant gave evidence in his defence, he alluded to some fanciful stories of how he left his parents at the age of twelve years because of certain things that used to happen to him. He told the stories of how he used to scatter everything and people would run from him and that his father used to give him concoctions. He also narrated how he went to stay with his mother’s sister and did farming with his father’s brother at Oshogbo, but ended up destroying all the goods that his uncle’s wife used to sell like oil, gam etc.
Although these stories seem to be a product of tutorials, they could have helped the Appellant if his parents, his mother’s sisters and his mother’s brother were called to testify for the defence in order to confirm the story that he indeed was unstable in the past. The Appellant’s failure to call these witnesses that witnessed his mental instability has rendered his evidence unreliable. If the application for psychiatric examination is meant to arrest the trial on the ground that the appellant was not mentally fit to stand trial
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by reason of insanity, Learned Counsel, as I have alluded to has not sufficiently provided the materials for the Learned trial Judge to act upon. The ipse dixit of a Counsel that his client is not mentally fit to stand trial and that such information was provided by the said client cannot avail the accused person. For evidence tendered by the accused is suspect and is not usually taken seriously for establishing his insanity. See Onyekwe v The State (1988)1 NWLR (Pt.72)565.
The only source of information available to the Learned Counsel for the Appellant is the Appellant himself. This clearly cannot be taken seriously.
The Appellant has not denied that he killed the deceased. Despite the fact that the deceased refused to pursue the prosecution of the Appellant for the theft of her properties and those of her son and even went to the extent of pleading with the police to release him from detention, yet the Appellant had the heart to terminate her life in a gruesome manner on the ground that he had some outstanding unpaid salaries with her, calls for no mercy. The lower Court is absolutely right when it affirmed the conviction and sentence passed on the Appellant.
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It is not in the character of this Court to interfere with the concurrent findings of fact by the High Court and the Court of Appeal in absence of special circumstances. This appeal lacks merit and same shall be and it is hereby dismissed.
WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have read in advance the Judgment just delivered by my learned brother, GALUMJE, JSC and I agree with the conclusion that the appeal has no merit.
The sole issue raised by the learned counsel for the appellant in his brief read, thus:
“Whether the learned Justices of the lower Court ought to have dismissed the appeal against the retrial, by the learned trial Judge to permit the psychological evaluation of the appellant, at the instance of the appellant’s counsel, bearing in mind that it amounts to a breached (sic) of established procedure under Sections 223 of 224 of the Criminal Procedure Laws of Ogun State 2006 and a violation of the appellant’s fundamental Right to Fair Hearing enshrined under S. 36 (6)(b) and 36 (6) (d) of the Constitution of the Federal Republic of Nigeria 1999 as amended (Distilled for grounds 1 and 2).”
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An issue for the purpose of an appeal is a substantial question of law or fact or both arising from the grounds of appeal which, when resolved, one way or the other, will affect the result of the appeal. See Chief Imonikhe & Anor. V Attorney-General Bendel State & Ors. (1992) NWLR (Pt. 248) 396 at 407.
Not only is the sole issue in this appeal not precise, it assumes without proof, that the refusal by the trial Court to order a psychological evaluation of the appellant breached his right to fair hearing under the Constitution of the Federal Republic of Nigeria, 1999, as amended. In opening his argument on the issue, learned counsel said inter alia:
It is the case of the appellant that by refusing to permit the psychological evaluation of the appellant The learned trial Court breached established procedures
Learned counsel, throughout his argument complained of what the trial Court did or could not do and ended without reference to the decision of the Court of Appeal. There is no complaint about what the Court of Appeal did or failed to do. In other words, the appeal is not against the Judgment of the Court of Appeal, but against the Judgment of the trial Court.
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The Supreme Court of Nigeria, is a creature of the Constitution of the Federal Republic of Nigeria 1999 as amended; See Section 230 (1) therefore It derives its powers from the same source: See Section 233 (1) of the Constitution (supra). The Court of last resort has no jurisdiction to hear appeal from the trial Court.
Since the entire argument of the appellant in the sole issue was directed at the Judgment of the trial Court, the respondent has nothing to reply to in the appeal, which leaves the Judgment of the Court of Appeal intact and subsisting..
Appeal dismissed.
KUMAI BAYANG AKA’AHS, J.S.C.: The challenge posed by the appellant in this appeal is centred on the learned trial Judge’s refusal to accede to the request made by the appellant’s counsel to permit the psychological evaluation of the appellant which he says has breached established procedures under Sections 223 and 224 of the Criminal Procedure Laws of Ogun State 2006 and thus denied the appellant his guaranteed right to fair hearing enshrined under Section 36 (6) (b) and (d) of the Constitution of the
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Federal Republic of Nigeria 1999 as amended.
