DICKSON ARISA V. THE STATE
In The Supreme Court of Nigeria
On Friday, the 1st day of July, 1988
SC.54/1987
JUSTICES
ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
ABDUL GANIYU OLATUNJI AGBAJE Justice of The Supreme Court of Nigeria
Between
DICKSON ARISA Appellant(s)
AND
THE STATE Respondent(s)
RATIO
FACTORS THE DEFENCE COUNSEL MUST PROVE TO ESTABLISH A DEFENCE OF INSANITY IN CRIMINAL PROCEEDINGS
It is now settled law that in order to establish a defence of insanity the defence must prove:-
First, that the accused was, at the relevant time, suffering either from mental disease or from “natural mental infirmity”; then it must be established that the mental disease, or the natural mental infirmity, as the case may be, was such that at the relevant time, the accused was, as a result deprived of capacity:-
(a) to understand what he was doing; or
(b) to control his actions; or
(c) to know that he ought not to do the act or make the omission.
It must further be remembered that if the defence be one of partial delusion, the provisions of the second paragraph in the Nigerian Criminal Code Section 28 are applicable and that they are similar to the rules in Macnaughten’s Case (1) as to delusions. (See R. v Sunday Omoni 12 WACA 511 at 512 for instance). PER AGBAJE, J.S.C.
GROUNDS OF OPINION OF A LIVING PERSON, WHEN RELEVANT
For this proposition I refer to Section 64 of the Evidence Act which provide:
“Whenever the opinion of any living person is relevant, the ground on which such opinion is based are also relevant.”
I also refer to Regina v. Turner the Times October 23, 1974, where it was held that before a court could assess the value of an opinion it had to know the facts upon which it was based.PER AGBAJE, J.S.C.
WHETHER OR NOT THE FACT THAT A PERSON IS AFFLICTED WITH A DISEASE OF THE MIND OR HAS NATURAL MENTAL AFFIRMITY WILL AVAIL SUCH PERSON THE DEFENCE OF INSANITY AS A PROTECTION UNDER SECTION 28 OF THE CRIMINAL CODE LAWS OF EASTERN NIGERIA 1963
The fact that a person is afflicted by a disease of the mind or has natural mental infirmity without more is not per se enough for the person to enjoy the protection of section 28 of the Criminal Code Laws of Eastern Nigeria 1963 applicable in Imo State from criminal liability. To be entitled to the protection of the Insanity Clause in the section for the doing of any act or making the omission he must at the material time i.e. the time of doing the act or making the omission be deprived of the capacity to understand what he was doing or of capacity to control his actions or of capacity to know that he ought not to do the act or make the omission. PER OBASEKI, J.S.C.
WHERE DOES THE ONUS OF PROOF OF THE DEFENCE OF INSANITY LIE AND WHAT IS THE STANDARD OF PROOF
The onus is on the defence to establish the defence of insanity and the standard of proof in this regard is on a balance of probability.See R. v. Wangara 10 WACA 236; Loke v. The State (1985) 1 N.W.L.R. 1. PER OBASEKI, J.S.C.
WHAT AN ACCUSED PERSON RELYING ON THE DEFENCE OF INSANITY MUST ESTABLISH
The accused relying on the defence must also establish that at the time of the commission of the offence he was either deprived of knowledge of right and wrong and cognition of what he was doing. Where he had cognition and knowledge, he must also show that he was unable to control his action – See Ngene Arum v. The State (1979) 11 SC.91. PER KARIBI-WHYTE, J.S.C.
G. O. AGBAJE, J.S.C. (Delivering the leading Judgment): The appellant Dickson Arisa was tried and convicted of murder of one Reuben Okenpa contrary to Section 319(1) of the Criminal Code Cap. 30 Vol. 2 Laws of Eastern Nigeria applicable to Imo State by Anyanwu J. sitting at Isiala Ngwa in the High Court of Justice, Imo State.
Following his conviction on 28/6/1985 the appellant was then sentenced to death. The appellant being dissatisfied with his conviction and sentence, appealed against them to the Court of Appeal, Enugu Division. That Court after listening to the arguments from Counsel on both sides dismissed the appellant’s appeal on 26/1/87. This is a further appeal by the appellant to this court against his conviction and sentence.
The only issue arising for determination in this court as indeed it was in the lower Court is whether the defence of insanity put up by the appellant at the trial Court was rightly rejected by that court whose decision was affirmed by Court of Appeal.
From the nature of the only issue arising for determination in this case it is clear that it is common ground in this case that it was the appellant who fired the shot from the gun that killed the deceased Reuben Okenkpa on 28/10/82 at Umuosu-Nsulu in the Isiala-Ngwa Judicial Division of the High Court of Imo State. The issue arising for determination essentially involves the consideration of whether on the totality of the evidence on the point at issue it can be said that the appellant has discharged the onus of proving insanity, the standard of proof of which no doubt is on a balance of probability.
