DOLOR v. STATE (2020)

DOLOR v. STATE

(2020)LCN/14867(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/AS/150C/2017

RATIO

CRIMINAL LAW: DEFENCE OF INSANITY

It is undoubtedly the settled position of the law that an accused person should not be held liable for his act(s) of commission and/or omission(s) by reason of his mental capacity or incapacity, in respect of any crime. This is particularly so in a crime of murder as in the instant case and which being a felony requires both the mens rea and the actus rea before the accused can be convicted. In this regard, see Section 27 of the Criminal Code Cap. C 21, Laws of Delta State of Nigeria, 2006, which presumes “every person to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved”. See also Section 28 of the same Law which states:-
“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 action, 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 acts or omission to the same extent as if the real state of things had been as he was induced by the delusions to believe to exist. PER LOKULO-SODIPE, J.C.A.

APPEAL: PRESUMPTION OF CORRECTNESS OF THE DECISION OF THE COURT

I also consider it pertinent to say that it settled law that an appellate Court is basically concerned with the correctness of the decision of the Court from which the appeal it is handling has emanated and not the reasons given by the said Court therefor. PER LOKULO-SODIPE, J.C.A.

CRIMINAL LAW: FUNDAMENTAL POINTS WHEN CONSIDERING THE EVIDENCE ADDUCED BY AN ACCUSED PERSON IN HIS DEFENCE OF INSANITY

When considering the evidence available to or adduced by an accused person in his defence of insanity, the Court has held the following radical and fundamental points to be important to be borne in mind and kept in view.
(a) The law presumes every person, including any person accused of crime, sane until the contrary is proved… (See Section 27 of the Criminal Code).

(b) The prosecution does not set out to prove what the law presumes in its favour.
(c) An accused person who raises insanity as his defence has the onus of proving such insanity cast on him. The standard of such proof is not as high that cast on the prosecution. It is not proof beyond reasonable doubt but it is proof of reasonable probability, proof sufficient to create a reasonable doubt in the mind of a fair minded jury as to the sanity of the accused.
(d) Insanity is a blanket term embracing a considerable variety of mental abnormalities, mental infirmities neurosis and Psychosis.
(e) To constitute a defence, the mental condition relied on should be such that could and did deprive the accused of capacity:
(i) To understand what he was doing; or
(ii) To control his action; or
(iii) To know that he ought not to do the act or make the omission complained of as constituting the actus reus of the offence charged. PER LOKULO-SODIPE, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

SAMUEL OYOEVWEVOTE DOLOR APPELANT(S)

And

THE STATE RESPONDENT(S)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 5/11/2016, by the High Court of Delta State sitting at Otor-Udu presided over by Hon. Justice F.N. Azinge (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively). The Appellant as an accused person was charged on a one Court Information for the offence of the murder of one Loveth Balogun punishable under Section 319(1) of the Criminal Code Cap. 48, Vol. 2, Laws of the defunct Bendel State then applicable in Delta State. He was arraigned before the lower Court on 10/1/2011, and he pleaded not guilty to the charge. In proving the charge preferred against the Appellant, the prosecution fielded 2 witnesses. On the other hand, the Appellant did not testify in his own defence but called a witness – his mother. The Appellant made a confessional statement which was admitted in evidence as Exhibit “E” in which he confessed that he was requested by his uncle Agbo Dolor and other members of their Agbo secret cult to bring the head of a woman in order to be made the

head of the market. Appellant’s mother – DW1 gave evidence to the effect that the Appellant is insane. That at times the Appellant laughs uncontrollably. That on one occasion the Appellant pursued her, (Appellant’s mother) with a cutlass. DW1 also testified to the effect that she took the Appellant to a herbal home and to a Church because she could not afford the money for treatment in a hospital. It was her testimony that the Appellant’s father is dead and she had no assistance from anybody to enable her take him (Appellant) to the hospital. DW1 also gave evidence to the effect that the deceased and the Appellant are related and that there was no previous quarrel between the Appellant and the deceased or their parents.

