Lasisi Saliu V. The State (1984)
LawGlobal-Hub Lead Judgment Report
KAWU, J.S.C.
This is an appeal against the decision of the Court of Appeal which affirmed the conviction of the appellant and the sentence of death passed on him on the 1st day of February, 1977 by Ayorinde J, sitting at Ibadan in the Ibadan Judicial Division of Oyo State for the murder of one Adeola Sallrnonu, also known as Adeola Abeje.
The facts of the case were not in dispute and these were contained in the evidence of 2PW who was the deceased’s landlord at the time. The relevant portion of 2PW’s testimony is as follows:-
“On the 16th June, 19771 went to bed at about 10.00 p.m. About 12 midnight, a noise woke me up. It was one Adeola Abeje otherwise known as Adeola Salimanu, who was making the noise. She was crying ‘save me’ ‘save me’ from the first room on the right of my house where she was sleeping. I rose from the bed and ran to the direction of where Adeola Salimonu was.
The door of Adeola Salimonu’s room was shut. I pushed the door open with my right hand. When I entered the room I met Lasisi Saliu stabbing the said Adeola Salimonu. I then shouted – ‘what was the matter’ Then Lasisi Saliu, the accused pointed the dagger with which he was stabbing Adeola Salimonu to me and said ‘who else’, I dodged the accused and the accused ran out and found his way out. While running out, he made his way out by waving his dagger to other inmates of the house who have (sic) gathered in the passage at the time. The accused ran out of his room and made his way out through the front door to the house when he took to his heels and ran out of the house.”
About four days later the appellant was arrested at Abeokuta. He was subsequently charged with the murder of the deceased and convicted. His appeal to the Court of Appeal was dismissed.
After hearing the submissions of both counsel in this appeal on 22nd August, 1984, we dismissed the appeal for lack of merit, and indicated that we would, today, give our reasons for doing so. I shall now proceed to give my reasons.
Originally two grounds of appeal were filed but learned counsel for the appellant sought and obtained leave of this court to file and argue one additional ground of appeal. Thereafter he announced that he was abandoning his original grounds which were consequently struck out. The additional ground of appeal argued reads as follows:-
“The learned trial judge erred in law in holding that the appellant was ‘guilty’ instead of finding him ‘not guilty by reason of the unsoundness of mind’ and the Court of Appeal also erred in law in dismissing the appeal instead of reversing the verdict.”
In the brief filed on behalf of the appellant by Chief Debo Akande in support of this ground of appeal, four specific points were raised and they are as follows:-
“Firstly it is my submission that the examination of the appellant by an ordinary general practitioner is faulty since he is not a psychiatrist and therefore cannot correctly or absolutely gives an opinion on the state of mind of the appellant. Secondly, the incident occured in June, and the appellant was examined in November by a general practitioner leaving a period of 5 months before examination and observation, wherein the condition cannot be said to be the same. Thirdly, there was evidence of Dr. Aboderin (Page 7 lines 27 – 32), that the assailant of the deceased could be temporarily insane or angry, and the fact that he had not seen many of the types of wounds inflicted on the deceased (page 7 lines 18 and 19) which would make them ‘unusual’ or ‘abnormal’, Fourthly, there was evidence that the appellant did not know what he was doing at the time of the incident and that he had had the urge to kill on several occasions (page 4 lines 34 and 35 and page 23 lines 6,7,8,35 and 36) and these pieces of evidence were not diminished nor was there a contrary evidence. See R v Omani 12 WAC.A. 511 at page 513, Iwuanyanwu v The State 1961 1All N.L.A. 413, R V Inyang 12 WAC.A 5 and Ngene Arum v The State 1979 11 S.C. 91.”
I will take the points one by one.
With regard to the first point the record shows that when the appellant appeared before the learned trial judge on 9th October, 1978, after the charge had been read and the appellant had pleaded not guilty, the court directed as follows:-
“Court:- In view of the observations of the demeanours of the accused by the court it is deemed necessary to send the accused for medical examination by the prison doctor preferably a specialist psychiatrist for one month. It is hereby ordered that the accused be subjected for medical observation for one month starting not later than 13th October, 1978.”
