FRANCIS ERO V. THE STA In The Court of Appeal of Nigeria
(2013)LCN/6756(CA)
On Friday, the 7th day of June, 2013
CA/B/269C/2006
RATIO
WHETHER MENS REA CAN BE ESTABLISHED IN A CASE OF INSANITY
The mind of any person suffering from insanity has no room for meas rea because his action or behavior which is induced by insanity or mental delusion is carried out on a blank mind, without any thought whatsoever, otherwise any inference of motive, knocks off the bottom from such defence of insanity. From the ipse-dixit of the appellant in Exhibit ‘A’ it is evident that he had his reason for matcheting the woman he saw in the bush who according to him, wanted to disturb his movement. A guilty mind precedes a guilty conduct and action!. Per TOM SHAIBU YAKUBU, J.C.A.
Before Their Lordships
SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria
Between
FRANCIS EROAppellant(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The Appellant was convicted of the offence of murder punishable under Section 319(1) of the Criminal Code Cap. 48 Laws of Bendel State as applicable to Delta State, on 5th August, 2003 at the High Court of Justice, Agbor. He was consequently sentenced to death by hanging by the learned trial judge – T.O. Diai, J.
The prosecution’s case against the appellant was that, he being armed with a matchet, killed one Angela Nonum at Ekuma-Abavo within the Agbor Judicial Division of the Delta State High Court of Justice, on 24th February, 1997.
The prosecution called six (6) witnesses and tendered into evidence the extra judicial statement of the appellant Exhibit A. The appellant only, testified for himself. Learned counsel to the defence and the prosecution, at the end of witnesses’ evidence viva voce, each addressed the court. The learned trial judge in his judgment found the appellant guilty of the offence of murder, as charged and convicted him accordingly. He was ordered to be hanged until, he be dead.
This appeal is against the aforementioned judgment of 5th August, 2003. The appeal was anchored on two original grounds of appeal filed with the notice of appeal on 10th September, 2003. The appellant, with leave of this court sought and obtained on 7th April, 2008, filed five additional grounds of appeal. The seven grounds of appeal, shorn of their particulars are that:
“(1) The decision of the trial court is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.
(2) The trial court erred in law in convicting the appellant when his defence of insanity was not considered by the court.
(3) The learned trial judge erred in law in holding that Exhibit A is a confessional statement and relying on same to convict the appellant.
(4) The learned trial judge erred in law when after finding that “the court would concede the obvious which is that there is no direct testimony or eyewitness account of the actual killing” went ahead to convict the appellant on circumstantial evidence that is neither direct nor positive nor pointing irresistibly to the conclusion that the appellant killed the deceased.
(5) The learned trial judge misdirected herself when she held that the statement of the appellant, Exhibit A, “placed the accused within the vicinity where the corpse of the deceased was found.
(6) The learned trial judge erred in law in holding that the appellant did not prove that at the material time he was suffering from mental disease or infirmity capable of affecting his will inspite of the abundant evidence before the court.
(7) The learned trial judge erred in convicting the appellant when the prosecutor did not call a material witness to tender the appellant’s 2nd statement to the police.”
The appellant’s brief of argument settled by Ojo Abijogun, Esq., of counsel and dated 18th April, 2008 was filed on 21st April, 2008. In the said brief of argument, the appellant indicated that ground 7 of the grounds of appeal, would be abandoned at the hearing of the appeal. Hence, three issues were distilled from the remaining grounds 1 – 6, for determination as follows:-
“1. Whether Exhibit A is a confessional statement and capable of sustaining the conviction of the appellant for the offence of murder. (Grounds 1, 3 & 5).
2. Whether the circumstantial evidence relied upon in convicting the appellant is strong, sufficient and compellable enough to point irresistibly to the appellant as the person who committed the murder for which he was charged. (Ground 4).
3. Whether the evidence of insanity before the court was not sufficient to avail the appellant having regard to all the circumstances of this case. (Grounds 2 & 6)”.
The Respondent’s brief of argument settled by Chief Victor Otomiewo, Hon. Attorney General of Delta State was dated 6th April, 2010 and filed on 9th April, 2010. In it, two issues were indentified and formulated for determination, to wit:
“1. Whether the learned trial Judge was right in law when she held that the prosecution proved its case against the Appellant beyond reasonable doubt?
2. Whether the trial Judge findings and conclusion that the defence of insanity raised by the Appellant at a trial did not avail him was justified by the facts of the case and evidence on records.”
Having perused the record of appeal vis-a-vis the grounds of appeal, l am satisfied that the three issues identified and formulated for determination by the appellant are more encompassing in the determination of this appeal. I adopt them accordingly. I will consider issues 1 and 2 together and thereafter issue 3 alone.
Arguing issue 1, the learned counsel to the appellant, submitted that where an extra judicial statement made by an accused person is proved to be confessional, even if later, retracted by him, he could be convicted on it. He cited Madjemu V. The State (2001) FWLR (pt. 52) 2210 at 2221. On the other hand, learned counsel submitted that if the court finds that an extra-judicial statement made by an accused person is not confessional, the same cannot be founded upon to convict an accused person. He relied on Archibong V. The State (2006) All FWLR (pt. 323) 1747 at 1773.
It is the contention of learned counsel to the appellant that Exhibit A was not a confessional statement because the appellant did not admit in it that he killed Angela Nonum, hence the finding by the learned trial judge that the said Exhibit A was a confessional statement, led to a miscarriage of justice. He referred to Section 27(1) of the Evidence Act 1990; Kasa V. The State (1994) 5 NWLR (pt. 344) 269 at 284 – 285 (SC); Ihuebeka V. The State (2000) FWLR (pt. II) 1827 at 1854 (SC). He insisted that there was no admission of guilt in Exhibit A, by the appellant, nor could it be inferred that the appellant admitted killing Angela Nonum, in the said Exhibit A.
