Ise Ibu Ojo V. The State (1973)

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S. SOWEMIMO, J.S.C

The appellant, who was the accused in charge No. HAU/10/72 before the High Court Auchi, in the Midwestern State, was convicted of the charge of unlawfully killing his mother and sentenced to death on 19th May, 1972. He has appealed to this court against his conviction.

At the hearing of the appeal only two out of the six grounds of appeal filed were argued before us. They are:-

“5. That the prosecution having failed to rebut the defence of delusion, hallucination and dissolution, the learned trial Judge erred in rejecting these defences and for their criminal effects on the defences of accident, mistake and extraordinary emergency.

“6. In view of the fact that defence of the accused is that of partial delusion the learned trial Judge was wrong in law in not properly directing his mind to the provisions of paragraph 2 of Section 26 of the Criminal Code and thereby occasioned a miscarriage of justice.”

The fact of the killing is not in dispute. The defence of the accused is that, on the material day, he thought he had attacked a snake, whereas in fact it was his mother on whom he had inflicted fatal injuries with matchet cuts.

The learned trial Judge, after a review of the evidence before him, rejected the evidence given by the accused in his defence. He held that the appellant had deliberately lied when he said that it was in the mistaken belief that he was killing a snake that he killed his mother. On this issue the learned trial Judge had this to say:-

“The accused is a young man of about twenty – one years of age, of average development and height, quite strong, intelligent and mentally alert. After watching him very carefully and judging from his reactions to the question put to him in cross-examination and those I addressed to him, I formed the impression that the accused is a cunning person with a deemed and wicked mind and from his calm disposition throughout his trial, I am satisfied that the accused’s mind remained untouched by the brutality of his matricidal act in respect of which he continued to exhibit an air of unrepentant detachment contrary to even what he himself said in court as to how, his mother, in her lifetime, was loving and helpful to him and how she always felt concerned about his illness.

The accused did not impress me as a witness of truth; In fact, I am satisfied that accused is not a person to be believed on his oath and that he lied deliberately to this court when he said that he saw a snake with the aid of the lamp he carried that night on his return from a visit to his friend by name Sadiku and that what he was cutting with his matchet – Exh. “D” that night appeared to him as a snake and not a human being; I am satisfied, and I also so find, that accused suffered from no illness i.e. chest-pain that night and that he set out that night deliberately, for reason or reasons known to him, to kill his mother, identified her where she slept with the aid of the lamp he carried in one hand and set upon and killed her with the cutlass he armed himself with for that purpose.”

At the hearing of the appeal, learned counsel for the appellant chose to argue ground 6 first and relied on the same arguments to support ground 5 as well. In this wise, we consider the two grounds as having been argued together. Counsel referred to that portion of the judgment in which the learned trial Judge suggested a possible defence of a ‘black-out’ instead of that urged on him by the counsel who defended the accused in the lower court. We think it will be more intelligible to refer to the whole paragraph on which counsel for the appellant had based his complaint. The learned trial Judge said:-

“To my mind, having considered the submissions made on accused’s behalf against the back-ground of the evidence adduced before me by the prosecution witnesses and by the accused, the defence of the accused is not one of mistake, accident, and/or extra-ordinary circumstance under Sections 22, 23 and 24 of the Criminal Code respectively because nowhere in accused’ statement to the police i.e. Exh. “E” or in his defence in court did he say that he knew, during or at the later stage of wielding his matchet, that he was cutting his mother while in fact engaged in trying to kill an actual snake and because this court has found that there was, in fact, no snake seen by the accused that night. Further to the above, the defence of the accused to my mind is one of “black-out” – i.e. that as a result of the attack of his illness i.e. chest-pain, he did not know and was not conscious of what he was doing at the material time.”

Learned counsel in his submission contended that the learned trial Judge did not consider the defence of partial delusion which was, according to him, open to the accused. Reliance was placed by counsel on the evidence of accused that he was suffering from a certain ailment when he committed the offence. Further reference was made to his earlier evidence that he had been suffering from this ailment and had had treatment at Okene hospital and that his deceased mother occasionally brought some medicine to him to use. But the learned counsel did not draw our attention to the finding of the learned trial Judge that he did not believe the accused at all. He used the stronger expression that the accused “lied deliberately”. This defence can only be available if there are facts found which sufficiently support such a defence. It is this aspect of the defence which the learned counsel contented should have been considered under the provisions of Section 26 of the Criminal Code of the Western State. That section 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 know that he ought not to do the act or make the omission.

A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”