LATIFU YUSUFU (APPELLANT)

v.

THE STATE (RESPONDENT)

(1988) All N.L.R. 341

Division: Supreme Court of Nigeria

Date of Judgment: July, 7, 1988

Case Number: (SC 9/1987)

Before: Obaseki, Nnamani, Kawu, Oputa, Wali; JJ.S.C.

The appellant struck his wife with a matchet in the presence of their daughter and another person who was the deceased's younger sister. He ran away immediately, while they were on their way home from the farm where they had earlier quarrelled.

The accused's evidence in his defence was an admission that he killed his wife after something jumped on him and he thought that his wife was a deer which he struck matchet cuts upon during which she cried out before he realised she was his wife and he stopped matcheting her. The two defence witnesses who gave evidence said that the appellant suffered from insanity many years before the incident.

The trial Court (Lagos High Court) disbelieved the evidence of the appellant and his witnesses and convicted him of murder. His appeal to the Court of Appeal was dismissed. He appealed further to the Supreme Court and the issue for determination was whether the defence of delusion raised by the appellant is sustainable having regard to the evidence before the trial Court.

HELD:

(1)     The effect of the law on delusion is that an accused person will be criminally responsible for his act to the same extent as if the subject of his delusional belief is real.

(2)     The defences of insanity and delusion are different since the elements of the two are different.

(3)     The defence of insanity is not in issue here. So, the evidence of the defence witnesses are immaterial for consideration.

(4)     The evidence of the appellant himself is material and it is admissible. A party's testimony is admissible, and depending on what weight it carries, may be adequate to sustain his defence.

(5)     The appellant failed to discharge the burden on him to establish by credible evidence that he suffered from a delusion.

Appeal dismissed.

Mr B. Nwazojie, With him A. Onia for Appellant.

Mr Fola Anthur Worrey, Senior State Counsel (Lagos state) With him Mrs Boye Onabanjo, Jide Bodedo and Emeka Umeh, State Counsels for Respondent.

Cases referred to:-

(1)     Ahmed Debs v. Chieco Ltd. (1986) 6. S. C. 179

(2)     Banks v. Goodfellow (1870) L.R 5 CB 549, 570

(3)     Benson Ihonre v. The State (1987) 4 NWLR at 67, 778

(4)     Chinwendu v. Mbamali (1980) 3/4 S.C. 31

(5)     Dew v. Clark (1826) 3 Addams 97

(6)     Egbe Nkanu v. The State (1980) 3/4 S.C. 1

(7)     Effiong Udofia v. The State (1981) 11-12 S.C. 49 at 59

(8)     Goodluck Oviefus v. The State (1984) 9 S.C. 207 at pp 258/259

(9)     John Loke v. The State (1985) I NWLR 1 at 5

(10) Lord Samuel Akhidime v. The State (1984) 9. S.C. 24 at p.33

(11) Magaji's case (1986) 1 NWLR(pt.19) 759.

(12) Ngene Arum v. The State (1979) 11. S.C. 91, 101.

(13) Niger Construction Ltd. v. Okugbemi (1987) 4 NWLR(Pt. 67) 787

(14) Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718

(15) R. v. Nassamu (1940) 6 WACA 74

(16) R. v. Ogor (1961) 1 All N.L.R 70

(17) R. v. Omoni 12 WACA 511, 512

(18) Rex v. Ashigifuwo (1948) 12 WACA 389

(19) Waring v. Waring (1848) 6 MOOP C.C. 341-353

(20) Woluchem v. Gudi (1981) 5. S.C. 291, 326

Statute referred to:-

(1)     Criminal Code Laws of Lagos state 1973.

Nnamani, J.S.C., In the Criminal Division of the High Court of Lagos State the appellant was in charge No. ID/27C/82, charged with the following offence:

"Statement of Offence

Murder, contrary to Section 319 of the Criminal Code.

Particulars of Offence

Latifu Yusufu (m) on the 24th day of July 1980 at Egan Farm Ibeju Epe in the Ikeja judicial Division murdered Muinatu Latifu (f)."

At the trial, 5 witnesses testified for the prosecution. The accused gave evidence and called two witnesses. The learned trial Judge, Oshodi, J. after evaluating the evidence before him convicted the appellant and sentenced him to death. The appellant appealed to the Court of Appeal but that Court on 4th November, 1986 dismissed the appeal. The appellant has now appealed to this Court.

Four grounds of appeal were originally filed, but learned Counsel to the appellant, Mr Nwazojie obtained leave of this Court to file and argue two grounds of appeal in substitution of those originally filed. The two grounds of appeal without the particulars were as follows:-

"1.     The learned trial Judge and the Justices of the Court of Appeal erred in law by not clearly drawing a distinction between the first limb and the second limb of section 28 of the Criminal Code and thereby misdirected themselves in the evaluation of the evidence necessary to establish that a person was affected by delusions on some specific matter, as distinct from a person suffering from insanity under section 28 of the Criminal Code...

