SANUSI MOH’D v. KANO STATE (2013)

SANUSI MOH’D v. KANO STATE

(2013)LCN/6141(CA)

RATIO

MCNAGHTAN RULES: DEFENSE OF INSANITY

Under the McNaghtan Rules, it is said that an accused person may successfully rely on the defence of insanity even if they knew the nature and quality of their acts but did not know that they were “doing what was wrong,” i.e., doing something “contrary to law” or “moral wrongness.”

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

SANUSI MOH’D Appellant(s)

AND

KANO STATE Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A.:(Delivering the Leading Judgment): The Appellant was arraigned before the Kano State High Court on 26/7/2005 on a one Count Charge of the offence of Culpable Homicide punishable with death. The charge reads:

“That you Sanusi Moh’d, of Brigade Quarters, Kano, on or about the 21st day of December, 2001 at Brigade quarters within Kano Judicial Division, did commit the offence of culpable homicide punishable with death to wit; you felled and thereafter struck with concrete blocks several times the head of one Bashir Jibrin which resulted in his death therefore, committing an offence contrary to section 221 of the Penal Code.”

He pleaded not guilty to the charge on the same day. Hearing in the matter commenced on 1/12/2005. The Prosecution called three witnesses, while the Defence presented five witnesses.
At the close of defence case, the parties, through their Counsel, addressed the Court by filing written addresses which were duly considered by the trial Court. On 30/9/2011 the trial Court in its judgment, held thus:

“There is no direct evidence which shows that at the time of the commission of the offence the accused was out of his mind and did not know the nature of what he was doing. It is not enough for the accused to merely plead I sanity (sic) at large, he ought to relate it to the tome (sic) the alleged offence was committed. It is my view therefore that the defence of insanity pleaded by the accused person cannot avail him and I so hold. From what has been adduced before me both oral and documentary, the prosecution has established its case beyond reasonable doubt. Consequently, the accused is hereby convicted as charged. The accused is hereby sentenced to death. He is to be hanged by neck until he dies.”

The Appellant was startled by this pronouncement that he lodged an appeal against the same by his Notice of Appeal dated 15/12/11 and signed by him. The record of appeal was compiled and transmitted to this Court on 24/4/12. The respective learned Counsel for the parties filed and exchanged their Briefs of Argument which were adopted at the hearing of this appeal.
In the Appellant’s Brief of Argument prepared by his learned Counsel, Nassir Abdu Dangiri, the lone issue propounded for determination of this Court is:

“Whether on the evidence before the Court, the defence of insanity under section 51 of the Penal Code was established and available to the defence.”

