NJOKU v. THE STATE [1965] GLR 394

DIVISION: 21 MAY 1965

DATE: MILLS-ODOI, OLLENNU AND SIRIBOE J.S.C.

CASES REFERRED TO

(1) R. v. Grumah (1957) 2 W.A.L.R. 255, W.A.C.A.

(2) R. v. Ayaaba (1958) 3 W.A.L.R. 376, C.A.

(3) R. v. Moshie [1959) G.L.R. 343, C.A.

NATURE OF PROCEEDINGS

APPEAL against a conviction of murder entered at the Criminal Session of the High Court held at

Sekondi with a jury.

COUNSEL

Asare for the appellant.

K. A. Sekyi, State Attorney, for the respondent.

JUDGMENT OF MILLS-ODOI J.S.C.

Mills-Odoi J.S.C. delivered the judgment of the court. The appellant was convicted by a jury at the

Criminal Session of the High Court at Sekondi on 15 June 1964, for the murder of one Joseph Alabi on 4

January 1964. He raised as a defence the issue of the state of his mind at the crucial moment when he was alleged to have committed the felonious homicide which was entirely motiveless. No witness knew of any previous quarrel or misunderstanding between him and the deceased and the story consistently told by him did not fit into the known facts. The only point for decision in this appeal, therefore, is whether the verdict should have been one of guilty of murder but insane.

[p.395] of [1965] GLR 394

The facts which are not in dispute are as follows: On 2 January 1964, for no reason which could be suggested, the appellant ran amok. He inflicted ghastly wounds on the deceased who, a few moments prior to this incident, was pounding fufu with his wife and children. He also caused fatal wounds to a school teacher and chased other people in the village where they lived with the cutlass which he had used in inflicting the wounds on the deceased. None of the villagers was able to overpower him. However, on the same day, he went on his own to the police station at Tarkwa and, on the strength of a report which he made to the police, he was arrested and placed in a cell. Two days later (i.e. on 4 January 1964) the deceased died.

In his cautioned statement to the police, the appellant admitted killing the deceased and he gave reasons for it. But his story conveyed the impression that he was living in a world entirely of his own. He told the police at Tarkwa that the deceased had introduced Samuel Oke, the first prosecution witness, to him as a native doctor, whereas in fact Samuel Oke and the appellant had worked together as employees of the

Amalgamated Banket Area Mines at Tarkwa. His statement to the police, exhibit A, which formed part of the case for the prosecution, contains the following passages:

“During September 1963, Samuel Oke informed me that he has a medicine with which I can protect myself and my family. At first I was not willing for the promise but Oke insisted that I should have it. He took the names of my wife, two children and my father together with my own name and later brought the medicine to me. After some few days I realised that the medicine (juju) was not good for me. In the night I could not sleep and when I go to work I do not feel alright. I reported the condition to Joseph Alabi. What Alabi told me in reply was that I have been eaten up already and that I am already done. I next appealed to Teacher

Oguntunde to see and save the situation but he also told me that no one should mind me because I am dead already.

Now on 29 December 1963 being Sunday, I received a letter from home reporting to me that my wife together with one of my children and also my father whose names were collected by Oke in preparing the medicine were dead. Because of this sad news, I did not go to work the next day being Monday, 30

December 1963.

In the morning of 2 January 1964 being Thursday I returned home from town after buying some food. I met

Joseph Alabi and Teacher Oguntunde in front of Alabi’s room. When I was about

[p.396] of [1965] GLR 394 to enter my room, Alabi said, the last peg is also fallen and as such as I am walking, I am almost dead and by

10 a.m. to 11 a.m. I will be no more in existence. The time was then 7.35 a.m. This threat so provoked me that I entered my room and drew a cutlass to deal with these dangerous men. When I came with the cutlass

Alabi looked at me up and down and told me that my cutlass cannot harm him. I then jumped on him and gave him some slashes with the cutlass and he managed to escape. Teacher Oguntunde then held me from my back and as we were struggling the cutlass fell from my hands. It wounded Teacher Oguntunde on the left foot. He succeeded in taking the cutlass and I also tried and seized it from him and gave him a blow with the cutlass on his chest and he fell down. I left to the Police station to report. It was Oke I was very much after but I missed him.”

The story told by the appellant (in exhibit A) compelled the police at Tarkwa to conduct a thorough investigation into the matter, the result of which was given by the detective police inspector, John Kiplin

Nsia, the thirteenth prosecution witness, in his evidence at the trial in the following words, “As a result of the statement, exhibit A, I made investigations among the lbo communities at Atuabo, Abosso and

Tarkwa town but I had no one to confirm the allegations made by the accused in his statement.” it is not strange therefore that at the trial Samuel Oke, the first prosecution witness, denied the allegations made by the appellant in his statement, exhibit A. In the course of his evidence under cross-examination,

Samuel Oke said, “Alabi, the accused and I have never spoken about juju. I have never discussed juju matter with the accused. I don’t remember the accused telling me that the juju I gave him was not good.”

The only eyewitness account of the killing was given at the trial by the deceased’s nephew, Joseph Adjayi

Omolafe, the fourth prosecution witness, and the story told by him, which is evidence of the fact that the killing was absolutely motiveless, reads as follows:

“On 2 January 1964 in the morning at about eight o’clock I was in the house pounding fufu in the kitchen.

