IN THE SUPREME COURT OF NIGERIA
On Friday, the 16th day of November 1979
SC. 17/1978
Between
NGENE ARUM ................. APPELLANT
And
THE STATE ............... RESPONDENT
In the early hours of the morning of the 8th day of August, 1973, the appellant inflicted matchet cuts on the deceased-his brother, thereby causing the latter's death. Prior to the incident, the appellant and the deceased had been on excellent terms.
After police investigations into the complaint by P.W. 2-the deceased's son, the appellant on being arrested made a voluntary statement in Ibo, Exhibit G admitting that he inflicted matchet cuts on the deceased because the deceased stole his money, said something adverse to the appellant's interest to the appellant's employer, tried to bewitch him, and tried to gang up people against him. The statement was translated to English in Exhibit G1.
Following a pre-trial request by the appellant's counsel, the learned trial Judge (Umezinwa, J.) ordered that the appellant be medically examined as to his sanity. A consultant psychiatrist at the University Teaching Hospital, Doctor Warrick Onyeama, (D.W. 1) who observed the appellant on two occasions-10th May 1976 and 7th June 1976 (about 2 1/2 years after the event) testified that he found the appellant's mental state to be normal on the two occasions, but that the appellant remained convinced of the justification of what he did and this attitude remained inaccessible to any contrary argument. He further stated that it was D.W.1's feeling at the time that the appellant might be suffering from a delusion, the existence of which will suggest an underlying mental illness.
On 16th August 1976, the appellant was convicted at the Enugu High Court of the murder of the deceased and sentenced to death. His appeal from the said conviction was dismissed by the Federal Court of Appeal. The appellant has now appealed to the Supreme Court.
HELD:
(1) All that has been established on behalf of the accused is that he was suffering from a delusion at the time he killed the deceased which delusion still persists and has not responded to treatment.
(2) Assuming that his delusions, to wit: that the deceased stole his money, brought native doctors to bewitch him, said something, adverse to his interest to his employers and ganged up people against him, are correct, under the provision of the second paragraph of Section 28 his delusions will afford him no defence to the offence which he has committed.
(3) The accused person, notwithstanding the delusions to which he is subject, is still criminally responsible for his 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. In other words, before the defence of insanity based on a delusion can be of any avail to an accused person, the response of the accused to the state of things as believed by him must be such that it could be regarded as a legitimate and natural reaction to such a state of things.
(4) If an accused person under the influence of his delusion, supposes that another man was going to kill him, and then he kills the man believing that he did so in self-defence, he would be exempted from punishment for the killing. But if his delusion was that the man had inflicted a serious injury to his character or his fortune and he then kills him in revenge for such supposed injury, he would be liable to punishment for murder.
(5) Having regard to the delusion that the deceased stole his money the normal response would be to report the theft to the police but certainly not to kill the thief. Killing because of a delusion that he was bewitched by a native doctor cannot also be justified, this is because a defence founded on witchcraft has always been rejected in murder cases. Furthermore, killing a person because of a delusion that that person has said something adverse to the interest of the killer to the killer's employers can certainly not be regarded as justifiable homicide. Lastly since there is no clear evidence as to what those who ganged up against the appellant intended to do to him there was no justification or excuse for killing the deceased on that account.
(6) The learned Counsel for the appellant has missed the main point in this appeal which, put simply, is this-is there any excuse or justification for the appellant's violent reaction to the delusions established by evidence, made manifest by the killing of the deceased? For the reasons which I have highlighted above, the answer must be in the negative.
Appeal dismissed.
D. Akande for the Appellant
D. N. Oguadi-Legal Adviser, Anambra State for the Respondent.
Cases referred to:-
(1) Iwuayanwu T v. The State (1964) 1 All NLR 413.
(2) Kayode Adams v. Director of Public Prosecutions (1966) 1 All NLR 12.
