–
REX
V.
NASAMU
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
24TH DAY OF APRIL, 1940
2PLR/1940/73 (WACA)
OTHER CITATION(S)
2PLR/1940/73 (WACA)
(1940) VI WACA PP. 74-78
LEX (1940) – VI WACA PP. 74-78
BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST (GHANA)
GRAHAM PAUL, C.J., SIERRA LEONE
–
BETWEEN:
REX — Respondent
AND
NASAMU — Appellant
–
REPRESENTATION
C.V.S. Pollard — for Crown
Ian F. Cameron — for Appellant
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Murder — Issue as to whether verdict should be guilty or guilty but insane — Onus of establishing insanity — On whom lies
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Defence of insanity — Proof of — Distinction between the Law in England and Nigeria relating thereto — Finding of “most probable” — Applicability of to onus on prosecution proving commission of crime distinguished from onus on accused proving insanity — Finding that accused was insane immediately after the killing — Whether must lead to a definite finding that accused was also insane at the time of the crime
HEALTHCARE AND LAW — MENTAL INSANITY:- Proof of — Subjective testimony of accused person as being under the influence of some invisible power — Lack of evidence as to history of insanity personally or in family — How treated
RELIGION AND LAW:- Belief in superstition/attack by spirit — Murder committed during a moment allegedly under the influence of such spirit — Whether relevant in the determination of defence of insanity
–
PRACTICE AND PROCEDURE ISSU(S)
APPEAL:- Rules governing appeals — Where not complied with — Legal effect
–
CASE SUMMARY
The appellant was convicted of murder. The sole ground of appeal was that he was not satisfied with the sentence. Application for leave was not opposed by Crown and Counsel was briefed on behalf of appellant but no amended grounds were filed. This should have been done but no embarrassment was caused.
The trial Judge found that there was ample evidence to show that accused was insane immediately after the killing but none that he was insane before the act and held that he had failed to establish insanity as a defence. In his report to the Court under rule 47 the judge emphasised that in his opinion the accused was definitely abnormal when the crime was committed and most probably did not know the nature of his act:
–
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held on appeal:
(1) Nigerian Law differs from English Law as to defence of insanity is to be found in paragraph 1 of section 28 of the Criminal Code.
(2) A finding of “most probable” would not be sufficient to discharge the onus of proof on the prosecution but such a high degree of proof is not required for defence of insanity (Sodeham v. The King). The finding of the Court should therefore have been that accused did not know the nature of his act.
(3) The word “contemporaneous” must not be construed as “simultaneous’ but as covering acts committed immediately after the act charged. A finding that accused was insane immediately after the killing must on a proper direction as to this have led to a definite finding that accused was insane at the time.
Finding of “guilty but insane” substituted. The facts of the case are sufficiently set out in the judgment.
–
–
MAIN JUDGMENT
The following joint judgment was delivered.
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE
In this case the Appellant was charged in the High Court of the Ibadan Division with the murder of his wife Ode at Iseyin. He was convicted and sentenced to death.
He applied to this Court for leave to appeal against his conviction upon the sole ground that he was not satisfied with the sentence passed upon him. However when the application came before the Court, Counsel for the Crown did not oppose it and very helpfully suggested that it was an appeal in which the Court might with advantage have the assistance of Counsel on behalf of the Appellant, it being understood that the substantial issue in the case was whether or not the proper verdict should be “Guilty but insane” rather than “Guilty of murder”. We accepted the suggestion and caused Counsel to be briefed on behalf of the v Appellant. We have been greatly assisted by the argument of Counsel both for the Appellant and for the Crown. At the hearing of the appeal, after Counsel for the Appellant had addressed the Court, Counsel for the Crown prefaced his address with a formal objection that the Rules governing appeals had not been complied with in that no amended or additional grounds of appeal had been filed.
As to this, we desire to say –
(a) that we quite agree that further grounds of appeal should have been filed. The Rules should be adhered to in all cases, including those where Counsel is asked by the Court to undertake an appeal; and
(b) where the Appellant or his Counsel has failed to comply with this Rule, if Counsel for the Crown wishes it enforced in order that he may have due notice of the grounds of appeal, he should draw the attention of the Court to the point before the Appellant’s case is opened.
