YEKINI WAHABI OKOUNU (APPELLANT)
THE STATE (RESPONDENT)
(1977) All N.L.R. 37
Division: Supreme Court of Nigeria
Date of Judgment: 31st March, 1977
Case Number: SC. 174/76
Before: (Alexander, C.J.M. Irikefe, Madarikan, JJ.SC)
The appellant was tried in the High Court of Lagos State sitting with a jury for the murder of one Risikatu Imam Balogun.
The deceased a girl of eight was on the day of her death, playing with other girls of her age group on the side of Ebimpejo lane when suddenly the appellant came upon them and dealt her a vicious blow on the back of the head with the sharp cutting edge of an axe which had to be forcibly extracted. There was no evidence that there had been any contact between the girl and the appellant neither was there any to show that word had passed between the little girls as a group and the appellant. P. W. 5, a neighbour who saw the appellant dealt the blow raised an alarm, the appellant quickly dropped the axe and escaped. P.W. 3 who saw what had happened described the behaviour of the appellant inter alia that the appellant came to their premises on that day, sat on a pavement, after a while got up, walked a few distance, came back to where he was sitting, sat down, took an axe from the bag he came with went to where the girls were sitting and struck the deceased on the head with the axe.
The appellant in his defence admitted going to Ebimpejo lane but denied holding an axe and knowingly striking the deceased. According to him, on that day, he went there with a bag of money. He said he was trying to take some money from the bag to give to a relative when some children surrounded him asking for money. He gave a boy he knew one shilling. The children were pressing him and as he was about to beat them, he saw people rushing towards him. He ran into a relative's house from where he left. There few days later as he was passing by a group of people attacked him, tied him up and took him to the police station. One day he was taken out to eat by a police man and while he was out he saw his friends and followed them. Later he went to his doctor because he was ill and he was referred to a mental hospital.
The trial Judge suo moto called the doctor who referred the appellant to a mental home and he gave evidence that the accused was insane when he came into his office (and that he might have been in that condition for weeks before coming to him). The court also called two doctors and a nurse from the Yaba Asylum (The mental home where accused was), and they gave evidence as to the fact that the appellant was insane and had been in the hospital for a little over 11 months.
After considering all the evidence adduced the trial Judge directed the mind of the jury on the law applicable and facts established in evidence. The jury rejected the appellant's defence of insanity and returned a verdict of guilty. It is against this verdict, the appellant has now appealed to the Supreme Court.
(1) The burden of establishing the defence of insanity lies on the accused, and this burden will be discharged on a balance of probabilities as in civil proceedings.
(2) It is the law that mere absence of motive for the commission of a crime is not sufficient ground on which to infer mania, but where there is copious evidence indicative of insanity rather than the opposite, the absence of any evidence of motive may become relevant to the point in issue and material to it.
(3) There is uncontradicted medical evidence that the appellant was insane especially the evidence of the doctor (who referred him to mental home) that the appellant's insanity could have started a few weeks earlier.
(4) The prosecution failed to produce any evidence, as it should, to disentitle the appellant having regard to the printed record, of the protection afforded him by law under section 28 of the criminal code (i.e. defence of insanity).
(5) The evidence shows clearly that the killing with which the appellant was charged and for which he was tried should properly and correctly have resulted in a verdict of murder, if the appellant had been sane.
(6) "Where as in this case a jury after being adequately directed returns a verdict completely out of turn with evidence an appeal court would intervene to set aside such a verdict."
(7) The appellant is acquitted upon the ground that at the time at which he is alleged to have committed the offence, he was by reason of unsoundness of mind incapable of knowing the nature of the act alleged as constituting the offence as that it was wrong or contrary to law.
F.O. Akinrele for Appellant.
A. Adetosoye for Respondent
(Acting Principal State Counsel Lagos State)
Cases referred to:
R v Aina (1953) 14 W.A.C.A. 310
R v Ashigifuwo 12 W.A.C.A.
R v Barnes 28 C.A.R. 141 at 148
R v Echem (1952) 14 W.A.C.A. 156
R v Inyang 12 W.A.C.A.5
R v Wallace 23 C.A.R.32
Statutes referred to:
(1) Criminal Code.
(2) Criminal Procedure Act.
(3) Evidence Act.
Irikefe, J.S.C.:-The appellant was charged with having murdered one RISIKATU IMAM BALOGUN on 22nd June, 1972 at EBIMPEJO LANE, Lagos and tried by O.R.I. GEORGE, J. (sitting with a jury).
