Benson Ihonre V. The State (1987)
LawGlobal-Hub Lead Judgment Report
On the 6th day of October, 1987, the Court heard this appeal and found that it had no merit whatsoever. In fact learned counsel for the Appellant, Mr. Shola Rhodes, as well as learned Senior State Counsel for the Respondent, Mr. Ayodeji Alufohai each filed a Brief and each had nothing useful to urge in favour of the Appellant. They were perfectly right. I too found no merit in the appeal and accordingly dismissed same and indicated that I will give my reasons for the dismissal on the 11th day of December 1987. Hereunder are those reasons.
The Appellant was convicted by Edokpayi, J., (sitting at the Ekpoma Judicial Division of the Bcndel State High Court) of the murder of the following persons:-
(a) Ibhahikho Aireguamen a woman of 67 years of age
(b) Wilson Aigbogun a child of 2 years
(c) Dorothy Aigbogun another child aged 3 1/2 years.
(d) Egbahimere Daniel aged 3 years.
It is relevant here to note that all the children murdered were all grand-children of the first victim of this murderous rampage.
The Appellant did not deny killing all his victims. He owned up the actus reus of each murder both in his extra judicial Statement to the Police and in his sworn testimony in open Court. He was thus a self-confessed murderer. Why then did he kill his victims In his confessional Statement to the Police, tendered as EX.A he gave the reasons as follows:-
“I believe that Ibhahikho Aigbogun, Jona Aigbogun and Daniel were the people who injured me with their witchcraft. Because they have confessed that they were the people who killed my junior brother Francis Ihonre in 1982. That is why I decided to kill Ibhahikho Aigbogun (f), Wilson Aigbogun (m), Dorothy Aigbogun (f) and Ebehimere Daniel (f) because it was Ibhahikho Aigbogun, Jona Aigbogun and Daniel that brought the whole trouble to the three children killed. I know that to kill is bad, but in this case I was frustrated. That is all” (the Italics is mine).
The Appellant adopted the above Statement during his testimony in open Court. The defence of the Appellant was obviously one based on his belief in witchcraft. In these Reasons for Judgment I merely want to look at how our Courts have regarded such a defence in order to discover whether there could be any rationalisation of the approach to and treatment of, a defence based on witchcraft and then apply that to the facts and surrounding circumstances of this case.
In his own judgment at p.37 of the record, the trial judge, Edokpayi, J. Observed:-
“The reasons given by the Accused person for killing the four persons are that they bewitched his late brother and that they were causing his own sickness and downfall by witchcraft. This belief based on witchcraft is not a defence available to the Accused person in view of the decisions in the following cases:
(i) Muyibi Oshinnaike v. The State (1984) 10 S.C. 89 at pp.9091.
(ii) Thamu Guyuk v. Rex 14 W.A.C.A. 353 at p. 372
(iii) R v. Konkombu 14 W.A.C.A. 236.
The learned trial judge also considered the defence of mental delusion without first finding as a fact that Appellant did suffer from delusions. At any rate the learned trial judge found at p.37 Lines 25 – 33 and p.38 Lines 1 – 4:-
“Even if the Accused honestly believed that his late brother was bewitched and that he (the Accused) was also being bewitched he had no right to kill any of the deceased persons, and so, the defence of mental delusion will not avail the Accused person in view of the decisions in the following cases:-
(i) Ngene Arum v. The State (1979) 11 S.C, 91 at pp.95-96 and 102 – 107.
(ii) Saliu Alabi v The State (1981) 11 – 12 S.C. 94
(iii) Effiong Udofia v The State (1981) 11 – 12 SC 49
(iv) Sanusi v. The State ((1984) 10 S.C. 166 at p. 168
(v) Egbe Nkanu v. The Stale (1980) 3 – 4 S.C. 1 at pp.11 – 12.
(vi) Akang v. The State (1971) N.M.L.R.76.”
From the above galaxy of cases referred to by the learned trial judge, it is obvious that there is no paucity of decisions on this branch of our law.
