Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN AND MILLS-ODOI JJSC AND APALOO J
JUDGMENT OF MILLS-ODOI JSC
Mills-Odoi JSC delivered the judgment of the court. The appellant was convicted by a jury before Akiwumi J. sitting at the criminal session of the High Court held at Sekondi on 14 March 1963, for the murder of one Naejetey Okoshie, a school girl about nine years of age, at Apimanim village.
The appellant did not deny killing the young girl but he raised as a defence the issue of the state of his mind at the material time. The real contest between the state and the appellant therefore was upon the issue of the alleged insanity, and upon this the facts placed before the jury were as follows:
On the morning of 27 November 1962, for no reason which could be assigned, the appellant inflicted several severe cutlass wounds on Naejetey Okoshie, the deceased. No one witnessed the savage act of the appellant by which the deceased was hacked to death and the prosecution had to rely solely on the statement which the appellant made to the police, four days after the incident, confessing to the killing of the deceased and one other person. Indeed it was stated in evidence that the appellant was the guest of the deceased’s father and was fairly treated by him. The evidence further showed that on the morning of this fateful day, while the appellant and the deceased’s father were together drinking tea in the latter’s house, one Dick reported to them the death of a child in a hospital at Agona junction. The deceased’s father (Lion Okoshie) and Dick then left together for the hospital, leaving behind the appellant, the deceased’s grandmother and the deceased who was getting ready to go to school.
The deceased went to school but returned to the house shortly afterwards and collected three shillings from her grandmother the third prosecution witness to give to her teacher. She left with the money and the grandmother also left to visit the deceased’s sister who lived with her mother in a house behind that of the deceased’s father. As soon as she got to the house the appellant also came in; he was in a sweat and trembled violently. He said he was hungry; but food was not then ready. Suddenly the appellant raised up his right arm, shook it and said there was no time to waste. His left arm was at the time under the cloth he was wearing. He then left the house, ran to the road and started sobbing and saying that he was very hungry. The deceased’s grandmother and the deceased’s step mother who was in the house at the time
with the former gave chase to the appellant calling him to return to the house to have some food; but he ran into the bush and they lost sight of him.
The deceased’s grandmother and the step mother were both surprised at the odd behaviour of the appellant and wondered whether he was going mad.
The appellant ran from the bush into the house of one Essie Atta the fourth prosecution witness, a housewife, who was at the time washing her clothes. The evidence of this witness at the trial contained the following passage:
“When the accused rushed into the house . . . he looked very agitated and was looking about him. Then he looked at me and stared hard and I did the same, then he turned round and hurried out. It was a most disconcerting experience; I was frightened . . . The accused was in a sweat; he looked wild and looking from side to side.”
The deceased did not return to the village after the morning session so her grandmother became alarmed and she and the whole village began to look for her and one other girl. Eventually she was found dead and lying behind a building near a foot-path not far from her school. She had several severe cutlass wounds on her body which the medical officer who performed the post-mortem examination and gave evidence at the trial described as follows:
“On the body were deep incised wounds of one and half inches cutting the skull on the forehead side and reaching the brain matter, another cut on the right parietal region of the head and six inches long thus cutting the skull, there were five incised wounds of various lengths from six inches to two inches and almost parallel to each other on the right side of the face, behind the right ear over the mastoid region was a cut one and a half inches cutting the mastoid bone, five deep incised wounds on the right arm cutting through the upper bone in two places and fracturing the lower bone in one place. An incised deep wound on the left wrist cutting through the joint bone and a wound on the back of the left four fingers and one on the palm of the left
hand; . . . These injuries were caused by a sharp long heavy instrument like a cutlass. In my opinion the cause of death was the injury to the head cutting through the brain.”
In the afternoon of 1 December 1962 the appellant went to the police station at Axim and told Sergeant Owoo the eighth prosecution witness in the charge office that:
“He was a stranger and had come to the station to make a complaint, then he said that he would make his complaint at day-break then he changed his mind and said that he would make his complaint right then and before he did so he should be handcuffed.”
He then gave his name to Sergeant Owoo as Sergeant Bodje and told him that he “had killed persons at Apimanim near Agona junction.” As a result of a report which Sergeant Owoo had previously received concerning the appellant he detained him and handed him over to the police at Agona junction the same day.
After the appellant had been charged with murder and cautioned he made the following statement which the prosecution put forward as forming part of their case:
“I stay some place call Abesim doing cocoa work, James Oko and his wife Jerkpo. When I started the cocoa work and James see that the cocoa was plenty, because of that he used to be angry with me. Find medicine to kill me. I say that if I like money pass my head, I will die. So I gave the cocoa to him and ran to where Lion stay. Where I stay with James, this kind of iron I use to see for my chop from the food given to me by Jerkpo. All these be poison. At farm at Abesim I use to see snakes pass around me when I go to the cocoa farm. That make me fear, I run to Lion. I told Lion and papa Thomas the whole story and I tell them to help me for some medicine to help myself. Lion asked me the girl at Abesim who want punish me what be her
country name and I said Owirede in Nigeria. When I call Owirede name like that, Lion be angry because he and the woman from one place. Lion tell me say his place hot pass the place where I come from. Lion say by proverb that he get cow and a cat to chop Christmas. Lion asked me that the place I go I fucked the man’s wife? I say no but he no believe me. Then from that one day I dey for Lion’s house with Nigeria people and they are judging about their cow as what day they go killam. Everybody say the cow he die already. Everybody collect three shillings. The same day, Dick come from Agona junction and Lion ask him the news as how that place is. Dick say I see the town council and town council that he will come just now so everybody make preparation. Five minutes the Kramo, Old Kramo come. Mami Asi go to the school and call
her picking. Mami Asi be Lion’s wife. She give piece of chalk to the daughter. She changed the school uniform and gave her black uniform. She take coal mixed with water, rub her face and she tell her that the suffer she go suffer if she come to the world again more than that. I know that all these they do it is a proverb to me that means they are talking against me. Then Kramo take water wash the coal from her face. Then Lion and all my country people follow Kramo go for his house. Then Blue Black or Nakpoburo call me and he sorry for me too much. I say what thing then he say ‘enye hwe.’ I told him to give me cutlass and he say he get two and he give me one. I see say these people make preparation to me so I will kill some before I die. So I kill the two children I met them on the way. That is all I have no witness only God will help any place I go.”
