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3PLR/1984/36 (SC)



(1984) LPELR- SC.34/1984












THE STATE Respondent(s)



  1. O. Akinrele – For Appellant


  1. E. Hayble D.S.G. Bendel State – For Respondent




CRIMINAL LAW AND PROCEDURE – DEFENCE OF DELUSION:- Distinction from defence of back-out or amnesia (temporary and complete failure of memory) – Need for a judge to appreciate the essential nature of a delusion as a lie and incapable of being proved evidentially – Proper way to treat defence of delusion –  Consideration of the element of self-defence in relation to delusion –

CRIMINAL LAW AND PROCEDURE – MURDER:- Proof of  – Defences – Section 24 of the Criminal Code  – Insanity and Delusions – Distinction – Where case of prosecution offered no evidence to repudiate accused person’s defence of delusion as distinct from insanity – How treated

ETHICS – LEGAL PRACTITIONER: Murder and death-row cases – Duty of defence counsel to distill every relevant ground of appeal – Statement that nothing can be urged in defence of a death row convict – When improper – Attitude of court thereof – Whether Supreme Court can remedy same – Effect

CHILDREN AND FAMILY LAW: Murder – Fratricide/Sibling-killing – Implication for justice administration

HEALTHCARE AND LAW – INSANITY/INSANE DELUSIONS:- Meaning – Distinction from insanity and amnesia/mental blackout – Crime alleged to have been provoked by strange dreams – Whether can found legal proof of delusion – Duty of court thereto

PRACTICE AND PROCEDURE – COURT – SUPREME COURT – OMISSION IN RULE OF COURT: Supreme Court jurisdiction as creation of statute – Inadvertent statutory omission leading to denial of a death row convict an intervention available to parties in civil proceedings – Attitude of court thereto – Order 8 (Supreme Court Rules) dealing with criminal appeals compared with Order 7 rule 2(6)

WORDS AND PHRASES – “DELUSION”: Meaning of Delusion







IRIKEFE, J.S.C. (Presiding):

The appellant in this case was charged with the murder of his own brother, by inflicting matchet cuts on him. The evidence shows that the offence was committed in the morning hours. The learned Judge who tried the case (Amissah J.) went carefully through the defences raised by the appellant, both real and imaginary, and arrived at the conclusion that the charge as laid had been proved. The appellant sought to disown responsibility for the offence by alleging that he had acted while he was either dreaming or in a state of unconsciousness and that in consequence thereof, he had no control over what had occurred.


As against the above, the learned Judge took cognisance of the distance between the abode of the appellant and the scene of the attack, coupled with the time of the day when the attack took place and decided, rightly in my view, that the appellant was merely trying to deceive the court. Learned counsel appearing before us stated that they had nothing to urge in favour of this appellant. This view, having regard to the state of the record, is well founded.
Accordingly, this appeal fails and it is hereby dismissed. The conviction and sentence imposed by the trial court which were affirmed by the Court of Appeal are hereby re-affirmed.




I have gone through the record of proceedings and judgments of both the High Court and the Court of Appeal and I agree with both counsel appearing in this matter that there is nothing that can usefully be urged in favour of the appellant. The act of inflicting matchet wound on the deceased which ultimately resulted in the death of the deceased was admitted. But the appellant in his statement to the police stated that he did it in reaction to the dream he had while sleeping at 9.00 a.m., of people beating him all around and asking him to leave the house. Incidentally, the deceased was his brother who had a claim to the house as well the house being a family house. The question that arose for consideration was whether the appellant acted while under insane delusion or under a dream state.


Amissah, J. after considering the issue of insanity, provocation and delusion, held

‘I am satisfied that he deliberately cut the deceased’s neck with a cutlass for the reasons best known to him (accused) and that his defence before me is a tissue of lies and a cover up. I find as a fact that the accused was sane at the time he cut the deceased’s neck. ‘


At the Court of Appeal, Ikwechegh, J.CA (in his judgment with which Eboh and Ete JJ.CA concurred, while considering this issue of insane delusion,) said:

“Suppose the appellant was beaten with fists and blows by the deceased who was saying ‘leave my house; leave my house’ Now would a reasonable reaction by a reasonable man be to grab a cutlass and cut the other person down?