The Court will never compel a party, whether the Crown or any other, to go on with a case when he is embarrassed by the failure of the other party to observe the Rules until that embarrassment is removed.
At the conclusion of the case in the Court below the learned Trial Judge recorded the following summing-up and finding:
“Summing-up,—The facts established by the witnesses for the Prosecution are very simple. There were no eye-witnesses to the actual killing. On the night of the 4th-6th October, 1939, a witness named Salami Ishola awoke in his house at Iseyin and went to urinate. The accused and his wife, the deceased woman Odle, live in the same compound as this witness, The compound belongs to Elekuru. While urinating the deceased was heard to cry out “He kill me.”
Salami Ishola went to the accused’s house and found the door fastened. He demanded entrance from the accused, and when he did not reply, the door was forced open with a pestle–Exhibit “A.” As soon as the door was opened the accused rushed out of the house. He was naked and holding a knife–Exhibit “B”-in his hand. Blood was seen on the knife. Salami Ishola went into the accused’s house and there: he found the wife, Ode, lying on the floor. She did not speak and was almost dead. Her belly was seen to be slit open and the intestines protruding. There were also wounds on her mouth and legs together with several minor wounds. All she was wearing was a black wrapper round her middle. Other witnesses also saw Ode’s body in the room and describe similar wounds. The body was taken to the hospital at Ibadan and as the accused also had a cut on the throat and needed immediate attention, he was taken there too.
“Medical evidence proves that Ode’s death was caused by the wound in her belly and that death was almost instantaneous. It also shows that an instrument such as exhibit “B” could have inflicted the wounds described. The accused was seen returning to his house on the morning of the 5th October, 1939, about 6 a.m. At that time he still had exhibit “B” in his hand. He entered his house and immediately came out again without the knife. He was arrested and taken to the Iseyin dispensary to have his throat seen to. He was discharged from hospital on the I0th November, 1939. On discharge he was charged with the murder of Ode and attempting to commit suicide. He was cautioned and then made a voluntary statement –exhibit “C”. It has been shown also by the prosecution that there was no quarrel between Nasamu and Odle prior to the 4th October, 1939, They lived a normal married life together. Ample evidence of insanity after the murder is forthcoming from the prosecution, but there is no evidence to show the condition he was in immediately before the crime. All witnesses describe him as being thoroughly sane, though not in as many words.
“The accused pleads not guilty and merely denies all knowledge of the crime. He claims that an evil spirit (Shigidi) fought with him that night in the house and continued to do so until he got outside. It had poles in either hand. In other words his defence is that he was insane when the act was committed and as he did not know what he was doing he is not criminally responsible for his action.
“A certificate was received from the medical authorities saying the accused was fit to make his defence.
“There is ample evidence to show that the accused was insane immediately after the killing of his wife, Ode. There is not an iota of evidence, however to show that he was insane before the act, or even peculiar. Prior to the crime he acted in a normal fashion. Learned Counsel for the defence refers to lack of motive for the crime.
“That ground alone, however, is not sufficient from which insanity can be inferred. The statement made by the accused—Exhibit “C” is similar to the evidence now given before the Court, but as is to be expected it is not quite identical in minor points. His word, and his alone, is the only evidence before the Court of such a disease of the mind as to render him unconscious of the act he was committing.
The law on insanity is quite clear. A man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proved to the satisfaction of the Court (acting as jury also). To establish insanity as a defence, it must be clearly proved that, at the time of committing the act there was such a defect of reason from disease of the mind, the accused did not know the nature of the act or its quality. If he did know it, then he must not have known he was doing wrong.
Learned Counsel for the accused established from the medical witness that that form of insanity known as melancholia rendered a person unconscious of acts he might do and want to destroy himself. Presumably from the evidence before the Court this was to be inferred as no evidence of melancholia was adduced. Whether the accused was sane or insane in the legal sense at the time the murder was committed is a question of fact for the Court to decide, and depends on the previous and contemporaneous acts of Nasamu. No evidence of insanity in his family is adduced: nor is there any evidence of a previous mental illness.
