JOSEPH ADELU v. THE STATE
(2011)LCN/4576(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of May, 2011
CA/I/134/07
RATIO
EVIDENCE OF AN ACCUSED PERSON: CONSEQUENCE OF AN ACCUSED PERSON’S REFUSAL TO GIVE EVIDENCE IN EXPLANATION OF WHAT ACTUALLY HAPPENED
…where an accused person elects not to give evidence in explanation of what actually happened, he must accept responsibility for his actions as inferred from his conduct and the prevailing circumstances. see Nafiu Rabiu v. The state (1990) 2 NLR 50. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
DEFENCE OF THE ACCUSED PERSON: WHETHER EVIDENCE FROM THE PROSECUTION TENDING TO SUPPORT ANY DEFENCE AVAILABLE TO AN ACCUSED PERSON MAY BE UTILIZED BY THE ACCUSED WITHOUT THE ACCUSED CALLING EVIDENCE FOR HIS DEFENCE
It is now trite that evidence from the prosecution tending to support any defence available to an accused person may be utilised by the accused without the accused calling evidence for his defence. In Ejinima v. The State (1991) 6 NWLR (Pt. 200) 627 at 650, for instance, the Supreme Court held inter alia that: “Whilst evidence of his own insanity tendered by the accused is suspect and is not usually taken seriously for establishing his insanity see Onyekwe v. The State (1988) 1 NWLR (Pt. 72) 565, evidence of insanity tendered by the prosecution even if the defence tendered none could be taken into account in determining whether the accused was insane at the material time – see Kure the State (1988) 1 NWLR (Pt. 71) 404. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
INSANITY: PRECONDITION FOR THE DEFENCE OF INSANITY BASED ON DELUSION TO AVAIL AN ACCUSED PERSON
Apart from the clear wording of section 28 which amply support the reasoning of the trial court and the Court of Appeal, there are a host of authorities coming from this Court making it abundantly clear that before the defence of insanity based on delusion can be of any avail to an accused person, the reaction of the accused person to the state of things as believed by him must be such that it could be regarded as legitimate and natural reaction to such a state of things. See: 1. Ngene Arum v. The State (1979) 11 SC. 91 2. Egbe Nkanu v The State (1980) 3 – 4 SC.1 3. Effiong Udofia v. the State (1984) 11 – 12 SC.49; and 4. M.A. Sanusi v. The State (1984) to SC. 166. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
INSANE DELUSION: MEANING OF THE WORD “INSANE DELUSION”
Insane delusion is a product of a disordered mind which imagines facts to exist and adhered to against all evidence and reason to the contrary. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
DELUSION: CIRCUMSTANCE UNDER WHICH AN APPELLANT CAN RELY ON A DELUSION
The position in law is that Appellant can only rely on a delusion where he can show that there is a nexus between the delusion suffered and the offence committed. By this I mean that a delusion can only be relied upon to exclude criminal liability where the act or omission which appellant was induced to commit flows from the delusion and if true would not constitute an offence. This is because the accused is criminally responsible only 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 act or omission must result from the delusion. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
DEFENCE OF INSANITY: WHAT MUST BE PROVED FOR THE DEFENCE OF INSANITY UNDER SECTION 28 OF THE CRIMINAL CODE WILL AVAIL AN ACCUSED PERSON
For the defence of insanity under section 28 of the criminal code to avail an accused person, he must prove that at the time the offence was committed he lacked; (a) The capacity to understand what he was doing, (b) Capacity to control his Action (c) Capacity to fn6w that he should not do the act or make the omission. For the second limb of section 28 of the criminal code to avail an Accused person as a Defence, he must show that there is a set of facts which does not actually exist but which he imagines to exist, that as a result of his belief that set of facts actually exists as he imagined them, he commits an act of omission or commission which has resulted in the charge on which he stands Trial and that if those facts had existed as so imagined by him they would have amounted to a complete defence to his act which is called in question even though the factual situation was not real. See Guobadia vs The State (2004) 2 S.C. (Pt. 11) 140; Josephine Ani vs The State (2002) 9 MJSC 172; Daniel Madjemu vs The State (2001) 4 MJSC 113; Gozie Okeke vs The State (2003) 5 SCM 131; Francis Ezediufu vs The State (2001) 17 NWLR (Pt. 741) 82. PER SIDI DAUDA BAGE, J.C.A
JUSTICES:
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
JOSEPH ADELU – Appellant(s)
AND
THE STATE – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivering the Leading Judgment): The appeal is against the conviction and sentence to death of the appellant by the High Court of Justice of Ogun State holden at Ilaro for the murder of his uterine junior sister, one Dorcas Adelu, contrary to section 319(1) of the Criminal Code Law (Cap.29) Laws of Ogun State, 1978.
