M.A. Sanusi V The State (1984)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C.

This appeal was heard on the 27/8/84. Learned counsel for the appellant, Fola Akinrinsola Esquire relied on his brief which was seemingly erudite and unnecessarily copious. He then made a few observations in elaboration of the paints canvassed in his brief.

Learned counsel for the respondent R. A. Bello Esquire (P.S.C. Ogun State) also relied on his brief. After reading their briefs and listening to learned counsel on both sides, the court decided that the appeal should be dismissed. We then dismissed the appeal and agreed to give reasons for the dismissal on the 19th October 1984. Hereunder are my reasons.

The material facts of this sad case are simple, straightforward and in the main not disputed. It is common ground that the appellant on 10th April 1978 inflicted very serious and mortal matchet cut wounds on his own mother, who later died of those wounds on the 19th April 1978. The trial court – the Abeokuta High Court -believed the prosecution witnesses and found as a fact that the appellant killed the deceased. The actus reus of the offence of murder was thus established. In the Court of Appeal there was no quarrel about this aspect of the case.

The quarrel was whether or not the requisite mens rea was established and more particularly whether on the totality of the evidence led, the defence of insanity was not available to the appellant. It was also argued that from the appellant’s statement to the police during their investigation into the murder, the appellant was entitled to the further defences of provocation and self defence.

The Court of Appeal in a well reasoned judgment considered the defences of insanity, provocation and self-defence and came to the conclusion that on the evidence before the trial court none of these defences availed the appellant. That court accordingly dismissed the appellant’s appeal and affirmed and confirmed the judgment and sentence of the trial court.

The present appeal is against this judgment of the Court of Appeal. As in the Court of Appeal, the main arguments in this Court centred around the defences of insanity, provocation and self-defence. I will deal firstly with provocation and self defence. Provocation does not excuse murder, it merely has the effect of reducing it to a lesser offence of manslaughter. Self defence on the other hand is a complete answer to the charge of murder. But these defences cannot be set up in vacuo. That will be a futile, academic exercise. For any of these defences to avail the appellant in this case, there ought to be enough credible evidence on which to found each of these defences. From the proceedings in this case, it is clear that the appellant did not give evidence during his trial. He could not therefore, have raised the issues of either provocation or self defence. The prosecution called seven (7) witnesses and their evidence contained nothing remotely suggesting that the deceased offered the appellant any provocation; or remotely indicating the necessity of the appellant being compelled to defend himself against any attack (provoked or unprovoked) offered against him by the deceased.

There is however the appellant’s alleged statement to the police which was tendered by P.C. No.35269, Oladipo David, called as the 2nd p.w. In that statement appears the following:-

“At about 5 p.m. of Monday 10/4/78, when I wanted to cook, I saw my mother called Safu. She started to abuse me that I am useless and that I am a bastard and a eunuch. Three other women Adijatu, Musili and Atoke joined my mother to abuse me. Adijatu was talking when my mother gripped my hand and bit my right hand thumb. The hand pained me, and when she did not leave off the thumb I used the knife I was holding… to cut my said mother out (at) the mouth… It was when I used the knife which the police took from me to cut my mother’s mouth that she left my hand…”

Several questions arise out of the above statement, exhibit B viz:-

1. Is exhibit B evidence in this case If yes, evidence of what
2. How did the trial court deal with exhibit B
3. Did the appellant at the trial accept exhibit B as his statement to the police
4. In view of the answers to questions (1), (2), and (3) above can the appellant now rely on exhibit B to found and sustain his defence of provocation and self defence.

I shall now attempt to answer the four questions posed above. Firstly – Is exhibit B evidence in this case and if so evidence of what The police during their investigation into any criminal offence usually obtains statements from accused persons. These statements are usually also tendered by the investigating police officer who recorded the statement as part of the prosecution’s case. The question now is – At that stage what is the statement being tendered as Does the statement at that stage constitute proof and if yes, proof of what A review of the authorities will confirm that at best the prosecution will tender the statement of an accused person as a Res – as something the investigating police officer obtained during his investigation. It is then open to the trial court to consider that statement (along with other available evidence) accepting or rejecting it before coming to a decision. In Subramanian v Public Prosecutor (1956) 1 W.L.R. 965 at p.970 the necessary distinction was drawn between tendering an accused person’s statement as proof of the fact that it was made and tendering same as proof of the truth of its contents. It is my humble view that when the prosecution tenders the statement of an accused person they tender same only as proof that a statement was made, and not as proof of the truth of its contents. And that is why it is open to the accused to deny or confirm and affirm the said statement or else to admit the making of it but attack it on grounds of it not being voluntarily made.

Now how did the trial court treat exhibit B The learned trial Judge ab abundantia cautela considered the contents of exhibit B and exhibit B1 (the Yoruba statement & its English translation) and arrived at the following conclusions:-

“I find not proven evidence to the effect that deceased abused or called accused a bastard or labelled him a eunuch.”

