CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
This appeal emanated from Edo State, Nigeria. The appellant, Josephine Ani, was charged with the murder of two children, Peter and Amoge, aged five and four years respectively. On the morning of 1st March 1988, the appellant went to the house of PW3 Charity Ani, whom she described as her friend. Upon inquiry, she was informed by PW2 (a child witness) that the parents of the children had gone to the farm. The appellant then went to a nearby mechanic workshop, picked up an iron rod, and returned to the house.
The appellant first attacked Peter, striking him repeatedly on the head with the iron rod until he died. She thereafter pursued Amoge, who had run to hide under a bed in a neighbour’s house. The neighbour pointed out Amoge’s hiding place to the appellant, who dragged the child out and beat her to death with the iron rod. The appellant then chased PW2, who ran to a motor park for help. When a policeman (PW4) arrived at the scene, the appellant attempted to flee but was arrested. She subsequently made a confessional statement (Exhibit B) to the police.
The appellant raised the defence of insanity at her trial. The trial court rejected this defence and convicted her of murder. Her appeal to the Court of Appeal was dismissed, prompting the present appeal to the Supreme Court.
Issues for Determination
ISSUE 1:Â Whether or not the lower court was right in affirming that the defence of insanity did not avail the appellant.
Decision / Holding
The Supreme Court dismissed the appeal. The Court affirmed the conviction and sentence of the appellant for murder as entered by the trial court and confirmed by the Court of Appeal.
Ratio Decidendi / Principles
CRIMINAL LAW — Defences — Insanity — Burden of Proof “Where an accused pleads insanity, the onus is on him to produce evidence of insanity. In the instant case the onus was on the appellant to establish insanity. See Udofia v. The State (1981) 11-12 SC 49.” Per Katsina-Alu, JSC, in Ani v. State (2002) NLC-3152001(SC) at p. 2; Paras B–C.
CRIMINAL LAW — Defences — Insanity — Elements to Establish “In order, therefore, to establish the defence of insanity, the defence must first show that the accused was at the relevant time, suffering from either mental disease or from a ‘natural mental infirmity.’ Then it must be established that the mental disease, or the natural mental infirmity as the case may be, was such that, at the relevant time, the accused 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.” Per Katsina-Alu, JSC, in Ani v. State (2002) NLC-3152001(SC) at p. 3; Paras D–E.
CRIMINAL LAW — Defences — Insanity — Absence of Motive “Mere absence of any evidence of motive for a crime is not sufficient ground upon which to infer insanity. See R. v. Ashigifuwo (supra).” Per Katsina-Alu, JSC, in Ani v. State (2002) NLC-3152001(SC) at p. 5; Paras A–B.
CRIMINAL LAW — Defences — Insanity — Relevant Circumstances “In insanity cases, the Judge must consider the behaviour of the accused at the time of the killing as well as after the killing. See Kure v. The State (1988) 1 NWLR (Pt. 71) 404; Ishola Karimu v. The State (1989) 1 NWLR (pt.96) 124 SC; (1989) 1 SC 121 at 134.” Per Katsina-Alu, JSC, in Ani v. State (2002) NLC-3152001(SC) at p. 5; Paras D–E.
CRIMINAL LAW — Defences — Insanity — Presumption of Sanity “Section 27 of the Criminal Code Law of the now defunct Bendel State of Nigeria applicable to Edo State provides that 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. Accordingly, there is no duty on the prosecution in criminal cases to establish what the law presumes in its favour, that is to say, the sanity of an accused person. On the contrary, where an accused person pleads insanity or insane delusion as a defence to a criminal prosecution, there is a duty and the onus is on him to rebut this primary presumption of law as to his sanity and to establish his insanity or insane delusion as the case may be within the context of section 28 of the criminal code.” Per Iguh, JSC, in Ani v. State (2002) NLC-3152001(SC) at p. 10; Paras D–E.
