The Queen Vs Daniel Tabigen (1960)

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BRETT, FJ 

The appellant was convicted by Coker J., in the High Court of the Southern Cameroons on a charge of murdering Monica Nkimini, his own wife. The killing took place during the night and by about 6.00 a.m. the next morning the appellant had gone to his accord to the house of Sergeant Raphael Nganje, of the Nigeria Police, and confessed that he had killed five persons with a matchet which he handed over. He was in an excited state and when one Nshenkam Daniel, whom, he had tried to attack during the night, arrived at the Sergeant’s house, the appellant shouted that he was sorry that he had not killed him too.

It would appear that the appellant began by attacking his wife while she was asleep, and inflicting wounds on her mouth, her neck and her shoulder, of which she died.

A baby girl, the child of the appellant and his wife, was in the same room and he next wounded her, but not fatally. He then went into another room, where he killed a grown man called Andreas and his own son Tacheng Nkam. One Phillip Nkam appeared with a lighted lamp to see what was happening and the appellant attacked and killed him. Finally the appellant made two attempts to break into the house of Nshenkam Daniel and tried to stab first Nshenkam Daniel and then his wife Magdalen Ngumfag with a spear through holes he had made in the wall, saying he would burn the house down if he had kerosene and matches. These two were able to save themselves by running away.

The whole sequence of events being admitted, the only question for consideration is whether the appellant was criminally responsible for his actions, or whether he could claim the protection of s.28 of the Criminal Code, as having been in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he was doing or of capacity to control his actions, or of capacity to know that he ought not to do the action or make the omission. The appellant not only made statements to the police which showed that he had understood what he was doing, but in his evidence at the trial he said in his examination-in-chief “I killed my wife. I knew I did it. I knew it was wrong to do so.” This being so, the only possible defence is that the appellant was deprived by mental disease or natural mental infirmity of capacity to control his actions. Counsel on both sides have Invited us to state the law of Nigeria governing the defence of insanity correctly in one part of his judgment he does not, when applying the law to the facts of the case, consider whether the appellant was deprived of capacity to control his actions.

That the appellant knowingly did what he knew was wrong is undisputed, and it may well be that he had worked himself up into a state of mind in which he was in fact unable to control his actions, but we have first to consider whether there was any evidence of mental disease or natural mental infirmity. According to one story told by the appellant himself his reason for killing his wife was that he had been told, and believed, that someone had given, or tried to give, a juju to her either to kill him or to leave him, and that she refused him sexual intercourse on the night in question and later started to abuse him. In his evidence-in-chief he said that someone had previously tried to kill him with a juju and that his food on the evening in question was poisoned. Under cross-examination he said “I struck Monica with the cutlass because she abused me,” and the fact that he struck her on the mouth may afford some confirmation of this. Mr. Walker has submitted that the antecedent matters had all been preying on the appellant’s mind for some time possibly as long as a year that on the night in question he was in a very passionate condition, and that the cumulative effect of rage, suspicion and other emotions was to produce a natural mental infirmity.

Mr. Walker particularly draws our attention to the appellant’s account of his own actions and feelings given in his statement to the police, Exhibit A, the following day. In R. v. Omoni. 12 W.A.C.A. 511, the West African Court of Appeal accepted natural mental infirmity as meaning “a defect in mental power neither produced by his own default nor the result of disease of the mind:, and we adopt that definition. We do not, however, regard a defect in mental power as equivalent merely to an inability to master the passions. In the Mental Deficiency Act 1913, as amended, mental defectiveness is defined as a condition of arrested or incomplete development of mind, and that, or something like it, may well be the meaning to be given to natural mental infirmity in the Criminal Code. In the present case, we see no ground for holding that at the time of the offence the appellant was suffering from natural mental infirmity. Section 28 of the Criminal Code, therefore, affords him no defence.

Mr. Balogun argued a further ground of appeal, to the effect that the failure of the learned Judge to consider the defence of “incapacity to form an intention due to poison, charm” (sic) “or drug amounted to a misdirection. There was no evidence that the appellant had taken poison or a drug, or that he was incapable of forming an intent to murder. As regards the suggestion of a charm, the West African Court of Appeal pointed out in Konkomba v. Regina 14 W.A.C.A. 236, that, except in circumstances which do not apply in this case, a defence founded on a witchcraft had always been rejected in murder cases, and we do not intend to depart from that salutary rule.

The consequence is that the appeal must be dismissed.

Appeal dismissed.

Other Citation: (1960) LCN/0879(SC)