Ogor Michael Vs The Queen (1961)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J. 

The appellant was convicted on the 7th November, 1960, in the High Court of the Western Region at Abeokuta, by Charles, J., of murdering one Chuckwumeka Ogor at Apoje on the 3rd May, 1960. He appeals against conviction, and his first ground is that

The appellant was prejudiced upon his trial by the failure of the learned trial Judge to comply with the provisions of section 223 and section 224 of the Criminal Procedure Ordinance, Cap. 43, Laws of  Nigeria.

His learned Counsel, Mr. Cole, stated that the appellant complained about having been tried without any proper investigation having fast been made into his fitness to stand his trial, in spite of the fact that the Crown had, before the trial, a certificate from a medical officer which raised that question, and of the fact that the question was raised immediately after the appellant pleaded not guilty, and arose again after the first witness for the Crown was heard.

Reference was made at the hearing to the case of Podola, 1959, 3 All E.R. 418, as showing that a complaint of that sort may be made in an appeal against conviction; and there was no dispute on that point. There was, however, a divergence in the submissions of Counsel on whether sections 223 and 224 of our Criminal Procedure Ordinance relates solely to an inquiry into a defendant’s fitness to stand his trial where the matter arises before he pleads to the charge itself, or extend also to a case where the matter arises after he has pleaded to the charge, and also to a case where some evidence has been taken.

It is provided in section 223 (5) that-

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 or crown counsel, 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, etc.

The words “prior to the trial” indicate that no plea has been taken and, at any rate, that no witness has been heard on the charge itself. On the other hand, the section begins as follows:

(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.

Subsection (2) provides for the investigation of that fact, and subsection (3) goes on to provide that-

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

The words “a judge holding a trial” in subsection (1) suggest that the defendant has pleaded to the charge, and can include a case in which evidence has begun to be heard. In subsection (3) the words “the court shall postpone the trial” suggest that the trial has not begun, but they are not conclusive: for there is section 226 which provides that-

Whenever an inquiry or trial is postponed under section 223 or 224 the court may at any time reopen the inquiry or commence the trial de novo and require the accused to appear or be brought before such court.

The words “commence the trial de novo” suggest that, before the trial was postponed, evidence had been heard on the charge itself.

The above provisions seem to contemplate both a case in which unfitness for trial arises as a question before the defendant pleads to the charge, and a case in which the question arises after he pleads, and even after evidence has begun to be heard. The submission that they do not contemplate both cases leads to awkward results: a defendant of unsound mind who is incapable of making his defence may be tried and condemned merely because the fact of his insanity did not come to light, or was not raised until after the trial had begun; nor, apparently, can the question be raised if a defendant became of unsound mind after the trial began as the result of a blow for example, or for some other reason. There is a Latin maxim that argumentum ab inconvenienti multum valet, which may be applied in favour of the view that sections 223 and 224 cover all cases.

In any event there is section 363 of the Ordinance, which enables the High Court to have recourse to English practice in case of need. Section 363 provides that

The procedure and practice for the time being in force of Her Majesty’s High Court of Justice in England in criminal trials shall apply to trials in the High Court in so far as this Ordinance has not specifically made provision therefor.

On the English practice the following passage in the judgment of the Court of Criminal Appeal in the case of Podola (at p. 428) is decisive:

… it is now well established that the question may be raised either by the prosecution or by the defence or by the court itself. Indeed, if a court becomes aware, either before or during a trial, that the accused person’s sanity is doubtful, it is the duty of the court to have the doubt resolved before beginning or continuing the trial.

For present purposes that is sufficient; but it is desirable to add that, in our view, sections 223 and 224 do themselves provide for the investigation of insanity, if the case arises, at any stage of a trial, whether before the defendant pleads to the charge or after, and even after evidence has begun to be heard.

In England the manner of resolving the doubt is as follows: we quote from p. 429 of the Podola report:-

For the purpose of deciding whether a person ‘is insane … so that he cannot be tried upon the indictment’ a jury is empanelled, and as counsel for the appellant emphasised, the procedure before that jury is an enquiry and not a trial.

In the case of Podola the inquiry before Davies, J. and a jury lasted a number of days, and a number of witnesses were heard. It was an unusual case. As a rule, there is no controversy, and a little evidence suffices; but in any event some evidence is heard. Thereafter, to quote from p. 429 of the Podola report-

In all cases in which a preliminary issue as to the accused person’s sanity is raised, whether that issue is contested or not, the jury should be directed to consider the whole of the evidence and to answer the question “Are you satisfied on that evidence that the accused person is insane so that he cannot be tried on the indictment?”

The issue is usually raised by the defence, and there is then a burden on the defence of satisfying the jury of the accused’s insanity. To quote again from p. 429

In such a case, as in other criminal cases in which the onus of proof rests on the defence, the onus is discharged if the jury are satisfied on the balance of probabilities that the accused’s insanity has been made out.

The judge reminds the jury that there is a presumption of sanity, which includes a presumption that the accused person is fit to stand his trial, and asks the jury to say whether on the whole of the evidence the scales have gone down in his favour, as Davies, J., put it to the jury at p. 423 of the report and p. 424.

There is one more point in the practice of the High Court in England to which we should draw attention by quoting from Lord Parker’s judgment at p. 431:-

The words ‘if any person … shall be insane … so that such person cannot be tried upon such indictment’ contained in section 2 of the Criminal Lunatics Act, 1800, have in many cases since 1800 been construed as including persons who are not insane within the McNaghten rules, but who by reason of some physical or mental condition, cannot follow the proceedings at the trial and so cannot make a proper defence in those proceedings.

The words used in our section 223 and section 224 are “of unsound mind and consequently incapable of making his defence” or “of unsound mind and incapable of making his defence.” We think that, in accordance with the practice in England, they include persons who are not insane within section 28 of the Criminal Code, but who by reason of some physical or mental condition, cannot follow the proceedings and so cannot make a proper defence.

We, too, have a presumption of sanity in section 27 of the Criminal Code which states that-

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.

That includes a presumption that the accused is fit to stand his trial, until the contrary is proved, viz., on the balance of probabilities upon the whole of the evidence.

Section 223 of the Criminal Procedure Ordinance makes it clear that the question whether an accused person is fit to stand his trial, when there is reason to doubt it, is a matter of common concern to both Counsel and also to the Court itself. To repeat subsection (1)-

(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

Other Citation: (1961) LCN/0932(SC)