Dickson Arisa V. The State (1988)

LawGlobal-Hub Lead Judgment Report

G. O. AGBAJE, J.S.C.

The appellant Dickson Arisa was tried and convicted of murder of one Reuben Okenpa contrary to Section 319(1) of the Criminal Code Cap. 30 Vol. 2 Laws of Eastern Nigeria applicable to Imo State by Anyanwu J. sitting at Isiala Ngwa in the High Court of Justice, Imo State.

Following his conviction on 28/6/1985 the appellant was then sentenced to death. The appellant being dissatisfied with his conviction and sentence, appealed against them to the Court of Appeal, Enugu Division. That Court after listening to the arguments from Counsel on both sides dismissed the appellant’s appeal on 26/1/87. This is a further appeal by the appellant to this court against his conviction and sentence.

The only issue arising for determination in this court as indeed it was in the lower Court is whether the defence of insanity put up by the appellant at the trial Court was rightly rejected by that court whose decision was affirmed by Court of Appeal.

From the nature of the only issue arising for determination in this case it is clear that it is common ground in this case that it was the appellant who fired the shot from the gun that killed the deceased Reuben Okenkpa on 28/10/82 at Umuosu-Nsulu in the Isiala-Ngwa Judicial Division of the High Court of Imo State. The issue arising for determination essentially involves the consideration of whether on the totality of the evidence on the point at issue it can be said that the appellant has discharged the onus of proving insanity, the standard of proof of which no doubt is on a balance of probability.

The available evidence on the issue of insanity on the printed evidence was as follows:-

First p.w.1 after testifying as to how the appellant shot the deceased dead continued his evidence as follows:-

“Then the accused came to the scene of collision; peeped into the out (sic) vehicle and seeing that the driver was dead he said ‘yes’”.

In cross-examination this witness said, “I remember that the last words of the deceased at the time of the incident were “my brother you have killed me”.

Second, p.w.2 corroborated the evidence of p.w.1 as to what the appellant did immediately after he fired his gun at the deceased, this witness added that the appellant then turned his gun towards them who were present at the scene and consequently, they all fled. In cross-examination he said as follows: – “It is true I saw the accused on the day of the incident but I cannot say whether he was then insane or not”.

Thirdly, the investigating Police Officer p. w.5 Sergeant Eric Okoye told the trial Court that in the course of his investigation into this case he went to the house of the appellant on 28/10/82 after the deceased had been killed and there he caused a stone to be thrown on the roof of the house of the appellant as a result of which the appellant ran to the back -yard of his house to see what had happened. There and then he said he and other members of his team went inside the house where-upon the appellant asked if they were Police men and upon their answering in the affirmative, the appellant offered them palmwine which was on the table in the centre of the room which offer he and his men refused; he told the appellant that it was alleged that he had killed one Reuben Okenkpa to which statement the appellant made no reply; he then took possession of a double barrelled shot gun which he saw on the bed of the appellant and when he asked the appellant what he was doing with the gun, the appellant replied that he was getting set for a hunting expedition.

Fourth: The appellant in his own defence gave evidence as follows on the point at issue:-

“I knew Reuben Okenkpa. I understand he is now dead. I am charged with this court with the murder of the said deceased Okenkpa. I did not kill him. I did not have any quarrel with him.

Nothing happened between him and myself on 28/10/1982. I did not make Exhibit “B”. I do not know if the deceased ever had love affair with my wife. I was sick some time. During my ill-health. I used to get offended with myself, very little thing could provoke me. I used to get dizzy during my periods of ill-health. I became sleepless and had constant head-ache during my ill-health. I went to native doctors for treatment. I also went to conventional hospitals such as St. Anthony’s Hospital. Aba. A doctor treated me in that hospital. My company the CFAO sent me to that hospital in 1980/1981. I know that it is crime to kill any person. After my ill-health I recovered. The illness occasionally re-occurred. After each attack I do not find myself able to remember all that happened during the period of my ill-health”.

