Josephine Ani V. The State (2002)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

This is an appeal from a conviction for murder. The defence raised at the trial was that of insanity. The learned trial Judge held that the defence of insanity failed. The appellant’s appeal to the Court of Appeal was dismissed. She has further appealed to this court.

The facts of this case are not in dispute. The appellant on the morning of 1/3/88 left her house and went to the house of PW3 Charity Ani whom the appellant described as “my friend.” She met PW2 and the deceased children at home. On inquiry about PW3 and her husband, the children told the appellant that their parents had gone to the farm. Upon hearing this, the appellant went to a nearby mechanic workshop and picked up an iron rod and returned to the house of PW3. The appellant first attacked Peter aged 5 years with the iron rod. While Peter cried in pains he told Amoge aged 4 years to run for safety. The appellant hit Peter on the head with the iron rod several times until he died. Next, the appellant pursued Amoge to a house where she took cover under a bed. The occupant of the room on seeing the appellant, showed the appellant where Amoge was hiding. The appellant then dragged Amoge out from under the bed. She hit Amoge repeatedly with the iron rod until she died. Thereafter the appellant chased PW2 who ran to the motor park for help. When the appellant saw a policeman (PW4) she ran. PW4 however chased her, caught up with her and arrested her and took her in for questioning. That was when she made exhibit B confessional statement to the police.

The lone issue for determination raised by the appellant is whether or not the lower court was right in affirming that the defence of insanity did not avail the appellant.

Every person is, unless the contrary is proved, presumed by law to be sane, and to be accountable for his actions. But if there is an incapacity, or defect of the understanding, as there can be no consent of the will, the act is not punishable as a crime. Whether the accused was sane or insane in the legal sense at the time when the act was committed is a question of fact to be decided by the trial Judge and not by medical men however eminent, and is dependent upon the previous and contemporaneous acts of the accused. See R. v. Revitt, 34 Cr. App. R 87.Where an accused pleads insanity, the onus is on him to produce evidence of insanity. In the instant case the onus was on the appellant to establish insanity. See Udofia v. The State (1981) 11-12 SC 49. Although plainly there was no apparent motive for the gruesome murder, the law is that mere absence of any evidence of motive for a crime is not sufficient ground upon which to infer mania see R. v. Ashigifuwo 12 WACA 389. The absence of motive is at most a matter to be taken into consideration when there is no other evidence indicative of insanity rather than the opposite – Ayinde v. The Queen (1963) 2 SCNLR 362; (1963) 1 All NLR 393.

It is to be observed that the law on the subject to which the court must address its mind is section 28 of the criminal code. The section provides that a person, “is not criminally responsible for an act ……if at the time of doing the act…..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 know that he ought not to do the act ”

In order, therefore, to establish the defence of insanity, the defence must first show that the accused was at the relevant time, suffering from either mental disease or from a “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.” See R. v. Omoni 12 WACA 511.

So much for the law.

I now turn to the application of the law to the facts. The defence of the appellant at her trial was, I need hardly say, simply one of insanity. The defence called certain witnesses. The first was Reuben Osahon consultant and psychiatrist of the psychiatrist hospital Benin city. The sum total of his evidence is that “from the history I have given and from the examination of the accused person there was no doubt that she was suffering from depressive illness.”

The second witness was Maria Enefome Urefe (Mrs.), a pharmacist and technician at the prison clinic. She testified inter alia:

“When I tried to interview the accused person she was unable to say reasonable thing and was incoherent, accused person was restless…”

The appellant herself gave evidence in her defence. Her evidence, in part, reads:

”The mother of the deceased told me that she will revenge on the husband but I advised the mother of the deceased PW3 to live in harmony with husband despite their misunderstanding. Thereafter the PW3 informed me that she has some medicine she wanted to make so that the husband will like her, the PW3 invited me to accompany her to the place of the native doctor but I refused on the ground that I had never visited a native doctor since I was born. The PW 3 said that I should not inform the husband of her mission, due to much pressure I agreed to accompany the PW3 who said that I should accompany her to the place of the native doctor at ring road, Benin city. Thereafter when PW3 took me to the place of the native doctor at ring road it turned out that the person is an Hausa man. When I entered the latter person’s place PW3 said that I am the person she has been telling the Hausa man. There the Hausa man brought out two chairs and asked myself and PW3 to sit down and I sat near the juju. There they told me to sit down and they will put something in my body so that the medicine they will put in my body will make the medicine they will do for PW3 not to affect me. Thereafter the Hausa medicine man carried a juju and put it on my head, when this medicine was put on my head I felt very different, I could not talk again and even the way I felt I wanted to shout but could not shout; but thereafter the Hausa man brought out a razor and put some cuts on my hands and applied the medicine. Thereafter I became unconscious of myself and could not even remember what the Hausa man did to me, since that date I did not know how I left the place of the medicine man and returned to my residence. It was after I was put in prison custody and I was being treated that I came to know myself.”

It is to be observed that the alleged visit to the native doctor took place three months before the commission of this crime.

