Peter Johnny Loke V. The State (1985)

LawGlobal-Hub Lead Judgment Report

O. COKER, J.S.C 

The appellant, Peter Johnny Loke, was charged with and convicted of the murder of one Kaine Dike (m) on the 3rd day of May, 1978 at Anigbe Farm, in Kwale Division of Bendel State, and sentenced to death. That he killed the deceased was admitted and not disputed. The crux of the appeal is concerned with whether the trial Court properly considered relevant evidence relating to the defence of insanity before it, and whether the Court of appeal which dismissed the appeal, and affirmed his conviction, was right in its judgment that there was no evidence on which the defence could be founded.

The facts of the case may be summarised as follows- The appellant, who described himself as an apprentice tailor, was working in Lagos as a messenger, until sometime in August 1977 when he was brought back to Umukwala because he was sick. A relation named Uzor with whom he lived in Lagos and through whom he secured employment, brought him home sick, he was mad. According to his mother, P.W.4, the nature of the illness was madness. She described his behaviour as follows:

“He was shouting . . . he used to shout and remove his shirt and trousers and go about the town in pants. That was why we concluded that he was mad. His uncle, Olisa Anufe brought a native doctor to treat the accused. By the time of the incident, the accused had not fully recovered. It appeared that he was getting better and that was why I allowed him to go to the farm. I told the police . . . the accused was suffering from madness.”

His brother, P.W.6, with whom he went to the farm on that day testified how three of them proceeded to the farm on the morning of that day, and after working there for sometime, the appellant left him and his other brother for the adjoining road and he heard him saying “nei, nei,” as the accused took his bicycle and rode away. He (witness), saw a man lying on a bicycle. The spot was about seven yards from the hut “nei, nei” in Ukwani language, means “look, look”. The man lying on the bicycle was the headless body of the deceased, Kaine Dike, whom the appellant had beheaded with his matchet. The witness testified that when he returned to their village, Umukwata, in April 1978, following the death of their father, he met the appellant at home in chains, because he was mad and was still sick when he went to the farm that day. He spoke of his mental condition; “His head was still not balanced.” Another prosecution witness, P.W.7, Paul Ilo, also a maternal relation, testified how the appellant trekked to his aunt’s house at Okikwale about 8.00 p.m. on the day of the murder. The aunt (mother of the witness) remarked that the appellant was “going to start it all over again.” The witness then testified that the appellant had not been of normal behaviour before then. In his own words:

“My mother told the accused that he was going to start again because the accused had not been normal. I knew that the accused was not well when about three or four months before this incident, the father of his mother died. I traveled to Umukwata for the ceremonies. There I noticed that the accused was behaving abnormally. He started driving people away.”

In his statement to the Police and his testimony before the Court, the appellant confessed that he chopped off the head of the deceased, whom he had never met before and with whom he had no previous quarrel. It was with one stroke of the matchet that he cut off the head. That was the manner of the killing. His evidence in court and his statement to the police appeared rational, but in part contained material facts which either never existed or are better described as imaginary and illusory.

The trial judge accepted the evidence of P.W.4 that the accused was brought back from Lagos in August 1977, because he had mental insanity. However, he went further to consider section 140(1) of the Evidence Law, Cap. 57 Vol. III Laws of Bendel State 1976, and then stated:

“The evidence of the accused as to how he killed the deceased, Kaine Dike is very clear. It is consistent with what he told the Police in exhibit “A” on that point. As much as the killing was without motive there is nothing to suggest that the account of the killing incidency as given by the accused in exhibit “A” and his evidence in Court is the account of a person who is of unsound mind.”

Later, the trial judge said- “There is evidence which I accepted earlier on, that at sometime in 1977, August, to be precise, the accused suffered from mental illness. There is no evidence that on 3-5-78, when the accused chopped off the head of Kaine Dike that he was suffering from any mental illness the accused does not come within the ambit of section 28 of the Criminal Code of this State.”