Fifth: D.W.2 Florence Arisa the appellant’s wife gave evidence as follows:-

I knew Reuben Okenkpa the deceased. He is now dead. He was a kinsman and friend of the accused. There was no quarrel between them before the death of the deceased. Since 1980 the accused has not been well. His illness started one night when he ran out of his room naked hut carrying his wrapper. When questioned he replied that soldiers had killed his brother and buried him where no one would find him; that the soldiers were after him as the next person to be killed. At the dawn of the day the inmates of the yard reported the incident to the brother of the accused who took the accused home and told me what happened the night before at Aba. In the following night the accused looked up the ceiling and said he heard some voices. He asked me if I heard the voices and I said no. This continued until he was given some drugs and thereafter the illness subsided. Whenever the sickness subsided the accused could not recollect whatever happened during the period of his ill health. One would have to tell him what he did when he was not well. During the period of his malady he keeps mute for periods of about 30 minutes. Any statement from anyone easily upsets him. Whatever comes his way he uses in striking anyone near him. On one occasion he hit my son at the back with a piece of wood. The scar is still visible at the back of the son. He was first given “English” medicine. When it yielded no result I took him to a native doctor. At a stage the accused told me that the native doctor was trying to poison him. Later we were directed to a prayer house. As at 9th September, 1982 the accused was being treated at St. Anthony’s Hospital. Aba. It was his employers who sent him to that Hospital. I do not know if the accused killed the deceased because I was at Aba on the date of the alleged incident.

I made a statement to the police in respect of this matter. I made two statements to the police. The 1st was on 29th October. 1982 and the 2nd was on 3rd of November, 1982. The deceased was not my lover. My husband had earlier accused me of having love affairs with the deceased. I told him that it was an evil spirit that was prompting him to say so. The accusation about love affair was made when my husband was not well.”

I have to reproduce this evidence in full because of its significance on the face of it, and in this connection I must mention the evidence of P.W.5 the investigating police officer in cross-examination which is as follows:-

“It came to my knowledge through the statement of the accused person’s wife that the accused had mental trouble in the past. I arrested the accused on the day of the crime. I gave the wife of the accused opportunity to show me the native doctor who attended the husband and the prayer house where people prayed for the husband.”

D.W.2 refused to take P.W.5 to the native doctor or to the prayer house. It transpired that neither the native doctor who D.W.2 said treated the appellant for his illness nor any member of the prayer house which according to D.W.2 the appellant attended for spiritual help on account of his illness was called as a witness in this case.

And lastly:- the evidence of D. W.3 a Medical Doctor one Augustine Ghandi Nwokedi Onyejeli who said as follows:-

“I work in St. Anthony’s hospital, Aba. I recognised the accused. I recognise him as a patient I treated some time. After treating the accused I issued a report to and at the request of CFAO Aba who retained our services. The accused was admitted into our hospital as an employee of CFAO, Aba. I treated the accused on 9th September, 1982.He came with the complaint of moodiness, dizziness, palpitation, weakness, sweating, poor sleep, poor appetite, internal heat and hearing of voices. I physically examined the accused and also sent him for lab tests. The physical examination and lab tests revealed nothing abnormal. Based on the history alone I made a tentative diagnosis of anxiety neurosis a kind of illness that affects the nervous system. I placed him on treatment for that and asked him to repeat (sic) in 7 days time for a check-up and follow up treatment. Two days later the patient came back to the hospital with further complaints of bodily movements. On further questioning I was able to confirm that the patient was having auditory hallucinations of several voices arguing and referring to him. The patient refused to be admitted for closer observation but preferred to remain as all out patient. My final observation was that the accused was developing a type of schizopherenia known as sychogenic sychosis meaning a type of mental illness .., that manifested with a type of disorientation of the patient which could affect some aspect of his senses. He could begin to see things that are not there or hear things that are not said. There is loss of touch with reality. At the time of the attack the patient cannot control his actions like a normal person. Such person would not be in a position to understand what he is doing when under the attack. This type of illness could come and resolve on its own or manifest later. I issued the report on 28th May, 1984.The CFAO requested for a Medical report in writing. The request which was in writing was made in May, 1984. It is not true that I issued a report about the accused because of this charge against the accused, I did not alert the company that accused had mental illness.”

I have to reproduce the evidence of this witness in detail because of its significance on the face of it.

Bearing also on the issue of insanity are the statements of the appellant to the police. The first is Exh. “A” made on 29/10/82 wherein he gave a detailed account of his movements the previous day 28/10/82 and of the use to which he put the double barrelled gun which the police recovered from him that day. In the statement he did not allude to the death of the deceased or to the fact that he fired a gun at him. The second one is Exh. “B” the additional statement of the appellant to the police made on 3/11/82 wherein he said as follows:-

“In addition to the statement I make to the police on 29/10/82 have to add that the deceased sex my wife on several occasions. And one day he said before me that to eat soup without meat is bad and that caused laughter. He is a good friend of mine. This very Reuben we eat together and do everything together minus my wife. On 28/10/82 at about 11a.m. when I delivered the letter to him, this very Reuben made fond of me because I have no money that provoked me to kill him with my double barrel gun. That is all.”