The available evidence on the issue of insanity on the printed evidence was as follows:-
First p.w.1 after testifying as to how the appellant shot the deceased dead continued his evidence as follows:-
“Then the accused came to the scene of collision; peeped into the out (sic) vehicle and seeing that the driver was dead he said ‘yes'”.
In cross-examination this witness said, “I remember that the last words of the deceased at the time of the incident were “my brother you have killed me”.
Second, p.w.2 corroborated the evidence of p.w.1 as to what the appellant did immediately after he fired his gun at the deceased, this witness added that the appellant then turned his gun towards them who were present at the scene and consequently, they all fled. In cross-examination he said as follows: – “It is true I saw the accused on the day of the incident but I cannot say whether he was then insane or not”.
Thirdly, the investigating Police Officer p. w.5 Sergeant Eric Okoye told the trial Court that in the course of his investigation into this case he went to the house of the appellant on 28/10/82 after the deceased had been killed and there he caused a stone to be thrown on the roof of the house of the appellant as a result of which the appellant ran to the back -yard of his house to see what had happened. There and then he said he and other members of his team went inside the house where-upon the appellant asked if they were Police men and upon their answering in the affirmative, the appellant offered them palmwine which was on the table in the centre of the room which offer he and his men refused; he told the appellant that it was alleged that he had killed one Reuben Okenkpa to which statement the appellant made no reply; he then took possession of a double barrelled shot gun which he saw on the bed of the appellant and when he asked the appellant what he was doing with the gun, the appellant replied that he was getting set for a hunting expedition.
Fourth: The appellant in his own defence gave evidence as follows on the point at issue:-
“I knew Reuben Okenkpa. I understand he is now dead. I am charged with this court with the murder of the said deceased Okenkpa. I did not kill him. I did not have any quarrel with him.
Nothing happened between him and myself on 28/10/1982. I did not make Exhibit “B”. I do not know if the deceased ever had love affair with my wife. I was sick some time. During my ill-health. I used to get offended with myself, very little thing could provoke me. I used to get dizzy during my periods of ill-health. I became sleepless and had constant head-ache during my ill-health. I went to native doctors for treatment. I also went to conventional hospitals such as St. Anthony’s Hospital. Aba. A doctor treated me in that hospital. My company the CFAO sent me to that hospital in 1980/1981. I know that it is crime to kill any person. After my ill-health I recovered. The illness occasionally re-occurred. After each attack I do not find myself able to remember all that happened during the period of my ill-health”.
Fifth: D.W.2 Florence Arisa the appellant’s wife gave evidence as follows:-
I knew Reuben Okenkpa the deceased. He is now dead. He was a kinsman and friend of the accused. There was no quarrel between them before the death of the deceased. Since 1980 the accused has not been well. His illness started one night when he ran out of his room naked hut carrying his wrapper. When questioned he replied that soldiers had killed his brother and buried him where no one would find him; that the soldiers were after him as the next person to be killed. At the dawn of the day the inmates of the yard reported the incident to the brother of the accused who took the accused home and told me what happened the night before at Aba. In the following night the accused looked up the ceiling and said he heard some voices. He asked me if I heard the voices and I said no. This continued until he was given some drugs and thereafter the illness subsided. Whenever the sickness subsided the accused could not recollect whatever happened during the period of his ill health. One would have to tell him what he did when he was not well. During the period of his malady he keeps mute for periods of about 30 minutes. Any statement from anyone easily upsets him. Whatever comes his way he uses in striking anyone near him. On one occasion he hit my son at the back with a piece of wood. The scar is still visible at the back of the son. He was first given “English” medicine. When it yielded no result I took him to a native doctor. At a stage the accused told me that the native doctor was trying to poison him. Later we were directed to a prayer house. As at 9th September, 1982 the accused was being treated at St. Anthony’s Hospital. Aba. It was his employers who sent him to that Hospital. I do not know if the accused killed the deceased because I was at Aba on the date of the alleged incident.
I made a statement to the police in respect of this matter. I made two statements to the police. The 1st was on 29th October. 1982 and the 2nd was on 3rd of November, 1982. The deceased was not my lover. My husband had earlier accused me of having love affairs with the deceased. I told him that it was an evil spirit that was prompting him to say so. The accusation about love affair was made when my husband was not well.”
I have to reproduce this evidence in full because of its significance on the face of it, and in this connection I must mention the evidence of P.W.5 the investigating police officer in cross-examination which is as follows:-
“It came to my knowledge through the statement of the accused person’s wife that the accused had mental trouble in the past. I arrested the accused on the day of the crime. I gave the wife of the accused opportunity to show me the native doctor who attended the husband and the prayer house where people prayed for the husband.”
