Rex V. Sunday Omoni (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Murder—Defence of Insanity—Nigeria Criminal Code,section 28—Comparison with English law and distinctions between Nigerianand English law—What must be proved by the defence to establish a defence ofinsanity under Nigerian Law.
Comparison of the answers to the second and third questions propounded to the Judges in Macnaughten’s Case (1) with section 28 of the Nigeria Criminal Code shows that the Nigerian legislature have not only departed from the phraseology of the Judges but have also introduced two entirely new factors, that of ” natural mental infirmity ” and that of incapacity to ” control his actions “.
In order to establish the defence of insanity under Nigerian Law, the defence must prove (i) that the prisoner was, at the relevant time, suffering either from mental disease or from ” natural mental infirmity ” as interpreted in the judgment; (ii) that the mental disease or the natural mental infirmity was such that, at the relevant time, the prisoner was, as a result, deprived of 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. Cases referred to:
- Macnaughten’s Case, 8 E.R. 718.
- R. v. Kopsch, 19 Cr. App. R. 50.
- R. v. Ashigifuwo, 12 W.A.C.A. 389.
Appeal from the Supreme Court of Nigeria.
Kayode for Appellant.
Amachree, Crown Counsel, for Crown.
The following judgment was delivered:
Verity, C.J. This is an appeal from a conviction on a charge of murder heard before Bairamian, J., in the Supreme Court at Port Harcourt.
The defence was that of insanity and although this is not referred to in the grounds of appeal filed by the appellant in person (in which we may state at once there are no merits) we allowed Counsel assigned by the Court to argue the question at the hearing of the appeal.
The section of the Criminal Code (section 28) which relates to this defence is 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 what he is doing, or of capacity to control his actions, or the capacity to know that he ought not to do the act or make the omission.
” A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”
“This may look a little different from English law, though I do not think it is meant to be. Be that as it may if one takes the words of capacity to control his actions’ alone, one is left with this: if he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to control his actions ‘.”
The English law on the subject is that laid down by the Judges in answer to certain questions propounded to them by the House of Lords in Macnaughfen’s Case (1). The answer most nearly analogous to the provisions of the first paragraph of section 28 of the Nigeria Criminal Code are those to the second and third questions and in which the following words are used :-
” To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.”
It is clear to us by comparing these words with those of section 28, that the legislature, we must assume for good reason, have not only departed from the phraseology of the Judges but have also introduced two entirely new factors, that of ” natural mental infirmity ” and that of incapacity to ” control his actions “.
The words of the section ” such a state of mental disease ” may well be considered as equivalent to the words ” such a defect of reason from the disease of the mind ” used by the Judges in Macnaughten’s Case (1); but the introduction of the words ” or natural mental infirmity ” go beyond the latter words. We must ascribe to them, an intention to distinguish between ” mental disease ” and ” natural mental infirmity “, for otherwise the last words would be redundant. The meaning of these words as distinct from ” mental disease ” may perhaps best be defined by a paraphrase of certain words used by Sir J. Stephen in his Digest of Criminal Law, 6th Edition, pp. 20-21) which although of doubtful validity, as admitted by the learned author, in English Jaw, nevertheless in our opinion, express the apparent intention of the legislature in this country. The words ” natural mental infirmity ” mean, therefore, in our opinion, ” a defect in mental power neither produced by his own default nor the result of disease of the mind “.
That is a considerable extension of the law of England. But even more marked is the inclusion in the Nigeria Section of the words ” to deprive him of capacity to control his actions “: Not only do these words depart from the rules in Macnaughten’s Case, but they are in direct conflict with the line of English decisions subsequent thereto in which the Judges in England have declined to accept the defence of ” irresistible impulse ” which these words appear to have introduced into the law of Nigeria. As to the wisdom of introducing or maintaining this departure from English law, it is for the legislature to judge; this Court can only apply the law as we find it. Nothing could emphasise more pointedly the contrast between the English and the Nigerian Law in this respect than the words of Hewart, L.C. J., in the well-known case of R. v. Hopsch (2) where the learned Lord Chief Justice said—” The complaint against the Judge is that he did not tell the jury that something was the law which was not the law. . . . It is the fantastic theory of uncontrollable impulse which, if it were to become part of our criminal law, would be merely subversive. It is not yet part of the Criminal law, and it is to be hoped that the time is far distant when it will be made so.”
The Nigerian Law being what it is, it may be well to state quite dearly what, in our opinion, the defence must prove under that law, to establish insanity and to overcome the presumption that every man is sane and accountable for his actions.
First it must be shown that the prisoner was, at the relevant time, suffering either from mental disease or from ” natural mental infirmity ” as we have interpreted its meaning.
Then it must be established that the mental disease, or the natural mental infirmity, as the case may be, was such that, at the relevant time, the prisoner was, as a result deprived of capacity :—
- to understand what he was doing; or
- to control his actions; or
(e) to know that he ought not to do the act or make the omission.
It must further be remembered that if the defence be one of partial delusion, the provisions of the second paragraph in the Nigerian section 28 are applicable and that they are similar to the rules in Macnaughten’s Case (1) as to delusions.
In the present case, the learned Judge having heard the evidence and having had the opportunity of observing the appellant during the trial and in the witness box, was not satisfied that the appellant was, at the time of the commission of the offence, in such a state of either mental disease or natural mental infirmity as to deprive him of the capacity to control his actions. While we might have expected to find in the course of his judgment some indication as to the measure of proof required of an accused person in order to establish this defence we are, by applying the principles which have frequently been laid down and particularly more recently in the case of R. v. Ashigifuwo (3), unable to say that upon the evidence in this case the learned Judge was wrong.
While according to the medical evidence, the appellant may have been of unsound mind, there can be no doubt that he both understood what he was doing and knew that he ought not to have done it. Although he may have been affected by a delusion that his mother had been killed, he would still be criminally responsible for the killing of the deceased, as he himself states, by way of revenge, for this is that for which the second paragraph of section 28 specifically provides. In regard, finally, to the particular defence raised at the hearing of the appeal, that of incapacity to control his actions, the sole evidence in his support is the statement of the appellant himself ” I could not control myself “.
There is nothing in the circumstances of the crime nor any evidence of previous conduct of the appellant which can be held to support this statement, which, standing by itself, could not in our opinion, be sufficient to establish this defence.
The appeal is therefore dismissed. The medical evidence as to the state of mind of the appellant will doubtless receive further consideration in the proper place.
Appeal dismissed.
