Ishola Karimu V The State (1989)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C. 

This case has a history of going forward and backward. The appellant was, firstly, charged with the murder of his mother in the High Court of Ogun State holden at Ilaro. He was tried and convicted of the charge on the 27th day of July, 1982. Then he appealed to the Court of Appeal from the conviction. The latter court found (per Gambari. J.C.A)-

“…from the beginning of the proceedings, it was patently clear that the appellant had been detained in a mental hospital which necessitated the trial Judge to order for a psychiatrist report.

Without waiting for the report, and without deciding whether the appellant was capable of understanding the proceedings and making his defence as provided under Section 223 of the Criminal Procedure Act, (Cap. 43 of the Laws of the Federal Republic of Nigeria, 1958) the learned trial Judge proceeded with the trial to the end and convicted the appellant of the charge before him. There was therefore a case which calls for an investigation of the doubt whether the appellant was fit to stand his trial, and that there was no investigation carried out in accordance with law.”

The conviction and sentence were therefore quashed by the Court of Appeal and a retrial was ordered before another Judge of the High Court of Ogun State with a directive that the re-trial Judge shall-

“…satisfy himself by evidence that the appellant has recovered his senses and is fit to stand his trial and capable of making his defence from the commencement to the end of the proceedings.”

The Court of Appeal made a further order that the appellant should be detained in prison custody and should “be placed under medical observation and an appropriate medical report be submitted to the court which will try him.”

The second trial of the appellant, which is the retrial that was ordered by the Court of Appeal began on the 3rd day June, 1985 before Sekoni, J. of the High Court of Ogun State, sitting at Ilaro. The charge of murder was read and explained to the appellant, who pleaded not guilty to the charge. As the appellant was then unrepresented, the case was adjourned to the 3rd day of July, 1985 with a request to the Legal Aid Council to assign a counsel to the appellant.

After series of adjournments by Sekoni J. the case came before Oduwole, J. of the same Court on the 9th day of September, 1985, who made the following orders –

“Case adjourned to 18th and 19th September, 1985 for definite hearing. It is hereby ordered that Dr. O.A. Sijuwola of the Neuro Psychiatric Hospital, Aro be put on subpoena immediately. It is further ordered that the accused be sent immediately to Neuro Psychiatric Hospital, Aro to ascertain his fitness to plead and to stand trial.”

One wonders what become of the order made by the Court of Appeal that the appellant should be placed under medical observation and a report of the observation be submitted to the trial court; and why it was necessary for Oduwole J. to make the same order.

Be that as it may, Dr. Sijuwola appeared before Oduwole, J. on the 18th day of September, 1985 and explained that he had seen the appellant sometime ago and requested more time to examine the appellant for the purpose for which the subpoena was served on him. The request was granted and the trial was adjourned. After another adjournment, Dr. Sijuwola eventually appeared before Oduwole J. and testified as P.W.1 as follows –

“I know the accused who was first referred to me for examination on 18th May, 1981 and again on the 21st September, 1985. At the time I saw him in 1981 I issued a report to the effect that he had his first psychiatric virus in 1978 according to the history given to me by his father and it was as a result of the virus that he was repatriated from Lome and sent to Psychiatric Hospital, Yaba. It was after his discharge in 1979 that he was reported to have an aggressive outburst.

At the time I saw him in 1981 no history could be obtained from him. He did not respond to his name and was totally absorbed in a world of his own and from time to time he murmurs incoherently to himself followed by loud giggling. He was also exhibiting behaviour suggestive of hallucination and had catatonic posturing. Following this, I made a diagnosis of catatonic schizophrenia and treatment was initiated and after which he responded to treatment and his mental state became normal.

On 11th November, 1981, I confirmed that he was well and fit to plead.

When I saw him this year about 21st of September, 1985, I examined him as to his mental state and I was quite satisfied that he was fit to plead and stand trial and I issued a report.”

Under cross-examination by the appellant’s counsel, Dr. Sijuwola said-

“I have been a psychiatrist for 20 years. My examinations show that the accused must have been suffering from disturbance of thinking, perception and susceptibility which has to do with the movement of the body. In my opinion the natural tendency of his illness is towards recurrence except when controlled with drugs continuously.

The type of the accused’s illness could fluctuate between two extremes – being totally quiet or moves to a state of frenzy.”

It is significant to mention that although the evidence of Dr. Sijuwola is relevant to the defence of insanity which was later raised at the trial by the appellant, the testimony was given only to determine the preliminary point to the trial, which was whether the appellant was fit to plead to the charge against him and was capable of making his defence as provided by Section 223 of the Criminal Procedure Act. Cap. 43. Consequently, it was after ruling as follows that Oduwole J. called upon the appellant to plead to the charge against him –

“Having attentively listened to Dr. Sijuwola an eminent psychiatrist and having carefully considered his expert evidence I have no doubt in my mind the accused is very fit to plead and stand trial. He is accordingly called upon to plead.”