The record shows further that on 30th November, 1978, one Dr. Alli Balogun of the Adeoyo State Hospital, who was at the time the prison doctor in the area, testified that he had on several occasions visited the appellant at Agodi Prison and had, on each occasion, examined him. It was his conclusion that the appellant was capable of following the proceedings of the court consequent upon which the court proceeded with his trial.
Now it is obvious that the learned trial judge’s order of 9th October, 1978 directing the investigation of the soundness or otherwise of the appellant’s mind and consequently his ability to make his defence was in compliance with a the provisions of S.223(1) of the Criminal Procedure Act which reads as follows:-
“223 (1) when a judge holding a trial or a magistrate holding a trial 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.”
Although it is true the learned trial judge did say that he would have preferred a psychiatrist to carry out the investigation, it is my view that it is not the requirement of the law that such an exercise must be conducted by a psychiatrist. In fact all the relevant sections dealing with persons of unsound mind in the Criminal Procedure Act talk of “medical officer” – a term defined in section 222 as ‘the medical officer attached to any asylum or any medical officer from whom a court requires an opinion.”
If the law had intended that the investigation under S.223 (1) must be carried out by only a psychiatrist, it should have so stated. I see no substance in this complaint.
With regard to the second point that the appellant was not examined until five months after the incident, it is my view that this complaint would not have been made if there had not been a misconception of the real purpose of the examination under S.223(1) of the Criminal Procedure Act. As the wording of the section clearly shows, the purpose of the examination is to enable the court to come to a decision on the state of mind of the accused and especially his ability or otherwise to make his defence. That examination has nothing to do with the mental health of the accused at the time of the commission of the offence. The examination would not therefore have served its purpose if it was carried out several months before the trial of the appellant.
With regard to the third point, learned counsel referred us to the evidence of Dr. Aboderin at page 7, lines 27-32 of the record and urged us to conclude that on that evidence the appellant could not have been sane at the time of the commission of the offence. With respect, I am unable to accept this submission.
Dr. Aboderin performed the post-mortem examination on the body of the deceased and from the nature and extent of the injuries he found inflicted on the body, expressed the opinion that death must have been caused by the injuries. He also expressed the view that only an angry person or one temporarily insane could have inflicted such injuries. Dr. Aboderin never saw the appellant even once and the opinion expressed by him on the mental health of the appellant was in my view, mere speculation or conjecture. That opinion cannot be regarded as positive evidence of insanity.
The last point made was that there was evidence that the appellant did not know what he was doing at the time of the incident and could not therefore, in law, be held responsible for the murder. This no doubt raises the defence of insanity as provided by section 26 of the Criminal Code Cap 28 Vol. 1 Laws of Western Nigeria 1959 applicable in Oyo State. The section reads as follows:-
“(26) 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 delusions to believe to exist.”
Chief Debo Akande in support of his contention that the appellant was insane at the time of the act and should therefore enjoy the benefit of the provisions of the first paragraph of the section referred us to the evidence of Dr. Alli Balogun at page 4, lines 34 and 35 where the doctor was recorded to have said that the appellant had informed him that he (the appellant) woke up one night and found that he could not control himself, and when he found a woman sleeping by his side, he did not know when he killed her.
It was Chief Akande’s further submission that Dr. Alli Balogun’s evidence at page 4 coupled with that of the appellant at page 23 conclusively proved insanity as both evidence remained uncontradicted. In this regard, however, I would like to observe that the evidence at page 4 of the record and that at page 23 which evidence is said to be that of insanity came from one and only one source namely from the appellant himself. In my view that cannot be good evidence of insanity as the defence of insanity does not rest with the ipse dixit of the accused person who raises it. However, be that as it may, as has been stated by this court in several cases, for an accused person to be entitled to the benefit of the defence under the first paragraph of the section, it must be established that at the time of the commission of the act he was suffering either from mental disease or natural mental infirmity which mental disease or natural mental infirmity, at the relevant time, deprived him of the 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 Ngene Arum v. The State (1979) 11 S.C.91 at 119).