CRIMINAL LAW — Defences — Insanity — Standard of Proof “This burden on the accused to prove his insanity, however, is merely as in civil cases, that is to say, on the balance of probability or the preponderance of evidence. See R. v. William Echem (1952) 14 WACA 158, R. v. Matthew Onakpoya (1959) SCNLR 384; (1959) 4 F.S.C. 150, Emeryl v. The State (1973) 6 S.C. 215 at 216.” Per Iguh, JSC, in Ani v. State (2002) NLC-3152001(SC) at p. 11; Paras B–C.
CRIMINAL LAW — Defences — Insanity — Question of Fact “The law is settled that insanity is primarily a question of fact to be determined by the trial court which ought to take into consideration each and every admissible piece of evidence tendered before it, including medical evidence, where available, together with the whole of the facts and surrounding circumstances of the case, particularly such vital facts like the nature of the killing, the conduct of the accused before, at and immediately after the killing and any past history of mental abnormality of the accused.” Per Iguh, JSC, in Ani v. State (2002) NLC-3152001(SC) at p. 11; Paras E–A.
Orders of Court
The appeal is dismissed. The conviction and sentence of the appellant by the trial court as confirmed by the Court of Appeal are hereby affirmed.
APPEARANCES
Counsel for the Appellant(s)
Pat Onegbedan, Esq.
Counsel for the Respondent(s)
Richard Otaigbe Irenlen, Esq.
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY ALOYSIUS IYORGYER KATSINA-ALU, J.S.C. (DELIVERING THE LEAD JUDGMENT):)
This is an appeal from a conviction for murder. The defence raised at the trial was that of insanity. The learned trial Judge held that the defence of insanity failed. The appellant’s appeal to the Court of Appeal was dismissed. She has further appealed to this court.
The facts of this case are not in dispute. The appellant on the morning of 1/3/88 left her house and went to the house of PW3 Charity Ani whom the appellant described as “my friend.” She met PW2 and the deceased children at home. On inquiry about PW3 and her husband, the children told the appellant that their parents had gone to the farm. Upon hearing this, the appellant went to a nearby mechanic workshop and picked up an iron rod and returned to the house of PW3. The appellant first attacked Peter aged 5 years with the iron rod. While Peter cried in pains he told Amoge aged 4 years to run for safety.
P.1
The appellant hit Peter on the head with the iron rod several times until he died. Next, the appellant pursued Amoge to a house where she took cover under a bed. The occupant of the room on seeing the appellant, showed the appellant where Amoge was hiding. The appellant then dragged Amoge out from under the bed. She hit Amoge repeatedly with the iron rod until she died. Thereafter the appellant chased PW2 who ran to the motor park for help. When the appellant saw a policeman (PW4) she ran. PW4 however chased her, caught up with her and arrested her and took her in for questioning. That was when she made exhibit B confessional statement to the police.
The lone issue for determination raised by the appellant is whether or not the lower court was right in affirming that the defence of insanity did not avail the appellant.
Every person is, unless the contrary is proved, presumed by law to be sane, and to be accountable for his actions. But if there is an incapacity, or defect of the understanding, as there can be no consent of the will, the act is not punishable as a crime. Whether the accused was sane or insane in the legal sense at the time when the act was committed is a question of fact to be decided by the trial Judge and not by medical men however eminent, and is dependent upon the previous and contemporaneous acts of the accused. See R. v. Revitt, 34 Cr. App. R 87.
Where an accused pleads insanity, the onus is on him to produce evidence of insanity. In the instant case the onus was on the appellant to establish insanity. See Udofia v. The State (1981) 11-12 SC 49. Although plainly there was no apparent motive for the gruesome murder, the law is that mere absence of any evidence of motive for a crime is not sufficient ground upon which to infer mania see R. v. Ashigifuwo 12 WACA 389.