The lower Court in its judgment which spans pages 127-134 of the records of appeal (hereafter to be simply referred to as “the records”) having reviewed and evaluated the evidence before it, and having had the benefit of the written addresses of the Appellant and the prosecution respectively, found the Appellant guilty as charged and duly sentenced him to death as mandatorily provided for under the

Section of the law he was charged.

Being dissatisfied with the judgment of the lower Court, the Appellant initiated the instant appeal by filing at the registry of the lower Court on 30/1/2017, a notice of appeal dated 27/1/2017. The notice of appeal contains three grounds of appeal. The said grounds of appeal with their respective particulars read: –
“GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law and thereby came to a perverse decision when she held that: –
The defence who had the onus of proving insanity, cleverly did not allow the accused to give evidence and did not tell the Court the reason for not allowing him to testify. The pastor of Divine Word Church where the D.W.1 claimed the accused was taken for treatment was not called by the defence. No medical report of insanity was presented before the Court, evidence of mental health of the accused family was not adduced, no evidence of the conduct of the accused before the commission of the act was equally adduced…
All through the trial, the accused never exhibited any sign or characteristics of an unsound mind or a person without sound

mental capacity.
The evidence of D.W.1 in my view is the evidence of a person who has an interest to protect. The accused is her son. Her evidence is an afterthought, it is self-serving and not sufficient to prove insanity.
PARTICULARS OF ERROR
(i) There is no requirement of law to call the appellant or a medical expert to give evidence of insanity.
(ii) The evidence of the mental illness of the appellant by the mother (DW1) is sufficient.
(iii) The standard of proof of mental illness is on the balance of probability.
(iv) DW1’s evidence of the mental illness of the appellant was not challenged by the prosecution.
GROUND TWO
The trial Judge erred in law and thereby came to a perverse decision when she held that:
To prove insanity, the defence called DW1, the mother of the accused, who testify (sic) that the accused is insane. That he laughs uncontrollably (sic) himself sometimes and had pursued her with a cutlass. She equally testified that she took him to Divine Word Church. She told the Court that she made a statement to the police wherein she stated that her son was insane.

However, when pressed under cross examination, she denied making the statement, she said she did not thumb-print the statement that it was the police that wrote the statement.
It is trite law that the Court is not allowed to pick and choose what version of the evidence to believe in a situation such as this. The Court is enjoyed (sic) to reject the two versions.
PARTICULARS OF ERROR
(i) There is no inconsistency between the extra judicial statement attributed to DW1 and her oral evidence on the mental illness of the appellant.
(ii) The attention of the DW1 was never drawn to the portion of the extra judicial statement which is inconsistent with her oral evidence on the mental illness of the appellant.
(III) The extra judicial statement was never tendered in evidence to contradict the oral evidence of the appellant.
(iii) The inconsistency rule does not apply to the facts of this case so as to justify the rejection of the oral evidence of DW1.
GROUND THREE
The judgment of the learned trial judge is unreasonable, unwarranted and cannot be supported having regard to the evidence.”

The appeal was entertained on 30/9/2020. Learned

counsel, Estella E. Aboli in urging the Court to allow the appeal adopted the Appellant’s brief of argument dated 4/5/2017 and filed on 9/5/2017. Ex-facie the brief, it was settled by “Ayo Asala”. Learned Deputy Director, Department of Appeals, Delta State), C.O. Agbagwu, leading two other Law Officers, adopted and relied on the Respondent’s brief of argument dated 17/6/2020 and filed on the same date, in urging the Court to dismiss the appeal.

The sole issue formulated for the determination of the appeal in the Appellant’s brief of argument reads: –
“Whether having regard to the totality of the evidence on record, the learned trial Judge was right in holding that the appellant was not entitled to the defence of insanity.”

The sole issue formulated by the Respondent for the determination of the appeal in its brief of argument, is no different from that of the Appellant even though the two issues are not the same word for word. The issue reads: –
“Whether the learned trial Judge was right in holding that the appellant was not entitled to the defence of insanity?”

