Rex V. Udo Aka Eka Ebong (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Confession—Nigeria Evidence Ordinance, sections 26 and 27—Admissibility—Weight of evidence.

The facts are sufficiently set out in the judgment.

Case referred to:

(1) R. v. Baldry, 5 Cox C.C. 523; 21 L.J.M.C. 130; 19 L.T.O.S. 146; 16 J.P. 276. Appeal from the Supreme Court of Nigeria.

Williams for Appellant.

Lloyd, Crown Counsel, for Respondent.

The following joint judgment was delivered:

In this case it must, we think, be admitted that the conviction rests principally, if not solely, on the alleged confession of the accused.

This confession took place in most peculiar circumstances. The deceased was murdered sometime in November, 1944. The matter was reported to the police, whose investigations proved abortive.

The local Chief, one Ibritam, then invited eighteen villages in the vicinity of the crime, presumably, to investigate the death of the deceased.

There was apparently some suspicion that the death was not as straightforward as it might appear to be as the investigation took the form of invoking ” Juju ” to indicate whether the killing was due to ” bush leopard ” or ” man leopard ” : the object in the latter case being that the juju should make him go mad and confess.

Some eleven months later the accused came to the house of the Chief. ” He was shaking and said he had killed the girls.”

The Chief was the principal witness as to this confession; but other witnesses were called to corroborate it but, owing to the mass of discrepancies, their corroboration is of little value as the learned trial Judge pointed out. Learned Counsel for the appellant argued that this statement as to guilt by the accused was not admissible by reason of the fact that it was not voluntary on the part of the accused, he being forced to make it owing to pressure put upon him as a result of his belief in ” Juju “.

Section 27 (1) and (2) of the Nigeria Evidence Ordinance reads as follows :—

” 27 (1). A confession is an admission made at any time by a person charged with a crime, stating or supporting the inference that he committed that crime.

” (2). Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”

Section 26 lays down certain cases in which confessions are irrelevant in criminal cases and in our opinion does not apply to the present case.

It might, perhaps, be argued that the wording of section 27 (1) indicates that a confession to be admissible must have been made subsequent to the accused person being charged.

In Phipson on Evidence (8th Edition) at page 248, we find the following:-

” In criminal cases, a confession made by the accused voluntarily is

evidence against him of the facts stated. But a confession made after suspicion has attached to, or a charge been preferred against him, and which has been induced by any promise or threat relating to the charge and made by, or with the sanction of, a person in authority, is deemed not to be voluntary, and is inadmissible.”

Stephen in his History of Criminal Law states that-

” a confession is an admission made at any time by a person charged with a crime, stating, or supporting the inference, that he committed the crime.”

That the latter definition has been adopted, practically ipsissima verba, in section 27 (1) of the Evidence Ordinance is obvious.

In our opinion the confession in this case was voluntary from the legal point of view and was properly admitted. (The judgments of the learned Judges of the Court of Criminal Appeal in R. v. Baldry (1), at pages 529 et seq., are of interest in this connection.) To find otherwise would be getting perilously near to the fallacious theory that a genuine belief in witchcraft might be a possible defence to a charge of murder, in so far as it might reduce the charge to manslaughter or even an acquittal by reason of self defence.

Having found that the confession was admissible we must now consider what value must be given to it in view of the fact that it is really the only evidence against the accused. We say the only evidence because the learned trial Judge, to our minds, very properly took very little notice of the evidence as to the shouts of the sister of the deceased—” Udo Uko has killed Unwa “.

Against the accused’s confession we have his statement to the police and the line followed by the defence that what he said was not that he had killed the girls but that he had been accused of killing the girls. This latter version is borne out by a witness called by the Court, Iwet Abong, and also by Udo Utuk Ayara.

As we have indicated above the case for the Crown, on the facts found by the trial Judge, rests on one reliable witness who states’that appellant came to him trembling and said he had killed the girls.

The appellant admitted going to this witness but alleges that his words were that he was accused of killing the girls. (Several of the witnesses could see no difference in these two statements.) It should further be noted that, when the accused was arrested by the police shortly after his alleged confession, he denied confessing and stated that what he had said was ” it is said that I killed the two girls “, and that he wished to take an oath to prove his innocence.

A subtle defence (if untrue) to have been thought out by an unsophisticated, backward, native.

The crime was practically motiveless and in all the circumstances of this case

we are of the opinion that the appellant is entitled to the benefit of the doubt. The appeal is allowed—conviction quashed and sentence set aside.

Appeal allowed.