1976-LCER-1102-SC
Other Citations
IN THE SUPREME COURT OF NIGERIA
On Friday, the 17th day of December, 1976
SC.155/1976
Before Their Lordships
GEORGE SODEINDE SOWEMIMO….. Justice, Supreme Court
CHUKWUNWEIKE IDIGBE….. Justice, Supreme Court
ANDREWS OTUTU OBASEKI….. Justice, Supreme Court
Between
ODEN UKPI
Appellant
And
THE STATE
Respondent
HELD:
Appeal Accordingly dismissed
RATIO DECIDENDI:
CRIMINAL LAW AND PROCEDURE – Cause of death – certificate of a medical officer in proof of – Weight to be attached to – Whether trial judge is bound to act upon
C. IDIGBE, J.S.C. (Delivering the Lead Judgment): The question in this appeal is whether the provisions of section 223 of the Criminal Procedure Law Cap 31 Vol. II Laws of Eastern Nigeria 1963 edition (applicable in the Cross River State of Nigeria) have been duly complied with and whether there has not been a miscarriage of justice. The appellant was on the 25th day of March, 1974, convicted of, and sentenced to death for, the murder of Eteng Obeten at Mkpani Obubra by the High Court of Cross River State holden at Calabar.
Eight witnesses gave evidence in support of the case for the prosecution which, shortly put was this:
The deceased, and the accused on 11th May, 1974, went to the house of a mutual friend, one Ibor Ikpi, on his invitation for entertainment which went on until late in the night. After the entertainment the deceased was found lying dead in front of the house of Omini Ibor Usang (PW1) with matchet cuts on the face and on the head; his right hand was completely severed from the wrist.
P.1
Following a report made to the Police Authorities, police constable Sunday Ekpenyong (PW6) went to the scene – which was at a verandah in the house of Ibo Ikpi – and found the appellant sitting quite close to the corpse of the deceased. The appellant in reply to a question by PW6 indicated a spot from which PW6 produced a matchet which the appellant said he used in inflicting injuries on the deceased. PW3 gave eye witness account of the incident; he had seen the appellant attack the deceased the previous night soon after the entertainment at the house of Ibor Ikpi and made a report to PW1 who went and lodged a complaint at the nearest police station that same night.
The police, however, did not come on the scene until the next morning 12th May, 1974. In his written statement to the police (Exh. 4) the appellant admitted attacking and killing the deceased with a matchet; in the same statement he referred to instances in the past when the deceased not only refused to help him out of financial difficulties but referred to members of his (appellant’s) tribe as generally poor and uncivilized. In addition to the foregoing statements the appellant referred rather vaguely to insults and abuses he received from the deceased earlier on the day of the incident. In the evening he went to his house and took the matchet with which he attacked and killed the deceased.
The learned trial judge who was impressed with the principal witnesses for the prosecution was satisfied that the appellant killed the deceased; he considered the defence of provocation and, quite rightly in our view, was satisfied that it was not available to the appellant in the circumstances of this case. Dealing with this aspect of the case the learned judge observed:
“The accused does not say exactly what time he and the deceased exchanged words or when the deceased cursed or abused him. He said in the evening at 7 p.m. he lay in wait for the deceased and attacked him with Exhibit 6 (the matchet). From this piece of evidence, it is my view that there was sufficient cooling time for passion to subside and reason to supervine.
Finally, the nature of the injuries as described by (P.W.2) the medical officer cannot by any stretch of imagination be said to bear any reasonable relation with the provocation ………..” (brackets and underlining supplied by the court).
We were therefore satisfied that on the facts the decision of the trial court was justified.
P.2
However, in the course of the trial it appears that learned counsel who appeared in the court below for the appellant had told the learned trial judge that the appellant had on occasions while standing trial behaved abnormally and applied to the court to observe the provisions of section 223 of the Criminal Procedure Law aforesaid, and the following notes appear on the record of proceedings:
“The court has ordered that the accused be medically certified before the next hearing ………”
At a later date however the court carried out investigations on the appellant’s fitness to continue standing trial and, therefore, received the evidence of James Samuel Williams George (as P.W.1 in this special inquiry), PW1 was not a medical officer but a “higher Psychiatrist Superintendent” who testified as follows:
“I hold brief for the Psychiatrist at Mental and Nervous Disease Hospital Calabar. I know the accused. I have observed him for six months ….. It is within the schedule of my duties to observe and report on all court cases referred to me. I have done so on the accused …… I have observed the accused on more than three occasions …….. I observed that at times the accused spoke well and at other times he spoke irrationally.
My second and last interview showed the same result except that in the last one he appeared evasive and exhibited some paranoid ideas. I am of the opinion that the accused cannot defend himself well in a charge of criminal offence ……..”