Concisely rendered, appellant was an apprentice barber under his first cousin at Odogbolu. On 19.7.03, appellant prevailed on his cousin to, take him home at Makuta Agada village via Idiroko. They arrived there on 22.7.03. Shortly after their arrival, appellant was seen brandishing a cutlass which forced people to run helter-skelter for safety.
The P.W. 4, appellant’s cousin, tried to wrest the cutlass from him. Appellant warned him to stay off. He persisted. Appellant struck him a cutlass blow on the head and ran into a nearby bush.
Appellant slipped from the bush into his father’s house where he dealt several mortal cutlass blows on his uterine junior sister who died from the cutlass blows on the way to hospital on the same day.
The court below relied on the one track evidence led by respondent to convict appellant as charged and sentenced him to death by hanging.
The notice of appeal with one original ground of appeal and two additional grounds challenged the judgment of the court below under two issues formulated there from by Mr. George M. Oguntade in the brief of argument prepared on behalf of the appellant to wit:
“(i) Whether the trial Judge was right in finding that there was no evidence on the record upon which the defence of insanity relied upon by the Appellant could be sustained?
(ii) Whether the defence of insanity as provided for by section 28 of the Criminal Code ought to have availed the Appellant?”
It was submitted on issue (i) (supra) that the testimonies of the P.W.2, P.W.3, P.W.4 and P.W.5 together with appellant’s statements to the police in Exhibits C and C1 contained material evidence grounding the defence of insanity in line with the cases of Abubakar v. The State (2005) 1 NCC 24 at 25; Okere v. The State (2003) CLR 2(d) and Loke v. The State (1985) 1 NWLR (pt.1) 9.
It was submitted on issue (ii) (supra) that the appellant’s defence came specifically under the second leg of section 28 of the Criminal Code on insane delusion as shown in his statements to the police in Exhibits and C1, therefore the court below should have upheld the said defence vide Guobadia v. the State (2004) 6 NWLR (Pt. 869) 81; Ejimina v. The State (1991) 6 NWLR (Pt. 200) 627 and section 28 (2) of the Criminal Code.
Respondent’s brief of argument settled by Mrs. Oduniyi, learned Director of public Prosecutions (D.P.P) of Ogun State, on behalf of the respondent, and was deemed filed on 13.12.10, in which one issue was formulated for determination on the appeal as follows:
“(i) whether from the totality of evidence adduced at the trial, the defence of insanity will avail the accused person/Appellant or not.”
It was canvassed in the respondent’s brief that the death of the deceased which was caused by appellant was proved beyond reasonable doubt on the evidence of the P.W.1 to the P.W.6 and appellant’s statements to the police in Exhibits C and C1 read with the cases of Musa v. The State (2009) 9 SCM 63 a t 75 and Uwagboe v. The State (2006) Q.C.C.R. Vol. 8 1 at 18-19; that by section 27 of the Criminal Code Law of Ogun State, appellant was presumed to be of sound mind as the time he murdered the deceased and the burden was on appellant to prove the contrary with credible evidence based on the balance of’ probability vide Edoh v. The State (2010) 6 SCM 52 at 73 – 73, 78 – 79, ANI v. The State (2001) 17 NWLR (Pt. 742) 411 at 427, Asanya v. The State (1991) 3 NWLR (Pt.180) 422 at 452 and 470; though appellant tendered no evidence in the court below, it none-the-less considered the defence of insanity on the evidence led by the respondent before it convicted appellant as charged vide Edoho (supra) at page 72.