(3) McNaughten's case (1843) 4 ST TR (NS) 847
(4) Onyeme v. The State (1975) 12 S.C. 27
(5) R v. Ashigufuwo 12 WACA 389.
(6) R v. Dim (1952) 14 WACA 154.
(7) R v. Inyang 12 WACA 5.
(8) R v. Konkomba 14 WACA 236.
(9) R v. Nasamu (1940) 5 WACA 74.
(10) R v. Rivett 34 C.A.R. 87.
(11) R v. Sunday Omoni 12 WACA 511.
(12) R v. Tabigen (1960) 5 F.S.C. 8.
(13) R v. Wangara 10 WACA 236.
(14) Richard Willie v The State (1968) 1 All N.L.R. 152.
(15) Thamu of Guyok v. T (1953) 14 WACA 372.
(16) Upetire v. Attorney-General Western Nigeria (1964) 1 All N.L.R. 204.
(17) Walton v. R (1978) 66 C.A.R. 25.
Statute referred to:-
Criminal Code (Cap. 30, Vol. III Laws of Eastern Nigeria 1963).
FATAYI-WILLIAMS, C.J.N:-On 16th August, 1976, the appellant was convicted at the Enugu High Court of the murder of one Aniagu Ugwu and sentenced to death. His appeal to the Federal Court of Appeal against the conviction was dismissed on the 24th day of April, 1978. He has now appealed to this Court.
The only point taken by learned Counsel for the appellant at the hearing of the appeal was whether, on the evidence which the trial Judge accepted, he (the trial Judge) was right in finding as he did that the appellant was of sound mind at the time he killed the deceased.
In his submission that the appellant was insane at the time he inflicted the fatal matchet cuts on the deceased, learned Counsel referred the court to the provisions of Section 28 of the Criminal Code which read:
"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 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."
Learned Counsel then submitted that the delusions which the appellant suffered from were such as to make it impossible for him to appreciate or understand the nature of his action and that he did not at the material time know that he ought not to have done what he did. After referring to the findings of the learned trial Judge as to the delusions established for the appellant, learned Counsel then submitted that once the learned trial Judge accepted that the appellant did not know that he ought not to do what he did because of those delusions he should have found him to be insane and therefore not guilty of murder as charged. After stating that his submissions were based on the provisions of the second paragraph of Section 28 of the Code, learned Counsel finally contended that the paragraph, if properly analysed, can be interpreted in three ways and that if the evidence which the learned trial Judge accepted fitted into any one of the three categories, the appellant should have been given the benefit of the plea. He did not, however, elaborate on any of these three ways referred to him in his final submission.
Before considering the submissions of learned Counsel for the appellant, I would refer to the findings of the learned trial Judge on the point in issue which read:
"I am prepared to accept as established that the accused person knew what he did but felt justified in what he did and did not know that he ought not to do it but in the absence of any evidence that he was suffering from a mental disease or from mental infirmity, the defence of insanity as provided for in the first paragraph of Section 28 of the Criminal Code is not available to him (see Rex v. Sunday Omoni 12 W.A.C.A. 511 pages 512 and 513).
All that has been established on behalf of the accused is that he was suffering from a delusion at the time he killed the deceased which delusion still persists and has not responded to treatment. The delusions from which he suffers are that the deceased stole his money, brought native doctors to bewitch him, said something adverse to his interest to his employers, and ganged up people against him. Assuming that his delusional beliefs are correct, under the provisions of the second paragraph of Section 28, his delusions will afford him no defence to the offence which he has committed. The accused person is not justified in killing the deceased because he stole his money, brought native doctors to bewitch him, made adverse report to his interest to his employer and ganged up people against him."