He therefore returned a verdict of murder and sentenced him to death by hanging. The point in this appeal is that there was evidence and circumstances, surrounding the killing indicative of insanity and which the trial judge failed to consider.

The appeal against the conviction was dismissed by the Court of Appeal. The Court, in a well considered judgment in which recent authorities on the subject of insanity and delusion were correctly examined and considered, similarly fell into the same error as the trial Judge. In its lead judgment, delivered by Nasir, P., stated inter alia:

“In respect of burden of proof the law is that the appellant has the duty of proving the contrary. The proof that a person is insane is a proof of the contrary. As earlier stated section 27 of the Criminal Code has created the presumption of soundness of mind. This issue also came up for consideration in the case of E. Udofia v. The State (which has just been considered above). On this the Supreme Court held: “Who is to prove the contrary The prosecution has no responsibility either expressly or impliedly to prove that an accused is of unsound mind and/or suffers from delusion. It is the duty of accused; see section 140 of the Evidence Act, Cap. 62 LFN. 1958.”

After stating that he had perused the record of appeal in the light of all the submissions made before the Court, finally came to the decision:

“in the light of the law of this country and the above Supreme Court decisions which dealt with the issue recently, that there is no merit in the appeal”

He therefore dismissed it.

Chief Debo Akande, learned counsel for the appellant, with the leave of the Court, abandoned the three original grounds of appeal, argued only one ground of appeal, which reads;

“The learned trial Judge and the Court of Appeal erred in law and on the facts in holding that the defence of insanity was not established.”

In the brief filed on behalf of the Appellant, which was further elucidated orally in Court, Chief Akande drew attention to the evidence of the antecedents of the appellant as regard his irrational and abnormal behaviour before the date when he chopped off by one stroke of his matchet, the head of a person previously unknown to him; apparently without any motive whatsoever. The substance of his argument was that although the trial judge, as well as the Court of Appeal, accurately stated the law, both courts overlooked certain material evidence. The trial judge stated:

“there is nothing to suggest that the account of the killing incident as given by the accused in Exhibit “A” and his evidence in Court is the account of a person who is of unsound mind.”

It seems to me there is substance in the argument.

I have earlier in this judgment recalled some of the evidence adduced by the prosecution at the trial in connection with the mental state of the appellant prior to the 3rd May, 1978 when he killed Kaine Dike. Chief Akande argued that the mental condition of the appellant need not be that of a medical officer or of a psychiatrist. He argued that the crucial moment was when the act was committed.

The defence upon whom the onus lies or rests has to prove, on the balance of probabilities, that the appellant was suffering from an abnormality of the mind of the kind contemplated under section 28 of the Criminal Code; if he could establish that at the time of the killing the abnormality of mind in question substantially impaired the mental responsibility of the appellant for his acts-on the balance of probabilities, then the defence is made out. The Court must consider the evidence upon the whole facts, including the nature of killing, the conduct of the accused before, at the time of, and after it, and any history of mental abnormality. The task is to be approached from a broad common sense way. If there is unchallenged evidence that there is abnormality of mind and consequent impairment of mental responsibility and no facts or circumstances appear that can displace or throw doubt on that evidence, it seems that, that must be a material factor for the court to consider. See Walton v. R. (1978) 66 C.A.R. 25. That was a case where the defence of diminished responsibility on a charge of murder was raised. The Privy Council in allowing the appeal against conviction, after considering a number of cases where the defence was raised, said as p.30-:

“These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of killing, the conduct of the accused before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence. As was pointed out by Lord Parker C.J. in Byrne (1960) 44 Cr. App. R. 246, 254 [1960] 2 Q.B. 396, 404 what the jury are essentially seeking to ascertain is whether at the time of the killing, the accused was suffering from a state of mind bordering on but not amounting to insanity. That task is to be approached in a broad common sense way.”