In Usman Acida v. The King (1950) 13 W.A.C.A. 48 Blackhall, P. after disposing of the real issue – which was the power of a judge to set aside the decision of a Native Court and order a retrial- observed at p.52:-
“The Appellant clearly laboured under the superstitious belief that the deceased had bewitched his brother. That in his eyes would be great provocation, but as his counsel realised, it could not be a defence under the Criminal Code, though it is a matter which will doubtless be taken into consideration in another quarter which is not bound by strict rules of law. Appeal dismissed.”
My only comment here is – Where does one draw the line between superstition and delusion Delusion if established affords a defence under Section 28 of the Criminal Code Cap 42 of 1958 but superstition does not. What then happens if a superstitious belief leads to a delusion Will it then be right to dismiss the defence just summarily because it is based on a “superstitious belief” After all, there is much in common between superstition and delusion as both are based upon a concept for which there is no reasonable foundation; upon 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. A belief in witchcraft may, if proved, amount to a delusion in which case the criminal responsibility of the accused holding such belief would be based on the law relating to the defence of delusion and not be simply dismissed as superstitious.
In Maawole Konkomba v. The Queen (1952) 14 W.A.C.A. 236 Foster Sutton, P. at p.237 observed:-
“In murder cases a defence founded on witchcraft has always been rejected except in cases where the accused himself has been put in such fear of immediate danger to his own life that the defence of grave provocation has been held proved.
We have no doubt however that the appellant honestly believed when he struck the fatal blows that he was striking a man who had already killed one of his brothers by witchcraft and was in the process of killing another, but that is no defence in law although it is a matter which the Executive will, no doubt consider when the case comes before it for consideration.
In all the circumstances therefore, this appeal is dismissed.”
Konkomba’s case supra seems therefore to suggest that though belief in witchcraft per se may not be a defence yet if it is shown that as a result of such belief the accused has been put in fear of immediate danger to his own life then the defence of provocation may avail him. With the greatest respect, I should have thought that the first and most obvious defence in such a situation would have been the defence of Self-Defence. No doubt the defence of Provocation may also be available. What, however, is important in Kon-komba’s decision supra is that there may be situations arising from the belief in witchcraft which might give rise to the defences of Self-Defence and/or Provocation.
Also in Muhammedu Gadam v. The Queen (1954) 14 W.A.C.A. 442 the West African Court of Appeal approached the issue from a wider perspective. In that case it was held that “belief in witchcraft though prevalent is unreasonable, being fraught as it is with such terrible results.” The facility and ease with which such a defence can be set up does pose a very serious problem regarding the role of Courts in the administration of justice. When a crime as heinous as murder is committed there is usually public outrage and outcry. But when the actual trial commences there is usually sympathy for the accused.
The Courts should be able to keep a judicial and proper distance between the earlier outrage and outcry and the later sympathy; remembering always that the interest of justice demands that the innocent be exonerated and freed but that the guilty be convicted and punished. It also demands that society as a whole be protected. Godwin Josiah v. The State (1985) 1 N.W.L.R. 125 at p.141.
This is one reason why the Courts should be slow – very slow in accepting facile defences that are in the main as subjective as a man’s belief, which has no objective standard against which it may be judged. This is one reason why the Federal Supreme Court in The Queen v. Daniel Tabigen (1960) 5 F.S.C.8 at p.11 held that “a defence founded on witchcraft had always been rejected in murder cases and we do not intend to depart from that salutary rule.” See also Ngene Arum v. The State (1979) 11 S.C. 91 at p.95.
The defence based on belief in witchcraft came up again for consideration in Goodluck Oviefus v. The State (1984) 10 S.C. 207. There the learned trial judge found:-
“(i) That the accused suffered from delusions that his wife was a witch.
(ii) That she and others bewitched him.
(iii) That they had rendered him impotent by their witchcraft.
(iv) That they were going to kill him by witchcraft.”
These were very far-reaching findings. I may repeat here some of the observations I made in that case at pp.261, 262 and 264.