D.W.2 refused to take P.W.5 to the native doctor or to the prayer house. It transpired that neither the native doctor who D.W.2 said treated the appellant for his illness nor any member of the prayer house which according to D.W.2 the appellant attended for spiritual help on account of his illness was called as a witness in this case.
And lastly:- the evidence of D. W.3 a Medical Doctor one Augustine Ghandi Nwokedi Onyejeli who said as follows:-
“I work in St. Anthony’s hospital, Aba. I recognised the accused. I recognise him as a patient I treated some time. After treating the accused I issued a report to and at the request of CFAO Aba who retained our services. The accused was admitted into our hospital as an employee of CFAO, Aba. I treated the accused on 9th September, 1982.He came with the complaint of moodiness, dizziness, palpitation, weakness, sweating, poor sleep, poor appetite, internal heat and hearing of voices. I physically examined the accused and also sent him for lab tests. The physical examination and lab tests revealed nothing abnormal. Based on the history alone I made a tentative diagnosis of anxiety neurosis a kind of illness that affects the nervous system. I placed him on treatment for that and asked him to repeat (sic) in 7 days time for a check-up and follow up treatment. Two days later the patient came back to the hospital with further complaints of bodily movements. On further questioning I was able to confirm that the patient was having auditory hallucinations of several voices arguing and referring to him. The patient refused to be admitted for closer observation but preferred to remain as all out patient. My final observation was that the accused was developing a type of schizopherenia known as sychogenic sychosis meaning a type of mental illness .., that manifested with a type of disorientation of the patient which could affect some aspect of his senses. He could begin to see things that are not there or hear things that are not said. There is loss of touch with reality. At the time of the attack the patient cannot control his actions like a normal person. Such person would not be in a position to understand what he is doing when under the attack. This type of illness could come and resolve on its own or manifest later. I issued the report on 28th May, 1984.The CFAO requested for a Medical report in writing. The request which was in writing was made in May, 1984. It is not true that I issued a report about the accused because of this charge against the accused, I did not alert the company that accused had mental illness.”
I have to reproduce the evidence of this witness in detail because of its significance on the face of it.
Bearing also on the issue of insanity are the statements of the appellant to the police. The first is Exh. “A” made on 29/10/82 wherein he gave a detailed account of his movements the previous day 28/10/82 and of the use to which he put the double barrelled gun which the police recovered from him that day. In the statement he did not allude to the death of the deceased or to the fact that he fired a gun at him. The second one is Exh. “B” the additional statement of the appellant to the police made on 3/11/82 wherein he said as follows:-
“In addition to the statement I make to the police on 29/10/82 have to add that the deceased sex my wife on several occasions. And one day he said before me that to eat soup without meat is bad and that caused laughter. He is a good friend of mine. This very Reuben we eat together and do everything together minus my wife. On 28/10/82 at about 11a.m. when I delivered the letter to him, this very Reuben made fond of me because I have no money that provoked me to kill him with my double barrel gun. That is all.”
Having stated the evidence on the point at issue I can now go to the law in this regard.
Because of the presumption of law in Section 27 of the Criminal Code applicable to Imo State that every man is of sound mind until the contrary is proved, insanity is a defence that may be raised by an accused person and the onus of proving that defence rests with the defence on a balance of probability.
The defence of insanity is provided for by Section 28 of the Criminal Code which says as follows:-
“A person is not criminally responsible for an act or omission of 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 of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”
It is now settled law that in order to establish a defence of insanity the defence must prove:-
First, that the accused was, at the relevant time, suffering either from mental disease or from “natural mental infirmity”; then it must be established that the mental disease, or the natural mental infirmity, as the case may be, was such that at the relevant time, the accused was, as a result deprived of capacity:-
(a) to understand what he was doing; or
(b) to control his actions; or
(c) to know that he ought not to do the act or make the omission.
It must further be remembered that if the defence be one of partial delusion, the provisions of the second paragraph in the Nigerian Criminal Code Section 28 are applicable and that they are similar to the rules in Macnaughten’s Case (1) as to delusions. (See R. v Sunday Omoni 12 WACA 511 at 512 for instance).
On the point of the defence of black out in the con of the defence of insanity, it has been said in Dim v. Queen 14 WACA 151 at 157 that the defence for it to succeed must be supported by adequate proof. Having stated the 1aw and the evidence on the issue of insanity in this case it remains for me to find out whether the two lower Courts properly directed on the evidence and the law could have rightly rejected as they have done the defence of insanity put up by the appellant.
In the first place the evidence of the appellant himself on the point at issue will on the authorities carry little or no weight. (See Idowu v. The State (1972) 1 All N.L.R. Part II p. 5 at 9 for instance).
