Goodluck Oviefus V. The State (1984)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

On the 27th August 1984 when this appeal was argued, before us, I dismissed it and indicated that I shall give reasons for doing so today. This I now proceed to do.

The points raised in this appeal are by no means new. They have been decided in this Court in several cases even recently. A considered judgment became necessary when Mr. Akinrinsola, learned counsel for the appellant in his brief urged that on the law as he understands it, the defences of insanity and insane delusion were available to the appellant, and that on the facts of the case as found by the learned trial judge which the Court of Appeal accepted, these defences have not been properly considered.

Mr. Y.A Akande, the learned Director of Public Prosecutions, Oyo State did not share this view; and in his brief and also in argument before us, submitted that the defence of insanity was not on the facts available to the appellant and that both the trial court and the Court of Appeal were right in rejecting the defence relied upon by the appellant.

In my view two related issues arise for consideration in this appeal. These are-

(i) Whether on the facts the defence of insanity raised in the defence of the appellant was considered by the learned trial judge

(ii) Whether the defence of delusion also raised on the evidence was considered by the learned trial judge

In sum the elaborate arguments put up in the brief of counsel for the appellant and his submissions before us fall within the confines of the correct answers to these questions. The facts of this case are substantially undisputed. Appellant never denied that he killed his wife Agnes. What was feebly in issue at the trial was as to the circumstances of the appellant killing his wife whether appellant was normal at the time of the offence. For a clear understanding of the issues in this appeal it is necessary to state so much of the facts as are material, and the findings of facts made by the learned trial judge and accepted in the Court of Appeal.

On the 30th May 1980, appellant was convicted for the murder of his wife, contrary to s.254 and punishable under s.257(1) of the Criminal Code, Cap. 28 Volume 1, Laws of the former Western Region, (now applicable in Oyo State). His appeal to the Court of Appeal against his conviction was dismissed on the 21st April, 1983. He has now appealed to this Court. At the time of the commission of the offence, appellant was a soldier with the Engineering Construction Regiment of the Nigerian Army at Oshogbo. He lived at Ede with his wife Agnes at No. 14 Timi Street. Peter Adeyale Olympus was also living at the same address. On the 6th November, 1978, Peter Adeyale Olympus, PW2, at about 3.30 a.m. heard some noise of fighting by two people. He traced the noise to appellant’s room, and after appellant had failed to open the door on his entreaty, forced the door open and tried to separate appellant and his wife. He said that appellant was beating his wife. PW2 then shouted to call on co-tenants to come and help. Appellant ordered PW2 out of the room with the threat that he (appellant) would kill PW2 and Agnes if PW2 refused to leave. PW2 then ran to the soldiers barracks at Ede to report the incident. A military police officer was detailed to accompany PW2, but before they left the barracks they met appellant, who told them he wanted a car to take him to Iwo Town, where he would kill one woman and a soldier called Peter. Appellant was taken to the Brigade Commander PW6; where he reported that he (appellant) had just killed his wife. PW6 went to appellant’s house to verify the claim by appellant that he had killed his wife. Appellant was handed over to the police for custody and investigation of the offence. Appellant made a voluntary statement to the police on the day of the incident. This statement was recorded by Sgt. Akinoye, PW4 and was attested to by an Assistant Superintendent of Police J. Ajayi, on the 11th November, 1978. The statement of appellant which amounts to a confession of the murder of Agnes was tendered by the prosecution and admitted in evidence. The statement exhibit B is as follows –

“In 1975, I brought my wife Agnes Edafeteya from home with me to Ede, and for some months now I have been feeling some difficulties in my body. One certain night during this period, I dreamt in my residence where myself and my wife slept together that my wife Agnes has changed into a spirit and was pressing me down and I was struggling to get out of her but was unable, I was shouting in my dream but was not heard outside, I just woke up suddenly and I questioned her – Agnes why she was pressing me in a spiritual form She told me that it must be an outside enemy that was using herself to press me not herself personally that was doing so. This happened on several occasions and when I questioned her, she would say that she was not the one and that she could not lie for me. Later, I dreamt again, one night seeing my daughter called Endurance a small girl of about 3 years old sucking my blood. I then thought that my daughter was too small and that she could not do anything of such. I did not tell the mother – Agnes. I later dreamt another dream and saw one person whom I could not recognise and could not know whether he was a man or a woman told me in my dream that my heart has been divided and part of it has been given to him. Then about a week ago, I realised that my private part could not work again, this I tested when I asked my wife Agnes for sex and I could not sex her. When this ordeal was becoming too much for me. (sic) I was afraid of myself. Then I tried to find out the cause of these things. From there, I went to a certain man at Iddo Oshun who having prayed for me and gave me something to drink and asked me to be looking at what was worrying me in the water put in a bottle. I was just looking at the bottle like television and I saw one black object blocking my view not to see what I went for.

I then opened the man’s Psalm and started praying with the Psalm, I just saw an object which covered its face with cap and I was seeing its leg as that of a human being. I saw Ede written on the cap. As I prayed further, I then saw the object turned its back and the cap vanished and saw a woman’s plaited hair like that of my wife Agnes, I prayed further and I saw my wife in the bottle. I still saw myself being pressed down by a spirit on my bed when sleeping with my wife as I dreamt before and also woke up and asked my wife question which she denied and said it was the work of outside enemy.

