Mosalen Okotogo V. The State (1984)

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BELLO, J.S.C.

The appellant, believing that one old woman who lived in the same compound with him had bewitched him, matcheted her to death. In his defence the appellant stated that the deceased had been tormenting him with witchcraft and he had to kill her as she had planned his death. The trial court convicted him of murder after having considered the defence of insanity and provocation. The Court of Appeal affirmed the conviction.

At the hearing of the appeal before us, neither counsel has any thing useful to urge in favour of the appellant. I am satisfied the appeal has no merit. It has been stated in many cases that belief in witchcraft is not a defence to a murder charge.

Appeal is dismissed. Conviction and sentence affirmed.

ESO, J.S.C.: Mosalen Okotogbo was convicted of murder of one Jitibore Odje in the Warri High Court, Bendel State. He put up a plea of unsound mind but was certified by a medical officer to be medically fit to undergo the trial. The prosecutions’ case was that the appellant attacked the deceased and inflicted matchet cuts on her after which the appellant ran away. The appellant made a statement which was a definite admission of the killing. He blamed his action on witchcraft. This is sad for this will not excuse the crime of murder in our law. The state of mind of the appellant will not be one that could be referred to as insanity under s.28 of the Criminal Code. The High Court convicted him and sentenced him to death.

In the Court of Appeal, the issue of insanity was thoroughly and painstakingly gone into. The Court decided that the appellant had not discharged the burden of proof placed upon him by law because

(1) There was nothing to show that he was actually mentally sick or of insane mind and that he received treatment for such sickness or ailment in any hospital or a recognised medical institution;

(2) none of those persons who were said to have given him treatment was called as a witness to testify to treating the appellant and more particularly to say what disease or illness they treated him for; and

(3) a careful perusal of the appellant’s statement to the police Ex “C” will show that quite far from raising the defence of insanity, he unequivocally stated that he killed the deceased with a matchet because according to him, the deceased used her power of witchcraft against him and to torment his life.”

It is reasonable therefore for the learned counsel for the appellant Mr. Shola Rhodes to make his submission that nothing useful could be urged in favour of this appellant. I cannot conceive of anything useful in his favour.

The appeal is dismissed. The conviction and sentence are hereby affirmed.

ANIAGOLU, J.S.C.: This is another case of a belief in witchcraft which in a series of cases including Jonah v. The State (1977) 1 SC. 27 and R. v. Godam 14 WACA 442, has been held to be unreasonable and not an extenuating factor on a commission of the crime of murder. In the instant appeal, the appellant believed that the deceased woman, one Jitibore Odje, was bewitching him. He stepped across to her house nearby and macheted her to death. The attack was particularly brutal and severe. The doctor who performed the post mortem examination on her found sever cuts at the back of her neck; another one at the right upper arm measuring 20 cm. in length and 5cm. in depth; a cut at the right side of her face and at her nose; and another one at the right side of her cheek extending to her right ear lobate. It would appear from the evidence that the troubles of the appellant began with his smoking of Indian hemp – a self induced factor for which he must hold himself wholly to blame. How this has progressly damaged his brain to bring about his said belief in witchcraft is a matter for medical science to unravel. But be that as it may, his murdering the unfortunate woman upon this belief that she was bewitching him is neither a justification of the act nor a matter to be taken into account in extenuation for assessing punishment.

This appeal richly deserves to be dismissed and is hereby dismissed. The conviction and sentence passed upon the appellant by the trial court and the judgment of the Court of Appeal are hereby affirmed.

NNAMANI, J.S.C.: I think that both learned counsel are right in their submission to this Court that nothing useful in law can be urged in favour of the appellant. The appellant cold bloodedly murdered the deceased, a relation of his, by inflicting severe matchet cuts on her. He made confessional statement to the police admitting the offence. His testimony in court was to the same effect. His only answer to the crime was that the deceased betwitched him and made his life miserable. The learned trial judge properly evaluated the evidence before him.

He also fully considered the defences of insanity, provocation and witchcraft and rightly rejected them. The belief of the appellant that the deceased betwitched him was unreasonable and the law has never accepted witchcraft as a defence to a charge of murder. See Muhammadu Gadam v. The Queen 14 W.A.C.A. 442. As to insanity, the burden lay on the appellant to establish this defence and he failed to discharge that burden. The learned trial judge was therefore in my view right in convicting the appellant. The Court of Appeal which fully reviewed the facts and considered the points of law affirmed the conviction and sentence. Having also read through the record of proceedings, it is my view that the appeal lacks substance and I hereby dismiss it. The conviction and sentence passed on the appellant are further affirmed.

UWAIS, J.S.C.: The appellant was convicted of the murder of the deceased by striking her with a matchet on the back of the neck, the face and the right upper arm. He confessed to committing the murder in his statement to the police and his evidence before the trial court. His reason for committing the offence was that he believed he was bewitched by the deceased. Both learned counsel for the appellant and the respondent have submitted, rightly in my view, that there is nothing useful that can be urged in favour of the appellant. It is settled law that belief in witchcraft is not a defence to murder. Evidence was also adduced at the trial to show that some time before the commission of the crime the appellant was a patient of a mental disease; but no proof was established that at the time of attacking the deceased he was deprived of the capacity to understand what he was doing or the capacity to control his action as required under s.28 of the Criminal Code.

I am therefore satisfied that the appellant was properly convicted by the trial court and the Court of Appeal was right in affirming the conviction. Accordingly I agree that the appeal be dismissed and it is hereby dismissed. The conviction and sentence are affirmed.

Appeal dismissed.

SC.48/1983