When he came to give evidence in the trial court the appellant showed complete loss of memory. His evidence contained the following passage:
“I do not remember 27 November 1962. All I remember happening at Apimanim was telling my people what Odikro had tried to do to me and next thing I knew I was at Bibiani . . . I remember telling the police that I had killed a person but did not know when. I cannot remember anymore. My mind was in great turmoil . . . I knew Naejetey, I killed them … I sat on a chair and it began to turn round from that time. When I killed the children I did not know what happened. It was when I got to Axim that I realised what I had done. When I was killing I was like a drunkard not knowing what I was doing. Later I found myself at Axim and on becoming normal I realised what I had done and went to the police there. These children had done nothing to me.”
The appellant was however convicted of murder against which conviction he has appealed to this court.
The only ground of appeal argued seriously before us was that the evidence adduced at the trial would more correctly have supported a verdict of guilty but insane had the jury been properly directed by the judge on the question of insane delusion. With this contention we find ourselves in agreement. In our view there was a narrow issue between the case put forward by the prosecution and that put forward by the appellant as to whether or not when the appellant killed the deceased which he did not deny, he was under the influence of insane delusion of such a nature as to render him, in the opinion of the court, an unfit subject for any punishment and that he was subject only to the special verdict under section 137 of the Criminal Procedure Code, 1960.1
The story told by the appellant to the police which formed the basis of the prosecution’s case does not fit into the known facts; for example, that at the farm at Abesim he used to see snakes pass around him; his story about the cow and the cat; the accusation by Lion that he had an affair with someone’s wife; and the impression he formed that certain people were making preparation to kill him. Although these peculiar set of facts existed only in the appellant’s own mind, so that “he was living in a world of his own,” he believed that what he was saying was the truth.
The real gravamen of appellant’s evidence as a whole was the loss of memory which, taken with other evidence, for example, that at the preliminary hearing before the district court he besmeared his face with faeces and ate some of it, clearly established that he was insane. The learned judge in his charge to the jury on the issue of insanity, which is the crux of this case, simply read to them section 27 (a) and (b) of the Criminal Code, 1960,2 without telling them the meaning of “insane delusion” as explained by their lordships in the case of R. v. Grumah.3 It is not enough to read a section of the Criminal Code, 1960, (supra) to the jury who are not trained lawyers without, as appears to have been done in this case, explaining to them the meaning of the section and without relating the law therein stated to the evidence adduced at the trial.
In the Grumah case (supra) their lordships held that for the purpose of section 52 (2) of the Criminal Code, Cap. 9, (now section 7 (2) of the Criminal Code, 1960) “an insane delusion is a state of mind, induced by mental disease, in which a false belief is held that cannot be shaken by facts.”4 That decision was followed by the Court of Appeal in the following cases: R. v. Ayaaba5; R. v. Moshie.6 In the judgment delivered in the Moshie case (supra) their lordships not only cited the Ayaaba case (supra) but they also accepted as correct the ratio decidendi drawn therefrom by the learned editor of that judgment, namely, “that [section 52 (2) of the Criminal Code,] is concerned principally with whether or not insanity is of such a nature as to make punishment pointless: it is not concerned with the form the delusion takes.”7 With this interpretation we are also in agreement. Since section 7 (b) of the Criminal Code, 1960, is concerned principally with the nature of the insanity and not the form which the delusion takes, it is immaterial that the person killed was not the person who the appellant, labouring
under the insane delusion, thought was plotting to kill him.
Learned senior state attorney referred us to the learned judge’s direction where he referred to the provisions of section 7 (b) but he was unable to point to any part of the summing-up where the learned judge explained to the jury the meaning of “insane delusion,” or the application of it to the facts in this case.
He states that in the light of the authorities he was bound to concede that it is difficult to say whether the direction was adequate or not, or was in accordance with the law.
We are of the opinion that if the learned judge had adequately directed the jury on this issue of insane delusion, by explaining to them the meaning of insane delusion and relating the law therein stated to the facts in this case they would inevitably, on the evidence, have found that the offence was committed by the appellant under the influence of an insane delusion and would have returned a verdict of guilty but insane.
Upon a careful consideration of the whole case we do not think that it would be safe to allow the conviction to stand. We accordingly set aside the verdict and sentence of death and substitute the special verdict that the appellant was guilty of the act charged but was insane at the time he did the act. It is ordered that the appellant be detained in custody at the mental hospital at Accra until the President’s pleasure shall be known.
DECISION
Appeal allowed.
Death sentence set aside.
Special verdict substituted.
N. A. Y.