Learned counsel furthering his submission, argued that from Exhibit A, it is clear that a woman was attacked on 23rd February, 1997 but that there was no evidence that it was the same woman who died on 24th February, 1997 and that there was no evidence the said woman was Angela Nonum.
Furthermore, the learned counsel to the appellant submitted that the scene of the attack as can be deduced from Exhibit A was along a bush path between Ogba village and Abavo whereas the charge and the evidence led at the trial was that the scene of the murder was at Ekuma Abavo. He therefore contended that these missing links in the evidence of the witnesses for the prosecution indicate that the alleged confessional statement was not positive enough to amount to an admission of guilt of the alleged murder by the appellant. He placed reliance on Ele V. The State (2006) All FWLR (pt. 329) 849.
Learned counsel contended that the learned trial judge was in error to have relied on Exhibit A in order to link the appellant to the murder in question on the ground that the said Exhibit A was a confessional statement, hence the wrong use of Exhibit A led to a miscarriage of justice.
Arguing issue 2, appellant’s counsel submitted that a conviction can be sustained upon circumstantial evidence if “the evidence which unequivocally points to one direction only – that the accused person was the one who killed the deceased.” Archibong V. The State (2006) All FWLR (pt. 323) 1747 at 1764. Furthermore, that the circumstantial evidence must be “cogent, complete, unequivocal, compelling and must lead to the irresistible conclusion that the accused and no one else is the murderer.”
It is the contention of the appellant’s counsel that the available circumstantial evidence must rule out the possibility of some other person or persons committing the offence. He relied on Ubani V. The State (2004) FWLR (pt. 191) 1533 at 1546 (SC). And that in the circumstances of this case, the circumstantial evidence relied upon by the learned trial judge “that the accused person was in Ogba farm on 24/2/97 the day the deceased was killed”, was not borne out of the evidence on record. He referred to the evidence of PW6 who said he was attacked by appellant on the latter’s farm at Ogba, but not that it was on 24/2/97.
Appellant’s counsel, referring to the second piece of circumstantial evidence relied upon by the learned trial judge, submitted that Ogba farm of the appellant was not the scene of the murder and that the pieces of evidence by the PW1, PW2 and PW3 show that the scene of the murder was at Ekuma Abavo which is in Agbor judicial division of Delta State, and that Ogba farm is not the same as Ekuma Abavo.
Appellant’s counsel also contended that even if the appellant was in Ogba farm which was not the scene of the murder in question, there was no evidence that it was only the appellant who was on that farm with the opportunity and no one else to commit the said murder.
It is also the contention of appellant’s counsel that the finding by the learned trial judge, to wit: “that to get to Ogba farm land from Owa-Oyibu he passed through Abavo and particularly, the farm on which the deceased was killed”, was prejudicial to the appellant, because the latter part of the finding, to wit; “particularly, the farm on which the deceased was killed”, was never in evidence at the trial. He referred to the evidence of PW6 and Ele V. The State (2006) All FWLR (pt. 329) 849 at 873, on the need for trial judges to apply the law to facts established in a case and not for them to manufacture facts on the pretence to do justice. And that there was no evidence from any witness that the appellant passed through the farm on which the deceased was killed.
With respect to the findings of the learned trial judge “That the deceased died from injuries inflicted with a matchet and that on the same day, the accused attacked the PW6 at Ogba farm with a matchet, inflicting injuries on his head and neck,” appellant’s counsel contended that there is no evidence that the attacks on the deceased Angela Nonum and the PW6 were on the same day, hence that finding by the learned trial judge was speculative. Therefore, it remains the submission of appellant’s counsel that there was no evidence that it was the appellant who murdered the deceased Angela Nonum.
Learned counsel to the respondent, arguing his issue 1 which is in answer to appellant’s issues 1 and 2, submitted that the prosecution’s case was proved beyond reasonable doubt and not necessarily beyond a shadow of doubt and that in so far as the prosecution proved the essential ingredients of the offence against the appellant, his guilt had been proved beyond reasonable doubt. He relied on Isibor V. The State (2012) 41 NWLR (pt. 758) 41; Edamine V. The State (1996) 3 NWLR (pt. 38) 530 at 539.
Respondent’s counsel referred to the findings of the learned trial judge at page 83 lines 18 – 32 thereof and submitted that they are unassailable. He cited The State V. Ogbubunjo (2001) 2 NWLR (pt. 698) 576 where his Lordship, Onu, JSC stated that, “the essential ingredients that the prosecution must establish in order to prove its case beyond reasonable doubt to justify a conviction for murder are:
1. That the deceased died.
2. That the death of the deceased has resulted from the act of the Accused.
3. That the act of the Accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.”
Respondent’s counsel submitted that the learned trial judge rightly relied on Exhibit A with the corroborative facts from PW2, PW4 and PW6 upon which he convicted the appellant on his confessional statement in the said Exhibit A. He referred to Alarape V. The State (2001) 5 NWLR (pt. 705) 79; Iimoh Yesufu V. The State (1976) 6 SC 167; Edamine V. The State (1996) 3 NWLR (pt. 438) 530 at 536.
