Bashiru Ayinde V The Queen (1963)

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BRETT, J.S.C.

The appellant was convicted in the High Court of Western Nigeria of the murder of his wife, Taibatu Ayinde, to whom he had been married for about six years. They would appear to have lived together happily and there was no evidence of any serious quarrels. On the day in question, a half-brother of the appellant’s was celebrating his marriage and the appellant, his wife and his mother attended the ceremony. The appellant was the first to leave, and had returned home before his mother went to the ceremony. She left him sitting in the parlour. His wife, who with his permission had been helping at the house where the ceremony was being performed, was the next to leave, but no witness who saw her leave was called. When his mother returned to her own house she saw the dead body of the appellant’s wife lying on the ground and the appellant near the body, cutting himself on the head with a cutlass. She shouted, but before anyone else arrived the appellant collapsed and became unconscious.

A post-mortem examination of the wife’s body showed an incised wound 6 inches deep by 5 inches wide across the neck just below the ears cutting through the cervical line and the great blood vessels. This wound was the cause of death. The appellant himself was admitted to hospital with over a dozen wounds on his head, most of which were superficial. He was conscious on admission but very shocked.
While there was no eye witness to the killing of the appellant’s wife, there was sufficient evidence to lead to the irresistible inference that it was the appellant who killed her, and we find no substance in the ground of appeal which alleges that the prosecution failed to prove that the appellant was responsible for the death of the deceased.
The ground of appeal which was argued at greater length raises the question whether the appellant ought to have been acquitted on the ground of insanity. The members of the appellant’s family who gave evidence all agreed that he had never shown any tendency to violence or any of the symptoms of mental disorder before the date of the murder. The surgeon who treated him in hospital observed nothing unusual about his behaviour while under treatment and considered that he behaved as a patient with his wounds would normally behave.
The evidence on which the appellant relies as proving insanity comes entirely from his own lips or that of his witness. On the night of his admission to hospital, an inquisitive fellow patient named Silifa Adelekan, went and spoke to him. Her evidence of what passed between them was as follows:-

“The accused was not conscious. I asked him how he had got the injury on his head. He said ‘Leave me alone-I went out and killed one bush animal after which I received the injury on my head’. I asked him where was his wife he said ‘My wife is at a marriage ceremony’. I asked him if he would give me some of the animal which he had killed. He said that his wife would give some. Then I left.”
Some eight days after his admission to hospital, the appellant made a statement under caution to the Police in which he referred to various petty quarrels between them and also said:
“The day they said I killed my wife, I did not know the time at all. The last quarrel we have had been two months ago on the ground that she did not prepare food for me in time. The neighbouring people settled for us. The day I killed my wife I did not know what happened. After two days stay in the Hospital before I know I have killed my wife. I did not know the time I cut myself on head. After I have been dressed in the Hospital I became conscious and I knew what I have done.”
A specialist psychiatrist from Aro Hospital who had examined the appellant was called as a witness by the prosecution, but as the issue of insanity had not at that stage been raised by the defence objection was successfully taken by defending counsel to any evidence of the specialist’s opinion as to the state of mind of the appellant at the material time, and his evidence was confined to generalities which do not appear to be of any assistance one way or the other.
Counsel for the appellant also relied on the absence of any motive for the murder as tending to support the view that the appellant was insane at the time.

In his judgement, the learned Judge considered the evidence on this issue in some detail and directed himself in law in a manner which has not been criticised by the counsel for the appellant. He set out his conclusions in the following terms:-
“That evidence does not satisfy me on the balance of probabilities that the accused suddenly became afflicted with a mental disease or infirmity which could have caused him loss of the capacity to exercise volition, particularly as, according to Dr Asuni, such a loss, if it occurred, could have resulted either from organic causes or from excessive emotional reaction. Neither does it so satisfy me that the accused at the relevant time was incapable of exercising volition from any cause. If his claim to have no knowledge of the killing now is true -and I am not satisfied that it is untrue-such lack of knowledge is equally consistent with amnesia having occurred after the killing and with the killing having occurred while he was without the capacity to exercise volition. Moreover, the fact that immediately after having injured the deceased the accused injured himself on the head with a cutlass renders it at least more probable than improbable that at the time of inflicting both injuries he knew what he was doing, and intended to use a cutlass. Further if the accused did have the alleged conversation with the woman in the hospital, his remarks on that occasion indicate that he may have had a recollection of having acted with the intention of killing some kind of creature. The defence that the accused killed the deceased by an involuntary act fails, therefore, as not having been established.”
In referring to the capacity to exercise volition the Judge had in mind section 22 of the Criminal Code of Western Nigeria which provides that, subject to the express provisions of the Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. Insanity is a defence because it prevents the exercise of the will.
This case differs from R. v. Dim (1952)14 W.A.C.A. 154, where the prisoner’s story that he had had a mental “black-out” was disbelieved, but even accepting, as the trial Judge was apparently prepared to accept, that the appellant had no recollection of committing the murder, we would hold, as was held by the Court of Criminal Appeal in Rex v. Podola [1960] 1 Q.B. 325, that that in itself is not conclusive proof that he was insane at the time and that at the highest it may be said to increase the burden of proof laid on the prosecution. The absence of motive is at most a matter to be taken into consideration when there is other evidence indicative of insanity rather than the opposite: R. v. Ashigifuwo (1948) 12 W.A.C.A. 389. In the present case, there was no evidence of behaviour either before or after the time of the murder which is in any way indicative of insanity and we are unable to agree that the evidence taken as a whole ought to have satisfied the trial Judge that the appellant was insane at the material time or that his findings of fact, as set out in the passage which we have quoted, ought logically to have led him to that conclusion. In the circumstances, the appeal is dismissed.

Other Citation: (1963) LCN/1020(SC)