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19TH FEBRUARY, 1988.

SUIT NO. SC 17811986

LR/1988/52  (SC)



(1988) NWLR (Pt.71) 404



ESO,   J.S.C.






F.O. Akinrele – for the Appellant

Miss T Kawu, S.C. with her Miss N. Mann, S.C. – for the Respondents


CRIMINAL LAW – Murder – Defence of Insanity – Onus on prosecution

PRACTICE AND PROCEDURE – EVIDENCEPresumption of sanity – Effect of psychiatric report

CHILDREN AND WOMEN LAW: Safety of children – Murder of young girl and injury to another by insane man 


OBASEKI, J.S.C. (Delivering the Lead Judgment):

On the 3rd day of December, 1987, after hearing the submissions of counsel and perusing the record of proceedings and judgment of courts below, I, in concurrence with my learned brothers who heard the appeal, allowed the appeal by the accused person, acquitted him of the offence of culpable homicide contrary to section 221 (b) of the Penal Code by reason of the unsoundness of his mind and ordered that he be detained in a safe place at the pleasure of the Military Governor of Kwara State. I thereafter adjourned the Reasons for the Judgment till today. I shall now proceed to give the reasons.

The main issue raised in the appeal was whether on the evidence before the court, the defence of insanity under section 51 of the Penal Code was established and available to the appellant. Section 51 of the Penal Code Cap 89 vol. 3 Laws of Northern Nigeria 1963 reads:

“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.”

It has the same or similar effect as section 28 of the Criminal Code of Western Region or of Eastern Region operative in the Southern States.

The appellant was charged with and tried on a charge of culpable homicide punishable with death under section 221(b) of the Penal Code Cap. 89 Laws of Northern Nigeria applicable in Kwara State by the High Court of Kwara State holden at Lokoja (Adeniyi, J.) convicted and sentenced to death. He appealed against the decision to the Court of Appeal and lost. His conviction and sentence of death passed by the High Court were affirmed. He then appealed to this Court.

Two grounds of appeal were, with the leave of this Court, argued. These were:

“(1)   That the judgment of the High Court was unreasonable, unwarranted and cannot be supported having regard to the evidence;

(2)     That the Court of Appeal erred in law in holding that insanity was not proved when on a balance of probability the appellant has satisfied the onus of proof on him as regards that defence.”

The facts are not in dispute. They are more clearly stated by P.W. 4, Mrs. Mary Azaki. On 6/6/80, she was at Akpayan Village. While she was lying down she heard someone raise an alarm, shouting. She got up and saw the accused standing naked without his clothes and trousers on. That was unusual. As a precautionary measure, she took her two children to the bush and hid them there. She came back to meet the appellant, armed with and holding a big stick. She saw the accused/appellant hit Ana his daughter with the stick on the right hand and injured her. She is now paralysed in the right hand. Another girl, Aniya Nawa, the daughter of P.W.4 who was with Ana was the next victim. The appellant hit her on the head with the big stick and she fell down and died. P.W.4 said she had never seen appellant behave in such abnormal way before. P.W.5 Nawa Zaki identified the deceased to the Doctor, P.W.1. Later, P.W. 3 came to arrest the appellant. He met the appellant tied to the chair on which he was sitting looking blank into space and at them. On seeing his condition, P.W.3 took him to the General Hospital, Lokoja. From there, he was admitted to the psychiatric hospital. He spent 3 months there and a report was sent to the Magistrate before whom he was charged. Following the psychiatric report, the Magistrate discharged the appellant.

This piece of evidence raised a serious question as to the state of mental health of the appellant.

The patients treated in Psychiatric Hospitals are people who are of unsound mind, i.e. people with mental disease. The discharge of the appellant by the Magistrate after receiving the report of the psychiatrist is evidence of enormous weight rebutting the presumption that the appellant was sane at the time he committed the offence.

The appellant made statement Exhibit 2 to the police wherein he denied any knowledge of all that happened. Shadrack Yakubu, the son of the appellant shocked at finding the appellant going about naked, arrested him and tied him up with a rope because he suspected that he was abnormal and mentally sick. He ran to the police station at Koton Karife and made a report. He said the appellant spent 9 to 10 months at the Ilorin General Hospital Psychiatric department.

With the evidence of receipt of psychiatric treatment soon after the incident and the discharge of the appellant by the Magistrate before the court, is it safe for the learned Judge to proceed to convict as if the appellant was sane? I say no. One might ask the nature of treatment he received at the hospital and the opinion of the psychiatrist who treated him. If the opinion of the psychiatrist had been made avail-able by the defence or the prosecution, it may have settled the doubt about the sanity of the appellant raised by the evidence so far led. That doubt should have been resolved in favour of the appellant. This has been settled by the authorities. It is but right to observe that the learned trial Judge and the Court of Appeal considered the question of defence of insanity extensively. They however arrived at the conclusion that the evidence that the appellant suffered no mental abnormality previously to the day of the incidence was fatal to the defence. The learned trial Judge, Adeniyi, J. and the learned Justice of the Court of Appeal who read the lead judgment, Ogundare, J.C.A. stated the law on the defence of insanity and proof of insanity accurately. They however failed to give adequate consideration and due weight to the evidence from the prosecution that the appellant was admitted to the psychiatric department of the hospital and treated for 3 months before his discharge and that when he was arraigned before the Magistrate following the report of the psychiatrist, he was discharged. That piece of evidence, coming from the prosecution, must be given due weight and in the absence of any evidence to the contrary, all the implication of that evidence must be accepted.