In my view, these findings are a complete answer to the points canvassed before us by learned Counsel for the appellant. This is because an accused person, notwithstanding the delusions to which he is subject, is still criminally responsible for his 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. In other words, before the defence of insanity based on a delusion can be of any avail to an accused person, the response of the accused to the state of things as believed by him must be such that it could be regarded as a legitimate and natural reaction to such a state of things. Thus, if an accused person, under the influence of his delusion, supposes that another man was going to kill him, and he then kills the man believing that he did so in self-defence, he would be exempted from punishment for the killing. But if his delusion was that the man had inflicted a serious injury to his character or his fortune, and he then kills him in revenge for such supposed injury, he would be liable to punishment for murder (see the Rules in McNaughten's Case, (1843) 8 Eng. Rep. 718 at page 723).
Now to go back to the case in hand, the appellant was under delusions that the deceased:
(a) stole his money;
(b) brought native doctors to bewitch him;
(c) said something adverse to his interest to his employers; and
(d) ganged up people against him.
Having regard to the first delusion that the deceased stole his money, the normal response would be to report the theft to the police but certainly not kill the thief. Killing because of a delusion that he was bewitched by a native doctor cannot also be justified; this is because a defence founded on witchcraft has always been rejected in murder cases. (See R. v. Konkomba 14 W.A.C.A. 236; and The Queen v. Tabigen (1960) 5 F.S.C.8). Further more, killing a person because of a delusion that that person has said something adverse to the interest of the killer to the killer's employers can certainly not be regarded as justifiable homicide. Lastly, since there is no clear evidence as to what those who ganged up against the appellant intended to do to him or did to him, there was no justification or excuse for killing the deceased on that account.
With respect, I think learned Counsel for the appellant has missed the main point in his appeal which, put simply, is this. Is there any excuse or justification for the appellant's violent reaction to the delusions established by evidence, made manifest by the killing of the deceased? For the reasons which I have highlighted above, the answer must be in the negative.
For the same reasons, I am unable to discern any merit in any of the points urged upon us on behalf of the appellant. I would therefore dismiss the appeal which is accordingly dismissed. The judgment of the Enugu High Court convicting the appellant for murder of the deceased, and the order of the Federal Court of Appeal dismissing his appeal against conviction, are affirmed.
(Sgd.) A. FATAYI-WILLIAMS CHIEF JUSTICE OF NIGERIA
BELLO J.S.C.:-
I have had the opportunity to read the judgment written and delivered by the Chief Justice. For the reasons stated by him, I agree that the appeal should be dismissed.
(Sgd.) MOHAMMED BELLO JUSTICE, SUPREME COURT
IDIGBE, J.S.C.:-
The facts, so far as are relevant to this appeal, are, indeed, in a very small compass. In the early hours of the 8th day of August, 1973-to be precise, at 7 a.m.-Odikenma Aniagu (P.W. 3), the wife of the deceased while still lying in bed, heard a voice, which she recognised to be that of her husband shouting the names of the appellant. At about the same time, Okoye Aniagu (P.W.2) an uncle of the appellant and also son of the deceased, heard an alarm in which he recognised voices of some of his neighbours asking the appellant why he was inflicting matchet cuts on his brother, the deceased. Both the appellant and the deceased had always been on excellent terms and so far as members of the family know there never had been any previous quarrel or serious disagreement between them. Following the direction of the alarm, Okoye Aniagu (P.W.2) went to the premises of the deceased where he found him lying on the ground in a pool of blood. There were matchet cuts on the head and on the neck of the deceased and he was then still alive. About the same time Odikenma Aniagu (P.W. 3) arrived at the scene (the premises of the deceased) and saw the appellant walking to his (the appellant's) house from the scene, a matchet in hand after wiping off blood stains from the same; that matchet was later identified in evidence as Exhibit D. Assisted by neighbours, Okoye Aniagu (P.W.2) carried the father to the Central Police Station Enugu (where a report was lodged) and later to hospital for medical treatment. The deceased died a few hours after his admission to hospital-to be precise, at 1.30 p.m.-on the same day.