For my part, I would say no.”


The criminal liability of a person acting under delusion is the same as if the scene was real and I agree with the Court of Appeal that it is not a reasonable reaction for a brother to kill his brother who asked him to leave his house.
See Ngene Arum v. The State (1979) 11 S.C.91; See Udofia v. The State (1981) 11-12 S.C.49.


I would therefore dismiss the appeal and affirm the conviction and sentence. I hereby dismiss the appeal and affirm the conviction and sentence.




Appellant was on the 31st January, 1984, convicted on appeal to the Court of Appeal for murder. Appellant was on the 4th day of May, 1982 convicted of the offence by the Auchi High Court. The defence of appellant in the High Court was that he committed the offence when he was in a dream state. In his evidence in court at the trial, he stated how certain persons were attacking him in his dream with iron rods, etc., and he used his matchet which was by his bedside to defend himself. The consequence of that defence was the fatal wounding of the deceased. In his statement to the police in the morning of the incident, Exh. A. he stated how certain persons were beating him all around the body in his dream and he used a cutlass which was by his bed on them. He could not in his dream identify any of his attackers. However, he subsequently came to know that the deceased was the victim of his attack. The evidence of all the prosecution witnesses accepted by the court was to the effect that the appellant was perfectly normal and was not insane. The learned trial Judge accepted this evidence and held that he was not insane. The evidence of the police witnesses showed that the appellant was suffering from the feeling that certain persons were attacking him. This evidence together with exhibit A, the statement of the appellant to the police, and his evidence in court suggest a pattern of delusion that appellant was being attacked by unknown persons. As against this is the evidence of the appellant that on each occasion he was being attacked whilst he was in a dream state. There is no other evidence, even if medical evidence, confirmatory of this claim by the appellant that he acted in a dream state. It is well settled that an action in a dream state is not action for legal purposes. Where an accused acted in a dream state it is difficult to bring such action within section 24 of the Criminal Code, which requires acts to import criminal responsibility to be voluntary. In effect the appellant’s defence if properly considered, and where evidence for such consideration is available, will suggest that neither was the conduct of the appellant voluntary, as to the killing of the deceased, nor was his act intentional. It is clear from the evidence before the learned trial Judge that there was no evidence on which he can come to such a finding.


The learned trial Judge considered the cases on insanity and rightly rejected them. He also considered the defence of partial delusion and in my view also correctly rejected. Since he acted, as he said, in a dream state the question of delusion does not arise.


In the Court of Appeal, the learned justices agreed with the trial Judge and held that in the circumstances of this case the learned trial Judge had not improperly rejected any defences open to the appellant and dismissed the appeal. Before this Court, learned counsel for the appellant and respondent had found nothing on the records to urge in favour of the appellant. I agree entirely with this view. The only defence, which could have been urged on the evidence before the trial court was one of acting in a dream state, a defence peculiarly within the knowledge of the appellant – See section 141 of the Evidence Act. The onus is on the defence in such a situation to establish the fact that he so acted; the prosecution having established that the deceased was killed by the voluntary act of the appellant – see section 138 of the Evidence Act. Where the facts make it more probable that appellant was at the relevant time acting in a dream state, and therefore not responsible for his actions, then he will be entitled to an acquittal. The facility with which this defence can be raised and the difficulty of a rebutting evidence renders it peculiarly susceptible to rejection by the courts. As I have already said, the evidence adduced by the defence in support is too tenuous to merit serious consideration.


For the above reasons, I will dismiss this appeal, and affirm the decision appealed against.




