Rex V. Matthew Udo Oton (1947)

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Motion—Criminal Law—Murder—Fresh evidence—Statements forwardedto Governor for consideration—Reference by Governor under West AfricanCourt of Appeal Ordinance, section 23—Motion requesting calling of twowitnesses—Principles upon which the West African Court of Appeal will hearfresh evidence.

The West African Court of Appeal will not hear fresh evidence where to do so would mean a re-hearing.

R. v. Rowland (1) followed.

Case referred to :

(1) R. v. Rowland (1947), K.B. 460; (1947), L.J.R. 331; 63 T.L.R. 156; 91 Sol. Jo. 177; 32 Cr. App. R. 29.

Motion to call evidence not available at the trial.

Williams for Appellant.

Briggs, Crown Counsel, for Crown.

The following judgment was delivered:

Harragin, C.J. This case comes before us on reference from His Excellency the Governor by virtue of the powers conferred upon him by section 23 of the West African Court of Appeal Ordinance.

The history of the case is briefly as follows: On 5th June, 1947, the appellant was convicted, by a Judge sitting without a jury or assessors, of the murder of one Nbong Uto. His application for leave to appeal against his conviction was subsequently refused by the West African Court of Appeal.

When the case came up for consideration by His Excellency the Governor with regard to the commutation of sentence, the statements of two new witnesses were forwarded for his consideration whereupon His Excellency referred the case to this Court, as indicated above, and Counsel for the appellant filed a Motion supported by an affidavit requesting this Court to call two additional witnesses of whose evidence the defence was not aware at the time of the trial.

That this Court may call fresh evidence in exceptional cases is beyond dispute, but in so doing it must be guided by the same principles as those acted upon by the Court of Criminal Appeal in England.

It is therefore necessary to examine the fresh evidence which it is sought to adduce. The appellant has been convicted in the main upon the evidence of two witnesses, Uta Mbarikit and Ekpo Ekpo, who state that they saw the appellant leading the deceased (a child) away from his home on the evening before the corpse was discovered and the child was never seen alive again.

This fact that appellant led the child away does not appear to have caused any alarm at the time for it was presumed that he was taking the child to his mother who was detained in the local prison and who it was known wished to see the child. It was not until the middle of the night that the alarm was raised as the child had not returned home.

The most salient point upon which it is sought to call fresh evidence lies in the fact that the two new witnesses will state that, when the alarm was raised,

neither•of the above-mentioned witnesses for the Crown suggested that the appellant had led away the child the evening before.

Now this Court is not suggesting that this may not be an important piece of evidence, which might have weighed with the trial Judge if it had been placed before him, but it is obvious that before its true value can be assessed, the above-mentioned crown witnesses must be given an opportunity to explain the omission, if indeed they admit the impeachment, from which it emerges that in fact this Court will have to constitute itself a Court of re-hearing.

Now the propriety of this procedure has been fully discussed by the Court of Criminal Appeal in February of this year in the case of Rex v. Rowland (1), where after an appellant had been convicted of murder a prisoner by the name of Ware confessed to the murder and an application was made to the Court of Criminal Appeal to permit this prisoner to give evidence before them. The ‘Court in dismissing the application made the following comments, which apply with equal force to the case now before us.

” Our reason, for refusing the application to hear the evidence of Ware was that we were satisfied that the Court of Criminal Appeal is not the proper tribunal to hold such an inquiry. It is no light matter to reverse the finding of a jury who have convicted a person of murder after a trial extending over five days in which twenty-eight witnesses were called. It is obvious that the mere statement of a person such as Ware that the convicted man is innocent because he himself is guilty, even if made on oath, would not justify quashing the conviction of that other person, but would only be the beginning of an inquiry which would involve, in the light of the new evidence, the recalling of many witnesses and probably the calling of several fresh ones. The Court would certainly require to hear the evidence of the three identifying witnesses after they had been given the opportunity of seeing Ware ; it would probably think it necessary to learn the views of the medical witnesses upon certain aspects of the matter. The prosecution might well ask for leave to call other witnesses to trace the movements of Ware or to give other evidence with a view to showing that no jury would be likely to accept his story as true.

” Now this Court has, in truth, no power to try anyone upon any charge. It is not a tribunal of fact but a Court of Appeal constituted by statute to examine into the proceedings of inferior Courts in certain cases of conviction on indictment. We have no power even to direct a new trial by a jury; much less have we the right to conduct one ourselves.

” The attitude of the Court towards the question of hearing fresh evidence has often been stated. For instance, in the case of Rex v. Mason, where Mason had been convicted of murder and the leave of the Court was asked for several fresh witnesses to be called in support of his appeal, Darling, J., giving the judgment of the Court refusing leave, observed, after dealing with the facts, as follows: ‘ It is now really asked that there should be a new trial, which this Court is not empowered to order, and that we should hear certain witnesses whose names have been mentioned, and then consider the whole of the trial in the light of that new evidence. This Court exercises With very great caution the power given to it to hear fresh evidence because to do so is opposed to the old-established, trusted and cherished institution of trial by Jury. This Court has to be convinced of very exceptional circumstances before it will reconsider the verdict of a jury in the light of fresh evidence.’ We find no exceptional circumstances in the present case. Upon the hearing of the appeal we were not referred to, and we are not ourselves aware of, any precedent for granting the present application.”

It must be borne in mind that to take any other view would have the inevitable

result of constituting the West African Court of Appeal a Court of re-hearing in almost every case for there can be few cases in which, after conviction, witnesses could not be found to state that certain witnesses for the Crown had omitted to mention an important piece of evidence on an occasion when they might have been expected to disclose it or had stated something which was inconsistent with evidence given by them subsequently. We are aware of and Counsel has drawn our attention to several cases, where Courts have permitted fresh evidence to be called, but for the most part such evidence has been restricted to professional evidence or a single witness and has not involved the re-hearing of almost the whole case, but be that as it may the latest authority on this subject is Rex v. Rowland (1) which is quoted above at some length and from which it is clear that this motion must be discharged.

Finally, may we be permitted to paraphrase the penultimate paragraph in the judgment of Humphreys, J., and state that we are not unmindful of the fact that there exists an authority in the person of His Excellency the Governor, who has far wider powers than those possessed by this Court, who is not bound as we are by rules of evidenCe and who has all the necessary machinery for conducting such an enquiry as is here asked for.

The motion is discharged as no legal ground exists for interfering with this verdict and the appeal is dismissed.

Motion discharged and appeal dismissed,