The respondent’s brief contended further that appellant suffered no mental illness prior to the day of incident or on the day of incident, of thereafter as shown in the evidence of the P.W.3, P.W.4, P.W.5 and Exhibits C and, C1 which were corroborated by P.W.1’s evidence on the nature of the murder of the deceased entitling the court below to reject the appellant’s defence of insanity vide the cases of Asanya (supra), Ani (supra), Edoho (Supra) and Oladele v. The State (1993) 1 NWLR (Pt. 269) 294 at 307; that the behaviour or conduct of appellant at his trial in the court below would be relevant in considering his defence of insanity vide Arum v. The State (1979) 1 S.C. 91; that the defence of insanity and delusion have different elements vide Edoho (supra) and Yusufu v. The State (1998) 4 NWLR (Pt.86) (?) 96; that the defence of witchcraft canvassed by appellant is untenable under the Criminal Code vide Edoho (Supra) at, Page 76; and that the court below properly evaluated the evidence before it and based its decision on the demeanour of the witnesses and the evidence adduced by the respondent, therefore the Court cannot intervene in the circumstances and the appeal should be dismissed vide Sule v. The State (2009) 9 SCM 172 at 194 and Asanya (supra) at 471.
Appellant’s reply brief settled by Mr. Temitope Odesola of learned counsel on behalf of appellant was deemed filed on 7.3.011, in which it was submitted that the intent or mental element of the offence of murder was not proved by the prosecution vide Aigu Oreghian v. The State (2004) 3 NWLR (Pt. 860) 422, Ajose v. The State (2002) 7 NWLR (Pt.766) 302, Uguru v. The State (2002) 9 NWLR (Pt.771) 90, and Adekunle v. The State (2002) 16 NWLR (Pt.756) 169; that the court below was bound to consider possible defences open to appellant from the evidence tendered by respondent vide Okonkwo v, The State (1998) 24 NWLR (Pt. 544) 155 – 156, Karimu v. The State (1989) 1 NWLR (Pt. 95) 140 at 147, 150 to 152; that the said evidence proved appellant was insane at the time of the murder of the deceased citing in aid Criminal Law in Nigeria (second Edition) by Okonkwo and Naish at page 136
Appellant’s reply brief also referred to Yusufu v. The State (supra) at pages 115-116 and Arisa v. The State (1988) 3 NWLR (pt.83) 405 to contend that at the time of the alleged killing of the deceased appellant had a mental delusion which momentarily gripped him and deprived him of the mental capacity to know what he was doing when he, killed the deceased; that appellant’s reference to his late junior sister as “a red doll in the “house” while talking to the P.W.2 showed he suffered from insane delusion at the material time and was not in control of his action at the time he killed the deceased, and the appeal should be allowed vide Criminal Law (11th Edition) by smith and Hogan at page 265.
Since appellant’s learned counsel did not relate the issues for determination to the grounds of appeal, rendering appellant’s brief inelegant, respondent’s all encompassing single issue for determination (supra) is preferable and is hereby adopted for the resolution of the, appeal.
The eye-witness account of the macheting of the deceased by appellant on the fateful day – 27.3.03 – which led to the deceased’s death on the same day was given by the uncontradicted combined evidence of P.W.1, the medical doctor, (who certified the deceased dead on 27.3.03), the P.W.2 (appellant’s mother) who met appellant alone with the deceased in the room where he had macheted her and the P.W .4, (appellant’s father) who witnessed the macheting of the deceased by appellant and took the deceased to the hospital on the same day where the P.W.1 the medical doctor, certified her dead on the same day from “strong degree of haemorrhic shock” caused by “multiple deep lacerations on the left side of the neck from a sharp object” cumulatively proved beyond reasonable doubt that the physical act or acteus reus of the appellant caused the death of the deceased. The defence also conceded that much in the final address in the court below.
