Yahaya Mohammed V. The State (1997)
LAWGLOBAL HUB Lead Judgment Report
L. KUTIGI, J.S.C.
In the High Court of Justice holden at Ikole-Ekiti, the appellant was charged with the offence of murder of one Janet Nwafor contrary to section 319(1) of the Criminal Code. He pleaded not guilty to the charge. At the trial the prosecution called five witnesses to prove its case while the appellant testified on his own behalf and called two other witnesses in support.
The facts of the case are as stated by the single eye witness who testified as PW. 2. She was called Eunice Adenike Agbeniyi. She testified thus:-
“I knew one Janet Nwafor. She was my mother. She is now dead. I know the accused person. On 3/5/87 at about 5 p. m., I returned from school. I sat at the backyard carrying a child of one woman living in our house. She is Mrs. Adeoye. The accused was where I sat down. A woman then came and stood at the Sabo where Hausa people collect to sell their goods. She called the accused, wishing to buy beans from him. He did not respond. The woman told me to help her call the accused. I then informed the accused that the woman was calling him. He suddenly gave me a slap (on my face) Mrs. Adeoye and Baba Aina were there. I started weeping and was cleaning my face. I did not know who went to call my mother. When she got to me, she asked what happened to me. Mrs. Adeoye was still there. She narrated to my mother how the accused came to slap me. That she did not know what the witness did to the accused to warrant the accused slapping the witness. Before my mother turned her back, the accused had gone inside to bring out an axe and hit my mother with it. He hit my mother on the forehead and ribs’ side. My mother fell down after she had been hit with the axe. Baba Aina is called Shehu. He wanted to seize the axe from the accused telling him that my mother had not done anything to warrant the accused hitting my mother with the axe. The accused left my mother and, faced the Baba Aina and hit him with the axe. Witness identified Exhibit 1. My mother was then unconscious.”
Under cross-examination she continued thus:-
“I have known the accused for less than two years before the date of incident. It is about a year I knew him before the date of incident. There was no misunderstanding between him and us within that year. I never spoke with him. To my knowledge there was no quarrel between my mother and the accused. I was not seeing him every time. I never heard nor knew that the accused had mental derangement. I was not aware of this. I and the accused were not accustomed to talking to each other. I saw Exhibit 1 on that day. That was why I could identify it today.”
The incident happened on 3/6/87 while the deceased died in hospital on 20/6/87. Dr Paul Aderemi Adekoje performed autopsy on the dead body. His report was admitted as Exhibit 2 in evidence. In his opinion the cause of death was:-
“due to infection of the brain due to fracture to the skull bone caused by a sharp object.”
In the course of Police investigations also the appellant volunteered a statement to the police in Yoruba which was later translated into English. These were tendered as Exhibits 3 & 4 respectively by Police Sergeant Mathew Oluwole Olawoyeye, who testified as PW. 5 at the trial. The defence of the appellant was in short that of insanity.
At the end of the trial, the learned trial Judge in a considered judgment found the appellant guilty as charged and sentenced him to death. The defence of insanity put up by the appellant was rejected when he observed:-
“Though the onus that rests upon the accused is the civil one, in my view, this onus has not been discharged. Having held that the accused’s evidence attracts no probative value upon the authorities, having also held that the evidence of DW. 3 supports the prosecution’s case that the accused was sane rather than insane between 1984 and the time of the incident, I am left with the evidence of DW.1 which I have held did not go far enough to establish that the accused was insane at the relevant time he committed the crime.”
Whether or not the evidence of DW. 3 wholly supported prosecution’s case and whether the evidence of DW.1 amongst others, actually fell short of what was required to establish the defence of insanity will soon be examined.
Aggrieved by the decision of the High Court, the appellant appealed to the Court of Appeal holden at Benin-City. One of the five issues submitted for determination in that court was:-
“5. Whether the learned trial Judge properly considered relevant evidence relating to the defence of insanity before him and whether he was right in his judgment that there was no evidence on which the defence of insanity could be founded.”
In a unanimous judgment the Court of Appeal considered all the issues raised before it and dismissed the appeal. Conviction and sentence of the High Court were then confirmed.
On the defence of insanity, the court observed:-
“The learned trial Judge in his judgment has considered most dispassionately the defence set up by the appellant and when he put the evidence adduced by the accused and the prosecution on an imaginary scale since the accused has to prove insanity by preponderance of evidence or balance of probability, he has rightly found that of the prosecution to be of heavier weight – see Mogaji v. Odofin (1978) 4 SC. 91.”
Still aggrieved by the decision of the Court of Appeal, the appellant has now further appealed to this court. Counsel on both sides filed and exchanged their briefs of argument as provided by Rules of Court. These were adopted at the hearing and oral submissions offered in addition.