The Respondent adopted the lone issue propounded by the Appellant. It was contended on behalf of the Appellant that the Learned trial Judge erred in law and misdirected himself when he failed and/or neglected to consider the behaviour of the Appellant before the incident, at the time of the incident, and, after the incident as decided by the Supreme Court in Kure vs. State (1988) 2 SC Part 11 page 108 at 110 paragraph 25 (1988) 1 NWLR Part 71 page 404. He stressed that the behaviour of the Appellant before and at the time of the incident was given by D.W.1, while his behaviour after the incident was given by D.W.2 and D.W.5. He reproduced the provisions of section 51 of the Penal Code, Cap 105, Laws of Kano State (1991) which provides that “nothing is an offence which is done by a person who at time of doing it by reason of unsoundness of mind is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law”, and, emphasized that the record of appeal is replete with instances where the defence of insanity was raised. He relied on the evidence of D.W.1, D.W.2, D.W.4 and D.W.5. He also made reference to the judgment of the trial Court at pages 101-107, 112-114 of the record and submitted that the evidence of the witnesses and the findings of the learned trial Judge raised a serious question as to the state of mind of the Appellant. He emphasized that the patients treated in Psychiatric Hospital are people who are of unsound mind, i.e. people with mental diseases. He argued that notwithstanding the findings, the trial Court suddenly at pages 116-117 and 118-119, remarked that there is no direct evidence which shows that at the time of the commission of offence, the accused was out of his mind and did not know the nature of what he was doing, that it was not enough for the accused to merely plead insanity at large, he ought to relate it to the time the offence was committed. He contended that this differs from the position of the law as adumbrated by the Supreme Court in Kure vs. State (supra), where it was held that in insanity cases, it is not sufficient for the Judge to consider only the behaviour of the accused before the incident. He must consider his behaviour at the time of the incident and after the incident. He also highlighted the Supreme Court decision in Karimu vs. State (1989) 1 NWLR Part 96 page 124 at 147, per Obaseki J.S.C., that any un-contradicted evidence of mental illness with abnormal behaviour or loss of capacity to control his action discharges the burden. By that, it means if there is uncontradicted evidence that he was mentally ill, behaving abnormally, threatening the lives of others and has been receiving treatment for the illness without the cure, the burden is discharged. The proof can come from either the prosecution witnesses or defence witnesses.
Learned Counsel further referred to the dictum of Obaseki, J.S.C. that a sane and normal person is not taken to the Psychiatric Hospital for treatment and where a person is taken to Psychiatric Hospital and detained for treatment, the implication is that he is insane. The presumption of insanity under our law is thereby rebutted and displaced. He also referred to the remarks by Nnaemeka, J.S.C. in Kure vs. State (supra) at pages 117-118 that, “evidence of D.W.1 that the Appellant stripped himself naked in public’ confirmed that the Appellant had the Psychiatric treatment for a period of nine to ten months. Moreover, the statement of the Appellant to the Police, Exhibit 2 suggests that he was probably insane. The learned trial Judge did not properly advert his mind to the requisite standard of proof and the cumulative effect of the above pieces of evidence. He, then, urged this Court to hold in the like manner, allow the appeal and acquit the Appellant of the offence of culpable homicide by reason of unsoundness of his mind and order that he be detained in a safe place at the pleasure of the Executive Governor of Kano State.

In the Respondent’s response, it was contended that no issue relating to insanity was mentioned in grounds nine, thirteen, fourteen and fifteen of the Appellant’s grounds of appeal and as such those grounds ought to be struck out. Learned Counsel for the Respondent Mukhtar Sani Daneji Esq., Director Public Prosecution, Ministry of Justice, Kano relied on the decision in Dakolo vs. Rewane (2011) SCNJ 397 Regarding the defence of insanity trumped up by the Appellant, learned Counsel submitted that to establish a defence of insanity, it must be clearly proved that; (a) at the time of committing the act, the accused was suffering from a defect of reason from a disease of the mind so as not to know the nature and quality of his act; or (b) what he was doing was wrong. He argued that the burden of proving the same in defence to criminal charge lies on the accused and it can only be discharged by tendering evidence suggesting that it was most probable that he was incapable of knowing the nature, of his act. He referred to R vs. Yayiye 1957 NRNLR (without page citation). He referred to the testimonies of PW1, P.W.2, and P.W.3 and argued they did not reveal the accused was suffering from mental illness. He further referred to the statement of the Appellant in Exhibit “A” where he mentioned that they used to go hunting for cats at night, and, the manner by which the Appellant convinced the deceased to follow him despite P.W.1’s reservation because of the timing and the answer of the Appellant, tend to suggest that on that fateful day and time, the Appellant was of sound mind. Learned Counsel cited the case of Guobadia vs. State (2004) 6 NWLR Part 869 page 360 in which the Supreme Court stated that any evidence of insanity tendered by an accused person himself is suspect and is not usually taken seriously, and stressed that Appellant did not adduce sufficient evidence to support the defence of insanity particularly at the time of his action. Counsel, also, turned to the evidence of D.W.1 where he merely stated that in 2001, he took the accused twice to the Psychiatric Hospital. The first time he spent about two months, no date was given, while the second time was in April. Also focused on, were the testimonies of D.W.2. and D.W.3. He stated that D.W.3., claimed ignorance of the mental condition of the accused having spent only six months in the Hospital. He concluded by saying that they could not trace the accused file.