As I have already indicated, there was no apparent motive for the gruesome murders of the innocent children. But it was argued on behalf of the appellant that the court should have inferred insanity or some mental disorder from the fact that there was no motive for the murders. But as I have already stated, the law on this point is now settled. Mere absence of any evidence of motive for a crime is not sufficient ground upon which to infer insanity. See R. v. Ashigifuwo (supra).

But let us examine the evidence a little more closely. It is to be borne in mind that in insanity cases, the Judge must consider the behaviour of the accused at the time of the killing as well as after the killing. See Kure v. The State (1988) 1 NWLR (Pt. 71) 404; Ishola Karimu v. The State (1989) 1 NWLR (pt.96) 124 SC; (1989) 1 SC 121 at 134.First, the events prior to the murders. PW2 Teresa Ogbuani was an eye witness to the killing of her little brother and sister. In her evidence-in-chief she testified thus:

“On 1st day of March, 1988 my father Mr. Ogbuani went to the farm so also was my mother. On the same day the accused came to our house and asked for my father and I told her that my father had gone to the farm so also was my mother, thereafter the accused went to the main road and look to both end of the road to ascertain if any person was coming – during this period every person and our neighbours had gone to the farm leaving only small children at home. After accused had ascertained that nobody was coming to our house she went to a mechanic shed and accused pick up an iron rod thereafter accused hit the iron rod, after the accused locked three of us inside the house, myself, Amoge and Peter. As we were knocking on the door after the accused locked us inside the house an old woman who owned the house came and opened the door for three of us. Thereafter three of us earned food and began to eat outside our residence, whilst there the accused came to us, pushed the deceased Peter Ogbuani down and used the piece of iron rod she was holding to hit him on the head several times. The deceased cried as he was being hit on the head by the accused, and told Amoge Ogbuani to run but the accused person after killing Peter pursued Amoge as she was running she entered the latter woman’s house as she was pursuing Amoge, the woman showed Amoge the deceased to the accused who dragged Amoge out from under the bed and used the piece of iron she was holding to kill the deceased Amoge in the woman’s house, after accused had killed Amoge I began to run ,and the accused began to pursue me. I ran to the motor park and went and called some person at the park who pursued the accused and caught her. When those persons caught the accused they held her and used some rope to tie her hand. The accused person was later taken away by a policeman.”

PW 4 sgt. Joseph Irumudimam was the IPO. In his evidence, he said:

“Immediately the accused saw me she began to run away, I pursued the accused and arrested the accused person with the iron rod. I later took the accused to the Esigie police station for investigation.”

Under cross-examination this witness said:

“I was wearing my police uniform and when the accused sighted me she began to run.”

In his judgment the learned trial Judge considered the evidence on this issue and held that the defence of insanity was not established. He rejected it. The court below affirmed this decision.

The first point to note is that when the appellant came to the home of PW3, she enquired about the whereabouts of the parents of the children. PW 2 told her that their father and mother had gone to the farm. Secondly on hearing that the parents were not home, the appellant went to a mechanic workshop up the road, picked up an iron rod and returned to the house. That was when she savagely killed the children. It must be remembered that in the case of little Amoge, she ran to a neighbour’s room and hid under the bed. The appellant pursued her, dragged her out from under the bed, took her outside and beat her to death with the iron rod. When she finished with her, she chased PW 2 who ran to the motor park. It is instructive that the appellant did not attack any other child or person. She confined her attack to the children of PW 3. Surely if she ran amok as it has been suggested then she would have attacked anybody in her way. I am clearly of the view that this was a case of premeditated murder.

I am strengthened in this view by exhibit B, the statement of the appellant made on 1/3/88 the day of the incident. It was a confessional statement. It is coherent. And the events are stated in their chronological order. It is important to note that the appellant herself provided the motive for the murders. She stated in exhibit that she killed the children because their mother (PW 3) used her (the appellant) for juju in order to make money.

From the evidence before the trial court, it will be seen clearly that the appellant was not, at the time of the commission of the offence, in such a state of either mental disease or natural mental infirmity as to deprive her of the capacity to control her actions: See R. v. Omoni 12 WACA 511.

The evidence of the state of mind of the appellant after the killing was manifest in exhibit B. This is a confessional statement she made to the police after her arrest soon after the commission of the crime on 1/3/88. Exhibit B is coherent. It sets out the sequence of events of that fateful day. What is more, the appellant was still at the scene of crime when PW 4 a policeman arrived. When the appellant saw him, she ran away. This is evidence that she knew she had done wrong. I have therefore no doubt in my mind whatsoever that the appellant both understood what she was doing and knew that she ought not to have done it. In my judgment the behaviour of the appellant immediately before and immediately after the killing did not suggest any insanity on her part. The defence of insanity was rightly rejected by the two courts below. See Madjemu v. The State (2001) 9 NWLR (Pt.718)349.

In the circumstances, this appeal is dismissed. The conviction and sentence are hereby affirmed.

sc.315/2001