Only one issue was submitted for determination in the appeal. And it is whether the Court of Appeal was right in holding as it did above, that the appellant had failed to discharge the onus of proof of the defence of insanity raised by him or in other words whether or not the learned Justices of the Court of Appeal rightly affirmed the conviction and sentence of death by the trial court based on the rejection of the defence of insanity by the two courts.
Mr. Akhidenor learned counsel for the appellant strenuously argued that there was enough evidence on the record which show that the appellant at the time of the commission of the offence was deprived of his capacity to understand or control his actions. That he was a mad man at the material time. He said in addition the appellant had a history of mental insanity as narrated by both D.W. 1 and D.W. 3 and whose evidence remained uncontradicted. He said the evidence of the single eye witness P.W. 2 was also supportive of the mental abnormality of the appellant.
The following authorities were cited – R. v. Omoni 12 WACA 511 Aiworo v. The State (1987) 2 NWLR (Pt.58) 526. Oladele v. The State (1993) 1 NWLR (Pt. 269) 294. Kure v. The State (1988) 1 NWLR (Part 71) 404.
It was further submitted that when there was evidence of mental illness before the incident and there was no expert medical evidence to contradict the evidence of the traditional healer as in this case, there was a doubt as to whether the mental illness had ceased or was still on when the offence was committed and that such doubt ought to be resolved in favour of the accused in view of the uncontradicted evidence of D.W.1 herein. He said the Court of Appeal erred when it affirmed the decision of the High Court when in fact the mental history of the appellant more than enough rebutted the presumption of sanity. We were urged to allow the appeal, set aside the judgments of the lower courts and in their places enter a verdict of “Not guilty” by reason of insanity. He relies on section 28 of the Criminal Code.
Responding Mrs. Omoleye, learned Director of Public Prosecution submitted that the evidence in the case was strong enough to negative the defence of insanity. She said none of the prosecution witnesses who testified spoke of any abnormality in the behaviour of the appellant on the fateful day. That the herbalist (D.W.1) who claimed to have treated the appellant sometime in 1984 could not say categorically that it was that same insanity that led the appellant to kill in 1987. She said D.W. 3 also described the condition of the appellant after treatment as “normal.” It was therefore submitted that the appellant had failed to prove insanity as laid down in section 28 of the Criminal Code. She referred to the cases of –
Ibrahim v. The State (1991) 5 SCNJ 121; (1991) 4 NWLR (Pt.l86) 399
Aiworo v. The State (1987) 2 NWLR (Pt. 58) 526
Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683
Kure v. The State (supra)
She said the concurrent findings of facts by the lower courts should not be disturbed as they were neither perverse nor a violation of any principle of law or of procedure. She referred to Aruna v. The State (1990) 6 NWLR (Part 155) 125 and urged us to dismiss the appeal for lack of merit.
Now, section 28 of the Criminal Code reads –
“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 aim of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not 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.”
The question I will first ask is – where is the evidence of insanity led by appellant at the trial I think it is to be found mainly in the testimony of one Samuel Adigun who testified as DW . 1. He said:-
“I am Samuel Adigun, Chief Asogo of Akure, the President of Ondo State Herbalist. I live at Obaluaye Traditional Hospital, Obaile Road, Akure. I am a Traditional doctor. I specialise in curing the insane. I know the accused. One man brought him to me tied up with rope. It was in 1984 I treated him for insanity. On completion of treatment, I told the father that there remained a final treatment for him – apaku or apagbe. The father told me he had no money then and that he would come for it when he could finance it – when he had money. He did not come back for it. I told the accused’s father that the spirit possessing the accused was very strong because the accused broke all the glasses in my house on the day he was brought to me. I told the father that if he failed to take the final treatment, the re-emergence of the spirit over the accused would be too serious on him. I have certificates for my profession. I also have my receipt booklet. I was not warned to come to court with my certificates. The accused must have committed the murder as a result of his insanity.
Under cross-examination the witness continued thus:-
“I inherited my knowledge from my late father. I had been in the cause since my youth. I knew that he was being controlled by the evil spirit when I consulted my Ifa Oracle. It revealed that the disease had origin from either his father and mother’s lines. The accused was all right when I completed my treatment. But I knew that the ailment would re-emerge. When the accused is under the spell, he would not appreciate his action. He can’t identify the action. I am not surprised that the accused appreciate the cause of his committing the murder and he revealed it to the Police that he did so under the control of evil spirit. I keep a record or case note of my patients. Here is my record. (Counsel says he is shown a receipt) I did not bring my record book to the court.”
You only need to read the evidence above carefully, as I have done, to arrive at the conclusion that it contained everything needed to show that the appellant was insane at the material time he committed the offence.
Mustapha Mohammed who also testified as DW. 3 said in part:-
“I know the accused. He is my friend’s son. His father is already dead. I know DW.1, I know DW.1 when the accused was taken to him for treatment for his insanity sickness. The accused was tied with ropes. DW.1 treated the accused. The accused was normal. I went there to collect the accused home. DW.1 told me that there was need for a final treatment – apaku. I never went back because on his return home, he the accused was normal and carried on his trading business.”