Following the plea of not guilty by the appellant witnesses for the prosecution testified. At the close of the case for the prosecution, the defence called no witnesses, but the appellant testified in his defence.

The facts of the case were not in dispute. They are briefly as follows. Sometime between 1977 and 1978 the appellant was on admission at the Mental Hospital at Yaba, Lagos for treatment of a mental illness. Appellant was later discharged from the hospital and he returned to his home at Aiyetoro in Ogun State. His father, P.W.2 noticed that there was improvement in his (appellant’s) health. Appellant’s behaviour appeared normal until six months later when he began to misbehave. He was, with difficulty, again taken back to the Mental Hospital at Yaba with a warning by P.W.2 that appellant should not take indian hemp again. Appellant remained on admission at the hospital until about the end of 1979 when he was discharged. He once more reverted to taking indian hemp. His behaviour deteriorated. He began to threaten people in the neighbourhood of his home with a matchet. On one occasion the appellant threatened his mother – the deceased and P.W.2 had to rescue her from the appellant’s attack. Despite series of warnings by P.W.2 the appellant continued to take indian hemp.

On the 4th February, 1980, the appellant was seen by the police waving a matchet. He was arrested and detained by the police. P.W.2 and the deceased were invited by the police to the police station where appellant was detained. Yinusa Salako, P.W.4, who was a cousin of the appellant accompanied P.W.2 and the deceased to the police station. At the police station P.W.2 confirmed, following a question by the police, that the appellant had been taking indian hemp.

The police showed to P.W.2 the matchet that the police found in the possession of the appellant and which the police had seized. The appellant then spoke to the police. He said that he was a professional driver and that he began to smoke indian hemp since P.W.2 and the deceased refused to give him financial assistance to repair his (appellant’s) vehicle. P.W.2 then said he (P.W.2) would give appellant financial assistance to either repair the vehicle or buy a new one, if that would make appellant to stop smoking indian hemp.

The police decided to release appellant to P.W.2, the deceased and P.W4 on reaching their home on the 5th day of February, 1980, P.W.2 and the deceased appealed to the appellant to stop smoking indian hemp and at the same time suggested to him that he should return to the Mental Hospital, Yaba for treatment. Appellant replied that he would not go to the hospital unless he received N20.00 as his food allowance. The deceased immediately gave the appellant N5.00 as that was the only money on her at that moment. She promised to give the appellant the remaining N15.00 at the time when P.W.2 would take him (appellant) to the mental hospital. Appellant went to his (appellant’s) room.

On the 5th February, 1980 at about 9 p.m. one Bankole went together with appellant and P.W.2 to the deceased to inform the deceased that he had observed that the appellant was still suffering from his (appellant’s) mental illness. As the deceased, though a wife of P.W.2 was living in a separate house from P.W.2, she asked the appellant, P.W4 and Bankole to accompany her to the house of P.W.2. They all went to the house of P.W.2. They all stood outside the house together with P.W.2. Questions were asked. The deceased who had previously tied some money in her wrapper, untied the wrapper in order to give to the appellant the balance of N15.00 which she had earlier promised to give to him. The appellant suddenly produced a matchet which was hidden in his garment, and attacked the deceased with the matchet. He struck the deceased on the head and the back and the deceased fell down dead. P.W4 and Bankole took to their heels whilst P.W.2 raised alarm. The appellant chased P.W.2 with the matchet for about 100 meters before he called off the chase and turned back.

At about 9.30 p.m. of the same day, Pius Ajayi Akodu, Deputy Superintendent of Police (P.W.6) saw the appellant coming out of a corner. The Appellant was holding a cutlass in his right hand and a small bottle of lager beer. The Appellant walked towards P. W.6 who was sitting in company of his (P.W.6’s) friends. The Appellant was shouting in Yoruba saying “O Tan Nnu Mi” meaning the matter is now settled. P. W.6 observed that the appellant was licking something on the blade of the matchet. P. W.6 decided to arrest the appellant but the latter began to run away. P.W.6 shouted to the appellant to drop the matchet and the appellant did accordingly. The appellant was over-powered and then arrested before he was taken by P.W.6 to the police station at Aiyetoro. Later, P.W.2 arrived at the police station and lodged a complaint that the appellant had killed the deceased.