The Judge in rejecting exhibits B & B1 said emphatically:

“I totally reject accused substitution of his declared intention as stated by the 6th prosecution witness to the disguised one in exhibits B and B1 that his mother abused him, cursed him …. or gripped and bit his hand or thumb…”

Now the two defences of provocation and self-defence must be based on existing proved and accepted facts. There is a distinction to be drawn between submissions that can be made before a court of trial and before an appellate court. A submission to an appellate court has to rest on a firm foundation of proved and accepted facts. If a particular story is disbelieved by the trial court and that disbelief is not perverse – in the sense that it was not a proper exercise of the trial court’s judicial discretion to believe or disbelieve – then that story cannot form the basis of any serious and meaningful submission to an appellate court. The only course then open to an appellant is to attack the finding of the lower court rather than arguing as though no findings were made or that the finding was in appellant’s favour.

Now how did the appellant himself at the trial treat exhibit B and exhibit B1 When exhibit B was sought to be tendered the trial court made the following record:-

“Court Note: Accused denies his alleged statement made to P.W.2”

Now how possibly can the present appellant base his defence of provocation and self defence on a statement which he categorically denied making. How can he deny exhibit B in one breath and in another breath use it If exhibit B is discounted, as it rightly ought to be (since it was neither affirmed by the maker nor accepted by the court) then there is absolutely nothing on which to base the defences of provocation and self defence. All the grounds of appeal urging these defences and the submissions thereto appertaining lack foundation, merit and substance. These grounds therefore fail.

I shall now consider the arguments regarding the defence of insanity. The appellant did not testify during his trial and he denied his statement to the police. He did not therefore raise himself the issue of insanity. But the court is bound to consider any defence, which on the totality of the evidence led, is available to the appellant.

But before considering what evidence there is in this case indicating that the appellant was insane, certain radical and fundamental points regarding the defence of insanity will have to be borne in mind and kept in view:-

1. The law presumes every person, including any person accused of crime, sane until the contrary is proved ….. (S.27 of the Criminal Code).
2. The prosecution does not set out to prove what the law presumes in its favour.
3. An accused person who raises insanity as his defence has the onus of proving such insanity cast on him. The standard of such proof is not as high as that cast on the prosecution. It is not proof beyond reasonable doubt but it is proof of reasonable probability, proof sufficient to create a reasonable doubt in the mind of a fair minded jury as to the sanity of the accused.
4. Insanity is a blanket term embracing a considerable variety of mental abnormalities, mental infirmities, neurosis and psychosis.
5. To constitute a defence the mental condition relied on should be such that could and did deprive the accused of capacity:
6. To understand what he was doing; or,
7. To control his action; or,
8. To know that he ought not to do the act or make the omission complained of as constituting the actus reus of the offence charged.

The important thing is this lack of capacity. At the root of the defence of insanity is the fact that by reason of his mental condition the act of the accused cannot really be held to be the product of the free exercise of his will and he is therefore deemed incapable of forming the requisite intent. Learned counsel for accused persons setting up insanity as a defence will appreciate that they have to work very hard and place before the court credible evidence tending to establish this incapacity.

With the above as preamble let me now consider what evidence there is in this case tending to establish the defence of insanity.

1. The 5th p.w. Isiaka Ajani Safidipe a full brother of the appellant testified for the prosecution and under cross examination stated:-

(a) I have taken the accused to the Aro Psychiatric Hospital for treatment on more than three occasions since 1970.

(b) To my knowledge there was no quarrel between the accused and my deceased mother.

(c) Sometimes in October 1970 accused attempted to stab me with a knife.

(d) About a year after (that is after 1970) accused was again being treated at Aro Psychiatric Hospital. He again developed a new attack of his mental illness.

(e) Again in 1974 accused on many occasions turned on his customers… and chased them off for no just cause.

2. The other witness who gave some evidence concerning the appellant’s mental history was Adijatu Sanusi wife of the 5th p.w. Isiaka. She was called as 6th p.w. She testified under cross examination:-

(i) I observed that accused had some mental illness some twelve years ago.

(ii) There was no quarrel between the accused and my deceased mother-in-law.

The available evidence of the appellant’s mental condition covered the period 1970 to 1974. There was no evidence at all of his mental condition “at the time of doing the act” that is 10th April 1978. The defence of insanity will, in accordance with the provisions of section 28 of the Criminal Code, only avail the appellant if at the time of doing the act, that is 10th April 1978, his mental condition deprived him of “capacity to know what he was doing, or to control his actions or to know that he ought not to do the act” – that is kill his mother. Mere vague suggestions of abnormal behaviour four years before the date of the offence charged are simply not enough to satisfy the requirement of section 28 of the Criminal Code even on the balance of probability.

