Latifu Yusufu V. The State (1988)
LawGlobal-Hub Lead Judgment Report
NNAMANI, J.S.C.
In the Criminal Division of the High Court of Lagos State the appellant was in Charge No.10/27C/82, charged with the following offence:
“Statement of Offence
Murder, contrary to Section 319 of the Criminal Code.
Particulars of Offence
Latifu Yusufu (m) on the 24th day of July 1980 at Egan Farm, Ibeju Epe in the Ikeja Judicial Division murdered Muinatu Latifu(f).”
At the trial, 5 witnesses testified for the prosecution. The accused gave evidence and called two witnesses. The learned trial Judge, Oshodi, J. after evaluating the evidence before him convicted the appellant and sentenced him to death. The appellant appealed to the Court of Appeal but that Court on 4th November, 1986 dismissed the appeal. The appellant has now appealed to this Court.
Four grounds of appeal were originally filed, but learned Counsel to the appellant, Mr. Nwazojie obtained leave of this Court to file and argue grounds of appeal in substitution of those originally filed. The two grounds of appeal without the particulars were as follows:-
“1. The learned trial Judge and the Justices of the Court of Appeal F erred in law by not clearly drawing a distinction between the first limb and the second limb of Section 28 of the Criminal Code and thereby misdirected themselves in the evaluation of the evidence necessary to establish that a person was affected by delusions on some specific matter, as distinct from a person suffering from insanity under Section 28 of the Criminal Code.
- The Court of Appeal, per Uthman Mohammed, J.C.A., gravely misdirected itself on the length and extent of delusive beliefs, giving the impression that it must have been prolonged or persistent for a considerable time before it can avail one under Section 28 (second limb) of the Criminal Code.
Both learned Counsel to the appellant, and learned Counsel to the Respondent, Mr. Arthur- Worrey filed very useful briefs of argument and I must commend them for their effort. In his own brief, Mr. Nwazojie set out the issues he perceived are for determination in the appeal. The 3 issues set out in paragraph 3 of appellant’s brief were,
“1. Whether the state of facts as conceived by the appellant, if they were real, could excuse the appellant as not criminally responsible for the murder for which he was convicted in view of provisions of Section 28 (second limb) of the Criminal Code.
- Whether the conviction of the appellant for murder and affirmation thereof by the Court of Appeal is justifiable or could be sustained, having regard to the evidence of delusion suffered by the appellant at the time of committing the offence, and the provisions of Section 28 (second limb) of the Criminal Code.
- Whether the learned trial Judge was not in error in holding that “the accused knew exactly what he had done although he believed what he did was right” when the defence of delusion as in Section 28 (second limb) of the Criminal Code does not require any such knowledge on the part of the appellant any more, once the accused cannot avail himself of the benefit of Section 28 (first limb). In other words, whether the provisions of the first limb and the second limb of Section 28 of the Criminal Code are mutually exclusive or one is a supplement to the other.”
In his brief of argument, learned Counsel to the appellant conceded that the defence of insanity cannot avail the appellant. What was relevant, he contended, was the defence of delusion. Both counsel agree on this and, as in my view, this appeal is to be determined on a narrow compass, I am attracted to the shorter formulation of issues for determination by learned Counsel to the respondent. His third issue is the same as the appellant’s counsel’s third. The 1st and 2nd issues are directly in point. They read,
“(1) Whether the defence of delusion raised by the Appellant was established on the evidence in this case.
(2) Whether the decision of the Court of Appeal can be supported having regard to the evidence in this case.”