The evidence for the prosecution briefly is as follows. On 22nd June, 1972, the deceased, a girl aged 8 was playing with other girls of her age group on the side of Ebimpejo Lane. The other girls sat in a circle, and it is in evidence that the deceased was in the middle of this circle sitting on a mortar. Then suddenly, appearing as if from nowhere, the appellant came upon the group and dealt the deceased a vicious blow on the back of the head with the sharp cutting edge of an axe. The force of impact was so great that the axe got impaled on the head of the deceased and had to be forcibly extracted therefrom by the appellant when P.W.5 (Kike Balogun) a neighbour, who saw the appellant deal the blow, raised an alarm. Thereupon, the appellant quickly dropped the axe and made good his escape.
The deceased collapsed in a pool of blood and died that day. There is also evidence that brain matter from the deceased's head got scattered around the scene.
Before this tragedy there was no evidence that any word had passed between the little girls as a group and the appellant.
Similarly, throughout the entire evidence it was not revealed that there had been any prior contact between the appellant and the deceased or for that matter, any of the girls comprised in the deceased's group.
The behaviour of the appellant on that day was vividly dramatised in the testimony of P.W.3 (Adio Yussuf) who deposed thus:-
"I live at No. 11, Ebimpejo Lane Lagos. I am a seaman. I know the accused....... I remember the 22nd June, 1972. On that day the accused came to our premises. He did not greet anybody and he was holding a bag in his hand. Then he went and sat on a pavement in front of our house. After sitting for a while, he stood up and walked for a distance of about six-feet. Then he came back to where he was sitting. Then he stood up and went to where he sat the first time. Then the accused took an axe from where he sat. As the accused looked back he struck the deceased Risikatu Balogun with the axe on the head. He first examined the axe. Risikatu was sitting down where she was playing. When he hit the deceased on the head with an axe I was afraid and I ran away. About five minutes later I came back and I saw the deceased lying down face downward in a pool of blood. It was an iron axe that the accused used in striking the girl Risikatu."
The appellant apparently went underground after this incident for two good days and re-surfaced at the same place at 6:30 am on 24th June, 1972. He again came to No. 11, Ebimpejo Lane and began knocking at the door. P.W. 3 asked to know who was knocking and the appellant said it was he. P.W. 3 then came out and with the aid of two other neighbours felled the appellant and had him arrested. When apprehended, the appellant was found with another axe hanging under his dress from a bicycle inner tube tied around his waist. The axe with which he struck the deceased had been abandoned by him at the scene. The captors of the appellant later handed him over to the police. The pathologist who performed autopsy on the body of the deceased gave the cause of death as fracture of the skull and intracranial haemorrhage.
In his defence at the trial, the appellant testified inter alia as follows:-
"I live at No. 16, Farayibi Street, Somolu. I was formerly a soldier. I am now a motor mechanic. I tried to work.. I mean I worked as a labourer with one Gbadebo a Builder. I remember the 22nd June, 1972. At about 1.30 pm on that day I was at Ebimpejo Lane. My father was living there before so I used to go there. He lived at 14 Ebimpejo Lane a compound. At about 1.30 pm I had with me a bag of money and I was taking some money from the bag. Exhibit "C" is not the bag. I don't know where the bag is. I bought a box and came to Ebimpejo Lane with the bag. I wanted to give the box to somebody. The bag was full of coins. It contained £110 i.e.
N220. I was trying to take out some money from the bag to give to one Mr Opere a relative. I was counting the money I was surrounded by some children. They began to ask me to give them money. As I know only one of them I gave him 1/-. They were boys and girls playing together. As I was following them to go away I saw a group of people rushing towards me as I was about to beat them because they were pressing on me. These people wanted to take my money and I had not got sufficient time to count the money. I then took the money and ran into the house where Mr Opere lived. The house was adjacent to the place where I was counting the money. I left the house later. I did not hold any axe. I did not strike anybody with any instrument before. I don't know RISIKATU BALOGUN (Emphasis is ours). I left the bag inside Opere's house and left the money. On the 24th June, 1972, at about 6 am I passed by the Cenotaph towards Ereko Street when I saw a group of people. They held me from the back and tied me with a rope. Nothing was recovered from me. I asked them what have I done but they started to beat me. A few minutes later I saw some policemen with guns and I was taken to the Police Station. I was being carried to the Central Police Station when the policemen came. At the Central Police Station they untied the rope and I was taken to Panti Street, C.I.D. One day I was taken out and I waited for the men who brought me out. I made a statement to the Police. That statement is the true version of the story. Exhibits E and E1 are the statements. They are correct. I was shown two axes but I don't know anything about them. I did not escape from the custody. I was brought out to take food. Then I saw some of my friends and I walked away with them. I did not see the police officer who let me out of the cell. My friends were along the street when I saw them. Then I walked away and went to my doctor because I was ill and told him I had a disease then he took me to the Mental Hospital Yaba.