A sane and normal person is not taken to the psychiatric hospital for treatment and where a person is taken to a psychiatric hospital and detailed for treatment, the implication is that he is insane. The presumption of sanity under our law is thereby rebutted and displaced.

There is no burden or onus on the prosecution to prove insanity but where it leads evidence to rebut the presumption of sanity, the legal defence of insanity is available. It is not the defence of insane delusion that is available as delusion whether insane or partial is a very much reduced degree of insanity which does not have the same legal consequences as insanity proper. The learned trial Judge on this issue of defence of insanity said of the non-production of the psychiatrist report as follows:

The learned defence counsel confidently submitted as pointed out earlier that since the prosecution took the initiative to take the accused person to the psychiatrist, it ought not to have suppressed the vital evidence contained in the psychiatrist report, arguing that if the report which led to his discharge by the Magistrate had been tendered, it would be unfavourable to the case for the prosecution and laying emphasis on P.W.3 and D.W.1 who testified to that effect. This is one of the most plausible and persuasive submissions which should be thoroughly examined in the light of evidence adduced. It appears that the defence is more at fault than the prosecution as regard the absence or non-production of a medical report or non- production of such document in this case particular when it is appreciated that the onus of proving by the balance of probability the insanity or insane delusion alleged is on the defence ………………………………………………………..

The applicable law regarding procedure to be followed as regards the production of a medical report or evidence has been amply clarified in R. v. Casey SC Cr. App. R. 91, (92). Reference is there made to the discussion on the duty of counsel for the Crown with regards to the tendering of evidence of prisoners’ insanity. In delivering his judgment in Casey’s case, Morris, J. referred to the case of Smith (Oliver) (1910) 6 Cr. App. R. 19 where Lord Chief Justice (Lord Alverstone) at page 20 of that report said:

‘The question came up seven or eight years ago when a practice arose of the Crown calling the prison doctor to prove insanity. All the Judges met and re-solved that it was not proper for the Crown to call evidence of insanity but that any evidence in the possession of the Crown should be placed at the disposal of the prisoner’s counsel to be used by him if he thought fit.’

It is finally held in Casey’s case (supra) that it is desirable to adhere to the procedure that the defence should in the first place call any witness directed to the issue of insanity if the defence raise any issue.”

It is for the Judge to decide the question of insanity of the accused or other-wise from available evidence, Ngene Arum v. The State (1979) 11 S.C. 109. Where there is evidence that ‘the accused received treatment in psychiatric hospital from a psychiatrist and on the report of the psychiatrist being placed before a Magistrate, he discharged the accused’, the Judge is bound to give due weight to that evidence as the only conclusion from that piece of evidence is that the accused was insane or mentally ill. He cannot properly hold that the accused was sane be-cause the defence has not led or called evidence to prove the content of the re-port. Since there was no evidence to show that the psychiatrist found nothing wrong with the accused, a doubt must exist in the mind of the Judge as to the mental health of the accused.

The defence is entitled to make use of evidence of insanity of the accused tendered by the prosecution even if the defence tendered no evidence. See section 140(2) of the Evidence Act Cap. 62 Vol. 2 Laws of the Federation of Nigeria 1958. The learned Justice of the Court of Appeal also considered this defence of in-sanity. He too failed to give due weight to the evidence tendered by the prosecution. In his consideration of the issue, he observed and said:

“The next thing to consider is the defence of the accused person, now appellant, namely, insanity or insane delusion. All the evidence point to the fact that before the day of the incident his behaviour was normal and that there was no trace of insanity in the family. See the evidence of P.W.3 and the only defence witness, D.W.1. His abnormal behaviour seemed to be confined to the fateful day he killed Aniya Nawa. The defence made no strenuous effort to obtain any report from the records of the Ilorin hospital, psychiatric department. The defence only harped on the fire incident that destroyed the Magistrate Court, lokoja, where it was filed. The defence of the appellant in his statement, in brief, was that after the act, “I don’t know what I have done …….. I could now know what was happening.”

With all this before the court, the learned Justice concluded:

“I am quite satisfied that the learned trial Judge adequately considered the defence of insanity and mental delusion and rightly concluded that it did not avail the appellant.”

In insanity cases, it is not sufficient for the Judge to consider only the behaviour of the accused before the incident. He must consider his behaviour at the time of the incident and after the incident. The behaviour of the appellant at the time of incident is before the court. It is that he stripped himself naked, armed himself with a big stick and used the stick on two 2-year old children killing one before he was caught and restrained by tying him with rope to the chair. After the incident, his behaviour was such that P.W.3 had to do something. He said, “I then removed the accused person to the General Hospital, Lokoja, when I saw him in that condition. He was admitted to the psychiatric hospital, florin. He remained here for three months”. The failure of the courts below to consider and give due weight to the above piece of evidence occasioned miscarriage of justice. See

Johnny Loke v. The State (1985) 1 S.C. 1. Egbe Nkanu v. The State (1980) 3-4 S.C. 1. Ngene Arum v. The State (1979) 11 S.C. 41 at 92. E. Udotia v. The State (1981) 11-12 S.C. 49 at 60-61.

