Udofa Unwa Idiong & Anor V. The King (1950)

LawGlobal Hub Judgment Report – West African Court of Appeal

Evidence of a wife not admissible unless it is proved affirmatively that she is a
wife of a non-monogamous marriage-
-Effect of a retracted confession.
_Where death caused by innocent agent of person knowingly commiting a crime the principal is criminally responsible Agent mot criminally responsible
Construction of section 316 (3) of the Criminal Code considered-Where death
caused by criminal act not likely to endanger human life the person concerned not guilly of murder but of marslaughter.

Facts

The two appellants were convicted of murder.

The Crown case was that the
first appellant obtained the services of the second appellant, a native doctor, to
procure an abortion by the administration of native medicine which resulted in the death of the woman aborted.

The Court found that the second appellant acted innocently, believing that the medicine was required to relieve the pain from which the woman was suffering owing to the retention of the placenta.

The first appellant, however, intended that an abortion should be procured.
The Crown called the first appellant’s wife, but apart from the fact that she
was sworn “on gun” and that her husband was stated to be a pagan, there
was nothing to show that the marriage was monogamous.

Both appellants made statements to the police which they retracted, and
appellant’s Counsel argued that a conviction could not be supported only by an extra-judicial confession subsequently retracted.

The death having been caused
by an innocent agent the question of the criminal responsibility of the first
appellant was considered.

Crown Counsel submitted further that under section 316 (3) of the Criminal Code the first appellant was guilty of murder as the act committed was likely to have caused death.

Held

The evidence of the first appellant’s wife was not admissible, as it was
not proved affirmatively that she was the wife of a polygamous marriage and
no presumption against the appellants arose from the nature of the oath taken
or from the fact that her husband was a pagan.

Held further, that as the second appellant acted innocently, and criminal
negligence was not proved, he was not guilty of either murder or manslaughter.

Held further, that the first appellant was criminally responsible for causing
the abortion, but the evidence did not establish that, as a reasonable man, the
first appellant was aware that the act of the second appellant was likely to en-
danger human life.

Consequently he was not guilty of murder under the
provisions of section 316 (3) of the Criminal Code, but having caused death by an unlawful act he was guilty of manslaughter.

Appeal of second appellant allowed and verdict of acquittal substituted. Conviction of first appellant of murder quashed and verdict of manslaughter substituted.