One can hardly quarrel with the finding of the trial Court and that of the Court of Appeal rejecting the evidence of D.W.2 on the issue of insanity having regard to what I have earlier on said in this judgment namely:-
P.W.5, the investigating police officer asked D.W.2 the appellant’s wife to take him (P. W.5) to the native doctor who D.W.2 said treated the appellant for his mental illness and she failed to do so. P. W.5 made the same request in respect of the prayer house which D. W.2 said the appellant attended and the response was the same as in the case of his request to visit the native doctor. Again neither the native doctor nor any member of the prayer house was called as a witness in this case. The evidence of D.W.2 on the face of it is indicative of insanity on the part of the appellant, but that evidence is considerably weakened to the extent of being rendered unreliable in my judgment by reason of what I have just said. Once any evidence is found to be unreliable that is the end of that evidence and to all intent and purposes it ceases to be relevant evidence in the case in question.
I now come to the crucial point of the rejection by the trial Court of the medical evidence called by the defence on the issue of insanity that is to say the evidence of Dr. Onyejeli which I have reproduced above. The evidence if accepted will no doubt show that the appellant has discharged the onus of proving his defence of insanity. The evidence which relates to a point of time almost immediately before the commission of the offence charged in this case shows not only that at the relevant time the appellant was suffering from either mental disease or natural mental infirmity but also that as a result of the disease the appellant was not in a position to control his actions or to understand what he was doing. The learned trial Judge rejected the evidence because of the reasons hereinafter appearing.
Counsel for the appellant has in the appellant’s brief of argument seriously criticized the reasons given by the learned trial Judge for rejecting the evidence of the medical doctor which reasons learned Counsel has succinctly and correctly in my view put as follows:-
(i) he (D.W.3) was not a specialist psychiatrist;
(ii) he did not immediately report his findings about the appellant to his employers and
(iii) he was a suborned witness.
An allegation that one is a suborned witness is a very serious allegation and such an allegation should not be accepted unless there was evidence to back it up. In the instant case apart from the mere suggestion made by counsel for the prosecution to D.W.3 in the witness box to the effect that he was a suborned witness which suggestion was vehemently denied by the witness, there was not a shred of evidence indicating in this case that D. W.3 was procured to give the evidence in question.
D.W.3. is a qualified medical doctor and in his evidence in cross-examination he said that although he was not a psychiatrist he knew a great deal of internal medicine including psychiatry. This evidence was not rebutted by the prosecution. The fact that D.W.3 was asked to produce in 1984 a report of what he did in 1982 and he did so will not by itself alone detract from the weight which ordinarily should be given to a report of that nature. And nothing more than this has been relied upon by the prosecution to discredit the report.
In my judgment therefore I agree with the learned counsel for the appellant that the reasons the learned trial Judge gave for rejecting the evidence of D.W.3 cannot be sustained. If this were all to be considered as far as the evidence of D.W.3 is concerned I would have held for the reasons I have given earlier on in this judgment that the appellant has by that evidence established the defence of insanity put up by him. However in my judgment the evidence of D. W. 3 as regards the point at issue is lacking in one essential particularity and by reason of this defect the evidence cannot be acted upon in support of the defence of insanity.
I will now point out the essential particularity which is missing from the evidence of D.W.3. The evidence of D.W.3 as to his conclusion that the appellant was suffering from a mental disease or a natural mental infirmity as a result of which he could not control his actions or understand what he was doing, was opinion evidence. I am prepared to concede it that D.W.3 being a Medical Doctor with some knowledge of psychiatry is competent to give this opinion evidence. Before giving this opinion D.W.3 said that after he had initially diagnosed the illness of the appellant as that of anxiety neurosis a kind of illness that affects the nervous system, the appellant refused to be admitted as an in-patient for closer observation but preferred to remain as an out patient. It will appear that it was after this closer observation of the appellant as an out patient that he (D.W.3) made the final diagnosis of the mental disease or natural mental infirmity of which he said the appellant was suffering. But most unfortunately D.W.3 did not share the benefit of his observations which led him to the diagnosis of the mental disease or natural mental infirmity which according to D.W.3 the appellant was suffering from. This in my judgment is a very serious lacuna which knocks the bottom out of the whole of the opinion evidence D.W.3 has given. For this proposition I refer to Section 64 of the Evidence Act which provide:
“Whenever the opinion of any living person is relevant, the ground on which such opinion is based are also relevant.”
I also refer to Regina v. Turner the Times October 23, 1974, where it was held that before a court could assess the value of an opinion it had to know the facts upon which it was based.
In my judgment therefore since the facts upon which the opinion of D. W. 3 was based as to the mental disease or natural mental infirmity he said the appellant was suffering from were not placed before the court, the evidence of D.W.3 on the issue of insanity is of no evidential value. In other words, I hold, although for different reasons, that the learned trial Judge was right in rejecting the evidence of D. W.3.
