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REX
V.
FELIX ONYINKE AND OTHERS
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
28TH DAY OF APRIL, 1941
2PLR/1941/7 (WACA)
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OTHER CITATION(S)
2PLR/1941/7 (WACA)
(1941) VII WACA PP. 31 – 32
LEX (1941) – VII WACA PP. 31 – 32
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
REX – Respondent
AND
FELIX ONYINKE AND THREE OTHERS – Appellants
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REPRESENTATION:
C. W. Reece — for Crown
E. J. Alex-Taylor with A. Alakija and Egbuna — for first Appellant
E. A. Akerele — for second and fourth Appellants
L. Odunsi — for third Appellant
Sir William Geary holds watching brief — for first Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Convicted murderer under sentence of death — Competency of as a witness — Section 1 of Forfeiture Act 1870 which declares that such a person is no longer “attained” — How treated
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
To be a competent witness, a convicted murderer under sentence of death is no longer “attaint” by reason of such conviction and sentence and the ratio decidendi of Reg v. Webb is gone, and there is no longer any ban on the competency of such a person to give evidence.
Case referred to:
R. v. Webb, 11 Cox 133 (1867).
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MAIN JUDGMENT
The following joint opinion was delivered:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, GRAHAM PAUL, C.J., SIERRA LEONE.
The Court is asked the following question:
Whether Buraimoh Biu was, in the circumstances set out in the case stated a competent witness at the trial, and if he was not what should be done in the premises.
The material circumstances set out are that Buraimoh Biu was a convicted murderer under the sentence of death.
It is clear that at Common Law Buraimoh Biu would not have been a competent witness.
In 1843 the Evidence Act (6 & 7 Vict. C. 85) was enacted, but this still left in some doubt the question of whether or not a murderer under sentence of death was a competent witness or not. In 1867 in the case of Reg v. Webb Lush J. held that, in spite of the 1843 Act, such a person was not a competent witness, and if there had been no further alteration of the law we might feel compelled to follow that case.
In 1870, however, the Forfeiture Act (33 & 34 Viet. C. 23) was passed which in our view places the question beyond all doubt and makes the present law perfectly clear that a person under sentence of death is a competent witness.
The ratio decidendi in Webb’s case was that such a person was “attainted” and therefore civilly dead. But sec. 1 of the Forfeiture Act, in clear and unambiguous language enacts that “no confession, verdict, inquest, conviction, or judgment of or for any treason or felony or felo de se shall cause any attainder or corruption of blood.”
A convicted murderer under sentence of death is therefore no longer “attaint” by reason of such conviction and sentence and the ratio decidendi of Webb’s case is gone, and there is no longer any ban on the competency of such a person to give evidence.
The answer to the question submitted to the Court is, therefore, in the affirmative.
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