Anthony Ejinima Vs The State (1991)
LawGlobal-Hub Lead Judgment Report
AKPATA, JSC
This appeal has brought again into focus an issue this court has pronounced upon on a number of occasions. It is that 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. Also relevant to this appeal is the question as to the circumstances insane delusion can avail an accused person a defence to a charge of murder.
At the Nsukka Judicial Division of the Anambra State High Court holding at Nsukka the accused Anthony Ejinima was charged with the offence of murder punishable under section 319(1) of the Criminal Code Cap. 30 Volume 2 Laws of Eastern Nigeria, 1963, in that on the 16th day of July, 1983, he murdered Ngozi Anthony his daughter. It was the case for the prosecution that the accused had three children, two by Veronica Odo, P.W.7, and one by Maria Odo Ukwueze, P.W.4.
The children of Veronica were Nkiruka a girl aged 3 and Onuma a boy aged 1. Maria bore him Ngozi aged 5 at the time material to this case. The accused was said to have slaughtered the three children on the same day, 16th July, 1983, within his premises. Before the date of the incident the two wives had left him. Maria took custody of Ngozi and Veronica took Onuma with her while Nkiruka lived with Odo Nwa Ejinima, P.W.3, an elder brother of the accused.
Maria claimed to have left the house of the accused because he neglected both herself and her child Ngozi.Veronica had to leave the accused because he was always accusing her of indulging in adultery. On the date of the incident, 16/7/83, the accused went to the house of his brother, P.W.3 and took Nkiruka home. He proceeded to the house of Maria and collected Ngozi and promised he would return the child the following day. He also took away Onuma from Veronica. P.W. 2, Sunday Ejinima and P.W.3, on that day saw the three children playing in the premises of the accused. They went for the police.
On their return in company of P.W. 6, Sergeant Godwin Ifejeme, they found that the three children had been slaughtered. Post mortem examination was carried out by P.W. 1, Dr. Vincent Okafor. The Doctor confined his evidence mainly on the autopsy carried out in respect of the corpse of Ngozi. According to him his examination revealed that the child “was neatly sliced across the back in the region of the third thoraic vertebra such that the body could be pushed forward and all the contents of the chest cavity would be revealed”.
The arteries and veins were also sliced across. P.W.1 expressed the view “that death ensued from loss of blood from the cut vessels and damage to the internal organs of the chest, that is, the heart and the lungs, all of which were affected.” The accused who spoke in Ibo language made a confessional statement Exhibit B taken down in English by P.W.6 but interpreted by P.W.5 James Oke. P.W.8, Assistant Superintendent of Police, Aliu Isah authenticated the statement as having been voluntary.
It is necessary to set out the statement in full. It reads: In the year 1979, after the Federal election my wife by name Veronica Odo poisoned me with native medicine. When the effect of the poisonous medicine started working in me, my wife Veronica Odo then divorced me and left for her father’s house by name Odo Ogbonna. She left me carrying away with her two of my children namely Onuma Ejinima of about 1 year 3 months old and Nkiruka Ejinima of about 3 years old. She left me for her father’s place in the month of May, 1983 with the two of my children I mentioned above.
Earlier I was married to Maria Nwa-Odo who also divorced me and went away with my daughter of about 5 years old. She then gave my daughter by name Ngozi Ejinima to Orefi Urama to take care of. Orefi Urama is the mother of my wife by name Maria Nwa Odo. On 15/7/83 at about 7 p.m. my senior brother by name Odo Ejinima then came and told me that my daughter Nkiruuka Ejinima is sick. Both myself and Odo Ejinima then went to see my in-laws that is Odo Ogbonna and Oyodo Nwigbaba the parents of Veronica Odo. When we got to them, I then collected my two children, that is Onuma Ejinima and Nkiruka from Oyodo Nwigbaba for it is the poisonous native medicine that Veronica Odo gave me that is worrying the children also. Earlier before this I have collected Ngozi Ejinima my daughter from Ore Urama her grandmother to my house at Umachi.
I then told my mother-in-law that since Veronica Odo has poisoned me, I will go with my children to die with them instead of them to live while I die and they continue to suffer. When I got to Umachi village with the three children on 15/7/83 at about 10 p.m. I then took my cutlass and killed the three children. I am saying that I killed Onuma Ejinima, Nkiruka Ejinima and Ngozi Ejinima with cutlass. The cutlass I used in killing the three of my children belongs to me. My action of killing them is for me to die after killing them. I killed them in my house at Umachi Enugu Ezike. After killing them, the police then came to me with Odo Ejinima my senior brother and I followed them to the Enugu Ezike Police station.”
