Rex V. John Ogbuewu (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Murder—Evidence–Dying declarationtatement to Policeby accused made in one language and taken down in another—Admissibility-Evidence Ordinance, section 33 (a).

For a dying declaratipn to be admissible in evidence, there must be proof that the deceased, when making it, believed himself to be in danger of approaching death.

It is always better that the statement of an accused to the Police should be written down in the language in which it was made, but a statement, which is admissible in other respects is not inadmissible on the ground that it was taken down in English and not in the language used by the person making it.

Appeal from the Supreme Court of Nigeria.

David for Appellant.

Lloyd. Crown Counsel, for Crown.

The following judgment was delivered:

Ames, J. This appeal is against a conviction for murder. The first ground of appeal is that a statement made by the deceased was wrongly admitted in evidence as a dying declaration and that a statement made by the accused to the Police was also wrongly admitted in evidence.

It will be convenient to deal first with the latter statement, that of the accused. It was made voluntarily and after a caution, and was taken down in writing. The argument against its admissibility is that the statement was made in Ibo and the Constable wrote it down in English and not in Ibo. Mr. David, who represented the appellant, said that this Court has held that statements made to the Police must be written down in the language in which they were made; but he was not able to refer us to any case in which any such ruling was made. There is no such case reported in any of the published volumes of W.A.C.A. reports and we are not aware of any unpublished decision in which it has been so held by this Court. It is obviously better that such statements should be written down in the language in which they were made, but we do not agree that a statement, which is admissible in all other respects, is inadmissible on the ground that it was taken down in English and not in Ibo or whatever other language may have been used by the person making it. What has to be proved is that what was written down is in effect and meaning the statement made by the accused person and, of course, the nearer it is proved to be to his very words the more the weight which can be attached to it ; and the way of getting it nearest to the very words is to write it down in the language in which it was spoken. It is, however, not always possible to do this in this large and varied country owing to the great number of languages and dialects used and the illiteracy still prevailing in most parts. It often happens that statements have to bb made to the Police through an illiterate interpreter and so cannot be written down in the language in which made. What this Court has said, as have other Courts also on innumerable occasions, is that, where an interpreter has had to be used in the taking down of a statement, the statement is inadmissible unless the person who interpreted it ^–is called as a witness as well as the person who wrote it down. This necessity is frequently over-looked and it may be that rejections of statements for this reason have given rise to a belief that statements are inadmissible unless

written in the language in which made. But this is not so; it is a matter of proof and not of admissibility. This is one of the reasons which make it better (as we have already said) that statements should be written down in the language used whenever it is practicable to do so.

As regards this particular statement, there was proof not only that it correctly recorded the appellant’s statement but also that he agreed that it did. The Police Constable who wrote it down in English gave evidence that he afterwards read it over in Ibo to the appellant, who then said that it was correct. Later on the appellant was taken before the District Officer, who caused the statement to be read over to him in Ibo, and the interpreter (it was the District Interpreter), who did so, gave evidence that the appellant said that he had made that statement.

Returning now to the former part_of this ground of appeal (about the statement of the deceased) the statement was made to a Police Constable on the day after the deceased had been wounded. The deceased was then in hospital and was weak and appeared to be in pain and the Constable asked him if he could speak and make a statement, which he said he could. The Constable then said to him : ” Do you tliMk that you aie going to die ” to which the deceased replied: ⁴‘ I don’t know whether I am going to die.” The deceased then made a statement as to the cause of his injuries, which was taken down in writing. It was those injuries which were the cause of his death three days later. In our opinion this statement does not come within the provisions of section 33 (a) of the Evidence Ordinance, owing to lack of proof that the deceased, when making it, believed himself to be in danger of approaching death.

As this statement was wrongly admitted in evidence, it becomes necessary to consider whether the learned trial Judge would certainly have come to the same decision and have convicted the accused without it, and this question can be considered together with the second ground of appeal which is: ” Verdict against weight of evidence. ” We are satisfied that the learned Judge could not have come to any other decision, even had this statement not been admitted.

In arguing this aspect of the appeal Mr. David relied mainly on two points of conflict (as he called them) in the evidence of the principal witnesses and on a passage of the judgment.

The incident happened on Christmas Day ” in the evening ” or ” soon after darkness had fallen not quite dark “. The two principal witnesses were women. One of them went with the deceased to the house of the accused. When they were leaving, she was in front and the deceased was ” a few paces behind “. She heard a sound of a blow and then heard the deceased say : ” They have killed me.” According to the other woman, who was outside her house which was nearby, she heard the deceased say: ” John has killed me.” But both of them said they saw the accused running away with a matchet in his hand and the deceased lying on the ground wounded and bleeding.

The former woman said, in examination-in-chief : ” … Suddenly I heard a sound as though something soft had been cut with a matchet … I saw the accused running away holding a matchet . . . ” Later on she said, in reply to the Court: ” . . . I saw the accused strike three blows before running away … ” She certainly had not said that in her examination-in-chief. But the trial Judge found it necessary to ask her about several points and she amplified what she had said in examination-in-chief and under cross-examination. We do not know why the learned Judge did this; it may be that he sensed that the witness had not been examined and cross-examined in sufficient detail, because we see that the prosecution was conducted by a Police Sergeant and not by a lawyer (we state this as a fact and without intending any disrespect to this Police Officer).

The part of the judgment complained of in this respect is this :—

” I have no doubt that the evidence given by the witness Ugha is a correct

version of what actually occurred, confirmed as it was by the dying declaration of the deceased himself. I can conceive no reason why either of these should have misrepresented the circumstances.”

The argument is that the words ” confirmed as it was ” mean that the learned Judge would not have believed Ugha (who was the former of the two women mentioned above) if her evidence had not been confirmed by the dying declaration. Taken by itself the words certainly could mean that; but taken in their context we do not think that they do. The second sentence is that there is no conceivable reason why either the women or the deceased should have misrepresented the circumstances; this is clearly a statement that each was worthy of belief independently of the other.

After all there could not have been any doubt that the appellant wounded the deceased. Quite apart from the evidence of the two women, who said they saw him running away with the matchet in his hand, the appellant himself, when arrested, asked the Police Constable whether the deceased whom he ” cut last night ” had died. Later on in a statement to the Police he said: ” . . . I attacked him with the matchet and gave him three severe matchet cuts . . . I reported myself to the Police . . . I brought also my matchet with which I killed Onie . . . ” The dispute was as to the circumstances in which he came to do so. The witnesses for the prosecution told their version of what happened and the appellant told his, and the learned Judge said that he was quite unable to believe the appellant’s version and gave his reasons for saying so.

After considering all the arguments of Mr. David for the appellant we think that the learned Judge could have come to no other conclusion, quite apart from the evidence wrongly admitted, and that the finding was amply supported by the admissible evidence and that the appeal must be dismissed.

Appeal dismissed.