After police investigations into the complaint the appellant on being arrested made a statement in Ibo, Exhibit G, the English translation of which is Exhibit G1. In his statement, which the learned trial Judge found to have been voluntarily made after he was duly charged with the offence of murder and cautioned the appellant admitted that he inflicted matchet cuts on the deceased. In effect, the reasons he gave for inflicting matchet cuts on the deceased, were that the deceased "stole his salary and never admitted it" (i.e. admitted having done so) and "kept silent while I (i.e. the appellant) continued suffering. So I went to his house to demand for that money from him when trouble arose between us and we fought and I gave him matchet cuts.
Following a pre-trial request by Mrs, Uche Offiah-Nwali, learned Counsel to whom the defence of the appellant was assigned, the learned trial Judge (Umezinwa J.) ordered that the appellant "be medically examined as to his sanity." At the trial, a consultant psychiatrist at the University Teaching Hospital, Doctor Warrick Onyeama, who observed the appellant on two occasions, that is, on 10th May, 1976 and 7th June, 1976 (about 30 months i.e. 2½ years after the event) testified for the defence (as D.W. 1) on his findings following the said observations: Part of his evidence reads:
"In essence, I found his mental state to be normal on the two occasions. With regards to the attitude to the act which led to his arrest and detention he remained convinced of the justification of what he did and this attitude remained inaccessible to any contrary argument. It was my feeling at the time that he might be suffering from a delusion, the existence of which will suggest an underlying mental illness. . . His general behaviour was entirely normal given the circumstances that he was in the asylum. He had a falsely held belief (delusion) which refused to respond to treatment and as such I came to the conclusion that his delusional pattern of thinking was unlikely to change. . . He thought that he lost his job because a relative of his had said something adverse to his interest to his employers. He (sic) regarded that the situation justified the killing of the deceased. . ."
(underlining and brackets supplied.)
Later, under cross-examination the consultant psychiatrist gave a definition, with which I entirely agree, of the term "delusion"; he said:
"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."
(underlining supplied.)
In a well considered judgment the learned trial Judge after reviewing the entire evidence before him and, in particular, the evidence of the psychiatrist, Dr Warrick Onyeama, found the appellant guilty of the offence of murder; and his appeal from the said conviction was dismissed by the Federal Court of Appeal.
The only ground of appeal before us was on the basis that the learned trial Judge was wrong in failing to enter a verdict of "guilty but insane". The way the argument in support of this ground of appeal was put in the brief filed on behalf of the appellant in this court, and also urged on us at the hearing of this appeal, is this:
"It is quite clear that the only point in favour of the appellant is whether in view of the evidence before the court his defence of insanity should have been completely ignored. It is respectful submitted for the appellant that his delusion was such as to make it impossible for him to appreciate or understand the nature of his action-in other words, that the appellant did not at the material time know that he ought not to have done what he did.
I will refer to the analysis of the defence as made by the trial Judge at pages...and specifically to his finding or conclusion in line. . .of page. . .where he held as established that the accused person 'DID NOT KNOW THAT HE OUGHT NOT TO DO IT.' It is therefore submitted. . .that once the trial Judge was prepared to accept as established that the accused. . .did not know that he ought not to do what he did because of his delusion he should have entered a verdict of guilty but insane."
(Capitals supplied by me.)
We were then referred to the case of Rex v. OMONI 12 W.A.C.A. 511 particularly at page 513. Now, the passage in the judgment of the learned trial Judge on which reliance is placed for the argument in quotation (immediately above) in the brief of learned Counsel for the appellant is to be found in the earlier part of his judgement; and it reads:
"There is no evidence before me that the accused person was in a state of mental disease or natural infirmity...In order to establish the defence (of insanity), the defence must first prove that the prisoner was at the relevant time suffering either from mental disease or from natural mental infirmity and secondly that the mental disease or natural mental infirmity was such that at the relevant time the prisoner was as a result, deprived of capacity to understand what he was doing or to control his actions or to know that he ought not to do the act or make the omission."