The accused who testified, but called no witness, put up a defence completely at variance with his confessional statement. It was his case that Ngozi and the other two children were killed by armed robbers. According to him the armed robbers came in a “spindle’ and killed the children. When police came to his house he had wanted to tell them the suffering he had gone through but they would not give him the chance to do so. As a result he attempted to kill himself by drinking half a gallon of petrol. He denied telling the police that he killed the children. He also did not tell the police that Veronica poisoned him, but added “but I know she did because she goes out with other men”.
PAGE| 4 In his judgment the learned trial Judge rejected the defence of the accused along with the defence of insanity canvassed by his counsel in his address. The learned trial Judge believed that the accused has a long standing suspicion that Veronica was committing adultery and that she had given him some poison from which he would die. It was for that reason he took the decision to die with his children.
The learned trial Judge was therefore satisfied that the accused was suffering from some delusion at the time, and that since the situation he imagined, if it has existed would not have exonerated him from guilt, he accordingly found him guilty of the murder of Ngozi Anthony, his daughter. In his notice of appeal to the Court of Appeal, the accused filed one original ground of appeal complaining that the decision of the trial judge was unwarranted, unreasonable and could not be supported in law. With leave of the Court of Appeal; he filed two additional grounds. The second additional ground is virtually the same as the original ground of appeal. While the original ground states that “the decision cannot be supported in law” additional ground 2 is that “ the decision cannot be supported having regard to the evidence”. I do not consider it necessary to reproduce additional ground 1 on which the sole issue for determination in the Court of Appeal was based. The only issue as formulated in the appellant’s brief was “ whether the defence of insanity raised by the appellant has been properly rejected by the trial Judge”.
Oguntade, JCA, in his judgment ,(concurred in by Katsina-Alu and Uwaifo, JJ CA), was of the view that there was not a shred of credible evidence suggesting that the appellant was insane at the time he committed the offence. He was satisfied that the trial court rightly rejected the defence of insanity. The appeal was accordingly dismissed. The accused not being satisfied with the judgment of the Court of Appeal lodged his appeal to this court on three grounds. I reproduce them with particulars supplied.
They read: “(1) The Court of Appeal erred in law in upholding the decision of the trial court in convicting and sentencing to death the appellant, when there was credible evidence that the appellant was insane at the date and time of the offence and thereafter. PARTICULARS (a) The Court of Appeal held that: “There being no evidence of insanity, there was nothing for the lower court to consider”. in face of the trial court finding:
“I agree with the learned state counsel that this was clearly a case of delusion.” (b) The lower court did not consider the mental state of the appellant at the time he committed the act. (2) The Court of Appeal erred in law and misdirected itself when it failed to consider that the defence of delusion availed the appellant and that the appellant was entitled to acquittal. PARTICULARS (a) The trial court held, to wit: “I agree with the learned state counsel that this was clearly a case of delusion”. (b) The defence of delusion was urged on the court of Appeal by the appellant. (c) The lower court failed to find that the trial court did not consider the mental state of the appellant at the time he committed the act. (d) The act of the appellant killing his three children cannot be explained in any other way than he was deluded at the time of the killing. (e) The fact that the 7th prosecution witness reported to the police as soon as the appellant took his children from her showed that she knew that the appellant suffered from delusion. (3) The decision of the lower court is unwarranted, unreasonable and cannot be supported having regard to the evidence”. In the appellant’s brief, three issues were identified as the issues arising from the grounds of appeal.
They read: “ I. Whether the learned trial Judge misdirected himself when he held that the accused deliberately planned and executed his act and that the first aim of section 28 of the Criminal Code of Eastern Nigeria does not avail the defence. II. Whether the learned trial Judge adequately and properly considered the defence of insanity raised by the appellant pursuant to section 28 of the Criminal Code Laws of Eastern Nigeria 1963 Vol.2Cap. 30. III. Whether the Court of Appeal was right in upholding the decision of the learned trial Judge that the defence of insanity has not been proved. It was however the view of the respondent that only one issue arose from the grounds of appeal and the issue was formulated thus: “Whether the defences of insanity and insane delusion raised by the appellant had been properly considered and rightly rejected by the trial court and the Court of Appeal”. The issue formulated by the respondent broadly covers the three grounds of appeal filed. Issue one in the appellant’s brief is not strictly an issue. It is a point which may be proffered, and it was indeed proffered, by way of argument in meeting the issue arising from the grounds. It is not an issue by itself, going by the grounds of appeal. In the appellant’s brief and oral submission of learned counsel for the appellant, Chief Ume Ezeoke, it was contended that there was evidence of insanity satisfying the provisions of section 28 of the Criminal Code, Laws of Eastern States, 1963, Cap. 30 Volume 2. Section 28 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 infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his action, or the 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.” In support of his contention learned counsel cited the case of Rex v. Sunday Omoni (1949) 12 WACA 511 at pages 512 -513 where the West African Court of Appeal had this to say:
“The Nigeria Law being what it is, it may be well to state quite clearly what, in our opinion, the defence must prove under that law, to establish insanity and to overcome the presumption that every man is sane and accountable for his actions. First it must be shown that the prisoner was, at the relevant time, suffering either from mental disease or from ‘natural mental infirmity’ as we have interpreted its meaning.