P.W. 6 went with P.W.7 to the house of the latter. At the house, P.W.6 saw the deceased lying in a pool of blood. She was already dead. Later the body of the deceased was conveyed to the State Hospital at Ilaro, by Police Sergeant Anthony Okoro (P.W.7). The corpse was examined by a medical officer, Dr. E.T. Simon after it was identified to the doctor by Lamidi Salako, P.W.3. The doctor who was an Indian, did not give evidence at the trial as he had left Nigeria at the time of the trial. However, his report was tendered in evidence by P.W.7 as exhibit D. In the report the age of the deceased was said to be 65 years and that she suffered long deep lacerations on the right side of her head which was described as “contusion-abrasion (L) zygoma.” In the opinion of the doctor, the cause of the deceased’s death was massive loss of blood due to excessive lacerations on the right side of the head.

On the 6th February, 1980 the appellant made a statement to P.W.7 under caution. The statement was put in evidence as exhibit E. It reads-

“Madam Sinotu Malomo is my mother and Karimu Sanusi is also my father. I had one private car which I have been using and people do call me Shagari and after the damaged (sic) of my car people keep on calling me some name (sic). It was yesterday 5/21/80 at about 15.00 hrs, my father and my mother were trying to react to me in the way I don’t like I in the night I (sic) brought (sic) one cutlass at the rate of N3.00 from one woman her name I don’t known (sic).

She is near the Customary Court Aiyetoro. After buying the said cutlass I went home with it for any action that my father and mother may react to me again. On getting home I still discovered that both of them were against me. Then I decided to match (sic) one of them that is my mother. I matched her on the neck. When my father saw that I was cutting my mother he escaped to unknown place. After giving her about three cuts she fell down and I don’t know what happened next and I ran away and I was later held by one man I don’t know before with the cutlass. I was later brought to the police station. That is all.”

The appellant testified in his defence. He identified P.W.2 as his father, He said that he knew the deceased and that she was his mother. He said that he had never done anything unusual to his mother at any time material to this case and that he did not know her whereabout. He could not remember when he saw her last. When his counsel asked him about what happened on the 5th day of February, 1980 he gave no answer and the learned trial Judge observed that the appellant “just stood motionless and speechless.” That was how the examination-in-chief by counsel to the appellant ended. The appellant answered only 3 questions under cross-examination before he again stood motionless and speechless when further questions were asked. His answers under the cross-examination are-

“I do not know why I have been brought to court. It is true I used to be a professional driver. I don’t know why I have been put in prison custody.”

As can be seen, the defence of insanity was not put up by the appellant in either his statement to the police, exhibit E or his testimony. It was his counsel that raised the defence in his address to the trial court by submitting that the appellant was not guilty of the offence charged since the appellant suffered from unsoundness of mind and could not have formed a mens rea to commit the offence.

In his judgment, the learned trial Judge considered what constitutes the defence of insanity by referring to numerous decided cases on the point. In coming to the conclusion that the defence of insanity could not avail the appellant, the learned trial Judge stated thus-

“The case for the prosecution on the mens rea that is, the accused’s intention to kill the deceased, his mother appears to be stronger and to have been reinforced by exhibit “E” which was however disowned by the accused through his counsel and the aftermath vis-a-vis its exclusion would be touched later.

A perusal of the accused’s statement, exhibit “E” portrays a case of premeditated murder having its root from the time the accused alleged that his parents were not within a reasonable time, coming to his aid to redeem his prestige as a transporter before his admirers who had popularised his name by calling him “Shagari” when his vehicle was on the road and even after it had broken down due to lack of spare parts having conceived the notion that his pride had thus been hurt or his image dented, decided to take it back on either of his parents and which eventually turned out to be his mother whom he hacked to death by a matchet he previously bought on the eve of the fateful night and cleverly hidden under his garment at the time he decided to violently strike at his victim. He vividly remembered following this sordid act that his father escaped to an unknown place and that he was later held by one man whom he never knew before the incident.

The accused’s story as thus presented in exhibit “E” is in no way different from the case presented by the prosecution against him and neither his evidence in his own defence which is no more than his ipse dixit of his complete unawareness of what had happened to his mother the deceased on the fateful night and for which he is now standing trial.

The evidence thus given by the accused in his defence is void in all respects as to constitute a defence of insanity which cannot be proved by mere denial of knowledge when or that the act was committed. See the case of Egbe Nkanu v. The State (1980) 3-4 S.C. 1 at p.13″ (Italics mine).

