Rex V. Akpan Udo Udo Essien (1939)

LawGlobal Hub Judgment Report – West African Court of Appeal

Murder coffins sec. 319 of the Criminal Code—Misdirection.

Held : Although the learned Trial Judge erroneously found a voluntary

by High

statement by Appellant on arrest to be ” a complete Confession ” (whereas in fact

Court.

it was a confession of implication in the crime) other conclusive evidence of guilt

existed, and appeal dismissed.

The facts are sufficiently set out in the judgment.

E. G. Unsworth for Crown.

Appellant in person.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY,

JJ.

The appellant was convicted by the Assistant Judge of the Calabar-Aba Division of the High Court on a charge of murdering one Udo Udo Umoren on the 18th July, 1938 at Ohambele Road in the Owerri Province.

The grounds of appeal turn upon questions of fact, but this Court granted the application for leave to appeal on a general consideration of the record and report of the Trial Judge rendered under Rule 47 of the West African Court of Appeal Rules.

The relevant facts appear to be that on the morning of the 18th July last the deceased Udo Udo Umoren a lad of 14-16 years of age with his older brother Job set off on bicycles at 7 a.m. to go from their village Ikot Inyang to Azumini. After about an hour, Job’s bicycle got punctured and the deceased went on alone. The deceased was seen that morning by a young girl, the daughter of a man married to the sister of deceased, on the back of a bicycle being ridden by the appellant in the direction of Azumini Market. That afternoon the deceased was found in the bush at the side of a path on Ohambele Bush Road by a man and a woman who were attracted to the spot by the groans of the deceased. There was blood on the head, mouth and ears of the deceased, a big log of wood resting on his neck and grass over his body. The deceased was taken to a native doctor and on the 27th July he died in consequence of certain fractures of the skull. Near the place where the deceased was found injured was a fallen tree across the path which would necessitate dismounting from a bicycle. The Appellant at midday on the 18th July had the bicycle of the deceased at a nearby market and sold it there. About a fortnight later Job the brother of the deceased found that bicycle in the

possession of the purchaser and the latter pointed out the appellant as the seller. The appellant was arrested on the 5th August on a charge of stealing the bicycle and on the 7th August he was charged with the murder of Udo Udo Umoren. Another man Amos Edem Akai, arrested on the 13th August was also charged with the same murder and he and the appellant were jointly tried. The clothes worn by the appellant and Akai were found to have spots of human blood on them. The blood-spots were on the inside of the shorts worn by Akai, on the shorts worn by appellant, particularly on the inside, and also on the singlet worn by Akai.

In addition to the evidence of witnesses at the trial which established the above facts, there was admitted in evidence a dying declaration made by Udo Udo Umoren to his brother Job made some time after 10 p.m. on the 18th July, when Job found him at the place to which he had been carried. It was as follows :—” I have been killed—I am not well as you can see—I do not think I shall live. A man asked me to carry him on my bicycle to Ohambele for 3 manillas. The man said he was in a hurry and would ride the bicycle himself with me on the back—The man rode very fast and took a bush path off the road—We got to a place where a tree had fallen on the path and had to dismount—I asked to ride the bicycle myself and as I said this another man came out of the bush and hit me with a stick and wounded me in my mouth and ear. I was dragged into the bush and a log of wood pressed on my head. They then left together and went away with my bicycle.”

The accused Akai was acquitted at the close of the case for the prosecution as there was no evidence to justify calling upon him for his defence.

A statement, which is in evidence, made by the appellant after being charged with the murder and cautioned is as follows :—

” Akpan Udo Udo (M) of Ikot Idum, Ika Area, age about 23 years, Christian, farmer, now residing at Ikot-Idum, after having been charged and duly cautioned voluntarily made the following statement :-

” I could remember 24 days ago I went to Ohambele to visit my sister named Unwa Adiaha Umo. Then on my returning home on the same very day I met my friend named Amos Udo Ikono in the road. Amos Udo Ikono was returning to his own town Edem Akai. Then I accompanied Amos Udo Ikono. While I and Amos Udo Ikono were returning, we (I and Amos Udo Ikono) met unknoWn person who was riding on a cycle. Neither I nor Amos Udo Ikono know this person whom we met. Amos Udo Ikono armed himself with a spear. I was empty handed. This unknown man was also returning from Ohambele towards Edem Akai road when this unknown man rode his cycle across I and Amos Udo Ikono, Amos Udo Ikono stabbed this unknown person with a spear on the occiput. The man fell down on the ground and fainted. Subsequently Amos Udo Ikono drew the body of this unknown man inside the bush. Later Amos Udo Ikono handed over the cycle of this unknown person to me and instructed me to sell the said cycle and bring the money to him (Amos Udo Ikono). Hence I took the cycle to Agabala market where I sold it to one Nkwele man at the price of £2 2s. 6d. I took this money to Amos Udo Ikono and I reported my service to Amos Udo Ikono. From this money Amos Udo Ikono extracted the sum of £1 12s. and Amos Udo Ikono asked me to buy another new cycle with this

amount. Furthermore Amos Udo Ikon awarded me the sum of 8d. for

v.my dibgent service. I used that £1 12s. to buy a new cycle for Amos Udo

Emdenlkono.

” This is all I have to state to Police.

ICingdon,” Akpan Udo Udo his x mark.”

C.J.,

Butler Lloyd

and CareThe judgment of the learned Trial Judge was ” There is no

)J.doubt accused is guilty of murder.”

In his report the learned Judge, after having referred to the identification of the appellant as the person who stole the bicycle, says, ” 1st accused ” (i.e. the appellant) was therefore arrested and on being ” charged with murder made a voluntary statement, which was a complete confession, but alleging the 2nd accused was the actual murderer although be was present at the time.”

In our opinion the statement of the appellant cannot properly be termed ” a complete confession ” bf the charge of murder, and if that statement had been incorporated in the judgment it would have amounted to a misdirection upon the facts. We have thought it right therefore to assume that the Trial Judge did to that extent misdirect himself upon the facts and then to consider whether it is reasonably probable that the Trial Judge would not have recorded the same finding had he not so misdirected himself. The burden of establishing this lies upon the appellant.

Having regard to the overwhelming nature of the evilcience for the prosecution, to the appellant’s own statement .which, though not a complete confession, does definitely implicate him with the crime, to the fact that no serious defence was put up at the trial and to the short but no less emphatic finding ” there is no doubt accused is guilty of murder,” we have come to the conclusion that the finding must inevitably have been the same even had the Judge put the appellant’s statement no higher than it should be put.

The appeal is therefore dismissed.