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 prisoner was, as a result deprived of capacity:- (a) to understand what he was doing; or (b) to control his actions; or (c) to know that he ought not do the actor make the omission. It must further he remembered that if the defence be one of partial delusion, the provisions of the second paragraph in the Nigerian Section 28 are applicable and that they are similar to the rules in Macnaughten’s case 8 ER 718 as to delusions.” I hasten to point out that the West African Court of Appeal made plain in the authority relied on by Chief Ume Ezeoke “ what the defence must prove under the law (Section 28) to establish insanity”. The onus to overcome the presumption that every man is sane and accountable for his action rests on the accused. It is not for the prosecution to disprove insanity where the accused has not adduced evidence of insanity. It should only prove sanity in reply to evidence of insanity proffered by the defence and not as part of its case.
It is not for the prosecution to disprove insanity where the accused has not adduced evidence of insanity. It should only prove sanity in reply to evidence of insanity proffered by the defence and not as part of its case. It is against this background generally that I now proceed to examine this appeal. Chief Ezeoke drew the court’s attention to certain excerpts in the evidence of prosecution witnesses and judgments of both the trial court and the Court of Appeal from which inference of insanity could be drawn. There is the observation of the Court of Appeal at pages 7 to 8 of the record of appeal that: “The trial court found that the appellant might have acted under a delusion that one of his wives Veronica Odo has poisoned him and that he was soon to die of the poison”.
According to learned counsel, the effect of this finding of delusion when considered together with other pieces of evidence will show that long before the incident that gave rise to this case the appellant had history of mental illness and as a result of the mental illness he was in the habit of threatening people and behaving abnormally. Learned counsel referred to the evidence of P.W.7, Veronica Odo, one of the wives of the appellant where she testified at page 13 lines 10 to 12 and 25 to 28 thus:
“He used to beat me on the pretext that I was committing adultery. He once threatened to shoot me with his gun. Right from when he married me he had been very possessive. He would not let me go to market or farm alone because someone else might entice me away from him. The accused has a shrine in his house. He is Anthony but not a practising Christian”. Chief Ume Ezeoke also referred to the evidence of P.W.6, Police Sergeant, Godwin Efejeme, at page 10, lines 31 to 35 where under cross-examination he stated that: “The accused said his wife poisoned him. I did not do anything about it except that I asked his relations about it. They confirmed that he used to be ill in the head off and on and not that his wife poisoned him. There is also the evidence of P.W.5, Police Constable, James Oke under cross-examination at page 9, lines 20 to 22 that: “It is correct that the accused said the poison administered on him by his wife had started to worry him”.
Learned counsel also drew attention to the evidence of P.W.2, a brother of the appellant at page 6, lines 21 to 22 where he said under cross-examination: “The accused was married to two women – Vero and Maria, but both had left him because of his conduct”. Learned counsel then turned to the defence of the appellant himself where he said at page 15, lines 10 to 14 and 29 to 31: “Ngozi Anthony was my daughter. She was one of those killed by armed robbers in 1983 about the election time. Ngozi and my two other children Nkiruka and Onuma were also killed by armed robbers. I do not know the names of the robbers but they came in a ‘spindle’ and killed the children. ‘Spindle’ is a missile and it flashes when it travels”. Learned counsel then submitted that both the trial court and the Court of Appeal did not appraise and evaluate the above excerpts and that if they had done so they would have come to no other conclusion than that the appellant was insane at the time he killed the children, before he did the act and after. Learned counsel then made the point that the burden of proof which appellant was expected to discharge before a defence of insanity could be established is a light one and similar to the burden of proof in civil cases, that is, proof by a preponderance of evidence or on a balance of probability. He cited Karimu v. The State (1989) 1 NWLR (pt. 96) 124 at page 128. In his submission, Chief Okeke for the respondent stated that the witnesses for the prosecution some of whom are close relations of the appellant testified that the appellant was sane at the material time.