It is trite to say that an appellate Court is concerned primarily with the point whether a decision appealed against is right or wrong and not necessarily with whether the reasons for the decision are right or wrong. If the decision is right it will be upheld not withstanding the fact that a wrong reason was given for the decision.
On the issue of insanity in this appeal we are faced with concurrent findings of fact of the Court of Appeal and the trial Court and unless there is no evidence to support such a finding or there is a miscarriage of justice, this Court will not interfere with the findings. I have held that the trial Court was wrong in the reasons he gave for rejecting the evidence of D.W.3. Having myself held for different reasons that the evidence was rightly rejected I cannot say there was miscarriage of justice in this case because of the wrong reasons the trial Court gave for rejecting the evidence of D.W.3. And my analysis above of the evidence touching on the issue of insanity shows there was evidence to support the finding of the trial Court which was affirmed by the Court of Appeal that there was insufficient evidence to support a plea of insanity in this case. Once there was no sufficient evidence indicative of insanity on the part of the appellant, the absence of evidence of motive for the offence of which the appellant was accused ceases to be a relevant factor in the consideration of the plea of insanity raised by the appellant. See R. v. Inyang 12 W.A.C.A. 384: R. v. Ashigifuwo 12 W.A.C.A. 389.
So I need not dwell on the arguments for and against the absence of motive for the offence of which the appellant stood trial.
The behaviour of the appellant soon after the offence was committed as given by the prosecution witnesses was not indicative of insanity on the part of the appellant. And it cannot be said that the defence of blackout has been made out by the appellant in view of his first statement to the police on 29/10/82 wherein he gave a detailed account of what he did the previous day, the fateful day, without of course alluding to the shooting of the deceased by him. But in his later statement to the police, made on 3/11/82 over a month after the incident, he did remember that it was he who shot the deceased with a double barrelled gun.
In the result, the appellant’s appeal fails and it is hereby dismissed by me. The conviction of the appellant and the sentence of death passed on him are hereby affirmed by me.
A. O. OBASEKI, J.S.C.: The main issue in this appeal is whether the Court of Appeal and the High Court were justified in holding that on the evidence the defence of insanity was not made out by the appellant to remove his liability for the offence of murder charged against him. This issue has been dealt with exhaustively and admirably in the judgment of my learned brother Agbaje, J.S.C. delivered a short-while ago. I had the advantage of reading in advance the draft of the judgment and I agree with the opinions expressed therein on the issue. As the opinions accord with mine, I adopt them as my own and I will, for the same reasons dismiss the appeal. But before dismissing the appeal, I would add the following comments.
The fact that a person is afflicted by a disease of the mind or has natural mental infirmity without more is not per se enough for the person to enjoy the protection of section 28 of the Criminal Code Laws of Eastern Nigeria 1963 applicable in Imo State from criminal liability. To be entitled to the protection of the Insanity Clause in the section for the doing of any act or making the omission he must at the material time i.e. the time of doing the act or making the omission be deprived of the capacity to understand what he was doing or of capacity to control his actions or of capacity to know that he ought not to do the act or make the omission.
In my view, it cannot be said that the appellant who aimed at and shot the deceased to death from among the two passengers in the car could not control his action. He did not run amok and started firing his gun indiscriminately even when he saw the crowd of people attracted to the scene of crime. He only scared them away. It is common ground that he knew that it was wrong to kill and that he knew that he ought not to do the act or make the omission.
One outstanding peculiarity of the behaviour pattern of the appellant is that he remembers what he did weeks after the event and why he did it. This is despite the testimony of the appellant that “after each attack, I do not find myself able to remember all that happened to me during the period of my illness.” The testimony of the wife; D.W.2, Florence Arisa was also the same effect for she said “whenever the sickness subsided, the accused could not recollect whatever happened during the period of ill health.” D.W.3 (Dr. Augustine Ghandi Nwokedi Onyejeh) in his testimony said:
“At the time of the attack, the patient cannot control his actions like a normal person. Such a person would not be in a position to understand what he is doing when under attack.”
It is worthy of note that D.W.3 examined the appellant first on 9th September, 1982 and secondly on the 11th of September, 1982. He fired the fatal shot at the deceased on the highway on the 28th of October; 1982. D.W.3 testified about his observation on the second occasion. He said “on further questioning, I was able to confirm that the patient was having auditory hallucinations of several voices arguing and referring to him. The patient refused to be admitted for closer observation but preferred to remain as an out patient.”