2.      The Court of Appeal, per Uthman Mohammed, J.C.A., gravely misdirected itself on the length and extent of delusive beliefs, giving the impression that it must have been prolonged or persistent for a considerable time before it can avail one under section 28 (second limb) of the Criminal Code..."

Both learned Counsel to the appellant, and learned Counsel to the respondent, Mr Arthur-Worrey filed very useful briefs of argument and I must commend them for their effort. In his own brief, Mr Nwazojie set out the issues he perceived are for determination in the appeal. The 3 issues set out in paragraph 3 of appellant's brief were:

"1.     Whether the state of facts as conceived by the appellant, if they were real, could excuse the appellant as not criminally responsible for the murder for which he was convicted in view of provisions of section 28 (second limb) of the Criminal Code.

2.      Whether the conviction of the appellant for murder and affirmation thereof by the Court of Appeal is justifiable or could be sustained, having regard to the evidence of delusion suffered by the appellant at the time of committing the offence, and the provisions of section 28 (second limb) of the Criminal Code.

3.      Whether the learned trial Judge was not in error in holding that "the accused knew exactly what he had done although he believed what he did was right 'when the defence of delusion as in section 28 (second limb) of the Criminal Code does not require any such knowledge of the part of the appellant any more, once the accused cannot avail himself of the benefit of section 28 (first limb). In other words, whether the provisions of the first limb and the second limb of section 28 of the Criminal Code are mutually exclusive or one is a supplement to the other.' "

In his brief of argument, learned Counsel to the appellant conceded that the defence of insanity cannot avail the appellant. What was relevant, he contended, was the defence of delusion. Both counsel agree on this and, as in my view, this appeal is to be determined on a narrow compass. I am attracted to the shorter formulation of issues for determination by learned Counsel to the respondent. His third issue is the same as the appellant's counsel's third. The 1st and 2nd issues are directly in point. They read:

"(1)    Whether the defence of delusion raised by the appellant was established on the evidence in this case.

(2)     Whether the decision of the Court of Appeal can be supported having regard to the evidence in this case."

In oral argument before this Court, Mr Nwazojie submitted that all the evidence in the case was of insanity. He, however, made the point that insanity encompasses delusion hence insane delusions. He contended that the appellant was suffering from delusion over the years. He submitted that the evidence of delusion lay in the ipsi dixit of the appellant. He referred to John Loke v. State (1985) 1 NWLR 1 at 5. He also referred to the evaluation of evidence by the learned trial Judge and the Court of Appeal and contended that there appeared to be a confusion of insanity and delusion and this may have occasioned a miscarriage of Justice. Learned Senior State Counsel, Mr Arthur-Worrey, for his part submitted that the evidence before the Court which the learned trial Judge accepted could not sustain a defence of delusion. In his view the delusion which the appellant claimed he suffered does not fall into any of the definitions of delusion, whether the legal or medical definitions. He thought the appellant suffered a hallucination. He referred to Ngene Arum v. The State (1979) 11 S.C. 91, 101 and Benson Ihonre v State (1987) 4 NWLR Pt. 67, 778.

The defence of delusion is contained in section 28 of the Criminal Code (second limb). It reads:

"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 delusion to believe to exist."

The first matter I ought to deal with is the nature of delusion, or in other words what is delusion? I shall adopt the definitions proffered by both learned Counsel in their briefs of argument. In his own brief, appellant's counsel defined it as:

"A firm and unreasonable belief which is not based on reality and which cannot be removed by any demonstration of its inaccuracy."

He also referred to the definition given by professor John Glaister in his book "Medical Jurisprudence and Toxicology" Eighth Edition, 1947 where it was defined thus, "An insane delusion is a persistent and incorrigible belief that things are real which exist only in the imagination of the patient and which no rational person can conceive that, the patient, when sane, could have believed." The respondent's counsel adopted Professor Glaister's definition. In Dew v. Clark (1826) 3 Addams 97, Sir John Nicol defined it as "Belief in facts which no rational person could believe" or "belief of things are realities which exist only in the imagination of the patient. The frame or state of mind which indicates his incapacity to struggle against such an erroneous belief constitutes an unsound frame of mind." He was of the view that "such delusions are generally attended with eccentricities often with violence, very often with exaggerated suspicions and jealousies" See Waring v. Waring (1848) 6 MOOP. C.C. 341-353. See also Banks v. Goodfellow (1870) L.R.5 C.B. 549, 570. In Ngene Arum v. State (supra), which is still the locus classicus on this issue of delusion, Dr Warrick Onyeama, a Consultant Psychiatrist, at page 101 defined the term in these words:

"Delusion in the context in which I use the term is a falsely held belief inaccessible to reason and which represents a departure from previously held patterns of belief and ... which exists out of context with the patterns of belief held by the culture from which the subject derives."