In oral argument before this Court, Mr. Nwazojie submitted that all the evidence in the case was of insanity . He, however, made the point that insanity encompasses delusion hence insane delusions. He contended that the appellant was suffering from delusion over the years. He submitted that the evidence of delusion lay in the ipsi dixit of the appellant. He referred to John Lake v. State (1985) 1 N.W.L.R. 1 at 5. He also referred to the evaluation of evidence by the learned trial Judge and the Court of Appeal and contended that there appeared to be a confusion of insanity and delusion and this may have occasioned a miscarriage of justice. Learned Senior State Counsel, Mr. Arthur- Worrey, for his part submitted that the evidence before the Court which the learned trial Judge accepted could not sustain a defence of delusion. In his view the delusion which the appellant claimed he suffered does not fall into any of the definitions of delusion, whether the legal or medical definitions. He thought the appellant suffered a hallucination. He referred to Ngene Arum v. The State (1979) 11 S.C. 91,101 and Benson Ihonre v. State (1987) 4 N.W.LR. (Pt.67) 778.
The defence of delusion is contained in Section 28 of the Criminal Code (second limb). It reads,
“A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”
The first matter I ought to deal with is the nature of delusion, or in other words what is delusion I shall adopt the definitions proffered by both learned Counsels in their briefs of argument. In his own brief, appellant’s Counsel defined it as
“A firm and unreasonable belief which is not based on reality and which cannot be removed by any demonstration of its inaccuracy”
He also referred to the definition given by Professor John Glaister in his book “Medical Jurisprudence and Toxicology” Eighth Edition, 1947 where it was defined thus, “An insane delusion is a persistent and incorrigible belief that things are real which exists only in the imagination of the patient and which no rational person can conceive that, the patient, when sane, could have believed.” The Respondent’s Counsel adopted Professor Glaister’s definition.
In Dew v. Clark (1826) 3 Addams 97, Sir John Nicol defined it as “Belief in facts which no rational person could believe” or “belief of things as realities which exist only in the imagination of the patient. The frame or state of mind which indicates his incapacity to struggle against such an erroneous belief constitutes an unsound frame of mind.”
He was of the view that “such delusions are generally attended with eccentricities often with violence, very often with exaggerated suspicions and jealousies” .See Waring v. Waring (1848) 6 MOOP.C.C. 341,353. See also Banks v. Goodfellow (1870) L.R. 5 Q.B. 549,570. In Ngelle Arum v State (Supra), which is still the locus classicus on this issue of delusion, Dr. Warrick Onyeama, a Consultant Psychiatrist, at page 101 defined the term in these words:
“Delusion in the con 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 con with the patterns of belief held by the culture from which the subject derives.”
The law on delusion has been well settled. Basically it is this, that if the accused person is not entitled to the benefit of the first limb of Section 28 of the Criminal Code (i.e. if it cannot be established that at the time of doing the act, he was in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he was doing, control his actions or know that he ought not to do the actor make the omission) he will be criminally responsible for the act to the same extent as if the subject of his delusional belief is real. In other words, if the subject of his delusional belief is taken as real, he would be liable only if the act he did in furtherance of that belief, is one that is punishable. Perhaps to use the example of the instant case, if it was indeed established that there was a delusion that a deer jumped on appellant’s back, appellant’s criminal responsibility for the act of killing, would be to the same extent as if indeed it was a deer and not his wife. I think Mr. Nwazojie stated the position correctly in his brief. At page 4 thereof he submitted that-
“the liability of the appellant is limited to the (false) facts as conceived by him to the extent as if those (false) facts were indeed true in real life, and no more. In other words, he would be given benefit of the delusion and adjudged liable or otherwise depending on the extent to which he could have been criminally liable had the act he committed pursuant to the delusion existed in real life.”
Mr. Nwazojie of course went on to submit that killing a deer, one of the dangerous animals, cannot be a punishable offence.
Before going to the evidence in this case to see whether it can sustain a defence of delusion in appellant’s favour, I think I ought to resolve the seemingly difficult distinction between insanity and delusion. While appellant’s Counsel asserted that both defences were mutually exclusive, learned Counsel to the respondent was of the view that the two arms of Section 28 of the Criminal Code are not independent provisions.