In this case there was nothing in the circumstances surrounding the crime nor was there any evidence of previous conduct of the appellant which can be held to support the claim that the appellant was insane at the time of the act. On the contrary the evidence of those who knew the appellant well before the incident was to the effect that he had not been abnormal. This evidence was believed by the learned trial judge who in his considered judgment at page 39 of the record said, inter alia:
“I am not satisfied on the totality of the evidence before me that the accused was insane at the time he killed the deceased. It is always for the defence to adduce probable evidence to establish insanity when it is relied upon as a defence”, and further down the same passage he continued:
”There is no probable evidence of insanity before me to afford the accused that defence. All the prosecution witnesses said the accused did not behave abnormally when they knew or met him, and when in police custody.”
After the learned trial judge had pointed out in his judgment that the evidence of accused’s relations or that of any other person who knew the accused’s antecedents might be helpful, citing R v Inyang (1946) 12 WACA 5, he concluded that the evidence of the accused suggesting mental disorder was a hoax which he rejected. He was of the view that the appellant knew what he was doing when he inflicted those fatal injuries on the deceased. In his judgment, the learned trial judge also considered the defence under the second paragraph of the section and came to the conclusion, rightly in my view, that in the circumstances of the case the appellant could not be relieved of criminal responsibility for the murder of the deceased. On the totality of the evidence adduced, I think the learned trial judge was right in his application of the law to the facts proved and that the appellant was rightly convicted.
It was for the above reasons that I dismissed the appeal and affirmed the decisions of the lower courts on 22nd August, 1984.
OBASEKI, J.S.C.: After hearing the submissions of counsel in this appeal on the 22nd day of August, 1984, I found no cause to disagree with the decision of the Court of Appeal. I therefore dismissed the appeal and reserved my reasons for the judgment till today. I now proceed to give my reasons.
The reasons just delivered by my learned brother, Kawu, J.S.C. the draft of which I had the privilege of reading in advance, give full expression to my opinions on the various issues raised in this appeal. I agree with them and adopt them as my own. However, a few additional comments of mine will, in my opinion, give more force and effect to the strength of the said reasons for judgment. The only ground of appeal argued in this appeal reads:
”The learned trial judge erred in law in holding that the appellant was ‘guilty’ instead of finding him ‘not guilty by reason of the unsoundness of mind’ and the Court of Appeal erred in law in dismissing the appeal without reversing the verdict.”
Simply put, this ground presupposes the existence of accepted credible evidence on record that the appellant was by reason of the state of disease of his mind or natural infirmity deprived either (1) of the capacity to know what he did or (2) of capacity to control his actions or (3) of capacity to know that what he did was wrong. This is a defence made available to any accused person by the 1st part or paragraph of section 28 of the Criminal Code Cap 42 Laws of the Federation reproduced as section 26 Criminal Code Cap 28 Laws of Western Nigeria 1959. The acceptance and belief of such evidence relieves any accused person of any criminal liability. It is also observed that the ground of appeal rules out any consideration of partial delusion with which the 2nd part or paragraph of section 28 of the Criminal Code Laws of the Federation (or section 26 Criminal Code Laws of Western Nigeria) deals.
Courts it must be borne in mind, have no jurisdiction to deal with hypothetical questions or academic questions not grounded in reality or on facts. The ambit or compass of questions intended to be dealt with in exercise of the judicial powers vested in the courts of this country vested with judicial powers under section 6(1) and (2) of the 1979 Constitution do not extend to hypothetical questions. See section 6(6) (b) of the 1979 Constitution.
I make this point because from the testimony of the appellant before the court, it is clear
(1) that there was an assault on the deceased by the appellant. Under cross-examination, he said “it was however Adeola that I attacked. …I did not know why I attacked her – the deceased. . I did not intend to kill her but to fight her …I remember I held the knife that night… I saw blood and took to my heels…”
(2) That he was in control of his actions. In his testimony: “I attacked the deceased because she said I was not going to live till the following day” … He knew when to attack and knew when to escape for in his testimony he said “Adeola did not offend me before the fight. I saw blood and took to my heels after Adeola fell down Adeola and I fell down. I then rose up… ”
(3) That he knew what he was doing. Under cross- examination, he said:
“1 did not intend to kill but to fight her… I did not go with a knife from my house but found a knife in the house of the deceased …it was afterwards I took to my heels I have never pretended to be insane.” and
(4) That he knew that what he did was wrong. His flight from the scene after the act when challenged by the landlord and other tenants shows conclusively that he knew that what he did was wrong. This flight took him from Ibadan to Abeokuta where he was found and arrested several days after.