The portions of the foregoing quotations which I have italicized are obvious misdirections by the learned trial Judge. The appellant did not and could not have bought the matchet the night before the incident, that is the night of the 4th February, 1980, because from the evidence of P. W.2, which the learned trial Judge said he accepted the appellant was arrested by the police on the 4th February, 1980 for going about waving a matchet in public and was not released to P.W.2 until between 2p.m. and 3p.m.” on the 5th February, 1980 as testified under cross-examination by P.W.2. It is not clear even from the statement of the appellant in exhibit E as to the night of what day the appellant bought the matchet. It could be the night of 5th February, 1980 or indeed an earlier night. Secondly, the story of the accused in exhibit E says nothing about the history of his mental illness or his smoking of Indian hemp, but the evidence of P. W.2 adduced by the prosecution gave his mental antecedent before the commission of the murder. To that extent exhibit E is not “in no way different from the case presented by the prosecution against him (appellant)”. Thirdly, it is not the testimony of the appellant that raised the defence of insanity but the submission of his counsel.

These misdirections must have influenced the mind of the learned trial Judge in coming to the conclusion that the appellant’s plea of insanity could not succeed.

Not satisfied with the decision of the trial Judge, the appellant appealed to the Court of Appeal. In its judgment, the Court of Appeal (per Uche Omo, J.C.A.) observed as follows-

“What evidence is there of the appellant’s state of mind at the time of offence charged Although he had been chasing people about with a matchet the day before the incident, he had seemed well enough to be released to his parents the next day; a few hours after which he committed the offence. As evidence of his state of mind at this most relevant time appellant’s (sic Respondent’s) counsel has also relied on three pieces of evidence. The first is his clandestine behaviour just before the attack on his mother, to wit, hiding the matchet he used in his garment. The second is the appellant’s pretence that he had come to collect the balance of his food allowance promised him whereas he had a different mission – to kill his mother. The thirdly (sic) is that immediately after the killing the appellant did not hid (sic) the matchet used but instead displayed it about the town, and licking its blade with glee.

…………………………………………

Assuming, without so finding, that the conclusion drawn from those facts by the trial Judge is wrong, are these facts taken together capable of satisfying the requirements of sections 27 and 28 of the Criminal Code aforementioned, so as to justify a verdict of not guilty on ground of insanity I must say I do not think so. For they are not enough to even show that the appellant was at the material time suffering from disease of the mind, whereas such evidence must also show that the disease affected his will to control his action(s) in committing the offence of murder charged vide Phillip Upetire v. A-G. Western Nigeria, (1964) 1 All N.L.R. 204…..

Can a different conclusion on the defence of insanity be arrived at by a consideration of both the three pieces of evidence and the antecedent history testified to The answer must surely be in the negative. All the antecedent evidence set out and commented on earlier stop far short of establishing that he was mentally sick as at the date of the committal of the offence. It does not attempt to show what the nature of the mental illness was, let alone seeking to establish that it was capable of having the legal effect grounding the defence of insanity.”

The Court of Appeal, amongst other reasons, therefore, dismissed the appeal. The appellant then appealed further to this court. Only the omnibus ground was filed with the Notice of Appeal. Learned counsel for the appellant applied and leave was granted to him to file and argue the following additional grounds of appeal –

“1. The learned Justices of the Court of Appeal erred in law by dismissing the Appellant’s appeal against his conviction for murder, the said appeal being mainly based on the Defence of Insanity, when the availability of all aspects of the said Defence of legal insanity was not fully or properly investigated by the learned trial Judge, and applied to the particular circumstances of the proceedings before him.

Particulars of Error

(i) On a true and proper comprehension of the reasons for judgment of the trial Court (as gleaned from the printed evidence on record), it is obvious that the Appellant’s conviction is founded on the grounds that the Defence that his mind was affected by delusions on some specific matters could not be supported, having regard to the evidence.

(ii) The issue of Delusions being only the second segment of the Defence of Insanity provided for by S.28 of the Criminal Code, Ogun State (Cap. 29, Volume 2, Laws of Ogun State 1978), both the learned trial Judge and the Court of Appeal were in law duty bound to fully and thoroughly investigate the availability to the Appellant of the remaining exceptions or exemptions from criminal liability for the offence of murder provided for by the first segment of S.28 aforesaid.

(iii) Having regard to all the facts and circumstances of the case, had the Court of Appeal made full and thorough enquiry, and properly directed itself as to the law on the issue, the Appellant’s appeal would have been allowed, and a verdict of Not Guilty by Reason of Insanity would have been substituted for the judgment of the learned trial Judge.

2. The learned Justices of the Court of Appeal erred in law/on the facts by failing to observe that having regard to the burden of evidence required to be discharged both by the defence and the prosecution where the defence of Insanity to a charge of murder is being considered, the Prosecution failed in their discharge of the onus which had, on the evidence, clearly shifted to them to be established in the particular circumstances of the instant proceedings on appeal.

Particulars of Error.

(i) The burden of proof of the Defence of Insanity (which a murder-accused is required to discharge) being mere proof on a balance/preponderance of probabilities, where a prima facie case of Insanity is established by evidence, the Prosecution is obliged to adduce sufficient evidence tending to establish that the Appellant was in fact of sound mind at the time of the commission of the alleged offence.