My uncle and his wife were there. My uncle’s wife Alice Alabi stood near me and the deceased was turning the fufu in the mortar and putting in the cassava. I then saw the accused come from his room with a pistol and he pointed it at us. He stood about three yards away. When the accused pointed the pistol at us he pressed the trigger twice but the gun did not fire. We then ran away from the kitchen. The deceased and his wife ran out of the house

[p.397] of [1965] GLR 394 shouting, ‘He is going to kill us.’ I ran out of the kitchen and stood on the verandah. I then saw the accused run back into his room and come out with a cutlass. I then started running away and accused chased me…

Whilst running I saw my uncle standing at the car station about 130 yards from our house. When the accused saw the deceased he ran towards him. I then saw the deceased running away into a store. The accused entered the store and the deceased ran out of the store by the other door. The store had two doors. When the deceased came out of the store he fell down outside the door on the verandah. I then saw accused come out of the store and I saw him cutting the deceased with the cutlass. When the accused saw me he left the deceased and started chasing me and I ran into a certain house where I remained for some time. I later came out of the house but I did not see the accused but I saw my uncle’s fingers on the ground where he had fallen and been cut by the accused…

I don’t know why accused attacked us on 2 January 1964.”

As stated earlier in this judgment the appellant put in issue the state of his mind at the time of the commission of the crime and in explaining to the jury his reason for taking the life of the deceased he said,

“The following day (i.e., 2 January 1964) Alabi and his children were cooking when I returned from my bath and Alabi told me that as I was walking like that they chop me finish. I asked him what he meant by that. I then went and took my cutlass and cut him because the medicine his brother gave me was not a good medicine.”

In support of his defence he called as a witness the medicine officer in charge of the Central Prisons at

Sekondi who, in the course of his duties, had the opportunity of observing the appellant on two occasions.

His observations revealed that the appellant, “was not mentally sound. He did not answer questions and behaved abnormally and sometimes violently. The accused (appellant) was insane all the time he was under my observation.”

In spite of the story told by the appellant to the police in exhibit A, the evidence of the detective police inspector, the thirteenth prosecution witness, reproduced supra and the evidence of Samuel Oke, the cumulative effect of which shows that the appellant was seeing things peculiar to himself alone, the learned judge concluded his charge to the jury, after he had reviewed the case for the prosecution, in the following words, “I pointed out to the jury that this was a [p.398] of [1965] GLR 394 case in which all the essential ingredients required to be proved by the prosecution have been so proved.”

It is not without significance to note that the points raised by these prosecution witnesses, and also in exhibit A, do not appear to have been given any consideration by the learned judge in the summing-up to the jury to enable them, as judges of fact, to determine whether upon the evidence before them the prosecution had proved all the essential elements required to support the charge of murder, including the vital and most important element, namely, that the unlawful harm was caused with intent that death should result.

Again in his summing-up to the jury the learned judge said:

“Directed jury that a person killing another purely on imagined facts, the defence of insane delusion was available on the application of a particular test laid down by law and the test should be that the delusion

‘must be of such a nature that if the imagined facts were true they should provide justification for the action taken as a result of the delusion’—directed jury that this is the present state of the law and directed them further that the Editor’s Note in R. v. Grumah 2 W.A.L.R. 255, W.A.C.A. that A. killing B. under the insane delusion that B. was his brother and that defence of insane delusion was available to A. is not the law—Asked jury to apply the test mentioned (supra) and told them that to consider the imagined facts as given by the defence—Oke first prosecution witness giving accused medicine—accused worried by the medicine—deceased telling accused that accused was finished and that being confirmed by his colleagues at work—the question to be decided by the jury was if these imagined facts were true was the accused justified in killing the deceased?”

We consider this a very serious misdirection and cannot speculate on the effect it would have had on the minds of the jury so as to be able to say that a substantial miscarriage of justice in the circumstances had not occurred. A person who is charged with murder is entitled to the special verdict “if he did the act in respect of which he is accused under the influence of an insane delusion of such a nature as to render him, in the opinion of the jury or of the Court, an unfit subject for punishment of any kind in respect of such act”: see section 27 (b) of the Criminal Code, 1960.1 In R. v. Grumah,2 the West African Court of Appeal held that for the purposes of section 52 (2) of the Criminal Code, Cap. 9 (1951 Rev.), now section 27 (b) of the Criminal Code, 1960, reproduced above, a delusion is a symptom

[p.399] of [1965] GLR 394 of a mental disturbance and is a false belief (induced by mental disease) which is unshakable by facts.

The decision in Grumah’s case (supra), was followed by the Court of Appeal in the following cases, namely, R. v. Ayaaba3 and R. v. Moshie.4 In the judgment delivered in R. v. Ayaaha (supra) their lordships (Korsah C.J., van Lare and Granville Sharpe JJ.A.) did not only follow the reasoning and the conclusion reached in Grumah’s case but they also indicated their approval of the learned Editor’s Note to that judgment, namely, that section 52 (2) of the Criminal Code “is concerned principally with whether or not the insanity is of such a nature as to render punishment pointless; it is not concerned with the form the delusion takes.” In R. v. Moshie (supra), their lordships stated that “that is a proper interpretation of section 52 (2), and we so declare it.”5 We are also in entire agreement with the learned Editor’s interpretation of section 52 (2) of the Criminal Code, Cap. 9 (1951 Rev.), now repealed but reproduced in identical words as section 27 (b) of the Criminal Code, 1960.

We are of the opinion that had the learned judge directed the jury on the proper interpretation to be given to section 27 (b) of the aforesaid Act on this issue of insane delusion, their verdict might have been different. Upon a careful consideration of the evidence as a whole and the circumstances of the case we have come to the conclusion that the verdict of guilty of murder cannot stand. We therefore set aside that verdict, quash the sentence of death and substitute the special verdict, namely, 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.

Special verdict substituted.

E. A.-A.