It should be emphasised that what D.W.3 confirmed was auditory hallucinations. Hallucination is neither a state of insanity or insane delusion and does not attract any protection from criminal liability under our law. D.W.3 after stating that the appellant refused to be admitted as an in-patient for closer examination went on to say:
“My final observation was that the accused was developing a type of schizohernia known as sychogenic sychosis meaning a type of mental illness that is manifested with a type of dis-orientation of the patient which could affect some aspect of his senses.”
Having been denied the opportunity of a closer examination, D.W.3 did not say how he came to the conclusion or what facts made him come to that conclusion that appellant was developing sychogenic sychosis. Of course, he did not say that the appellant had developed the illness. All he observed was that he was developing it.
If appellant had not developed the disease at the time he examined him, D.W.3’s evidence is of no evidential value on the question of insanity. His explanation of what sychogenic sychosis is would have been enlightening if he found that the appellant, had been afflicted with the disease. His opinion therefore has no foundation in the facts he has given in his testimony and I agree with my learned brother, Agbaje, J.S.C. that this lacuna amply justifies the rejection of his evidence.
The onus is on the defence to establish the defence of insanity and the standard of proof in this regard is on a balance of probability.
See R. v. Wangara 10 WACA 236;
Loke v. The State (1985) 1 N.W.L.R. 1
The evidence of the accused himself is not sufficient to prove his mental infirmity (see Idowu v. The State (1972) 1 All N.L.R. (Part 2) 5, 9; Lasisi v. The State (1984) 10 Sc. 111 at 127-129.
The defence of insanity was not established before the court to entitle the appellant to acquittal of the charge of murder on ground of insanity.
I can find no merit in this appeal and for the above reasons and the reasons set out in the judgment of my learned brother, Agbaje, J.S.C., I hereby dismiss this appeal and affirm the decision of the Court of Appeal.
M. L. UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother Agbaje, J.S.C. I agree with the reasons and conclusion reached therein.
The only issue in this appeal, though put in four different ways in the appellant’s brief, is whether the evidence adduced by the appellant at the trial in the High Court of Imo State had proved that the appellant was insane. Section 28 of the Criminal Code Cap. 30 of the Laws of Eastern Nigeria, 1963, which is applicable to Imo State provides-
“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 of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions on this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.” (italics mine).
It is not in dispute that the appellant shot Reuben Okenkpa on the 28th day of October, 1982. The evidence called by the prosecution is that on the aforementioned date the deceased drove his car from Umuosu Nsulu in the direction of Umuahia and had with him in the car, as the only passenger, a lady called Comfort Nwaogu, P.W.1. Whilst driving the deceased saw the appellant, who was his kinsman and a friend, standing by the road. The deceased thought the appellant was waiting for a vehicle; he (deceased) therefore slowed down his car. The appellant who slung his double barrel gun on his shoulder, removed the gun from the shoulder and shot at the deceased. The deceased exclaimed, “my brother you have killed me”. He lost control of the car which collided with an on-coming bus before it stopped. The appellant went to the car and looked at the deceased. Seeing that the deceased was dead, the appellant nodding his head, retorted “yes”. The appellant then pointed his gun at the people that came to the scene of the accident. The people fled from the scene. The corpse of the deceased was taken to the General Hospital at Okpuala Ngwa where it was examined by a medical officer, who found 2 bullets in the ruptured chest of the deceased. There was massive blood in the cavity of the chest. The 5th, 6th and 7th ribs of the chest had been broken. The right lung was severally torn. In the opinion of the doctor, the deceased died as a result of shock and internal haemorrhage caused by the gun shot. The appellant was arrested in his house by the police. Two statements (exhibits A and B) were made by the appellant, under caution, to the police. In the first statement (exhibit A), which the appellant made a day after the incident and on his arrest, the appellant denied ever shooting at the deceased. But in the second statement (exhibit B) which was an additional statement, and was made on the 3rd of November, 1982, that is about 5 days after his arrest, the appellant accused the deceased of having an affair with his (appellant’s) wife; and confessed that he killed the deceased with his (appellant’s) double barrel gun, for the reason that the deceased “made fond of me because I have no money”.
In his defence, the appellant testified that he did not make exhibit B and denied killing the deceased. He admitted that exhibit A was made by him. He said that he used to be ill and be dizzy during the illness. Two witnesses, his wife (D.W.2) and a doctor (D.W.3), gave evidence on his behalf. They both testified that the appellant had antecedents of mental illness. D.W.2 said that the illness began in 1980. She testified that she was once accused by the appellant of having an affair with the deceased and denied that the deceased was her lover. D.W.3 gave evidence that the appellant was his patient and that he treated him for the first time on 9th September, 1982, when the deceased complained of “moodiness, dizziness, palpitation, weakness, sweating, poor sleep, poor appetite, internal heat and hearing of voices”. From his observations, D.W. 3 came to the conclusion that the appellant was developing “a type of schizopherenia known as sychogenic sychosis” which is a type of mental illness that is manifested by the disorientation of some of the senses of the affected person. D.W.3 further testified that at the time of the attack of such illness, the patient would be unable to control his actions, as would a normal person. Nor would the patient be able to know what he was doing when so afflicted.