(ii) The availability (or otherwise) of the Defence of legal Insanity is always a question of fact to be decided upon having regard to the evidence adduced in every particular case (such evidence not being limited to medical or psychiatric evidence).

(iii) Having regard to the overwhelming evidence of previous, contemporaneous, and subsequent acts of abnormality of the Appellant. (being matters relevant to the issue of Insanity), and to the “medical history” evidence adduced and believed by the learned trial Judge, that Court (and the Court of Appeal) ought to have observed that a prima facie case of Insanity had been made out.

(iv) The prosecution failed to adduce any evidence whatsoever tending to restore the presumption of sanity in the Appellant (vide S.27, the Criminal Code) at the time of commission of the alleged offence.

(v) By reason of the premises of (i)-(iv) above, the Court of Appeal ought to have observed that a prima facie case of Insanity had been established on a balance of probabilities/preponderance of evidence, and to have returned a verdict of “Not Guilty By Reason of Insanity” accordingly .

3. The judgment of the trial Court (and its confirmation by the Court of Appeal) is unreasonable, unwarranted, and cannot be supported, having regard to the evidence.”

The questions for determination are given in the appellant’s brief of argument rather in a round- about manner. No less than ten issues had been postulated. It is more helpful to rely on the grounds of appeal in order to determine the real issues for determination. Simply put the main issues for determination are, in my view-

1. Whether the learned trial Judge misdirected himself when he held that there was no evidence before him which established that at the time of committing the offence charged, the appellant was insane.
2. 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, Cap. 29 of Volume 2 of the Laws of Ogun State, 1978.
3. Whether the Court of Appeal was right in upholding the decision of the learned trial Judge that the defence of insanity had not been proved by the appellant.

Now section 28 of the Criminal Code, Cap. 29 of the Laws of Ogun State, 1978 which is word for word the same with the provisions of Section 28 of the Criminal Code, Cap. 42 of the Laws of the Federation of Nigeria, 1958 provides”

“28. 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 delusion to believe to exist.”

This case is concerned only with the first part of Section 28 as the defence of the appellant was not based on delusion which is the subject of the second arm of the section. For a defence of insanity to succeed under the first part of Section 28, the accused must be shown to the trial court to have been, at the time of committing the offence, suffering from-

1. Mental disease or
2. Natural mental infirmity which has led to either of the following three incapacities-

(a) Incapacity to understand what he was doing.

(b) Incapacity to control his actions

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

See R. v. Omoni, 12 W.A.C.A. 511; Queen v. Owe, (1961) All N.L.R. (Pt. 4) 680; Ukadike v. State, (1973) 6 S.C. 17 and Lake v. State (1985) 1 NWLR (Pt.1) at pp.11 and 12.

The burden of proving insanity rests on the accused person. See Section 140 subsection (1) of the Evidence Act, Cap. 62 of the Laws of the Federation of Nigeria 1958 which provides-

“140-(1) 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 person.” and R. v. Echem, 14 W.A.C.A. 158; R. v. Onakpoya, 4 F.S.C. 150 and Okunnu v. State, (1977) 3 S.C. 151.

In the instant case the evidence of the appellant’s insanity was given by P.W.2 – his father. The appellant himself did not give such evidence nor call any defence witness to testify to that effect. The appellant merely relied on the prosecution’s evidence to raise the defence of insanity as he was entitled to do by virtue of the provisions of Section 140 subsection (2) of the Evidence Act. Cap. 62 which states-

“140-(2) The burden of proof placed by this Part upon an accused charged with a criminal offence shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution, whether on cross-examination or otherwise, that such circumstances in fact exist.”

However Section 140 subsection (3)(b) of the Evidence Act provides that nothing in subsection (2) “shall affect the burden placed on an accused person to prove a defence of insanity.” But this Court observed in Sule Noman Makosa v. The State, (1969) 1 All N.L.R. 363 at p.366 as follows-

“It may well be, as the learned trial Judge stated, that section 140(3)(c) of the Evidence Law, places the onus of establishing insanity on the accused person. That however does not mean that an accused must necessarily call evidence to do so for it is not infrequently possible for an accused person to extract from the prosecution witnesses such evidence as would be sufficient to discharge the onus which the law has placed on him in this respect.”

It is settled law that the question whether an accused who sets up a defence of insanity is in fact insane is a question of fact to be determined by the trial Judge. In determining the defence, the trial Judge is enjoined to take into consideration any admissible medical evidence and the whole of the facts and the surrounding circumstances of the case, which will include the nature of the killing, the conduct of the accused before, at the time of as well as after the killing and any history of mental abnormality – see R. v. Inyang, 12 W.A.C.A. 5 at p.7; Walton v. The Queen, (1978) A.C. 788 (P.C.) at p.793; (1978) 66 C.A.R. 25; James Anyim v. The State, (1983) 1 S.C.N.L.R. 370 at p.377; and Loke v. The State, (supra) at p.6.