Respondent’s counsel further submitted that the test for determining the veracity of a confessional statement is to seek for any other evidence, however slight, of circumstances which made it possible that the confession is true. He enumerated the tests to consist of the following:
1. Whether there is anything outside the confession to show that it is true.
2. Whether the statement is corroborated no matter how slight.
3. Whether the fact contained in the statement so far as can be tested is true.
4. Whether the accused had the opportunity of committing the offence.
5. Whether the confession was consistent with other facts which has been ascertained and proved in the matter.
Respondent’s counsel insisted that the learned trial judge rightly applied the tests outlined above in her findings and held that the evidence by the PW4 and PW5 corroborated Exhibit A upon which the appellant was convicted for the murder of Angela Nonum.
Resolution of Issues 1 and 2.
The prosecution at the trial of the appellant had wanted to tender into evidence a cautioned statement which was obtained from the appellant by the PW5 – the Investigation Police Officer. The defence objected to it on the ground that the appellant said the said statement was obtained from him under duress. Then on the application of the prosecution, the court below commenced a trial-within-trial proceeding in order to determine the voluntariness of the said statement. The prosecution led evidence on it. The appellant also testified on it. However, in the course of the cross-examination of the appellant by the prosecuting counsel, the former said:
“I did not make the statement. I did not remember signing it.”
In view of the development, learned counsel to the appellant at the court below informed it that:
“My earlier brief was that it was signed under torture. I was surprised when he denied signing it or that if he signed, he could not remember. There is therefore nothing to contest.”
The learned trial judge thereafter, correctly stated the law that:
“A trial within trial is to test the voluntariness of a confessional statement alleged to have been made by an accused person. In such a case an accused alleges either intimidation, torture, threat etc. where however, an accused denies making the statement at all or that he cannot remember whether or not he made it the court ought to admit the statement in evidence and consider the weight to be attached to it at the end of trial, where all the facts are before the court. A trial within trial is not necessary in the circumstances of this case in view of the evidence of the accused. Having said this, the statement of the accused dated the 3rd day of March, 1997 is admitted and marked….Exhibit ‘A’.”
Just see: Akpan V. The State (2001) 15 NWLR (pt. 737) 745; Chukwuka Ogudo V. The State (2011) 12 SCNJ 1; Osuagwu V. The State (2013) 1 SCNJ 33.
I consider it expedient to reproduce the contents of the extra-judicial statement made by the appellant, Exhibit “A” in extenso, but without the words of caution. It says:
“My grandparents move from Owa long time ago and settled down on Ogba village in Orhihiowon local Government Area of Eds State.
I started my primary education in the year 1973 at Osasare primary School Ogba and finished in the same school in the year 1984. After my primary school education, I came to Owa-Oyibu to attend Owa-Oyibu secondary school Owa-Oyibu in the year 1984 – 1986 because I did not complete my secondary school education. Since I stop my education, I went back to Ogba village and started farming. Sometime in the month of October, 1996 I was driven out from Ogba Village because they alleged me of stealing a fowl. My parents later took me to Owa-Oyibu to stay. Towards the end of October, 1995, my mother Madam Dora Ero took me to the Obi of Owa-Oyibu palace as a messenger to him. Because of the bad treatment I am receiving from the people in the palace, I decided to run out from the palace back to Ogba village on the 23rd day of February, 1997. I ran out of the palace on that day being Sunday because I was instructed to go and work in the farm of Obi of Owa. Every Sunday supposed to be my resting day in the palace. But instead they will ask me to go to the farm and work. As I was going to the farm with the cutlass given to me to work within the farm, I change my mind and face Ogba village through Abavo bush. As I was moving towards Ogba village through Abavo bush path, I saw a woman in the bush and she wanted to disturb my movement. Then I used the cutlass with me to matchet her and I continue my journey. I did not go back to check the woman where she fell down. I finally arrived in my farm in the night of the following day I left Owa-Oyibu. The third day of my leaving Owa-oyibu, I was resting in my farm at Ogba village when one of my brothers called Roland Ero came to disturb me. On seeing him I took to my heels and later hide myself for him not to tie me with rope. Having ran a little, I hide myself for Roland to pass. Where I was hiding I saw Roland passing then I used the cutlass with me to matchet him from the back of his head. As Roland wanted to grip me, I matchet him on his head again. When I saw that blood have started to gush out form his head I took to my heels so as to hide somewhere. I did not go back to check his condition where I left him. The matchet I was going to the farm with is what I use to set fire with before I will roast yam to eat. I stay in the bush six days before I return to Owa-Oyibu through Abavo bush path. On getting back to Owa-Oyibu I did not go back to the palace again instead I went straight to my mothers house.
Formerly I am an Indian hemp smoker but for the past two weeks now I have stopped smoking. When I was smoking, I discovered that the Indian hemp disturbed my brain. I promised not to smoke Indian hemp again. As I was returning from Ogba to Owa-Oyibu, somebody whom I don’t know collected the cutlass from me.”
It is the contention of appellant’s counsel that Exhibit A is not confessional. There are a basket full of authorities of this court and of the apex court on what constitutes a confession. The apex court in Kasa V. The State (1994) 5 NWLR (pt. 344) 269 at 284 – 285, per my Lord, Uwais, JSC (as he then was) succinctly stated the law that:
“A confession is by virtue of Section 27(1) of the Evidence Act, Laws of the Federation of Nigeria 1990, an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.
Therefore it follows that once an accused person makes a statement under caution saying or admitting that he committed the offence with which he is charged or creating the impression that he committed the offence charged, the statement becomes confessional.”
Now, Exhibit A is clearly to the effect that the appellant upon leaving Owa-Oyibu enroute Ogba village on 23rd February, 1997, was armed with a cutlass. Furthermore that on his way to Ogba village, through Abavo bush path, he saw a woman in the bush who wanted to disturb his movement, so he used his cutlass to matchet her and continued with his journey and finally arrived his farm in the night of the following day that he left Owa-Oyibu. The appellant did not admit killing the woman, however he admitted matcheting the woman he saw at Abavo bush. He did not go back to check the said woman where she fell down, so he could not have known that the woman died there at the spot where she fell down as a result of the appellant’s attack on her. In the circumstances, it is clear to me that Exhibit A is suggestive of the inference that the appellant killed the said woman by matcheting her, hence Exhibit A becomes confessional.