I think that one cannot draw too sharp a distinction between both. A person who is suffering from a delusion cannot be said to be a sane person. In my view he is suffering from some disease of the mind. Its probably more correct to say that insanity encompasses delusion. Without appearing to proffer a medical opinion, I see them as different degrees of mental illness. The passage from Ngene Arum (supra) which has led to this controversy has to be carefully examined. At page 105 of the record, Idigbe, J.S.C. looking at the two limbs of Section 28 said,
“The first limb of Section 28 deals with the defence of insanity, and the second limb clearly relates to delusions (sometimes loosely – though not necessarily the same – referred to as “insane delusions”); insanity is not a sine qua non to the experience of a delusion or hallucination. It is, indeed, not easy to distinguish between delusion and insanity when these terms are used in their ordinary meaning; but as far as Section 28 of the Criminal Code is concerned, there is a clear distinction for the purposes of establishing a defence under either limb of the section.”
The portions I have underlined are the most relevant portions for our purpose here. ldigbe, J.S.C. himself was the first to recognise that a distinction between the two when used in their ordinary meanings is difficult. As I said earlier on, both are facets of mental illness although I concede that you do not need to be insane in order to have delusions. I think the only real distinction lies while trying to establish a defence. For insanity all that has to be established is contained in the first limb. In the second limb, the defence consists just of assuming that the subject of the delusional belief is true and judging the criminal liability, against this i.e. whether the act, assuming that the delusional belief is true, is one that is punishable or not. But I don’t think one can talk of mutual exclusivity for I doubt if one can construe the second limb of Section 28 without reference to the first. The second limb is to the effect that the person whose mind is affected by delusions on a specific matter in respect of whom one is to consider the defence of delusion must be a person who is not otherwise entitled to the benefit of the foregoing provisions of the section – i.e. the first limb. It is for this reason that some Courts start evaluating the evidence as if they were considering a case of insanity and then go on to delusion. See pages 102,103 and 105 of Ngene Arum (Supra). Viewed from this perspective, I would agree with learned counsel to the appellant that there was an unnecessary mixing of the two in the passage at page 58 line 28 where the learned trial Judge said:-
“In this case one has to consider whether the accused’s delusion was such as to make it impossible for him to appreciate or understand the nature of his action.”
It would also appear that the Court of Appeal considered the two defences side by side. At page 84 of the record, Uthman Mohammed, J.C.A. said,
“But there was no evidence that the appellant was suffering from mental disease at the time or shortly before or after the attack on his wife. See R v. Nassamu (1940) 6 W.A.C.A. 74. This was indeed the view of the learned trial Judge. The facts of the case do not seem to tally with the defence of delusions put up by the appellant”
After referring to the definition of insane delusions in Effiong Udofia v. The State (1981) 11-12 S.C. 49 at 59 per Obaseki, J.S.C. he went on, “The two definitions I have referred to, above, will show that evidence however slight must be given to show that at the time the offence was committed, the appellant was suffering from mental or nervous strain. It is not enough to show that the appellant was suffering from a disease of the mind which was capable of depriving him (of) the power of self control without any supporting evidence to establish that at the time the act was committed he was in fact insane even temporarily.”
To the extent that these passages show a consideration of the two defences almost interchangeably, there was an error but I do agree that that did not occasion a miscarriage of justice.
I am inclined to the view that the approach to Section 28 is to consider the evidence available in each case as they relate to the two defences in both limbs of Section 28 starting with insanity and going on to delusion, which in any case can only arise if the benefit in the provisions of the first limb are not available. I do not think that one can treat the two defences together or interchangeably since the elements necessary to establish either defence are different.