I also saw that when myself and my wife Agnes slept, I saw her in spirit carrying me to a gathering and when the people saw me, they all shouted, that they have got the powerful man. I also saw that myself was tied up on a stick and they loose me and butchered me in pieces. I then saw that my wife Agnes shared my whole heart and my brothers at home named Solomon, Napoleon and Godspower shared part of my body and also one woman called Mama who lives at Iwo who always make native medicine for my wife shared some part of my body including one of our soldiers called Peter who went with my wife Agnes to that gathering shared out of my body. I also saw my daughter was (sic) also shared my head and private part. I also saw that my dead body was escorted home by soldiers from my regiment and was buried at my home town Isoko and also my brother (sic) who shared out of my body were seen weeping at the burial. I then started to pray for my wife to release my heart to me while looking at the bottle. She Agnes refused. I then left the house of that man. As I was going towards Ede, I felt cold with all those in my mind and I branched to a church nearby and prayed. As I left that church and was about to leave the church premises, I saw my wife Agnes and Peter a soldier following each other. Then Peter called me to come to him that both of them were looking for me, I frowned my face and told Peter that I was going to the barracks at Iddo Oshun. When I left the barracks I saw my wife with Peter coming from Iddo Oshun town, I then called my wife Agnes to follow me home, Peter told my wife not to follow me. Both Peter and my wife joined another motor while I took a vehicle to Ede. On my arrival at Ede I met Agnes at home and I asked my wife to give me some amount that I was still going back to Iddo Oshun. She refused. I later went back to Iddo Oshun and looked at the bottle with water in that man’s house again. I then started to look at the bottle and I begged my wife – Agnes and that Mama at Iwo to release my heart while praying at the bottle. They refused and I saw that they wrote in the bottle that they are powerful and that they could not release my heart anymore. I also saw some old faces who are already dead and I shook hands with them. By that time I felt cold then. I left home to Ede. When I got home, my wife Agnes opened door for me and I asked her to come into our room to sleep. She refused. I then went into the room. My heart was worrying me that I called my wife and I started fighting her when I felt that I have become useless both in body and in my job I then beat her to death, I held her breath and I knocked her head on the walls of the building, she also bite me on my two hands and I had some injuries there.

I also knocked the head of my daughter Endurance on the wall of the house, my wife had died before I ran to inform my officers at Ede. I did not tie Agnes legs, but she drew the nylon threads from the parlour where I was beating and knocking her head on the walls and verandah of the house at the upstairs where we live. It was myself who looked at the water in the bottle that showed me the light of what happened to me. At the time I knocked my daughter’s head on the walls of the house, I felt she was dead also until I learnt that she Endurance has been admitted for treatment at Oshogbo State Hospital. That is all.”

However, though not rejecting or denying exhibit B, his oral evidence in court was quite different. It was no longer a confession that he killed Agnes, but that he normally had bad dreams which frightened him when he woke from sleep. He said that on the date of the incident, as a result of his dreams he went to a man DW3, at Iddo-Oshun for treatment. The treatment enabled him to see in a bottle those who were fighting him in his dream. He was able to recognise his sisters, brothers and some women and soldiers. In his evidence he said, (at page 25 lines 1 – 4)

“During my sleep I dreamt the same type of dream that some people were fighting me. I then woke up and started fighting with the people I saw in the room. I did not know what I was doing when I was fighting them”.

It is clear from his evidence that appellant did not retract the confession exhibit B, but was giving excuses for his conduct. In his evidence in chief there was a suggestion that appellant was behaving abnormally and was taken to a native doctor for treatment.

In his finding of fact, the learned trial judge found that the evidence that appellant killed his wife Agnes on 6th November, 1978 was overwhelming. (See page 42 of the record of proceedings). The learned trial judge considering in detail the evidence of the mental condition of appellant at the time of the commission of the offence referred to the evidence of DW1 and to that of DW2 respectively who agreed that appellant joined the army nine months after he had run away from a place he was being treated for mental illness and that appellant was seen in army uniform about twelve years ago. He also referred to the evidence of PW1, PW2, PW4 and DW3 that the behaviour of the appellant over the period when they were associated with him had been normal. PW2 however qualified his observation by saying that appellant appeared to be a person of high temper. The learned trial judge therefore held that –

”the evidence concerning the history of abnormal behaviour of the accused related to a period about 13 years before the incident and so too remote to be relevant for consideration when dealing with his mental state at the relevant time of the commission of the offence”.

The learned trial judge rejected the oral evidence of appellant in court which was made 18 months after the incident. He preferred the account of appellant in exhibit B, made on the date of the incident when the matter was fresh in his mind.

On all these considerations including the evidence of PW2 the learned trial judge held that “the accused has failed to establish the defence of insanity under the first paragraph of section 26 of the Criminal Code”. The learned trial judge then considered the issue of delusion under the second paragraph of s. 26. He referred to exhibit B, statement of appellant on the day of the incident, the testimony of D.W.3, and the evidence of PW6 and held that appellant suffered from a delusion that he had been bewitched by the deceased and others, that she was a witch, and that she and others had rendered him impotent and that they were going to kill him by witchcraft. It is clear that the learned trial judge found as a fact that appellant was suffering from delusion. However, citing and relying on the cases of Konkomba v. The Queen 14 WACA 236, and Iwuanyanwu v. The State (1964) 1 All N.L.A. 413, at p. 414, he held that the beliefs held by appellant under the delusion do not afford him a defence under s.26 of the Criminal Code.

Referring to the statement of appellant, exhibit B, where appellant said that the deceased opened the door for him on his return at about 3.30 a.m. and he invited her to come into his room to sleep but she refused, he said, (at p. 48 lines 8 – 10)

“These statements do not in my view show fear in the accused of immediate danger to his life or show any signs of grave provocation to him.”

Finally, the learned trial judge considered the issue of self-defence and found that he was not acting in self- defence, and that if anything he was possessed of a vengeful spirit, as P.W.2 said in evidence that after killing his wife the accused said he was going to ask for transport to go to Iwo to kill a woman there.” (see p. 48 lines 15-18).

Accused appealed against conviction and sentence to the Court of Appeal. Of the four grounds of appeal argued, only the 2nd and 3rd grounds were seriously pursued. They are the basis of the appeal also to this Court. For ease of reference I reproduce the grounds canvassed in the Court of Appeal.

“2. The learned trial judge erred in law when he failed to consider adequately the state of mind of the appellant at the time of the commission of the offence”.

“3. The learned trial judge erred in law when he failed to give the appellant the benefit of the second paragraph of s.26 of the Criminal Code having found as follows –

‘Notwithstanding the admissions of the accused under cross-examination, I am satisfied that he suffered from delusions that his wife the deceased was a witch that she and others bewitched him that they had rendered him impotent and that they were going to kill him by witchcraft.”

In dismissing appellant’s appeal, the learned Justices of the Court of Appeal had no difficulty in holding that the conclusion of the learned trial judge that there was no evidence before him that appellant was insane at the time of the commission of the offence; and that the evidence before him related to a period about 13 years before the incident and consequently too remote to be relevant for consideration was difficult to fault. The Court of Appeal pointed out that this finding was not attacked by appellant’s counsel.