For instance, P.W2, a younger brother of the appellant, asserted under cross-examination at page 5, lines 7 to 10: “I know he is hot tempered and reacts violently when he is annoyed, but we do not regard him as insane or mentally disturbed”. There is also the evidence of P.W.3, the appellant’s elder brother at page 6, lines 12 to 13 that: “Nothing is wrong mentally with the accused but he used to beat the children so I preferred to have the child”.
At page 7 the same witness said: “I still say there is nothing wrong with the accused, I got worried when he took away the child because I know he used to beat them very much and the mother gave her to me. I still say that nothing is wrong mentally with the accused to my knowledge”. P.W.4, Maria, one of his former wives said at page 8, lines 4 to 6: “I cannot say whether or not he is insane but as I see it he was quite normal, only he just could not care for us”. P.W.7, Veronica, the other wife explained at page 12, lines 19 to 24 thus: “I lived with him as husband and wife for five years. During that period I did not notice any sign of insanity in him. The only complaint was that he continuously accused me of going after other men. The accused himself admitted he killed the children. He said he did not want me to benefit from my child when he died”.
At page 13, lines 21 to 25 and 31 to 32, P.W.7 further said: “The accused was not mad. He was accusing me of consorting with other men and I could not do anything to satisfy him I was not. I had lived with him for three years before he started accusing me.
The accused to my knowledge was never treated for any mental illness throughout my time with him.” The surest way of establishing insanity is by medical evidence. Proof of insanity can however be established from compelling evidence of eye witnesses, particularly relatives 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 degrees, 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.
The excerpts from the evidence of prosecution witnesses which learned counsel for the appellant referred to as establishing insanity at best fall within the traits I have referred to above, except that which touches on the appellant’s belief that he had been poisoned by Veronica. I shall deal with that later in regard to insane delusion. The pieces of evidence, viewed in isolation or taken jointly, cannot, to my mind, by any stretch of the imagination be regarded as evidence of insanity.
The only piece of evidence which strikes one when viewed cursorily as suggestive of mental instability is the evidence of P.W.6 elicited under cross-examination that “the accused said that his wife poisoned him. I did not do anything about it except that I asked his relatives. They confirmed that he used to be ill in the head off and on and not that his wife poisoned him”. The Court of Appeal had this to say at page 65 of the record:
“ In the instant case, there was not a shred of credible evidence suggesting that the appellant was insane at the time he committed the offence. His near relations including his wives who lived with him all testified that the appellant was normal. Only P.W.6 said that some of appellants relations told him that the appellant used to be ill in the head off and on. This was an unhelpful piece of evidence if the attempt was to prove insanity under Section 28 of the Criminal Code. Who were these relations who told P.W.6? Why were they called to testify ? If these relations included those who testified why were they not confronted with the story they had previously told P.W.6 in the course of the investigation.”
The above observation of the Court of Appeal makes it abundantly clear that learned counsel could not be right when he submitted that the trial court and the Court of Appeal did not appraise and evaluate the relevant evidence. The investigating police officer merely saying that certain unnamed relations of the appellant “confirmed that he used to be ill in the head off and on” is no proof that the appellant was insane “off and on” and that he was in fact insane at the time he slaughtered Ngozi, the deceased. It is now trite law that the defence of insanity can only avail the accused if he can show that he was insane at the time he committed the act. This is saying that 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.
The reason is that by Section 27 of the Criminal Code, there is a presumption that every person is of sound mind and to have been of sound mind at any time which covers the period in question until the contrary is proved. In effect 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. This is made explicit by Section 28 of the Criminal Code. The evidence learned counsel for the appellants referred to, as I have pointed out, fall far short of the nature of evidence required to establish insanity. The observation of Aniagolu, JSC, in Sanusi v. The State (1984) 10 S.C.166 at page 177 is very relevant to this appeal. He had this to say:
“There is a tendency for some counsel to be casual in presenting their case of insanity on behalf of accused persons. Some tend to treat the matter as if all that was required to establish the defence of insanity was to allude to insanity as the accused’s defence and proceed to show how unreasonable and motiveless the action of the accused had been, leaving it for the court to infer that anyone guilty of such behaviour as the one committed by the accused could not but be insane. Such an approach to the defence of insanity is wrong.”