The law on delusion has been well settled. Basically it is this that if the accused person is not entitled to the benefit of the first limb of section 28 of the Criminal Code (i.e. if it cannot be established that at the time of doing the act, he was in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he was doing, control his actions or know that he ought not to do the act or make the omission) he will be criminally responsible for the act to the same extent as if the subject of his delusional belief is real. In other words, if the subject of his delusional belief is taken as real, he would be liable only if the act he did in furtherance of that belief, is one that is punishable. Perhaps to use the example of the instant case, if it was indeed established that there was a delusion that a deer jumped on appellant's back, appellant's criminal responsibility for the act of killing would be to the same extent as if indeed it was a deer and not his wife. I think Mr Nwazojie stated the position correctly in his brief. At page 4 thereof he submitted that:

"the liability of the appellant is limited to the (false) fact as conceived by him to the extent as if those (false) facts were indeed true in real life, and no more. In other words, he would be given benefit of the delusion and adjudged liable or otherwise depending on the extent to which he could have been criminally liable had the act he committed pursuant to the delusion existed in real life."

Mr Nwazojie of course went on to submit that killing a deer, one of the dangerous animals, cannot be a punishable offence.

Before going to the evidence in this case to see whether it can sustain a defence of delusion in appellant's favour, I think I ought to resolve the seemingly difficult distinction between insanity and delusion. While appellant's counsel asserted that both defences were mutually exclusive, learned Counsel to the respondent was of the view that the two arms of section 28 of the Criminal Code are not independent provisions. I think that one cannot draw too sharp a distinction between both. A person who is suffering from a delusion cannot be said to be a sane person. In my view he is suffering from some disease of the mind. It is probably more correct to say that insanity encompasses delusion. Without appearing to proffer a medical opinion, I see them as different degrees of mental illness. The passage from Ngene Arum (supra) which has led to this controversy has to be carefully examined. At page 105 of the record, Idigbe, J.S.C. looking at the two limbs of section 28 said:

"The first limb of section 28 deals with the defence of insanity, and the second limb clearly relates to delusions (sometimes loosely-though not necessarily the same-referred to as "insane delusions"); insanity is not a sine qua non to the experience of a delusion or hallucination. It is, indeed, not easy to distinguish between delusion and insanity when these terms are used in their ordinary meaning; but as far as section 28 of the Criminal Code is concerned, there is a clear distinction for the purposes of establishing a defence under either limb of the section."

The portions I have underlined are the most relevant portions for our purpose here. Idigbe, J.S.C. himself was the first to recognise that a distinction between the two when used in their ordinary meanings is difficult. As I said earlier on, both are facets of mental illness although I concede that you do not need to be insane in order to have delusions. I think the only real distinction lies while trying to establish a defence. For insanity all that has to be established is contained in the first limb. In the second limb, the defence consists just of assuming that the subject of the delusional belief is true and judging the criminal liability against this i.e. whether the act, assuming that the delusional belief is true, is one that is punishable or not. But I don't think one can talk of mutual exclusivity for I doubt if one can construe the second limb of section 28 without reference to the first. The second limb is to the effect that the person whose mind is affected by delusions on a specific matter in respect of whom one is to consider the defence of delusion must be a person who is not otherwise entitled to the benefit of the foregoing provisions of the section-i.e. the first limb. It is for this reason that some Courts start evaluating the evidence as if they were considering a case of insanity and then go on to delusion. See pages 102, 103 and 105 of Ngene Arum (supra). Viewed from this perspective, I would agree with learned Counsel to the appellant that there was an unnecessary mixing of the two in the passage at page 58 line 28 where the learned trial Judge said:-

"In this case one has to consider whether the accused's delusion was such as to make it impossible for him to appreciate or understand the nature of his action."

It would also appear that the Court of Appeal considered the two defences side by side. At page 84 of the record, Uthman Mohammed, J.C.A. said:

"But there was no evidence that the appellant was suffering from mental disease at the time or shortly before or after the attack on his wife. See R v. Nassamu (1940) 6 WACA 74. This was indeed the view of the learned trial Judge. The facts of the case do not seem to tally with the defence of delusions put up by the appellant."

After referring to the definition of insane delusions in Effiong Udofia v. The State (1981) 11-12 S.C. 49 at 59 per Obaseki, J.S.C. he went on,

"The two definitions I have referred to, above, will show that evidence however slight must be given to show that at the time the offence was committed, the appellant was suffering from mental or nervous strain. It is not enough to show that the appellant was suffering from a disease of the mind which was capable of depriving him (of) the power of self control without any supporting evidence to establish that at the time the act was committed he was in fact insane even temporarily."

