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SUIT NO. SC 161/1985

3RD APRIL, 1986


(1986) 1 NSCC 457 759

LN-e-LR/1985/41 (SC)










Chief A.M.O. Lekan Akande – for Appellant

Mr. R.A. Bello, Asst. D.P.P., Ogun State – for Respondent



CRIMINAL LAW:– Murder – Proof of – Defence – Insanity – Presumption of 

RELIGION AND LAW – WITCHCRAFT:Belief that impotence and death of wife and children were caused by supernatural actions taking against those having illicit intercourse with wife – Materiality or relevance as a defence to criminal liability

CHILDREN AND WOMEN LAW: Children and Security of Lives – Murder – Child matcheted to death because killer of killer’s beliefs in relation to misfortunes experienced





OBASEKI, J.S.C. (Presiding):

In view of the fact that the prisoner/appellant signed his notice of appeal and handed it to the prison authority on the 17th day of April, 1985 in exercise of his right of appeal against the decision of the Court of Appeal dated 26/3/85, I hold that the appellant has exhibited a clear intention to appeal and although the notice of appeal was not delivered to the Court of Appeal registry before 29/4/85, in exercise of the powers conferred by Order 9 rule 3(1) Supreme Court Rules 1985 I will treat the notice of appeal as properly filed.


On the merits, both counsel have justifiably conveyed to the court their opinion that there is nothing to urge in favour of the appellant. The facts of this case are not in dispute; the only issue considered was whether there was evidence of insanity to remove the legal liability of the appellant for the death of Akeem, whom he matcheted to death, from him.


The facts of the case are that on 25/12/78, as P.W.1 was having a Christmas party in his house, he heard unusual shouts and screams from outside. He took leave of his guests to investigate. On the major road, he saw the appellant holding a cutlass high above his head and walking to a minor road while people around were shouting and saying “Gbesan has killed somebody.” P.W.1 picked up an iron rod and pursued to arrest the appellant. He saw some 3 boys walking abreast in front of the appellant and noticed the appellant chase them and give matchet cuts to the head and wrist of one of them called Akeem. The child later died from the injury.


This evidence was accepted by the learned trial judge. The defence of the appellant and the excuse for his behaviour of killing children (to the effect that he thought (1) that people made him impotent and (2) killed his wife and children because of the action he took against those who were having illicit intercourse with his wife) is of no avail.


The High Court justifiably convicted the appellant. There was no evidence of insanity although the defence was considered. The Court of Appeal properly dismissed the appeal to it as there was no merit in it.


I can find no merit in this appeal either and I hereby dismiss it. The decision of the Court of Appeal is hereby affirmed.




I agree. This is an appeal which has no merit whatever. There was no evidence at all of insanity. This court has held ad nauseum that a defence of insanity has to be sustained upon credible and cogent evidence showing that the appellant was insane and that the fact that he had behaved queerly did not necessarily prove that he was insane. All persons are presumed to be sane.

The evidence shows that the appellant on Christmas day, 1978, upon the ostensible reason that his wife and her friends had rendered him impotent, took a matchet and ran berserk, killing the victim, one Akeem Sanusi, who did nothing to him. Appellant’s counsel, Chief Akande, is by implication, having regard to the tenor of his submissions, asking us to infer insanity, even though there was no evidence whatever to justify that inference. I certainly will not subscribe to that. This court acts on settled principles and does not decide cases by ‘hunches’. There was no evidence of a history of insanity; no evidence of past or contemporaneous events of insanity.

To be included in the catalogue of omissions in this appeal, is the omission to file brief and the omission to give credible reason for so failing to file the brief. All told, this appeal deserves to be dismissed and it is hereby dismissed. The conviction and sentence are hereby affirmed.


In this appeal, the appellant signed his notice of appeal on 17th April, 1985 even though i[ was not filed in the court below until 29th April, 1985. Having regard to the decision of this court in Kpema v. The State (1986) 1 N.W.L.R. 396 and the proviso to Order 9 rule 3(1) of the Supreme Court Rules, 1985, the appellant had exhibited his intention to appeal at the time when he signed the notice on 17/4/85 which was within the 30 days within which he should appeal. For that reason, his appeal was properly filed before this court.

However, on the merit of the appeal, the circumstances are different. Here is a man who on the pretext that his wife had rendered him impotent with charm, went about killing little children one of whom he was charged with his death. He confessed to the killing in his extra-judicial statement; but resiled from that statement in court. At the trial, there was no evidence of insanity, put up as a defence. Nonetheless, the learned trial judge considered the defence of insanity and found that it did not avail the appellant. Consequently, the trial judge convicted and sentenced him to death. The appeal to the Court of Appeal was also dismissed as lacking in merit. In this court, the learned counsel for the appellant first made an attempt to urge on us the same defence of insanity, but when he was told that there was no evidence to suggest that the appellant was insane, learned counsel then conceded that there was nothing to urge in favour of the appellant. The learned Assistant Director of Public Prosecution Ogun State also agreed that there was nothing to urge in favour of the appellant.

Having perused the record myself, I am of the view that the case of the appellant has no redeeming feature. The Court of Appeal was therefore right in dismissing the appeal. I will accordingly also dismiss the appeal and affirm both conviction and sentence of death.


I also agree there is no merit in this appeal and the appeal must be dismissed. The evidence before the trial court was overwhelming. The defence of insanity was carefully considered by the learned trial judge who, rightly in my view, concluded it was not made out. I am of the firm view that on the evidence before the trial court, the conviction of the appellant was justified and that the Court of Appeal was right in confirming his conviction. I too will dismiss the appeal and affirm the conviction of the appellant and the sentence imposed.

OPUTA, J.S.C.: I hold that the notice of appeal signed on 17/4/85 by the prisoner in his cell was properly filed.

This case has not got one single redeeming feature. The appellant on the suspicion that his wife rendered him impotent ran amock, killing children at random. One of his victims was the deceased in this case. In a very carefully considered judgment, the learned trial judge accepted the evidence of the P.Ws. None of these witnesses gave any evidence remotely suggesting that the appellant was insane. The appellant himself gave evidence that he was sane. The law also presumes him sane. Before there can be any consideration of a defence of insanity, there should first and foremost be evidence which if believed may lead to the conclusion that the accused was what is normally referred to as mad. But that is not what s.28 of the Criminal Code requires. Rather that section requires evidence to show that the accused lacked one or other of the 3 capacities mentioned in that section:

  1. Capacity to understand what he was doing.
  2. Capacity to control what he was doing.
  3. Capacity to know that he ought not do what he did.

This, one may refer to as legal insanity. Here there is not one iota of evidence to show lack of any one of the three capacities. The learned trial judge was right when he observed at p.49 lines 15-20 of the record that:

“I consider it a barren and unproductive exercise to embark on a wild goose chase, in search of a defence which cannot be said to have arisen on the evidence.”

In spite of the above observation which is legally correct, the learned trial judge, out of an abundance of caution, devoted pp.49-52 of the record considering the defences of insanity and delusion. After this, he found that none availed the appellant. I agree with him. I must emphasise that absence of motive is not equal to the presence of insanity. Chief Akande was also finally convinced that nothing useful could be urged in favour of the appellant. He owes the court a duty to say so if the facts and circumstances warrant it – as they do here. We did not call on Mr. Bello, Asst. D.P.P. Ogun State for a reply because there is nothing to reply to. The appeal is completely devoid of merit. It ought to be dismissed and it is hereby dismissed. The judgment of the trial court and the sentence of death are both affirmed as well as the judgment of the court below dismissing the appeal of the appellant.

Appeal dismissed.



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