P.2
The absence of motive is at most a matter to be taken into consideration when there is no other evidence indicative of insanity rather than the opposite –Â Ayinde v. The Queen (1963) 2 SCNLR 362; (1963) 1 All NLR 393.
It is to be observed that the law on the subject to which the court must address its mind is section 28 of the criminal code. The section provides that a person, “is not criminally responsible for an act ……if at the time of doing the act…..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 know that he ought not to do the act ”
In order, therefore, to establish the defence of insanity, the defence must first show that the accused was at the relevant time, suffering from either mental disease or from a “natural mental infirmity.” Then it must be established that the mental disease, or the natural mental infirmity as the case may be, was such that, at the relevant time, the accused 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.” See R. v. Omoni 12 WACA 511.
So much for the law.
I now turn to the application of the law to the facts. The defence of the appellant at her trial was, I need hardly say, simply one of insanity. The defence called certain witnesses. The first was Reuben Osahon consultant and psychiatrist of the psychiatrist hospital Benin city. The sum total of his evidence is that “from the history I have given and from the examination of the accused person there was no doubt that she was suffering from depressive illness.”
The second witness was Maria Enefome Urefe (Mrs.), a pharmacist and technician at the prison clinic. She testified inter alia:
“When I tried to interview the accused person she was unable to say reasonable thing and was incoherent, accused person was restless…”
P.3
The appellant herself gave evidence in her defence. Her evidence, in part, reads:
”The mother of the deceased told me that she will revenge on the husband but I advised the mother of the deceased PW3 to live in harmony with husband despite their misunderstanding. Thereafter the PW3 informed me that she has some medicine she wanted to make so that the husband will like her, the PW3 invited me to accompany her to the place of the native doctor but I refused on the ground that I had never visited a native doctor since I was born. The PW 3 said that I should not inform the husband of her mission, due to much pressure I agreed to accompany the PW3Â Â who said that I should accompany her to the place of the native doctor at ring road, Benin city. Thereafter when PW3Â Â took me to the place of the native doctor at ring road it turned out that the person is an Hausa man. When I entered the latter person’s place PW3Â Â said that I am the person she has been telling the Hausa man. There the Hausa man brought out two chairs and asked myself and PW3 to sit down and I sat near the juju. There they told me to sit down and they will put something in my body so that the medicine they will put in my body will make the medicine they will do for PW3 not to affect me. Thereafter the Hausa medicine man carried a juju and put it on my head, when this medicine was put on my head I felt very different, I could not talk again and even the way I felt I wanted to shout but could not shout; but thereafter the Hausa man brought out a razor and put some cuts on my hands and applied the medicine. Thereafter I became unconscious of myself and could not even remember what the Hausa man did to me, since that date I did not know how I left the place of the medicine man and returned to my residence. It was after I was put in prison custody and I was being treated that I came to know myself.”
P.4
It is to be observed that the alleged visit to the native doctor took place three months before the commission of this crime.
As I have already indicated, there was no apparent motive for the gruesome murders of the innocent children. But it was argued on behalf of the appellant that the court should have inferred insanity or some mental disorder from the fact that there was no motive for the murders. But as I have already stated, the law on this point is now settled. Mere absence of any evidence of motive for a crime is not sufficient ground upon which to infer insanity. See R. v. Ashigifuwo (supra).
But let us examine the evidence a little more closely. It is to be borne in mind that in insanity cases, the Judge must consider the behaviour of the accused at the time of the killing as well as after the killing. See Kure v. The State (1988) 1 NWLR (Pt. 71) 404; Ishola Karimu v. The State (1989) 1 NWLR (pt.96) 124 SC; (1989) 1 SC 121 at 134.First, the events prior to the murders. PW2 Teresa Ogbuani was an eye witness to the killing of her little brother and sister. In her evidence-in-chief she testified thus:
“On 1st day of March, 1988 my father Mr. Ogbuani went to the farm so also was my mother. On the same day the accused came to our house and asked for my father and I told her that my father had gone to the farm so also was my mother, thereafter the accused went to the main road and look to both end of the road to ascertain if any person was coming – during this period every person and our neighbours had gone to the farm leaving only small children at home.