Section 36 (6) (b) and (d) of the 1999 Constitution provides:-
“36(6) Every person who is charged with a criminal offence shall be entitled-
(b) to be given adequate time and facilities for the preparation of his defence;
(d) to examine in person or by his legal practitioner the witnesses called by the prosecution before any Court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court on the same conditions as those applying to the witnesses called by the prosecution”..
Learned counsel for the appellant argued that the appellant was denied the lawful right to facilities for the preparation of his defence on account of the following:-
(a) The appellant was at the relevant time resident at the Oba prisons in Abeokuta, Ogun State.
(b) To establish and prove the defence of insanity he bears the evidential burden of proving at least evidence of some form of mental or psychological imbalance.
(c) Therefore, the appellant was required to undergo psychological evaluation by a psychiatrist or a
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medical practitioner of similar qualification.
(d) The appellant, at the relevant time, was unable to engage the services of a psychiatrist independently and was therefore forced to rely exclusively, on the authorities of the Nigerian Prisons Service, where he was resident awaiting trial, at the material time.
(e) By letter dated 12 June, 2015 the Prisons in response to the appellant counsel’s requests demanded a formal order from the Honourable Court before permitting such evaluation. This is evident from the Honourable Trial Judge ruling delivered on the 16 June, 2015 wherein the learned Trial Judge said at paragraph 4 “I have read the letter dated 12 June, 2015 from the Nigerian Prison Service to the learned Defence Counsel. It contains no indication that the accused has mental problem. It merely says that based on the request of Mr. Dailey, the prison has contacted a psychiatrist hospital which has insisted on a Court order before examining the accused.” (Please see page 44 of the Records).
(f) The learned trial Judge refused the request for psychiatrist evaluation on the 16 June, 2015, 17 June 2015 and yet again in the final judgement dated 15 July, 2015.
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He submitted that the refusal by the learned trial Judge to provide an order of Court permitting the psychological evaluation of the appellant robbed him of his right to facilities for preparation of his defence and the inalienable right to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or tribunal on the same conditions as those applying to the witnesses called by the prosecution, as enshrined respectively under Section 36 (6) (b) and (d) of the Constitution.
The learned Attorney-General of Ogun State, Dr. Olumide Ayeni Esq. submitted that Sections 223 and 224 Criminal Procedure Law of Ogun State, 2006 may only be invoked where as a result of some physical or mental condition, an indicted person is deemed by a Court to be of unsound mind and consequently incapable of following proceedings or making a defence. The learned Attorney-general argued that it is only where the trial Judge has a cause to believe that an accused in a criminal trial is of unsound mind and consequently incapable of making a defence that it is
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required to follow the procedure of investigation laid down in Sections 223 and 224 Criminal Procedure Law of Ogun State, 2006. He further argued that where there is no evidence leading the trial Judge to believe an accused to be of unsound mind and consequently incapable of entering a plea or of making his defence, there is no duty on the trial Judge to enter into an investigation as to the soundness of mind of an accused or otherwise. He pointed out that the appellant neither raised the issue of unsoundness of mind nor did he assert any issue of unfitness to make his defence and the trial Court after considering R v. Omoni (1949) 12 WACA 511 held that the decision is to the effect that in a situation of a claim of unsound mind, some background evidence is desirable.
Sections 223 and 224 of the Criminal Procedure Code Law of Ogun State 2006 provide
“223(1) When a Judge holding a trial or a magistrate holding a trial or an inquiry has reason to suspect that the accused is of unsound mind and consequently, incapable of making his defence the Judge, or Magistrate as the case may be, shall in the first instance investigate the fact of such unsoundness of mind.
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(2) Such investigation may be held in the absence of the accused person if the Court is satisfied that owing to the state of the accused’s mind it would be in the interests of the safety of the accused or of other persons or in the interests of public decency that he should be absent, and the Court may receive as evidence a certificate in writing signed by a medical officer to the effect that such accused person is in his opinion of unsound mind and incapable of making his defence or is a proper person to be detained for observation in an asylum, or the Court may, if it sees fit, take oral evidence from a medical officer on the state of mind of such accused person.
(3) If the Judge or magistrate, as the case may be is not satisfied that such person is capable of making his defence, the Court shall postpone the trial or inquiry and shall remand such person for a period not exceeding one month to be detained for observation in an asylum.
(4) The medical officer shall keep such person under observation during the period of his remand and before the expiry of such period shall certify under his hand to the Court his opinion as to the state of mind of
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such person, and if he is unable within the period to form any definite conclusion, shall so certify to the Court and shall ask for a further remand. Such further remand may extend for a period of two months.