I remember a Nurse asked if I saw two policemen looking for me and I said no. The third day...... I had already been eight months in hospital before I was arrested. I was arrested at Yaba Mental Hospital and taken to Yaba Magistrate Court. The police got an excuse from the Superintendent of the Mental Hospital Yaba. The name of the Doctor in the Mental Hospital is Dr Orija. I did not kill any body."
Under cross-examination by prosecuting counsel, he testified inter alia as follows:-
"On 22/6/72 I woke up around 6 am. I left home at around 10.30 am and had Amala and went to Ebimpejo. I first saw an old woman I went out to count my money. Mr Gbadebo lives at 48 Glover Road, Apena. That was my first day of going to him for treatment. I was admitted at the Asylum Yaba. I now say that I was a friend of Dr Gbadebo."
At the end of the appellant's testimony, the following dialogue took place between the learned trial Judge and Mr Sonoiki, learned Counsel representing the appellant:-
Court to Sonoiki-"Do you intend to call Dr Orija and Dr Gbadebo?" SONOIKI-"I am hearing those names for the first time.
Court:-Adjourned 10.30 am for SONOIKI to call Drs. Orija & Gbadebo and the Nurse mentioned by the accused."
As a sequel to the court's order, two doctors-(a) Dr MARINHO, a Consultant Psychiatrist at the Yaba Psychiatric Centre and (b) Dr Gbadebo were called to testify on behalf of the appellant.
Dr Marinho testified that from the records available to him, he was in the position to say that the appellant was admitted to the Yaba Asylum on 8th July, 1972 on an emergency certificate signed by Dr Gbadebo of the Surulere Health Centre. He stated further that the appellant remained at the Asylum until 29th May, 1973 when he was arrested by the police on a warrant which issued from the Yaba Magistrate's Court. Dr Marinho concluded his testimony by saying that, while at the asylum, the appellant was treated by Dr Orija who was then not available as he had gone to London on Study Leave.
The case history on the appellant complied by Dr Orija was produced and admitted in evidence as exhibit "F" by the 3rd defence witness (John Izogie Aguebor-A Nursing Superintendent at the Yaba Asylum-now elegantly designated as the YABA PSYCHIATRIC CENTRE).
The most crucial testimony on the mental condition of the appellant was that given by Dr GANI ADEBISI GBADEBO and we propose to carry part of it in full in like manner as we treated the testimony of the appellant.
The relevant portion runs thus:-
"I am a medical practitioner attached to Massey Street Children's Hospital. I work at Surulere Health Centre and Lagos Island Maternity. I know the accused. On 6th May, 1972 he worked for me as a labourer. He worked on the building site of my personal house. I was building my house at 14 ANU OLUWA PO STREET, where I now live. I was then living at 54 GLOVER STREET, Ebute-Metta. After the completion of my building, the accused came to me a few days later and complained that the contractor who built the house did not pay him. By a few days later, I mean a few days after the 6th May, 1972. Then on 8th July, 1972, the accused came to me at 54 Glover Street stark naked holding a mat and a broom. This was the day I referred him to the Mental Home Yaba Psychiatric Centre. I took him to the Centre (Asylum) with a note. I handed him over to Dr Orija and he was admitted. The form is at the Mental Home. I referred him to Mental Home because he was insane."
Under cross-examination the witness continued thus:-
"I first met the accused on the 6th May, 1972. The second time was the day he came to complain that he was not paid. I told him to go to the contractor. At that time he was behaving well. The 3rd occasion I saw him on the 8th July, 1972. I qualified as a medical practitioner in June, 1968 in Dublin. Between June 1968 and 1970 I worked at the Manchester Royal Infirmary as a houseman and I was registered in Nigeria as a medical practitioner in 1970. I am a general medical practitioner. I was trained in psychiatry and I am qualified to express an opinion as to whether a person is sane or insane."
By Court:- "The accused came to me at Glover Street naked at about 9 am. The accused complained that he was feeling pains in his scrotum and I told him that was no reason for his being naked. I don't think he was aware of his surroundings."
By foreman of Jury:- "The accused was obviously insane at the time he came to me. An adult of his age would not walk in the street stark naked. He was not pretending. My diagnosis was that the accused had a sudden attack of madness (insanity). It could have started a few weeks earlier. Only a specialist can say whether the accused had an ulterior motive. I was not aware until yesterday that the accused was charged with the commission of a crime."
