Sule Noman Makosa Vs The State (1969)

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COKER, J.S.C.

We indicated when we dismissed this appeal at the hearing on the 19th September, 1969, that we would later give our reasons for dismissing it. We now set out those reasons. The appellant was tried and convicted at the High Court, Sokoto, North-Western State, of culpable homicide punishable with death under section 221 of the Penal Code. According to the prosecution the accused caused the death on one Mainasara by stabbing him in the throat and on the side with a knife on the 22nd September, 1968, at Makosa village in Zurmi District of the North-Western State. One Achali Tunau (1st prosecution witness), the father of the deceased, testified that on the 22nd September, 1968 he saw his son, Mainasara, enter his (witness’s) house bleeding profusely with cuts on his neck and right ribs. It was very early in the morning and as a result of what he saw, Achali Tunau went out and called to Ward Head, Cidawaki Mohammadu (8th prosecution witness), to witness the spectacle. On their arrival at the house of the 1st prosecution witness they found the body of Mainasara who, in the meantime, had died.

The 8th prosecution witness then contacted the Village Head, one Mamman Baran (7th prosecution wit-ness) and informed him of what he had seen. Mamman Baran called the 3rd prosecution witness (Abubakar Garba) to accompany him to the house of Achali Tunau, the father of the deceased. Both the 3rd and the 7th prosecution witnesses saw the body of the deceased, Mainasara, in the house of his father with cuts on the neck and the side. In consequence of what happened the 8th prosecution witness gave instructions that all the villagers should be assembled in front of the house of the 7th prosecution witness, Mamman Baran, the Village Head. Another prosecution witness, Hamidu (2nd prosecution witness and a senior brother of the accused) testified that when all the villagers were assembled he discovered that his brother, the accused, was not present. He therefore went in search of him and later saw him in his farm roaming around with his clothes stained with blood. He then brought the accused back to his (accused’s) house and locked him up there. He reported this to the Ward Head (8th prosecution witness) who later handed over the accused to the police. After his arrest the accused made a statement to the police in which he confessed that he went to the house of the deceased and stabbed him with a matchet whilst he was sleeping and that he then fled into the bush. He said he did all this because of mental illness. At his trial, the accused gave evidence in his defence and said, inter alia:-

“Then I heard a voice saying, `Here are two girls, I should open them’. At this stage I woke up feeling afraid. A knife was lying close to my head. After waking up I went to Mainasara. When I got to Mainasara I stabbed him with a knife, but I did not know whether he was Mainasara or not. I did not know what I was doing at the time.”

The accused disputed neither the killing of the deceased by himself nor the making of the confessional statement admitted as exhibit ‘2’. He said he was not mentally sound when he did the act. the learned trial judge considered and rejected the issue of insanity and convicted the accused as charged. From this conviction the accused has appealed to this Court. Learned counsel who appeared for the accused conceded that the killing of the deceased by the accused was established beyond any doubt and that on the evidence before the learned trial judge the issue of insanity was not established. He had nothing therefore to urge in favour of the accused.

We dismissed the appeal at the hearing. In giving our reasons for doing so, however, we wish now to advert to the rather casual way in which the issue of insanity or otherwise of the accused was dealt with by the prosecution. In the statement which the accused stated that when he was questioned by the Village Head as to why he had killed Mainasara he had replied that it was due to mental sickness from which he suffered. In this case it is to the credit of the accused that he not only confessed to the killing of the deceased but also assisted the police in their investigation and handed over to them the essential exhibits. The 2nd prosecution witness, Mamidu, a senior brother of the accused, testified concerning the accused as follows:-

“The accused is my brother. We live in the same house. For the past five years the behaviour of the accused has been abnormal. On one occasion when the wife and children of the accused had gone to sleep in his room, he set fire to his room with the wife and children inside. The accused was in the room at the time. On one occasion on Sallah day the accused repeatedly beat a ram until it died. On another occasion the accused killed an ewe by beating it. Nomau is still alive. The accused was treated for his abnormality with a certain medicine. As a result the accused’s condition appeared to improve and return to nor-mal. But after an improvement the accused’s condition would again relapse in to an abnormal behaviour.”

The 3rd prosecution witness, Abubakar Garba, had known the accused some thirty years before this incident and stated that for the past five years the accused had been mentally ill and had attempted to burn his family and himself. The accused himself stated in the course of his evidence, inter alia, that when he killed Mainasara he was mentally ill. The learned trial judge obviously dealt, as he should do, with the case on the basis of the evidence before him. He observed, inter alia, as follows:-

“I do not believe the evidence of the accused insofar as he relied on unsoundness of mind at the material time, and reject it completely. I find that the accused has failed to establish his plea of unsoundness of mind and I accordingly reject it. It is impossible to impugn the direction and findings of the learned trial judge in this respect and it is well to point out that when the question is as to the sanity or otherwise of a person such a person himself is hardly a competent witness on this point and in any case the probative value of such evidence must be considered rather low. In the present case, however, sufficient indication was given to the prosecution in the statements of the witnesses whom the prosecution had decided to call suggesting an investigation of the mental condition of the accused. The prosecution did not pursue that aspect of the investigation in the High Court. Section 51 of the Penal Code reads as follows: “51. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”

It may well be, as the learned trial judge stated, that section 140(3)c of the Evidence Law places the onus of establishing insanity on the accused person. That however does not mean that an accused must necessarily call evidence to do so for it is not infrequently possible for an accused person to extract from the prosecution witnesses such evidence as would be sufficient to discharge the onus which the law has placed on him in this respect.

The learned Chief Justice pointed out during the hearing of this appeal that it was the practice at one time for a person accused of murder to be placed under observation by a prison doctor for sometime, long enough, before his trial and for the doctor to be called to give evidence on his observations or report. This course is eminently desirable in cases where as in the present one, manifest indications occur suggesting that mental abnormality cannot be ruled out.

The law exculpates a person from criminal responsibility when he is proved to fall within the provisions of section 51 of the Penal Code; and where facts are discovered in the course of police investigation which suggest abnormality, the investigation should, even if only to negative the suggestion, be carved out into that area. Appeal dismissed.

Other Citation: (1969) LCN/1650(SC)