Having regard to the Appellant’s grounds of appeal and the sole issue he has formulated for the determination of the appeal; I am of the considered view that the Appellant is clearly not aggrieved by the decision of the lower Court convicting him of the offence of murder. It is the sentence of death passed on him by the lower Court that he is aggrieved with; and the basis for this, is that he believes that the lower Court wrongly found against him regarding his defence of insanity. The considered view expressed by me that the Appellant is not challenging his conviction for the offence of murder is supported by the decision of the Supreme Court in the case of ADAMU V. STATE (2014) LPELR-22696(SC). The Supreme Court dwelling on the consequence(s) of the successful establishment of the defence of insanity in the case under reference stated thus:-
“What then is “insanity” It is “any mental disorder severe enough that it prevents a person from having legal capacity and excuses the person from criminal or civil responsibility. Indeed, it is a legal, not a medical, standard.” Therefore “insanity defence” means an affirmative defence alleging that a mental

disorder caused the accused person to commit the crime. However, unlike other defences, a successful plea of insanity defence may not result in an acquittal but instead in a special verdict – “not guilty by reason of insanity” – this usually leads to the defendant’s commitment to a mental institution. See Black’s Law Dictionary, Ninth Edition, Page 865.”
All the arguments/submissions of or by the Appellant in his brief of argument in respect of the sole issue formulated for the determination of the appeal, were to demonstrate the wrongness or incorrectness of the finding of the lower Court that he (Appellant) did not establish the defence of insanity as set up by him. In the same vein all the arguments/submissions of the Respondent in its brief of argument, were to support correctness of the judgment of the lower Court.
It is undoubtedly the settled position of the law that an accused person should not be held liable for his act(s) of commission and/or omission(s) by reason of his mental capacity or incapacity, in respect of any crime. This is particularly so in a crime of murder as in the instant case and which

being a felony requires both the mens rea and the actus rea before the accused can be convicted. In this regard, see Section 27 of the Criminal Code Cap. C 21, Laws of Delta State of Nigeria, 2006, which presumes “every person to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved”. See also Section 28 of the same Law which states:-
“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 action, 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 acts or omission to the same extent as if the real state of things had been as he was induced by the delusions to believe to exist.

Having stated the above, I also consider it pertinent to say that it settled law that an appellate Court is basically concerned with the correctness of the decision of the Court from which the appeal it is handling has emanated and not the reasons given by the said Court therefor. Against this backdrop, I consider it pertinent to now set out the relevant portions of the judgment of the lower Court wherein it gave consideration to the defence of insanity set up by the Appellant in order to determine whether or not the said Court came to a wrong decision as alleged by the Appellant on the said issue.

The judgment of the lower Court as already stated, is on pages 127-134. Dwelling on the defence of insanity set up by the Appellant in its judgment, the lower Court stated thus: –
“The Prosecution’s case as presented by the prosecution witnesses in a nutshell is that on the 6th day of December, 2008, at about 12:30pm, at Otor-Udu, Udu Local Government Area of Delta State, the accused person lured the deceased Loveth Balogun, 11 years old from their home to the bush path where he strangled her, after which he used a knife and beheaded

her. He took the head of the deceased to a Church called Divine Word Church at Egini, in Udu Local Government Area of Delta State. When the accused was arrested on the 14th day of December, 2008, he took the police to the bush where the headless body of the deceased was recovered. That the Accused allegedly confessed that he was requested by his uncle Agbo Dolor and other members of their Agbo secret cult to bring the head of a woman in order to be made the head of the market.
xxxx
The case of the defence in summary as presented through the only defence witness D.W.1, the mother of the accused, is that the accused person is insane. Sometimes, he laughs uncontrollably. One day, he pursued his mother (D.W.1) with a cutlass. That his mother took him to a herbal home and to a Church because she could not take him to the hospital for lack of money. That his father is late and his mother had no assistance from anyone to take him to the hospital. It is also the case of the defence that the deceased and the accused are related, and there was no previous quarrel between the accused and the