By Court:- "I went to the Asylum a few times. The first time my diagnosis was confirmed by Dr Orija."
At a later stage during the hearing, the witness was recalled in order to assist the court in interpreting the case notes compiled on the appellant by Dr Orija. The case notes read as follows:-
"8/7/72 patient said he was brought here because of a nail prick and pain in the testis. Now complaining of general body pain. He denied smoking Indian Hemp as contained in Section 10. He however said he used to hear voices speaking to him without seeing anybody. He said his mind also used to speak to him (like two persons in conversation).
Summary and O/E
1. Dull and withdrawn
2. Unpredictable (Could be aggressive as he was on admission to S/N)
3. Paranoid against Dr Gbadebo
4. Denied Indian Hemp Smoking
5. Thought echo
6. Auditorily Hallucinated
7. No insight
8. Affect is flat
9. Acute psychosis."
The following is the interpretation rendered to the court by Dr Gbadebo (D.W.2) on the specific matters contained in Dr Orija's report:-
" "A paranoid" is someone who believes that he is being persecuted. Against Dr Gbadebo means that the accused believed that I (Dr Gbadebo) was persecuting him.
"Auditorily hallucinated" means that he hears voices that do not exist.
"Affect is flat" means there is no connection between his behaviour and his thought.
"Acute psychosis" means a sudden attack of madness or insanity."
At the end of the hearing based upon the evidence set out above, and after a most through and exhaustive summing up, the jury returned a verdict of guilty.
This appeal is against the verdict of the jury and the only ground of appeal canvassed before us is the general ground which complains that the verdict is unreasonable, unwarranted and cannot be supported having regard to the evidence.
On this ground, learned Counsel representing the appellant made the following submissions. He submitted that there was medical evidence that the appellant was insane. It was also established by evidence that the appellant was arrested for the purpose of facing his trial in this case from a mental home. Again, there was a complete lack of motive for the commission of this crime.
Counsel also submitted that the peculiar behaviour of the appellant at the time of the commission of the offence and the fact that he came back to the scene after two days without yielding any clue as to what had transpired before, were matters pointing to the state of his mind. We were accordingly invited by counsel to regard this as an appropriate case in which to set aside the verdict of the jury.
For the respondent, it was at first feebly argued by counsel that, the evidence merely revealed abnormal behaviour on the part of the appellant a few days after the commission of this crime.
This, counsel submitted, was inadequate to sustain a defence based on insanity. After counsel's attention had been directed to several portions of the printed record, he then abandoned his original stand and stated that he was unable to agree with the verdict of the jury.
Insanity as a defence to crime is dealt with under Section 28 of the Criminal Code. (Cap 42-Laws of the Federation-1958) It reads:-
"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."
The burden of establishing the defence of insanity lies on the accused, and this burden will be discharged on a balance of probabilities as in civil proceedings. See R. v. ECHEM (1952) 14 W.A.C.A. at p. 158. There is also statutory provision for the above under Section 140(1) of the Evidence Act (Cap 62-Laws of the Federation-1958) which reads:-
"Where a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged is upon such a person."
It is also the law that mere absence of motive for the commission of a crime such as is disclosed by the record of this case is not sufficient ground on which to infer mania. But where there is copious evidence indicative of insanity rather than the opposite, the absence of any evidence of motive may become relevant to the point at issue and material to it. See R. v. INYANG-12 W.A.C.A.p.5 and R. v. ASHIGIFUWO-12 W.A.C.A. 389.
We are satisfied that the learned judge in this case did all that was humanly possible to direct the jury on the law applicable to the facts established by the evidence.
The following excerpts from the summing up reveal clearly how painstaking was the approach adopted by the learned judge:-
(A) "If the weight of evidence suggests insanity but there is doubt as to whether he is insane or not insane then if there is no motive that goes to strengthen the case of the accused on the issue of insanity. I do not want to express an opinion on this issue because you are the sole judges of facts but I must point this out to you and I hope I have made it clear that if the evidence tends towards insanity and you find that the accused has got no motive whatsoever for killing the person he was alleged to have killed then that goes to support the defence of insanity."
(B) "The learned Counsel for the State in the course of his address said that the accused was in prison and might have been taught to pretend to be insane. It is true that in prison people are taught, because I understand that they have got their own judges and their witnesses and all sorts of things, but the accused was not in prison.