A report of certificate issued by this witness (PW1) was received in evidence as Exh. 3, part of it reads:
“He (meaning the appellant) says he comes from Mkpari in Ugep ….. He went to school and read up to elementary III; presently he is jobless. On matters relating to his mental health, he does not volunteer information readily and one gets the impression that he is concealing facts surrounding the charge against him ………”
P.3
In his ruling at the end of this special inquiry or investigation the learned trial judge observed:
“Dr. Eyo (counsel for the accused at the trial) told the court he suspected that the accused was not fit to stand trial. The court then adjourned trial ….. and ordered that the accused be medically examined as to his fitness to stand trial”.
“On 13th March, 1975 the court took evidence from …… James Samuel Williams George ….. I have considered the evidence in this inquiry in the light of the whole circumstances of this case. A careful study of Exhibit 3 does not convince me that the accused is of unsound mind and incapable of making his defence. The fact that according to the expert evidence he cannot defend himself well does not mean that he is incapable of making his defence …….
It is to be observed that the accused made a clear and intelligible statement to the police on the part he played in the commission of the crime. It is to be observed also that the accused pleaded not guilty on the day the case came up for mention in court for the first time. I am unable to find from my observations of the accused in the dock any change in his behaviour from that day up to the present.
I therefore hold that the accused cannot employ self induced abnormalities to evade being tried for an offence of which he may or may not be found guilty …. The accused is in my opinion and observation capable of making his defence. The trial shall henceforth proceed …. (Underlining supplied).
Learned counsel for the appellant has submitted that it was improper for the trial court to receive and rely, for the purposes of an inquiry under Section 223 of the Criminal Procedure Law aforesaid (CPL), on any evidence short of that of a medical officer. The section he submitted enjoins the court to act only on the evidence of a qualified medical officer. That was not the case: here, the court had relied on Exhibit 3 – a certificate (not of a medical officer but) of a Psychiatrist Superintendent on whose oral testimony the court also relied.
The inquiry therefore, must be pronounced invalid or at least, this court must send the case back for a re-hearing on the inquiry under the section of the C.P.L aforesaid since it is difficult, in the circumstances, to hold that there has not been a miscarriage of justice.
Now, Section 223(1) provides:
P.4
“When a judge holding a trial or a magistrate having a trial or an inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence the Judge, Jury or magistrate, as the case may be shall in the first instance investigate the fact of such unsoundness of mind.
(2) such investigation may be held in the absence of the accused person …. and the court may receive as evidence a certificate in writing signed by a medical officer to the effect that such a person is in his opinion of unsound mind and incapable of making his defence ….. or the court may, if it sees fit, take oral evidence from a medical officer on the state of mind of such accused person”.
We pause to observe that there is no evidence (express or implied) that this particular “Higher Psychiatrist Superintendent” at the Calabar Mental and Nervous Disease Hospital (PW1 in the special inquiry) is not a qualified medical officer; for the purpose of this submission, however, we will assume that he is not a medical officer but that as the evidence suggests he is qualified, at least, in experience in the field of examining and reporting on mental conditions of “persons of unsound mind”.
There is at least no evidence or suggestion, on record, to the contrary. Having made that observation, we must point out firstly, that a trial judge is not bound to direct an issue under section 223 CPL merely (as it appears to be so in these proceedings) because defence counsel asks for it.
There must be some basis for the trial of such an issue; although if there is such a basis it is immaterial where the information as to the inability of an accused to stand trial comes from – see R. v. Dashwood (1943) 1 KB 1. (2) The investigation must, as here, be taken up by the trial court as soon as such question arises and before the trial proceeds further (see R. v. Ogor (1961) 1 All NLR 70); and (3) when taken up there must, as here, be an express finding by the trial court on the issue (see Mfon Udo Mboho v. The State (1966) 1, All N.L.R. 69). (4) For the purpose of arriving at its conclusion in a trial under section 223 CPL the court is not bound by the certificate of a medical officer although, naturally, great weight ought to be attached to it. (see Benson Madiugba v. The Queen (1958)3 FSC 1 at 2 per de Lestang F.J.); and the trial judge who is completely seized of the entire proceedings is entitled, as here, to form his opinion, (from his own observations of the accused before him that he (the accused), was simulating unsoundness of mind or “play-acting” or “playing the fool” (notwithstanding a medical certificate to the contrary) – (For a comparative situation see Paul v. The State (1964)1 All NLR 146 per Bairamian, JSC. at 150).
P.5
Accordingly, having carefully gone through the records and listened to the argument of learned counsel for the appellant, we were satisfied that the learned trial judge had enough evidence – the Certificate Exhibit 3 and oral evidence of Mr. George (PW1 at the special inquiry) notwithstanding to justify his conclusion that the appellant (as in Eledan (supra) was “play-acting” and simulating unsoundness of mind and that he was quite capable of standing, and did ably stand, his trial. That ground of appeal accordingly failed; and as we were satisfied that the overall evidence before the trial court justified its verdict and decision we had no difficulty in dismissing this appeal immediately upon termination of the argument of learned counsel for the appellant on 9th December, 1976.
P.6
Counsel
Mr. Funmi Jibowu…..For Appellant
AND
E. B. James (Principal Counsel, Cross River State)…..For Respondent