deceased or their parents.
xxx
The defence formulated two issues for determination as follows: –
“(i) Whether having regard to the circumstances of this case the prosecution could be said to have proved the charge of murder against the accused beyond reasonable doubt.
(ii) Whether having regard to the totality of the evidence led before the Court, the accused person is entitled to defence of insanity.”
The prosecution adopted these two issues, the Court also adopts the issues as issues for determination.
xxx
The accused stated in Exhibit ‘E’ that his cult members requested him to bring the head of a woman in order to be given the title of Urhuhu of Udu Kingdom. He stated further in Exhibit ‘E’ that he deceived the deceased Loveth Balogun into the bush, killed her and removed her head. He carried out this act with the knowledge that if he killed and removed the head of Loveth Baloqun, the probable or natural consequence of this would be her death.
In determining whether the accused could be

held to have known that death is the natural or probable consequence of the action of the accused, the Court will take into consideration the weapon used in committing the offence, the amount of force used and the part of the body affected. See xxx
The above three factors have been considered in determining whether the accused could be held to have known that the probable or natural consequence of his action, the weapon used which is a sharp object, the force used and the part of the body affected are such that the accused was well aware and knew that death would be the only natural consequence of his action. Based on the above, I have no difficulty in resolving issue one in favour of the prosecution and hold that the prosecution has proved the essential elements or ingredients of the offence of murder against the accused beyond reasonable doubt.
In resolving issue two, that is whether having regard to the totality of the evidence led before the Court, the accused person is entitled to the defence of insanity, the Court has taken into consideration that the

accused raised the defence of insanity. Insanity as a defence puts the onus on an accused person. The burden of proof on the accused is by preponderance of evidence. See xxx
The raising of the defence of insanity provided in Section 28 of the Criminal Code of Delta State, is prima facie acceptance of the act complained of. It therefore places the legal onus on the accused to satisfy the Court that the evidence led before the Court sufficiently proves insanity. See xxx To prove insanity, the defence called D.W.1, the mother of the accused, who testify (sic) that the accused is insane. That he laughs uncontrollably (sic) himself sometimes and had pursued her with a cutlass. She equally testified that she took him to Divine Word Church. She told the Court that she made a statement to the police wherein he (sic) stated that her son was insane. However, when pressed under cross-examination, she denied making the statement she said she did not thumb-print the statement that it was the police that wrote the statement.
It is trite law that the Court is not allowed to pick and choose what version of the evidence to believe

in a situation such as this. The Court is enjoyed to reject the two versions. Evidence to establish insanity as a defence should adduce past history of the accused; conduct immediately before the killing of deceased, observation of prison warders who had custody during trial; medical evidence; reputation and general behaviour on sanity or insanity with relatives in accused’s neighbourhood and mental health of the accused’s family. See xxx
The defence who had the onus of proving insanity, cleverly did not allow the accused to give evidence and did not tell the Court the reason for not allowing him to testify. The Pastor of the Divine Word Church where the D.W.1 claimed the accused was taken for treatment was not called by the defence. No medical report of insanity was presented before the Court, evidence of the mental health of the accused family was not adduced, no evidence of the conduct of the accused before the commission of the act was equally adduced.
It should be noted that the standard of proof of insanity on an accused is the same as in civil proceedings which is premised

on preponderance of evidence. See xxxxx
In exhibit ‘E’, the accused gave a vivid account of how he had a meeting with his Agbo cult members whose names he mentioned including his uncle Agbo Dolor and the Pastor of Divine Church, Egini Town. How after the meeting, he was requested to bring the head of his new born baby but he refused. After a short time, the baby died and was buried but was exhumed and the head cut off. When he saw the grave was tampered with, he dug the grave only to find that the baby’s head was cut off, he reburied the baby. Later, he was requested to bring the head of a woman, he did not find the head of a woman until the 6th day of December, 2008 when he deceived the deceased Loveth Balogun into the bush, killed and beheaded her. He kept the body inside the bush. He stated further that the purpose of the head was for his cult to perform ritual for the Urhuhu market to expand and have patronage so government would build permanent structures in the market. His reward is that he would be given the title of Urhuhu of Udu Kingdom.
This narrative is not that of a man