Now in the light of the foregoing principles of law, was the trial Judge right in rejecting the appellant’s defence of insanity First of all it is necessary to point out that the evidence given by P.W.1 Dr. Sijuwola concerned only the fitness of the appellant to stand his trial – a condition precedent to trial imposed by section 223 of the Criminal Procedure Law, Cap. 30 of the Laws of Ogun State, 1978. It is not evidence which was proffered or adduced after the commencement of the trial against the appellant which began with his arraignment, the reading of the charge and the taking of his plea – Oyediran v. The Republic. (1967) N.M.L.R. 122 at p.125 and Kajubo v. The State. (1988) 1 N.W.L.R. (Pt.73) 721 at pp.731 and 736. Section 223 of the Criminal Procedure Law provides –

“223(1) When a Judge holding a trial or a magistrate holding a trial or an inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence the Judge, jury or magistrate, as the case may be, shall in the first instance investigate the fact of such unsoundness of mind.

(2) Such investigation may be held in the absence of the accused person if the court is satisfied that owing to the state of the accused’s mind it would be in the interests of the safety of the accused or of other persons or in the interests of public decency that he should be absent, and the court may receive as evidence a certificate in writing signed by a medical officer to the effect that such accused person is in his opinion of unsound mind and incapable of making his defence or is a proper person to be detained for observation in an asylum, or the court may, if it sees fit, take oral evidence from a medical officer on the state of mind of such accused person.

(3) If the Judge, jury or magistrate, as the case may be, is not satisfied that such person is capable of making his defence, the court shall postpone the trial or inquiry and shall discharge the jury, if any, and shall remand such person for a period not exceeding one month to be detained for observation in an asylum.

(4) The medical officer shall keep such person under observation during the period of his remand and before the expiry of such period shall certify under his hand to the court his opinion as to the state of mind of such person, and if he is unable within the period to form any definite conclusion shall so certify to the court and shall ask for a further remand. Such further remand may extend to a period of two months.

(5) Any court before which a person suspected to be of unsound mind is accused of any offence may, on the application of a law officer, made at any stage of the proceedings prior to the trial order that such person be sent to an asylum for observation. The medical officer may, notwithstanding any other provision of law remand any such accused person for such period, not exceeding one month or may be necessary to enable him to form an opinion as to the state of mind of such person, and shall forward a copy of his opinion in writing, to the court.”

It is clear, therefore, that the proceedings pursuant to section 223 are not part of the actual trial of the appellant but preliminary to the trial. In my opinion any evidence given at that stage, whether in the form of a written report or oral evidence by the medical officer does not form part of the proceedings which constitute the trial. In its judgment the trial Court variously referred to the evidence of Dr. Sijuwola as follows-

“Granted that examination of the accused by Dr. Sijuwola a Neuro Psychiatrist of his repute first on the 18th of May, 1981 a little over a year after the commission of this heinous crime and second in September, 1985 as supported by his reports exhibits “A” and “A1″, revealed that the accused had catatonic posturing from which he made a catatonic diagnosis of catatonic schizophrenia which, according to the meaning ascribed to it in Black’s Law Dictionary-5th Edition, p.199 is that………………

The Psychiatrist’s expert diagnosis would however have to be related to the time of the commission of the alleged offence to assist the accused in his special defence of insanity, which no doubt involves ‘an acceptance of responsibility of the act complained of ………………………………………….

The evidence of Dr. Sijuwola, 1st P.W. which can hardly be faulted, is indeed cogent and accepted as such by me. Albeit, the fact remains that the first time he saw the accused was long after the incident, 18th of May, 1981 to be precise and which therefore puts the probative value of his evidence outside the relevant time…………

I would say at the risk of being repetitive that the evidence of Dr. Sijuwola is not only cogent but very much helpful on the mental fitness of the accused to plead and stand trial……………………….

Whilst I have no reason to differ from the Psychiatrist’s expert opinion that the accused suffered at one time or the other from catatonic schizophrenia, it can hardly be denied that the accused had not stimulated his matricide plan by having a smoke of indian hemp to which he had by that time become an addict.”

As can be seen from the above excerpts, the learned trial Judge sought to find proof in the testimony of Dr. Sijuwola of the appellant’s plea of insanity.

