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(1952) 14 W.A.C.A. 158.





  1. A. Odesanya for Appellant.

Oki, Crown Counsel, for the Crown.



CRIMINAL LAW AND PROCEDURE:- Murder – Defence of Insanity – Uncontrollable impulse – Criminal Code, section 28. – How proved – Whether the burden of proof which rests upon an accused person to establish the defence of insanity is not as heavy as that which rests upon the prosecution when proving its case against an accused person – Whether not higher than the burden which rests on a plaintiff or defendant in civil proceedings.

HEALTHCARE AND LAW:- Military veterans discharged on grounds of mental unfitness likely to affect future efficiency – Where not placed on close medical supervision – Implication for justice administration and crime

MILITARY AND LAW:- Veterans of past military campaigns discharged on health grounds – Mentally disabling infirmities – Implications for society and law enforcement




The following judgment was delivered:


This is an appeal against a conviction for murder pronounced by Brown, J., at Makurdi on the 17th June, 1952.


The victim, Pius Ovaro, died during the night of the 1st to the 2nd February, 1952, from a deep cut on the top of the head. His skull was fractured; brain matter and blood flowed out of the wound. The wound was inflicted at about 11 p.m. There was no eye-witness. The victim was taken to the dispensary at Lafia and died 15 minutes after admission. The wound was certainly a fatal one.


The victim had been sitting in a deck chair outside the house where the accused lived. He was found lying on the ground by the chair, unconscious and groaning. After the discovery of the attack on the victim, the accused was not seen until the next morning when he was arrested while walking towards his house carrying an axe. After his arrest he was charged with murder and cautioned. He stated in answer to the charge that about 9 p.m. on the 1st February he had heard victim telling somebody that he (victim) had been paid £3 to kill the accused. The accused then said that this angered him so much that he took an axe and hit the victim who was sitting on a chair. The accused went on to say that after striking the victim, he went back to his room and when he saw people gathering, he escaped to the bush with his axe. The next morning he washed the axe at the railway pool and was going back to his house when he was arrested.


Three days afterwards the accused made a longer statement to the police, explaining that he suffered occasionally from ”brain trouble” which caused him to act queerly. His description of this alleged mental disorder was that he saw many persons with guns, machetes and sticks surrounding him and trying to kill him.
In this second statement the accused explained that on the night of the 1st February, one of these fits came upon him while he was lying outside his house on a mat; the victim was then sitting on a chair. According to this version, he went inside his room but the hallucination got worse and he saw people with guns, machetes and sticks coming to get hold of him. When some of these imaginary persons threatened to kill him, he picked up his axe, drove them outside and saw somebody lying on a chair. He went on to say that he struck with his axe the person who was on the chair and the person fell down; his mind then cleared a little and he was sorry. The accused then said that he decided to go to the Native Authority Charge Office taking the axe with him, but his mental disorder increased and he wandered about until the morning when his mind cleared and he recollected some of the events of the previous night. The accused also mentioned that he was on good terms with the victim and looked upon him as his son. He expressed regret for what had happened and said that his mental disorder had begun on the 19th January, 1952, and that he had attended the Lafia hospital three times for treatment. He ended by saying that he thought he had been poisoned.


The only question in this appeal is whether the accused was properly convicted or whether the verdict should have been that he had committed the act but was not criminally responsible therefor by reason of mental disease which deprived him of capacity to control his actions.


At the trial, the accused gave evidence. The learned trial judge mentioned in his summing up that accused gave evidence in an excited manner in Ibo and that it was difficult for the interpreter to understand him. He appeared, said the judge, unable to answer reasonably the simplest questions though he seemed to be in full possession of his faculties.


Dr. Gonzalez, the Medical Officer at Makurdi, gave evidence for the defence. He had kept the accused under observation and had also read a report from the .C. Records, Army Headquarters, Lagos, from which it appeared that the accused had been discharged in 1946 as medically unfit. He was at the time suffering from chronic amoebic dysentery. This report, which was admitted by consent, showed that in 1943 the accused suffered an accidental injury as a result of an explosion at Freetown. The report described the injury as ”fractured skull, serious, might interfere with future efficiency.”


Dr. Gonzalez expressed the opinion that the injury sustained by the accused is likely to affect most definitely his mental balance. He had formed the opinion that when the accused has attacks of mental disorder he is ”unable to control his acts to such a degree as to amount to uncontrollable impulse.”The doctor added that the accused might know what he was doing and that he was doing wrong but that he was not able to control his actions when he had an attack.


The learned trial judge dealt with the evidence of mental derangement in the following words:”This evidence, while it indicates the possibility of mental derangement at times, is based mainly on surmise derived from the report of the war injury, and not apparently upon personal observation. It is no evidence whatever upon which a defence of insanity in accordance with the tests prescribed by the judges following the McNaughton case can be based. I must therefore disregard this evidence as affecting the legal responsibility of the accused for his actions”


We would point out that Dr. Gonzalez did observe the accused and that it was not suggested to him in cross-examination that accused may have invented his delusions. Dr. Gonzalez must have been fully alive to the possibility that the accused was an impostor and it may be presumed that he kept such possibility in mind.


We wish to point out that the burden of proof which rests upon an accused person to establish the defence of insanity is not as heavy as that which rests upon the prosecution when proving its case against an accused person. It may be stated as not being higher than the burden which rests on a plaintiff or defendant in civil proceedings.


We think that in this case there was sufficient evidence that the accused had acted under an uncontrollable impulse.


The learned trial judge did, we believe, take the same view but he rejected the defence of uncontrollable impulse. This defence, although not accepted in England, is a good defence in Nigeria by virtue of section 28 of the Criminal Code. This has been placed beyond doubt by decisions of this Court in the cases of Rex v. Sunday Omoni (1) and Rex v. Ahilahel (2).


We feel certain that the learned trial judge would have given effect to the provisions of section 28 had his attention been drawn to it.


We are of opinion that the correct verdict in this case should have been that the accused was guilty of the act charged against him but that he was insane at the time the act was done. We direct such a verdict to be entered. The sentence passed at the trial is therefore quashed and we order the appellant to be kept in custody as a criminal lunatic at Enugu Prison until the Govern pleasure be known (section 12 (4) of Cap. 229).


Verdict of guilty but Insane substituted.

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