This witness confirmed what DW.1 said to the effect that the appellant had suffered from insanity which was treated and that unless the appellant took a final treatment – apaku, the insanity would return. The final treatment was not taken and the sickness returned. Is there anything wrong with a prediction that turned out later to be true I believe even medical doctors these days make predictions about patients suffering from certain illnesses or diseases that unless certain steps are taken or certain rules or conditions are observed, certain things may happen!
I shall now reproduce here again what the eye witness Eunice Adenike Agbeniyi (PW.1) said in her examination in-chief:-
“The accused was where I sat down. A woman then came and stood at the Sabo where Hausa people collect to sell their goods. She call the accused – wishing to buy beans from him. He did not respond. The woman told me to help her call the accused. I then informed the accused that the woman was calling him. He suddenly gave me a slap on my face…………
I started weeping and was cleaning my face. I did not know who went and call my mother. When she got to me she asked what happened…….Before my mother turned her back, the accused had gone inside to bring out an axe and hit my mother with it. He hit my mother on the forehead and ribs side. My motherfell down after she had been hit with the axe. Baba Aina is called Shehu. He wanted to seize the axe from the accused ………The accused left my mother and faced Baba Aina and hit him with the axe.”
Again the evidence by PW. 1 pointed irresistibly to the only conclusion that the appellant was insane at the time he committed the offence. A normal person would not have behaved in the way narrated by PW. 1 above!
The learned trial Judge in his judgment made it abundantly clear that he believed the evidence of PW. 2 and accepted it. In addition he said her evidence “was not contradicted during cross-examination howsoever.” The learned trial Judge also made it clear that he was going to consider, as he in fact did, the evidence of DW. 1 above, and ascribe thereto any probative; value it attracted as there was nothing in our laws which rendered such evidence inadmissible and that medical evidence is not an imperative to prove insanity vide R. v. Inyang 12 WACA 5 at 7.
I think he was right. There was no doubt at all that the learned trial Judge did consider the evidence of insanity given by DW.1, but his conclusion that-
“The evidence of DW.1 did not go far enough to establish that the accused was insane at the relevant time he committed the crime.”
is what baffled me. The record shows that the learned trial Judge considered other extraneous matters not in evidence before him to arrive at that conclusion as he did. For example he said (1) the appellant showed no sign of abnormality during trial (which was between 1989-1990 while the offence was committed in 1987), (2) that when the appellant was asked why he did not kill his blood relations, the appellant did not answer, (3) that there was, no report from Federal Prisons where the appellant was detained saying that he behaved abnormally while there, (4) that the appellant if insane would not have waited to attack Alhaji Shehu until the latter wrestled the axe (Exhibit 1) from him, (5) that the appellant killed the deceased because she wanted to know why he slapped her daughter (PW.2), just to mention a few.
I am clearly of the view that the evidence of the native doctor, DW.1, and that of PW. 2, the eye witness, went sufficiently far to prove as they did, that the appellant was insane at the time the alleged offence was committed. The fact that DW.1 predicted a re-surgence of the illness which was later proved to be true, and that he warned the appellant’s father, DW. 3, to come for a final treatment were all uncontroverted. I repeat that the evidence of PW. 2 set out above also went to buttress the evidence of DW.1 that the appellant must be insane at the relevant time. The prosecution led no evidence whatsoever nor made any attempt to contradict or dislodge the evidence of insanity adduced by the defence. The prosecution merely relied on the presumption of sanity as laid down in section 27 of the Criminal Code thus –
“Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.”
But the appellant by the evidence adduced on his behalf had negatived or displaced that presumption. I have refrained from commenting on the extra judicial statement (Exhibits 3 & 4) of the appellant and his oral evidence in court, because when the question here is as to the sanity or insanity of the appellant himself, he cannot be a competent witness on that issue vide Makosa v. The State (1969) 1 All NLR 363 and Onyekwe v. The State (1988) 1 NWLR (Pt. 72) 565. It is also noteworthy that the evidence of PW. 2 under cross-examination clearly showed that there was no motive on the part of the appellant to have committed the offence when he did. I am therefore on the whole inclined to agree with the appellant’s counsel, Mr Akhidenor, that on the totality of evidence led, the appellant on the balance of probabilities discharged the burden on him of proving that he was insane at the relevant time when the offence charged was committed. Section 28 of the Criminal Code therefore clearly availed the appellant.
This appeal therefore has merit and it succeeds. I allow it. The judgments of the lower courts are set aside. Conviction and sentence are also set aside. The verdict of not guilty by reason of insanity shall be substituted therefor. I direct that the said Yahaya Mohammed be kept in prison custody or be taken to a Psychiatric Hospital for observation and treatment pending the order of His Excellency the Governor or Administrator of Ekiti State.
SC.133/1995