In this case, besides the evidence of P.W.4, as I have mentioned earlier, which the trial judge accepted, he seemed to have overlooked, possibly because to him they were immaterial, the evidence of the nature or circumstance of the killing, the conduct of the appellant immediately after the killing, the absence of motive for the killing and in particular, the contents of the appellant’s statement to the police before the trial and his testimony in Court.

I shall now proceed to examine these pieces of uncontradicted evidence which the trial judge seemed to have overlooked before he came to his decisions:

(1) As to his behaviour before and at the killing-In his testimony before this Court, he said: “I went to one side of the road leading to the farm. At first I sat down. After I stood up. When I stood up, one man was riding a bicycle. I raised up the cutlass in my hand up and cut the man. He fell down on the bicycle, on one side of the road.”

(2) After the Killing-he stated “when he fell down, I put his head inside the bag which was with me and carried it to my house. . . I had no quarrel with the man before the incident. He has no quarrel with my father. He had no quarrel with my brothers, Anthony and Simeon. He had no quarrel with any member of my family. Before I left home, for the farm on that day. I had no mind to kill anybody in the farm. I had no intention to kill Kaine Dike on that day.”

(3) Before and after the killing-it is clear that appellant did not believe he was even sick and that on account of that sickness, he was brought from Lagos to Umukwata, his home town. He denied that he was sick. He said he was not sick when he was in Lagos.

He however remembered:

“I remember that one day I was going to enter a Coaster Bus to take me down to Palmgrove when I missed my step and fell down. I was taken to the Hospital in Lagos. Ada hospital is a private hospital. There was no sore on my head. I just fell and got up. I was in the Ada hospital for fourteen days.

He added:

“At first I took the head of Kaine to my home. I was confused by then. Later, I took the head to the stream. I was worried because I had with me the head of a human being. I was confused at that time. I cannot say why i took the head of Kaine to the stream.”

(4) After the killing, he shouted “Nei, Nei” in Ukwani meaning “Look, Look”, thereby calling attention to what he did in the absence of any eye-witness. He then rode off on his bicycle, carrying the head to his house and putting it in his cupboard.

(5) In his statement to the police, he said one Olise, his wife and one Omodu were present when he cut Kaine, when in fact they were not present. He stated “One Ogbor told me to kill.” Ogbor never existed; He died even before the appellant was born. He mentioned that one Cletus was in his room when he took the head of the deceased home, when in fact, Cletus was at Ibadan, and no where around. He also mentioned the headmaster of Aragba Primary School, Orogun, named Oyeteru Alphonsus, as the person who directed him to kill. Oyeteru denied ever seeing the appellant or giving him such directive.

All these pieces of evidence were before the trial judge. They were material pieces of evidence for the Court to determine the mental state of the appellant at the time he committed the act. The trial judge did not consider them material. He considered them irrelevant. In my view, they were material and relevant and were factors which the trial court and the Court of Appeal should have considered.

The law on defence of insanity is clear from a number of decisions of this Court but the application often presents difficulty. The law is summarised in the lead judgment of Obaseki, J.S.C., in Effiong Udofia v. The State (1981) 11-12 SC. 49 at pp. 60-61 where he stated:

“It appears to me from the expressed provision of section 28 and I am firmly of the opinion that an accused person affected by delusions can only be relieved of criminal responsibility:

(1) If at the time of doing the act or making the omission he is in such a state of mental disease or natural infirmity as to deprive him of capacity to understand what he is doing, of capacity to control his actions or of capacity to know that he ought not to do the act or make the omission;

(2) Where he has a valid absolute defence at law, i.e. under the statute and or under the Constitution.”

This is illustrated by the classic example given by Fatayi- Williams, C.J.N., in Ngene Arum v. The State (1979) 11 SC 91 at 94 when he said:

“Thus, if an accused person under the influence of his delusion supposes that another man was going to kill him and he then kills the man believing that he did so in self-defence he would be exempted from punishment for the killing.”