With respect to ground 3 which relates to the finding by the learned trial judge on exhibit B that the appellant was suffering from delusions it was submitted that the trial judge must be deemed not to have considered the effect of such finding on the defence of appellant. In rejecting this submission the Court of Appeal pointed out that the trial court not only considered exhibit B, but preferred it to the oral evidence at the trial, which the learned trial judge regarded as an afterthought.

The two grounds of appeal having failed, the appeal was dismissed. Three original grounds of appeal were filed by the appellant himself from prison. Mr. Fola Akinrinsola, on behalf of the appellant with the leave of this Court filed three additional grounds of appeal. Grounds 1 and 2 of the original grounds of appeal complain about the weight of evidence; whilst ground 3 is against the failure to adequately consider appellant’s state of mind by the learned trial judge. Since grounds 1, 2, 3 of the additional grounds of appeal cover the same issues as were contemplated in the original grounds of appeal, counsel for the appellant argued only the additional grounds of appeal. Ground 1 of the original grounds of appeal was abandoned and was accordingly struck out.

The grounds of appeal argued before this Court encompass the same issues as were canvassed in the Court of Appeal and stricto sensu the same points of law. The grounds of appeal are as follows –

Ground 1:

The decision of the learned Court of Appeal is unreasonable having regard to the weight of evidence.

Ground 2:

The Court of Appeal was wrong in law and in fact when it failed to consider adequately the state of mind of the appellant at the time of the commission of the offence by holding thus: “the defence of insanity was properly considered by the trial judge and that the grounds averring the contrary must fall.”

Particulars of error

(a) The trial judge himself found, after hearing factual evidence, in the following manner: “I am satisfied that he (appellant) suffered from delusions that his wife the deceased was a witch. That she and others bewitched him, that they had rendered him impotent and that they were going to kill him by witchcraft.

(b) The Court of Appeal in its lead judgment read by Uche Omo J.C.A. concluded thus:

“The evidence of D.W.3 – the native doctor/prophet reveals the appellant as someone with a troubled mind but who the witness described as behaving normally when he came to him particularly on the crucial visit immediately proceeding the killing of his wife by the appellant. Seeing witches and wizards operating by crystal-gazing may be regarded as abnormal behaviour by non-believers in the existence of such principalities/agents of the devil, but not to those who believe in them. Similarly the contents of exhibit B up to when the appellant turned in to sleep on the fateful morning shows evidence of some rather weird behaviour”.

(c) The statement of the appellant exhibit B which the learned trial judge believed show (sic) clearly that the appellant believed that his life was in danger … I saw her carrying me to gathering I saw myself tied up on a stick and they loose me and butchered me in piece”.

(d) Exhibit B which the trial judge believed show (sic) that the delusion continued until the offence was committed.

Ground 3.

The Court of Appeal erred in law and misdirected itself when in rejecting the defence of insanity said:

“In Christian Emeryi Vs. The State 1973 3 S.C. (226) relied on by appellant’s counsel, there was evidence given even by prosecution witnesses indicative of insanity at all material times, which tended (sic) to establish that the appellant was suffering from some form of mental illness before the date of the incident, which at least created some doubt as to the actual mental state of the appellant on the date of the killing charged. The Supreme Court on appeal accordingly substituted a verdict of “guilty but insane”.

Particulars

(i) The evidence that pervaded the entire trial substantially reveal (sic) that the appellant was afflicted by delusions before during and after the commission of the crime.

(ii) The evidence of D.W.2 shows that the appellant was treated for insanity. He did not recover completely before he ran away, confirmed by D.W.2.

(iii) PW.3 gave evidence that some-time in 1978 John brought appellant to him that he had been suffering for sometime. The evidence of PW.3 shows clearly abnormal behaviour in 1978 and up to the time of the incident.

(iv) The visits to the herbalist, crystal gazing, the church incident, witchcraft stories etc. which took place to the date and time of the commission of the offence made evidence of abnormal behaviour.

(v) P.W.2 whose evidence the learned trial judge used to conclude normal behaviour knew nothing about the incidents surrounding the crystal gazing, the visit to the herbalist, the witchcraft story and the state of mind of the appellant.

(vi) The deceased must have noticed the abnormality in the appellant before she started looking for the appellant with Peter and before Peter told appellant’s wife not to go with the appellant and before the deceased refused.

Concisely stated, the grounds of appeal 2 and 3, raise the issues whether the Court of Appeal failed to consider adequately the state of mind of the appellant when it held that the defence of insanity was properly considered by the learned trial judge; and whether the Court of Appeal erred in law in rejecting the defence of insanity open to the appellant on the facts. It is fairly obvious from the grounds of appeal reproduced above and the particulars of error alleged that appellant is challenging the judgment of the court appealed from on the ground that the delusion of the appellant was not considered. The issue of delusion was a ground of appeal against the judgment of the trial court in the Court of Appeal. It is also ground 3 of the grounds of appeal in this Court. However in appellant’s brief counsel extended the ground of appeal, on the inadequate consideration of the issue of insanity to cover “Partial delusions”, and the issue of self-defence. Whereas, it may on a liberal view be permissible to consider issues of ‘partial delusions’ where the ground of appeal is on insanity, it is not easily conceivable that the defence also embraces self-defence. In his brief counsel for the appellant formulated the question for determination in a simplistic manner as follows –

“Both sides agree that the appellant killed the deceased thus enabling the prosecution to establish the actus reus of the offence. It is the mens rea ingredient of the crime that constitutes the main subject of controversy’.

This is a clear misunderstanding of the jurisprudence of the Criminal Code. Though very familiar and often used common law concepts, the expressions mens rea and actus reus have ceased to be relevant in the interpretation of our Criminal Code based on the Queensland Code of 1899, drafted by Sir Samuel Griffiths. This is because of their lack of precision. The provisions of s. 22 of the Criminal Code of Western Nigeria which defines criminal responsibility has designedly refrained from the use of those latin expressions. In that section the expressions voluntary act and intention have replaced those concepts. Thus where a prohibited act results from the voluntary and intentional act of the perpetrator there is responsibility for the commission of such prohibited act in such a situation. Both ingredients constituting the offence are complete. Section 25 of the Criminal Code contains a provision for the presumption of sanity on every person charged with the commission of an offence. Thus where death results from an intentional act, there is responsibility for the commission of the offence unless the death can be justified or excused by the law – s. 244. Section 254 of the Criminal Code has prescribed no exceptions and excuses but has defined circumstances where killing is murder. Insanity defined in section 26 of the Criminal Code is not only one of the excuses but creates a general immunity from responsibility in respect of all crimes.