In Ihuebeka V. The State (2000) FWLR (pt. 11) 1827 at 1854 His Lordship, Kalgo, JSC had this to say with respect to a confessional statement, inter alia:
“What then is a confessional statement in law: it is simply a statement of an accused person charged with a criminal offence, which is a confession. What amounts to a proper confession in this con? In Osborne’s Concise Law Dictionary, sixth Edition page 87, confession is defined thus:
“An admission of guilt made to another by a person charged with a crime.”
The contention by learned counsel to the appellant that since the appellant in Exhibit A did not mention that the woman he attacked was the deceased Angela Nonum and that the said woman he attacked and fell down did die, the appellant did not admit killing Angela Nonum nor can it be inferred that the woman the appellant matchetted in the Abavo bush on 23rd February, 1997 was the same woman who died on 24th February, 1997, to my mind, is tantamount to saying that six is not half of a dozen. It is ridiculous and an unmeritorious contention.
I am also unable to appreciate the contention by appellant’s counsel that since the scene of the crime in question as stated in Exhibit A is along a bush path between Ogba village and Abavo whilst the information or charge talks of Ekuma, Abavo; the two scenes are different, so it cannot be inferred that the two scenes are the same. I am satisfied with the finding by the learned trial judge that Exhibit A placed the appellant at the vicinity of where the corpse of the deceased was found. The appellant in Exhibit A never said that he attacked the woman along the Abavo bush path, but in the bush where he saw the woman. He may not know the exact name of the spot in the bush where he assailed the woman, but the PW1 and PW2 who know the exact spot called it Ekuma, Abavo. They were not cross-examined on their pieces of evidence by the learned counsel to the appellant, at the court below. Therefore, I do not see any perverseness in the finding of the learned trial judge on this point.
Having found and accepted that Exhibit A was a confessional statement, was the learned trial judge right to have convicted the appellant on it? The law is well settled that a conviction can be grounded on a free and voluntary confessional statement. See Usman Kasa V. The State (2008) – 2 SCNJ 375 at 423; Arogundade V. The State (2009) 2 SCNJ 44 at 49 – 50. This is because of the fact that a confessional statement is the strongest evidence against the maker thereof and he can be convicted solely on it, but preferably with some bit of corroboration outside the said confession. Golden Dibie & Ors. V. The State (2007) 3 SCNJ 160 at 183; Demo Oseni V. The State (2012) 2 SCNJ (pt. 1) 215 at 246; Federal Republic of Nigeria V. Faith Iweka (2011) 12 SCNJ 783.
Therefore, a trial court faced with a situation such as was thrown up in the instant case, has the duty of testing the truth of the confessional statement by examining it with respect to other credible evidence led before it and determine whether,
(i) There is anything outside the confession to show that it is true;
(ii) It is corroborated;
(iii) The facts stated in it are true as far as can be tested;
(iv) The accused person had the opportunity of committing the crime;
(v) The accused person’s confession is possible;
(vi) The confession is consistent with other facts ascertained and established.
See Jimoh Yesufu V. The State (1976) 6 SC 167; Alarape V. The State (2011) FWLR (pt. 41) 1872 or (2001) 5 NWLR (pt. 705) 79; Akpa V. The State (2007) 2 NWLR (pt. 1019) 500; Edamine V. The State (1996) 3 NWLR (pt. 438) 530.
The learned trial judge found that Exhibit A was corroborated by the evidence of the PW4, the medical doctor who examined the corpse of the deceased Angela Nonum, with respect to the nature of injuries which led to her death; and the evidence of PW6 to the effect that he too was attacked by the appellant at his farm with a cutlass and inflicted with injuries on the areas on his body as stated in Exhibit A. The conclusion reached by the learned trial judge, that,
“These facts, in my view, are clearly sufficient to draw the irresistible conclusion or inference that the act of the accused person caused the death of the deceased.”
to my mind, remain unassailable.
Furthermore, the learned trial judge rightly in my considered opinion held that:
“…..from the nature of the weapon used in the attack and the nature and extent of the injuries on the body of the deceased, as testified to by the PW4, the court has no difficulty in holding that the act of the accused was done with the intention of causing the death of the deceased.”
I am of the considered and firm opinion that where a person, such as Angela Nonum, was attacked with a lethal weapon such as a cutlass which led to her death on the spot where she was assailed by the appellant, it is reasonable to infer that the injuries inflicted on her caused her death, Silas Sule V. The State (2009) 6 SCNJ 65.
I have considered the contention of appellant’s counsel that since there was no eyewitness to the killing of Angela Nonum by the appellant, the learned trial judge reviewed the available circumstantial evidence and came to the conclusion that it was the appellant who caused the death of the deceased.
The appellant’s counsel at paragraph 2.12 of his brief of argument said:
“The learned trial judge tabulated the following as the pieces of circumstantial evidence:
(1) That the accused person was in Ogba farm on 24/2/97 the day the deceased was killed”
(2) That to get to Ogba farm land from Owa-Oyibu he passed through Abavo, and particularly, the farm on which the deceased was killed.
(3) That the deceased died from injuries inflicted with a matchet, and that on that same day, the accused attacked the PW6 at Ogba farm with a matchet, inflicting injuries on his head and neck.”