In other words to constitute a defence on the ground of insanity, the defect of reason must be shown to be of a particular kind; it must be such as to bring the case within one of three categories, which may be stated thus:

(1) Did the accused know the nature and quality of his act If not, insanity is a defence; alternatively,

(2) If the accused did know the nature and quality of his act, did he know it was wrong If not, insanity is a defence. See Dillon v. R (1939) 27 Cr. A.R. at p.152.

(3) If he knew the nature and quality of his act, and knew it was wrong, was he under a delusion in some other respect If so, he is in the same situation as to responsibility as if the facts had been as he imagined-partial delusion. See Ngene Arum v. The State (1979) 11 S.C. 91 , Williams Echem v. R (1952) 11 W.A.C.A. 158.

Had the trial judge not misconceived the nature of evidence material to the defence as I have pointed out above, the circumstances of the killing, nature of the killing, absence of motive and the abnormal conduct of the appellant before, at and after the killing, the imaginary statements of the appellant after the killing, coupled with his mental antecedent before the act, it is doubtful whether he would have come to the decision that “there was nothing to suggest that the account of the killing as given by the accused in exhibit’ A’ and his evidence in Court is the account of a person who is of unsound mind.”

In R v. Inyang (1946/49) 12 W.A.C.A. 5, a similar point of misdirection were before the West African Court of Appeal. It was a case in which the defence was one of insanity. The trial judge regarded evidence of statement made by the appellant after the incident on being arrested and on the next day on being charged with murder, and the statement before the Magistrate (which he erroneously considered coherent) as indicative of sanity rather than insanity. The Court said at P.6:

“The statement before the Magistrate was made twenty-five days later. It is very much longer and much more detailed, and the details are much the same as the evidence about them.

With all respect we think that the learned Judge misdirected himself as to the inference to be drawn from the statements made on the day of his arrest (and very soon after it) and on the next day.

There was no motive for the crime. As to this the learned judge said: Absence of motive is not evidence of insanity. Rex v. Haynes: Archbold (31st Edition) page 16.’

In our opinion this is not quite correct. Absence of motive by itself would not be: or as Archbold puts it, in the passage to which the judge referred: ‘Mere absence of any evidence of motive for a crime is not a sufficient ground upon which to infer mania.’ When there is as much evidence indicative of insanity rather than the opposite as there was in this case, the absence of any evidence of motive may become relevant to the point at issue, and material to it.

Whether the appellant was insane in the legal sense at the time the act was committed is a question of fact triable by the jury and is dependent upon the previous and contemporaneous acts of the party. Evidence of insanity of ancestors or blood relations is admissible. R v. Tuchet (2) R v. Y. Vyse (3) Medical evidence is not essential.

Now what is the history of the appellant One witness Francis Ekpenyong Idio who came from the same village as the appellant and has known him from his birth, deposed that at the age of twenty the appellant developed pains in the head and said he felt his head was bursting and received medical treatment and that from then onwards periodically suffered from the said pains and received treatment.

This witness goes on to say ‘of my knowledge he was not right in the head’. ”

The finding of the trial judge was confined to the mental state of the appellant up to August 1977, when he was brought home sick of madness. Evidence of subsequent abnormal behaviour up to the 3rd of May, 1978 seemed to have escaped his attention. Three months before the act, he was behaving in an abnormal manner during the burial ceremony of his late maternal grandfather. A month before the incident, P.W.6, his brother, bound him in chains, obviously a measure against violence to ensure his safety and those of other persons around. There were, as I have already mentioned, other acts contemporaneous with the killing and after the killing, from which could reasonably be inferred that the appellant was insane. In my view, the trial judge failed to direct himself correctly on the evidence of insanity at the time of the commission of the act. His verdicts are therefore unsafe and should be quashed.

I will allow the appeal, quash the conviction and sentence. In place thereof, I order that the appellant is not guilty of the offence of murder by reason of insanity. I further order that he be placed in custody at such place and during the pleasure of the Governor of Bendel State.

