Rex V. Etim Ukpe & Ors (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Murder contra. sec. 319 of Criminal Code.

Held : By his psesence at a meeting when murder generally is instigated, a man does not become an accessory before the fact to a particular murder committed in consequence thereof.

There is no need to set out the facts. A. A. Ademola for Appellants.

C. N. S. Pollard for Crown.

The following joint judgment was delivered :—

IINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, Ain) WEBB, C.J., SIERRA LEONE.

The appellants appeal against their conviction for the murder of one Akpan Udofia. The evidence connecting them with the murder is, firstly, a statement made by the first appellant shortly after his arrest, and adopted and confirmed by him in his evidence on oath at the trial, secondly the recovery of the deceased’s bicycle with his assistance, and, thirdly, the finding on the premises of the second appellant of various articles of clothing which were identified as having been worn by the deceased, or in his possession, when he was last seen by his family. There was also a trail, said to have been of blood, but not identified as such, leading from the place where the body was found to the house of the second appellant.

The statement made by the first appellant was to the following effect; he said that a person of their village having been killed in a bicycle accident by a man from the village of Okon, the Chief summoned all the males and directed them that if any of them saw an Okon man they were to cut off his head and bring it to him, and ” all the townspeople agreed they would do this thing.” The statement then went on to describe how a few nights later three persons, one of whom was the second appellant, came to the house of the first appellant, told him that they had killed a man from Okon and left a bicycle with him, and how on the following day he accompanied the same three persons to the place where the body of the deceased was lying, when it was dismembered and buried, the head being cut off and taken away in a bag.

In his judgment the learned trial Judge says : ” In regard ” to the first accused, I am satisfied from his evidence and state” ments that he was an accessory before the fact to this murder” I am satisfied that he was present at the meeting and swore ” juju with his fellow villagers to kill an Okon man for George’s ” funeral : I am satisfied beyond any doubt that he encouraged ” this murder by his actions at that meeting.” That is to say, he does not find as a fact that the first appellant was the actual murderer. or that he was present at the murder, but he regards him as a principal offender under section 7 (b) (c) or (d) or under section 8 of the Criminal Code. Now the only evidence of this appellant’s connection with the crime is his own evidence, and we are unable to see how that evidence shows either that he did or omitted to do any act for the purpose of enabling or aiding another person to commit the offence (section 7 (b)), or that he aided another person in committing it (section 7 (c)—nor can it be said that he counselled or procured any other person to commit the offence (section 7 (d)), for he was not the person who directed tha’t an Okon man should be killed, but was one of those to whom this order was given, and even if he did with the others present at the meeting ” agree that they would do this thing,” that by itself would not, in our opinion, amount to the formation by them of a common intention to prosecute an unlawful purpose in conjunction with one another (section 8), for the agreement was one to act severally rather than jointly, and the mere expression of the intention to commit a crime is not an offence, for when the opportunity arose (if it ever did) he might not have carried it out. We are therefore of opinion that the first appellant was wrongly convicted of murder.

With regard to the second appellant it is sufficient to say that in our opinion there was sufficient evidence to justify a finding that the second appellant was one of the persons who actually murdered the deceased.

In this connection the result of our finding in regard to the first appellant is that he becomes not an accomplice but at accessory after the fact. As such, although his evidence stilt requires to be received with the greatest caution, it does not require corroboration.

The appeal of the first appellant is allowed, the conviction anti sentence passed upon the first appellant are quashed and it directed that in the case of the first appellant a judgment an,’ verdict of acquittal be entered and that he be discharged.

The appeal of the second appellant is dismissed.