P.5
After accused had ascertained that nobody was coming to our house she went to a mechanic shed and accused pick up an iron rod thereafter accused hit the iron rod, after the accused locked three of us inside the house, myself, Amoge and Peter. As we were knocking on the door after the accused locked us inside the house an old woman who owned the house came and opened the door for three of us. Thereafter three of us earned food and began to eat outside our residence, whilst there the accused came to us, pushed the deceased Peter Ogbuani down and used the piece of iron rod she was holding to hit him on the head several times. The deceased cried as he was being hit on the head by the accused, and told Amoge Ogbuani to run but the accused person after killing Peter pursued Amoge as she was running she entered the latter woman’s house as she was pursuing Amoge, the woman showed Amoge the deceased to the accused who dragged Amoge out from under the bed and used the piece of iron she was holding to kill the deceased Amoge in the woman’s house, after accused had killed Amoge I began to run ,and the accused began to pursue me. I ran to the motor park and went and called some person at the park who pursued the accused and caught her. When those persons caught the accused they held her and used some rope to tie her hand. The accused person was later taken away by a policeman.”
PW 4 sgt. Joseph Irumudimam was the IPO. In his evidence, he said:
“Immediately the accused saw me she began to run away, I pursued the accused and arrested the accused person with the iron rod. I later took the accused to the Esigie police station for investigation.”
Under cross-examination this witness said:
“I was wearing my police uniform and when the accused sighted me she began to run.”
In his judgment the learned trial Judge considered the evidence on this issue and held that the defence of insanity was not established.  He rejected it.
P.6
The court below affirmed this decision.
The first point to note is that when the appellant came to the home of PW3, she enquired about the whereabouts of the parents of the children. PW 2 told her that their father and mother had gone to the farm. Secondly on hearing that the parents were not home, the appellant went to a mechanic workshop up the road, picked up an iron rod and returned to the house. That was when she savagely killed the children. It must be remembered that in the case of little Amoge, she ran to a neighbour’s room and hid under the bed. The appellant pursued her, dragged her out from under the bed, took her outside and beat her to death with the iron rod. When she finished with her, she chased PW 2 who ran to the motor park. It is instructive that the appellant did not attack any other child or person. She confined her attack to the children of PW 3. Surely if she ran amok  as it has been suggested then she would have attacked anybody in her way. I am clearly of the view that this was a case of premeditated murder.
I am strengthened in this view by exhibit B, the statement of the appellant made on 1/3/88 the day of the incident. It was a confessional statement. It is coherent. And the events are stated in their chronological order. It is important to note that the appellant herself provided the motive for the murders. She stated in exhibit that she killed the children because their mother (PW 3) used her (the appellant) for juju in order to make money.
From the evidence before the trial court, it will be seen clearly that the appellant was not, at the time of the commission of the offence, in such a state of either mental disease or natural mental infirmity as to deprive her of the capacity to control her actions: See R. v. Omoni 12 WACA 511.
P.7
The evidence of the state of mind of the appellant after the killing was manifest in exhibit B. This is a confessional statement she made to the police after her arrest soon after the commission of the crime on 1/3/88. Exhibit B is coherent. It sets out the sequence of events of that fateful day. What is more, the appellant was still at the scene of crime when PW 4 a policeman arrived. When the appellant saw him, she ran away. This is evidence that she knew she had done wrong. I have therefore no doubt in my mind whatsoever that the appellant both understood what she was doing and knew that she ought not to have done it. In my judgment the behaviour of the appellant immediately before and immediately after the killing did not suggest any insanity on her part. The defence of insanity was rightly rejected by the two courts below. See Madjemu v. The State (2001) 9 NWLR (Pt.718)349.