To the extent that these passages show a consideration of the two defences almost interchangeably, there was an error but I do agree that that did not occasion a miscarriage of justice.

I am inclined to the view that the approach to Section 28 is to consider the evidence available in each case as they relate to the two defences in both limbs of section 28 starting with insanity and going on to delusion, which in any case can only arise if the benefit in the provisions of the first limb are not available. I do not think that one can treat the two defences together or interchangeably since the elements necessary to establish either defence are different.

Now to the evidence before the learned trial Judge. The star witnesses for the prosecution were PW2 and PW3. I shall set down just a few important portions of their testimony. PW2, the daughter of the accused and deceased said in part,

"On reaching the farm the farmer told them they were to cultivate an area. At this stage after cultivating about 3 plants my father and mother started to exchange words there the farmer asked them to stop the exchange. We then left the farm and my mother said that she (sic) was going to report my father to her own father the 1st P.W. My father prayed my mother not to go and report but my mother insisted that she was going to report. At this stage the accused with the cutlass in his hand matcheted my mother on her leg and shoulder. The accused then ran away"

PW3 in her own testimony said,

"The accused and my auntie has misunderstanding at this stage and farmer intervened that if they would not stop they would leave his farm and not waste his garri. We did not know what caused the misunderstanding. We then left the farm the accused in front followed by my aunt, then 2nd P.W. and myself in the rear. They were still exchanging words and we heard the deceased saying that she was going to report to her father. The accused begged her not to but she insisted she was going to report. It was then the accused turned round and matcheted her with the cutlass in her hand. My auntie shouted "Se okuku fe pa ohun mi" meaning do you want to kill me? The accused then used the cutlass again on her shoulder."

Two witnesses gave evidence for the appellant. DW1 in part said,

"Later he became very ill which turned him mad. I had to tie him and took him to a herbalist at Isale Eko behind the Oba's palace ... He took ill about 25 years ago. When he recovered he came to me. But occasionally he has recurrence. When it became persistent I had to return him to the herbalist at Isale Eko."

The 2nd D.W. said,

"About 25 years ago he was brought to me as a patient by the 1st D.W. He was brought to me with his hands and legs tied with the complaint that he was mad. I treated the accused when he was brought to me ... On every occasion he was brought to me he did not know what he was doing. When he had the fits he could not know what he was doing nor that what he was doing was right or wrong ... I saw him last about 3 to 4 years ago ... when the accused is sober he could not injure anyone. If I did not treat him he could be violent."

Under cross-examination, the witness said,

"the sickness does not just come suddenly but gradually and if those around watch him they will notice it."

As the Police did not give evidence the two statements which the appellant made were not tendered in evidence. In his own testimony in Court the appellant said among other things:

"The deceased in this case was my wife. We have been married for 16 years before the incident happened ... We left the farm when there was to reap (sic) and I advised that we should go to another farm. As we were on our way out some thing just jumped upon me and I thought my wife was an animal called Igala (deer) hence I matcheted the animal whilst I was matcheting her, she was shouting my name Baba Ebun and that it was she I was matcheting. There and then I dropped the cutlass and carried her. The children at this time ran away. When I could not help my wife again I then left for Ikeja to report my self to the Oba. At this time I was made (sic) for I had used my clothe to clean my wife ... I cannot account what I was doing I could not even control myself. I did not know that what I was doing was wrong."

It does seem to me that the evidence given by DW1 and DW2 related to insanity and this is not what is relevant in the instant case. If insanity was in issue, one would have considered whether that evidence is sufficient to establish a history of mental disease. The only evidence of delusion therefore is that given by the appellant. I see nothing in the judgment of the Court of Appeal, suggesting that appellant's testimony as to the delusion was dismissed because it was his ipse dixit. A party's testimony is admissible evidence, and depending on what weight it carries, may just be all that is needed to sustain that party's case. Indeed in many cases this Court had chided lower courts that tended to look down on ipse dixit. In the latest case on the issue, Ahmed Debs v. Chieco Ltd (1986) 6 S.C. 179 both Oputa and Eso JJ.S.C. dealt with this matter. Eso, J.S.C. at page 179 said;

"It is admissible and the weight to be placed upon it would depend on circumstances.

A party's ipse dixit could be cross-examined like any other evidence. It could be impeached with another evidence. It could be admitted. It could be left just uncontradicted. It is for the court, in evaluating the evidence to take every circumstance into consideration."

At page 193 Oputa, J.S.C. said that:

"there can be no question that a mere 'ipse dixit' is admissible evidence but it is evidence resting on the assertion of one who made it; where there is need for further proof 'a mere ipse dixit' may not be enough."

How then did the trial Court and the Court of Appeal treat the evidence in this case including the ipse dixit of the appellant. In short, they believed the testimony of the prosecution witnesses and rejected the testimony of the appellant as to the alleged delusion. The learned trial Judge after evaluating the evidence, concluded as follows:-

"of the accused which I have dealt with above the accused knew exactly what he had done although he believed what he did was right. In other words he knew he was killing the deceased for what the deceased did, but felt that the deceased deserved to be killed for that."