Section 26 of the Criminal Code provides –

“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 action, or capacity to know that he ought not to do the act or make the omission”.

The second paragraph of this section is as follows-

“A person whose mind, at the time of his doing or omitting to do an act, is affected by delusion 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.”

In elaborating on his brief, Mr. Akinrinsola submitted that he relied on both insanity and insane delusions. He contended that the learned trial judge conceded that appellant was afflicted with insane delusions. Referring to Maawole Konkomba v. The King 14 WACA 236, counsel submitted that the conviction should be reduced from murder to manslaughter. It is clear from the brief of appellant’s counsel and his argument before us that he relied very much on the answers in the English case of R. v. McNaughten (1843) 4.St. Tr. (N.S.) 847 and regards those rules as irreplaceable. The antiquity and authority of those answers formulated by their Lordships to the House of Lords in 1843 following questions put to them is undoubted. However, the West African Court of Appeal has stated in R. v. Omoni 12 WACA 511 at p. 512, after comparing the answers to the second and third questions in the MacNaughten case with s.28 of the Criminal Code, “It is clear to us by comparing these words with those of section 28, that the legislature we must assume for good reason have not only departed from the phraseology of the judges but have also introduced two entirely new factors, that of ‘natural mental infirmity’ and that of incapacity ‘to control his actions.”

The Court went on to observe that that is a considerable extension of the law of England. In this case, the court recognised the departure from English law and held that the court is bound to apply the law as it finds it.

It is important to compare the words of the second paragraph of s.26 to the first and fourth answers in the MacNaughten formulation which is the nearest to it.

The answers are as follows –

Question 1.

“What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury or of producing some public benefit.”

Answer:

“Assuming that your Lordships’ inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that notwithstanding the party did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew at the time of committing such crime, that he was acting contrary to law, by which expression we understand your Lordships to mean the law of the land” 4 St. Tr. (N.S.) 930. (See R. v. MacNaughten (1843) 4 St. Tr. (N.S.) 847).

Question 4.

“If a person under an insane delusion as to the existing facts commits an offence in consequence thereof, is he thereby excused.”

Answer:

“The answer must of course depend on the nature of the delusion; but making the same assumption as we did before, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example if under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and kills that man, as he supposes in self-defence, he would be exempted from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment”. 4 St. Tr. (N.S.) 932.

Thus for a plea of delusion under the second paragraph to succeed, the insanity proved must not render the accused immune from criminal responsibility. In R. v. Omoni (supra) at p. 513, the West African Court of Appeal observed, that the provisions of the second paragraph in section 28 of the Criminal Code (identical with s. 26 considered in this appeal) are similar to the rules in MacNaughten’s case as to delusions. This observation has been followed by subsequent decisions of the W.A.C.A., and in this Court – See Thamu Guyuk v. R (1953) 14 W.A.C.A. 372; Iwuanyanwu v. The State (1964) 1 All N.L.R. 413; Ngene Arum v. The State (1979) 11 S.C. 91 Udofia v. The State (1981) 11 – 12 S.C. 49.

In the Nigerian criminal law, delusion does not necessarily arise from insanity, and where relied upon insanity is excluded. It is a distinct affliction of mental state with its own independent defence. It is a defence de hors insanity.

I now turn to the grounds of appeal in this Court. Ground 2 complains that the learned Justices of the Court of Appeal did not consider adequately the state of mind of the appellant at the time of the commission of the offence when they held that the defence of insanity was properly considered by the trial judge. It is well settled that the question of sanity vel non of an accused person is entirely one of fact to be decided by the trial judge – R. v. Inyang 12 WACA at p. 6. In arriving at such findings of facts the trial judge would take into consideration statements made by the accused after the incident on being arrested, and subsequent statements if any on being charged with the offence alleged to have been committed. The court may take into consideration the evidence of the accused in court at his trial. In considering the relevance of the statement of the accused with respect to his state of mind, the nearer such statements are to the incident under consideration, the more critically relevant. On the whole the trial judge being the trier of facts is entitled to say that the facts taken as a whole and considering the circumstances and weighing the evidence before him in the light of the veracity to be attached to the evidence of the accused and his witnesses, and the evidence of the prosecution witnesses, satisfy him that at the time of the commission of the offence the accused was or was not insane – See R. v. Anuku 6 WACA 91 at p. 92.

The question whether the accused was insane at the time of the commission of the offence could be inferred from evidence believed and accepted by the trial judge that accused was insane either immediately before or immediately after the commission of the offence – R. v. Inyang 12 W.A.CA 6. However in any event, the question of the insanity of an accused person ought not to be determined on the evidence of the accused himself. As was pointed out by this Court in Sule Noman Makosa v. The State (1969) 1 All N.L.R. 363, at p. 366, the appellant is not a competent witness on this point and the probative value of his evidence must be considered rather low.

It is important to state that for a successful defence of insanity to be made out, appellant must establish that he was insane within the meaning of s. 26 at the time of the commission of the offence. Evidence tending to establish insanity only at the time of his trial is irrelevant and may only go to show inability to plead or make his defence – See Richard Willie v. The State (1968) N.M.L.A. 213. This is because the relevant section expressly provides that the state of mind must exist at the time of doing the act or making the omission. (See s. 26 first paragraph).

The trial judge in this case has evaluated the evidence before him after appraising the facts. He preferred exhibit B, the statement of appellant to the police on the date of the incident, to his oral evidence in court eighteen months thereafter. In addition, he considered the evidence of other witnesses and came to the conclusion which he is entitled to do, that on the evidence before him, appellant was not insane within the meaning of section 26 of the Criminal Code. See Akinloye v. Eyiyiola & Ors. (1968) N.M.L.R. 92 at p. 93. Counsel for the appellant has not challenged this finding as perverse, either in the Court of Appeal or before us. The learned Justices of the Court of Appeal accepted this finding as they were bound to and held that the defence of insanity within s. 26 was not established before the learned trial judge. These are concurrent findings of facts which cannot be disturbed in this Court. It is pertinent to observe that what is required to be established is insanity of the appellant at the time of the commission of the offence. Where the issue of delusion is raised, the defence does not in my opinion fall within the defence of insanity as provided in the first paragraph of s. 26. The two defences are mutually exclusive. The second ground of appeal therefore fails and is dismissed.