It is significant that neither D.W.2 nor D.W.3 gave evidence on the condition of the appellant on the 28th October, 1982 when the incident which led to the death of the deceased took place. This point is very important in view of the requirement under section 28 of the Criminal Code Cap.30, that for the defence of insanity to be established, the accused person must show that he was suffering from insanity at the time of committing the offence – see Willie v. The State, (1968) 1 All N.L.R. 152 at p.155. Furthermore, section 27 of the Criminal Code provides –
“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. ”
The presumption is to be rebutted by the accused person.
Antecedents evidence of insanity or evidence of past history of insanity is res gestae (See sections 6 to 10 of the Evidence Act Cap.62) and therefore admissible and useful in determining that an accused person suffers from insanity – See R. v. Inyang, 12 W.A.C.A. 5 at p.7. But such evidence will not prove that the accused person is not criminally liable by reason of the insanity until it is shown by the defence that at the time of committing the offence he was contemporaneously afflicted with the insanity – Upetire v. A.-G. of Western Nigeria, (1964) 1 All N.L.R. 204 at p. 207; and Willie v. The State (supra) at p. 155.
In the present case although evidence had been given by the appellant, D.W.2 and D.W.3 to suggest that the appellant had been suffering from some illness akin to insanity, there is no proof that he was in fact insane.
Even if such evidence were available, it had not been proved that the appellant was suffering from the insanity at the time of shooting the deceased. In my opinion, the learned trial Judge was right in rejecting the defence of insanity raised by the appellant and the Court of Appeal acted rightly too in so confirming. For these and the reasons contained in the judgment read by my learned brother, Agbaje, J.S.C. I too hold that there is no merit in this appeal. Accordingly, the appeal is hereby dismissed and the decisions of the lower Courts are affirmed.
A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the judgment of my learned brother Agbaje, J.S.C. in this appeal. I agree that this appeal lacks merit and ought to be dismissed. I also will dismiss it.
The only point canvassed by appellant is whether the trial Judge who convicted the appellant was justified in holding, on the evidence before him, that the appellant did not make out a defence of insanity sufficient to constitute a defence to the offence of murder with which he was charged. I shall in my very brief comment, rely entirely on the facts as stated by my learned brother Agbaje, J.S.C. as I regard them sufficient for the purpose of this judgment.
It is accepted as the law that if accused pleads insanity as a defence to criminal prosecution, the onus is on such accused to lead evidence to establish such defence on the balance of probabilities-
See S. 140 (3)(c)of the Evidence Act, Cap.62
See also R. v. Echem (1952)14 WACA. 158.
This burden is satisfied by evidence showing that it is most probable that the accused was at the time of the commission of the offence insane within the meaning of section 28 of the Criminal Code –
See R. v. Nasamu (194D) 6 W.A.C.A. 74,
Loke v. The State (1985)1 N.W.L.R (Pt.1) 1.
Section 28 of the Criminal Code which provides for the defence of insanity is as follows –
“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 of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”
According to the words of this section a defence of insanity must establish that the accused was at the time of the doing of the act or making of the omission, suffering from
(a) A mental disease, or
(b) Natural mental infirmity
Sufficient to deprive him of capacity to control his actions or of capacity to know that he ought not to do the act or make the omission – See R. v. Omoni (1949) 12 WACA 511. The word “or” presumes that the conditions are in the alternative. Either mental disease or natural mental infirmity is a pre-condition. – See Onyekwe v. The State (1988) 1 NWLR 565.
Apart from the above, where the mental disease or natural mental infirmity has resulted in a delusion on some specific matter or matters, but not otherwise, the accused was capable of controlling his actions, or knew that he ought not to do the act or make the omission, his criminal responsibility for the act or omission will be based on the extent of the criminality of the act or omission if the real state of things had been such as he had been induced by the delusions to believe to exist. For instance where the delusion is that every human being is a tree which should be hewn down, no criminal responsibility arises from such a delusion. But if the delusion is that the particular human being is a witch, who is responsible for the misfortunes of the accused as in R. v. Ashigifuwo (1948)12 W.A.C.A. 389 or is a friend who is committing adultery with the accused’s wife, the delusion is such as if the real state of things had been such as he was induced to believe, the person killed would be a human being, and the state of facts will not constitute a defence.
The distinction between insanity, de lata lege and delusions resulting from insanity is that whereas in the former the accused must be shown to have been deprived by virtue of the mental disease or natural mental infirmity, of
(i) the capacity to control his actions, or
(ii) the capacity to understand what he is doing, or
(iii) the capacity to know that he ought not to do the act or make the omission.