Having stated the evidence on the point at issue I can now go to the law in this regard.

Because of the presumption of law in Section 27 of the Criminal Code applicable to Imo State that every man is of sound mind until the contrary is proved, insanity is a defence that may be raised by an accused person and the onus of proving that defence rests with the defence on a balance of probability.

The defence of insanity is provided for by Section 28 of the Criminal Code which says as follows:-

“A person is not criminally responsible for an act or omission of 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.”

It is now settled law that in order to establish a defence of insanity the defence must prove:-

First, that the accused was, at the relevant time, suffering either from mental disease or from “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 actions; or

(c) to know that he ought not to do the act or make the omission.

It must further be remembered that if the defence be one of partial delusion, the provisions of the second paragraph in the Nigerian Criminal Code Section 28 are applicable and that they are similar to the rules in Macnaughten’s Case (1) as to delusions. (See R. v Sunday Omoni 12 WACA 511 at 512 for instance).

On the point of the defence of black out in the con of the defence of insanity, it has been said in Dim v. Queen 14 WACA 151 at 157 that the defence for it to succeed must be supported by adequate proof. Having stated the 1aw and the evidence on the issue of insanity in this case it remains for me to find out whether the two lower Courts properly directed on the evidence and the law could have rightly rejected as they have done the defence of insanity put up by the appellant.

In the first place the evidence of the appellant himself on the point at issue will on the authorities carry little or no weight. (See Idowu v. The State (1972) 1 All N.L.R. Part II p. 5 at 9 for instance).

One can hardly quarrel with the finding of the trial Court and that of the Court of Appeal rejecting the evidence of D.W.2 on the issue of insanity having regard to what I have earlier on said in this judgment namely:-

P.W.5, the investigating police officer asked D.W.2 the appellant’s wife to take him (P. W.5) to the native doctor who D.W.2 said treated the appellant for his mental illness and she failed to do so. P. W.5 made the same request in respect of the prayer house which D. W.2 said the appellant attended and the response was the same as in the case of his request to visit the native doctor. Again neither the native doctor nor any member of the prayer house was called as a witness in this case. The evidence of D.W.2 on the face of it is indicative of insanity on the part of the appellant, but that evidence is considerably weakened to the extent of being rendered unreliable in my judgment by reason of what I have just said. Once any evidence is found to be unreliable that is the end of that evidence and to all intent and purposes it ceases to be relevant evidence in the case in question.

I now come to the crucial point of the rejection by the trial Court of the medical evidence called by the defence on the issue of insanity that is to say the evidence of Dr. Onyejeli which I have reproduced above. The evidence if accepted will no doubt show that the appellant has discharged the onus of proving his defence of insanity. The evidence which relates to a point of time almost immediately before the commission of the offence charged in this case shows not only that at the relevant time the appellant was suffering from either mental disease or natural mental infirmity but also that as a result of the disease the appellant was not in a position to control his actions or to understand what he was doing. The learned trial Judge rejected the evidence because of the reasons hereinafter appearing.

Counsel for the appellant has in the appellant’s brief of argument seriously criticized the reasons given by the learned trial Judge for rejecting the evidence of the medical doctor which reasons learned Counsel has succinctly and correctly in my view put as follows:-

(i) he (D.W.3) was not a specialist psychiatrist;

(ii) he did not immediately report his findings about the appellant to his employers and

(iii) he was a suborned witness.

An allegation that one is a suborned witness is a very serious allegation and such an allegation should not be accepted unless there was evidence to back it up. In the instant case apart from the mere suggestion made by counsel for the prosecution to D.W.3 in the witness box to the effect that he was a suborned witness which suggestion was vehemently denied by the witness, there was not a shred of evidence indicating in this case that D. W.3 was procured to give the evidence in question.

D.W.3. is a qualified medical doctor and in his evidence in cross-examination he said that although he was not a psychiatrist he knew a great deal of internal medicine including psychiatry. This evidence was not rebutted by the prosecution. The fact that D.W.3 was asked to produce in 1984 a report of what he did in 1982 and he did so will not by itself alone detract from the weight which ordinarily should be given to a report of that nature. And nothing more than this has been relied upon by the prosecution to discredit the report.