The court below found as a fact that the physical act of inflicting machete blows on the deceased by appellant caused the death of the deceased on the same day of the mortal attack. The said finding of fact is unassailable. It is supported by the credible evidence of the witnesses for the respondent in the court below to the effect that the deceased died on the same day from fatal machete wounds inflicted on her by appellant. I affirm same accordingly – see Adamu v. Kano Native Authority (1956) 1 F.S.C. 25, where the then Federal Supreme Court held that the court could properly infer that the accused caused the death of the deceased from the circumstances that accused stabbed deceased twice in the stomach and back and two days later deceased died. It is, accordingly, futile for appellant to shift ground by arguing on the appeal that death of the deceased by the physical act of macheting her by appellant was not proved beyond reasonable doubt by the respondent in the court below.
Moreover, by raising the defence of insanity, appellant is taken to have conceded the prima facie commission of the physical element of the offence charged – see Madjemu v. The State (2001) 5-6 SCNJ 31 at 40 as follows:
“The raising of the defence of insanity provided in section 28 of the Criminal Code are prima facie an acceptance of the act complained of.”
The physical act of appellant in attacking his junior sister and inflicting fatal machete blows on her leading to her death on the same day from the machete wounds was, accordingly, proved beyond reasonable doubt by the evidence tendered by the respondent through the P.W.1 to the P.W.6 and the appellant’s statements to the police in Exhibits C and C1, in my view.
Appellant’s defence was anchored on the second limb of section 28 of the Criminal Code dealing with insane delusion, which is momentary mental incapacity in contradistinction to the wider scope of insanity under the first limb of section 28 of the same Code possessing historical antecedent of the mental incapacity. I would agree with appellant’s learned counsel that there is no confusion between the first limb and the second limb of section 28 of the Criminal Code and, his client is entitled to build his defence on the second limb thereof – see Yusufu v. The State (supra) at pages 115 – 116 thus:
“It is my view that the second limb of s. 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 in respect of certain matter or matters behaves abnormally because he 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 note 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.” (My emphasis)
Of course, appellant was entitled to rely on the evidence of the respondent without calling evidence towards proof of the defence of insane delusion – see Karimu (supra) at page 151 thus:
“…the evidence of insanity would normally come from the defence who raised it. But it does not cease to be relevant evidence, if it comes from the prosecution…” (My emphasis)
No doubt the court below, in my view, handled the physical element of the offence of murder admirably. The nagging issue on the appeal, however, is whether the mental state of the appellant at the time of the commission of the offence was adequately considered by the court below. The findings made by the court below are, for ease of reference, copied below:
“In the instant case, the prosecution did not adduce any evidence in proof of defence of insanity; rather, the defence was raised in the learned counsel’s address. This I hold is not acceptable.
Consequently, I hold that the defence of insanity was not properly raised and not proved at all. It can therefore not avail the accused person.
Furthermore, the accused exercised his right of silence under the provisions of section 36(11) of the 1999 constitution of the Federal Republic of Nigeria by electing not to testify at the trial. That where an accused person elects not to give evidence in explanation of what actually happened, he must accept responsibility for his actions as inferred from his conduct and the prevailing circumstances. see Nafiu Rabiu v. The state (1990) 2 NLR 50.
For the foregoing, I hold that the prosecution has proved the charge of murder beyond reasonable doubt against the accused person, while the defence failed to discharge the burden place on it by law.”
It is clear from the above copied portion of the judgment of the count below that it did not give adequate consideration to the defence of insanity raised on behalf of the appellant in the final address of his learned counsel. The mantle is therefore on this Court to consider the said pieces of evidence as it is entitled to do under section 15 of the Court of Appeal Act 2004, as amended by the Court of Appeal (Amendment) Act, 2005, read with the case of Annabi v. State (2008) 13 NWLR (Pt. 1103) 179 at 196.
