Philip Upetire V. A. G Western Nigeria (1964)

LawGlobal-Hub Lead Judgment Report

TAYLOR JSC

The appellant has appealed to this Court against his conviction by the High Court Akure for the murder of a boy, Jones Wilson on the 8th August, 1963. That the appellant killed the deceased, and another son of P.W.2 Jessy Wilson, cut off their heads, and buried the bodies in separate places from the heads, is not disputed. The reason for such savage acts or the circumstances leading up to these are however disputed. On the evidence of the 2nd P.W. the mother of the dead boys, the appellant had previously been much concerned about his unmarried state, and on the 7th August he asked P.W. 2 for some money to enable him to get married. She told him that she had a child in a Secondary School at Abeokuta and another in Lagos and she could not spare the money. She however offered him 10s as transport money back to his home in Ugweru near Ughelli. He did not take the money. The next day in the evening the two sons of P.W. 2 i.e., Jimmy and Jones both said they were hungry, and were going to the farm to get some yams. The appellant heard this, and said that he was going out. Soon after the two boys left, the appellant followed in the same direction. When the two boys did not return in time, the mother went to look for them and saw the appellant coming towards her from the direction of the farm, carrying a matchet. When he got near to the 2nd P.W. he raised the matchet to attack her, but she ran back, and raised an alarm. The appellant was disarmed by P.W. 9. Later on, he showed the Police where he had hid the bodies of the deceased persons.

On the other hand, the appellant’s version is this, in his own words:

“I killed them because the 2nd P.W. refused to show me where she kept the money which she made out of me by the use of a juju `Usigho’. `Usigho’ is an Urhobo juju used for acquiring money. I cut off the heads of both Jones and Jimmy because the 2nd P .W. refused to show me where she had kept the money.”

He expressed no regret for what he had done, and made no suggestion that he had been unable to help himself. At the hearing in the High Court, one Aristide Katalani, Surgeon Specialist at the St. Louis Combined Hospital, Owo was called to give evidence for the defence on the issue of insanity and this is what he said inter alias

“The accused was under my observation for three months when he was in the State Prison at Owo. I observed him from 24-8-63 until 30-11-63. I noticed some changes in the skin of his hands and other parts of the body. These changes make the skin older than the age of the patient. The changes are typical of a disease known as geroderm. This disease is usually combined – with mental trouble.”

And a little later on, he said:

“In my opinion he is not mentally normal.” Under cross examination he went on to say that:

“Geroderm does not affect the memory of the sufferer but the relationship between the will and the action. While a patient might remember what he did, he would not be responsible for his action. I mean the patient could not stop himself doing what he had done. The patient could sometimes recognise right from wrong.”

Finally, in answer to questions by the Court, he replied that:

“I have no qualification in mental diseases. I am only a surgeon specialist. My diagnosis of the disease showed that the accused had been suffering from it since birth. It is possible for his condition to get worse as he grows older.

The Learned trial Judge in convicting the appellant, held inter alia that:

“It must be pointed out, however, that the doctor did not say that the accused was unable to control his actions at the material time on the 8th day of August, 1963. Moreover, there is nothing in the circumstances of the crime nor is there any evidence of the previous conduct of the accused which indicated that he was unable to control his actions when he killed the deceased.”

Stopping for a moment, the evidence of P.W. 2 who had acted in loco parentis to the appellant since the death of the latter’s mother pointed to his acting normally before the incident under review. The trial Judge then went on to set out eight circumstances which led him to the conclusion that the appellant was at the material time able to control his action inspite of the disease from which he suffered. On the balance of probabilities the trial Judge held that the appellant was sane in the legal sense at the time of the murder.

Mr. Cole, learned Counsel for the appellant has urged that the preponderance of evidence is in favour of the defence of insanity as deposed to by D.W. 1, and our attention was drawn to the cases of R. v. Omoni 12 W.A.C.A 511 and Reg. v. Rivetts 34 C.A.R. 87 at page 94.

The only point in issue is whether on the preponderance of evidence it has been shown that the appellant was at the time of the offence unable to control his action. Section 26 of Criminal Code Law Western Region provides as follows:

“A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand stand what he is doing, or of capacity to control his actions, or capacity to know that he ought not to do the act or make the omission.”

That he was suffering, and had been so suffering, from the disease geroderm from birth; that such a disease also carries with it some degree of mental trouble, and that such condition grows worse as the patient grows older are facts amply established by the evidence of the medical expert.

Where this evidence falls short of what is required by law is as to the extent to which this disease-geroderm- had affected the appellant’s will, and his ability to control his action, at the time of the act complained of.

In the absence of that, the evidence of P .W. 2 that appellant acted normally before the incident coupled with the fact that on the evidence of this same witness the appellant’s action before the incident was shown to have been thought out, and the further fact that the defence set up by him on the evidence was that he killed in revenge because the 2nd P.W. refused to tell him where she kept the money that she made out of him through native juju, all point to the correctness of the verdict to which the trial Judge came.

We are of the view that this appeal should be dismissed.

Other Citation: (1964) LCN/1143(SC)