A. O. OBASEKI, J.S.C.: I have had the advantage of reading in draft, the judgment just delivered by my learned brother, Coker, J.S.C. in this murder appeal. I agree with him as his opinions on the issues raised coincide with my own.

The main issue for determination in this appeal is whether the learned trial judge did not misdirect himself when he said in his judgment that there was no evidence of insanity before him at the time the offence was committed. And arising from this issue is the question whether the learned trial judge gave a proper and adequate consideration to the defence of insanity under the 1st part of section 28 of the Criminal Code Cap. 48 Vol.II Laws of Bendel State 1976 . Also concomitant with or closely related is the question whether the Court of Appeal was justified in affirming the decision of the High Court.

These issues were given detailed consideration in the judgment just delivered by my learned brother Coker, J.S.C. and I adopt his opinions and conclusions on them as my own.

The facts have been set out in detail in his judgment and I need not repeat them here. It is common ground that the appellant apparently without any motive whatever cut off the head of the deceased with a single stroke of the matchet on seeing him riding his bicycle along the bush path by their farm. He carried off the head and left the headless body to cling on to and die on his bicycle. He took the head first to his house before his mind persuaded him to find another safe place for the head. He thereafter took it to the stream.

The evidence of the mother and brother of the appellant was that the appellant suffered from madness, a disease of the mind, and had not fully recovered at the time of the incident took place. His mother committed an error of judgment when she thought he had recovered sufficiently to be set free from the chains with which his movements were hitherto restricted and allowed to accompany his brother to the farm to help with the farm work.

It appears the learned trial judge did not consider this piece of evidence in his judgment as establishing the state of the mental health of the appellant. The learned trial judge moreover did not reject the evidence as he was entitled to do. The defence of insanity was therefore not duly considered despite his acceptance and belief of the evidence of P.W.4. Failure to consider the defence therefore occasioned a grave miscarriage of justice. Having discounted the existence of evidence of insanity at the relevant time, the decision whether the insanity deprived the appellant of the capacity to understand what he was doing or to control his actions or to know that he ought not to do the act or make the omission was not made. This failure to consider the evidence and make a decision is fatal to the conviction of the appellant and the appeal against the decision that the appellant was not entitled to the defence must be allowed and a verdict that the appellant is not guilty of murder by reason of unsoundness of mind, entered.

The conviction of murder and the sentence of death are hereby quashed. In their place is substituted a verdict of Not Guilty by reason of the unsoundness of mind.

The appellant is hereby ordered to be confined in a safe place as may be ordered or determined by the Governor of Bendel State during his pleasure.

For the reasons so ably stated in the judgment of my learned brother, Coker, J.S.C. and the above reasons, I hereby allow the appeal.

A. N. ANIAGOLU, J.S.C.: The judgment just read by my learned brother, Coker, J.S.C., was made available to me in draft. I also agree that for the reasons given in the said judgment, this appeal should be allowed and I hereby allow it.

There was abundant evidence from which the insanity of the appellant was established. The learned trial judge accepted the evidence of the mother of the appellant, Catherine Onyioke (P.W.4), and the evidence of this woman was that the appellant was brought home from Lagos, mad.

There was also the evidence of the appellant’s brother, Anthony Johnny Loke (P.W.6), who testified that in April 1978 when he saw the appellant in their home, he was chained because he was sick. Said he:

“He was chained because he was sick. He was mad. The accused was still sick when he went to the farm on the” day of the incident. His head was still not balanced. ”

In spite of this evidence, the learned trial judge held in his judgment that:

“There is no evidence that on 3-5-78, when the accused chopped off the head of Kaine Dike that he was suffering from any mental illness, ”

-a clear misdirection.

Under the first segment of section 28 of the Criminal Code the appellant, to avail himself of that part of s.28, could be shown to suffer from mental disease or natural mental infirmity leading to either of the three incapacities:

(i) incapacity to understand what he is doing; or

(ii) incapacity to control his actions; or

(iii) incapacity to know that he ought not to do the act or make the omission.