The pieces of evidence on the behaviour of appellant on the fateful day came from the respondent’s witnesses; The P.W.2, his mother and the mother of the deceased, testified inter-alia thus:
“I remember 22/7/03. On that day the accused person came from Odogbolu where he was an apprentice barber. In fact he was responsible for our upkeep – Dorcas and I.
On getting home he informed me that he did not know how he was feeling. I cooked local herbs and food for him, He ate. Thereafter, he decided to clear the grass around the house as his father who could have done same was ill. Suddenly he started running with the cutlass one of his uncles observed him and followed him with the aim of taking the cutlass from him, he hit that uncle with the cutlass, thereby inflicting injury on him. The uncle is Timothy Dosunmu; he is the same as Timothy Abioro.
The accused started running, he ran into the house, met Dorcas his junior sister sleeping, and inflicted matchet cuts on her, thereby killing her. When I got to the house, the accused told me not to enter saying he saw a red doll in the house. I carried Dorcas and took her to the hospital.”
The P.W.3, appellant’s first cousin, testified inter-alia thus:
“I remember 19/7/03. On the said day we were in the shop when the accused said he wanted to go home to his parents, when he persisted, I took him home to Makuta Agada village via Idiroko. I handed him over to his parents and went to our own house.
About an hour later I heard noise, I went out of the house to enquire what happened, I saw people running and they told me that the accused held a cutlass and was running round the village. I then saw the accused running with cutlass, I ran after him, caught up with him and as I tried to take the cutlass from him he hit me on the head thereby inflicting cut on my head, I then went to the hospital for treatment.
Cross-examination: when I took the accused person back to the village. I did not observe that he suffered mental illness.
On 19/7/03 the accused pressurized me to take him back to the village. He never behaved like that in the past. I do not know why he behaved that way. I knew the accused person from birth, we are first cousins. ”
Appellant’s father, the P.W.4, swore inter-alia that:
“Suddenly, I heard noise outside, I came out and saw the accused person threating people with a cutlass, I scolded him and asked him to release the cutlass to me. He warned me not to move close to him as he was dangerous. P.w.3 too came out and saw him, he tried to collect the cutlass from him, the accused hit him on the fore-head with the cutlass and P.W.3 started bleeding. I gave him my cloth to clean the blood.
The accused then ran into a bush. We looked for him but did not see him and we went back home. It is true the accused was wild when he held the cutlass.
That was not his first time of coming home since he left for Odogbolu as an apprentice. I suspected that something was wrong with the accused when he started chasing people with a cutlass.
I told the police that I took the deceased and p.w.2 to the hospital.”
The above pieces of evidence were before the court below. It believed the witnesses. I accept the said pieces of evidence accordingly.
It is now trite that evidence from the prosecution tending to support any defence available to an accused person may be utilised by the accused without the accused calling evidence for his defence. In Ejinima v. The State (1991) 6 NWLR (Pt. 200) 627 at 650, for instance, the Supreme Court held inter alia that:
“Whilst evidence of his own insanity tendered by the accused is suspect and is not usually taken seriously for establishing his insanity see Onyekwe v. The State (1988) 1 NWLR (Pt. 72) 565, evidence of insanity tendered by the prosecution even if the defence tendered none could be taken into account in determining whether the accused was insane at the material time – see Kure the State (1988) 1 NWLR (Pt. 71) 404.”
The accepted unchallenged pieces of evidence from the p.W.2, P.W.3, and P.W.4, all family members of the appellant, established that prior to the fateful day appellant was a caring sober minded person who had no history of mental instability or insanity. He was, according to P.W.2, responsible for her upkeep and that of the deceased. The presumption of sanity or soundness of mind of appellant under section 27 of the Criminal Code Law of Ogun State was, accordingly, confirmed by the P.W.2, P.W.3, and the P.W.4, in my view.