In addition to this the prosecution also relies on Exhibit ‘A’ the confession statement of the accused person.”
I have perused pages 81 – 82 of the record of appeal. It is crystal clear to me that the three pieces of circumstantial evidence which appellant’s counsel erroneously said were tabulated by the learned trial judge, was a submission made out of con. The learned trial judge was rehasing the submission of the prosecuting counsel on the question of circumstantial evidence. Then he said:
“In this regard, the prosecution referred to the following pieces of evidence;”
that is, the pieces of evidence with respect to circumstantial evidence, reproduced above.
Therefore, it was not the learned trial judge but the prosecuting counsel who referred to those pieces of circumstantial evidence. Hence, the labourious submissions on the question of circumstantial evidence by the appellant’s counsel went to no issue because at page 83 of the record, the learned trial judge determined the case against the appellant on the confessional statement in Exhibit A and found corroboration of it, with the pieces of evidence by the PW4 and PW6.
In other words, the determination of the guilt and conviction of the appellant was not predicated on circumstantial evidence because there was no eyewitness, but on the appellant’s confessional statement in Exhibit A which was corroborated by the pieces of evidence by the PW4 and PW6.
The prosecution had the liberty to prove its case either by the evidence of an eyewitness or the confession by an accused person or through circumstantial evidence. Ilodigiwe V. The State (2012) 18 NWLR (pt. 133) 1 at 29 – 30.
In the instant case, the case against the appellant was proved on his confessional statement vide Exhibit A.
Let me add this. The fact that appellant in Exhibit A stated that after matcheting the woman in question, he continued his journey and stayed in his farm at Ogba village until the third day of his leaving Owa-Oyibu when his brother Roland Ero, PW6 came to “disturb” him on his farm at Ogba, was a corroborative conduct showing him as having had a hand and culpability in the killing of the woman he had matcheted in the Abavo bush. Igabele V. The State (2006) 2 SCNJ 124 at 132; Anthony Nwachukwu V. The State (2007) 7 SCNJ 326 at 348. It is said that the wicked runs away to hide when no one is pursuing him. What a truism!
I resolve issue 1 against the appellant whilst I hold that issue 2 go to no findings of the learned trial judge, therefore I discountenance it.
Issue 3 is with respect to the defence of insanity set up by the appellant. It is the submission of appellant’s counsel that the burden of proving insanity rested on the appellant. He relied on Ani V. The State (2002) FWLR (pt. 125) 661 at 675, that the standard of proof is as in civil matters on a balance of probability, Ani V. The State (supra); Madjemu V. The State (2001) FWLR (pt. 52) 2210 at 2228 and that insanity is primarily a question of fact to be determined by the trial judge who is expected to take into consideration each and every admissible piece of evidence tendered before the court. Ani V. The State (supra).
Furthermore, he submitted that the nature and type of evidence required to be led in support of the defence of insanity have been laid down in a number of cases by the Supreme Court. He relied on Madjemu V. The State (supra) where his Lordship, Iguh, JSC at 2229, stated that:
“I need to point out also that to establish the defence of insanity, recourse could be had to the following relevant facts, namely:-
(i) Evidence as to the past history of the accused person.
(ii) Evidence as to the conduct of the accused immediately preceding the killing of the deceased.
(iii) Evidence from prison officials who had custody of the accused person before and during the trial.
(iv) Evidence of Medical Officers who examined the accused.
(v) Evidence of relatives about the general behavior of the accused person and the reputation he enjoyed for sanity or insanity in the neighbourhood.
(vi) Evidence showing that insanity runs in the family history of the accused; and such other facts which will help the trial court come to the conclusion that the burden of proof placed by law on the defence has been discharged.”
Appellant’s counsel also referred to Ani V. The State (supra) at P.675 where his Lordship, Iguh, JSC also stated the court considering the defence of insanity,
“ought to take into consideration each and every admissible piece of evidence tendered before it, including medical evidence, where available, together with the whole of the facts and surrounding circumstances of the case, particularly such vital facts like the nature of the killing, the conduct of the accused before, at and immediately after the killing and any past history of mental abnormality of the accused.”
Learned counsel contended that there was evidence by the PW6 that the appellant had received treatment for mental disorder shortly, about 2 years, prior to the attack on Angela Nonum. That the appellant had received treatment at Idumuesah in 1995 for his insanity and was treated and released. Thereafter, the appellant was still terrorizing the villagers, which was an indication that he was still an abnormal person such that the villagers told his mother to take care of him. Learned appellant’s counsel referred to R. V. Inyang (1946) 12 WACA 5 which he claimed was on all fours with the instant case and that the defence of insanity was available to the appellant.
It is the further submission of appellant’s counsel that there is evidence by PW6 that the appellant ran away from where he was being taken case of at Owa-Oyibu, into the bush shortly before he killed Angela Nonum.
With respect to the evidence indicative of insanity at or during the time of the attack on the deceased Angela Nonum, appellant’s counsel submitted that from Exhibit A, the appellant said the deceased woman wanted to disturb his movement which was why he stabbed her which shows an apparent lack of motive, albeit of itself cannot establish the defence of insanity. However, he contended that the apex court in Ani V. The State (supra) at 669, had stated that,
“The absence of motive is at most a matter to be taken into consideration when there is no other evidence indicative of insanity rather than the opposite.”
Learned appellant’s counsel, with respect to evidence indicative of insanity of the appellant, after the attack in question, submitted that there is evidence vide Exhibit A, that after attacking Angela Nonum, the appellant stayed in the bush for six days. Furthermore, that the appellant also attacked his brother PW6, with a matchet, just as he had attacked the deceased Angela Nonum. He therefore urged that this issue be resolved in favour of the appellant.
