Rex V. Ugo Chima (1944)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law — and Procedure—Murder–Infanticide—Criminal Code s. 327A—Killing of twins by mother shortly after birth—One count for murder of two persons. Criminal Procedure Ordinance, Cap. 20, First Schedule Rule 3 (1).
The defendant gave birth to twin female children and within an hour killed them, it being an abomination in her view. She was convicted of murder. On appeal :—
Held, that the conviction if any) should have been for ” infanticide ” ;
Held also, that it being prohibited, in Nigeria tri join another charge with a charge of murder, two murder’s cannot be joined whether in one or in separate counts, and the trial was thereby vitiated.
Appeal by defendant from the High Court, Enugu. N. G. Hay for Crown.
Appellant not present.
The judgment of the Court was read by the President.
In this case the woman, Ugo Chima, was charged in the High Court of the Enugu-Onitsha Division sitting at Afikpo in one count with ” murder “, contrary to section 319 of the ” Criminal Code,” and the particulars given were :—
” Ugo Chima, on the 9th day of October, 1943 at Owutu Edda, in the Province of Ogoja unlawfully murdered twin babies.”
She was convicted and sentenced to death. She has appealed to this Court.
The facts of the case are that the Appellant gave birth to twin female children weighing only 4 lb. and 3 lb. respectively. It being considered an abomination to have twins and this custom being a strong one in her town the Appellant was very much upset by the occurrence and within an hour of the birth put her foot on the children so that they died. The learned trial Judge found that she did this deliberately and so convicted her of murder. In doing so it is obvious that he overlooked the provisions of section 327A of the Criminal Code inserted in the Code by section 4 of Ordinance 9 of 1940. That section exactly covers the present case, and if there should have been any conviction at all it should have been for ” infanticide ” and not for murder.
But apart from this we are of opinion that the proceedings were irregular ab initio and that the conviction must be quashed.
It is apparent that the Appellant was charged with and tried for two murders at the same time. In the case of Rex v. Bekum (7 W.A.C.A. p. 10) it was pointed out that the Nigerian law in such a case differs from the English. Under English law whilst the joinder of two murders in one indictment is undesirable, it is not fatal if in fact the accused is not prejudiced thereby (R. v. Davies 26 Cr. App. Rep. p. 95). It was evidently on the basis of this rule of English law that Rex v. Inyang (5 W.A.C.A. p. 62) was decided; the attention of the Court not having been directed to the difference under Nigerian law. Under Nigerian law there is an express prohibition, having the force of an Ordinance, against the joinder of any other charge with a charge of murder. In our opinion it makes no difference whether the other charge is, as here, joined in the same count, or whether, as in Rex v. Bekum (supra), it is joined in a separate count. In either case the trial is vitiated.
For this reason the appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered.
The Appellant is discharged.
We may add that, in our view, if the trial had been regular and the Appellant convicted of ” infanticide ” a purely nominal sentence would have been appropriate having regard to all the circumstances of this case.
Appeal allowed : Conviction and sentence quashed.
Footnote : The Criminal Procedure Ordinance, Cap. 20 has been repealed and replaced by No. 42 /1945, in which see section 339, which reads as follows :—
” The provisions of sections 151 to 180 (relating to Form and Joinder of Offences) shall apply mutatis mutandis to counts of an information save that no other charge shall be joined with a charge punishable with death and not more than one charge punishable with death shall be charged in the same information