(5) Any Court before which a person is suspected to be of unsound mind is accused of any offence may, on the application of a law officer, made at any stage of the proceedings prior to the trial, order that such person be sent to an asylum for observation; and the medical officer may, notwithstanding any other provision of law, detain any such accused person for such period, not exceeding one month, as may be necessary to enable him form an opinion as to the state of mind of such person, and shall forward a copy of his opinion, in writing to the Court.
224 (1) If such medical officer shall certify that the accused person is of sound mind and capable of making his defence, the Court shall, unless satisfied by the defence that the accused is of unsound mind, proceed with the enquiry, or trial, as the case may be.
(2) If such medical officer shall certify that such person is of unsound mind and incapable of making his
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defence, the judge or magistrate shall, if satisfied of the fact, find accordingly and thereupon the inquiry or trial, as the case may be, shall be postponed; and if the judge or magistrate is satisfied that the accused is of sound mind and capable of making his defence the Court shall proceed with the trial or inquiry as the case may be.
(3) The trial of the issue as to whether or not the accused person is of unsound mind and incapable of making his defence, be deemed to be part of his trial before the Court.
(4) The certificate of such medical officer shall be receivable as evidence under this section.
(5) If the accused person is certified to be of unsound mind and incapable of making his defence it shall not be necessary for him to be present in court during proceedings under this section”.
The application of Sections 223 and 224 of the Criminal Procedure Law of Ogun State enjoin the Court trying the accused to conduct an enquiry into the soundness of mind of the accused when:-
(a) the Court observes that the accused is behaving abnormally; or
(b) the fact of the mental instability of the accused is raised in the course of the trial.
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(c) the counsel for the accused requests for the inquiry. See: Popoola v. State (2013) 17 NWLR (Pt. 1382) 96; Mboho v. The State (1966) All NLR 63. This Court reiterated in Popoola v. State supra at page 113 that
“. The ad hoc procedure which this inquiry is cannot be held in vacua or on its own without the conditions precedent to its process being present. Those conditions are in the main that the trial Judge himself has observed certain abnormal behaviour of the accused which convinces him that there may be a danger of the trial not being conducted with a stable accused fit to stand his trial.”
It is important for the trial Judge to make the observation of any abnormal behaviour being displayed by the accused.
The law presumes that every person is of sound mind until the contrary is proved. So the prosecution does not set out to prove the sanity of the accused; it is the duty of the defence to put up the plea of the unsoundness of mind of the accused for the offence charged in order to put the trial Judge on enquiry on whether the accused is incapable of making his defence. And even where the defence of insanity
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or unsoundness of mind is raised, it is the duty of the trial Judge to decide whether the defence is available to the accused or not.
I had the preview of the judgement of my learned brother, Galumje JSC which was delivered a short while ago in which the appeal was dismissed as lacking in merit. After an exhaustive review of the facts of this case, it was inescapable to find that the appellant’s counsel did not provide sufficient materials upon which the trial Judge could order for a psychiatric examination of the appellant to determine his mental state at the time of the commission of the offence. Consequently, the trial Court refused to accede to the request for a psychological evaluation of the accused and the lower Court found no reason to disturb the judgement of the trial Court. This Court cannot disturb the concurrent findings of the two lower Courts. The appeal lacks merit and it is accordingly dismissed.
EJEMBI EKO, J.S.C.: I will only add a few comments to supplement the lead judgment just delivered by my learned brother, PAUL ADAMU GALUMJE, JSC, which I concur with and endorse.
The prosecution alleged that the Appellant murdered the
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deceased, a lady magistrate and former employer of the Appellant. The PW.1 saw the Appellant do stabbings with matchete that caused the death of the deceased. The actus reus of the alleged murder is not in doubt.
The prosecution also lead evidence, in order to establish the mens rea for the murder, suggesting that the Appellant planned the violent attack on his victim with a lethal weapon, a sharpened matchete or cutlass, with intent of robbing the deceased. The deceased noticed the constant pilferings of the Appellant. She decided to keep her money on her person. The Appellant overheard the deceased tell somebody this strategy. He decided and planned to attack the deceased physically in order to remove the money from her. There was premeditation of the violent attack with intent to rob the deceased of her money.
To rebut the criminal responsibility of the Appellant for the murder of the deceased, the Appellant’s Counsel applied under Sections 222 and 223 of the Criminal Procedure Law of Ogun State for an order of the trial Court directing that the Appellant be subjected to psychiatric observation and for the psychiatrist’s report.
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This obviously is for the purpose of enhancing the Appellant’s plea of insanity. The application was refused.
Insanity is a matter of fact, provable by whoever alleges same in order to reduce his criminal responsibility and rebut the presumption of sanity the law ascribes to all, including an accused person. The burden of proving whatever is asserted lies on the party alleging same who desires the Court to give him judgment on the fact he asserts: Sections 131 & 132 of the Evidence Act, 2011.
