MENTAL DISEASE OR INFIRMITY

The Nigeria Criminal Code goes on to deal with the question of criminal liability in so far as it may be affected by mental disease or infirmity. There are two sections on this matter.

27. 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.

28. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission 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 control his actions, or of capacity to know that he ought not to do the act or make the omission.

A person whose mind, at the time of doing or omitting to do an

¹ Thomas v McEather, [1920] St. R. Qd. 166.

² Anderson v Nystrom, [1941] St. R. Qd. 56. act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing pro­visions of this section, 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.

There is a familiar ring about these words, and naturally one thinks of the McNaughten Rules. And here I must give a word of warning. Many an advocate in Nigeria, having received his legal education in this country, has observed the similarity between provisions of the Nigeria Code and the English criminal law in which he has been trained. He then makes the mistake of rushing to Archbold in search of suitable authorities, only to find that the Judges are not impressed. This is a case in point. In Nigeria the McNaughten Rules have been both modified and extended. Not only has the code departed from the phraseology of the Rules but it has introduced two entirely new factors.

In the first place, the Code introduces the concept of‘natural mental infirmity’. One of the McNaughten Rules enunciates the proposition that, to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the party accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that what he was doing was wrong. It may well be that the words ‘such a state of mental disease’ in section 28 of the code are equivalent to the words ‘such a defect of reason from disease of the mind’ used in the Rules, but the introduction of the words ‘or natural infirmity’ certainly goes beyond the latter words. As the West African Court of Appeal observed in Sunday Omoni’s Case,¹ to which I will refer shortly, the code has shown a clear intendon to distinguish between mental disease and natural mental infirmity, and the latter phrase should be interpreted to mean ‘a defect in mental power neither produced by his own default nor the result of disease of the mind.’

Secondly, an even more marked extension of the law of England is to be found in the Nigeria Code by the inclusion in section 28 of the words ‘to deprive him of capacity to control his actions’. On this aspect of the matter, Sir John Verity, C.J., delivering the judgment of the Court in Omoni’s Case, said this:

‘Not only do these words depart from the rules in McNaughten’s Case, but they are in direct conflict with the line of English decisions ' 12 W.A.C.A.511.

subsequent thereto in which the Judges in England have declined to accept the defence of ‘irresistible impulse’ which these words appear to have introduced into the law of Nigeria. As to the wisdom of introducing or maintaining this departure from English law, it is for the legislature to judge; this Court can only apply the law as we find it. Nothing could emphasize more pointedly the contrast between the English and the Nigerian law in this respect than the words of Hewart, L.C.J., in the well-known case of R.

If there were time, it would be interesting to look at some of the cases from three of the Australian States, other than Queensland, where a tendency showed itself to find judicial support for the proposition that there was room for the defence of uncontrollable impulse even within the framework of the McNaughten Rules, though this line of reasoning received a set-back from the decision of the Judicial Com­mittee of the Privy Council in A.-G. for South Australia v Brown.¹

The Australian cases are certainly interesting; but for an authoritative statement of the Nigerian law on the subject of insanity and criminal responsibility Omoni’s Case must still be regarded as the principal source. Unless the conditions laid down in that case are satisfied, a defence of insanity will fail. There have been attempts recently to raise the defence of ‘mental black-out’, whatever that phrase may mean, but the defence is quite unknown to the law. As Jibowu, A.G. S.P.J., pointed out in R. v Dim? such a defence would be exploited and become prevalent if allowed without adequate proof. The defence must prove affirmatively that the circumstances are such as to bring the case within section 28 of the code, as interpreted in Omoni’s Case, and evidence of a ‘black-out’ which falls short of such proof will be of no avail.

The presumption of sanity continues until the contrary is proved, as provided by section 27, and the burden of proving insanity is on the accused person. The Code does not say so, but this is provided in section 140(3) (c) of the Evidence Ordinance.

* 44 Cr. App. R. 100. ¹ 14 W.A.C.A. 154.

further because the law is the same as in England. This was decided recently by the Federal Supreme Court in Onakpoya v The Queen.¹ It had already been so decided by the West African Court of Appeal some years before, but curiously enough the earlier cases were not cited, and the Court was content merely to follow the English decision of R. v Carr-Bryant?

Before leaving this question the point I should like to emphasize is this. The statute law of Nigeria is identical with that of Queensland. The case law of Nigeria has developed on parallel lines with that of Queensland—in other words the same result has been reached quite independently—but I am unable to trace a single instance in which an Australian decision on the subject of insanity has been brought to the attention of a Nigerian Court.

INTOXICATION

The only other matter I shall have time to deal with, and only very briefly, is that of intoxication. The general rule is that intoxication does not consitute a defence to any criminal charge. This is stated in section 29 of the Code, but die same section goes on to qualify the general principle in two ways.

29(2). Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or

(£) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.

29(4). Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

29(5). For the purposes of this section ‘intoxication’ shall be deemed to include a state produced by narcotics or drugs.

The Nigerian law on this matter appears to be the same as that of England. It is for this reason no doubt that there are very few reported

* 4 F.S.C. 150. ¹ 29 Cr. App. R. 76.

decisions on the subject, although the matter has been fully discussed in two or three judgments of the West African Court of Appeal.

In the case of R. v Owarey,¹ the Court did no more than approve the statement of the law contained in the judgment of the Court of first instance in which the Judge, after referring to the principles of English law laid down in Beard's Case,¹ said: ‘That is the law also in this country.’ Perhaps I ought to add that although those principles are followed, on the same facts as Beard's Case in Nigeria the decision would be different and the offence committed would be manslaughter only and not murder. But that is due to a difference in the definition of murder, and not to any difference in die law as to the effect of drunkenness on criminal liability.

CONCLUSIONS

In this paper I have been able to cover only a very small field, and not in the detail which the subject deserves. But I hope I have said enough to warrant one or two conclusions. We have seen that the Nigeria Criminal Code follows the Queensland model. I asked some questions earlier as to how far the Nigerian Courts are influenced by Queensland decisions. The answer I can give in one sentence. I have been unable to find a single instance in which Queensland decisions have been brought to the attention of the Courts and discussed. The West African Court of Appeal heard appeals from other territories as well as Nigeria—for instance, from the Gold Coast and Sierra Leone— where the Queensland model had not been introduced; whereas the new Federal Supreme Court hears appeals only from Nigeria. I can only repeat the hope that there will be some enterprising Nigerian lawyer who appreciates the value of comparative law, and will see in this link between Nigeria and Australia not merely something of academic interest, but a challenge, and an opportunity to develop the jurisprudence of his own country.

¹ 5 W.A.C.A. 66. ¹ [1920] A.C. 479.