The critical question is whether the sanity or soundness of mind of appellant suddenly took leave of him and left him in a state of delusion at the time he inflicted machete wounds on the deceased resulting into her death. In determining the issue, it was the time of the occurrence of the murderous act complained of that the appellant’s behaviour may be assessed to see whether he was in a state of delusion at the time of the commission of, the offence. I most respectfully think not. Because appellant appreciated at the material time that he was dangerous and warned the P.W.4, his father, to steer clear of him on that account.
Now could the above copied pieces of evidence from the P.W.2, P.W.3 and P.W.4 who have filial attachment to appellant be said to have established the, defence of delusion canvassed by appellant? Ejinima (supra) establishes it in page 644 of the law report that:
‘The surest way of establishing insanity is by medical evidence. Proof of insanity can however be established from compelling evidence of eye witnesses, particularly relatives of the accused, relating to his general behavior before, during and after the incident. The problem however in relying on the evidence of relative only without medical report or evidence is that there are certain traits in human beings, to varying degree, which are sometimes mistaken for insanity. Some of them are irascibility, irritability, eccentricity and querulousness. Persons afflicted with any of these traits to high degree are easily spurred to violence and wrongly regards as beings insane by the uninformed. “(My emphasis)
Also, the appellant had, according to P.W.2 and P.W.3, referred to his uterine junior sister as a “red doll” after inflicting several fatal machete blows on the same side of her neck which caused her death. Certainly a “red doll” cannot be a threatening object to constitute a state of things believed by appellant to warrant deadly reaction to it by the appellant as a legitimate and natural reaction to such state of things. Because a doll is:
“A child’s toy in the shape of a person, especially a baby or a child…”
(See Oxford Advanced Learner’s Dictionary 6th edition, at page 345.) A doll is thus quite a harmless object that should not have constituted a state of things to draw mortal hostility from the appellant acting legitimately and naturally to it – see Ejinima (supra) at page 647 as follows:
“Apart from the clear wording of section 28 which amply support the reasoning of the trial court and the Court of Appeal, there are a host of authorities coming from this Court making it abundantly clear that before the defence of insanity based on delusion can be of any avail to an accused person, the reaction of the accused person to the state of things as believed by him must be such that it could be regarded as legitimate and natural reaction to such a state of things. See:
1. Ngene Arum v. The State (1979) 11 SC. 91
2. Egbe Nkanu v The State (1980) 3 – 4 SC.1
3. Effiong Udofia v. the State (1984) 11 – 12 SC.49; and
4. M.A. Sanusi v. The State (1984) to SC. 166
Insane delusion is a product of a disordered mind which imagines facts to exist and adhered to against all evidence and reason to the contrary. If in the instant case in his delusion the appellant believed that he had been poisoned by p.w.7 and somehow he perceived his three little children grow up overnight to be giants and menacingly approach him with the mind of inflicting deadly blows on him and he axed them to death to avoid the tragedy seemingly befall him, insane delusion would be a valid defence to a charge of murder.”
Furthermore, the appellant’s statement to the police, Exhibit C1, recollected in lucid or coherent form the events that led to the deceased’s death as follows:
“I am a native of Maguta Village. My father’s name is Adelu while my mother’s name is Alaba. I went to Agada Methodist primary school where I drop out of school in primary V before I went to learn handwork because I am not brilliant. My parents live in our village. I am a barbing apprentice under casmas whose real name is Timothy. I have been an apprentice for the past four years. It was the police that arrested me on the allegation that I killed somebody. And I know that I killed two people. I killed my mummy and I also killed my junior sister named Dorcas. It was the handwork of the devil that made me to kill them. They did not offend me before I kill them. There was a spirit directing me to go and cut an electric pole down and if I cannot, anybody I come across I should kill that person, and by doing that I have conquered. When I was cutting an electric pole along Gude road and it did not fall, I then ran back home shouting that anybody who did not leave the road that I will kill the person, the people that saw me were running away from me until I got to our house and I kill my sister (Junior) and my mother. I am now being informed that my mother is now in the hospital. The Evil spirit has left me, its no longer with me now. I have calmed down.”