The evidence before the trial court that the appellant brutally murdered his brother on the fateful day was overwhelming. I am satisfied at the trial that (sic) all the legal defences open to the appellant were carefully considered and none was found to avail him. In these circumstances, I think the conviction of the appellant was proper and the Court of Appeal was right in dismissing the appellant’s appeal and confirming his conviction. I agree with both counsel in this court there is nothing useful that can be urged in favour of the appellant. I would dismiss the appeal for being devoid of merit. The conviction of the appellant and the sentence of death passed on him are hereby affirmed.




The appellant was on the 4th day of May, 1982 convicted of the murder of his own brother David Akhidime by Amissah, J. sitting at the Auchi Judicial Division of the Bendel State High Court. The appellant appealed to the Court of Appeal of the Benin Division. This court found no merit in his appeal and accordingly dismissed same on 31/1/84. The appellant now appeals to this Court. His notice and grounds were filed well within time (13/2/84). This Court therefore has jurisdiction to hear his appeal.


Two grounds of appeal were filed by the appellant from his prison cell. They were:

  1. “That the learned trial Judge erred in law in convicting the appellant of murder or robbery when there was no direct evidence before the court that the appellant was responsible for the death of the deceased.”
  2. “That the decision of the trial court is unwarranted, unreasonable having due regard to the weight of evidence.”


Learned counsel for the appellant filed a very short brief saying:

“I have carefully read the records and regret to say that I have nothing useful to urge in favour of the appellant.”


Learned counsel for the respondent was in entire agreement with the decisions of the lower courts and shared the same view with the appellant’s counsel. He too as a result has “nothing favourable to urge for the appellant.”


I have also read the records of this appeal and from those records it unmistakeably appears that the court of first instance, and the court below both totally misconceived the defence of partial delusion. This misconception led to serious errors in law and to both courts misdirecting themselves as to the onus of proof and the legal effects of the facts proved in evidence.


In the court of first instance several defences were put across such as insanity, provocation, and self defence. These were adequately considered and, in my view, rightly rejected both by the trial court and the court below. But there was one defence which was wholly misconceived and therefore inadequately considered and consequently erroneously rejected. That was the defence of partial or insane delusion under section 28 of the Criminal Code.


To understand the crux of this defence, it may be convenient, at this stage, to reproduce the second paragraph of section 28 of our Criminal Code:-

“A person whose mind, at the time of 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 delusions to believe to exist” (Italics mine)


A careful reading and critical analysis of the second paragraph of section 28 of the Criminal Code reveals that:-

  1. Delusion may be in respect of one specific subject or matter. It may be in respect of more than one matter or subject.
  2. A person suffering from delusion is not necessarily insane as defined by the first paragraph of section 28 and that is why he is not entitled to the benefit of the provisions of that part. In other words proof of insanity completely exonerates under the first paragraph but proof of delusion does not.
  3. Even if delusion is proved the accused is still criminally responsible.
  4. But that responsibility is limited in extent – that the real state of things were as he was induced by the delusion to believe to exist.


In a defence based on delusions the court is not dealing with reality – no. It is dealing with an imaginary state, a state of fantasy, a state of make believe. What then is a delusion? It is a belief based upon a concept for which there is no reasonable foundation and which is ordinarily incredible to a sane person. That is why a delusion is treated as partial insanity: Kimberly’s Appeal, 68 Conn 428. See Ballentine’s Law Dictionary 3rd edition p. 330. The same author at p.634 defines insane delusion as follows:-

”The product of a deceased mind or brain. A belief which cannot be dispelled by reason and can be accounted for only as a product of mental disorder. A belief in things which do not exist and which no rational mind would believe to exist A belief in something impossible in the nature of things or under the special circumstances. A belief in a state or condition of things which no rational person would believe and which refuses to yield either to evidence or reason.”


It is because in a “delusion” the court is dealing with a state that is unreal that section 28 (Second paragraph thereof) fixes criminal responsibility “to the same extent as if the real state of things had been such as the accused was induced by his delusions to believe to exist.” I will reproduce as Appendix 1 the statement of the appellant and his oral testimony as Appendix 2.

