Patrick Okeke Vs The State (1969)

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FATAI-WILLIAMS, J.S.C.

We dismissed this appeal on 19th June, 1969, and now give our reasons for doing so. The Appellant was convicted by Bello, J. (High Court, Ilorin, Kwara State) of culpable homicide punishable with death under section 221 of the Penal Code.

The charge stated that the appellant on or about the 26th day of November, 1965, at the north end of the railway platform at Jebba caused the death of one Edward Osho Sunmonu.   At the trial the prosecution adduced evidence to show that the deceased was one of the two persons attacked by the Appellant on the night of 26th November, 1965. On the night in question, the appellant, a policeman, went to a bar in Jebba for a drink.

After he had had some beer he picked a quarrel with another customer in the bar and was taken out. On getting outside, he went to lodge a complaint about the man with whom he had had the quarrel at the railway police station. The police officer on duty, noticing that the appellant was far from sober, refused to entertain the complaint.

The appellant then went away annoyed but returned to the police station later collected some of the station documents, and took them to his house where he set them on fire. When he was asked by p.w.3 another policeman why he was burning the documents he replied that he did this because the officer on duty refused to accept his complaint.

At this juncture, a boy came out of the police barracks.  The appellant, for some unknown reason, chased this boy with the matchet which he (the appellant) was holding but the boy escaped. Following the boy’s escape, the appellant informed the boy’s master that he would have cut the boy with the matchet had he not escaped. Soon after this, the appellant, after putting on a shirt and informing the p.w.3 that he was going to fight the police officer on duty at the police station who had refused to entertain his complaint, proceeded towards the railway station still holding his matchet.

At the railway station he attacked one Corporal Amadu Zungeru of the Nigeria Police Force (p.w.10) cutting him twice with his matchet. P.W. 10 who had never met appellant before the attack was in transit at Jebba and was sleeping by his loads at the time he was attacked. For no known reason, he also attacked the deceased who was also waiting for a train at the station with his matchet. The deceased died on the spot from the injuries he sustained from the attack.

The evidence showed that there were eight matchet cuts on the deceased, the serious ones being an incised wound 5ins by ½ in causing a fracture of the left frontal and parietal bone, another incised wound 2½ ins by ½ in by the scalp on the left parietal part, two incised wounds on the left ear cutting the ear into two, and an incised wound 6ins by 2ins on the muscle of the right forearms. After attacking the deceased, the appellant ran to his house and was later arrested there during the early hours of the following morning. After his arrest, the appellant made two statements to the police and in neither of these did he mention anything about the attack first on Corporal Zungeru and later on the deceased.

While he gave a detailed description of various other incidents with which he was connected on the night in question in the first statement (exhibit 1) he went into great detail about matters totally unconnected with the fateful evening in the other statement. In his evidence on oath the appellant said that after he had had some beer at the bar someone offered him a cigarette. When he told the person that he never smoked the person replied that the cigarette was better than beer and that it popped people up. He said he then accepted the cigarette and smoked it because he wanted to be happier.

At first the cigarette made him happier but later made him confused. From the moment he became confused, he lost his memory and did not know or remember what he was doing until his arrest in his house by the police.  Dr. Hussein (p.w.12) who testified for the prosecution expressed the opinion that if the cigarette smoked by the appellant contained some intoxicant such as Indian hemp it could have acute intoxicating effect on him resulting in abnormal behaviour.

After considering the evidence adduced by both the prosecution and the defence the learned trial Judge came to the conclusion that the prosecution had proved beyond any reasonable doubt that the appellant caused the death of the deceased. With regard to the attack on the deceased he observed further as follows:- “A matchet is a deadly weapon and a person in the state of life must know that death would not only be likely but the probable consequence of inflicting such wounds with it on a human being.

I find all the elements of culpable homicide punishable under section 221 proved.” He then proceeded to consider the defences put forward by the appellant in the light of the opinion offered by Dr. Hussein (P.W.12) and found as follows:- “I am satisfied within the balance of probabilities that the accused smoked some cigarettes containing some intoxicant and that coupled with the beer he took produced acute intoxicating effect upon him causing the mental abnormality upon him which resulted to his action.”

The learned trial Judge then proceeded to consider whether this mental abnormality amounted to insanity under section 51 of the Penal Code and found, quite rightly in our view, that having regard to the evidence which he had accepted that it did not. He thereupon, considered the defence of intoxication and referred to section 44 of the Penal Code which reads:- “A person who does an act In a state of intoxication is presumed to have the same knowledge as he should have had if he had not been intoxicated.”

