3PLR – JOHNSON DANIA V. THE STATE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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JOHNSON DANIA
V.
THE STATE
IN THE COURT OF APPEAL
IBADAN JUDICIAL DIVISION
31FCA/IB/51/77
10TH FEBRUARY 1978
3PLR/1978/41 (CA)
OTHER CITATIONS
[1978] 1 NCAR 31
BEFORE THEIR LORDSHIPS
ASEME A.L. JCA
AKANBI MOHAMMED MUSTAPHA ADEBAYO, JCA
OMO UCHE, JCA
REPRESENTATION
Mr. B. A. Joshua for the Appellant
Mrs. B. O. Adebayo for the Respondent
MAIN ISSUES
CRIMINAL LAW: – Murder – Defence of temporary insanity – Burden of proof
CRIMINAL LAW – MURDER:- Proof of – Defence of partial delusion under the second paragraph of S. 26 of the Criminal code Law (West) – On whom burden of proof lies – Whether burden of proof required is less than that required at the hand of the prosecution in proving the case beyond reasonable doubt and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish
RELIGION AND LAW:- Belief in Juju/charm – Whether can sustain a defence in criminal proceedings – Defence of mental black-out or temporary loss of memory – Whether it is not enough for the appellant to say that the charm affected his mind not to know what he was doing – Whether burden was on defendant to prove what powers, if any the alleged juju/charm possessed
PRACTICE AND PROCEDURE – EVIDENCE:– Inconsistent confessional statements and evidence on oath – Presumption of sound mind
CHILDREN AND WOMEN LAW: Women and Security – Wife-killing – Murder of wife by Husband while she slept at night – How treated
HISTORY AND SUMMARY OF FACTS
The accused was convicted and sentenced to death for murder of his wife Margaret Dania. The accused attacked his wife in the night after she had gone to bed and inflicted suicide but his daughter called in neighbours who prevented it; the Police were invited and the case was investigated. The accused made two different statements to the Police- in one he alleged he was under the influence of a juju charm; in the other he alleged that his wife was holding unknown discussion with some soldiers. The accused appealed.
HELD – Dismissing the Appeal:-
(1) that every person is presumed to be of sound mind and for purposes of criminal responsibility to have been of sound mind at any time which comes into question, until the country is proved. But by the provisions of Section 140(3)(c) of the Evidence Law the burden of this proof is on the accused person.
(2) That it is not enough for the appellant to say that the charm affected his mind and thus he was not responsible for his acts. The onus was on him to prove what powers if any the alleged charm possessed.
CASES CONSIDERED:
- Onakpoya v. Queen (1959) 4 F.S.C. 150 at 152
- Dim v. Queen (1952) 14 W>A.CA.A. 154
- Queen v. Daniel Tabigen (1960) 5 F.S.C. 8
MAIN JUDGMENT
ASEME J.C.A. [DELIVERING THE LEAD JUDGMENT OF THE COURT):
The appellant was charged with murdering his wife, Margaret Dina, on 23rd September 1975 and was convicted and sentenced to death by Ogunbiyi J. sitting at Oshogbo High Court on 29th October 1976. The appellant, who is a soldier, was living with the deceased at No. 4 Army Barrack Road, Ede. On the fateful day the appellant, the deceased and their little daughter after having supper went to bed. In the night appellant inflicted several fatal stab wounds on the deceased with a jack knife. Soon after when remorse set in the appellant attempted to take away his life but little daughter sneaked out and called in neighbours who took the appellant to the hospital and reported the matter to the police. Later, Corporal Muritala Okunola who investigated the case arrived and found the deceased lying dead in a pool of blood on the floor of the room. He took sample of the blood around the body of the deceased with a cotton wool, Ex. C. He also took away the jack knife, Ex. D. which was smeared with blood and thereafter he conveyed the deceased in an army vehicle to the State Hospital Mortuary Oshogbo. Dr Festus Adebayo Dinehin who performed the autopsy on the deceased found that there were several punctured wounds on the face, head, to hands and the neck which was broken. In his opinion death was caused by excessive bleeding from the wounds on the broken neck. Furthermore, Ex. E the report by the Senior Consultant Pathologist showed that the blood on the cotton wool Ex. C. and the jack knife Ex. D. belong to the same group ‘O’.
The appellant made two statements, Exhibits A and F, to the police. In the former, he admitted stabbing the deceased to death but said he did so under the influence of juju or charm which was found in the night tied to the window of his room by known person. In the second statement he said that he had six or seven months ago caught the deceased and some soldiers on several occasions holding undisclosed discussions in his room and that he stabbed the deceased to death because of these events. Before 3 PW, Adebayo Keleko, the Divisional Police Officer, Ilesha the appellant confirmed making these statements.
At the trial the appellant gave evidence on oath which was substantially different from his two statements to the police. In connection with the alleged charm the appellant in his statement, Ex. A, had said:
“On the day of the incident my late wife, now the deceased prepared our supper we ate together and we latter went to bed. I slept on my own bed while she slept on another bed in the same room two of us slept around 19.55 hrs. But later she woke up and came to meet me on my own bed at 8 p.m. She asked me to look our window, she said who tied something on it and I said that I did not know the person, she then said that I should cut the thing away, the thing tied on the window appeared like juju (Medicine) she took my jack knife and cut the medicine.”
