12TH NOVEMBER, 1959.


3PLR/1959/40 (SC)






M.C. NAGEON DE LESTANG, C.J., (Lagos High Court)

LIONEL BRETT, F.J. (Read the Judgment of the Court)



Appellant absent

MR. O. R. I. GEORGE – for Respondent



CRIMINAL LAW AND PROCEDURE:- Murder – How proved – Plea of Insanity –Defence under S.28 Criminal Code – What to consider

CHILDREN AND WOMEN LAW:-  Child killed by grandmother for juju rituals – Extra-judicial killing done on the instructions of her ‘mates in witch-craft’  Whether mental infirmity suffered by grandmother amounts to legal insanity or lack of capacity to plead –How treated

RELIGION AND LAW:- Juju practice – Practice of human sacrifice – Implications for law enforcement and safety of children

CONSTITUTIONAL LAW AND HUMAN RIGHTS: – Right to Life – Children – Religious freedom – Whetherextends to human sacrifice including the killing of family members for ritual purposes – Attitude of court thereto

ELDERS LAW: – Conviction of elderly person [grandmother]for capital offence – Killing of grandchild for ritual and witch-craft purposes – Sentencing and
other considerations



BRETT, F.J. (Delivering the Judgment of the Court):

We heard and dis­missed this appeal on the 6th November, 1959, and now give our reasons. The appellant was convicted in the High Court of the Western Region of the murder of a child called Oyinbo Daniel, who was her own grand daughter. The mutilated body of the child, with that of a cat, was found in a raffia basket in the appellant’s room, and the appellant admitted both in a statement made to the Police after her arrest and in her evidence in Court, that she had killed the child. There is no reason to doubt this, and the pro­secution certainly proved all the elements of murder.

The only matter open to question is whether the appellant was respon­sible for her actions. The date of the murder was the 21st August, 1957, and when the appellant appeared before the High Court on the 8th January, 1958, the learned Judge had some doubt as to her fitness to plead, and re­manded her for medical observation until the 14th July, a period which would appear unnecessarily long for the purpose and exceeds that permitted by s.223 of the Criminal Procedure Ordinance. On the 14th July, 1958, the case was called on and adjourned to the next session, with no reason stated. Further remands were ordered and at one time Dr. Prince, of Lantoro Hos­pital, regarded the appellant as unfit to plead, but for some reason which has not been explained no formal finding of unfitness to plead was recorded. Fi­nally, the appellant was brought to Court on the 27th July, 1959, when she offered a plea of guilty, which was not accepted, and the trial as on a plea of not guilty started on the 10th September, 1959. We strongly deprecate de­lays as long as this in proceeding with a trial for murder, even where fitness to plead is in question.

At the trial itself there was no recorded evidence on which a finding of lack of criminal responsibility could have been founded, except the appel­lant’s evidence that she did not know when she killed the child, and did not know’ it was wrong, and the former statement is inconsistent with her evi­dence as to how she killed the child. In her statement to the Police she had said that she served a juju and that she killed the child on the instruction of her “mates in witchcraft,” and at the invitation of counsel for the defence the learned Judge proceeded to consider whether she was suffering from a natural infirmity which deprived her of capacity to know that she ought not to kill the child, and expressed the view that on the balance of probabilities the infirmity was not natural and that it was induced by the appellant’s wor­ship of juju and or witchcraft. With respect, we consider that the Judge was wrong in directing his mind to the possibility of natural mental infirmity, and that he should have considered whether there was evidence of a state of mental disease, which is the other ground on which a defence of insanity may be based under s.28 of the Criminal Code. However, as we have already in­dicated, we are satisfied that there was no evidence on which a verdict of acquittal on the ground of insanity could have been based, and the misdirec­tion therefore occasioned no miscarriage of Justice.

There was evidence that at one time the appellant was mentally ill and unfit to plead, and it may be that her mental condition at the time of the mur­der was such as to afford some mitigation of what would otherwise be a par­ticularly horrible crime. That is not a matter to which we can give any weight in this Court, but we have no doubt that it will receive due consideration from those whose duty it now is to decide whether or not the law shall take its course.


Appeal Dismissed.


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