The accused was arrested on the 24th June, 1972 and kept in police custody at Panti Street, he did not go to prison. He was kept in police custody at Panti Street up to 1st July, 1972 when he escaped and ran away. That he had the opportunity of being taught in the prison does not arise. That should not affect your minds. Then on 8th July, that is only about seven days after he escaped, he went to 2nd defence witness Dr Gbadebo. I say this to correct the impression this aspect of counsel's address might have created on your minds."
(C) "If the accused was pretending do you think the specialist at the Psychiatric Centre, Yaba would have kept him there from the 8th July, 1972 to 29th May, 1973-a little less than 11 months? That is a matter entirely for you to decide but I just want to point this out to you. Here is a hospital for treating mental patients and one was brought by a doctor. He was being treated. Do you think they would not have discovered that the man was pretending all that time? He was kept there for almost one year."
(D) "This is a very strange case. It is very strange in that the police did not disclose to use the fact that the accused was arrested at the asylum. They did not even disclose that at the preliminary investigation. Nobody knew anything about that-otherwise there would have been investigation as to his antecedent and his history. It was only at the tail end of the cross-examination that we knew that this accused was in a mental hospital. That makes it very strange indeed and it makes the position of counsel very awkward. I am just making this remark by way of comment. I do not want this to bias your minds."
(E) "Before you retire, let me remind you that the accused need not prove insanity beyond the shadow of a doubt. It is enough if you can say within yourselves that it is highly probable that the accused was insane. If you find the accused insane you will return a verdict of not guilty owing to unsoundness of mind."
In addition to the above, there was also the unchallenged evidence before the jury in the testimony of D.W.2 (Dr Gbadebo) that the mental illness of the appellant could have started a few weeks earlier, that is well before the commission of this offence.
After a very careful scrutiny of the record and a thorough consideration of the submissions made at the hearing of this appeal, we are satisfied that, where, as in this case, a jury after being adequately directed returns a verdict completely out of turn with the evidence, an appeal court would intervene to set aside such a verdict.
It would do so on the ground that the verdict was unreasonable, unwarranted and cannot be supported by the evidence. See R. v. AINA (1953) 14 W.A.C.A. p.310. See also R. v. WALLACE 23 C.A.R. p. 32. See also R. v. BARNES 28 C.A.R. p. 141. At page 148 of the report in the latter case, Humphreys J. delivering the judgment of the Court of Criminal Appeal in England commented as follows:-
"The case was one in which the learned Deputy Chairman undeniably formed a very strong view, and his summing up was one of which it may be said that, short of withdrawing the case from the jury, it could not have been put more strongly. He did all he could to point out to the jury the extremely unsatisfactory nature of the evidence, and warned them in the clearest terms as to the danger of accepting such a case for the prosecution. In the last words of his summing up he used such expressions as these:
"I wonder who stole this drill; I wonder if the person who stole it gave it to the prisoner; I wonder if the person who stole it and gave it to the prisoner gave the prisoner to believe, or the prisoner knew, it was stolen. I can go on wondering, but there is no evidence of who stole it, and you may think there is no evidence that this man knew when he received it that it had been stolen"; and it was upon those lines that he asked them to consider their verdict.
This Court has come to the conclusion, without in the least blaming anybody, and certainly not suggesting for a moment that the learned Deputy Chairman could have done anything more than he did in the matter, that this was not a satisfactory verdict ... and direct that this conviction should be quashed."
We think the learned Counsel appearing for the respondent was right to concede, albeit late in the day, his inability to agree with the verdict of the jury.
We are also satisfied that the prosecution failed to produce any evidence, as it should, to disentitle the appellant having regard to the printed record, of the protection afforded him by law under Section 28 of the Criminal Code.
In the result, the appeal succeeds and it is allowed.
The evidence shows clearly that the killing with which the appellant was charged and for which he was tried should properly and correctly have resulted in a verdict of murder, if the appellant had been sane.
We, however, direct that he be acquitted upon the ground that at the time at which he is alleged to have committed the offence, he was by reason of unsoundness of mind incapable of knowing the nature of the act alleged as constituting the offence or that it was wrong or contrary to law (See Section 229 of the Criminal Procedure Act).
We also direct that the appellant be kept in State custody and that a copy of this judgment and order be brought to the notice of His Excellency the Military Governor of Lagos State for further order or directions under Section 230 of the Criminal Procedure Act.
And the above shall be the judgment and order of the Court.
(Sgd.) D. A. R. ALEXANDER
CHIEF JUSTICE OF NIGERIA
(Sgd.) A. G. IRIKEFE
JUSTICE, SUPREME COURT
(Sgd.) C. O. MADARIKAN
JUSTICE, SUPREME COURT