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REX
V.
AGUMAGU NWAOKE
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
4TH DAY OF MAY, 1939
2PLR/1939/30 (WACA)
OTHER CITATION(S)
2PLR/1939/30 (WACA)
(1939) V WACA PP. 118 – 119
LEX (1939) – V WACA PP. 118 – 119
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BEFORE THEIR LORDSHIPS:
BUTLER LLOYD, AG. C.J., NIGERIA
GRAHAM PAUL, J.
BROOKE, J.
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BETWEEN:
REX – Respondent
AND
AGUMAGU NWAOKE – Appellant
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ORIGINATING COURT(S)
APPEAL FROM CONVICTION BY HIGH COURT
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REPRESENTATION
E. Hallinan — for Crown
Appellant in person
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Manslaughter contrary to Section 325 of Criminal Code – Definition of Manslaughter in Section 310 of Criminal Code – Juju causing inevitable and irresistible apprehension of serious harm or death
RELIGION AND LAW – BELIEF IN JUJU:- Separated couple where wife/mother unable to return dowry – Threat with/deposit of juju by angry (ex)husband at home of (ex)wife for ‘refusal’ to pay – Subsequent suicide by the woman after invocation of juju – Charge of Manslaughter under section 310 of the Criminal Code – Attitude of court thereto
FAMILY LAW – MARRIAGE:- Repayment of dowry – Failure by wife/family to repay dowry – Threat of death by way of juju on part of estranged husband followed by suicide of wife – How treated
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. The evidence does not show that the juju was designed to persuade a person to take his or her own life and there is no suggestion in the evidence that the invoking of this particular juju has ever resulted in a person committing suicide.
2. There is no evidence whatever that the invoking of this juju, to the knowledge of the accused at the time he invoked it, would be reasonably likely to cause the deceased to take her own life. That element of reasonable likelihood must be present in order to make section 310 applicable.
3. If the accused had locked the woman in an upstairs room with the juju and the threat that if she remained in the room with the juju it would kill her and to escape that threat of death she had fatally jumped in fear out of the window that set of facts would have come near to the analogy to which the learned Judge refers, but there is nothing like that set of facts in the present case.
Appeal allowed and conviction and sentence quashed.
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MAIN JUDGMENT
The following joint judgment was delivered.
BUTLER LLOYD, AG. C.J., NIGERIA; GRAHAM PAUL, J.; AND BROOKE, J.
The appellant was charged with the murder of one Nwoacha: was convicted of manslaughter and sentenced to ten years Imprisonment with Hard Labour. Against that conviction he has appealed to this Court.
The facts of the case are simple, and not seriously in controversy. The woman Nwoacha was at one time the wife of the accused. She refused to continue living with the accused and in consequence the accused demanded the repayment of £1 10s. “head money” which he had paid. Nwoacha, and apparently her mother, promised to repay the money as soon as they could do so, but the accused was not satisfied with these promises. He brought a “Juju” called “Onye Uku,” pointed it towards Nwoacha and said something to the following effect:-
“Since you refuse to pay me my money this juju will kill you or since you refuse to pay me you shall no more eat or drink.”
He left the juju at the house where the deceased lived.
It is proved that Nwoacha was much affected in mind by this juju and the threat. She became very depressed, though there is no evidence that she stopped eating or drinking, or that her physical health was in any way affected.
Six days after the bringing of the juju by the accused the woman Nwoacha went out and hanged herself by the neck with a cloth from a tree, so high that her feet hung six feet above the ground method of suicide requiring considerable strength, deliberation and determination.
The learned Judge applied to these facts section 310 of the Criminal Code which is in these terms:-
“A person who, by threats or intimidation or by deceit, causes another person to do an act or make an omission which results in the death of that other person, is deemed to have killed him.”
and found the accused guilty of the manslaughter of Nwoacha.
In so finding, the learned Judge expressly pointed out that the case was not within the English decisions as to the effect in this branch of the Criminal Law of acts directly causing death and induced by a well-grounded apprehension of immediate serious violence. He held however that to the native mind “juju may be a well-grounded apprehension of serious harm and even of death–if not immediate, yet inevitable and irresistible.’
The learned Judge expressly found this case analogous to the case of the man who is so terrified by another that he jumps out of a window.
We are unable to agree with the conclusions at which the learned Judge arrived on the facts of this case. The evidence as to the juju in question is very vague. There is no really independent evidence about this juju or its reputed powers. It is variously described by the deceased’s relations but neither in their evidence nor in the two different versions of the alleged threats by the accused was there the slightest suggestion that the juju is designed to persuade a person to take his or her own life. There is no suggestion in the evidence that the invoking of this particular juju has ever resulted in a person committing suicide.
There is no evidence whatever that the invoking of this juju, to the knowledge of the accused at the time he invoked it, would be reasonably likely to cause the deceased to take her own life, and in our opinion that element of reasonable likelihood must be present in order to make section 310 applicable.
In this case there was between the threat and the death of the woman, the interposition of an act of the woman herself, an act which we are unable to say was the immediate consequence of the accused’s invocation of the juju. The case of a terrified person jumping out of a window to avoid the terrifying danger is to our mind quite different in fact and principle from the present case.
If the accused had locked the woman in an upstairs room with the juju and the threat that if she remained in the room with the juju it would kill her and to escape that threat of death she had fatally jumped in fear out of the window that set of facts would have come near to the analogy to which the learned Judge refers, but there is nothing like that set of facts in the present case.
In our opinion the appeal should be allowed and the conviction and sentence appealed from should be quashed.
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