The appellant cannot therefore enjoy the protection of the provisions of section 28 of the Criminal Code from criminal liability.
The crucial point of time is the time of the action, the time of commission of the act – the actus reus or the killing of the deceased. The vivid recollection by the appellant of what took place cannot but negate the existence of a state of disease of the mind or natural mental infirmity that relieves of criminal responsibility.
The evidence adduced by the prosecution witnesses did not, as my learned brother has rightly observed, support a defence of insanity. Instead, it negates it. The evidence of Dr. Akinleye Aboderin, p.w.1 cannot be said to support, remotely, a defence of insanity. The complaint of appellant’s counsel that it raises such a defence though remotely, arises from reading a line of the evidence out of con. To seal the point that there was no positive opinion evidence supporting the defence of insanity in favour of the appellant, I will reproduce the relevant portion of the testimony of Dr. Akinleye Aboderin (p.w.1). It was given in cross-examination. It reads:
“I have seen wounds like those I have described in court before in my experience as a pathologist. I have not seen many of these types of wounds. There must have been a struggle when the wounds I have described were being inflicted between the assailant and the victim especially in view of the wounds on both palms. The wounds on the lips would have been inflicted by the assailant when standing in front of the victim. The deceased could be standing or lying down when the triangular wound on the neck was inflicted. It will not be difficult to say the degree of the soundness of the mind of the assailant of the wounds I saw. The assailant could have been angry or temporarily insane. People with uncontrollable anger do funny things.” (Italics mine).
I think counsel at the trial was not being fair to the doctor, p.w.1 by asking him to give an opinion of the state of the mind of the appellant at the time the wound was inflicted, not from any medical examination of the appellant, but from the nature of the wounds inflicted on the deceased. The doctor was also not fair to himself when he proceeded to assure the court that “it will not be difficult to say the degree of soundness of the mind of the assailant” by merely looking at the wounds inflicted. I do not think medical jurisprudence allows such deductive diagnosis without seeing and examining the patient medically.
In law, such evidence is irrelevant to the question of the mental health of the appellant and is of no probative value. The very basis of the opinion makes the evidence a flight of fancy not worthy of any credit. As it is not a finding from a medical examination of a supposed patient, the evidence is inadmissible. Finally, the evidence does not satisfy the requirement of the 1st part or paragraph of section 28 of the Criminal Code Cap 42 Laws of the Federation or section 26 Criminal Code Cap 28 Laws of Western Nigeria 1959 to make the defence of insanity available to the appellant. That section reads:
“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 delusions to believe to exist.”
Insanity is not merely a departure from the normal but is a fairly advanced degree of disorder of the mind. What the law decides is which persons who are medically insane are legally irresponsible.
The evidence of Dr. Alli Balogun taken during the investigation of the fact of soundness or unsoundness of the mind of the appellant to enable the learned trial judge decide whether the appellant would be able to follow the proceedings in court and give his defence is, in my view, of no assistance to the appellant. It is not the law that the court should go out of its way to establish a defence of insanity for the appellant as suggested by counsel. The learned trial judge’s main duty was to satisfy himself that the appellant was fit to plead, follow the proceedings and give his defence: see sections 223 and 224 of the Criminal Procedure Act Cap 43 Laws of the Federation of Nigeria. If anything, the evidence of Dr. Alli Balogun proves that the appellant was of sound mind for Dr. Alli Balogun’s testimony reads:
“From our discussions, the accused, in my view, could remember or recall when he had the urge to kill ….. I found the accused very nervous during the interview It can be said that the accused is only suffering from mental depression It is not impossible for hardened criminals to fake nervousness. When there is mental depression, the depressed person will know what he is doing.”
Giving his opinion on fitness to plead, he said:
“I am of the view that the accused will be able to follow the proceedings in this case.”