Earlier on he said:

"From all I have said above it is clear that the accused killed his wife because he did not want his wife to report him to her father. Obviously this is the motive especially when one reconciles this with the fact that the 1st P.W. during cross-examination stated that he had never settled any matter for the deceased and the accused since they were married for about 10 years."

The effect of these findings is that the learned trial Judge disbelieved the appellant's story about a delusion and a deer jumping on his back. The second portion I have quoted above clearly provides the evidence justifying the conclusion at page 58 of the record which I first set down above and in respect of which learned Counsel to the appellant complained.

These findings were affirmed by the Court of Appeal. As Uthman Mohammed, J.C.A. put it,

"There was nothing to show from that evidence or from the evidence of the prosecution witnesses that the appellant was suffering from even a temporary block of his mind as he alleged. I agree that the appellant was sane at the time of the attack ... The learned trial Judge is quite right to accept the evidence of PW2 and PW3 as the true fact of what happened before the appellant struck the deceased. I agree that motive for the killing must be attributed to the exchange or words between the appellant and the deceased."

These are concurrent findings of two courts and the attitude of this Court to such findings is now so well settled as to be trite. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; In re Mogaji (1986) 1 NWLR. (Pt. 19) 759; Niger Construction Ltd. v. Okugbemi (1987) 4 NWLR (Pt. 67) 787; Woluchem v. Gudi (1981) 5 S.C. 291, 326; Chinwendu v. Mbamali (1980) 3/4 S.C. 31. There is nothing that would justify interference by this Court. It seems to me that this claim of delusion by the appellant was an afterthought. He was obviously irked by the insistence of his wife to report their quarrel to her father. He could not, as it were, brook her impertinence and stubbornness. Although one would have liked to have had medical evidence in this matter (no one can be blamed for not providing one as the appellant in his two statements to the police could not have left any suspicion of mental imbalance, and of course there were the statements of the witnesses) but I entertain no doubt, which as learned Counsel to the appellant pleaded, could be resolved in appellant's favour. It is clear that the burden, albeit on the balance of probabilities, was on the appellant to establish by credible evidence that he suffered from a delusion. That burden was not discharged. See R v Omoni 12 WACA 511, 512; and Loke v. State (1985) 1 NWLR 1. The appellant's ipse dixit put against the other evidence was not enough.

Learned counsel to the appellant contended that the delusional state could have come suddenly and gone suddenly too. There is no medical evidence to support such a possibility. The evidence of DW2, for whatever it is worth, was that if the appellant was about to have a relapse those around him, if they were watching, would notice some changes in his conduct. The totality of the evidence of PW1, PW2, and PW3 was to the effect that the appellant was normal up to the time of the killing and immediately after. Besides, it is not easy to accept the possibility of this short-spanned delusion when all the definitions of delusion, both legal and medical, refer to a persistent, incorrigible belief, one that is inaccessible to reason. It seems to me that it is easier to deal with a case of delusion where there are no co-existing circumstances which may offer an alternative and cogent explanation for an accused person's conduct. Such co-existing circumstances were, unfortunately for the appellant, present in the instant case.

In the result, this appeal fails and it is dismissed. The conviction and sentence previously passed on the appellant are further affirmed.

Obaseki, J.S.C. I have had the advantage of reading in draft the judgment just delivered by my learned brother, Nnamani, JSC, and I find that all the opinions expressed therein on the issues raised in this appeal accord with mine. I adopt them as mine and I will, for the said reason dismiss this appeal. But before then, let me add a few comments on the vexed question of content and effect of the defences of insanity and delusion under section 28 of the Criminal Code Laws of Lagos State 1973.

The appellant herein killed his wife by inflicting matchet cut on her when she threatened in a heated verbal exchange on a farm road that she would report him to her father. The matchet cuts were inflicted in the presence of witnesses PW2 and PW3 who testified. Their evidence was believed and accepted by the two courts below. The appellant's defence in court was insane delusion, i.e. that he thought a deer jumped on his back as they walked along the farm road and he attacked the deer with his matchet but the cries of his wife that he was killing her made him realise that it was his wife he was matcheting and he stopped but it was too late. D.W. 1 and D.W. 2 gave evidence of appellant mental illness from 25 years previously and native doctor's treatment of the appellant for insanity. According to D.W. 2 when the appellant had attack of fits of insanity, he lost capacity to know what he was doing or to know that what he was doing was wrong and ought not to do it. He lost capacity to control his actions and he became violent. He then emphasised that the sickness does not just come suddenly but gradually and if those around watch him, they will notice it. Explaining his action in court he said:

"I cannot account for what I was doing. I could not control myself. I did not know that what I was doing was wrong."