In the circumstances, this appeal is dismissed. The conviction and sentence are hereby affirmed.
Concurring Opinion(s)
— A. B. WALI, J.S.C.:
I have had the advantage of a preview in draft of the lead judgment just delivered by my learned brother Katsina-Alu, JSC. I entirely agree with him that the appeal lacks merit and should be dismissed. Accordingly I too dismiss it. The conviction and sentence passed on the appellant by the trial court and the lower court is hereby affirmed.
— MOHAMMED, J.S.C.:
I have had the advantage of reading the opinion of my learned brother. Katsina-Alu. JSC in draft and I agree entirely with him that this appeal is without merit.
I also agree that the defence of insanity had been made up after the appellant was arrested. In the evidence, PW2 told the trial court that the appellant just asked the children about the whereabout of their parents and that when she knew that they had both gone to the farm she looked at both ends of the road and came back and locked the children inside the house.
P.8
An old woman who heard the children knocking came and opened the door. The children came out, as they were eating their food the appellant came with an iron rod and viciously attacked and killed Peter Ogbuani. Thereafter she pursued Amoge and reached her inside a house under a bed. She brought her out and killed her with the iron rod. PW2 began to run. She was pursued by the appellant towards the motor park. A policeman who gave evidence as PW4 was attracted to the scene. When the appellant saw him she began to run. She was later arrested.
This cannot be the behaviour of a person suffering from mental derangement. In all cases where a plea of insanity is raised as a defence it is very material to consider the circumstances. Which have preceded, attended and followed the crime. It is very important to find out
(1) whether there was preparation for the act,
(2) whether it was done in a manner which showed a desire for concealment,
(3) whether after the crime the offender showed consciousness of guilt and made efforts to avoid detection and
(4) whether after arrest the offender offered false excuses and made false statements.
The appellant prepared for her act when she asked the children of the whereabout of their parents. She looked at both ends of the road before she came and locked the children inside the house. After the crime when she saw a policeman she tried to run away. All these have established that the appellant was aware of the nature and quality of the act she was doing. The antecedent and subsequent conduct of the appellant is relevant to show the state of her mind at the time she committed the offence. I therefore agree that she was rightly convicted for the murder of the two children.
P.9
For these reasons and fuller reasons in the judgment of my learned brother, Katsina-Alu, JSC, this appeal has failed. It is dismissed. I affirm the decisions of the two courts below.
— I. IGUH, J.S.C.:
I have had the privilege of reading in draft the judgment just delivered by my learned brother, Katsina-Alu, JSC and I am in full agreement with the reasoning and conclusion therein reached.
The facts of the case have been fully set out in the leading judgment and I do not intend to recount them all over again. It suffices to state that the single issue for determination in this appeal is whether or not the court below was right in affirming the decision of the trial court to the effect that the defence of insanity did not avail the appellant.
Section 27 of the Criminal Code Law of the now defunct Bendel State of Nigeria applicable to Edo State provides that 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. Accordingly, there is no duty on the prosecution in criminal cases to establish what the law presumes in its favour, that is to say, the sanity of an accused person. On the contrary, where an accused person pleads insanity or insane delusion as a defence to a criminal prosecution, there is a duty and the onus is on him to rebut this primary presumption of law as to his sanity and to establish his insanity or insane delusion as the case may be within the context of section 28 of the criminal code. See Nwoye Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565 SC; (1988) 2 S.C. (Pt. 2) 369 at 373 – 374, Arisa v. The State (1988) 3 NWLR (Pt. 83) at 388 etc.
The defence of insanity is provided for in section 28 of the criminal code.
P.10
For the defence of insanity to succeed, however, the accused must establish that he was at the time of the commission of the offence suffering either from “mental disease” or “natural mental infirmity” and that his condition was such that at the relevant time, he was deprived of capacity:
(1) to understand what he was doing or
(2) to control his actions or
(3) to know that what he was doing was wrong or that he ought not to do the act or make the omission for which he stands trial.