The third ground of appeal was an attack of the judgments of the trial court and the Court of Appeal for not considering the delusions of the appellant. Although grounds 2 and 3 could have been considered together. I have decided, in the interest of clarity, to consider them separately. This is because the kernel of the appeal before us is the question of the consideration of the defence of delusion which arose from the statement of the appellant, exhibit S, and his oral evidence in court.

It is pertinent to point out that although the defence of delusion is raised, his oral evidence related to his commission of the offence in a dream state. The learned trial judge and the Court of Appeal rejected this defence which was not pursued in this Court. In elaborating on his brief, Mr. Akinrinsola for the appellant submitted that the defence of partial delusion within the second paragraph of section 26 was applicable to the defence of delusion raised. He contended that since the trial court found and the Court of Appeal accepted the finding that appellant was suffering from delusion arising from belief in witchcraft, and operating by crystal-gazing, this was a tacit acceptance that a belief in witchcraft is an aspect of mental condition. This is a curious submission to make on the defence of delusion in view of the existing decided cases. See R v. Konkomba (1952) 14 W.A.C.A. 236, R. v. Acida (1950) 13 WACA. 48; R. v. Gadam (1954) 14 WACA 442, R v. Ashigifuwo (1948) 12 WACA 389, R. v. Tabigen (1950) 5 FSC. 9, Ngene Arum v. The State (1979) 11 S.C. 91 at 101, 123, James Anyim v. The State (1983) 6 S.C. 350 at pp. 362 – 363. In Ngene Arum v. The State (supra) Idigbe J.S.C. (now late) accepted the definition of delusion by the Consultant Psychiatrist, that –

“delusion in the con in which I use the term is a falsely held belief in-accessible to reason and which represents a departure from previously held patterns of belief which exists out of con with the patterns of belief held by the culture from which the subject derives”.

In Dew v. Clark (1826) 3 Adams 97, Sir John Nicholl accepted that delusion “is a belief of facts which no rational person would have believed”.

Strictly speaking delusion is the belief of things as realities, which exist only in the imagination of the subject. The frame of mind which gives rise to such belief may be regarded as an unsound state of mind, but surely it does not necessarily arise from mental illness or natural mental infirmity. In Dew v. Clark (supra) Sir John Nicholl pointed out that mere eccentricity, nor great caprice, nor violence of temper is sufficient to constitute such unsoundness of mind.

The evidence in both exhibit S, statement of the appellant on the date of the incident, and his oral evidence suggested that appellant believed that his wife, the deceased was a witch, that she and others bewitched him and rendered him sexually impotent and that they were going to kill him by means of witchcraft. It is on this belief that appellant acted, which act resulted in his dastardly murder of his wife Agnes. There are several decided cases in support of the proposition that belief in witchcraft is unreasonable, and a defence founded on such belief has always been rejected – see R. v. Konkomba 14 W.A.CA 236 Queen v. Tabigen (1960) 5 F.S.C. 8. Iwuanyanwu v. The State (1964) 1 All N.L.A. 413. Counsel relying on R. v. Konkomba (supra) submitted that on the evidence before the trial court the learned judge ought to have held that the defence of self-defence, on the ground that appellant was put in immediate danger to his own life, was available to appellant. It would seem that counsel for the appellant ignored the lucid and inescapable finding of fact by the learned trial judge which was accepted by the Court of Appeal that appellant was at no time apprehensive of immediate danger to his life, and did not nurse such fears. The learned trial judge said, at p. 48-

“According to his statement, exhibit S, when he got home the deceased opened the door for him. He asked her to come into their room to sleep but she refused. Then he went into the room. There he felt his heart was worrying him and he called his wife and started to fight her. These statements do not in my view show fear in the accused of immediate danger to his life or show any signs of grave provocation to him.”

This being the finding of fact, the issue of self- defence does not arise.

The second paragraph of section 26 which deals with delusions provides that a person suffering from delusion 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. It has not always been appreciated, and clearly not been emphasised that belief in witchcraft per se is innocuous. It is merely a state of mind. Mere intention is not punishable in our law. It must be accompanied by prohibited act or conduct. What constitutes the danger is acting on the belief resulting in the commission of an offence. Thus where the belief induces action, (which like delusion) and if the state of facts supposed in the belief (delusion) were real, a good defence consistent with the state of the facts could be established.

It is for this reason that it was suggested that where the belief raises apprehension of immediate danger of death, acting on such belief may constitute a valid defence – (See R. v. Konkomba (1952) 14 W.A.C.A. at p. 237 where the suggestion was made, although no successful defence has yet been accepted.).

In Clement Iwuanyanwu v. The State (1964) 1 All N.L.R., 413 appellant believed that deceased would send evil spirits to kill him, and had told him they would kill him that night unless he went home. He used to see three men in his dream doing bad things to him. He therefore ambushed deceased and stabbed him to death. He was convicted of the murder of the deceased. On appeal to this Court, dismissing the appeal, it was said at p. 414 –

“It was clear from the evidence that the appellant, believing that the deceased and the others were going to kill him by witchcraft, killed the deceased first. Section 28 cannot avail him, for if the facts were as he imagined, the deceased had not yet attacked him when he stabbed him. He killed him to prevent him sending the evil spirits; he knew what he was doing and why he was doing it; section 28 says that appellant ‘is criminally responsible for the act 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 the circumstances, the defence of self-defence was also not available since accused was not acting in self- defence at the time having not been attacked by the deceased. The facts are similar to those in James Anyim v. The State (1983) 6 S.C. at pp. 362 – 363, where Aniagolu J.S.C. stated the position with his characteristic lucidity as follows –

“If the facts with respect to which the present appellant’s delusions namely that the deceased and others were planning to kill him were real would the appellant be legally justified in killing them at that planning stage”

His Lordship answered this question in the negative and cited in support Iwuanyanwu v. The State (1964) 1 All N.L.R. 413. Also rejecting the possible defence of self-defence, his Lordship said, at p. 367

“Equally, the present appellant was not acting in self-defence against the deceased- the victim of his pre-emptive attack – who had neither assaulted him nor done anything to him indicating an intention to kill him or even to assault him”.