Now to the evidence before the learned trial Judge. The star witnesses for the prosecution were P.W.2 and P.W.3. I shall set down just a few important portions of their testimony. P.W.2, the’ daughter of the accused and deceased said in part,
“On reaching the farm the farmer told them they were to cultivate an area. At this stage after cultivating about 3 plants my father and mother started to exchange words there the farmer asked them to stop the exchange. We then left the farm and my mother said that he (sic) was going to report my father to her own father the 1st P.W. My father prayed my mother not to go and report but my mother insisted that she was going to report. At this stage the accused with the cutlass in his hand matcheted my mother on her leg and shoulder. The accused then ran away”
P.W.3 in her own testimony said,
“The accused and my auntie had misunderstanding at this stage and farmer intervened that if they would not stop they would leave his farm and not waste his gari. We did not know what caused the misunderstanding. We then left the farm the accused in front followed by my aunt, then 2nd P.W. and myself in the rear. They were still exchanging words and we heard the deceased saying that she was going to report to her father. The accused begged her not to but she insisted she was going to report. It was then the accused turned round and mateheted her with the cutlass in his hand. My auntie shouted” “Se okuku fe pa ohun mi” meaning do you want to kill me The accused then used the cutlass again on her shoulder.
Two witnesses gave evidence for the appellant. D.W.1 in part said,
“Later he became very ill which turned him mad. I had to tie him and took him to a herbalist at Isale Eko behind the Oba’s palace He took ill about 25 years ago. When he recovered he came to me. But occasionally he has recurrence. When it became persistent I had to return him to the herbalist at Isale Eko.”
The 2nd D.W.said.
“About 25 years ago he was brought to me as a patient by the 1st D.W. He was brought to me with his hands and legs tied with the complaint that he was mad. I treated the accused when he was brought to me…………….On every occasion he was brought to me he did not know what he was doing. When he had the fits he could not know what he was doing not that what he was doing was right or wrong I saw him last about 3 to 4 years ago when the accused is sober he could not injure anyone. If I did not treat him he could be violent.”
Under cross-examination, the witness said,
“the sickness does not just come suddenly but gradually and if those around watch him they will notice it.”
As the Police did not give evidence the two statements which the appellant made were not tendered in evidence. In his own testimony in Court the appellant said among other things:
“The deceased in this case was my wife. We have been married for 16 years before the incident happened……
We left the farm when there was to reap (sic) and I advised that we should go to another farm. As we were on our way out something just jumped upon me and I thought my wife was an animal called Igala (deer) hence I matcheted the animal whilst I was matcheting her she was shouting my name Baba Ebu and that it was she I was matcheting. There and then I dropped the cutlass and carried her. The children at this time ran away. When I could not help my wife again I then left for Ikeja to report myself to the Oba. At this time I was made (sic) for I had used my clothe to dean my wife……………………….I cannot account what I was doing I could not even control myself. I did not know that what I was doing was wrong.”
It does seem to me that the evidence given by D.W.1 and D. W.2 related to insanity and that is not what is relevant in the instant case. If insanity was in issue, one would have considered whether that evidence is sufficient to establish a history of mental disease. The only evidence of delusion therefore is that given by the appellant. I see nothing in the judgment of the Court of Appeal, suggesting that appellant’s testimony as to the delusion was dismissed because it was his ipse dixit. A party’s testimony is admissible evidence, and depending on what weight it carries, may just be all that is needed to sustain that party’s case. Indeed in many cases this Court had chided lower Courts that tended to look down on ipse dixit. In the latest case on the issue. Ahmed Debs v. Cenico Ltd. (1986) 6 S.C. 179; (1986) 4 NWLR (Pt.32) 846 both Oputa and Eso, JJ.S.C. dealt with this matter, Eso, J.S.C. at page 179 said of it;
“It is admissible and the weight to be placed upon it would depend on circumstances. A party’s ipse dixit could be cross-examined like any other evidence. It could be impeached with another evidence. It could be admitted. It could be left just uncontradicted. It is for the court. in evaluating the evidence to take every circumstance into consideration.”
At page 193 Oputa, J.S.C. said that,
“there can be no question that a mere “ipse dixit” is admissible evidence but it is evidence resting on the assertion of one who made it; where there is need for further proof “a mere ipse dixit” may not be enough.”