The appellant has by his ipse dixit pleaded insanity under the first limb of section 28 of the Criminal Code. The mental illness resulted in his loss of capacity to understand what he was doing, to control his actions and to know that what he was doing was wrong. This, however was not accepted and counsel agree that it was not established. The second alternate defence put up was one of insane delusion which he suffered by thinking that he was attacking a deer that jumped on his back when he was actually matcheting his wife. In this case, he knew he attacked the deer (wife) with his matchet and he intended to kill the deer (wife). The evidence of PW2 and PW3 made this defence look spurious and fabricated.

The circumstance under which an accused person is entitled to the defence of insanity in the first leg of section 28 of the Criminal code has been well settled in several decisions of this Court. See

1.      R. v. Omoni 12 WACA. 511

2.      Loke v. The State (1985) 1 NWLR. 1

3.      Egbe Nkanu v. The State (1980) 3/4 SC. 1

4.      Rex v. Ashigifuwo (1948) 12 WACA. 389

5.      R. v. Ogor (1961) 1 All NLR. 70

The circumstance under which a defence of delusion on specific matter or matters avail to protect an accused person from Criminal liability is also well settled by judicial authorises of this Court . See R v. Omoni (supra)

See Ngene Arum v. The State (1979) 11 S.C. 91, 101

Benson Ihonre v. The State (1987) 4 NWLR. 67, 77

Effiong Udofia v. The State (1981) 11-12 SC. 49 at 59

What is delusion? Many definitions have been proffered I would adopt the following definition. Delusion may be defined as the belief of things as realities which exists only in the imagination of the patient. Mere eccentricity is not enough to constitute mental unsoundness, no great caprice nor violence of temper but that there must be an aberration of reason. See Dew v. Clark 3 Addams 97. The frame or state of mind which indicates his incapacity to struggle against such an erroneous belief constitutes an unsound frame of mind. Such delusions are generally attended with eccentricities, often with violence, very often with exaggerated suspicion and jealousies Warring v Warring (1848) 6 moo, pcc 341 at pp. 353, 354.

While insanity encompasses delusion, delusion does not encompass insanity. Where a defence of insanity exists a defence of delusion cannot arise for consideration. It is subsumed. According to section 28 of the Criminal Code, a defence of delusion arises only where a defence of insanity is not available to the accused. There is no doubt that the basic cause of insanity and delusion is a disease of the mind and hence the two defences have been properly treated and dealt with in the same section. But the degree of illness of the mind in insanity is infinitely more severe than the degree of illness in delusion. The loss of capacity in insanity need not attend the state of delusion. I therefore agree with Mr Nwazojie, learned Counsel for the appellant that insanity encompasses delusion. But for the distinction made by section 28 of the Criminal Code in the classification of the criminal liability attaching to the respective victims of insanity and delusion, detection of any difference in real life is difficult to make. The loss of capacity on which protection of persons afflicted with insanity rest can be said to exist in person afflicted with delusion. Obviously a person who takes a human being for a deer or goat cannot be said to have capacity to know what he was doing when he slaughtered the deer if his belief persists. However, he receives the protection from criminal liability as for insanity since he is made liable only if the state of things were as he believed it to be. The borderline cases of a person under delusion attacking a human being with a matchet because he believed he was stealing his purse takes delusion out of the sphere of insanity. This is because the accused knows it was a human being he was attacking. He also knows that it is a crime under our law to inflict matchet cuts on anyone. He only held a false belief that he saw the person take his purse whereas no such thing happened. This is because he is under insane delusion. Insanity does not avail him because he did not lose the capacity to know what he was doing or to know that what he did was wrong and he ought not to do it or to control his action. If he killed the person, he would be liable for murder. But if he had believed he saw the person was armed with a matchet and poised to attack and kill him he would be entitled to defend himself and if he inflicted any injury on the person or killed the person in defence, the defence of self-defence would be available to him by virtue of the second limb of section 28 of the Criminal Code because he did not lose any of the three capacities enumerated in the section which are pre-requisites before the defence is available.

In the instant appeal, the High Court and the Court of Appeal found that the appellant had the full capacities of a sane person and knew that he was matcheting his wife. They rejected the evidence of a split second appearance of his wife as a deer jumping on his back. It appears to me from the accepted evidence that he was provoked to attack his wife by her threat to report him to her father. The provocation does not warrant the slaughter. The attack was far in excess of any reaction the provocation offered warranted to reduce the offence of murder to manslaughter.

I hereby, for the above reasons and the reasons so ably set out in the judgment of my learned brother, Nnamani, JSC, dismiss the appeal and affirm the decision of the Court of Appeal.

Kawu J.S.C. I have had the privilege of reading in draft the lead judgment of my learned brother, Nnamani, J.S.C. which has just been delivered. I entirely agree with his reasoning and conclusion that this appeal lacks merit and should be dismissed.