He then observed, again rightly in our view, that intoxication which resulted in mental oblivion would not excuse criminal responsibility unless it fell within section 52 of the Code which provides that:- “Nothing is an offence which is done by a person who, at the time of doing it, is by reason of intoxication caused by something administered to him without his knowledge or against his will, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law.”

After adverting to the fact that before he smoked the cigarette the appellant was told that it was better than beer and popped people up, the trial Judge rejected the defence and convicted the appellant after finding inter alia, as follows:- “Accused testified that his benefactor told him, when the latter offered the cigarette to him and before accused smoked it that it was better than beer and popped up people. As accused says that he used to drink beer to be happy, he must be presumed to know its intoxicating effect and therefore voluntarily smoked the cigarette knowing that it would give him a higher intoxicating effect than beer and popped him up. I therefore find that he smoked the cigarette knowing its character and effect and he did so voluntarily.”

Against his conviction the appellant has now appealed to this Court. The only ground of appeal argued by Mr. Cole for the appellant read:- “The learned trial Judge misdirected himself by finding to the effect that the appellant at the time material to the charge had knowledge of the effect of the cigarette with intoxicating stimulant’ which the appellant smoked and under the influence of which the said appellant killed the deceased.”

In the course of his argument, the main point canvassed by Mr. Cole was that the appellant did not know what the words  “popped up people” meant until he had smoked the cigarette; not knowing what the effect would be, the intoxication subsequently caused by smoking the cigarette was without his knowledge. Learned counsel then argued that the appellant could not be said to be voluntarily intoxicated through a reaction which was involuntary.

That being the case, it was further contended, the killing of the deceased in that involuntary state of intoxication could not having regard to the provisions of section 52 of the Penal Code, constitute an offence under that Code. In support, learned counsel referred us to two cases D.P.P. v. Beard [1920] A.C. 479 and R. v. Owarey [1939] 5 W.A.C.A. 66. In our view, the decision in D.P.P. v. Beard was based on the English Common law and turned on whether evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime alleged ought to be taken into consideration, with the other facts proved, in order to determine whether he had that intent.

There it was held that drunkenness was no defence unless it could be established that the accused at the time of committing the offence was so drunk that he was incapable of forming the intent to commit it. That decision, to our mind, is easily distinguishable from the provisions of sections 44 and 52 of the Penal Code where intoxication is a defence only if the state of intoxication is caused by something administered to the accused without his knowledge or against his will.

The decision in Beard’s case is therefore of no avail to a person who commits an offence under the Penal Code even if that person is so intoxicated that he was incapable of forming the necessary intent. As for the decision in R v. Owarey we would like to point out: (a) that that judgment turned on the interpretation of section 29(2) & (4) of the Criminal Code of Nigeria which provides as had been held in D.P.P. v. Beard that intoxication shall only be a defence to a criminal charge if by reason thereof the person charged did not know that such act was wrong or did not know what he was doing and was by reason of intoxication insane temporarily or other wise at the time; and that that   Indeed, intoxication is a defence under section 29(2)(a) of the Criminal Code, not because it is caused by something administered to the accused without his knowledge or against his will as provided for in section 52 of the Penal Code, but only if:  “the state of intoxication was caused without his consent by the malicious or negligent act of another person,” a totally different extenuating circumstance. It seems to us, therefore, that the decision in R v. Owarey based as it is on that in D.P.P. v.Beard and dealing mainly with the provisions of section 29 of the Criminal Code, cannot be invoked in aid of the appellant. To our mind, for the appellant to come within the protection of section 52 of the Penal Code, he must establish to the satisfaction of the court that the cigarette was given to him without his knowing what effect it could produce or was likely to produce after smoking it. This he has failed to do. On his own admission, he knew that the cigarette would make him happier than beer. If, as he must have known also, beer could Intoxicate he must be deemed to know therefore, that the cigarette would probably intoxicate him more.

The sort of situation contemplated, as we see it by section 52 of the Penal Code, is where, for instance, a person is drinking beer and unknown to him another person put some highly intoxicating spirit into the beer so making him intoxicated when he would not have been H he had drunk the beer alone. In other words it would be caused by something in effect being administered to him without his knowledge, as his knowledge would be only that of drinking beer when in fact he would be drinking beer plus intoxicating spirit. For the above reasons we agree with the view of the learned trial Judge that the appellant voluntarily smoked the cigarette knowing that it was likely to give him a higher intoxicating effect.

As this disposed of the only ground of appeal argued in favour of the appellant we therefore dismissed it.

Other Citation: (1969) LCN/1667(SC)