With the above as a necessary preamble, let me now examine the treatment of the issue of partial delusion in the judgment of the trial court. At p.33 of the record the learned trial Judge said:-

“I have also considered the defence of partial delusion even though not specifically raised by the defence, and I find as a fact that this has not been established by any credible evidence.”


What credible evidence may I ask? The appellant made a statement to the police tendered in evidence as exhibit A. He gave evidence on oath in his own defence. Both exhibit A and the appellant’s oral testimony in court point unmistakably to something abnormal, something out of the ordinary.


The appellant and the deceased were brothers. Why should the appellant kill the deceased. What is the motive? I agree that the absence of motive standing by itself alone is not sufficient to infer insanity or insane delusion; but if coupled with other evidence indicative of mental imbalance, it may be decisive in favour of the inference that the appellant was either insane or suffered from insane delusion.


The appellant after using his cutlass on one of those he imagined attacked him, did not attempt to hide the cutlass. He left it on his bed and ran to the police station to report the alleged attack on him and the fact that he cut one of his attackers with his cutlass. Normal people do not behave like that. The vital question now is: From the evidence of the appellant and his statement exhibit A, can a fair minded jury conclude that appellant suffered from delusions? If the answer is in the affirmative or at least that there is a probability that he was deluded then the defence has discharged the onus on it.


The next question will then be how did the trial court deal with exhibit A and the appellant’s oral testimony? At p.30 of the record, the learned trial judge observed:

“Besides the ipse dixit of the accused that he dreamt that he was being beaten with iron rod, there is no other evidence before me to establish that he was in fact beaten and sustained any injuries.”


With the greatest respect, the above passage shows a serious misconception of the defence of partial or insane delusion. If the appellant were in fact attacked with iron rods and in fact sustained injuries then this case should have moved up from the realm of delusion to the realm of actual reality. It is exactly because the appellant was, in fact, not attacked and sustained no real injury, that he is deluded.


Delusion does not deal with reality for it is a belief in things which do not exist and which no rational mind would believe to exist. The learned trial judge was right without knowing it when he observed that “the defence put up by the accused centres on the fiction of his imagination.” That precisely is what delusion means – a belief based on the figment of the accused person’s imagination for which there is no reasonable foundation and which is ordinarily incredible to a sane person. Again at p.31 of the record, the learned trial Judge observed:-

“The accused did not say, that his encounter with the deceased was real.” That exactly is the crucial point in delusions – that the matter or matters induced by the delusions are unreal but the law (section 28) fixes the appellant with criminal responsibility “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.”


There is another dictum by the learned trial Judge at p.31 of the record which deserves serious attention:-

”The defence of partial delusion, in my view, does not rest with the ipse dixit of an accused person who raises it. In other words it does not follow that when once it is raised by an accused person he should go scot free. It is for the trial court to go into the matter to make sure that the delusion is in fact proved by credible evidence.” 5


I am in perfect agreement. The above is a correct statement of the law. The only difficulty in this case is the application of the principle. Firstly if the ipse dixit of the appellant coupled with other evidence, circumstantial, though such evidence may be, point to a delusion then the onus shifts, for then the appellant has established that on the totality of the evidence led there exists a reasonable probability of a delusion, then again the prosecution has not proved its case beyond reasonable doubt. This seems to be the view of Lord Goddard L.C.J. in the celebrated case of Harry Lazarus Lobell (1957) 41 CR. APP. A. 100 at p.104. Secondly, it is only when there are two versions of an essential fact that a trial court has, and can exercise its discretion to believe one side and disbelieve the other. See Clark Ejurem vs Com of Police (1961) All N.L.A. 478. In this case the evidence of all the prosecution witnesses related to the issue of insanity. The trial court rightly believed them, and found, rightly too, that the appellant was not insane. He was sane. Now the issue of delusion was never put to any of the prosecution witnesses. The end result is that, that issue (however raised either directly or indirectly and circumstantially) stood uncontradicted. There was thus no room for and no materials on which the trial court could exercise its discretion to believe or disbelieve. It was bound to believe unless the evidence of delusion was so obviously and so patently improbable that no fair minded jury could have believed it. This happens not to be the case in this appeal.