According to law the accused is a sane man and must be held responsible for his acts.
Finding. Guilty”.
His report to this Court under Rule 47 is as follows:
“The only point that it is desired to emphasise most strongly is, that in my opinion although legally sane, and therefore criminally responsible for his act the accused, Nasamu, was definitely abnormal when the crime was committed, and most probably did not know the nature of his act.”
In considering this case it must at the outset be realised, as Counsel for the Crown has pointed out, that the law in Nigeria as to the defence of insanity in a criminal trial is slightly different from the law in England. The Nigerian law is set out in Sections 27 and 28 of the Criminal Code which read as follows :—
“27. 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.
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 bad been such as he was induced by the delusions to believe to exist.”
The wording of the first paragraph of Section 38 follows closely the direction given by Bray J. in R.J. Fryer (24 Cox 403), but it has been pointed out that in so far as that direction admits the medical theory of uncontrollable impulse it conflicts with a number of cases decided some in the English Courts of first instance and some in the English Court of Criminal Appeal.
Turning to the particular facts of the present case, there are two points to which we think attention must be especially directed. The first is the Judge’s statement in his report – “the accused most probably did not know the nature of his act.” Now it is true that a finding that a thing is “most probable ” does not go so far as a finding that that thing is proved beyond reasonable doubt, and would not be sufficient to discharge the onus of proof which is cast upon the prosecution in a criminal case. But it is recognised that such a high degree of proof is not required for the defence of insanity.
Archbold puts it thus:-
“The burden of proof which rests upon the accused is not as heavy as that which rests upon the prosecution to prove the facts which they have to establish. It has not been definitely defined, but it may fairly be stated as not being higher than the border which rests on a plaintiff or defendant in civil proceedings. Sodemax v. The King (1936) W.N. 190.”
In view of this, we think that when a Judge is able to go so far as to say “the accused most probably did not know the nature of his act,” he should record a finding of fact that the accused did not know the nature of his act. If that finding had teen recorded in this case, it would have brought the Appellant within the scope of the first paragraph of Section 28 of the Criminal Code.
The second point is the finding in the summing-up (which we accept as a finding of fact):
“There is ample evidence to show that the accused was insane immediately after the killing of his wife, Ode,”
coupled with the later sentence –
“Whether the accused was sane or insane in the legal sense at the time the murder was committed is a question of fact for the Court to decide, and depends on the previous and contemporaneous acts of Nasamu.”
The wording of this last sentence is obviously taken from page 17 of the 30th Edition of Archbold’s Criminal Pleading, Evidence and Practice. It may be compared with the wording of the first sentence of paragraph 514 of the 9th Volume of Halsbury’s Laws of England (1st Edition):
“The onus of establishing insanity is on the accused; affirmative evidence must be given by medical or other witnesses showing that he was suffering from mental disease at the time or shortly before or after the act or omission charged.”
At first sight it might appear that these two statements of the law conflict, in that the first speaks of “previous and contemporaneous acts” whilst the second speaks of “at the time or shortly before or after the act.” On closer examination, however, we think that this is not so, but rather that Halsbury can be used as explaining the meaning of Archbold’s word “contemporaneous “.
It becomes clear that that word must not be construed as if it were “simultaneous,” but must be given a wider meaning so as to cover acts committed immediately after the act charged. It seems to us that the learned Trial Judge, not having the advantage of having had his attention drawn to the passage quoted from Halsbury, must have given to the word “contemporaneous” a too narrow meaning, and that, if he had realised its wider meaning, his finding that the accused was insane immediately after the killing must inevitably have led to a definite finding that the accused was insane at the time of the killing.
It therefore appears to us that, although the Appellant was guilty of the act charged against him, he was insane at the time the act was done so as not to be responsible according to law for his actions. Accordingly the sentence passed at the trial is quashed and it is ordered that the Appellant be kept in custody as a criminal lunatic in the Lagos Prison until the Governor’s pleasure be known.