Learned Counsel submitted that there was no medical evidence which is the surest way of establishing insanity. The only evidence from the Hospital was Exhibit “E” which was shown to D.W.4., during cross examination and he said, it did not bear the date of admission. He expressed that the argument of the appellant that the trial Court was wrong to have convicted him in spite of the fact that it believed the evidence of D.W.1., D.W.2 and D.W.4 is not tenable. Learned Counsel submitted there was no serious question as to the state of mind of the appellant particularly at the time of the act. He submitted that by the trial Court making reference to the case of Okeke vs. The State (2003) FWLR Part 159 1381 at 1429, is very clear on the point and does not require interpretation. He referred to the case of Gbadamosi vs. Diaro. (2007) 3 NWLR Part 102 page 282 at 302 where Musdapher J.S.C., (as he then was) opined that when trial Court appraises the facts of a case, it is not the business of the appellate court to substitute its own for the view of the trial Court.

He, further drew the attention of this Court to the case of Kure vs. State (1988) 2 SC Part 11 page 108 at 110 paragraph 25 (1988) 1 NWLR Part 71 page 404, per Obaseki, J.S.C., relied on by the Appellant’s Counsel, and, argued that in the instant case, there was no direct evidence pointing to the insanity of the Appellant at the time of the act and, there was, equally, no Psychiatric report in the case at hand. He then urged that this appeal be dismissed.

The established law is that a person is considered insane and is not responsible for criminal conduct if, at the time of the offence, as a result of severe mental disease or defect, he was unable to appreciate the nature and quality or the wrongfulness of his acts. Because willful intent is an essential element of most offences, a person who is insane is not capable of forming such intent. It must be noted that mental disease or defect does not alone constitute a legal insane defence, the accused has the burden of proving the defence of insanity by clear and convincing evidence. By putting up the defence of insanity, it seems clear that the Appellant is not denying the commission of the offence of culpable homicide punishable with death but is only asserting that the homicide was committed without any criminal intent by reason of his insanity or unsoundness of his mind at the time of commission of the crime.
Section 51 of the Penal Code (supra), as rightly asserted by the Appellant’s Counsel, provides that nothing is an offence which is done by a person who at the time of doing it by reason of unsoundness of mind, is incapable of knowing the nature of the act or that what he is doing is either wrong or contrary to law.
In Diala Amako vs. The State (1995) 6 NWLR Part 399 page 11, Iguh, J.S.C, stated that the general rule is that 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. An accused who contends that he is insane or indeed, that he suffers from insane delusion, has the duty to rebut the presumption of law which regards him as sane until the contrary is proved. The onus therefore rests on him to prove insanity or insane delusion.
In order to establish the defence of insanity, the defence must first and foremost show that the accused was at the relevant time, suffering from either mental disease or from a 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 action; or (c) to know that he ought not to do the act or make the omission. See Ani vs. The State (2002) 10 NWLR Part 776 page 644.It is further established that whether an accused is sane or insane in the legal sense, at the time when the act was committed, is a question of fact to be decided by the trial Judge, and not by medical men however eminent, and, is dependent upon the previous and contemporaneous acts of the accused. It was further held therein that although medical evidence is usually of great assistance in the establishment of insanity, a Judge may, none the less, make up his mind on the issue in spite of such expert evidence taking into consideration the totality of all the evidence tendered before the Court. However, due weight ordinarily ought to be attached to such medical evidence.