The protestation of the appellant at his trial that he has never pretended to be insane, considered along with the finding of Dr. Alli Balogun and the evidence of p.w. 2, p.w. 3 and p.w. 4 that the accused behaved normally before the 16th of September, 1977 the date of the incident, knocked the bottom out of the ground of appeal. The doom of the defence of insanity was sealed when the trial judge found and held that
”The evidence of the accused suggesting mental disorder in these proceedings, in my view, is a hoax and it is rejected.”
The Court of Appeal also properly dismissed the contention of insanity and automatism when it was raised before it.
This Court has of recent set out the elements to be proved to establish a defence of insanity and I need not go into them here. See Ngene Arum. v. The State (1979) 11 S.C. 91 at 106, 118-119, Egbe Nkanu v. The State (1980)3 – 4 S.C. 1, Effiong Udofia v. The State (1981) 11-12 S.C.49
It was for the above reasons and the reasons so ably set out by my learned brother, Kawu, J.S.C. in his reasons for judgment that I dismissed the appeal.
ANIAGOLU, J.S.C. This appeal was dismissed on 22nd August 1984 and the reasons for judgment reserved for today.
I have had the advantage of reading in draft the reasons for judgment delivered by my learned brother, Kawu, J.S.C., and I am in agreement with the reasons he has given for the dismissal of the appeal and adopt those reasons as mine. It was for those reasons that I dismissed the appeal on the said 22nd August 1984.
KAZEEM, J.S.C. On 22nd August, 1984, when this appeal was heard, I found no substance in it and it was dismissed summarily.
The appellant in this appeal was convicted on the charge of murder under section 254 of the Criminal Code Cap.28 of the Laws of Western Nigeria 1959 applicable in Oyo State and sentenced to death by Ayorinde J. on 1st February, 1979. His appeal to the Federal Court of Appeal on five grounds was dismissed but he thereafter appealed to this Court on two grounds. The learned counsel assigned to the appellant in this Court to argue his appeal (Chief Debo Akande) however applied for and was granted leave to argue an additional ground namely:
“The learned trial judge erred in law in holding that the appellant was ‘guilty’ instead of finding him ‘not guilty by reason of the unsoundness of mind’, and the Court of Appeal also erred in law in dismissing the appeal without reversing the verdict.”
This new ground of appeal which obviously raises the question of insanity was substituted for the two original grounds which were abandoned and struck out.
The submissions put forward in this Court by Chief Debo Akande were not in my view different from those advanced in favour of the appellant by his counsel, and which were duly considered by the Court of Appeal before rejecting them.
However those submissions have in the light of the facts of the case, been thoroughly considered in the reasons for judgment just read by my learned brothers Obaseki and Kawu, Justices, Supreme Court, the drafts of which I had the privilege of reading in advance. I share the views expressed therein. Moreover, the issues of insanity, insane delusion and automatism as defences to a charge of murder, have always arisen in this Court from time to time, and recently they have been extensively reviewed in such cases as Ngene Arum v The State (1979) 11 S.C.91, Egbe Nkanu v The State (1980)3-4 S.C.1 and Effiong Udofia v The State (1981)11-12 S.C.49. It is needless repeating them here again. It was in the light of all those authorities and the reasons for judgment to which I have already referred that I dismissed the appeal.
COKER, J.S.C.: On the 22nd August, 1984 this appeal was dismissed and I then indicated my reasons will be given later.
The appellant was convicted of murder by Ayorinde J. in the High Court of Oyo State. The facts and circumstances of the killing were not in dispute. The only point raised before the Court is that the defence of insanity was not adequately considered by the trial judge. I do not agree with the submission. Both the trial judge and the Court of Appeal meticulously considered the facts and the law and came to the right decision that the defence of insanity was not established after applying the correct test as laid down in a long line of decisions of the courts.
I entirely agree with the reasons given by my learned brothers Kawu, J.S.C., and Obaseki, J.S.C., and I adopt them as my own. The reasons have been so lucidly and classically delivered, that I cannot usefully add more to what they have said.
Appeal dismissed.
SC.25/1982