with an unstable mind. It does not follow the trend of an insane person. Even the account of how the accused took the police and P.W.1, the uncle of the deceased to the bush where the headless body was recovered shows a man with capacity of mind in committing the act of beheading the deceased. All through the trial, the accused person never exhibited any sign or characteristics of an unsound mind or a person without sound mental capacity. The evidence of D.W.1 in my view is the evidence of a person who has an interest to protect. The accused is her son. Her evidence is an afterthought, it is self-serving and not sufficient to prove insanity.
In law, where the accused confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. See xxx
Confession is stronger evidence of guilt on the part of an accused. It is stronger than the evidence of an eye witness. Exhibit ‘E’, the extra judicial statement of the accused is positive, direct and properly proved by the evidence adduced by the prosecution witnesses. The

confession is very coherent, I therefore resolve issue two in favour of the prosecution and hold that the defence of insanity does not avail the accused. It is absurd that other cult members mentioned by the accused in Exhibit ‘E’ were not charged along with the accused. The statement of the accused to the effect that his new born baby who died after his cult members requested for the head, was buried, exhumed and her head cut off by the cult members was not investigated by the police. It is sad to note, that an 11 year old girl was brutally and gruesomely murdered in such a heinous manner and the police released the persons mentioned by the accused in his statement as having hand in the murder.
On the whole, I have come to the irresistible conclusion that the prosecution has proved its case against the accused beyond reasonable doubt as required by law. Consequently, the accused person is found guilty of the one count of murder against him.
ALLOCUTUS
xxx
COURT:
I have considered the allocutus of the Learned Counsel for the defence, however the section upon which the

Accused was charged does not prescribe a minimum sentence.
Section 319 of the Criminal Code of Delta State, 2006 provides: –
“Subject to the provisions of this section any person who committed the offence of murder shall be sentenced to death.”
From the above reproduced section, the Court has no discretion to exercise. Therefore the Court would pronounce the sentence as provided by the law.
SENTENCE – You SAMUEL OYOEBVWOTE DOLOR is hereby sentenced to death by hanging. You shall be hung by the neck until you be dead. May the Almighty God have mercy on your soul.
This is the Judgment of the Court.”

The Appellant has argued to the effect that the lower Court was wrong in expressing the view that the two versions of the story of DW1 were such that it could not choose one as against the other. That it is enjoined to reject the two versions. The law is very clear as to the use a Court can properly put a previous statement of a witness to the Police. It is just to impeach the credibility of the witness in question. Such a statement does not establish the truth of the account contained therein. In this regard see the

case of OLAOYE V. STATE (2018) LPELR-43601(SC) wherein the Supreme Court stated thus:
“The previous statement of the Pw.1 was tendered as Exhibit A without any effort made to draw his attention to any portion thereof for purposes of contradiction. That is the condition precedent for using the previous statement of a witness to contradict him. The position of the law is that, before any contradiction can be established between the evidence of a witness and the previous statement made by the witness, the statement must be brought to the attention of the witness for his explanation in accordance with Sections 199 and 209 (now Sections 232 and 235) of the Evidence Act. Contradiction between the testimony of the witness and his previous statement, in the instant case Exhibit A, cannot therefore be established without compliance with the mandatory provisions of the Evidence Act, aforestated: KWAGHSHIR v. THE STATE (1995) 3 NWLR (pt. 386) 651; BALOGUN v. A. G, OGUN STATE (2002) 2 SC (pt. II)”
The evidence of DW1 is on pages 122-124 of the records. No previous statement of the said witness was tendered as evidence, talk less of the witness being

confronted with any part of the said statement that went to show any inconsistency between her oral evidence and anything contained in her previous statement for the purpose of impeaching her credibility. I must however quickly add that what the lower Court stated as regards the evidence on oath of DW1 vis-a-vis her untendered previous statement to the Police therefore amounted to a misdirection that has not been shown to have resulted in any miscarriage of justice. This is particularly so as it is obvious from the portion of the judgment of the lower Court re-produced above, that the said Court glaringly evaluated the evidence of DW1, before it eventually held that the defence of insanity was not established by the defence.