In the case of delusions, referred erroneously in The Criminal Law and Procedure of the Southern States of Nigeria by Brett, Maclean & Aguda, as partial delusion, it seems to me the mental disease or natural mental infirmity which produces the delusion only concerns the real state of facts as they appear to him. The accused appears to understand what he is doing, knows that what he is doing or omitting to do is wrong, he is also capable of controlling his actions. Delusion is false belief or impression.
Thus where the defence of insanity is raised in a criminal charge, the evidence of mental disease or natural mental infirmity is a Sine qua non. Unless this is established a defence of insanity under section 28 is not made out. It is therefore correct to state that the affliction by mental disease or natural mental infirmity simpliciter is insufficient to establish a defence of insanity under the section. The accused relying on the defence must also establish that at the time of the commission of the offence he was either deprived of knowledge of right and wrong and cognition of what he was doing. Where he had cognition and knowledge, he must also show that he was unable to control his action – See Ngene Arum v. The State (1979) 11 SC.91.
Where the evidence of insanity is shown to have produced delusions, the defence of delusion is only available where the real state of things as they exist were such as the accused was induced by the delusions to believe. The evidence of delusion is difficult to contradict when raised; hence the onus is on the person relying on the defence. A person suffering from delusion lives in a state of fantasy, in an unreal world of imagination. It is difficult in practical terms to translate unreality into reality, to transfer abstract imagination into events based on concrete facts. This however is the position of delusions, the knowledge of which is peculiar to the person suffering it.
The evidence in the appeal before us is that Appellant who aimed and shot at the deceased, went to the car where the deceased was to verify he was dead. He did not attack any other person around or even the passenger with the deceased. He was able to control his actions. His evidence clearly demonstrated that he was aware of what he was doing and that it was wrong. See R. v. Windle (1952)2 Q.B. 826.
The medical evidence relied upon by appellant was given by DW3 who first examined appellant on September 9, 1982 and again on the 28th October, 1982. The evidence of the DW3 was that on examination appellant said he was having auditory hallucinations of several voices arguing and referring to him. The evidence of appellant’s wife who was DW2 was that whenever the sickness subsided, appellant could not recollect whatever happened during the period of ill health. The DW3 in his testimony also said, as a general comment, because he never observed appellant when under attack
“At the time of attack, the patient cannot control his actions like a normal person. Such a person would not be in a position to understand what he is doing when under attack.”
The conclusion of DW3 was that from his observation,
“….the accused was developing a type of schizophrenia known as sychogenic sychosis, meaning a type of mental illness that is manifested with a type of disorientation of the patient which could affect some aspect of his senses.”
The medical evidence, to say the least, was worthless. DW3, Dr. Augustine Chandi Nwokedi Onyejeh, who admitted in his testimony that appellant refused to be admitted for closer observation, and who had no opportunity for such observation because appellant preferred to remain as an out-patient was herein giving evidence of an observation which it is doubtful whether he actually made. The opinion of DW3 is not supported by the evidence, and amply justifies the rejection of his expert evidence by the trial Judge and the Court of Appeal.
Evidence other than medical evidence, such as the evidence of the wife of the appellant DW2 in this case is ordinarily admissible as evidence of insanity.
The DW2 under cross- examination admitted that appellant had sometime accused her of having extra marital affairs with the deceased, but she denied and rejected the accusation. There is no evidence of insanity of ancestors or blood relations as in R. v. Inyang (1946) 12 WACA. 5 R. v. Yayiye Kadikadi (1957) NRNLR. 207. The evidence of an accused person as to his insanity is not sufficient to establish the defence- See Idowu v. The State (1972)1 All NLR (Pt.2) 5, Lasisi v. The Siale (1984)10 SC lit. The onus on the appellant to establish insanity on the balance of probabilities remain unsatisfied. Appellant having failed to establish the defence of insanity raised by him, the Court of trial was right in convicting him of the offence of murder with which he was charged. The Court of Appeal was also right in dismissing the appeal. For the fuller reasons given by my learned brother Agbaje, J.S.C. and for the fact that the appeal lacks merit, I also hereby dismiss the appeal.
The judgment of the High Court affirmed by the judgment of the Court of Appeal Division sitting at Enugu, is hereby further affirmed.
S. M. A. BELGORE, J.S.C: I have read in advance the judgment of Agbaje, J.S.C., with which I agree. The onus on the appellant to prove insanity is far from being satisfied and I see no reasons why I should interfere with the concurrent decisions of the two Courts below. I also dismiss this appeal for the reasons ably given in the lead judgment.
Appeal Dismissed.
Appearances
N. Udechukwu For Appellant
AND
Mrs. N. C. Otiti, P.S.C. Ministry of Justice, Imo State For Respondent