In his evidence in Court the Appellant said:
“I remember 22/9/75. About 8 p.m. on that day I was at home with my late wife. We had dinner together before then and after the dinner we slept on our different bed. After 8 p.m. she woke me up on my bed and then showed me a juju object (a charm) tied to the corner of the window of our room. I took my jack-knife and cut it off. After I cut it off I lost all consciousness and I did not regain consciousness until some days after when I found myself in the hospital suddenly realizing where I was. I later saw a policeman by my side…”
Contrary to what the appellant has stated in Ex F. that he stabbed the deceased to death because she had secret discussions with other soldiers, the appellant testified in court as follows:-
“…I did not tell the police that I wanted to kill myself. As I stated in the second statement I made to the police Exhibit ‘F’ it is true that I had a quarrel with my wife over other soldiers coming to the house to talk to her but the quarrel had been settled some seven months before this incident. I did not tell the police that I killed my wife because of her relationship with other soldiers.”
The statement Ex F prima facie seemed to raise the issue of provocation but the fact that cooling period of seven months had elapsed, was sufficient to destroy such defence there being no evidence that the deceased did anything that night which might be calculated to have re-animated such passion the appellant might have had seven months previously. Understandably the appellant in Court denied his statement in Ex F. that he stabbed deceased because of her alleged association with other soldiers. The only defence put forward by learned counsel for the appellant in the High Court was therefore that of temporary insanity. The learned trial judge, after a careful review and evaluation of the evidence before him, disbelieved the story about the charm. In his judgment he said:
“I believe the story about the juju was put up by the accused to afford himself a defence of insanity in this case. In his evidence before the Court he said that he was the one who cut down the juju from the window, an attempt in my opinion to establish that he came under the influence of the juju through this act, whereas he had stated in Exhibit “A” that his wife cut down the juju. I do not accept the evidence of the accused that a juju was tied to the window of his room on that day. I do not also accept his evidence that he was under the spell of juju and did not know what he was doing when he murdered his wife. There is no doubt the accused was quite conscious of his action when he stabbed his wife and also knew that he did what was wrong and therefore attempted to take his own life by committing suicide.”
Before us Mr. Joshua, learned counsel for the appellant, argued two ground of appeal, abandoning the original grounds of appeal. These grounds are:
“1. The learned trial judge misdirected himself in law and on facts when he held that the appellant has failed to discharge the onus on him in respect of his defence of temporary insanity when in fact the prosecution did not call evidence to disprove that defence as obviously raised in appellant’s statements to the police and thereby came to a wrong conclusion.
- The judgment of learned trial judge is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.”
Mr. Joshua did not make any submission under ground 2 worth of any consideration but under ground one he merely submitted that the appellant had established the defence of insanity and he referred us to the statement Ex. A.
As stated above the appellant both in his evidence in Court and in his statement, Ex. A., maintained that at the time he murdered the deceased he was under the influence of a charm which was found hanging on the wall. The defence raised, it seems to us, was therefore that of partial delusion under the second paragraph of S. 26 of the Criminal code Law (West). This Section provides:
“A person is not criminally responsible for an act or omission if at the time of doing the act or making the mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to 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 belief to exist.”
The defence raised, it seems to us, was therefore that of partial delusion under the second paragraph of S. 26 of the Criminal code Law (West). The law is that every person is presumed to be of sound mind and for purposes of criminal responsibility to have been of sound mind at any time which comes into question, until the contrary is proved. But by the provisions of S. 140(3) (C) of Evidence Ordinance the burden of this proof is on the accused person.
In Onakpoya v Queeen (1959) 4 FSC 150 at p. 152 the Supreme Court citing R v Briant 29 C.A.R. 76 held that the burden of proof required is less than that required at the hand of the prosecution in proving the case beyond reasonable doubt and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.
In the murder case of Dim v Queen (1952) 14 W.A.C.A. 154 where the defence was that of ‘black out’ but no adequate evidence was proffered to prove that the appellant had previously suffered loss of memory or mental black-out, that defence was rejected. The Supreme Court observed at p. 157 “that the defence of black out will be exploited and become prevalent if the same is allowed without adequate proof.” (emphasis ours).
In Queen v Daniel Tabigen (1960) 5 F.S.C. 8 the appellant had killed his wife while asleep. He also killed two men in another room and tried to kill some others. The appellant not only made statement to the police which showed he knew what he was doing he also gave evidence and admitted he knew what he did and that it was wrong. In that case the appellant said his reason for killing his wife, inter alia, was that someone had tried to kill him with juju and that his food that evening was poisoned . A suggestion by the defence that the appellant had acted under the influence of charm was rejected,”
In the instant case there was no evidence that the appellant in the past behaved abnormally although in view of appellant’s statement there was evidence of motive. Apart from the ipse dixit of the appellant no other witness testified about the charm which was not tendered in Court. There was therefore no evidence as to what the alleged charm was. In our view, it is not enough for the appellant to say that the charm affected his mind not to know what he was doing. The onus was on him to prove what powers, if any the alleged charm possessed.
We are satisfied that upon the evidence before him the learned trial judge was right to reject the story that the appellant was under any influence of charm when he murdered the deceased. The conviction of the appellant in the circumstance must stand and the appeal is hereby dismissed.