The trial court considered at some length the defence of insanity and found it not established since there was evidence which that court believed that appellant knew what he was doing and knew that what he did was wrong. The defence of insanity as such was not canvassed and vigorously agitated in the Court of Appeal. What was argued and disposed of was whether or not the provisions of sections 223 and 224 of the Criminal Procedure Act were infringed by the trial court.

Before this Court the brief filed by counsel for the appellant dealt at considerable length with the defences of provocation and self-defence. It was a beautiful brief showing considerable hard work and research. But unfortunately those defences (of provocation and self defence) lacked the requisite foundation of proved facts. Those defences had no leg on which to stand. They could not therefore stand. They fell.

In the brief the defence of insanity was put forward as an “Alternative Argument”. In this Court it was feebly argued without enthusiasm or zest. What was however apparent during the argument was that learned counsel for the appellant found it difficult to keep the issue of insanity different and distinct from the issue of insane delusion. The law treated them differently. Proof of insanity provides a complete answer to the charge as the accused will not be “criminally responsible for the act”. That is one reason why our former verdict of “Guilty but Insane” sounds ridiculous and inappropriate. It is contradictory. How can an accused person who is by law deemed not to be “criminally responsible for the act” be at the same time criminally guilty of committing the offence of which that same act forms an essential ingredient After the attack on Queen Victoria in 1883 the British Parliament passed the Trial of Lunatics Act 1883 and section 2 (1) of that Act provided for the special verdict of Guilty but Insane. Our law did not provide for any such special verdict. Under our own law the proper verdict should be:- “Not guilty on the ground of insanity.” Reed, J. made this point in Reg v Yayiye of Kadikadi (1957) N.R.N.L.R. 207. Also in Rex v Ashigifuwo (1948) 12 WACA 389 at p.391 the correct order was substituted by the West African Court of Appeal. There the appellant was “acquitted of the offence charged on the ground of unsoundness of mind at the time at which he committed the act”. In Ted Kayode Adams v D.P.P. of the Federation (1966) N.M.L.R. 111 at p.114 this Court held that – the words “A person is not criminally responsible” used in section 28 of the Criminal Code “imports that he is not guilty of the offence charged and must be acquitted”.

Insane delusions stand on an entirely different footing. In the case of delusions the accused “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.”

In insanity the accused does not know what he is doing etc. In delusions the accused knows what he is doing although he is living in an imaginary world of make believe – not in the real world.

Now coming back to the appeal before the Court, there is nothing on record upon which the defence of insanity or insane delusion can be successfully argued.

The “alternative argument” therefore fails.

It was for all the reasons given above that I dismissed this appeal.

OBASEKI, J.S.C.: At the conclusion of the hearing on the 27th day of August, 1984, I (in concurrence with all my learned brothers), dismissed this appeal and reserved my reasons for the judgment till today. I now proceed to give them. This burden is lightened by the fact that I have had the advantage of reading in draft, the reasons just delivered by my learned brother, Oputa, J.S.C. I agree with them and I adopt them as my reasons for my judgment in this appeal. I will however add the following comments and observations.

It is to be observed that the labours of the learned counsel for the appellant may have attracted richer rewards from the court if his submissions had been grounded on the facts found by the learned trial Judge. Appellate courts hear and deal with complaints against the judgments and decisions of lower courts, be they in exercise of their appellate jurisdiction or original jurisdiction. The basic materials for deliberation or consideration are contained in the findings of fact and law made by the courts below in the light of the evidence and submissions of law made before them.

Trial courts provide the judicial fora where the foundations for the cases of both parties to litigation are laid and their cases first made with available admissible cogent and credible evidence. With such formidable body of evidence on record, establishing a case of murder against the accused and leaving no room for a finding that the defence of insanity or delusion is established, the failure of the defence to call evidence has not helped the appellant in this appeal.

The submissions of counsel in this appeal have focused the attention of the court on the consideration by the courts below of the defences of insanity and delusion and I propose to make these brief comments on them. I have left out the defences of self defence and provocation as they have been adequately dealt with by my learned brother and are not available to the appellant from the evidence on record.

1. Insanity:

The law of the land, i.e. the Nigerian law, places no onus on an accused person to make any statement to the police or to give any evidence in court on his own behalf or in his own defence. [See section 32(2) and section 33(10) of the 1979 Constitution]. But if an accused person decides to contend that he is insane or that he suffers from insane delusions, then he has the duty to rebut the presumption of law which regards all persons sane until the contrary is proved. See section 27 of the Criminal Code, Laws of the Federation of Nigeria Cap 42 Vol. 2. This section reads:

“Every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved.”