There was evidence that on the day of the incident, there was some altercation between the appellant and his wife, the deceased. This was in the presence of PW2 and PW3. In this regard, PW2, the daughter of the appellant testified as follows:-

"On reaching the farm the farmer told them they were to cultivate an area. At this stage after cultivating about 3 plants my father and mother started to exchange words there the farmer asked them to stop the exchange. We then left the farm and my mother said that she (sic) was going to report my father to her own father the 1st P.W. My father prayed my mother not to go and report but my mother insisted that she was going to report. At this stage the accused with the cutlass in his hand matcheted my mother on her leg and shoulder. The accused then ran away."

The appellant's defence was that of delusion. He said that as they were leaving the farm "something jumped on me and I thought my wife was an animal called Igala hence I matcheted the animal."

Now the defence of delusion is provided under the second limb of section 28 of the criminal code, which reads as follows:-

"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 provision of this section, is criminally responsible for the act or omission to the same extent as if the real state of things has been such as he was induced by the delusions to believe to exists."

In the section, it is plain that the appellant could only avail himself of the benefit of the section if it was established that there was a delusion that the animal jumped on his back. In my view the fact that the appellant ran away immediately after his dastardly act strongly supported the conclusion that his defence was an afterthought. In the circumstances I am of the view that his defence was rightly rejected.

It is for the above reasons and for the fuller and more detailed reasons of my learned brother, Nnamani, J.S.C. in the lead judgment that I too will dismiss the appeal and affirm the decision of the court below.

Oputa, J.S.C. I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother, Nnamani, J.S.C and I am in entire agreement with him that this appeal ought to be dismissed.

The facts of case as testified and disposed to by the prosecution witnesses were rather straightforward and by no means complicated. On the fateful day, 24/7/80, the appellant went to the farm with the deceased his wife, their daughter, Yidiatu Sarafa called as PW2, and the sister of his wife, Saraga Hassani called as PW3. While in this farm, a small disagreement developed between the appellant and his wife. They exchanged words. The owner of the farm calmed them down and warned them not to quarrel again. The group soon left the farm. On their way home the appellant and his wife resumed their quarrel with the wife threatening to report the appellant to her father. The appellant begged her not to, but to no avail. Thereupon the appellant pounced on the wife, inflicting on her severe matchet cut wounds on the legs and shoulders. The appellant then ran away. The wife fell down and later died as a result of the wounds inflicted on her by the appellant. From the above as deposed to by PW2 and PW3 who were believed by the two lower court, it cannot be in dispute that the appellant killed the deceased.

What was the defence of the appellant? His two witnesses gave evidence tending to show that the appellant took ill 25 years ago. He was mad and was treated by herbalist, Rasaki Owolabi called as D.W. 2. The appellant himself gave evidence in his own defence. And his defence was that while he and the deceased were on their way home from the farm "something jumped upon me and I thought my wife was an animal called Igala (deer) hence I matcheted the animal." The appellant continued:-

"while I was matcheting her she was shouting my name Baba Ebun and that it was she I was matcheting. There and then I dropped the cutlass and carried her. The children at this time ran away ... I can not account what I was doing. I could not even control myself. I did not know that what I was doing was wrong."

From the above, it looks very much as the defence being put forward was the defence of insanity. This is even confirmed by the evidence of DW1 and DW2 who specifically mentioned that the appellant's illness was madness.

Before one can consider, on appeal, the issues raised on both sides, one should first have a hard look at how the trial court evaluated the evidence led before it and what findings of fact were made. The trial court believed the prosecution witnesses, PW2 and PW3 and found as a fact that the appellant killed his wife Muniatu Latifu, "that her death was caused by the act of the accused by using Ex. B (a cutlass) on her."

The trial court then considered the appellant's defence of insanity which appeared obvious from his evidence and those of his witnesses DW1 and DW2, and found that "the accused knew exactly what he had done ... In other words he knew he was killing the deceased for what the deceased did, but felt that the deceased deserved to be killed for that." I must however say that the defence of delusion was not methodically considered by the learned trial Judge who seemed to be moving from insanity to delusion forward and backward.

Now the entire appeal is based on the defence of delusion. The questions then arise:-

1.      What is delusion under our law?

2.      What evidence of delusion can one find from the record of proceeding?

The subject of insanity and delusions and the appropriate defences under the first and second limbs of section 28 of our Criminal Code Cap 42 of 1958, have produced a wealth of judicial decisions namely to mention but a few recent one):-

1.      Ngene Arum v. The State (1979) 11 S.C. 91 at p. 101

2.      Effiong Udofia v. The State (1981) 11-12 SC. 49 at p. 59

3.      Goodluck Oviefus v. The State (1984) 10 SC. 207 at pp. 258/259.

4.      Lord Samuel Akhidime v. The State (1984) 9 S.C. 24 at p.33.

5.      John Loke v. The State (1985) 1 NWLR 1 at p. 5

6.      Benson Ihonre v. The State (1987) 4 NWLR 778.

All these cases, and more, have interpreted section 28 of the Criminal Code Cap 42 of 1958 Laws of the Federation and highlighted what needs to be established before an accused person can avail himself of the defence of either insanity or delusion.