Learned counsel to the respondent argued this issue in his own issue 2. He, like the appellant’s counsel restated the general principle to be considered by the trial court in determining the question of insanity, as laid down by the apex court in Madjemu V. The State (supra). He also referred to Udofia V. The State (1981) 11 – 12 SC 49; Loke V. The State (1985) NWLR 1; Idowu V. The State (1972) All NLR (pt. II) 5 at 9.
Respondent’s counsel submitted that the learned trial judge at pages 87 – 88 of the record took the above stated principles into consideration before making the findings on the defence of insanity and concluded that:
“From the totality of the evidence adduced by the defence in proof of insanity, the court is of the view that the accused has not discharged the burden of proof of insanity.”
Respondent’s counsel urged that this issue be resolved against the appellant.
Resolution of issue 3:
The learned trial judge considered and dealt with the defence of insanity at the instance of the appellant, at length from pages 84 – 89 of the record of appeal. The analysis of the facts and application of the law and the decided authorities on the subject by the learned trial judge is compelling and admirable. Hence they are set out in extenso, to wit:
“The accused testified denying the charge. He testified that he had a mental problem at a point and was taken to a herbal home at Idumessah for treatment. He was also taken at a time to the psychiatric hospital Uselu for treatment. He testified that he was not with his senses, and that he got to know about the incident for which he is standing trial when he regained his senses in the prison. He also got to know that he injured the PW6 in the court. Under cross-examination, he denied killing anyone with a matchet on the day in question.
In the course of his address, his counsel, G.C. Utalaor addressed the court on the issue of insanity and submitted that the accused has discharged the burden of proving insanity. In this regard, he relied on the evidence of the PW6, the material portions of which are set forth hereunder:-
“It was the mother who sent a message to tell me the accused had left the palace for Ogba. She wanted me to check whether he was at his farm at Ogba. I went to his farm and saw him there. I called him and he gave me a matchet out on the head and back.
Under cross-examination, the PW6 stated as follows:-
“I have known the accused for over 20 year. I told the police the accused was taken to Idumessah in 1995 for treatment because of his insanity. He was cured before he was released. After release, he was still terrorizing villagers and behaving abnormally until the villagers called his mother to take care of him. He was taken to the Palace. It was from there he ran to the bush. I am aware that there was no quarrel or any type of dispute between him and the woman he is alleged to have killed.
…………….
When I met him he was lying down. I only called him to come out of the bush and eat. He attacked me with a machete.”
It will be appropriate at this stage to examine the provision and the position of the law on the defence of insanity. The relevant provisions are Sections 27 and 28 of the Criminal Code, Cap. 48 vol. II Laws of Bendel State, which law is applicable in Delta State. These sections provide as follows:-
“27. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.”
28. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission 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 capacity to control his actions, or of capacity to know that he ought not do the act or make the omission.
The position of the law on the defence of insanity as distilled from a host of decisions of higher courts are as summarized hereunder:-
1. The key element of the defence of insanity is an admission by the accused person that he committed the offence but that his liability ought to be mitigated by reason of insanity.
2. Under Section 27 there is a presumption of law that everyone is of sound mind. The burden of proof of insanity, therefore, rests on the accused person and the onus is discharged on mere balance of probabilities as in civil cases.
3. When the question arises as to the insanity or otherwise of a person, such a person is scarcely a competent witness on that point.
4. For the defence of insanity to succeed under section 28, the accused, must establish that he was at the time of commission of the offence, in such a state of ‘mental Disease’ of natural mental infirmity’ as to deprive him of the capacity to:-
i. understand what he is doing
ii. control his actions or
iii. know that what he was doing was wrong.
5. The fact that an accused person had received treatment for mental illness or insanity in the past, may or may not be relevant for the purpose of determining whether the defence of insanity is available to him. It may not be relevant if the treatment was given a long time before the commission of the offence. What the law recognizes is that the insanity must be at the time of doing the act and not before.
6. Mere absence of motive for a crime is not sufficient ground on which to infer insanity. The burden on the accused is not discharged merely by showing that he acted without motive. Absence of motive may, however be taken together with other circumstances which may tend to strengthen evidence of mental abnormality in order to establish insanity.
7. It is not a defence of insanity that an accused behaved abnormally. Abnormal behavior has so much uncertainty about it as to why and how.