How then did the trial Court and the Court of Appeal treat the evidence in this case including the ipse dixit of the appellant. In short, they believed the testimony of the prosecution witnesses and rejected the testimony of the appellant as to the alleged delusion. The learned trial Judge after evaluating the evidence, concluded as follows:-
“From the evidence of the 2nd, 3rd and 4th prosecution witnesses and also that of the accused which I have dealt with above the accused knew exactly what he had done although he believed what he did was right. In other words he knew he was killing the deceased for what the deceased did, but felt that the deceased deserved to be killed for that.”
Earlier on he said,
“From all have said above it is clear that the accused killed his wife because he did not want his wife to report him to her father. Obviously this is the motive especially when one reconciles this with the fact that the 1st P.W. during cross- examination stated that he had never settled any matter for the deceased and the accused since they were married for about to years.”
The effect of these findings is that the learned trial Judge disbelieved the appellant’s story about a delusion and a deer jumping on his back. The second portion I have quoted above clearly provides the evidence justifying the conclusion at page 58 of the record which I first set down above and in respect of which learned Counsel to the appellant complained.
These findings were affirmed by the Court of Appeal. As Uthman Mohammed, J.C.A. put it,
“There was nothing to show from that evidence or from the evidence of the prosecution witnesses that the appellant was suffering from even a temporary block of his mind as he alleged. I agree that the appellant was sane at the time of the attack……………….. The learned trial Judge is quite right to accept the evidence of P.W. 2 and P.W. 3 as the true fact of what happened before the appellant struck the deceased. I agree that motive for the killing must be attributed to the exchange of words between the appellant and the deceased.”
These are concurrent findings of two courts and the attitude of this Court to such finding is now so well settled as to be trite. See Nwadike v. Ibekwe (1987) 4 N.W.L.R. (Pt.67) 718; In re Mogaji (1986) 1 NWLR.(Pt.19) 759; Niger Construction Ltd v. Okugbeni (1987) 4 N.W.L.R. (Pt.67) 787; Woluchem v. Gudi (1981) 5 S.C. 291, 326; Chinwendu v. Mbamali (1980) 314 S.C. 31. There is nothing that would justify interference by this Court. It seems to me that this claim of delusion by the appellant was an afterthought. He was obviously irked by the insistence of his wife to report their quarrel to her father.
He could not, as it were, brook her impertinence and stubbornness. Although one would have liked to have had medical evidence in this matter (no one can be blamed for not providing one as the appellant in his two statements to the Police could not have left any suspicion of mental imbalance, and of course there were the statements of the witnesses) but I entertain no doubt, which as learned Counsel to the appellant pleaded, could be resolved in appellant’s favour.
It is clear that the burden, albeit on the balance of probabilities, was on the appellant to establish by credible evidence that he suffered from a delusion. That burden was not discharged. See R. v. Omuni 12 W.A.C.A. 511- 512; and Lake v. State (1985) 1 N.W.L.R. (Pt. 1) 1.
The appellant’s ipse dixit put against the other evidence was not enough. Learned Counsel to the appellant contended that the delusional state could have come suddenly and gone suddenly too. There is no medical evidence to support such a possibility. The evidence of D.W.2, for whatever it is worth, was that if the appellant was about to have a relapse those around him, if they were watching, would notice some changes in his conduct. The totality of the evidence of P.W.1, P.W.2, and P.W.3 was to the effect that the appellant was normal up to the time of the killing and immediately after.
Besides, it is not easy to accept the possibility of this short-spanned delusion when all the definitions of delusion, both legal and medical, refer to a persistent, incorrigible belief, one that is inaccessible to reason. It seems to me that it is easier to deal with a case of delusion where there are no co-existing circumstances which may offer an alternative and cogent explanation for an accused person’s conduct. Such co-existing circumstances were, unfortunately for the appellant, present in the instant case.
In the result, this appeal fails and it is dismissed. The conviction and sentence previously passed on the appellant are further affirmed.
SC.9/1987
