Rex V. Felix Onyinke And Three Others (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

Is a convicted murderer under sentence of death a competent Case stated witness 7—Section 1 of Forfeiture. Act 1870 declares such a bY High person is no longer ” attainted “.

Held : To be a competent witness.

Case referred to :—

R. v. Webb, 11 Cox 133 (1867). C. W. Reece for Crown.

E. I. Alex-Taylor (A. Alakija and Egbuna with him) for first Appllant.

E. A. Akerele for second and fourth Appellants.

L. Odunsi for third Appellant.

Sir William Geary holds watching brief for first Appellant. The following joint opinion was delivered :—

KINGDON, C.1., NIGERIA, PETRIDES, C.J., GOLD COAST, GRAHAM PAUL, C.J., SIERRA LEONE.

The Court is asked the following question :—

Whether Buraimoh Bin 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 sentence of death.

It is clear that at Common Law Buraimoh Btu 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 impelled to follow that case. In 1870, however, the Forfeiture Act (33 & 34 Vict. 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 fel° 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.