Against the backdrop of the position expressed above, the question that begs for an answer is whether or not the Appellant established his defence of insanity given the evidence of DW1, which I can safely say was unchallenged by the prosecution. The answer to the above poser in my considered view, can be said to be provided by the case of ADAMU V. STATE (supra) wherein it was held amongst others that it is only where the prosecution

has somehow acknowledged the insanity of a person who raised the defence, that such a person is not obligated to establish his defence of insanity. In this regard the Supreme Court stated thus: –
“However, the law is clear that in all trials of culpable homicide, the Court has an onerous duty to consider:
(a) all the defence raised by the evidence whether the accused person specifically put up such defence or not; and
(b) any defence raised by an accused person no matter how weak, inconsequential or stupid it may appear must be given due attention.
xxxx
From the evidence of the prosecution’s witnesses, in particular, PW3, the appellant was known from childhood to have exhibited that he has some mental problems. Indeed, immediately preceding the incident in question, the appellant was reported to have, without any justification, resorted to beating his younger sister before he was separated by PW3, their elder brother. Similarly, immediately after the appellant had killed the deceased, he was found outside the house licking the blood on the knife used to slaughter the

deceased saying “Allahu Akbar”
What is more, the appellant did not run away or go into hiding. He was found outside and arrested by the police. All these appear rather unnatural and may only show that the appellant even though he actually did the act, but may be incapable of knowing or comprehending the actual nature of the act or that it is contrary to the law.
Perhaps this argument in the appellant’s favour may collapse in the presence of the act of the same appellant in throwing away into the latrine, the weapon of the crime, that is, the knife used to slaughter the deceased. Yet, he was again the person who without being forced led the police to the latrine to recover the said knife. The evidence of the appellant’s misbehaviour before and after the act complained of should be a defence the Court of trial was duty bound to consider, even though not directly put up by the appellant as a defence.
It is apposite at this juncture to consider the provisions of Section 51 of the Penal Code which provides as follows: “xxxx”
My Lords, I am of the view that if the trial

Court and of course the Court below had considered the defence of unsoundness of mind coming from the testimony of the prosecution witnesses and the above provisions of Section 51 of the Penal Code, it may have been clearer to them that the appellant did not seem to be in control of his action.
Ordinarily, it has been held that evidence to establish insanity as a defence should adduce past history of the accused; conduct immediately before killing of the deceased; observation of prison warders who had custody of the accused during trial; medical evidence, reputation and general behaviour on sanity or insanity with relatives in accused’s neighbourhood, and mental health of the accused family. See; xxxxx
When considering the evidence available to or adduced by an accused person in his defence of insanity, the Court has held the following radical and fundamental points to be important to be borne in mind and kept in view.
(a) The law presumes every person, including any person accused of crime, sane until the contrary is proved… (See Section 27 of the Criminal Code).

appellant had any mental problem came from the prosecution witness under cross examination. The witness had stated that he knew that the appellant had some mental problem from childhood.
By the above evidence coming from the prosecution witness, it means that the prosecution was aware of the mental imbalance of the appellant. In my view, the appellant no longer had the onus to prove his mental status at the time the incident took place.
In Yahaya Mohammed v. The State (1997) 9 NWLR (Pt. 520) 169 at 201 this Court, per Mohammed, J.S.C. in considering defence of insanity opined that in a murder case where the accused puts up a defence of insanity, the cardinal issue is whether the accused was sane or insane in the legal sense, at the time the act was committed. This is a question of fact dependent upon the previous and contemporaneous acts of the accused. In that case, the Court went further to state as follows: “The appellant by the description of his act at the time of the commission of the offence could not be adjudged to be a person in control of his acts. His behaviour was definitely abnormal ….
It is relevant to

observe that the prosecution had not called any evidence to counter any suggestion that the appellant was not normal and sane at the time he committed the offence. This could be done by putting him under doctor’s observation or that of a prison warder where he was detained pending trial. All these will help in knowing whether the appellant had mens rea to commit the offence charged.”
xxxx
The verdict of the trial Court ought to have been “not guilty for the reason of insanity” hence should have referred him for psychoanalysis in a Psychiatric Unit of a hospital at the pleasure of the Governor of the State. In other word, the prosecution did not appear to have proved the case beyond reasonable doubt as it should, in view of the evidence of mental imbalance that came from its witness. By the description of his act at the time he committed the offence, he could not be adjudged to be a person in control of his acts. His behaviour was no doubt abnormal and unnatural.
Therefore, the Court below was, in my view, wrong to have held that the appellant understood what he was doing and also