These principles are contained in the following decisions of the Supreme Court:-
1. CHUKWU V THE STATE: 1994 16 LRCN 1:
2. PETER V. THE STATE: 1997 54 LRCN 2781:
3. AIWORO V. THE STATE; 1987 NWLR (PT. 58) 526
4. ONYEKWE v. THE STATE: 1988 1 NWLR (PT. 72) 505
5. SULE MAKOSA v. THE STATE: 1969 1 ALL NLR 363 AT 366;
6. JOSEPHINE ANI v. THE STATE: 2002 98 LRCN 1212
7. MADJEMU V. THE STATE (supra).
I will now proceed to apply the law to the facts of this case. The evidence of the accused person is an admixture of claiming ignorance of the offence or his actions in relation thereto, even to the injury he inflicted on the PW6. Under cross- examination, he denied killing anyone towards the end of his evidence. For the purpose of determining whether he has proved insanity, his evidence is suspect and unreliable. This leaves the evidence of the PW6, which I have set out in this judgment. His evidence disclosed that the accused suffered from mental illness, for which he was taken to Idumessah for treatment in 1995. He also testified that he was cured before he was released. It is stated that after he was released he continued terrorizing the villager’s and behaving abnormally. He was taken to the Palace of the Obi of Owa, from, where he ran to the bush. This is the totality of the evidence upon which the court is being urged to find insanity proved. Under section 28 of the Criminal Code, the defence has to establish that the accused was insane at the time of the commission of the offence. The offence for which the accused person is standing trial was committed on the 24th day of February, 1997. The fact that the accused person had a mental problem in 1995 and was cured would not leave one with the conclusion or inference that at the time he committed the offence, he was insane. There is no evidence of the mental state of the accused person between the time of his cure and 1997, when he killed the deceased. I am aware of the evidence of the PW6 to the effect that after his cure and discharge, he was “terrorizing villagers and ‘behaving abnormally’. The act or conduct of the accused which constitutes terrorism and abnormality was not stated. Such behavior can be attributed to a number of people who are considered sane, and could be caused by several factors, other than insanity. It is the evidence of the PW6 that the accused was taken to the Palace of the Obi of Owa, where he stayed until he ran away. There is no evidence before the court that he suffered from any form of insanity throughout his stay at the Palace. I cannot but wonder at this stage, whether it is possible that an insane person could have been sent to a traditional ruler as a messenger. Infact, from Exhibit ‘A’, the statement the accused made to the police, one could safely draw the conclusion that he was sane shortly before the incident that gave rise to this charge occurred. In the said statement, the accused stated that he decided, a day before the incident occurred, to run away from the Palace. His decision was informed by the bad treatment he received there, including the fact that he was made to go and work on the obi’s farm on Sundays, his rest day. The entire content of Exhibit ‘A’ appears logical. He recalled the schools he attended and the period he attended each of them. It is coherent and there is nothing to suggest that the maker was insane. In the concluding part of Exhibit ‘A’, the accused stated as follows:-
‘Formally I am an Indian hemp smoker but for the past two weeks now I have stopped smoking.
When I was smoking I discovered that the Indian hemp disturbed my brain.’
There is nothing to suggest that he was under the influence of narcotics or intoxicating substance, at the time the offence was committed.
In urging the court to find insanity established, counsel for the accused person touched on the issue of lack of motive. The position of the law on the issue is clear. It is to the effect that absence of motive in itself alone and by itself alone is not evidence of insanity. AIWORO V. THE STATE (supra). NKANU v. THE STATE: 1980 3- 4 SC 1. Where, however, there is any other evidence of insanity, lack of motive may help in leading one to think that probably, the killer might have been insane. (EJINIMA V. THE STATE: 1991 5 LRCN 1683). Because of the time lag between the time the accused was alleged to have been treated for insanity and the time of the commission of the offence, and in view of the absence of any evidence that the accused had a relapse and any evidence as to the mental health of the accused before the commission of the offence, the court fails to see how the act of the accused in killing the deceased could be linked to the insanity of 1995.
From the totality of the evidence adduced by the defence in proof of the defence of insanity, the court is of the view that the accused person has not discharged the burden of proof of insanity. It has not been established that at the material time he was suffering from a mental disease or infirmity, capable of affecting his will, talk less of the fact that his will was in fact affected.
Having considered the defence of insanity raised by the accused, there appears to be not other defence available to him, on the facts before the court. The prosecution has proved the following:-
1. That Angela Nonum is dead.
2. That she died from injuries inflicted on her by means of a machete.
3. That the accused person inflicted the injuries which caused her death.
4. That from the nature of the implement employed by the accused, and the nature of the injuries, the death of Angela Nonum was intended.
From the totality of the evidence before the court, the court is of the view that the prosecution has proved the charge of murder against the accused person beyond reasonable doubt, and I so hold. In the result, I hereby find the accused person, Francis Ero, guilty of the murder of Angela Nonum, as charged.”
Undeniably, the evidence of the PW6 a brother to the appellant indicate that at one time or the other, the appellant had exhibited some abnormal behaviours prior to the killing of Angela Nonum in 1997. However, whether or not those abnormal behaviours were tantamount to insanity must be established by evidence and proved on a balance of probability, for the defence of insanity to have availed the appellant. And the surest way of establishing insanity is by medical evidence or by compelling evidence of eye witnesses, particularly of the relatives of the appellant, relating to his general conduct and behavior prior to, during and after the incident of February, 1997. Anthony Ejinma V. The State (1991) 7 SCNJ (pt. 1) 318 at 328.
In M.A. Sanusi V. The State (1984) 10 SC 166 at 177 – 178, his Lordship, Anagiolu, JSC, succinctly stated what is expected in pieces of evidence aimed at establishing and proving insanity, as:
“Positive act of the accused, before and after the deed complained of; evidence by a doctor who examined and watched the accused over a period of time as to his mental state; evidence of relatives who know the accused person intimately relating to his behavior and the change which had come upon him; the medical history of the family which could indicate hereditary mental affliction or abnormality, and such other facts and circumstances which will help the trial judge come to the conclusion that the burden of insanity placed on the accused, has been simply discharged.”
The salient facts required in proving insanity were clearly projected and crystalised by the apex court again, in Onyejekwe V. the State (1988) 1 NWLR (pt. 72) 565 at 579 – per my Lord, Oputa, JSC., to include:
“(1) Evidence as to the past history of the accused;
(2) Evidence as to his conduct immediately preceding the killing of the deceased;
(3) Evidence from prison warders who had custody of the accused and looked after him during his trial;
(4) Evidence of medical officers and/or Psychiatrics who examined the accused;
(5) Evidence of relatives about the general behavior of the accused and the reputation he enjoyed for sanity and insanity in the neighbourhood;
(6) Evidence showing that insanity appears in the family history of the accused.”
