Godwin Ikpeamogu Nwaugoagwu & Anor V. The Queen (1962)

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BRETT, F.J 

The appellant was convicted in the High Court of the Eastern Region of attempted murder, contrary to s. 320(1) of the Criminal Code, and of escaping from lawful custody, contrary to s.135(a) of the Code.

The evidence showed that the appellant was arrested under a warrant on the 27th June, 1961, and brought up the next day for trial before the Ehime District Court. The exact charge has not been specified, but it is said to have involved breaking the peace and waylaying a certain Chief Igwe, otherwise Igwe Kemkwo. The appellant objected to being tried by the Ehime District Court, of which the complainant, Igwe Kemkwo, was one of the sitting members on that day, and of which he said the Registrar also had a grudge against him. The court upheld his objection, but, as the Judge found, did not allow him bail. He was put back into the cells in the court building, where he made such a disturbance that he was brought back into court and sentenced to a fine of £75 or three months imprisonment in default for contempt of court, Igwe Kemkwo taking part in the decision. He was unable to pay the fine on the spot and was returned to the cells again.

Shortly afterwards, the appellant burst out of the cells with a matchet in his hand, and struck Igwe Kemkwo a blow with it, which caused a coronal incised wound of the scalp penetrating through the depth of the outer scalp table fracturing the scalp. The doctor who treated Igwe Kemkwo expressed the opinion that a matchet or axe could have caused the wound “‘d used with reasonable force” and that “if the wound had gone a bit deeper the patient would have died.” After also striking the Registrar, the appellant made off, and he was not recaptured until about a week later.

It has not been argued on behalf of the appellant that, in the words of s.26(1) of the Federal Supreme Court Ordinance, 1960, the verdict on the count for attempted murder was unreasonable or could not be supported having regard to the evidence; the defence was, in substance, a lack of the necessary intent, and it has been submitted that the trial Judge omitted to direct himself adequately as to the intent required on a count for attempted murder. The decision of this Court in R. v. Albert (1960) W.R.N.LR 31 was not cited before us, but there was no dispute that an actual intention to kill is required, and that an intention to cause grievous harm, though sufficient to sustain a conviction for murder it death results, is not sufficient to sustain a conviction for attempted murder. In the court below, Crown Counsel put the matter correctly in his closing address, when he said mens rea in attempted murder is intention to kill. The extent of the injury and the nature of the instrument used. Intention to kill may be inferred, but the judgment contains no direction on the point. As regards the findings of fact, not only is there no express finding as to the intention of the appellant, but the only express finding as to the nature of the force used is that it was likely to cause at least grievous harm. In dealing with the count for attempted murder the Judge was chiefly concerned with the issues of self-defence and provocation, on which he rightly held against the appellant and which have not been pursued before us, and although he described the attack on Igwe Kemkwo as well planned and well timed, he recorded no finding as to the intent with which it was made.

We do not say that it is necessary in every case for a Judge sitting alone to refer separately to each single element of the offence charged; if a man is found to have picked someone else’s pocket and run away, and his defence is a bare denial, a Judge may convict him of stealing without entering upon a detailed analysis of that offence. However, where the evidence raises an issue as to the intent with which certain acts were done, it is essential that the judgment should show that the Judge correctly apprehended the question which he had to decide, and that after considering all the ingredients of the offence charged he found them proved. On a count for attempted murder this requires him, as we have already pointed out, to direct his mind to the question, whether an intent to kill had been proved. In the present case, the omissions we have mentioned amount to a misdirection and conviction for attempted murder must be set aside unless we can justifiably hold that no substantial miscarriage of justice has occurred, and apply the proviso to s.26(t) of the Federal Supreme Court Ordinance, 1960. For this purpose we have not to retry the case, but to see whether on a proper direction the Judge must have come to the same conclusion, and in order to do so this we have to look at the evidence as a whole. The test approved by the House of Lords in Stirland v. D.P.P. (1944) A.C. 315 is whether a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict. In R. v. Albert cited above, this court dismissed the appeal because it held that the facts which the Judge found proved were consistent only with an intention to kill, and the headnote to the report of that case is misleading in omitting the word “only’. In the case before us, we observe a lack of detailed evidence on such points as how far it was from the cells to where Gwen Kemkwo was sitting; how the appellant came, apparently, to strike Igwe Kemkwo from behind; and whether there was anything to stop the appellant from striking a more severe blow if he had wished to do so: If Age Kemkwo was taken by surprise by the blow, as he says he was, it would seem, for all the evidence to the contrary, that he must have been completely at the appellant’s mercy. Taking all this into consideration, we feel unable to say with confidence that no substantial miscarriage of justice has occurred, and the conviction and sentence for attempted murder are set aside. A judgment and verdict of acquittal will be entered on this count.

As regards the count for escaping from lawful custody, paragraph (a) of s.135 of the Criminal Code, under which the appellant was convicted, only applies to a person who is in custody charged with, or after being convicted of, a felony or misdemeanour, and the Particulars of Offence in that count referred not to the charge or charges on which the appellant had been arrested but to his conviction for contempt of court. The record of his conviction does not show under what law he was charged, but whether he is to be regarded as having been convicted under s.44 of the Customary Courts taw, 1956, or under s.133 of the Criminal Code, it was in either case a simple offence, as defined in s.3 of the Criminal Code, and neither a felony nor a misdemeanour. In the circumstances the conviction under s.135(a) of the Criminal Code cannot stand, but the court below would have had power, under s.179(1) of the Criminal Procedure Ordinance, to find the appellant guilty of an offence under s.135(b) of the Criminal Code, and in exercise of our powers under s.27(2) of the Federal Supreme Court Ordinance, 1960, we substitute a verdict of guilty of an offence under that paragraph. The sentence imposed by the trial Judge on this ground was one of three years’ imprisonment, whereas the maximum sentence on a conviction under s.135(b) of the Code is two years’ imprisonment. In assessing the proper punishment we do not feel justified in taking into account the attacks on Igwe Kemkwo and the Registrar, which were not part of the escape itself, but we regard the fact that the escape was achieved with Implied threat of violence to anyone who tried to prevent it as a matter to be taken into consideration. As against that, we think the appellant had some justification for a strong sense of at being kept in custody at all. The sentence we impose is one of imprisonment with hard labour for nine months, to commence from the date of the conviction in the High Court.

Other Citation: (1962) LCN/0991(SC)