knew that what he was doing was wrong and contrary to law. In my view, the behaviour of the appellant immediately before and immediately after the commission of the crime did suggest unsoundness of mind and mental imbalance on his part. The appellant ought not have been sentenced to death as the trial Court did. And the Court below erred to have affirmed the decision of the trial Court.
Accordingly, and in the final analysis, this appeal succeeds in part. The appellant is adjudged not guilty for the reason of unsoundness of mind. The judgment of the Court below which affirmed the conviction and sentence of the trial Court is hereby set aside.”
In the instant case on appeal, the Respondent did not in any guise introduce any kind of evidence suggestive of the fact that the Appellant was suffering from any kind or form of insanity. It was the defence that did this for the first time during the cross-examination of PW1 and PW1 having stated that he has known the Appellant for 10 years and was not aware that the Appellant has mental problem; further stated that he saw the Appellant the day after the incident for which he was arrested, at the Police

Station. That he was then making a statement to the Police and mentioning names and that he was sane. I am of the considered view that given the answers the defence elicited from PW1 under cross-examination, the defence cannot be said to have established the Appellant’s defence of insanity by the unchallenged evidence of DW1. This is more so as the chasing of DW1 by the Appellant with a cutlass was not even related to any particular point in time. The lower Court in my considered view was therefore very correct in finding the Appellant not to have established the defence of insanity he sought to set up through DW1 – his mother.

Flowing from all that has been said is that the sole issue formulated by the Appellant for the determination of the instant appeal must be and is hereby resolved against him; while the sole issue formulated by the Respondent for the determination of the appeal is resolved in its favour.

In the final analysis, the instant appeal is unmeritorious and it fails. It is hereby dismissed. The judgment of the lower Court convicting the Appellant for the offence of murder and sentencing him to death by hanging therefor,

appealed against, is hereby affirmed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the lead Judgment as prepared by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A., and agree that the appeal has no merit.

The Appellant, who had confessed to his complicity in murdering his victim for cult purposes of enrichment and status acquisition, and vide Exhibit “E” was unable to prove insanity as tauted by DW1 (his mother) who had alluded to the Appellant’s uncontrollable laughter and a one-time chase of her with a cutlass at a non-defined time as insignia of the mania of insanity on the part of the convict/Appellant.

The Appellant’s grouse against the sentence to death inspite of the so-called evidence of insanity cannot avail as, there was, in law, no legal proof of insanity and of the category that takes away the presumption of sanity that enures to every person. Section 27 of the Criminal Code Cap C. 21 Laws of Delta State of Nigeria, reproduced in the lead Judgment clearly re-enforces the presumption that every person is of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved.

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The Defence/Appellant had the onus to prove the contrary. This could be by medical evidence relevant to the period of the act complained of.
The blanket assertion of insanity and claim of lack of money to resort to Hospital treatment but to church and Native or herbal resorts as made by DW1, for the Appellant did not constitute such legal Defence; just as the relationship between the prosecutrix and the Appellant and good relationship between the parents of the duo made no difference. It may be the good and close relationship that was exploited to lure the 11 year old victim into the bush to be beheaded in her innocence and lack of suspicion after a stab to death.
The attempt at setting-up the defence of insanity could not have sailed. It was rightly discountenanced by the trial Judge.

Appeal is dismissed and the conviction for murder and the sentence thereon is affirmed.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read before now a draft copy of the judgment delivered by my learned brother AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. and I agree with the reasoning and conclusion in the judgment.

Appearances:

Estella E. Aboli For Appellant(s)

C.O. Agbagwu (Deputy Director, Department of Appeals, Delta State) with him, M.U. Dibia (Assistant Chief State Counsel) and Eyesio (Senior State Counsel) For Respondent(s)

LawCare Nigeria

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