Rex V. Ede Okpalu & Ors (1935)
LawGlobal Hub Judgment Report – West African Court of Appeal
Murder—reference by Officer Administering the Government under section 22 1V est African Court of Appeal Ordinance, 1.933—inadmissible evidence will not secure quashing if other credible evidence sufficient to support conviction exists—misdirection in law by trial Judge—where person charged with murder not proved to be actual killer provisions of section 7 Criminal Code must be invoked—not invoked by trial Judge but no miscarriage of justice followed—proviso to section 10 (1) of West African Court of Appeal Ordinance invoked.
The facts. of this case are sufficiently set out in the judgment.
Appellant not present and not represented. A. W. Sayle for Crown.
The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, WEBBED,, C.J., SIERRA LEONE, AND BUTLER-LLOYD, J.
In this case four accused were tried before the High Court of the Enugu Division for murder; the last two were discharged at the close of the case for the prosecution the first two were convicted. The whole case of the conviction of the second accused, named Udu Nwozi, has been referred to this Court by the Officer Administering the Government under the provisions of section 22 of the West African Court of Appeal Ordinance, 1933, in order that it may be heard and determined by the Court as if it were an appeal by the said ITclu Nwozi against his conviction.
Udu Nwozi, who is hereinafter referred to as the appellant, did not wish to appear before this Court and was not represented. but the Court had before it his petition to the Governor, which is merely a prayer for the exercise of the prerogative of mercy. The learned Crown Counsel, who appeared on behalf of the Crown, assisted the Court by putting before it everything which, in his opinion, could possibly be urged on behalf of the appellant.
The case is not without difficulty because (a) it was not proved, and the Court below did not find as a fact, that the appellant actually killed the murdered man himself; and (b) a certain
amount of hearsay, and therefore inadmissible evidence was wrongly admitted by the Court below; and (c) the summing up contains a clear misdirection upon the law.
As to (a) there are, of course, many circumstances in which a man can be guilty of murder without actually killing the victim with his own hands; such cases always require great care at the trial and on appeal should receive the closest scrutiny. It the crime is brought home a murderer of this class is frequently equally as blameworthy as, or more blameworthy than, the actual killer. This applies to the present appellant. The point is more fully dealt with later under (c).
As to (b) this Court will not as a general rule quash a conviction merely on the ground that some evidence has been wrongly admitted against an accused person, provided that there is other credible evidence which is sufficient to support the conviction. In this case the other such evidence is amply sufficient. Indeed the facts are practically admitted by the appellant. There will therefore be no interference with the conviction on this ground.
As to (c) the passage referred to is paragraph 17 of the summing up which reads :—
” 17. Both prisoners rely upon the defence that it was ” not their hand which struck the fatal blow and they were ” careful not to be on the actual scene when it was struck. ” In my view, this defence, in, the light of the facts set forth ” above, cannot avail. At the least they must both be held ” to be principals in the second degree, for they were both, at ” least, constructively present when the crime was committed. ” Even if they were absent, the provisions of section 7 of the ” Criminal Code might. be invoked with the same result, but ” that, in my opinion, is unnecessary. I accordingly find ” both prisoners guilty “.
As to this, in the first place the expression ” principals in the second degree “. though having a recognised meaning in English law is not used in Chapter II of the Nigerian Criminal Code which deals with ” Parties to Offences ” and consequently has no actual meaning in Nigerian law. It should be avoided. But this is only a matter of name and unimportant.
The material misdirection is to the effect that it was not, in the trial Judge’s opinion, necessary to invoke the provisions of section 7 of the Criminal Code in order to pronounce the appellant guilty. This opinion is clearly wrong for under the law of Nigeria before an accused person can be convicted of murder, either it must be found as a fact that he actually killed a person or the provisions of section 7 (h), (c) or (d) of the Criminal Code must be invoked. In this case the trial Judge did not, and on the fact= proved could not, find as a fact that the appellant actually killed! the deceased, therefore the provision of section 7 of the Criminal Code must be invoked under one of the headings (h), (c) or (d).
The findings of fact of the Court below, findings which were amply justified by the evidence, are set out in paragraph 16 of the summing up as follows :—
” (1) Ede Okpalu and Udu Nwozi made a bargain involving the ” sale ” and murder of the deceased;
- The deceased was immediately afterwards taken inside Udu Nwozi’s house a few yards away, and there killed by Ede Okpalu or Udu .Nwozi or Awoke Nwachi at their instigation;
- The instrument used was Udu Nwozi’s pestle, a kind of club a yard long and about three inches in diameter at the thick .end;
- The body was buried by Udu Nwozi in his compound;
- At the moment deceased was killed, both prisoners were either present at the actual scene, or had just withdrawn to houses within the compound.”
Even if the appellant’s own version, which is the inost favourable to him, be accepted, namely that he stipulated that the man should be killed before delivery to him for burial, and that he himself was not present at and took no part in the actual killing, it is abundantly clear that he counselled and procured the commission of the crime, and therefore he is deemed to be himself guilty of the offence and could be properly charged with actually committing it under the provisions of section 7 (d) of the Criminal Code, which (shorn of the words unnecessary to this point) reads :—
” When an offence is committed, each of the following
persons is deemed to have taken part in committing ” the offence and to be guilty of the offence, and ” may be charged with actually committing it, that ” is to say :—
•
” (d) Any person who counsels or procures any other person to commit the offence.”
On the facts proved therefore the proper finding was that the appellant was guilty of murder and the misdirection of the trial Judge to himself occasioned no miscarriage of justice.
On the principle therefore of the proviso to section 10 (1) of the West African Court of Appeal Ordinance, the conviction must be upheld and the appeal is dismissed.
