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23RD JUNE, 1959.

SUIT NO. FSC 53/1959

3PLR/1959/79 (SC)









Applicant absent and unrepresented.

T.O. AGUDA, Crown Counsel, for Respondent.



CRIMINAL LAW AND PROCEDURE: – Murder – Proof – Defence of insanity – What must be to set up to ground defence – s. 27, Criminal Code – 140(3), Evidence Ordinance

PRACTICE AND PROCEDURE: – Criminal Trial – Need to prevent delay in concluding same

CHILDREN AND WOMEN LAW: – Girl-child and Security of Neighbourhood – Murder of a young girl by father’s recently discharged debtor – Security of rural families – How treated



The applicant in this case was accused before the High Court of the Western Region holden at Akure, of the murder of a young girl called Irimuruke Oge, and on the 29th May, 1959, his application for leave to appeal from this conviction came before us and was refused. We now give our reasons for that refusal.

The applicant on the day of the crime went to P.W.3, the father of the deceased, and paid him a sum of money which he owed. After that P.W.3 left for his farm with his senior wife leaving his second wife, P.W.4, at home with the deceased and two other children. After the departure of P.W.3 the applicant returned to the house and bought some wire from P.W.4. Shortly after she heard her own child, not the deceased, crying and went out to see the reason, meeting the applicant at the door. He had a matchet in his hand and told P.W.4 that she was going to die that day and dealt her two blows with his matchet. P.W.4 then noticed the deceased lying down dead on the ground. P.W.4 at once left for her husband’s farm to tell him what had happened and as she was on her way she saw the applicant making for his own farm.

When P.W.3 returned from his farm he found the deceased’s dead body with the head almost completely severed from the body. That this was among the injuries suffered by the deceased appears from the medical evidence in which the Doctor held the view that the death had been caused by a sharp cutting instrument.

When the applicant was cautioned by the Police he made a statement in which he frankly admitted to the killing. In this statement the applicant sought to provide what might be called a motive for his crime and said that he had lodged certain money with P.W.3 who, when the applicant asked for it in order to enable him to marry, refused to give it to him. The applicant went on to say that he then tried to find money elsewhere from one Awatoma who agreed to provide the money if P.W.3 would stand surety; P.W.3 refused to act as such and as a result he, the applicant, decided to move away from the house of P.W.3 for whom he was working. The applicant went on to say that when P.W.3 got to know of his intention to leave, P.W.3 tried to kill him, the applicant, with his gun. Therefore, continues the applicant, he made up his mind to do something to P.W.3 before he was killed by him so he went to P.W.3’s house on the morning in question and killed the deceased.

The applicant sought in his evidence at the trial to deny the statement which we have summarised, but his denial was rejected by the learned trial Judge, we think quite rightly.

After considering the evidence of the applicant and the statement made by him to the Police, the learned trial Judge took the view that although the defence of insanity had not been formally raised, 8 should be considered, and he expressed the opinion that the statement of the applicant shows that he was suffering under some kind of delusion. Having fully considered the question of insanity the learned trial Judge came to the conclusion, again quite rightly in our view, that this defence was not made out and he thereupon convicted the applicant of murder. We considered that the conviction was right and we therefore refused leave to appeal.

There is one passage in the learned trial Judge’s judgment to which we think it right to refer. In citing the case of R. v. Riven the learned trial Judge says this:

‘The issue whether the prisoner was sane or insane in the legal sense at the time the act was committed is a question of fact which is dependent upon the previous and contemporaneous acts of the prisoner. (See R. v. Riven 34 Cr. App. R. 87 and Archbold 33rd edition paragraph 30 page 19) The prisoner need do no more than adduce evidence (or draw attention to the evidence adduced by the prosecution), which raises in the minds of the jury a reasonable doubt as to his sanity. The inference of insanity may be drawn from direct evidence or from the appearance and conduct of the accused at the arraignment or trial (See Russell on Crime 11th edition Part 1, page 109).

‘There is nothing in the evidence of the 3rd and 4th prosecution witnesses which throws any light on the cause of the prisoner’s act of killing. However, a consideration of the prisoner’s own statement to the police will be found to throw some light on the state of the prisoner’s mind.”

We wish particularly to draw attention to the following sentence:

‘The prisoner need do no more than adduce evidence (or draw attention to the evidence adduced by the prosecution), which raises in the minds of the jury a reasonable doubt as to his sanity.”

This is a view of the law on this point which, in our opinion, is unduly favourable to the accused person. Section 27 of the Criminal Code provides that:

“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.”

and section 140(3)(c) of the Evidence Ordinance makes it clear that the burden of proving Insanity is on the accused person. The nature of the burden is discussed in R. v. Carr-Briant which Is also cited by the learned trial Judge later in his judgment. The last paragraph of the judgment of the Court of Criminal Appeal in the Carr-Briant case reads as follows:

“In our judgment, in any case where, either by statute or at common law, some matter Is presumed against an accused person ‘unless the contrary is proved’, the jury should be directed that it is for them to decide whether the contrary is proved; that the burden of proof required is less that that required at the hands of the prosecution in proving the case beyond a 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.”

and we respectfully agree that that is a correct statement of the law on this subject. We observe that the murder was committed on the 22nd October, 1957, and the trial in the High Court started on the 14th July, 1958, and was not concluded until the 2nd March 1959.         The delay in concluding the trial was to some extent caused by the illness of the accused, but after two witnesses had been heard on the 14th July, 1958, the hearing was successively adjourned to the 15th July, 16th July and 8th September without the taking of any further evidence. We would express the undesirability of any lengthy adjournment of a trial for murder and would draw attention to the judgment of the West African Court of Appeal in R. v. Yeboah, in which it was indicated at page 486, that adjournment for no recorded reasons may not only unduly protract the trial but prejudice the accused in presenting his defence. We do not consider that the applicant was in fact prejudiced in presenting his defence, but we consider that an adjournment of nearly two months is to be avoided if that is at all possible.


Application refused.



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