‘No man’s belief is on trial in a murder case … What is on trial is the act or omission of the accused. Whether or not the accused believes in witchcraft seems quite irrelevant to the inquiry … Therefore a defence founded on belief in witchcraft or juju is a defence founded on the subjective belief of the accused rather than on the objective requirements of the law relating to the particular relevant defence. Such defences are untenable. But if the belief in witchcraft or juju produces a state of insanity or delusion then the criminal responsibility of the accused will be measured not by the tenets of his belief but by the objective standard of the law relating to such defences- viz Insanity, Delusion or Provocation as the case may be. Belief in witchcraft or juju perse is no defence … Whether or not such belief is superstitious, primitive or civilised is totally irrelevant. What is important is the effect of such belief on the person accused; his conduct resulting from such belief; and whether or not the law offers protection , to or with regard to such conduct as an excuse thus offering him a defence. “
What is important then is not the bare belief in witchcraft but rather the effect of such belief on the person accused.
Let me now apply the above principles to the facts of the case now on appeal before the Court. It is relevant here to observe that there is no finding from the trial Court that the Appellant was insane or that he suffered from delusions of any kind. The Appellant killed his victims, from his own ipse dixit, because “they were the people who kill my junior brother Francis Ihonre in 1982.” Here the motive is clearly revenge and revenge is no defence even to a deluded mind. His other reason for these brutal and ghastly butcheries was that “they were the people who injured me by their witchcraft.” Here again the motive force is still revenge. At the time the Appellant killed his victims they were not attacking him either in the real world or in the fantasy world or make belief induced by delusion (if he suffered from delusion) so the defences of Self-Defence and Provocation were not available to the Appellant: see Iwuanyanwu v. The State (1964) 1 All.N.L.R.413. There was nothing from the entire evidence to suggest that the Appellant was in any fear of immediate danger to his own life either real or imaginary. He knew what he was doing and he knew that what he was doing was wrong.
This appeal is totally lacking in merit and learned counsel on both sides were right in submitting that nothing could be usefully urged in favour of the Appellant.
The above were my reasons for dismissing the appeal on the 8th day of October, 1987 and for affirming the verdict and Sentence of death of the trial Court and confirming the appeal judgment of the Court below. May be the Committee on the Prerogative of Mercy may deem it fit to take into consideration the Appellant’s belief in Witchcraft and the fact that such belief induced him to commit such ghastly and atrocious murders. That they can do; that this Court cannot do.
ESO, J.S.C.: I have had the privilege of a preview of the Reasons for judgment which were read by my learned brother Oputa J.S.C. He has dealt exhaustively with the law on insanity and as I am in complete agreement, I adopt those reasons for dismissing the appeal.
KAWU, J.S.C.: When this appeal came up for hearing On the 6th day of October, 1987, both counsel in the appeal in their briefs of argument and oral submissions informed us that there was nothing useful that could be urged in favour of the appellant. The appeal was accordingly dismissed and the judgment of the Court of Appeal confirming that of the trial court was affirmed. We then indicated that we would, today, give reasons for our judgment.
I have had the advantage of reading in draft, Reasons for Judgment just delivered by my learned brother, Oputa, J.S.C. I am in entire agreement with those reasons and it was for those reasons that I dismissed the appeal on the 6th day of October, 1987.
AGBAJE, J.S.C.: On 6th October, 1987 I dismissed this appeal and reserved my reasons for doing so till today. I now give the reasons.
This appeal is utterly without merit. Counsel for the appellant and Counsel for the respondent were both agreed that there was nothing that could usefully be urged in favour of the appellant. Having gone through the record of the proceedings in this case, I have no doubt that both counsel were right in the view they have formed of the appeal of the appellant.
I have had the benefit of reading in draft the lead Judgment of my learned brother Oputa, J.S.C. containing his reasons for dismissing the appeal of the appellant. I agree with him that the defence of the appellant in the case of murder he faced in the trial court could not be of any avail to him. The appellant did not deny killing the persons of whose murder he was accused. His defence was that he killed them because they injured him with their witchcraft. On the state of the law which has been carefully examined in the lead judgment of my learned brother Oputa, J.S.C. that defence must fail. I agree with his reasoning and conclusion in this regard and I adopt them as mine.
NNAEMEKA-AGU, J.S.C.: I have carefully read the record and agree with my Lord, Oputa, J.S.C in his reasons for the judgment of this Court delivered on the 8th day of October, 1987. On that day, this Court dismissed the appellant’s appeal as lacking in merit and reserved its reasons till today. I agree with the reasons given by my Lord. For the same reasons, I dismissed the appeal.