insanity M.A. SANUSI V THE STATE (1984) LPELR-3007(SC) OPUTA JSC - Proof of insanity provides a complete answer to the charge as the accused will not be "criminally responsible for the act". That is one reason why our former verdict of "Guilty but Insane" sounds ridiculous and inappropriate. It is contradictory. How can an accused person who is by law deemed not to be "criminally responsible for the act" be at the same time criminally guilty of committing the offence of which that same act forms an essential ingredient? After the attack on Queen Victoria in 1883 the British Parliament passed the Trial of Lunatics Act 1883 and section 2 (1) of that Act provided for the special verdict of Guilty but Insane. Our law did not provide for any such special verdict. Under our own law the proper verdict should be:- "Not guilty on the ground of insanity." Reed, J. made this point in Reg v Yayiye of Kadikadi (1957) N.R.N.L.R. 207. Also in Rex v Ashigifuwo (1948) 12 WACA 389 at p.391 the correct order was substituted by the West African Court of Appeal. There the appellant was "acquitted of the offence charged on the ground of unsoundness of mind at the time at which he committed the act". In Ted Kayode Adams v D.P.P. of the Federation (1966) N.M.L.R. 111 at p.114 this Court held that - the words "A person is not criminally responsible" used in section 28 of the Criminal Code "imports that he is not guilty of the offence charged and must be acquitted". Insane delusions stand on an entirely different footing. In the case of delusions the accused "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." In insanity the accused does not know what he is doing etc. In delusions the accused knows what he is doing although he is living in an imaginary world of make believe - not in the real world. Oputa Jsc points out the difference in the verdict in a case of insanity and a case of insane delusion. whereas the law provides for a verdict of not guilty when insanity is made out, for insane delusion, the accused is criminally liable 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. Thus it is wrong to render a verdict of "Guilty but insane" "Now coming back to the appeal before the Court, there is nothing on record upon which the defence of insanity or insane delusion can be successfully argued. He did not therefore
raise himself the issue of insanity. But the court is bound to consider any defence, which on the totality of the evidence led, is available to the appellant. But before considering what evidence there is in this case indicating that the appellant was insane, certain radical and fundamental points regarding the defence of insanity will have to be borne in mind and kept in view:- 1. The law presumes every person, including any person accused of crime, sane until the contrary is proved... (S.27 of the Criminal Code). 2. The prosecution does not set out to prove what the law presumes in its favour. 3. An accused person who raises insanity as his defence has the onus of proving such insanity cast on him. The standard of such proof is not as high as that cast on the prosecution. It is not proof beyond reasonable doubt but it is proof of reasonable probability, proof sufficient to create a reasonable doubt in the mind of a fair minded jury as to the sanity of the accused. 4. Insanity is a blanket term embracing a considerable variety of mental abnormalities, mental infirmities, neurosis and psychosis. 5. To constitute a defence the mental condition relied on should be such that could and did deprive the accused of capacity: 1. To understand what he was doing; or, 2. To control his action; or, 3. To know that he ought not to do the act or make the omission complained of as constituting the actus reus of the offence charged. The important thing is this lack of capacity. At the root of the defence of insanity is the fact that by reason of his mental condition the act of the accused cannot really be held to be the product of the free exercise of his will and he is therefore deemed incapable of forming the requisite intent. Learned counsel for accused persons setting up insanity as a defence will appreciate that they have to work very hard and place before the court credible evidence tending to establish this incapacity. The essential thing about insanity is that it deprives the accused person of capacity in three different respects viz. capacity 1. To understand what he was doing; or, 2. To control his action; or, 3. To know that he ought not to do the act or make the omission complained of as constituting the actus reus of the offence charged. it is the work of the defense to lead evidence to establish this incapacity or the defense will fail OBASEKI JSC The running down of a person by the use of such descriptive words as a eunuch and a good for nothing man or an economic failure, etc. does not under our law excuse the offence of murder or warrant the taking of the life of the deceased. A man may be
eccentric or capricious or prone to flights of violent temper, yet, he may be perfectly sane and normal. The mere eccentricity is not enough to constitute mental unsoundness, nor great caprice nor violence of temper but that there must be an aberration of reason. See Dew v. Clark (1836) 3 Addams 97. See Words & Phrases Legally Defined Vol. 2 p. 40 1969 Edition. Delusion is properly defined as "the belief of things as realities which exist only in the imagination of the patient." The frame or state of mind which indicates his incapacity to struggle against such an erroneous belief constitutes an unsound frame of mind. See Warring v. Warring (1848) 6 Moo PCC 341 per cur at pp. 353, 354. As this defence and that of insanity keep on rearing their heads in criminal matters prosecuted before the lower courts, this Court has recently examined the defences, nature and the extent of insanity and insane delusion which will relieve an accused person of criminal responsibility in the following three cases: (1) Ngene Arum v. The State (1979)11 S.C. 91 at 94 (2) Egbe Nkanu v. The State (1980) 3-4 S.C. 1 at 11-12; and (3) Udofia v. The State (1981) 11-12 S.C. 49. In Ngene Arum v. The State (supra), Fatai- Williams, C.J.N. at page 94 said: "But if his delusion was that the man had inflicted a serious injury to his character or his fortune, and he then kills him in revenge for such supposed injury, he would be liable to punishment for murder." The law of the land, i.e. the Nigerian law, places no onus on an accused person to make any statement to the police or to give any evidence in court on his own behalf or in his own defence. [See section 32(2) and section 33(10) of the 1979 Constitution]. But if an accused person decides to contend that he is insane or that he suffers from insane delusions, then he has the duty to rebut the presumption of law which regards all persons sane until the contrary is proved. See section 27 of the Criminal Code, Laws of the Federation of Nigeria Cap 42 Vol. 2. This section reads: "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." It is this section that directly places on the person who contends that he is insane the onus of establishing that fact - the state of insanity. If he succeeds, he will under section 28 of the Criminal Code be relieved of criminal responsibility. To succeed, he must establish, by a preponderance of evidence necessary to discharge the civil onus of proof, that he is in such a state of mental disease or natural mental infirmity as to deprive him (1) of capacity to understand what he was doing, or (2) of capacity to control his actions, or (3) of capacity to know that he ought not to do the act or make the omission. The evidence that the appellant was treated at Aro Mental Hospital in the years 1970 and 1974 is, in my view, insufficient to establish the state of mental disease or natural mental infirmity required by section 28 of the Criminal Code. The defence suffers also from the fact that there is a total absence of evidence to establish or prove the very important fact that the appellant was deprived. (1) of capacity to understand what he was doing, or
(2) of capacity to control his actions, or (3) of capacity to know that what he was doing was wrong. Contrary to the contention of counsel, the evidence on record showed that at the particular time, the appellant had capacity to know what he was doing and that he had capacity to control his actions. He did not run amok. He went straight for his mother and no one else, dealt with her violently as he desired and escaped. The evidence also showed that he knew that what he was doing was wrong. His escape from arrest is a direct reaction to this awareness. NOTE: That A man may be eccentric or capricious or prone to flights of violent temper, yet, he may be perfectly sane and normal. The mere eccentricity is not enough to constitute mental unsoundness, and secondly that the fact that the accused was treated at Aro Mental Hospital in the years 1970 and 1974 is, in my view, insufficient to establish the state of mental disease or natural mental infirmity required by section 28 of the Criminal Code. It is a hard task for the defense to establish insanity even though proof is not beyond reasonable doubt but on the balance of probability. Ogbu v. State (1992) NWLR (Pt. 259) 255 Section 27 of the Criminal Code 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. Having regard to the above provision of our law, the prosecution has no duty to prove that the appellant was sane or insane. The onus is on the defence to establish the defence or plea. The standard of proof however is on the balance of probability. See Onyekwe v. The State (1988) 1 NWLR (Pt.72) 565 at 572-577, R. v. Wangara 10 WACA 236 and Loke v. The State (1985) 1 NWLR (Pt.1) 1. In order to establish the defence of insanity, it must be shown that:- (a) the prisoner was at the relevant time, suffering either from mental disease or from natural mental infirmity; (b) that the mental disease, or the natural infirmity was such that, at the material time, the prisoner was as a result deprived of capacity to understand what he was doing or control his actions or to know that he ought not do the act or make the omission. See R. v. Omoni 12 WACA 511 at 512 and Ngene Arum v. The State (1979) 11 SC 91 at 119. The evidence of the appellant and that of the P.W.2 as to his mental health are very thin
and hardly sufficient to prove the fact that at the relevant time, the appellant was suffering from either mental disease or natural mental infirmity. There was no evidence as to the past history of the accused or evidence as to his conduct immediately preceding the killing. There was also no evidence from prison warders who had the custody of the appellant and looked after him from the time he was arrested in September. 1980 till the time he testified in May, 1987. If the defence was going to rely on insanity, effort should have been made by them for necessary medical examination/observation by a medical officer or a psychiatrist to be carried out when the appellant was in custody awaiting trial. The defence took these for granted and hoped that a bare plea of insanity or insane delusion would do the magic. It might have been possible that the appellant was suffering from persecution mania. Unfortunately, this state of the mind which could be real and capable of leading a prisoner to commit similar offence is unknown to our criminal jurisprudence at least for now. - OGWUEGBU JSC The type of evidence which could be sufficient to establish insanity is suggested by Ogwuegbu JSC to include past history of the accused or evidence as to his conduct immediately preceding the killing, also evidence from prison warders who had the custody of the appellant and looked after him from the time he was arrested till the time he testified. Note also the above suggestion that "If the defence was going to rely on insanity, effort should have been made by them for necessary medical examination/observation by a medical officer or a psychiatrist to be carried out when the appellant was in custody awaiting trial". And note also that the learned justice opined that "persecution mania which could be real and capable of leading a prisoner to commit similar offence is unknown to our criminal jurisprudence at least for now.