See R. v. Omoni (1949) 12 WACA 511 at 513, Sanusi v. The State (1984) 10 S.C. 166, Arum v. The State (1979) 11 S.C 91, Foluso Oladele v. The State (1993) 1 NWLR (Pt. 269) 294 at 307 etc. This burden on the accused to prove his insanity, however, is merely as in civil cases, that is to say, on the balance of probability or the preponderance of evidence. See R. v. William Echem (1952) 14 WACA 158, R. v. Matthew Onakpoya (1959) SCNLR 384; (1959) 4 F.S.C. 150, Emeryl v. The State (1973) 6 S.C. 215 at 216.  Although medical evidence is usually of great assistance in the establishment of insanity, a Judge may none the less make up his mind on the issue inspite of such expert
Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked
Referenced Judgments
1. Arisa v. The State (1988) 3 NWLR (Pt. 83) 388 — cited at p. 10; Paras D–E.
2. Arum v. The State (1979) 11 S.C 91 — cited at p. 11; Paras B–C.
3. Ayinde v. The Queen (1963) 2 SCNLR 362; (1963) 1 All NLR 393 — cited at p. 2; Paras D–E.
4. Benson Madugba v. Queen (1958) SCNLR 17, (1958) 3 FSC 1 — cited at p. 11; Paras C–D.
5. Emeryl v. The State (1973) 6 S.C. 215 — cited at p. 11; Paras B–C.
6. Foluso Oladele v. The State (1993) 1 NWLR (Pt. 269) 294 — cited at p. 11; Paras B–C.
7. Ishola Karimu v. The State (1989) 1 NWLR (pt.96) 124 SC; (1989) 1 SC 121 — cited at p. 5; Paras D–E.
8. James Anyim v. The State (1983) 1 SC NLR 370 — cited at p. 11; Paras E–A.
9. Karimu v. The State (1989) 1 NWLR (Pt. 96) 140 — cited at p. 11; Paras E–A.
10. Kure v. The State (1988) 1 NWLR (Pt. 71) 404 — cited at p. 5; Paras D–E.
11. Madjemu v. The State (2001) 9 NWLR (Pt.718)349 — cited at p. 8; Paras A–B.
12. Mboho v. The State (1966) 1 All NLR 69 — cited at p. 11; Paras C–D.
13. Nwoye Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565 SC; (1988) 2 S.C. (Pt. 2) 369 — cited at p. 10; Paras D–E.
14. Oden Ikpi v. The State (1976) 12 S.C. 71 — cited at p. 11; Paras C–D.
15. R. v. Ashigifuwo 12 WACA 389 — cited at p. 2; Paras C–D and p. 5; Paras A–B.
16. R. v. Inyang 12 WACA 5 — cited at p. 11; Paras E–A.
17. R. v. Matthew Onakpoya (1959) SCNLR 384; (1959) 4 F.S.C. 150 — cited at p. 11; Paras B–C.
18. R. v. Ogor (1961) 1 SCNLR 121; (1961) 1 All NLR 70 — cited at p. 11; Paras C–D.
19. R. v. Omoni 12 WACA 511 — cited at p. 3; Paras D–E and p. 7; Paras D–E.
20. R. v. Revitt 34 Cr. App. R 87 — cited at p. 2; Paras A–B.
21. R. v. William Echem (1952) 14 WACA 158 — cited at p. 11; Paras B–C.
22. Sanusi v. The State (1984) 10 S.C. 166 — cited at p. 11; Paras B–C.
23. Udofia v. The State (1981) 11-12 SC 49 — cited at p. 2; Paras B–C.
Referenced Statutes
1. Criminal Code Law of Bendel State of Nigeria — section 27 — cited at p. 10; Paras D–E; section 28 — cited at p. 3; Paras C–D and p. 10; Paras D–E.