This is obviously wrong and the learned trial Judge grossly misdirected himself in doing so. The evidence of Dr. Sijuwola was not evidence adduced in the course of the trial, nor was it tendered in the course of the trial in order to form part of the evidence that was admitted at the trial of the appellant. The Court of Appeal also relied on the evidence of Dr. Sijuwola to reject grounds 1, 2 and 3 of the appeal before it. These grounds complained against the rejection by the trial court of the appellant’s defence of insanity. The grounds, without their particulars, read –

“1. The learned trial Judge erred in law when he failed to consider the state of mind of the appellant at the time of the commission of the offence.

2. The learned trial Judge erred in law when he failed to consider properly the antecedent history of the appellant as regards his irrational and abnormal behaviour before the date of the incident.
3. The learned trial Judge erred in law and his assessment of the fact when he convicted the appellant of the murder when there is evidence of insanity of the appellant spreading over a long period including the time of commission of the alleged offence.”

The lead judgment of the Court of Appeal (per Uche Omo J .C.A) reads in part as follows –

“Neither the prosecution nor the defence produced as I stated earlier such a report/evidence as to the possible/probable relation between appellant’s condition in 1977/9 and his state of mind on 5/2/80. What is worse, when the Psychiatrist who testified as to fitness to plead was called, the defence did not succeed to elicit from him whether the mental condition he observed in 1981 when he examined the appellant, could have been in existence on 5/2/80 when the offence was committed. Furthermore, and specifically, whether the behaviour of the appellant on 4/2/80 and 5/2/80 was consistent with the existence then of the mental disease he diagnosed in November, 1981.

In the absence of such evidence it is futile in my view for appellant’s counsel to seek to rely on, as evidence of insanity, the mental condition of the appellant as testified to by the psychiatrist

(P.W.1) when he examined him over a year after the murder charge.

It is not correct that P.W.1, the psychiatrist, described the nature of the illness from which the appellant had been suffering since 1977 as a catatonic posturing, as appellant’s counsel has setout in his brief. What he described, was the illness he identified when he examined him in 1981 and no more!!… The deduction which the appellant’s counsel sought to make could have been elicited as positive evidence from P.W.1 by counsel in the court of trial. Far from being misdirection therefore, the finding of the trial Judge that:

‘The psychiatrist’s expert diagnosis would however, have to be related to the time of the commission of the alleged offence to assist the accused in his special defence of insanity…’ is very correct.

…………….. Grounds 1, 2 and 3 therefore fail.”

The only relevant evidence which was properly before the learned trial Judge and from which the defence of insanity could be assessed consisted of the testimonies of P.W.2, P.W.4, P.W.6 and P.W.7. Since the trial Court and the Court of Appeal misdirected themselves by not doing so and by wrongly assessing the testimony of P.W.1 to establish insanity, it becomes the duty of this Court in exercise of both its inherent powers under the 1979 Constitution and the powers under Section 30 of the Supreme Court Act, 1960 to assess from the record of proceedings whether the defence of insanity, pleaded at the trial by the appellant, is sustainable. Section 30 of the 1960 Act, as amended, reads-

“30. On the hearing of an appeal under this Part, the Supreme Court may exercise any power that could have been exercised by the Court of Appeal or may order the case to be retried by a court of competent jurisdiction.”

The testimony of P.W.2, as relevant, reads as follows-

“About 1977-1978 the accused was at the Mental Hospital at Yaba, receiving mental treatment from where he was later discharged when he returned home to Aiyetoro. We noticed some improvement as his behaviour appeared normal. Later about six months later in 1978 he started to misbehave again and I took him back to Yaba Mental Hospital after much pleading as he had been warned not to take indian hemp again. Following his discharge about the end of 1979 he resumed taking hemp and started to misbehave and threatening people in the neighbourhood with matchet. On one occasion I rescued the mother (deceased) from him and warned him not to repeat it and to stop taking Indian hemp. No sooner than I warned him he started again and when seen by the police waving matchet he was detained and arrested and this was in 1980 about the 4th of February. The police then invited me and his late mother Sinotu Malomo…..The police asked us whether he was taking Indian hemp and we confirmed it. They then showed us the matchet taken from him. The accused then related to the police that he was a professional driver and that he started smoking Indian hemp since myself and his late mother refused to give him financial assistance to repair his vehicle. I assured the accused in the presence of the police that I would give him financial assistance either to repair his vehicle or to buy another one if that would make him stop taking Indian hemp. He was handed over to us and on reaching home on 5/2/80 myself and his late mother appealed to him to stop taking hemp and (he) should be prepared to go back to Yaba Mental Hospital. He said he would not go until he received N20.00 for food allowance and immediately the mother – Sinotu gave him only N5.00 as that was the money she had on her at the time. Sinotu promised to give the accused the balance of N15.00 when the father (sic) is ready to take him to Yaba Mental Hospital. That night one of his mother’s customers named Bankole came to me. Sinotu in fact lives in her own house very near to mine.