In my judgment therefore I agree with the learned counsel for the appellant that the reasons the learned trial Judge gave for rejecting the evidence of D.W.3 cannot be sustained. If this were all to be considered as far as the evidence of D.W.3 is concerned I would have held for the reasons I have given earlier on in this judgment that the appellant has by that evidence established the defence of insanity put up by him. However in my judgment the evidence of D. W. 3 as regards the point at issue is lacking in one essential particularity and by reason of this defect the evidence cannot be acted upon in support of the defence of insanity.

I will now point out the essential particularity which is missing from the evidence of D.W.3. The evidence of D.W.3 as to his conclusion that the appellant was suffering from a mental disease or a natural mental infirmity as a result of which he could not control his actions or understand what he was doing, was opinion evidence. I am prepared to concede it that D.W.3 being a Medical Doctor with some knowledge of psychiatry is competent to give this opinion evidence. Before giving this opinion D.W.3 said that after he had initially diagnosed the illness of the appellant as that of anxiety neurosis a kind of illness that affects the nervous system, the appellant refused to be admitted as an in-patient for closer observation but preferred to remain as an out patient. It will appear that it was after this closer observation of the appellant as an out patient that he (D.W.3) made the final diagnosis of the mental disease or natural mental infirmity of which he said the appellant was suffering. But most unfortunately D.W.3 did not share the benefit of his observations which led him to the diagnosis of the mental disease or natural mental infirmity which according to D.W.3 the appellant was suffering from. This in my judgment is a very serious lacuna which knocks the bottom out of the whole of the opinion evidence D.W.3 has given. For this proposition I refer to Section 64 of the Evidence Act which provide:

“Whenever the opinion of any living person is relevant, the ground on which such opinion is based are also relevant.”

I also refer to Regina v. Turner the Times October 23, 1974, where it was held that before a court could assess the value of an opinion it had to know the facts upon which it was based.

In my judgment therefore since the facts upon which the opinion of D. W. 3 was based as to the mental disease or natural mental infirmity he said the appellant was suffering from were not placed before the court, the evidence of D.W.3 on the issue of insanity is of no evidential value. In other words, I hold, although for different reasons, that the learned trial Judge was right in rejecting the evidence of D. W.3.

It is trite to say that an appellate Court is concerned primarily with the point whether a decision appealed against is right or wrong and not necessarily with whether the reasons for the decision are right or wrong. If the decision is right it will be upheld not withstanding the fact that a wrong reason was given for the decision.

On the issue of insanity in this appeal we are faced with concurrent findings of fact of the Court of Appeal and the trial Court and unless there is no evidence to support such a finding or there is a miscarriage of justice, this Court will not interfere with the findings. I have held that the trial Court was wrong in the reasons he gave for rejecting the evidence of D.W.3. Having myself held for different reasons that the evidence was rightly rejected I cannot say there was miscarriage of justice in this case because of the wrong reasons the trial Court gave for rejecting the evidence of D.W.3. And my analysis above of the evidence touching on the issue of insanity shows there was evidence to support the finding of the trial Court which was affirmed by the Court of Appeal that there was insufficient evidence to support a plea of insanity in this case. Once there was no sufficient evidence indicative of insanity on the part of the appellant, the absence of evidence of motive for the offence of which the appellant was accused ceases to be a relevant factor in the consideration of the plea of insanity raised by the appellant. See R. v. Inyang 12 W.A.C.A. 384: R. v. Ashigifuwo 12 W.A.C.A. 389.

So I need not dwell on the arguments for and against the absence of motive for the offence of which the appellant stood trial.

The behaviour of the appellant soon after the offence was committed as given by the prosecution witnesses was not indicative of insanity on the part of the appellant. And it cannot be said that the defence of blackout has been made out by the appellant in view of his first statement to the police on 29/10/82 wherein he gave a detailed account of what he did the previous day, the fateful day, without of course alluding to the shooting of the deceased by him. But in his later statement to the police, made on 3/11/82 over a month after the incident, he did remember that it was he who shot the deceased with a double barrelled gun.

In the result, the appellant’s appeal fails and it is hereby dismissed by me. The conviction of the appellant and the sentence of death passed on him are hereby affirmed by me.

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SC.54/1987