Ogundare, J.C.A. correctly stated the law when he said, quoting R. v. Omoni 12 W.A.C.A. 511 at 512 and 513:

‘Then It must be established that the mental disease or natural mental infirmity as the case may be, was such that at the relevant time, the prisoner was, as a result deprived of capacity:

(a)     to understand what he was doing or (b) to control his actions; or

(c)     to know that he ought not to do the act or make the omission.”

That statement of the appellant that he did not know what he did became relevant when taken along with the evidence of his detention at the psychiatric hospital for three months and made the defence of insanity available to the appellant under section 51 of the Penal Code Cap. 89 Laws of Northern Nigeria. the proceedings that took place in the Magistrate’s Court should have been placed be-fore the trial Judge – The State v. Numa Madu AND Anor. (1976-7) N.N.L.R. 153 at 157.

It was for the above reasons I allowed the appeal.


ESO,  J.S.C.

I have had the advantage of a preview of the Reasons for judgment just read by my learned brother Obaseki, J.S.C. I adopt the Reasons for allowing the appeal on 3rd December, 1987.



When this appeal came up for hearing on the 3rd day of December, 1987, after hearing the submissions of counsel, we allowed the appeal, set aside the appellant’s conviction under Section 221 (b) of the Penal Code by reason of the unsoundness of the appellant’s mind and ordered that he be detained in a safe place at the pleasure of the Military Governor of Kwara State. We then indicated that we would, today, give reasons for our decision.

I have had the advantage of reading in draft the ‘Reasons For Judgment’ just delivered by my learned brother, Obaseki, J.S.C. I am in complete agreement with his reasons and will respectfully adopt them as mine.

The evidence of P.W.4 – Mrs. Mary Azaki plus that of the appellant’s son, Shadrack Yakubu (DWI) ought to have persuaded the learned trial Judge to the conclusion that at the time of the incident, by reasons of unsoundness of mind, the appellant was probably deprived of the power of passing a rational judgment on the moral character of his action. He should not, in the circumstances, have been held legally responsible for the criminal consequences of his actions.


AGBAJE, J.S.C. On the 3rd December, 1987 after hearing the submissions of Counsel and perusing the record of proceedings and the judgments of the courts below, I allowed the appeal of the appellant acquitted him of the offence of culpable homicide punishable with death contrary to section 221 (b) of the Penal Code by reasons of the unsoundness of his mind and ordered that he be detained in a safe place at the pleasure of the Military Governor of Kwara State. I reserved my reasons for doing so till today. I have had the opportunity of reading in draft the lead Reasons for judgment by my learned brother Obaseki, J.S.C. I entirely agree with his reasoning. I adopt his opinion as mine.


NNAEMEKA-AGU,          J.S.C. I have had a preview of the reasons just read by my brother, Obaseki, J.S.C. for judgment delivered by this court on the 3rd of December, 1987. I agree with the reasons given by him.

It is not disputed that, although the onus of establishing his defence of insanity is on the appellant, that onus is discharged on a balance of probabilities: see section 140(1) of the Evidence Act; see also R. v. Nasumu (1940) 6 W.A.C.A. 74. It is, however, my view that the evidence called at the trial, particularly that of D.W.1, Shadrack Yakubu, satisfies the requisite standard of proof. The available evidence shows that the appellant hit the deceased with a long stick and thereby inflicted the fatal injury on her. It was also in evidence that before the fatal blow on the de-ceased the appellant also had hit his two – year old daughter as well with the same stick. The 3rd prosecution witness, Mr. Kanube, a police officer, admitted that the appellant was admitted to the Psychiatric Department of Ilorin General Hospital for about three months and was placed under a Psychiatrist’s observation. The psychiatric report was not tendered; but it was also admitted that as a result of the re-port the appellant was discharged in the Magistrate’s Court, Lokoja. He also met the appellant tied on to a chair in his house. Evidence of D.W. 1 shows that the appellant stripped himself naked in public and confirmed that appellant had the psychiatric treatment for a period of nine to ten months.

I agree that the above evidence on record was sufficient to satisfy the standard of proof. Moreover, the statement of the appellant to the police, Exhibit 2 suggests that he was probably insane. I agree that the learned trial Judge did not properly advert his mind to the requisite standard of proof and the cumulative effect of the above pieces of evidence.

I must also record my dissatisfaction with the manner the prosecution who were in possession of the psychiatric report with-held it. It should be realized by the prosecution that they have a duty to place all the available evidence before the court; but they failed so to do. The court ought to have found the defence of in-sanity duly proved.

For all I have said, I allowed the appeal, set aside the conviction of the appellant of murder, and found him not guilty of murder by reason of insanity. I agreed with the consequential order made.

Appeal allowed.



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