Bankole followed the accused to his mother’s house to confirm his observation to her that the accused has (sic) not recovered from his mental illness. The accused, Bankole, Yinusa Salako and Sinotu returned to my house and we all stood outside and after some questioning Sinotu untied her wrapper to take out the balance of N15.00 to give to the accused, who suddenly took out a matchet unknown to us hidden under his garment and started to matchet his mother Sinotu on the head and back. Sinotu fell (down) and died. Bankole and Yinusa escaped for their lives. Whilst I raised alarm for help. The accused chased me for about 100 yards before he turned back.”

The witness said under cross-examination –

“I first became aware of the accused’s mental illness about 1977 or 1978 when the accused left Aiyetoro to go to Lagos to buy motor spare parts and for about six months we looked for him without knowing his whereabout. We later saw him suddenly when he showed up at home and gave us a history that he went to Lome and that we should give thanks to God for sparing his life as he was beaten mercilessly and so much that he was saved by the Nigerian Ambassador in Lome. He was later repatriated to Nigeria and confined at Yaba Mental Hospital for treatment….

The accused was released to us by the police on 5/2/80 between 2p.m. and 3p.m. and he matched his mother between 8p.m. and 9 p.m.”

The relevant testimony of P.W.6 reads as follows-

“I know the accused and I remember that on 5/2/80 whilst I was on private visit to Idofoi Quarters, Aiyetoro I saw the accused at about 9.30 p.m. coming out from a corner holding a cutlass in his right hand and on his left hand a half bottle of lager beer and heading towards where I sat with my friends. He was all the time shouting “O TAN NNU MI” meaning the matter is now settled.

As the accused came closer I observed he was licking some thing in the body of the cutlass as I wanted to arrest him he started to run and I shouted on him to drop the cutlass and he did. He was later over powered and arrested and taken to Aiyetoro police station together with the cutlass.”

P. W. 7 said under cross-examination- When I first saw the accused he looked to me as someone abnormal or someone who is (sic) not well.

The accused was brought to the police station on 5/2/80 with his hands tied but he was normal on 6/2/80 when I took his statement.”

Now from the above evidence, which the learned trial Judge accepted, it is very clear that the appellant had been suffering from a mental disease since 1977. This disease, though perhaps caused by the smoking of Indian hemp by the appellant, had the effect of inducing the appellant to occasionally threaten people in his neighbourhood with a matchet. During one of such incidents, the appellant threatened the deceased and she had to be rescued by P.W.2. On 4th February, 1980 the appellant was seen by the police waving a matchet in public and he had to be arrested. All these pieces of evidence when considered together go to show that long before the incident that gave rise to this case the appellant had a history of mental illness and as a result of the mental illness he was in the habit of threatening people with a matchet. At the time of committing the offence, there is no evidence by the eye-witnesses, namely P.W.2 and P.W.4, that the appellant was provoked before he attacked the deceased. As a matter of fact, the deceased was about to appease the appellant, by giving him the balance of the N20.00 he demanded hours before, when appellant attacked her with the matchet. This appears to me to be the act of an insane person. The behaviour of the appellant, after killing the deceased, of licking the matchet is also consistent with the behaviour of an insane person.

In view of all the circumstances of this case, I am satisfied, on the balance of probabilities, that the appellant had no capacity to control his action at the time of committing the offence. The fact that the appellant made a statement to the police – exhibit E giving reasons for his action and suggesting that the murder of the deceased was premeditated by him, does not alter the view which I hold of the case, because his account in the statement does not in fact agree in material respects with the testimonies of the prosecution witnesses (P.W.2, P.W4 and P.W.6) to the incident of the 5th February, 1980.

I, therefore, hold that although the evidence overwhelmingly proved that the appellant killed the deceased, he is not guilty of murder by reason of insanity.

It is not necessary to consider the omnibus ground of appeal contained in the notice of appeal and also filed as additional ground since no argument in support of it has been advanced either orally or in the appellant’s brief of argument. The grounds must, therefore, be taken as abandoned.

On the whole the appeal succeeds. The judgments of the High Court and the Court of Appeal are hereby set-aside. The conviction of murder and the sentence of death passed on the appellant are quashed; and instead I enter a verdict of not guilty by reason of unsoundness of mind.

In accordance with the provisions of section 27 subsection (4) of the Supreme Court Act, 1960 and Section 230 subsection (1) of the Criminal Procedure Law, Cap. 30 of the Laws of Ogun State, 1978, the appellant is hereby ordered to be confined in a safe place as may be ordered or determined by the Governor of Ogun State.

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SC.3/1988