THE QUEEN VS IZOBO OWE
In the Supreme Court of Nigeria
December 7, 1961
Case Number: : FSC. 332/1961
UNSWORTH, JUSTICE, SUPREME COURT
TAYLOR, JUSTICE, SUPREME COURT
BAIRAMIAN, JUSTICE, SUPREME COURT
(Delivering the judgment of the Court)
The appellant was convicted of the murder of one Kasimi Ebode contrary to s.257 of the Criminal Code Law, Western Region of Nigeria, by the High Court of the Warri Division.
Learned Counsel for the appellant has argued four additional grounds of appeal and abandoned the original grounds filed with the Notice of Appeal. The first and second additional grounds, which were dealt with together, state shortly that the conviction was wrong in view of the absence of any evidence that the deceased’s death was caused by the act of the appellant. There is no need to deal with this point at any length for suffice it to say that the record, and particularly the evidence of the medical expert, is silent as to whether the wounds caused by the appellant were likely to or did cause the death of the deceased. Mr. Eboh for the Crown, quite rightly in our view, did not seek to support the conviction of the appellant on the charge of murder.
The point then arose as to whether the appellant, in view of the overwhelming evidence that he struck the deceased in the stomach and neck with a knife, could be convicted of an attempt to murder or whether the defence of insanity set up at the trial would avail him. The latter point is dealt with in the third and fourth of the additional grounds of appeal.
I shall first of all examine the defence of insanity. The facts of the case were shortly this: the appellant, on the evidence before the Court, was seen by the 2nd and 3rd prosecution witnesses lying on the ground flat on top of the deceased in the former’s house. When he was removed from this posi-tion, a knife was found in his hand and stab wounds were seen on the neck and stomach of the deceased, who was heard at the time to shout in Okpe language “Izobo is killing me”. When the appellant was taken to task by the 2nd prosecution witness, he said that the deceased was worrying him and so he killed him, and that he, the appellant, was prepared to die with the deceased. This incident took place on the 30th December, 1960. On the day of the appellant’s arrest he made a statement to the Police (Exhibit “A”), and in that statement he gave what appeared to be a lucid and graphic account of what had taken place. He gave, as his reason for striking the deceased with a knife, that the deceased had been worrying him over the appellant’s two children who were attending Ekuejeba school: that he looked upon the de-ceased as an enemy and dealt with him in the same fashion as Samsom of biblical fame. On the 3rd January, 1961, he made a further statement (Exhibit “B”) in effect confirming his former statement. On the 13th March, 1961, he was examined by Prosecution Witness 8, Dr O. O. Coker, who formed the opinion that the appellant was putting on an act, pretending to be insane. He was also examined by this witness on 6th May, 1961, and 1st July, 1961, and Dr Coker formed the view that the appellant was mentally sound.
Then there is the evidence of the 3rd Prosecution Witness, a senior brother to the appellant, who deposed that the appellant was not mentally sound and that some five years previous to this incident the latter had had to be treated by a Native Doctor for this derangement of mind; that after this treatment the appellant still behaved queerly and that the family were thinking of getting a doctor to treat him again shortly before this incident happened. The 4th Prosecution Witness, and the 5th Prosecution Witness, on the other hand, gave evidence that the appellant had always behaved in a normal way. The Native Doctor who treated the appellant five years ago confirmed the fact that he so treated him and added that the appellant was cured after such treatment. The Chief Warder of the prison gave evidence for the defence and deposed to the abnormal acts of the appellant whilst under detention.
Learned Counsel for the appellant has submitted that the trial Judge failed to consider the issue of whether or not the appellant was subject to un-controllable impulse when he inflicted the injuries on the deceased. We are of the view that the learned trial Judge gave the fullest consideration to this aspect of the defence and in this respect I would quote a passage in his judg-ment where, after referring to s. 26 of the Criminal Code Law of the Western Region of Nigeria, he goes on to say that:
To avail of the defence under s.26 the defence must prove under the law, to establish insanity and to overcome the pre-sumption that every man is sane and accountable for his actions, that the prisoner was, at the relevant time suffering either from mental disease or from “natural mental infirmity”. Secondly, that the mental disease or the natural mental infirmity was such that at the relevant time, the prisoner was, as a result deprived of capacity either to understand what he was doing, or to control his actions; or to know that he ought not to do the act or make the omission (Rex. v. Omoni 12 W.A.C.A. 512 and 513).
The learned trial Judge, after further consideration of this plea, held, and quite rightly in our view, that this defence did not avail the appellant. These grounds of appeal must fail and are dismissed.
We now come to the final issue as to whether the appellant, on the evi-dence, can be found guilty of attempted murder. The evidence of the Medical Expert showed the nature of the wounds inflicted by the appellant on the deceased to be as follows:
He had a wound 1/2′ x 1/8′ on the left side of the back of the neck. He had a 2′ long deep wound penetrating the abdominal wall on the right side of the middle of the abdomen.
The learned trial Judge, on the evidence before him, found on the question of intention that:–
I believed and find as a fact that he intended to kill the deceased. The serious injuries he inflicted on the deceased is also evidence of this intention on his part.
There is, in our view, abundant evidence on which the appellant can be found guilty of an attempt to murder the deceased. By virtue of s. 169 of the Criminal Procedure Ordinance, Cap. 43 Vol. 2, Laws of the Federation, a person charged with an offence may be convicted on the evidence of an attempt to commit such an offence. That section reads thus:–
Where a person is charged with an offence but the evidence establishes an attempt to commit the offence he may be convicted of having attempted to commit that offence although the attempt is not separately charged.
The offence of attempt to murder is contained in s. 258 of the Criminal Code Law of the Western Region of Nigeria, which states as follows:–
Any person who –
(1) attempts unlawfully to kill another; or
(2) with intent unlawfully to kill another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life; is guilty of a felony, and is liable to imprisonment for life.
One is bound to infer that the appellant attempted to murder the deceased. He stabbed him in the neck and in the abdomen; and when he was stopped from doing more, and taken to task, he said that the deceased was worrying him and that he, the appellant, was prepared to die with the deceased. In effect, he was out to kill the deceased, but was stopped. He was guilty of attempted murder.
For these reasons, we allow the appeal, set aside the conviction and sentence and substitute therefore a conviction under s. 258 of the Criminal Code Law of the Western Region for attempt to murder, and pass a sentence of 15 years’ imprisonment with hard labour on the appellant.