Exhibit C1 (supra) was voluntarily made by the appellant on 25.7.03, about three days after the deceased was killed. The appellant attributed his murderous act to the work of the devil or evil spirit, not to delusion on some specific target or matters as to bring his defence under the second leg of section 28 of the Criminal Code Law dealing with delusions to wit –
“A person whose mind, at the time of his doing or omitting to do an act, is afflicted by delusions on some specific 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.”
Ejinima (supra) at page 653 further throws light on the ambit of the defence of delusion thus:
“The delusion suggested in this case from the evidence of PW4 and pw5 the wives of the appellant, was that appellant always believed that his wives would desert him and that they were committing adultery. Appellant also believed that he was poisoned by his wife. The position in law is that Appellant can only rely on a delusion where he can show that there is a nexus between the delusion suffered and the offence committed. By this I mean that a delusion can only be relied upon to exclude criminal liability where the act or omission which appellant was induced to commit flows from the delusion and if true would not constitute an offence. This is because the accused is criminally responsible only 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 act or omission must result from the delusion. It is difficult to imagine how a delusion as to the adultery of wives or being poisoned by a wife has anything to do with the killing of one’s children. It is possible to conceive the situation where the delusion was that the children of the appellant were his goat, which he is entitled to kill. If that were his delusion, he would have only been criminally responsibly to the extent that he was entitled to kill his goats.”
From what has fallen from me so far, I am of the view that the totality of the evidence for the respondent upon which appellant predicated his defence of delusion or insane delusion is too tenuous to support the said defence on the balance probability. The defence of insane delusion is, accordingly, not available to the appellant – see Yusufu (supra) at pages 105 to 107, 112-113, 115-116, and Ejinima (supra).
The appeal, though vigorously argued by both sides of the legal contest, has no merit. I would dismiss it and affirm the conviction and sentence of the appellant by the court below (Dipeolu J).
MODUPF FASAINMI, J.C.A: I had the opportunity of reading in advance the lead judgment of my learned brother J. S. Ikyegh J.C.A.
I entirely agree with the reasoning and conclusion arrived therein. I adopt same as mine. I too hereby dismiss the appeal for being unmeritorious. I abide by the consequential order made.
SIDI DAUDA BAGE, J.C.A: I had the privilege of reading in draft the lead judgment of my learned brother J.S. IKYEGH. J.C.A. I entirely agree with the judgment. I wish however to add a word or two.
For the defence of insanity under section 28 of the criminal code to avail an accused person, he must prove that at the time the offence was committed he lacked;
(a) The capacity to understand what he was doing,
(b) Capacity to control his Action
(c) Capacity to fn6w that he should not do the act or make the omission.
For the second limb of section 28 of the criminal code to avail an Accused person as a Defence, he must show that there is a set of facts which does not actually exist but which he imagines to exist, that as a result of his belief that set of facts actually exists as he imagined them, he commits an act of omission or commission which has resulted in the charge on which he stands Trial and that if those facts had existed as so imagined by him they would have amounted to a complete defence to his act which is called in question even though the factual situation was not real. See Guobadia vs The State (2004) 2 S.C. (Pt. 11) 140; Josephine Ani vs The State (2002) 9 MJSC 172; Daniel Madjemu vs The State (2001) 4 MJSC 113; Gozie Okeke vs The State (2003) 5 SCM 131; Francis Ezediufu vs The State (2001) 17 NWLR (Pt. 741) 82.
Finally I also dismiss the appeal, and affirm the conviction and sentence of the appellant by the court below (Dipeolu J.)
Appearances
MESSRS. G.M. OGUNTADE and T.M. ODESOLA For Appellant
AND
MRS. P.F. ODUNIYI (DPP, OGUN STATE) For Respondent
