CLEMENT IWUANYANWU (APPELLANT)

v.

THE STATE (RESPONDENT)

(1964) All N.L.R. 406

Division: Supreme Court

Date of Judgment: 23rd December, 1964

Case Number: S.C. 473/1964; from Eastern Nigeria

Before: Brett, Onyeama, and Ajegbo J.J.S.C.

Appeal against conviction of murder:

"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 his doing or omitting to do an 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."

The defendant waylaid the deceased and deliberately killed him. He said that some time previously the deceased told him he would kill him at night by evil spirits if he did not go home. The defence was insanity. The defendant had been ill twice: he was moody and ate sand; the last time was a year before the killing. The trial Judge thought that the defence of insanity did not arise under the first paragraph of section28; he held that although the defendant was suffering from delusions and believed, as a result, that the deceased would send evil spirits to kill him, he knew what he was doing when he killed the deceased; and he convicted the defendant of murder, relying on Thamu of Guyuk v. Reg.14 W.A.C.A.372. On appeal-

HELD

Assuming that what the defendant believed as a result of his delusions was the real state of things, the second paragraph of section 28 did not exonerate him: for the whole purpose of his murderous attack on the deceased was to prevent his own death in the future by juju, and he was not acting in self-defence at the moment that he killed.

Appeal dismissed.

J.A. Cole for the Appellant.

I. Nwokolo, State Counsel, for the Respondent.

Onyeama, J.S.C. (delivering the judgment of the court).:-The appellant was convicted of the murder of Chijioke Okorafor-Ocha.

The facts as found by the learned trial Judge were that the deceased died from stab wounds inflicted by the appellant for no reason that the eye-witnesses could see. In a statement made by the appellant to the police, he said the deceased had called in a witch doctor about six months before "to make medicine to kill him"; he stated further that the deceased and two others-Donatus and Patrick-had sent evil spirits to him, and had told him they would kill him at night unless he went home; he said he used to see these three men in his dreams doing bad things to him. Although in his evidence at the trial the appellant said he did not remember killing the deceased the judge did not believe him, but was of opinion that he was deliberately trying to hide the incident of stabbing: the judge found that he waylaid the deceased and deliberately killed him. The learned judge did not think that the defence of insanity arose under the first paragraph of section 28 of the Criminal Code.

The issue of insanity was raised at the trial and was carefully considered by the judge. There was evidence of illness on two previous occasions when the appellant was moody and ate sand; the last attack was about a year before he stabbed the deceased. The case Thamu of Guyuk v. The Queen 14 W.A.C.A. 372 was considered by the judge and the principle of that decision enabled him to hold that although the appellant was suffering from delusions and believed, as a result of them, that the deceased would send evil spirits to kill him, he knew what he was doing when he killed the deceased.

It was clear from the evidence that the appellant, believing that the deceased and the others were going to kill him by witchcraft, killed the deceased first. Section 28 of the Criminal Code cannot avail him, for if the facts were as he imagined, the deceased had not yet attacked him when he stabbed him. He killed him to prevent him sending the evil spirits; he knew what he was doing and why he was doing it; section 28 says that the appellant "is criminally responsible for the act...to the same extent as if the real state of things had been such as he was such as he was induced by the delusions to believe to exist." On this supposition, the appellant killed someone who was going to send evil spirits to him and who had told him sometime previously that he would kill him at night in that way if he did not go home. At the time the appellant killed the deceased, the deceased was not attacking him; and the whole purpose of the murderous attack on the deceased was to prevent his own death in the future to be caused by Juju. On the assumption of the delusions, he was not acting in self-defence at the moment that he stabbed and is not exonerated under the second paragraph of section 28.