Criminal
Law-insanity-Uncontrollable
impulse-Criminal Code, section
28.
The appellant struck the
deceased with an axe on the head
in the night as deceased was
sitting in a deck chair outside
appellant's house. Next morning
appellant, when arrested, said
that in the previous night he
had heard deceased say to
someone that he had been paid
money to kill him, the
appellant, which so angered him
that he took an axe and hit the
deceased, and then ran away on
seeing people gathering. Some
days later he explained in his
statement that he sometimes
suffered from" brain trouble
"-that he saw people surrounding
him with weapons to kill him,
that he had this delusion that
night and drove the imaginary
attackers from his house with
his axe and struck the deceased
whom he saw in the chair-a
person he looked on as a son-and
that his mental trouble had come
on a fortnight earlier. At his
trial he gave evidence excitedly
and incoherently. An army report
was put in that in 1943 in an
explosion he had a serious
fracture of the skull. The
doctor who had him under
observation before trial
testified that in his opinion
that injury was most likely to
affect appellant's mind and when
appellant had an attack he might
know what he was doing and that
it was wrong but not be able to
control his actions. The trial
Judge thought the evidence did
not sustain a defence of
insanity on the rules in the
McNaughton case and convicted of
murder.
Section 28 of the Criminal Code
reads as follows:-
"28. A person is not criminally
responsible for an act or
omission if at the time of doing
the act or making the omission
he is in such a state of mental
disease or natural 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
believe to exist."
Held: Section 28 of the Criminal
Code goes further than the
English rules and admits a
defence of uncontrollable
impulse.
Cases cited:-
(1) Sunday Omoni
v.
R., W.A.C.A. No.
3116,
atp. 40ofcyclostyledjudgments
for Lagos Session of October,
1949.
(2) Akilahel
v.
R., at p.
49 of those for the Lagos
Session of January to May,
1950.
Appeal by convicted person:
w.A.C.A. No. 3841.
M.
A. Odesanya
for Appellant.
Oki,
Crown Counsel, for the Crown.
The following judgment was
delivered:
de Com armond, Ag.
C.].,
Nigeria.
This is an appeal against a
conviction for murder pronounced
by Brown, J., at Makurdi on the
17th June, 1952.
[pg157]
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 therefore 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 O.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
[pg158]
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 disC9very 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 O.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
[pg 159]
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 app~rent1y 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.
Akilahel (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
Governor's pleasure be known
(section
12 (4) of Cap. 229).
Verdict of guilty but insane
substituted.
160