Then follows the passage which is intended to serve as a prop to the argument in support of the point being urged in favour of the appellant and I will put the passage in capitals:
"I AM PREPARED TO ACCEPT AS ESTABLISHED THAT THE ACCUSED PERSON KNEW WHAT HE DID BUT FELT JUSTIFIED IN WHAT HE DID AND DID NOT KNOW THAT HE OUGHT NOT TO DO IT but in the absence of any evidence that he was suffering from a mental disease or from natural mental infirmity the defence of insanity AS PROVIDED FOR IN THE FIRST PARAGRAPH of Section 28 of the Criminal Code is not available to him. . .
"All that has been established on behalf of the accused is that he was suffering from a delusion at the time he killed the deceased. . .The delusions from which he suffers are that the deceased stole his money, brought native doctors to bewitch him. . ."
(Capitals and underlining supplied by me.)
Now, it is my view that the proper approach to understanding the theme of the learned Judge's analysis of Section 28 and his findings, in relation to the section, on the evidence before him is not to read in isolation the passages which I have set out in capitals (and at the margin of which I have endorsed the letter G); they should be read together with the continuing passages in his judgment which appear later (and along the margin of which I have endorsed the letter H). The evidence before the learned trial Judge indicate quite clearly that the appellant killed in revenge following his delusional belief that the deceased stole his money, tried to bewitch him, made adverse reports against him and tried to gang up people against him (see Exhibit G1); and this, in my view, is the sum of the findings of the learned trial Judge. There is no direct evidence of any disease of the mind on the part of the appellant prior to or at the time of the offence nor is there any evidence from which such inference can be drawn.
My Lords, I agree with the judgment which has just been read by, my learned brother My Lord, the Chief Justice but I consider the issue raised in this appeal of considerable importance that I think I ought to add a few words of my own on the need for careful consideration of Section 28 of our Criminal Code; that section may be conveniently set out in two limbs thus:
"(28) [FIRST LIMB]: 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;
[SECOND LIMB]: A person whose mind, at the time he is 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."
(Underlining mine.)
Now, Mr Debo Akande, learned Counsel for the appellant was at considerable pains to turn Rex v. Sunday Omoni (1949) 12 W.A.C.A. 511 and Rex v. Nasamu (1940) 6 W.A.C.A. 74 to his advantage and use them as an effective plank in support of his argument set out in his brief and to which I have already referred. I regret, that I cannot accept his submissions, attractively though they were put. The submissions fail to appreciate the learned trial Judge's entire analysis and consideration of the relevant section (i.e. Sec. 28 of the Criminal Code). With respect to the learned Counsel for the appellant his arguments and submissions, when considered against the evidence of the consultant psychiatrist (D.W.1) as well as the lack of any evidence either directly or impliedly of any "natural disease" or "natural mental infirmity" of the appellant, are manifestly untenable. 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. For the first limb it must (A) first be established (by direct evidence or by inference from other evidence in the proceedings) that the prisoner was at the relevant time suffering from mental illness or from natural mental infirmity; and this is because the words of the section "such a state of mental disease or natural mental infirmity" must in the context of the section, be regarded as equivalent to: such a defect of reason produced by the disease of the mind, or following a defect in mental power neither produced by the prisoner's own default nor as a result of the disease of the mind; and-thus established-(B) the prisoner must then go ahead to show that he was, as a result of the foregoing unable (1) to understand what he was doing or (2) to control his actions or (3) to know that he ought not to do the act or omission. On a complete and proper reading of the findings of the learned trial Judge in these proceedings, following his consideration of a possible defence under the first limb of Section 28 aforesaid, it is clear that (to borrow the language of Verity C.J. in OMONI (Supra) at p. 513):
"the learned Judge having heard the evidence. . . was not satisfied that the appellant was at the time of the commission of the offence in such a state of either mental