3PLR – BENEDICT OBUMSELU V. COMMISSIONER OF POLICE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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BENEDICT OBUMSELU
V.
COMMISSIONER OF POLICE
FEDERAL SUPREME COURT OF NIGERIA
12TH DECEMBER, 1958.
F.S.C.34/1958
BEFORE THEIR LORDSHIPS:
MYLES JOHN ABBOTT, F.J., (Presided):
LIONEL BRETT, F.J., (Read the Judgment of the Court)
LOUIS NWACHUKWU MBANEFO, F.J.
REPRESENTATION:
AYOOLA – for the Appellant.
ADEMOLA -for the Respondent.
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:– Failure to use all reasonable means to prevent the actualization of an intention to procure miscarriage through the permission of the use of force or other means to be administered or used on pregnant person contrary to Section 515 of the Criminal Code – Neglect to prevent a felony – Principles applicable
EDUCATION AND LAW: Access to healthcare and counseling on university campuses – Death of a pregnant university student – Procurement of unlawful abortion on campus – Assault designed to abort baby bringing about death of deceased pregnant student– Implication for justice administration
HEALTHCARE LAW: Pregnant students – Unlawful abortion – Access to health education, primary healthcare and other support at tertiary education centers – implication
CHILDREN AND WOMEN LAW:- Women and Healthcare – Unlawful Abortion-related death of pregnant young university female – assault designed to get rid of baby bringing about death of deceased – liability of boyfriend whose room was used for the act
“What the evidence amounts to is that an attractive and popular girl of strong personality finds herself pregnant; when her lover asks what is to be done she says he shouldn’t worry, that she can look after herself, and it is not suggested that she means by this that she can bear the child without his concerning himself in the matter. Later she persuades him to allow her the use of his room, and to stay away himself, so that someone whose name she does not disclose, and who evidently wishes to keep his or her identity secret, may do what is necessary to procure her miscarriage; she uses her lover’s room so that the girl with whom she shares her own room may not be in the way. There may be exceptional occasions in which a lawful operation would be carried out in this hole-and-corner way, but there is nothing to indicate that this was anything but the ordinary case of an unmarried girl getting rid of an unwanted child, and we consider that the evidence amply justified the conclusion that the operation was, to the appellant’s knowledge, unlawful.” Per Brett, FJ
WORDS AND PHRASES:- “Design” – Meaning of.
MAIN JUDGMENT
BRETT, F.J. (Delivering the Judgment of the Court):
The appellant was convicted by the Chief Magistrate of the Ibadan Magisterial District on the following charge:
“That you Benedict Obumselu (Male) on 28th August, 1957, at the University College, Ibadan, knowing that Bisi Fagbenle a female student of the University College Ibadan designed to commit a felony to wit:- with intent to procure her own miscarriage to permit the use of force or other means to be administered or used to her contrary to section 229 of the Criminal Code failed to use all reasonable means to prevent the commission thereof, and thereby committed an offence punishable under section 515 of the Criminal Code.”
His appeal to the High Court of the Western Region was dismissed and he has now appealed to this Court.
The first ground of appeal was that “the decision was erroneous in law since the appellant was charged with failing to prevent a non-existent offence.” In support of this it was argued that since a charge under section 229 of the Criminal Code must allege that the act submitted to or done with intent to procure a miscarriage was submitted to or done unlawfully- a proposition for which R. v. Boume (1939) 1 K.B 687 is an authority-the description of the offence which the appellant is alleged to have failed to use all reasonable means to prevent is defective, in that it does not allege that the force or other means referred to was administered or used unlawfully. We do not regard it as essential that a charge under section 515 of the Criminal Code should specify the felony concerned with the same precision as a substantive charge of felony. If a person knew that a felonious assault or a felonious acquisition of property was designed, and did nothing to prevent its commission, the question whether he had committed an offence under section 515 of the Criminal Code could hardly turn on whether the felony amounted to an offence under section 332, section 335 or section 356 of the Criminal Code, or on the distinction between larceny by a trick and obtaining by false pretences. The charge in this case alleged that a felony was concerned and gave sufficient particulars to enable the appellant to know the nature of the felony alleged and the case he had to meet, and any defect there may have been was, in our opinion, cured by the verdict.
Leave was given to argue the second ground of appeal, that the decision was unwarranted, unreasonable and could not be supported having regard to the evidence. In support of this it was urged that the body on which the 3rd prosecution witness, Dr. Oruwariye, carried out a post-mortem examination was not properly identified as that of the girl, Bisi Fagbenle, and that in the absence of any medical evidence as to the cause of the girl’s death there was no evidence that the appellant knew that the treatment to which the girl designed to submit was not intended for the preservation of her physical or mental health. We agree that the body was not adequately identified, and that the onus of proving that the intention was to procure a miscarriage unlawfully rested on the prosecution, but we consider that onus was discharged in this case. What the evidence amounts to is that an attractive and popular girl of strong personality finds herself pregnant; when her lover asks what is to be done she says he shouldn’t worry, that she can look after herself, and it is not suggested that she means by this that she can bear the child without his concerning himself in the matter. Later she persuades him to allow her the use of his room, and to stay away himself, so that someone whose name she does not disclose, and who evidently wishes to keep his or her identity secret, may do what is necessary to procure her miscarriage; she uses her lover’s room so that the girl with whom she shares her own room may not be in the way. There may be exceptional occasions in which a lawful operation would be carried out in this hole-and-corner way, but there is nothing to indicate that this was anything but the ordinary case of an unmarried girl getting rid of an unwanted child, and we consider that the evidence amply justified the conclusion that the operation was, to the appellant’s knowledge, unlawful.
It is true that in the absence of medical evidence there is nothing to show that an offence under section 229 of the Criminal Code was in fact committed, but we do not consider that this is necessary where the charge under section 515 is that the accused person knew that someone designed to commit a felony and failed to use all reasonable means to prevent the commission thereof. The word “design” implies a settled intention, and in many cases the best evidence of a settled intention to commit a felony will be the fact that a felony was actually committed, but we consider that the evidence in this case establishes that there was a settled intention right up to the last moment when the appellant still had it in his power to take any steps to prevent the commission of the felony and that the appellant knew of it, and that is sufficient to warrant his conviction. The appeal is, therefore, dismissed.
ABBOTT, F.J:. I concur.
MBANEFO, F.J:. I concur.
Appeal Dismissed