It is this section that directly places on the person who contends that he is insane the onus of establishing that fact – the state of insanity. If he succeeds, he will under section 28 of the Criminal Code be relieved of criminal responsibility. To succeed, he must establish, by a preponderance of evidence necessary to discharge the civil onus of proof, that he is in such a state of mental disease or natural mental infirmity as to deprive him

(1) of capacity to understand what he was doing, or

(2) of capacity to control his actions, or

(3) of capacity to know that he ought not to do the act or make the omission.

The evidence that the appellant was treated at Aro Mental Hospital in the years 1970 and 1974 is, in my view, insufficient to establish the state of mental disease or natural mental infirmity required by section 28 of the Criminal Code. The defence suffers also from the fact that there is a total absence of evidence to establish or prove the very important fact that the appellant was deprived.

(1) of capacity to understand what he was doing, or

(2) of capacity to control his actions, or

(3) of capacity to know that what he was doing was wrong.

Contrary to the contention of counsel, the evidence on record showed that at the particular time, the appellant had capacity to know what he was doing and that he had capacity to control his actions. He did not run amok. He went straight for his mother and no one else, dealt with her violently as he desired and escaped. The evidence also showed that he knew that what he was doing was wrong. His escape from arrest is a direct reaction to this awareness.

The concept of criminal liability which requires the act to go with the mind will not be satisfied if either the mind or the act is absent. If a man is in such a state of mental disease or natural mental infirmity as to lose such capacities as are described above, his mind will certainly not go with his actions.

There was an oblique reference to the appellant being affected by delusions. Here again, a mind that is affected by delusion cannot be regarded as a sound mind and the onus that the appellant’s mind was so affected was not discharged as is required by law. The recitation of events which never occurred in his statement to the police does not, in my view, establish or prove a mind affected by delusion.

The specific matter on which his mind was deluded was that the deceased was discussing him with p.w. 6. The part of section 28 of the Criminal Code Cap 42, Laws of the Federation of Nigeria which deals with delusion reads:

“… A person whose mind at the time of 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 the 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.”,

The 6th p.w., in her testimony about the event said:

“As the deceased was talking to me, accused suddenly emerged from within the inside of our house to the frontage outside where I was talking with my mother-in-law. Accused was holding a knife. Accused pounced on the deceased and held on to her with his right hand while a knife was in his left hand. Accused then shouted on the deceased to lie down as he was also going to kill her on that day which also would be her last day on earth. Deceased replied that she was not talking of him and that she (deceased) had come to discuss Morili’s matrimonial problems with 5th p.w. Accused insisted that his mother (deceased) was discussing him and held her throat while the deceased denied vehemently that she was discussing him.” (Italics mine).

2. Delusion:

It appears that the appellant erroneously believed that the deceased was discussing his problems in unpleasant terms with p.w. 6. the question may be asked whether the law allows someone to take the life of another for engaging in unfavourable discussion of the other. The running down of a person by the use of such descriptive words as a eunuch and a good for nothing man or an economic failure, etc. does not under our law excuse the offence of murder or warrant the taking of the life of the deceased. A man may be eccentric or capricious or prone to flights of violent temper, yet, he may be perfectly sane and normal.

The mere eccentricity is not enough to constitute mental unsoundness, nor great caprice nor violence of temper but that there must be an aberration of reason. See Dew v. Clark (1836) 3 Addams 97. See Words & Phrases Legally Defined Vol. 2 p. 40 1969 Edition.

Delusion is properly defined as “the belief of things as realities which exist only in the imagination of the patient.” The frame or state of mind which indicates his incapacity to struggle against such an erroneous belief constitutes an unsound frame of mind. See Warring v. Warring (1848) 6 Moo PCC 341 per cur at pp. 353, 354. As this defence and that of insanity keep on rearing their heads in criminal matters prosecuted before the lower courts, this Court has recently examined the defences, nature and the extent of insanity and insane delusion which will relieve an accused person of criminal responsibility in the following three cases:

(1) Ngene Arum v. The State (1979)11 S.C. 91 at 94

(2) Egbe Nkanu v. The State (1980) 3-4 S.C. 1 at 11- 12; and

(3) Udofia v. The State (1981) 11-12 S.C. 49.

In Ngene Arum v. The State (supra), Fatai- Williams, C.J.N. at page 94 said:

“But if his delusion was that the man had inflicted a serious injury to his character or his fortune, and he then kills him in revenge for such supposed injury, he would be liable to punishment for murder.”

In the same report at page 123, I said:

“In the final analysis, the finding of fact arrived at by the learned trial Judge that the appellant did not suffer from any disease of the mind or natural mental infirmity was fatal to the defence under section 28 of the Criminal Code and to the conjecture or suggestion of D.w. 2 in his testimony that the delusion under which the appellant was labouring (which did not respond to treatment) suggested an underlying mental illness.”

It was for the above reasons and those set out in the reasons for judgment by my learned brother, Oputa, J.S.C. that I dismissed the appeal.

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SC.49/1983