The available evidence in these proceedings was clearly enough to establish, in the very least, (i) and (iii) above, but the learned trial judge, without dealing, in his judgment, specifically with the various capacities, simply held that:

“The preponderance of the evidence in this case shows (sic) that the accused does not come within the ambit of section 28 of the criminal code of this state.”

There was clearly a non-direction.

For these reasons and for the more elaborate reasons given in the judgment of my learned brother, Coker, J.S.C., I hereby allow this appeal, quash the conviction and sentence in the High Court; set aside the judgment of the Court of Appeal and in lieu thereof, enter a judgment of not guilty of the offence of murder by reason of the appellant’s insanity. I abide by the rest of the Orders of my learned brother, Coker, J.S.C.

S. KAWU, J.S.C.: I agree with the judgment which has just been delivered by my learned brother, Coker, J.S.C. Having had the advantage of reading the judgment in draft, for all the reasons given therein, I would also allow the appeal and quash the conviction and sentence imposed. Instead, I would enter a verdict of not guilty of the offence of murder by reason of insanity, and would direct that the appellant be confined in a suitable place of safe custody during the pleasure of the Governor of Bendel State.

C. A. OPUTA, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Coker, J.S.C., and I agree with him that this appeal should be allowed on the ground that the defence of insanity, so obviously appearing on the records, was inadequately considered.

I will like to make a few comments of my own on the issues that usually confront a trial court where insanity is raised as a defence. Section 28 of the Criminal Code, Cap 42, Laws of the Federation and all our decided cases on this subject show clearly that insanity or natural mental infirmity or mental disease or madness as it is popularly called is not by itself alone, and per se, a defence to a murder charge. In addition to proving ordinary madness or insanity, the defence to succeed will go further and prove legal insanity and by legal insanity, I mean that kind of insanity which could and did deprive the person accused of one or a combination of more than one of the 3 requisite capacities envisaged by section 28, namely,

(i) capacity to understand what he was doing;

(ii) caacity to control his action;

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

This is the requirement of our law with regard to the defence of insanity.

During a trial, the above legal requirement demands that the defence on whom the primary onus lies will lead evidence or establish first, insanity and then, the consequent deprivation, of any, of the required capacities. When this primary onus has been discharged, the prosecution will be expected to counter (either by cross-examination or direct evidence) any suggestion that the accused is not normal or same as the law presumes him to be. There will, therefore at the end of the evidence, be two versions of this most essential fact namely: Was the accused sane as the prosecution contends or insane as the defence suggests On this broad issue of the insanity or the sanity of the accused person, the trial court has to make up its mind after evaluating the whole of the evidence led at the trial. It is neater for the trial judge, here, to make a specific finding one way or the other.

After this first hurdle, then comes proof that the insanity established, deprived the accused person of one or other of the capacities required under section 28 of the Criminal Code. It may happen, as of often is the case, that insanity is proved but the requisite incapacities are not. This is why it is important that the trial judge should go further, after a finding of insanity, to decide the issue of want of capacity and where possible (and it should be possible in every case) make a definite finding as to which incapacities have been proved by the evidence. If none has been proved, the trial judge should say so. If insanity is proved and an incapacity is also established, the logical conclusion will be a verdict of not guilty on the ground of unsoundess of mind. On the other hand, if insanity is proved and no consequential incapacity is established, the logical verdict will be guilty as charged. Thirdly, if complete madness is not proved, the evidence may point irresistibly to what, in English law, is called partial insanity or insane delusion or what section 28 of the Criminal Code simply refers to as delusions. If this is established, there ought also to be a distinct finding to that effect and then the criminal responsibility of the accused will be as provided by the second paragraph of section 28 of the Criminal Code.

Now let me apply the above principles to the present appeal. Was there a finding of insanity broadly speaking The answer is yes, for the learned trial judge found as follows:

“There is no doubt whatsoever that the evidence of the accused is quite at variance with the defence of insanity. He denies ever being sick in Lagos. On this point, I believe the evidence of P.W.4 when she said that the accused was brought back from Lagos because he had mental trouble.”