Our law on delusion is covered by the second limb of section 28 of the Criminal Code which reads:-

"Section 28 ... 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 has been such as he was induced by the delusions to believe to exists."

I have underlined above "affected by delusions on some specific matter or matters." It is my view that the second limb of section 28 above does not contemplate general and absolute delusion which will, of course, be indistinguishable from insanity. It rather contemplates an otherwise normal person but who in respect of certain matter or matters behaves abnormally because his mind is affected by delusion with regard to that specific matter or to those specific matters. It is like someone who is not totally blind but who is unable to distinguish between certain colours; who is always taking a particular colour for another. Incidents abound where people suffer from, say persecution mania. Such people are deluded, and they fight against an imaginary persecution. The important thing to not about the second limb of section 28 above is not so much the general definition of delusion but the fact that the mind of the accused during the material time when he did or omitted to do the act leading to the death of his victim, was affected by delusion and it must be delusion on some specific matter or matters.

In the case now on appeal, is it being suggested that whenever the appellant sees a woman his delusion will make him believe a deer has jumped on his back forcing him to fight back in self-defence? If so he should have killed his wife long before the date she was actually killed. Is it being suggested that whenever he quarrelled with a woman his deluded mind will conjure up a deer pouncing on his back? I am unable to single out the specific matter or matters on which the mind of the appellant was so affected by delusion that he could now claim the protection of the second limb of section 28 of the Criminal Code.

Again what were the findings of fact of the learned trial Judge? It is only on the evidence as accepted by the trial judge that any defence can hopefully be built. One cannot prop up his defence by evidence that had been rejected. The submissions on delusion made before us were, as it were, made in vacuo.

Delusion was discussed as an academic postulate. That is good for the universities. But for the law court any submission on delusion must be posited on a firm foundation of facts, proved by credible evidence. The learned trial Judge believed the prosecution witnesses especially PW2 and PW3 He disbelieved the appellant's story. He found that the appellant:

"knew exactly what he had done although he believed what he did was right. In other words he knew he was killing the deceased for what the deceased did, but felt that the deceased deserved to be killed for that" (see p. 59 Lines 1-5).

Delusion presupposes that the appellant did not know that he was killing his wife. It presupposes that the appellant thought he was killing a deer, though he thought so erroneously. Now with a finding that the appellant knew he was killing his wife the deceased, there is not much room left for anyone to proffer a defence based on delusion or to thus find sanctuary in the second limb of section 28 of the Criminal Code.

For the reasons given above and also for the fuller reasons given in the lead judgment of my learned brother, Nnamani, J.S.C. which I now adopt as mine, I will dismiss this appeal, affirm the conviction and sentence of the trial court and confirm the appeal judgment of the Court of Appeal.

Wali, J.S.C. I am privileged to have read before now, the lead judgment of my learned brother Nnamani, J.S.C. I entirely agree with his reasoning and conclusions and I also adopt the same as mine.

The appellant was convicted of murder of his wife by matcheting her to death. PW2, the daughter of the appellant and the deceased, aged 10 at the time she gave evidence on oath narrated what happened on the day of the incident. She accompanied the appellant and the deceased to the farm, and while working there, she said the appellant and the deceased started exchanging words the case of which she did not know. They left the farm and started walking back home. It was then the deceased threatened that she would report the appellant to her father. The appellant begged her not to do so but to no avail.

Continuing with her evidence she said:

"At this stage the accused with the cutlass in his hand matcheted my mother on her leg and shoulder. The accused then ran away."

PW3, a sister of the deceased who was 11 years at the time she testified on oath was also in company of the appellant and the deceased at the time the appellant inflicted the mortal wounds on the deceased. She said:-

". we heard the deceased saying that she was going to report to her father. The accused begged her not to but she insisted she was going to report. It was then the accused turned round and matcheted her with the cutlass in his hand. My auntie said 'Se okuku fe pa ohun ni' meaning 'do you want to kill me?' The accused then used the cutlass again on her shoulder."

The evidence quoted (supra) did not show any abnormal behaviour on the part of the appellant shortly before or immediately after the incident to suggest any abnormality of mind. This was further confirmed by the evidence of PW1 where he said:

"when my mother died the accused came to Solejegi Village with his friend for the funeral ceremonies of my mother after the third day the accused went back to his house. My daughter the accused's wife was also there and they all left together for their home."