Further, in Ejinima vs. The State (1991) 6 NWLR Part 200 page 627, Akpata, J.S.C. invoked the assertion of Oputa, J.S.C. in Onyekwere vs. The State (1988) 1 NWLR Part 72 page 565 at 579 where he stated that the salient facts required for establishing insanity under section 28 of the Criminal Code are follows “(1) evidence as to the past history of the accused; (2) evidence as to 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 relatives about the general behaviour of the accused and the reputation he enjoyed for sanity or insanity in the neighbourhood; (5) evidence of Medical Officers and/or Psychiatrists who examined the accused; and (6) evidence showing that insanity appears in the family history of the accused. Akpata, J.S.C., stated that the surest way of establishing insanity is by medical evidence. Proof of insanity can however be established from compelling evidence of eye witnesses, particularly relations of the accused, relating to his general behaviour before, during and after the incident. The problem however in relying on the evidence of relatives only without medical report or evidence is that there are certain traits in human beings, to varying degree which are sometimes mistaken for insanity. Some of them are irascibility, irritability, eccentricity and querulousness. Persons afflicted with any of these traits to a high degree are easily spurred to violence and wrongly regarded as being insane by the uninformed.
Further, in Ani vs. State (supra) Akpata, J.S.C., referred to the expressions of Aniagolu, J.S.C., in Sanusi vs. The State (1984) 10 SC 166 at 177 on how insanity could be proved and such other facts and circumstances which will help the trial Judge come to the conclusion that the burden of proof of insanity placed by the Criminal Code or the defence has been amply discharged.
A person is unable to make a decision if he cannot (1) understand the information relevant to the decision, retain the information or use or weigh that information as part of the process of making the decision or communicating the decision. The defence is required to show either by clear and convincing evidence or by a preponderance of the evidence that the accused is insane.
As I earlier stated, the onus of proving insanity is on the accused who should make available evidence to satisfy the Court that he was insane at the time he committed the offence. It must be shown that the accused, at the time of killing the deceased was in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he was doing, or the capacity to control his action or of capacity to know that he ought not to do the act. In the instant appeal, the major trump card tossed by the defence in relation to his alleged mental incapacity or infirmity is in the evidence provided by D.W.1 and D.W.2.

D.W.1- Abdullahi Moh’d Tsamiya, a brother to the accused person said the accused has a mental problem. He took him to Dawanau Psychiatric Hospital about 9 years ago. The Hospital card he wanted to tender was re-issued on 4/6/2010, and it was admitted as Exhibit “E” as well. He first took him to Hospital in 2001. At that time, he was hospitalized for two months. The second time he took him to the Hospital was in April, 2001 but when he went there to see him, he was told the accused had escaped from there. D.W.2 talked about the accused person’s mental ill health display inside the prison cell.

D.W.3 – Dr Chukwuri Onwumelu, a Medical Doctor, said he had been in the Hospital for six months then. They could not lay hands on the record of the accused person in the Hospital. He identified Exhibit “E” issued on 17/9/2004 but which was re-issued on 4/6/2010. He stated that when their staff checked their records they could not locate any of the two files. He said up till then, the accused person’s folder could not be traced.

D.W.4 – Hussaini Abdul Aliyu, a staff of the Kano State Psychiatric Hospital, Dawanau, said he knew the accused person in 2001 when he was brought to the Hospital by his relative and was seen by a Doctor for treatment. He was shown Exhibit “E1” and he said it was opened on 17/9/2004, it is a Folder Reference Card which is different from an Out-Patient Reference Card. He explained that the moment a patient is brought to the Hospital he is given an Out-Patient Card which will be given to a Doctor. It is only when the Patient is to be admitted that a Folder will be opened for him. He said that the Accused was admitted in the Hospital and a Folder was opened for him. He observed on the face of the said Exhibit “E1” that it does not bear the alleged date of admission, but he explained it could take 5 years to open a folder. He further explained said that Exhibit “E1” is a re-issued card and he will not be surprised to hear that the accused was around the Hospital in 2004. He claimed that they keep the Hospital record diligently, but when D.W.3 approached him with Exhibit “E1”, they searched and could not trace the folder.
D.W.5 – Sanusi Muhammed, the accused, said that Bashir is his friend; he was in the house that hour. He does not know why he is before the Court, he is hearing the death of Bashir for the first time in Court, and then queried how he could have killed his friend. Under cross-examination, he remembered that his name is “Sanusi Muhammed”, his mother’s name is ‘Amina’, that she lives at Tudun Murtala. He lives in the Central Prison Kano and has been in there for 9 years then. He does not know why he has been in prison all these while and if he is released he will go to his parents.
I must observe that the evidence of D.W.1, even though, very plausible and compelling, is by every logic, bereft of the requisite facts for establishment of the accused person’s mental incapacity or insanity. He claimed he took the Appellant to a Psychiatric Hospital in Dawanau in 2001, but, the card he tendered, id est, Exhibit ‘E1’ was said to have been issued in 2004 and re-issued in 2010. The murder of Bashir Jibrin took place in December, 2001. There was no medical history or medical evidence tendered as to the mental capacity or insanity of the Appellant as at the time he snuffed life out of the deceased; i.e., Bashir Jibrin. There was no evidence from any of their neighbours supporting that indeed he had been acting in an insanely manner prior to the murder incident. The father of the victim, P.W.2, said that the accused is the son of his neighbour, he was not aware the Appellant was taken to any Psychiatric Hospital and he would be surprised to learn that he had been taken to such Hospital. It must be reiterated that what the accused must establish is that he suffered from a mental disorder at the time of the alleged crime.

