Yusufu Idowu Vs The State (1972)

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ELIAS, CJN 

The accused was charged with having, on or about July 5, 1962, at Igbagun, Yagba District in Kwara State, committed culpable homicide punishable with death by causing the death of Joseph Jimoh contrary to Section 221 of the Penal Code.  The facts of this case are brief and straight-forward.

The accused in his evidence said that he knew the deceased and that the latter died through his hand. When cross-examined, he explained that the incident occurred on the way to the farm of Musa Lawani, “the elder brother of the deceased born of the same father and mother”. He said that he held a cutlass which he identified as Exhibit 4, that he was wearing a garment which he identified as Exhibit 5, that being hungry he plucked the maize belonging to one Amusa, that the deceased saw him do so, and that he then killed the deceased.

This story was corroborated in essential by Maria Ajike (P.W.2). a palm wine seller who had gone to the farm of the deceased, a palm wine tapper, to collect palm wine. She said that, on the farm, she saw the accused wearing a big garment ‘part of which he used to cover his head but left his face uncovered’, and that the accused stood by a kola-nut tree about two yards away from the spot where the deceased helped her in putting the keg of palm wine on her head.

On her way home, she said that she saw both the deceased and the accused standing together, that they greeted her and that she left them there. The next she heard about the matter was at about 7 p.m. on the same day when the deceased’s wife and other people came to ask her concerning the whereabouts of the deceased, and she told them where she had left the accused and the deceased in the morning.  Musa Olukotun (P.W.3), the village head of Igbagun, gave evidence to the effect that, when on 6/7/62, the counting of heads showed that only the accused was missing from the village, he reported the incident to the police at Isanlu. He said that he and Emmanuel Makanjuola (P.W.7) and others went to a spot in the bush about two miles from Igbagun village and there found the deceased’s dead body which had a long and deep wound at the back of the head and at the jaw and which was covered with blood. It was then removed to the S.I.M. Hospital, Egbe, on July 8, 1962. The doctor did not perform a post-mortem examination because the body had decomposed, and the corpse was buried the same day. On March 24, 1963, upon a coroner’s order, Dr. Campion (P.W.1) then in charge of the S.I.M. Hospital. Egbe, carried out an examination of the skeleton of the deceased, removed the skull and neck being the only parts about which he found abnormality. His evidence may be summarised in the learned trial Judge’s words of follows:-

“At the right side of the skull P.W.1 found two injuries and the sectional bone about 3×1” removed. The other injury was a cut of 2” x 1”. He found the mastoid process severed from the temporal bone. The first vitibrae of the neck, the articular surface of the right side had been cut away and the second vitibrae, the odontoid process fractured.

He tendered the lower jaw as Exhibit 1, the skull as Exhibit 2 and the neck as Exhibit 3. He did not think any object thinner than the usual cutlass could cause the injuries. These injuries he also said could not have been self inflicted and could have caused death. Someone who received the types of the injuries described above would not be able to survive more than a few minutes or couple of hours, approximately two hours.”

The accused was found at Ofere village seven days after the murder on July 12, 1962, wearing a garment underneath which was hung from his shoulder a cutlass (Exhibit 5), and was arrested by Joseph Niyi (P.W.4), who handed the accused and the two Exhibits to Mohammed Sanni (P.W.6) who took him to Lokoja whence the Exhibits were sent by registered post to the Forensic Laboratory in Lagos for medical examination. The medical report, as well as the two psychiatric reports, Exhibit 8 dated 14/3/63 and Exhibit 9 dated 8/8/63, were tendered in court by Barua Dikko (P.W.1). The accused’s confessional statement was on 14/7/62 taken from him in the Yoruba language by P.W.7 as Exhibit 6, which was later done into English as Exhibit 6A. It is, therefore, clear that the evidence showed that the accused killed the deceased.

Mr. Akinrele, the learned counsel for the appellant, however raised the defence of insanity which had been canvassed unsuccessfully in the court below by the learned counsel or the accused. He referred us to Exhibit 8 in which it was stated that “the accused was suffering from a long standing mental illness and that he was a potentially dangerous man”, and also to Exhibit 9 which stated that “it was only a lucid interval and that a relapse might occur at any time”.

We were invited to disregard the evidence of Musa Lawani (P.W.10), the accused’s elder brother by the same father and mother, who had testified that the accused and his wife had lived with his own family during the six months immediately preceding the incident, that there had never been anything unusual about the accused, that no one (including the accused’s wife) complained about the accused who had also never complained about himself to P.W.10, that there has never been any quarrel between the accused and P.W.10, and that the accused had previously lived with their elder brother at Ejuku, some 15 miles from Igbagun, until the latter’s death before the accused came to live with him.

As regards the plea of insanity, we agree with the learned trial Judge that it is settled law that the burden of proving insanity in defence to a criminal charge lies on the accused: Queen v. Yaro Biu (1964) NNLR 45. The learned counsel for the appellant, however, referred us to Section 51 of the Penal Code which reads:

 “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.”

Mr. Akinrele contended that there was no evidence that the accused knew what he was doing at the time he killed the deceased or that what he was doing was wrong. On this point, however, we observe that, immediately after the killing, the accused ran away and hid in the bush for seven days before being apprehended.  The learned trial Judge’s analysis, with which we also agree, is as follows:

“The offence was committed on the morning of 5/7/62. The accused did not call medical evidence as to the state of his mind immediately before the offence was committed. There is no evidence from him also that the Psychiatrist who wrote Exhibits 8 and 9 was not available to give evidence on his behalf. Part of Exhibit 8 about the accused who was admitted into the General hospital, Zaria, on the 11th March, 1963, and written on the 14th March, 1963, reads: ‘This man is obviously suffering from long standing mental illness.’

According to Exhibit 9 the accused was admitted into the Zaria N.A. Lunatic Asylum on the 24th June, 1963, where intensive psychiatric treatment was instituted. In Exhibit 9, the Regional Psychiatrist who also signed Exhibit 8 wrote in part on the 8th August, 1963, ‘Although he is now relieved of his major symptoms, I feel it is a lucid interval and a relapse can occur at any time. ‘Exhibit 8 was written eight months after the incident and Exhibit 9 thirteen months thereafter.  It was not stated in Exhibit 8 how long the accused had been suffering from unsoundness of mind and in Exhibit 9 it was not stated the 5th day of July, 1962, did not fall within ‘lucid interval’.  It is not easy to find strong evidence of insanity when it is recalled that the accused had in his statement (Exhibit 6A) made on 14/7/72 said:-

“I killed him at about 6.30 a.m. I then immediately went back to the village Igbagun after I killed Jimoh and I went to meet the town people at the place they are performing communal labour.”

And he also added: “The woman who was carrying palm wine for Jimoh passed by me and Jimoh when she was going to the village. She met myself and Jimoh at where we stood and the woman has passed to the village before I killed Jimoh.”  In these circumstances, the learned trial Judge summed up as follows:

“Not only did the accused make a clean breast of the whole show in his statement made to the police on the ninth day after the incident but also remembered the communal labour which took place at Igbagun village on the day mentioned by P.W.10 and he also corroborated the evidence of P.W.2 who carried palm wine and who saw both the a

Other Citation: (1972) LCN/1441(SC)