John Agagariga Itule Vs The Queen (1961)

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BRETT, C.J.F

The appellant was convicted in the High Court of the Western Region of the murder of one Ayiwe Ofiawe, who lived in the same compound as himself and was in some way related to him. The medical evidence made it clear that Ayiwe died as a result of a number of wounds on the head and other parts of the body, inflicted with a sharp instrument like a matchet, and the issue on which the case was contested in the High Court was whether the wounds were inflicted by the appellant or not. The evidence on which the trial judge found against the appellant was that of Ayiwe’s mother. She testified that Ayiwe, who was a petty trader, had sold some articles to the appellant, and had been invited by the appellant to go to his house to receive payment. He went there for that purpose one morning, and while she was drawing water at a well some hundred and fifty yards away she heard him calling her name and saying “I am dead”. She ran to the appellant’s house and looked inside, where she saw Ayiwe lying on the floor with matchet cuts on his body, and the appellant cutting him with a matchet. She called for help and went inside to try to rescue Ayiwe, but the appellant raised his matchet at her and she ran away and reported the affair to the police. Two other witnesses were called by the prosecution who professed to have seen the appellant striking Ayiwe with his matchet, but the Judge found their evidence unreliable, and professedly based his finding entirely on the evidence of Ayiwe’s mother.

After Ayiwe had been killed and the alarm had been raised, the appellant was not to be found in his house, and he was arrested that night at about 7.30pm., on his return to his house. He was then dressed in a wrapper and carrying a matchet, neither of which bore any stains of blood. At the time when he was arrested he was saying in pidgin English either “Don’t kill me” or “They wanted to kill me.” He was taken to the police station where according to the evidence for the prosecution he made a statement, Exhibit E, in which he admitted that he had killed Ayiwe in circumstances which we shall consider in detail later. The following morning he was taken before the Assistant Superintendent of Police and the statement was read over to him. He then denied having made that statement, and made a further statement, Exhibit C, in which he said that a number of his fellow villagers had conspired to kill him and that they killed Ayiwe instead because Ayiwe had warned him of the plot and he had succeeded in escaping. He gave evidence at the trial which was substantially in conformity with what he said in Exhibit C, with additional details, including the statement that the reason why he was to be killed was that he had offended against the juju Okan. The Judge disbelieved the appellant’s evidence, and placed no reliance on either of his statements, to which he only made a passing reference in his judgment.

Mr. Cole, while conceding that it was open to the Judge to convict the appellant solely on the evidence of Ayiwe’s mother, submits that before doing so he ought to have scrutinized her evidence with particular care, and suggests that he overlooked various points which ought to have cast doubt on her reliability. The points which Mr. Cole’s industry had enabled him to discover are all of the most trivial kind. They passed unnoticed by everyone at the trial and we are unable to say that the Judge misdirected himself in failing to advert to them. Neither they nor the absence of blood from the wrapper and matchet are of enough significance to justify us in holding that the verdict cannot be supported having regard to the evidence, so far as the finding that the appellant unlawfully killed Ayiwe is concerned.

As an alternative to a complete acquittal, Mr. Cole invited the Court to hold that the Judge erred by failing to consider the defence of provocation. Having regard to recent decisions on the burden of proof, the expression “defence of provocation”, which we take from the ground of appeal filed and argued by Mr. Cole, always tends to be a misleading one, and here it is more than usually inappropriate, since it was not only no part of the case put forward on behalf of the defence at the trial that the appellant had received any provocation from Ayiwe, but positively inconsistent with that case. Nevertheless, provocation is alleged in the first statement said to have been made by the appellant, Exhibit E, of which the material part reads as follows:

This morning 8th April, 1960 the deceased came to my house with cutlass I say oh oh na so they send you come. I take my own knock his own come out and I begin to sharp am till hi fall down. I do so because na so he Ayiwe de he kill all my children namely: (1) Owe, and (2) Polo, The man first slap me with cutlass. I know that the man come with especially fight then I start again to cut him until he fall down. Whether he die oh or he save I nor know then I go for Ogor village.

The Judge referred to Exhibit E in his judgment, and to the fact that it had been ‘retracted’, by which he presumably meant that the appellant had denied ever making it, but by an unfortunate omission he failed to record any finding on the question whether the appellant had in fact made it.

A confession does not become inadmissible merely because the accused person denies having made it, and in this respect a confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession: R v. Philip Kanu and Anor. 14 W.A.C.A. 30. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to the denial: R v. Sapele and Anor. 2 F.S.C. 24; but it is not in itself a reason for ignoring the Statement.

When considering whether there was evidence of provocation we must, in the absence of a finding that Exhibit E was not the appellant’s statement, give him the benefit of assuming that it was his statement. As to whether the part of a confession which tells in an accused person’s favour is evidence of the facts alleged, the position at Common Law is that “it is a general rule that the whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that he made such an assertion, but admissible evidence of the matter thus alleged by him in his discharge.” See Archbold, 34th edition, paragraph 1127. The matter is not dealt with expressly in section 27 to 32 of the Evidence Ordinance, and the Common Law rule therefore applies by virtue of section 5(a).

The rule that a statement admissible as a confession must be taken as a whole is based on principles of logic and justice, but it is now the convention that the prosecution should be permitted, and indeed expected, to tender in evidence any statement alleged to have been made by an accused person to the police, whether at the time of his arrest or subsequently. In applying the Common Law rule as to confessions we are not holding that statement admitted under this convention is evidence of the facts contained in it, and our decision in this case only applies to statements which would be admissible at Common Law as confessions. We are of the opinion that in this case, for the reasons stated, there was evidence of provocation which the trial Judge ought to have considered. It may well be that he would have rejected it, and it is to be observed that Ayiwe’s mother, whom the Judge regarded as a truthful witness made no mention of his carrying a matchet when he went to the appellant’s house to collect his money and that no witness speaks of finding another matchet in the house after Ayiwe was killed. Nevertheless there was no positive evidence to disprove the allegation of provocation, indeed there was no evidence at all, except that contained in Exhibit E, of what happened when Ayiwe first entered the appellant’s house.

On the whole we do not feel able to say that no substantial miscarriage of justice has occurred through the Judge’s failure to consider the evidence of provocation. In taking this view we are following the passage in the judgment of the Judicial Committee in Bullard v. The Queen (1957) A.C. 635, which reads “Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence on which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.” For these reasons we substitute for the verdict found by the Judge a verdict of guilty of manslaughter, and pass a sentence of twelve years’ imprisonment with hard labour in substitution for the sentence of death.

Other Citation: (1961) LCN/0901(SC)