Thirdly, an appellate court can and in fact has a duty to examine the grounds on which the conclusions and inferences of the court below are based and if convinced that the findings were based on a wrong view of the evidence or that the inferences were erroneous the appellate court will be justified in taking a different view of the evidence See Watt v Thomas (1947)1 All E.A. 582 at p.584. In the present appeal the inference that the defence of partial delusion did not avail the appellant was – as I have shown earlier on in this judgment, based on a mistaken view of the meaning of delusion. The trial court as well as the Court of Appeal were looking for reality whereas delusion deals with the unreal.


The learned trial Judge placed considerable reliance on the case of Philip Dim (1952) 14 W.A.C.A. 154. In the case of Philip Dim the learned trial Judge there did not believe the accused person’s story that he had a black-out. But, be that as it may, a black-out stands on a completely different footing. A black-out is a temporary and complete failure of memory. Amnesia can be cross-checked and disproved. In this case, insanity was disproved but delusion was not disproved. Rather the finding – “In my considered view, the defence put up by the accused centres on the fiction of his imagination” seems to be a perfectly legitimate finding on the issue of delusion. The learned trial Judge in other words implicitly found delusion but explicitly found that the “story told by the accused that he dreamt of people beating him with iron rods is a lie.” In a sense, a delusion is a lie as it deals with the unreal and the tenor of the whole judgment seems to suggest that this was the sense in which the trial judge used the expression “a lie” for he had earlier on observed that “the accused did not say that his encounter with the deceased was real” and “there is no other evidence before me to establish that he was in fact beaten and sustained any injury.”


The other case relied on by the trial court in support of the contention that delusion was not proved “by credible evidence” was R v Omoni (1949) 12 W.A.C.A. 511. This case dealt mainly with the defence of insanity pure and simple. The only reference it made to delusion is as follows: at p.513

“It must further be remembered that if the defence be one of partial delusion, the provision of the second paragraph in the Nigerian section 28 are applicable and that they are similar to the rules in the Macnaughten’s case as to delusion.”


Now, Question 4 of the M’Naughten Rules accepts the fact of delusion but inquires into the criminal responsibility of an accused person who commits an offence in consequence thereof. The answer of the judges amply support the case of the present appellant viz:

“he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion existed were real.”


In the present case on appeal to this Court if the facts with respect to which the delusion of the appellant existed were real, then of course the appellant will be entitled to the defence of self defence and therefore exonerated. It is to be noted that the self defence induced by a delusion is different from the ordinary self defence as it is still imaginary, still unreal. The appellant imagines that he was fighting back in self defence but the reality is different.


Now had the trial court not misconceived the true meaning of delusion; had that court considered the issue of delusion as an issue dealing with the unreal; had that court not insisted on extra proof of delusion “by credible evidence” thus imposing a high burden on the appellant; no one can be sure that it would have returned the same verdict.


I will agree that this appeal should be dismissed but for different reasons. I do not share the views of learned counsel on both sides that there is nothing to urge in favour of the appellant. This Court is a creature of statute and its jurisdiction is set out and circumscribed by statute. On the grounds filed this appeal has no chances of success. No ground alleging any error in law or misdirection has been 35 filed. Under Order 7, rule 2(6) of the Supreme Court Rules:

“Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.

Provided that the Court shall not if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”


The above rule deals with civil appeals. Order 8 (Supreme Court Rules) deals with criminal appeals. I do not find a counterpart of Order 7 rule 2(6) in Order 8. May be this is an inadvertent omission. Such a rule will be necessary to save appeals like this. But until such a rule is made, the Court cannot allow this appeal on a ground not filed and not argued before it.


In the final result, I will reluctantly dismiss this appeal. Appeal dismissed. The judgment and sentence of the Court of first instance are upheld and affirmed. The judgment of the Court below is also affirmed.


Appeal dismissed.

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