The facts of the appeal before us are similar and the legal position identical. Appellant’s only grouse was in his delusion that his wife Agnes was a witch and that in conjunction with others, she had bewitched him, rendered him impotent and was planning to kill him by means of witchcraft. His solution, as in Iwuanyanwu v. The State (supra) and James Anyim v. The State (supra) was to kill the deceased in revenge of what she had done by means of witchcraft. Although the appellant was affected by delusion that his wife Agnes was doing things to him by means of witchcraft, it is not such a delusion even if it were real that would have made the defence under the second paragraph of s.26 available to him. The learned trial judge found as a fact, and this was accepted by the Court of Appeal and not challenged by appellants that “if anything, he was possessed by a vengeful spirit as PW2 said in evidence that after killing his wife the accused said he was going to ask for transport to go to Iwo to kill a woman there”. As was held in R v. Omoni 12 WAC.A. 511 at p. 513, he may have been affected by delusion that his wife was to kill him by means of witchcraft, yet his brutal killing of her was by way of revenge of what in his false belief he thinks she has done to him. The position is the same in Iwuanyanwu and Anyim decided by this Court, the second paragraph of section 26 which deals with defences founded on delusions is not applicable to such a case, the third ground of appeal therefore also fails, and is dismissed.

All the grounds of appeal having failed, and for these reasons the appeal was dismissed.

OBASEKI, J.S.C.: On the 27th day of August, 1984, I, in concurrence with my learned brothers, Justices (Aniagolu, Nnamani, Karibi-Whyte and Oputa, JJ.S.C.) dismissed this appeal and reserved the reasons for my judgment till today. I now proceed to give them.

The two grounds vigorously canvassed by Mr. Akinrinsola, learned counsel for the appellant raise three vital questions for determination. They are:

(1) whether there was sufficient evidence adduced to establish a defence of insanity under the first paragraph of section 26 of the Criminal Code Cap 28 Laws of Western Nigeria, 1959;

(2) whether there was sufficient evidence to establish delusion on specific matters to wit: the appellant’s wife and other members of his family bewitching him, taking his heart and butchering his body, within the purview of the 2nd paragraph of section 26 of Criminal Code Cap 28 Laws of Western Nigeria 1959:

(3) whether the Court of Appeal failed to adequately consider the state of mind of the appellant at the time of the commission of the offence by holding

“the defence of insanity was properly considered by the trial judge and that the grounds averring the contrary must fail.”

The provision of section 26 of the Criminal Code Cap 28 Laws of Western Nigeria is in pari materia with the provisions of section 28 Cap 42 Laws of the Federation of Nigeria 1958 as amended.

These issues have been exhaustively dealt with in the reasons for judgment delivered by my learned brother, Karibi-Whyte, J.S.C. the draft of which I had the privilege of reading in advance. His opinions on the issues accord with mine and I hereby adopt his reasons as my own. However, as these issues have been raised repeatedly in several appeals which have recently come up for hearing in this Court, additional comments from me will add further dimension to the ambit of the reasons so ably set out by my learned brother, Karibi-Whyte, J.S.C.

The questions for determination as set out by learned counsel for the appellant are also threefold and read:

(1) “If a man suffers from delusions, that is to say insane delusions, partial or total as to existing facts and he commits a crime (in consequence as a result), is he thereby excused

(2) In the peculiar circumstance and facts of this case, can it be an accurate conclusion in law that the appellant voluntarily killed his wife despite the judge’s findings:

(a) the conclusion of the learned trial judge’s finding of fact thus: ‘I am satisfied that he suffered from delusions…’

(b) the fact that the appellant has had a history of insanities.

(3) Following from questions 1 and 2 above, is the defence of self-defence not additionally open to the appellant in view of the established fact of being afflicted by a delusion that his wife and others bewitched him, rendered him impotent, fought him and were going to kill him.”

The submission of counsel for the appellant on these issues enumerated above is that:

Having regard to his state of mind before, during and after the killing which state of mind was weird, bent and abnormal so that he did not know the nature and quality of his act, after the killing of the deceased, he is entitled to the defence of insane delusion and self-defence under the principle laid down in the M’Naughten Case (1843-1860) All E.R. (Report) 229.

On the other hand, counsel for the respondent submitted that the state of mind of the appellant was not abnormal at the time of that killing and that the trial judge gave adequate consideration to the defence of insanity, delusion and self-defence though not specifically raised.

As the facts were set out in elaborate detail by my learned brother, Karibi-Whyte, J.S.C. in his reasons for judgment, I shall only refer to as much of them as are necessary for these comments of mine.

The appellant was a soldier in the Nigerian Army happily married with a child until, in his dreams, certain awful revelations were made to him about the activities of his wife, his child and other persons. Although there was no medical evidence in support of this fact, he became impotent and was unable to have sexual intercourse with his wife. Above all things, this made him most unhappy and he sought the assistance of James Olukara (d.w. 3) a native doctor and prophet of Iddo Oshun. D.W. 3 was willing to help. His complaint was that “he used to have some dreams whenever he slept and that the dreams used to make him afraid of his life each time he woke up.” According to the recorded testimony, the appellant said in part:

“I made the statement to the police about my wife turning into a spirit and pressing me down in my dreams. I then felt when I woke up that witchcraft was worrying me. I suspected that it was my wife pressing me down.

Before I went to bed on the day of the incident, there was no quarrel between me and my wife. On that day, I slept in the room but my wife slept in the parlour. During my sleep, I dreamt the same type of dream that some people were fighting me. I then woke up and started fighting with the people I saw in the room. I did not know what I was doing when I was fighting I joined the Army in 1969.”

Under cross-examination, the appellant’s evidence reads in part:

“I remember I made a statement on 6/11/78. I said there that my wife told me that she was not the one pressing me down in spirit form in the dream. After she told me that, I was satisfied. I did not believe that my daughter, Endurance sucked my blood. I was also satisfied about my wife’s explanation in regard to the second occasion in which I said I dreamt she was pressing me down in my dream that she was not responsible for it.”