The 4th P.W. Catherina Onyioke, the mother of the appellant said more than this. She continued:

“The nature of the illness . . . was madness . . . When the accused was brought from Lagos, he used to shout and remove his shirt and trousers and go about the town in pants.”

The learned trial judge believing the 4th P.W. then found that the appellant was mad or insane. This is only stage 1.

The next issue will then be: what was the effect of this insanity on the appellant, and did it deprive him of any of the 3 requisite capacities mentioned in section 28 of the Criminal Code In the present appeal, this issue was not adequately considered by the learned trial judge before he came to the rather abrupt conclusion that “the preponderance of evidence in this case shows that the accused does not come within the ambit of section 28 of the Criminal Code of this State.” He came to this conclusion because according to him:

There is no evidence that on 3-5-78 when the accused chopped off the head of Kaine Dike that he was suffering from any mental illness.”

Was there really no such evidence If there were not, the learned trial judge would then be right in his conclusion and his verdict would naturally be sustained. But if there were such evidence, then, very serious questions will arise.

The appellant had a constitutional right to fair hearing which inter alia implies that all the evidence in his favour (whether these came from the defence or from the prosecution) should be fairly submitted for the consideration of the jury. In a non-jury trial, the judge, as a judge of fact is bound to consider all available evidence and to reach his decision on the totality of the evidence, otherwise, he will be guilty of non-direction or misdirection or both; for if the facts were not fully and adequately considered, the legal conclusion of guilty based upon those imperfect, incomplete, or inadequately considered facts would be erroneous.

In this case, there was an abundance of direct oral evidence as well as circumstantial evidence tending to show that at the material time 3-5-the appellant was mad or insane viz:

(i) The 4th P.W., the mother of the appellant, testified that “By the time of the incident the accused had not fully recovered . . . I told the police when they obtained my statement that the accused was suffering from madness.” Obviously the mention of the words “Statement” and “Police” will force anyone to the conclusion that the “incident” 4th P.W. was referring to, was the killing of the deceased by the appellant. By the time of that killing, the appellant was still mad; he had not fully recovered.

(ii) The 6th P.W., Anthony Johnny Loke, the brother of the appellant, testified under cross-examination:

“When I met the accused at home in April 1978, he was chained. He was chained because he was sick. He was mad. The accused was still sick when we went to the farm on the day of the incident. His head was still not balanced.”

Note. It was on 3-5-78, the day the 6th P.W. and the appellant “went to the farm”, that the deceased was killed by the appellant.

(iii) The 7th P.W., Paul Ilo, testified as follows

“I knew that the accused was not well when about three or four months before this incident, the father of his mother died. I traveled from Obikwele to Umukwata for the ceremonies. There, I noticed that the accused behaved abnormally.”

These are prosecution witnesses testifying to the mental condition of the appellant “at the time of doing the act.”

The sum total of the evidence of 7th P. W., 6th P. W. and 4th P. W. is that (i) 3 months before “this incident” the appellant was abnormal, (ii) in April 1978, one month before “the incident” (of 3rd May 1978), the appellant was in chains because he was mad; (iii) on the day of the incident 3-5-78 the appellant was still sick. His head was still unbalanced. In the face of the direct oral testimonies of these three prosecution witnesses (4th P.W., 6th P.W. and 7th P.W.), it is difficult (if not impossible) to comprehend the conclusion of the learned trial judge that “there is no evidence that on 3-5-78, when the accused chopped off the head of Kaine Dike that he was suffering from any mental illness.” Because of this wrong assumption, the learned trial judge then concluded that “the preponderance of the evidence in this case shows that the accused does not come within the ambit of section 28 of the Criminal Code of this State.” With the greatest respect, the above statement is a very serious and material misdirection both in fact and in law-in fact because the facts were inadequately considered and, because not all the facts were considered; in law because section 28 of the Criminal Code was applied to incomplete facts and not to all the facts.