Therefore, an accused will be able to successfully rely on the defence of insanity if he can show that due to a mental disorder, they lacked either the capacity to know that their conduct was legally wrong or that it was morally wrong.
The offence of culpable homicide punishable with death was committed in December, 2001. It is instructive to note that there is nothing on the record showing at the time the Appellant was arrested, there was any information to the Police indicating his alleged mental incapacity or supporting that he was delusional. Even when his confessional statement was being tendered, it was only objecting to on the ground that it was not voluntarily made, that it was made under coercion.

D.W.3 and D.W.4 were categorical on the impeccability and diligence of the staff of the Kano State Psychiatric Hospital in keeping Hospital records. D.W.4 said they keep record in the Hospital diligently. They could see neither the Appellant’s alleged folder of 2001 nor of 2004. D.W.3, also, said he believed in the ability of their staff to do their work well. D.W.3 who gave his evidence on 3/11/2010 said he did not know the accused. As at that 3/11/2010, he had started working in the Hospital. Exhibit “E1” was re-issued on 4/6/2010. He said if on the 17th September, 2010, the accused was ever taken to the Hospital, the accused was in prison custody.
The record bears out that in 2001 when the heinous crime was committed, the accused was immediately arrested. The questions are; ‘if he has been in prison custody since 2001, why was no Prison Warder invited to give evidence as to the mental capacity or the behaviour of the Appellant all these while he has been in prison, that is, before and during the time of the trial? If he was taken to any Hospital in 2004 and 2010 that must have been done by the Prison Officials because he has been in the prison custody since 2001 he was arrested in connection with the death of Bashir Jibrin. There was no medical report from any Doctor who supposedly treated him in the past for his psychiatric problem. Not even any of their neighbours testified to confirm that he had been acting insanely for some time or was delusional.
I must say that production of a Hospital Registration Card without more cannot constitute proof of hospital admission in the said Psychiatric Hospital or treatment of the Appellant of any mental infirmity. Fancy, the evidence of D.W.2, Ahmed Musa Charanci, a former Kurmawa Prison inmate who was discharged from prison in 2007 saying that when the Appellant was brought into the prison in 2001, he was mentally defective because he was stripping his clothes and throwing them away and stayed naked. If I may ask, did it lie in the mouth of the former prison inmate, i.e., D.W.2 to establish that the Appellant was mentally defective? Where were the Prison Warders in whose custody the Appellant had been since 2001? There is no record suggestive of any fact that they were subpoenaed to come and testify as to the behaviour of the Appellant while in prison. Why was his mental incapacity not brought to the knowledge of the Police Investigation Officer at that material time? Why must they wait until 2005 when trial in the charge began?
It is worthy to recognize that there is every possibility one may feign madness in order to escape culpability or pretend he was mad, and, even act it out to convince the Court. Feigned insanity is the stimulation of mental illness in order to avoid or lessen the consequences of a confrontation or conviction for an alleged crime because it is as easy to fake a mental illness as it is to fake a physical one. All a malingerer needs is to act the illness out. Therefore, I do not think it is in every situation, defence of insanity is raised, it will avail the accused. The fact that the Appellant acted abnormally before the Court notwithstanding, they may all be gimmicks. The Appellant could have possibly feigned madness for purposes of deceit or evasion or to avoid the wrath of the law. He was able to remember under cross-examination, amongst other things, the street his mother lived in, that he had been in prison for 9 years, but, feigned ignorance of the death of Bashir Jibrin. He seemed to have deliberately shut out of his mind, what transpired on the 21st December, 2001, how he forcibly woke Bashir up in spite of P.W.1’s protest and forced him again to escort him to an unknown destination. The deceased head was shattered with block and he laid in the pool of his own blood, and the Appellant did not bother to go to the deceased family to give account of their outing, rather he stayed away until his arrest by the Police. This is nothing but a callous and wicked murder. The Appellant is nothing but a malingerer, playing a drunk person and stripping himself.