From the evidence so far, it cannot be argued with any justification that the appellant was suffering delusion on specific matters, that is that he believed that his wife and his daughter were a threat to his life. When the scene moves to d.w. 3 at Iddo Oshun, the appellant’s evidence on this reads:

“As a result of the dreams, I went to a man at Iddo Oshun. The man gave me some treatment. After the treatment and I got back home, I continued to dream the same dreams so I went back to the man again. On the 6th November, 1978, when I found that the treatments the man gave were not effective, I went to him again and he decided to give another treatment. He gave me some potion to drink and asked me to look at a bottle of water. I saw in the bottle the same type of experience I used to have in my dream. I saw people beating and fighting me and I told the man that I would no longer look at the bottle again. Among those fighting me as I saw it in the bottle I recognised my sisters and bothers and some women and soldiers. I also saw a woman who my wife took me to. I made the statement to the police about my wife turning into a spirit and pressing me down in my dreams …I made exhibit B to the police …I confirmed before that superior police officer the 5th p.w. that the statement was made by me. Before I confirmed the statement, It was read over to me”.

D.W. 3 testifying on the crystal gazer bottle’s power, he said:

“I am a native doctor and also a prophet. I know the accused. I have a crystal bottle from which one can learn the future. A person who wishes to know the future will have to gaze into the bottle of water after taking orally some powder with water. It is the tablet or powder that will enable the person who gazes into the bottle to see the future or his problems… I did not enquire as to the nature of the suffering but agreed to allow the accused to gaze at the bottle by himself. The charge for the gaze was N30.00. I then gave the accused the usual prayer and the bible and also the powder and water to use for taking it. I dictated the psalms the accused was to read to him… He came around 7.30 to 8.00 p.m. At a later state after I had left him, I heard him shouting that it was his wife worrying him. I then went to rebuke him for disturbing others. He said his wife and his children were responsible for his troubles and that they had eaten up his heart and made him

useless as a man.”

Under cross-examination, d.w. 3 testified:

“The accused behaved normally at the time he was brought by his brother. The accused visited me twice. It was on the first occasion that he shouted. He looked at the bottle on both occasions though he did not take the powder on the 2nd occasion but he was still seeing things in the bottle on the second occasion according to what he told me, when he came originally, he looked from evening and left in the morning then he came back again in the evening and left my place after midnight before 1.00 a.m. He behaved normally when he came on the second occasion. He told me he came for treatment. The accused did tell me that his wife, his children and his brothers had eaten up his heart and made him impotent.”

One may ask the question whether the delusion the appellant had of seeing his wife and children together with others, miles away, beating him in a television crystal gaze bottle induced by the powder taken with water is not suggestive of an intoxication by the powder whose components are unknown but make visible to him the scenes he used to see in his dreams. This fact makes it suspect that the dreams must have been induced by the same substance as the powder as the identity of scenes cannot be a mere coincidence.

Following the experiences of the crystal gaze, the appellant trekked the 5 miles distance home and after retiring to bed in his room and a short sleep, woke up and set upon his wife and daughter, beat his wife to death and severely injured the child. He, because of the seriousness of the injury he inflicted, took the child for dead.

According to the testimony of p.w.2 the appellant thereafter rushed to the army barracks and pleaded for the use of a lorry to Iwo to kill an old woman there and thereafter threatened to kill one soldier opposed to him before giving himself up. The appellant knew that he killed his wife Agnes, thought he killed his daughter. He knew it was wrong to kill but decided to kill and face the consequences at law. He promised to give himself up after killing all those he thought were after his life. Exhibit B which is the statement the appellant made to the police contains more elaborate detail than those given in the evidence he gave in court and in part reads:

“Then about a week ago, I realised that my private part could not work again, this I tested when I asked my wife Agnes for sex and I could not sex her. When this ordeal was becoming too much for me, I was afraid of myself. Then I tried to find out the cause of these things. From there I went to a certain man at Iddo Oshun who, having prayed for me and gave me something to drink and asked me to be looking at what was worrying me in a bottle. I was just looking at the bottle like television and I saw I prayed further and I saw my wife in the bottle. I still saw myself still pressed down by a spirit on my bed while sleeping with my wife as I dreamt before and also woke up and asked my wife question which she denied and said it was the work of outside enemy. I also saw that when myself and my wife Agnes slept, I saw her in a spirit carrying me to a gathering and when the people saw me they all shouted that they have got the powerful man. I also saw that myself was tied up on a stick and they loose me and butchered me in pieces. I then saw that my wife Agnes shared my whole heart and my brothers at home named Solomon, Napoleon, and Godspower shared parts of my body and also one woman called Mama who lives at Iwo who always make native medicine for my wife shared some parts of my body including one of our soldiers called Peter who went with my wife to that gathering shared out of my body. I also saw that my daughter was (sic) also shared my head and private part. I also saw soldiers from my regiment and was buried at my home town Isoko and also my brother (sic) who shared out of my body were seen weeping at the burials. I then started to pray for my wife to release my heart to me while looking at the bottle. She Agnes refused. I then left the house of that man. As I was going towards Ede, I felt cold with all those in my mind and I branched to a church nearby and prayed.

… On my arrival at Ede, I met Agnes at home and I ask my wife to give me some amount that I was still going back to Iddo Oshun. She refused.

I later went back to Iddo Oshun and looked at the bottle with water in that man’s house again. I then started to look at the bottle and I begged both my wife and that Mama at Iwo to release my heart while praying at the bottle.

They refused and I saw that they wrote in the bottle that they are powerful and that they could not release my heart anymore I left home [Iddo Oshun] to Ede. When I got home [at Ede] my wife Agnes opened door for me and I asked her to come into our room to sleep. She refused. I then went into the room My heart was worrying me that I called my wife and I started fighting her when I felt I had become useless both in body and in my job. I then beat her to death. I held her breathe and knocked her head on the walls of building.

She also bite me on my two hands and I had some injuries there.

I also knocked the head of my daughter Endurance on the wall of the house.

My wife had died before I ran to inform my officers at Ede. “(Italics mine).

The first question arising is this: on a proper consideration of both the statement to the police and the evidence of the appellant in court, was the appellant affected by delusions on the relevant specific matters, i.e. whether his wife and child were witches and whether they were threatening his life at the time he attacked and beat his wife Agnes to death At that point of time, did the appellant see his wife make a move to assault and kill him

I would answer both questions in the negative. Even if the answer to the first question is in the affirmative, I would still answer the second question in the negative. It is not the mental disease that gives protection from criminal responsibility but the loss of 3 capacities as a result of the mental disease. See Rex v. Omoni 12 W.A.C.A. 511; Ngene Arum v. The State (1979) 11 S.C.91. In so far as delusion or more appropriately 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” [see Udofia v. The State (1981) 11-12 S.C. 49 at 59-60] a dream does not fall within the category of delusion.

