Peter Abu v. The State (1976)

G. S. SOWEMIMO, J.S.C. 

The Appellant was convicted of the offence of murder and sentenced to death by Inko-Tariah J on 27th June 1975, sitting at Court No. 2 at Port Harcourt in the Rivers State High Court. The Appellant has appealed to this Court against the conviction on the following grounds which were argued by his counsel:-

“2.The learned trial judge erred by finding that the defence of insanity was not established when there is evidence supporting the said defence.
3.The decision of the learned trial judge is unwarranted unfair and unreasonable having regard to the weight of evidence in Court.

4. Having regard to the evidence of witnesses for the defence of the Appellant which raised a suspicion that the Appellant is of unsound mind the trial court ought to have complied with the provision of sections 223 and 224 of the Criminal Procedure Laws of Eastern Nigeria 1963, by investigating the unsoundness of mind of the Appellant.  Failure of the trial Court to comply with the said sections of the Criminal Procedure Laws was prejudicial to a fair trial of the Appellant.

The facts as to the incident on the material night, that is on 8/3/74 are not in dispute. Simply put the Appellant, a Christian, was the husband of the deceased who was a Moslem. There was a quarrel in their apartment in which the Appellant raised the issue as to why the deceased should prevent him from attending Church or not follow him to the Church.  The learned trial judge held that this quarrel started from the room and proceeded to the parlour.  For some reasons the Appellant went back to the room, picked up a matchet, attacked and killed the deceased.

The Appellant put the corpse of the deceased on a sofa and covered her up with a cloth.  There was a pool of blood in the room.  As a result of cries of the deceased, when she was being attacked, some army officers, attached to the Airforce Base at Port Harcourt, where the Appellant was a co-worker, including the Squadron Commander, came to the premises and forced open the door leading to the apartment where Appellant and deceased lived.

On entering they found the corpse of the deceased lying on a sofa covered by a cloth.  There was a pool of blood on the floor.  The Appellant was sitting on the floor, with an electric cable tied around his neck and fixed on to the ceiling.  The Appellant was arrested and taken into custody by the Police.  The corpse of the deceased woman was also removed to the mortuary of the General Hospital, Port Harcourt and a post mortem examination was performed.  In the opinion of the doctor (5th Prosecution Witness) the cause of death was due to bleeding from the severed artery of the neck inflicted by the matchet cut of the Appellant.

On appeal before us,  learned Counsel for the Appellant, Mr. J.A. Cole, withdrew ground 1 of the grounds of appeal and this was struck out.  On grounds 2 and 3, which he argued together, he submitted that the defence of insanity was proved in which case a special verdict should have been returned. The learned trial judge had held that the defence of insanity as on 8/3/74 was not proved and therefore rejected it. The Appellant in his statement to the Police Ex.J, which was not objected to when tendered by the Prosecution, set out the reasons why he killed his deceased wife and the instrument he used.

In his defence he attempted to retract this statement and stated that he did not know the circumstances which led to the death of his wife, which retraction the learned trial judge, and in our view of the evidence, quite rightly rejected. Learned counsel for the Appellant did not challenge this finding of the learned trial judge. Nothing was urged on us by learned counsel for Appellant that this rejection was wrong either on the facts or in law; and we having perused the record and are satisfied that the learned trial judge came to a right conclusion. These two grounds therefore fail and the submission of  learned Counsel has no merit.

Learned Counsel submitted that on ground 4 of appeal, there was sufficient evidence before the learned trial judge which raised a suspicion that the Appellant is of unsound mind and that the trial Court ought to have complied with the provisions of sections 223, and 224 of the Criminal Procedure Laws of Eastern Nigeria 1963, applicable in the Rivers State, by investigating the unsoundness of the mind of the Appellant to defend himself. He submitted further that the failure of the trial Court to comply with the said sections of the Criminal Procedure Law was prejudicial to a fair trial of the Appellant.

Section 223 in so far as is relevant to this case provides:-
“(1)    When a judge holding a trial……….. has reason to suspect that the Accused is of unsound mind and consequently incapable of making his defence the judge, ………… Shall in the first instance investigate the fact of such unsoundness of mind.

Learned Counsel referred to some portion of the statements supporting  the application for consent to proceed by way of summary trial in the High Court, which were to the effect that before the door of the apartment of the Accused was forced open he screamed, and that when the door was opened, one witness stated that Accused was rolling on the ground in a pool of blood, and another stated that he was crying, and that in both cases he had a cable rope tied round his neck, and submitted that  these constitute reason to suspect that the accused is of unsound mind and consequently incapable  of making his defence and that therefore the learned trial judge should have in the first instance investigated the fact of such unsoundness of mind”.  With respect all the portions referred to did not give rise to the trial judge to suspect that the Accused was of unsound mind and incapable of making his defence.  As a fact there was nothing in the proofs of evidence which touched on the mental state of the Accused.  Unless the question arises section 223 does not apply and therefore there would be no necessity to resolve it.  See Queen vs. Ogor (1961) ALL N.L.R. 70.  (See also section 224(2) of the Criminal Procedure Law). The Accused  in his statement to the Police, which was exhibited in the proof of evidence, showed quite clearly that he gave reasons for killing his wife and this is incompatible with a person whose mind is unsound.  When the statement was admitted in evidence the Accused did not object to its admissibility.  See R vs. Udo Mboho (1966)1 All N.L.R. 69.

If on the other hand, the question is raised by the Defence the onus of proving unfitness to stand trial is on the Defence  see R vs. Ogor (supra). In this case the Appellant did not raise the question. The Defence witnesses did not raise the question.

It is quite clear for the reasons given above that the provisions of sections 223 and 224 of the Criminal Procedure Law relied upon do not apply to this trial and therefore this ground must also fail.

The appeal fails and is hereby dismissed. The conviction and sentence of death are hereby affirmed.

Other Citation: (1976) LCN/2313(SC)