I must say that Chief Ezeoke was not the counsel who conducted the defence of the appellant in the trial court. I am also, in referring to the observation of Aniagolu, JSC, not criticizing the defence cousel in the trial court. It is not unlikely, having regard to the circumstances of this case, that he experienced some difficulties in obtaining the evidence necessary to discharge the onus of proving insanity. Indeed a counsel cannot manufacture evidence when none is available . In the case under reference, Aniagolu, JSC, went on to indicate how insanity could be proved and that proof could include amongst others:
“Positive acts of the accused, before and after the deed complained of; evidence of a doctor who examined and watched the accused over a period of time as to his mental state, evidence of relations who know the accused person intimately relating to his behaviour and the change which had come upon him; the medical history of the family which could indicate hereditary mental affliction or abnormality, 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 on the defence, has been amply discharged.” Oputa, JSC, in the case of Onyekwe v. The State (1988) 1 NWLR (pt. 72) 565 at page 579 also projected some salient facts required for establishing insanity under Section 28 of the Criminal Code as follows:
“1. Evidence as to the past history of the accused. 2. Evidence as to his 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 Medical Officers and/or Psychiatrists who examined the accused. 5. Evidence of relatives about the general behaviour of the accused and the reputation he enjoyed for sanity or insanity in the neighbourhood. 6. Evidence showing that insanity appears in the family history of the accused.” I now come to the question of insane delusion. Earlier on in this judgment I referred to the submission of learned counsel for the appellant that although the trial court rightly held that the appellant might have acted under a delusion that one of his wives, Veronica Odo, had poisoned him and that he was to die of poison, it erred in not holding that the appellant had a history of mental illness.
This error was brought about, according to counsel, because of its failure to consider the pieces of evidence from the prosecution witnesses which established insanity. He referred to the fact that the appellant “was in the habit of threatening people and behaving abnormally” before the incident. He referred to the evidence of P.W.7 to the effect that the appellant used to beat her on the pretext that she was committing adultery and that he once threatened to shoot her with a gun. With due respect to learned counsel, 1 find no substance in this submission. I have already made the point that the pieces of evidence in question taken singly or together do not establish insanity or anything near it. At best it can be said that the appellant was eccentric.
Eccentricity is not insanity. Eccentricity is personal or individual peculiarity of mind or disposition which markedly distinguish the subject from the ordinary, normal or average types of men, but do not amount to mental unsoundness or insanity. See Black’s Law Dictionary, 6th Edition (Latest). As rightly pointed out by the Court of Appeal the trial court correctly applied the provision of the second arm of Section 28 of the Criminal Code when it said:
“I will agree with the learned State Counsel that this was clearly a case of delusion. According to the second arm of Section 28 aforesaid, the accused would only be criminally responsible to some extent as if the real state of things had been as he imagined. So, suppose the accused’s wife, VERONICA, had actually given him some poison from which it had become plain that he would soon die, would that authorise, justify or excuse his killing his children so that they would not suffer when he died? Certainly, the answer is NO.”
Apart from the clear wording of Section 28 which amply support the reasoning of the trial court and the Court of Appeal, there are a host of authorities coming from this court making it abundantly clear that before the defence of insanity based on delusion can be of any avail to an accused person, the reaction of the accused person to the state of things as believed by him must be such that it could be regarded as legitimate and natural reaction to such a state of things. See:1. Ngene Arum v. The State (1979) 11 S.C. 91; 2. Egbe Nkanu v. The State (1980) 3-4 S.C. 1; 3. Effiong Udofia v The State (1984) 11-12 S.C. 49 and 4. M.A. Sanusi v The State (1984) 10 S.C. 166.
Insane delusion is a product of a disordered mind which Imagines facts to exist and adhered to against all evidence and reason to the contrary. If in the instant case in his delusion the appellant believed that he had been poisoned by P.W.7 and somehow he perceived his three little children grow up overnight to be giants and menacingly approach him with the mind of inflicting deadly blows on him, and he axed them to death to avoid the tragedy that would seemingly befall him, insane delusion would be a valid defence to a charge of murder.
PAGE| 14 In this case, the appellant believed that P.W.7 had poisoned him and that he would die. He killed Ngozi and his two other children because going by his extra-judicial confession, he feared they would suffer after he would have died from the poison. His fears cannot justify the killing of Ngozi and the two other children. It is murder for a father to kill his child because he feared he would soon die and would not want the child to suffer after his own death.
I find no substance in the appeal. It fails. The judgment of the Court of Appeal upholding the conviction and sentence of the appellant to death by the trial High court is upheld. The appeal is accordingly dismissed.
Other Citation: (1991) LCN/2459(SC)