Section 223 of the CPL of Ogun State read together with Section 36 (1) & (6) (b) of the Constitution, 1999, as amended, generally do not impose on the trial Court the duty to actively involve itself in the investigation and unearthing of facts either in aid of the prosecution against the person or of the defence against the prosecution. Section 36 (1) of the Constitution enjoins the Court to maintain its independence and impartiality” in the determination of the civil rights or obligations of any person, including any question or determination by or against any government or authority.
There is no evidence that the trial Court issued any order
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denying the Appellant’s Counsel the right to invite a psychiatrist to examine his client and issue his report upon his observations and conclusion as to the mental condition of the accused person. What I am saying is – an accused person bears the burden of raising and proving his defence to any criminal allegation. Unless he establishes obtrusion he cannot transfer that burden or blame for non discharge of the burden to either the Court of trial or the prosecution.
The point very much harped upon by the Appellant’s Counsel is that, by virtue of Section 223 of the CPL, the trial Court owed the Appellant, the accused person, a duty to order a psychiatrist to observe the Appellant and report on the mental capacity of the Appellant to stand trial upon the ipse dixit of the defence Counsel. For Section 223 CPL to apply the judge holding the trial, on his own observation, should first have “reason to suspect that the accused is of unsound mind and consequently incapable of making his defence”. It is on this “reason to suspect that the accused of unsound mind” that agitates the need to “investigate the fact of such unsoundness of mind”. This, to me, is a
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question of discretion which the trial Judge holding the trial cannot, mandatorily, be compelled to exercise in the guise of providing adequate facilities to the accused for the preparation of his defence under Section 36 (6) (b) of the Constitution, 1999, as amended. In the case of MBOHO v. THE STATE (1966) ALL NLR 63 on 14th April, 1995 when the case came up for trial the learned trial judge, apparently upon reading the extra-judicial statement of the accused contained in the proof of evidence, formed the impression that it was necessary to investigate the fitness of the accused to stand his trial. The trial Judge did not take the plea of the accused after the charge was read and explained to the accused. He ordered, thereafter:
In view of the statement made by the accused to the police the accused is placed under medical observation for one month from today in order to ascertain his fitness to stand trial. The doctor is also ordered to appear on the next adjourned date to give evidence of his findings-The doctor subsequently gave evidence to the effect that there was “no disturbance of his sensorium” and that “the
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accused is not suffering from any psychiatric disability and cannot claim diminished responsibility for any act he may have committed”. The trial Judge made no specific finding on this report. He merely continued in the trial. The trial, including the conviction, of the accused in the MBOHO case was quashed and fresh trial ordered because of the failure of the trial Judge to make specific finding on the question: whether the accused was fit to stand trial, before proceeding to the trial notwithstanding the report of the medical doctor.
In the MBOHO case insanity pleaded formed part of the proofs of evidence before the trial Court. There must exist some evidential material on which the mini trial of the question whether the accused was fit to stand trial can proceed. It also appears from the dictum in the MBOHO case that Section 223 (1) of the CPL “is clear and wide enough to allow for such investigation at any stage (of the trial) whether before an accused pleads to the charge or after, and event after the Court has begun to receive evidence”.
The issue in this appeal is really whether the Appellant satisfied the trial Judge that there was the need for
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investigation of the Appellant’s mental capacity to stand trial. No doubt the trial Judge has some discretion in the matter, and it is judicial. The failure of the trial Court in the MBOHO case to exercise the discretion judicially” by ignoring the existing evidence was the basis for quashing the conviction. In the instant case, the trial Judge denied the application upon considering the facts/evidence in the application. He could not be therefore accused of exercising his discretion judicially and judiciously. There lies the distinction between this case and the MBOHO case on their respective peculiar facts. The MBOHO case does not apply in this case.
The appeal lacking in substance is hereby dismissed. The decision of the Court of Appeal in the appeal No. CA/1B/245C/2015 delivered on 30th June, 2016 is hereby affirmed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Paul Adamu Galumje, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal lacks merit, and it is accordingly dismissed by me.
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Appearances:
Mr. F. Dailey with him, O. A. OludeFor Appellant(s)
Dr. Olumide Ayeni (A.G. Ogun State) with him, Adekunle Manuwa, Ishaq Apalando, Abdul Basit AbdulMalik and Miss Mary Warribo For Respondent(s)
Appearances
Mr. F. Dailey with him, O. A. Olude For Appellant
AND
Dr. Olumide Ayeni (A.G. Ogun State) with him, Adekunle Manuwa, Ishaq Apalando, Abdul Basit AbdulMalik and Miss Mary Warribo For Respondent