Further see Kure V. The State (1988) 1 NWLR (pt. 72) 404; R V. Inyang (1946) 12 WACA 5; Onakpiya v. Queen (1959) 5 FSC 150; Karimu V. The State (1989) 1 NWLR (pt. 96) 124; Ogbu V. The State (1992) 10 SCNJ 88 at 99; Okon Edoho V. The State (2010) 4 SCNJ 100, all to the effect that this burden on the defence is generally discharged on a preponderance of evidence or a balance of probability. Therefore, the prosecution has no duty or business in proving sanity or insanity of an accused person.
In the circumstances of this case, the only evidence of insanity which appear to stand out is that by the PW6, a brother to the appellant that the latter had suffered from a mental disease or infirmity in 1995 and he was treated at Idumuessah. There are no pieces of evidence from Idumuessah where the appellant was treated in 1995 to support the evidence of the PW6. It is glaring to me that the evidence of the PW6, fell short of the salient facts clearly enunciated by the Supreme Court in the decided authorities referred to earlier in this judgment, on this point, as the compass or road map, to be used in navigating or proving the defence of insanity.
Indeed in his evidence at the court below during trial, the appellant said:
“Formerly I am a Indian hemp smoker, but for the past two weeks now I have stopped smoking. When I was smoking I discovered that the Indian hemp disturbed my brain.”
The appellant’s piece of evidence, supra, if anything, is suggestive of a self-induced fatigue on his brain which could precipitate an abnormal conduct or even a delusion. This is because of the fact that an indulgence in the act of smoking of Indian hemp, otherwise called canabis sativa, usually lead to an alteration of the smoker’s consciousness and a true perception of things, which may culminate and graduate to an insane delusion. That is, a disordered mind which conjures up some facts which it thinks do exist and it adheres to such impaired facts against all reasonable evidence to the contrary. Therefore, for a defence of insane delusion to have availed the appellant herein, his reaction to the state of things as believed by him, must be such that it could be regarded as legitimate and natural reactions to such state of things. Aremu V. The State (1979) 11 SC 109; Egbe Nkam V. The State (1980) 3 – 4 SC 1; Effiong Udofia V. The State (1981) 11 – 12 SC 41; Sanusi V. The State (1984) 10 SC 66; Ejinima V. The State (1991) 7 SCNJ (pt. II) 318.
I have given some thought to the piece of evidence by the PW6 that the appellant after receiving treatment at Idumuessah in 1995 and had recovered and released from there, still returned to his community and was terrorizing the villagers. That may well be so, because the appellant might have been indulging himself in the act of smoking Indian hemp which he had only stopped doing about two weeks, prior to the incident of 24th February, 1997. Therefore, for as long as the appellant refused to part ways with the consumption of Indian hemp, he was bound to be “disturbed” in his brain and behave eccentrically and terrorize people around him. However, eccentricity is not insanity. Eccentricity is a product of a self-induced personal and individual peculiarity of a disordered mind or disposition which markedly distinguishes the eccentric person from the ordinary and normal, or average person, but does not tantamount to mental unsoundness or insanity. Ejinima V. The State (supra).
The appellant, having not been shown by evidence that he had ever been admitted in a Psychiatric hospital for treatment prior to the commission of the crime of 24th February, 1997 or even after the commission of the said crime, it cannot be said that he was insane at the time he killed Angela Nonum. The fact that he stayed in the bush after the dastardly, gruesome, horrific, grisly and merciless/unconscionable killing of Angela Nonum on 24th February, 1997, was an indication of sanity and not insanity. He knew that he did a wrong thing, so he stayed away in the bush. If he was really insane, he could have gone ahead into the village, still brandishing his cutlass, for another prey. And there is no evidence that after killing Angela Nonum and also matcheting PW6, the appellant continued with his insanity during his trial at the court below. I believe he became sane thereafter. Perhaps, because he had no luxury or is it misfortune (?), while in police or prison custody, to smoke Indian hemp, which used to “disturb his brain” whenever he smoked it. That is why I said earlier in this judgment, that the appellant’s alleged mental sickness was self-induced. So if there is no smoking of Indian hemp, then there will be no insanity and vice versa. What a pity!
The mind of any person suffering from insanity has no room for meas rea because his action or behavior which is induced by insanity or mental delusion is carried out on a blank mind, without any thought whatsoever, otherwise any inference of motive, knocks off the bottom from such defence of insanity. From the ipse-dixit of the appellant in Exhibit ‘A’ it is evident that he had his reason for matcheting the woman he saw in the bush who according to him, wanted to disturb his movement. A guilty mind precedes a guilty conduct and action!
For all the foregoings, I resolve issue 3 against the appellant.
In sum, the appeal fails as it is devoid of merits. It is accordingly dismissed. I affirm the well-considered judgment of Diai, J., delivered on 5th August, 2003.
The appellant, therefore has a date to keep with the hangman’s noose.
SIDI DAUDA BAGE J.C.A.: I read in draft the erudite Judgment of my learned brother T.S. YAKUBU JCA. I entirely agree with all the reasonings and the conclusion reached. I also resolved all the 3 issues in this appeal against the Appellant. The appeal is devoid of merits, and it is accordingly dismissed by me. I also affirm the Judgment of Diai J, delivered on 5th August, 2003.
AYOBODE O. LOKULO-SODIPE J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. I am in complete agreement with his lordship’s reasoning and conclusions.
I agree that the appeal is unmeritorious and it is dismissed by me for the same reasons as contained in the lead judgment. Consequently, I, too affirm the well considered judgment delivered by the lower court on 5/8/2003.
Appearances
Ojo Abijogun, Esq.For Appellant
AND
O.F. Enemuo, Esq., Deputy Director of Public Prosecutions, Delta State Ministry of JusticeFor Respondent
TE