Unsoundness of mind exists where there is defect of reason (or mental disease) consisting of its total or partial absence or in its disturbance. It is frequently marked by the existence of delusion, that is belief in facts which no rational person could believe. See Words and Phrases Legally Defined by Butterworths 1974 edition Vol. 2 p. 40. See Vol. 39 Halsbury Laws of England 3rd Edition page 857. Dream is described as a “sequence of sensations, images, thoughts etc. Passing through a sleeping person’s mind. (See page 554 Websters New Twentieth Century Dictionary Unabridged 2nd Edition).

As the evidence shows that it was whenever appellant went to sleep in bed that the dream brings on the vision of his wife as a spirit pressing him down and his daughter sucking his blood, it cannot be said that his visual experience in a dream state (subconscious state) can qualify as delusion. It is more akin to hallucination which is expressive of a disordered sense, and is a perception by one or other of the senses without external causation.

The crystal gaze bottle of water which created television pictures of himself being carried by his wife to a gathering and being butchered and his body shared – his heart to his wife, his private part and head to his daughter – is certainly unique. The pictures observed by the appellant appear to have been induced by the powder given him to drink with water by the d.w. 3. It is possible that both the experience in the dream state during sleep and the experience of the pictures in the crystal gaze water-filled bottle could implant in the mind a belief that those things seen by him under the two different conditions were true and bring about a delusion. That state did not appear to have been reached before the appellant descended on the deceased with extreme violence to terminate her life.

His was a case of avenging the slaughter of his own body he saw in the crystal gaze bottle filled with water which action cannot find any justification or excuse under our law. Certainly, the second part of section 28 of the Criminal Code Laws of the Federation of Nigeria or section 26 of the Criminal Code Laws of Western Nigeria which 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 provision (i.e. first paragraph) 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.”

does not absolve the appellant from criminal responsibility. If the appellant believed that he has been killed, his body shared and a burial conducted for him, the law does not allow him to avenge his own death by taking the life of his wife and others. See Ngene Arum v. The State (1979) 11 S.C. 91. Ovohovoriole v. The State (1981) 5 S.C. 288 at 289. If the appellant believed that he was to be killed in the future and his body shared and a burial conducted for him, the law still does not give him the liberty to kill those he believed were planning to take his life. His action is not protected by insanity, mistake or self-defence, as provided under the Criminal Code sections 28, 25 and 287 respectively Laws of the Federation of Nigeria.

It appears to me that there is lot of confusion of the legal defence of insane delusion or delusion on specific facts which arises from abnormal state of mind caused by disease of the mind and delusion on specific facts rooted in information, misinformation, dreams, crystal gazing or divination. Section 28 of the Criminal Code Laws of the Federation of Nigeria or section 26 of the Criminal Code Laws of Western Nigeria 1959 and corresponding sections in the Criminal Code Laws of all the States, deal with the defence of insanity in specific terms. The first limb or paragraph stipulates conditions which remove criminal responsibility from accused persons while the second limb or paragraph of the section stipulates conditions where criminal liability attaches to accused persons proved subject to delusion- insane delusion – on specific subject.

On a correct and proper reading and consideration of the section, I am unable to hold that delusion that has no causation in mental disease or natural mental infirmity does afford any defence. I make this point because of the growing fashion in the unbriddled use of the term delusion by counsel appearing for accused appellants.

It is not by accident that delusion is dealt with in the section of the Criminal Code dealing with insanity. When a person of his own volition hires an oraculist to consult his oracle for him on specific matters, e.g. concerning his family, and the oraculist narrates or relates weird stories of the hostile behaviour pattern of members of his family not observable by human experience, I would not, if the person believes the oraculist and as a result assaults and kills members of his family, ascribe his action to delusion on specific matters under section 28 of the Criminal Code Laws of the Federation of Nigeria. Or if a perfectly normal person going about his normal domestic chores sees two people talking in a whisper in his presence and suspects that they were discussing him in bad light, and on the basis of that suspicion which is totally false or even if true kills them, I would not ascribe his action to delusion on specific matters.

If a perfectly normal, healthy farmer whose mental health is unquestioned narrates that he heard the voice of God demanding from him the blood of a human being, I would not ascribe his action to delusion on specific matter available under section 28 of the Criminal Code Laws of the Federation of Nigeria. If a perfectly normal, healthy person sees a human being, a fellow hunter in the bush afar off and believes that the object was an animal, he shoots it down and on getting to the spot finds that it is a human being he has shot, barring the defence of mistake, I am unable to hold that the person was acting under insane delusion on specific matters. The examples can be multiplied endlessly ad infinitum.

It is beyond question that an insane person or a person in a state of mental disease or natural mental infirmity suffers delusion. The only question is whether the delusion is total or partial. It is therefore of paramount importance that counsel and their clients ensure that the necessary evidence to establish the statutory casual basis for the delusion is adduced, otherwise, the defence of delusion to excuse delusional irresponsibility will not be available to the accused.

Delusion is an English word and the concept it conveys has its origin in the thoughts and ideas of the owners of the word. Its use in the section of our Criminal Code dealing with insanity cannot but connote association and not total divorce with unsoundness of mind, i.e. mental disease or natural mental infirmity.

While I agree that the defence of delusion is available to persons who are not otherwise entitled to the defence of insanity in the first part of section 28 of the Criminal Code Laws of the Federation of Nigeria or its equivalent section 26 of the Criminal Code Laws of Western Nigeria 1959, it is to emphasise its link with the disease or affliction of mind alluded to in the first part of that section the emphasis is laid.

It is only when insanity deprives the individual of the categories of capacities enumerated in the section that criminal responsibility is removed. If insanity does not deprive of those capacities but only occasions delusion on certain specific matters, then instead of losing totally the defence available in cases of total insanity, the second part gives the defence of no criminal responsibility as the delusional beliefs warrant in the real state of things.

I find from the record of proceedings that both the High Court and the Court of Appeal fully considered the defence of insanity and delusion. It was for the above reasons and the reasons so ably stated in the reasons for judgment of my learned brother, Karibi-Whyte, J.S.C. I dismissed the appeal.

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SC.74/1983