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F.S.C. 106/1961

11TH AUGUST, 1961.

 3PLR/1961/9 (FSC)





LIONEL BRETT, Kt. AG. C.J.F. (Presided)

WILFRED HUGH HURLEY, C.J. High Court of the Northern Region

ALEXANDER WILLIAM BELLAMY, AG. C.J. High Court of Lagos (Read the Judgment of the Court)



J.A. Cole -for the Appellant.

J.Omo-Eboh -for the Respondent.


CRIMINAL LAW AND PROCEDURE: Murder – Defence of provocation – Defence of insanity – Onus on accused

PRACTICE AND PROCEDURE – EVIDENCE: Defence of insanity – How proved – Onus on accused.

CHILDREN AND WOMEN LAW: Wife murder – machete cut – husband alleges adultery on wife’s part – whether provocation


 BELLAMY, AG. C.J., Lagos (Delivering the Judgment of the Court):

The appellant was charged with the murder of his wife, a woman named RHODA JOSIAH, at Ilue-Ologbo village on the 3rd June, 1960. He was found guilty and sentenced to death.

The facts, which are not in dispute, are these. The appellant and his wife, Rhoda Josiah, lived together at Ilue-Ologbo. On the 3rd June, 1960, about 4 o’clock in the afternoon, the appellant’s half sister, who lived about 10 yards away from the appellant’s house, heard Rhoda Josiah shouting in alarm, and she rushed to her house. Before she could reach it, she saw the appellant running out with a cutlass in his hand. She entered his house and found Rhoda Josiah lying on the floor in a pool of blood. There was an in­cised wound on her neck. The appellant was later apprehended in the vil­lage, and the cutlass was taken from him. The appellant was handed over to the police. A post mortem examination of the body of the deceased showed that she had sustained a deep lacerated wound at the nape of the neck sever­ing the large blood vessels, and the fifth vertebra lamina, and that her death was due to shock and haemorrhage as a result of this wound. In a statement made by the appellant to the police after caution he said in effect that he sus­pected that his wife had been unfaithful to him and that on that afternoon, when he questioned her about it, she confessed to having committed adul­tery with a boy named School. He went on to say, “After this confession I gave her a matchet cut on her neck and she died.”


The defence put up at the trial was a denial that he, the appellant, had killed his wife, and the appellant alleged that he had had some chest pains, that he had been given Indian hemp to smoke, and that thereafter he had acted in an abnormal manner. He admitted in evidence that on the 3rd June, 1960, his wife confessed to him about her infidelity, and that he was annoyed when she told him about the boy named School. But, he denied that it was he who struck his wife with a matchet, but said that it was his senior brother, one Emenu Aghaluwhe (witness 3), who had done so because, he said, (a) his wife had called his brother Emenu’s wife a witch, and (b) because of some land dispute he had had with his said brother Emenu.


The learned Judge found that the defence of provocation was not made out, and we agree with him. The only ground of appeal urged before us is this, that ‘The learned trial Judge erred by finding to the effect that the de­fence of insanity is sustainable only on evidence adduced by the defence and consequently the learned trial Judge further erred by failing to consider the defence of insanity.”


On considering the defence of insanity the learned Judge said this in his judgment:


“There is evidence by the 3rd prosecution witness that very long time ago accused was behaving like a mad man. He was then teaching at Araraba. He was brought home to Ilue Ologbo where he was treated by a native doctor for about 12 months. The 3rd prosecution witness also said that some days before the incident he had seen accused behaving abnormally as when he was mad, and was going about the village singing meaningless songs. Apart from this there is no evidence by the defence to show that the ac­cused at the material time was suffering either from mental infir­mity and as a result of which he was deprived of capacity to un­derstand what he was doing, or to control his actions, or to know that he ought to do the act. The onus is on the defence and it has not been discharged in this case.”


We find it quite impossible to say that the learned trial Judge did not con­sider the defence of insanity. Plainly, he did do so. Nor can we find anything in the judgment to show that the learned Judge, in considering this defence, directed himself that the defence of insanity was sustainable only on evi­dence adduced by the defence. He said that the onus of establishing insanity was on the defence, which is quite a different thing. The substantial com­plaint is that the learned Judge said in effect that “there was no evidence by the defence to show that the accused at the material time was suffering either from mental infirmity and as a result of which he was deprived of capacity to understand what he was doing, or to control his actions, or to know that he ought not to do the act.” In fact, the accused gave evidence himself about a chest complaint he had suffered from after which he stated he “started to act in an abnormal way.” He also stated that on the 3rd June, 1960, after he had eaten some food prepared by his wife his illness became worse. Later, he said, he heard of his wife’s death, and he then took an overdose of the medicine given to him for his illness; after which he said he did not know what he was doing.


That was the sum total of the evidence given by the appellant himself on this defence of insanity.


We think the learned Judge was right in finding that “at the material time,” i.e. at the time of the commission of the act, there was no evidence ad­duced by the defence to make out the defence of insanity. It must be borne in mind that on the 5th June, 1960, two days after the alleged offence, the ap­pellant made a statement to the police after caution in which he gave a de­tailed account of his married life with the deceased up to the date of her death, and he ended this statement with a clear account of the circumstances in which he killed her. Nowhere in this statement did he mention a word about the abnormality of which he spoke in the witness box. We find nothing in this ground of appeal, and it fails. For these reasons, we dismissed the ap­peal.


Appeal Dismissed.



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