A finding that the appellant was insane at the material time (3-5-78) had to be made first, before the effect of that insanity on his “capacity to understand what he was doing”, or his “capacity to control his actions” or his “capacity to know that he ought not to do the act or make the omission” can even be inquired into because Section 28 of our Criminal Code, Cap 42, Laws of the Federation, makes the deprivation of any of these 3 capacities consequent on and arising from, the person being in such a state of mental disease or natural infirmity”. The learned trial judge by this material misdirection shut the door against further necessary inquiries and against the consideration of the contemporaneous acts of the appellant indicative of insanity and which might have gone to show whether or not he lacked any of the 3 requisite capacities.

Why should the appellant go to the road-side and to quote him “at first I sat down, later I stood up, then I sat down” Why should the appellant in one fell blow cut off the head of someone who was riding along the road, who offered him no insult and no provocation He had no quarrel with the deceased; he did not even know him before that date. Why should the appellant alert everyone by holding the deceased’s head and shouting “Nei Nei Nei” (translated into English “look, look, look”) as he rode home on his bicycle with the head of the deceased Why should the appellant carry a man’s head into his room and keep it in his cupboard and later carry it to the stream It is to conceal the murder If yes, why was there no attempt to conceal the body left lying on the road-side These and so many other questions remain unanswered.

But when one considers the complete absence of motive along with these other acts of the appellant, the probability that the appellant was raving mad becomes a possibility: Rex v. Inyang (1946) 12 W.A.C.A. 5. Whether or not these facts were sufficient to satisfy the requirements of section 28 of the Criminal Code as to the effect of his insanity on any of the three requisite capacities was an issue of fact to be determined by the trial judge on a proper evaluation, direction and proper finding. R v. Anuku (1940) 6 W.A.C.A. 91 refers.

In any event, in view of these contemporaneous acts of the appellant, and in view of the complete absence of motive, the evidence of 4th P.W., 6th P.W. and 7th P.W., taken together established that at least one thing was certain, that is, that the appellant had discharged the burden of proof cast on him-the proof of merely a probability that he was insane or put in another way, the proof of a reasonable doubt as to his sanity. And that is all the law requires of him Sodiman v. The King (1936) W.N. 90.

The difficulty in this case is that no one can now say with any degree of certainty what verdict the learned trial judge would have returned if he did not so seriously and materially misdirected himself.

The Court of Appeal could have corrected the trial court but unfortunately, and with the greatest respect, that court (the Court of Appeal) itself fell into error when it used “his evidence on oath a couple of years after the event” to infer that “it is not possible to infer that the appellant did not know what he was doing or that he did not know that it was wrong.” The appellant gave his evidence in court on 12-3-81, almost 3 years (2 years 9 months days to be exact) after the killing of the deceased on 8-5-78. The state of mind the law requires in the defence of insanity is that which existed “at the time of doing the act”.

Three years later cannot without undue injury to the plain meaning of the words section 28 of the Criminal Code, be interpreted to mean “at the time of doing the act”. It is my humble view that the defence of insanity, which appears so clearly on and from the records, was not adequately considered by both the trial court and the court below and since there must be a doubt as to what verdict would have been returned if this defence was properly considered, it is safer to give to the appellant the benefits of that doubt.

It is for the above reasons and for the more detailed reasons given by my learned brother Coker, J.S.C. that I will allow this appeal and make the same order which he made. Order:

The appeal is allowed, the conviction and sentence of the court of trial are both set aside and in their place I order that the appellant is not guilty of the offence of murder by reason of unsoundness of mind. I further order that he be placed in custody at such place and during the pleasure of the Governor of Bendel State.

Not Guilty because of Insanity. Appellant to be kept in Custody at the pleasure of the Governor Appeal Allowed,Conviction and sentence quashed.

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SC.85/1984