As earlier observed, there was no evidence adduced by the Appellant indicative of the fact that, at the time of commission of the offence, he was of unsound mind incapable of knowing the nature of his act or that he was doing what was wrong or contrary to the law. His confessional statement clearly proved he was fully aware of the implications of his actions. It is settled that a free and voluntary confession of guilt by an accused person, if it is direct or positive, was duly made and satisfactorily proven, is sufficient to warrant a conviction, even if there is no corroborative evidence. A conviction based on such a confession will not be quashed on appeal merely because it is based entirely on the evidence of confession by the Appellant provided that the Court is satisfied with the facts and circumstances in which the confession was made. It was premeditated because he suspected the deceased of having an affair with his step-mother, because of that he decided to kill him.
There was no medical report of any Psychiatrist Doctor who had supposedly, been treating him or under whose care he had been or who had examined him. To me, the so called defence of insanity was trumped up to deceive the Court. The Appellant should bear full responsibility for his actions, and that was evidenced in the decision of the trial Court. As the trial Court found, the Appellant merely pleaded insanity without any medical report to support or adducing any evidence through their neighbour or even the Prison Warders in whose custody he had been since 2001. I must observe that notwithstanding the remarks made by the trial Court about the evidence of D.W.1 and D.W.3, that they remained unshaken as far as the mental condition of the accused person was concerned, or the evidence of D.W.4, which, to me, were irreconcilable given the hollow evidence of the defence tendered before the trial Court, they can never detract from the fact that there was indeed no documentary proof of hospital admission of the Appellant in the said Kano State Psychiatric Hospital, in 2001 or 2004 or even 2010 as D.W.1 alleged. There was no trace of his hospital admission therein. There was, also, no trace of his medical history or his hospital folder in the said Hospital. Furthermore, there was no medical report from any Doctor who might have treated the Appellant at the said Hospital during those periods. I must state that there was nothing in the record suggestive of the fact that the learned trial Judge wrongly applied the principle of law in arriving at his decision or that he did not properly evaluate the evidence proffered before him vis-a-vis the defence of insanity raised by the Appellant. I must recognize there is no reason before this Court why the decision of the learned trial Judge ought to be capsized. Accordingly, the last issue propounded by the Appellant is hereby resolved against the Appellant. I find this appeal quite illogical and flimsy. Consequently, this appeal is hereby dismissed for lacking in merit. The judgment of the lower Court is hereby affirmed by me. The conviction and sentence of the Appellant are hereby affirmed by this Court.

ABDU ABOKI, J.C.A: I have had the privilege of reading in draft the judgment of my learned brother, Theresa Ngolika Orji – Abadua JCA, just delivered. I agree with his reasons and conclusion that this appeal lacks merit and ought to be dismissed. My learned brothers, Theresa Ngolika Orji-Abadua have carefully and thoroughly resolved the issue submitted for determination. I too affirmed the judgment of the lower court delivered on 26th July, 2005.

ITA G. MBABA, J.C.A: I have had the privilege of reading a copy of the lead judgment delivered by my Lord, ORJI-ABADUA, JCA and I agree with her reasoning and conclusion.
Accordingly, I too dismiss the appeal and abide by the consequential Orders in the lead judgment.

Appearances

Nassir Abdu Dangiri Esq; with Nureini Jimoh Esq; and M. M. Alabelewe Esq.For Appellant

AND

Mukhtar Sani Daneji (D.P.P), Kano State Ministry of Justice with Bashir Saleh (S.S.C)For Respondent