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BROWNSON ETUK UDO
SUPREME COURT OF NIGERIA
12TH FEBRUARY, 1964
(S.C. 33/64 FROM EASTERN NIGERIA)
CWLR (1964) 2
CHILDREN AND WOMEN LAW:- Wife Killing – Assault causing neck injuries – Initial well-meant but misguided attempt by husband to self-treat wife using local remedies resulting in further harm – Death after admission in hospital – Whether circumstances disclosed murder or manslaughter – How treated
BEFORE THEIR LORDSHIPS:
BRETT, TAYLOR, BAIRAMIAN, JJ.S.C.
CRIMINAL LAW: – Criminal Law – Culpable Homicide- Murder – How proved – Nature of assault occasioning death – When deemed manslaughter in lieu of murder – Duty of appellate court
CRIMINAL LAW AND PROCEDURE: – Statement of accused to police wrongly excluded from consideration – Accusations made by deceased in presence of her assailant – Admissibility – Effect thereof
HEALTHCARE AND LAW: – Access to emergency healthcare services – Well-meant but misguided attempt to use local remedies when professional emergency medical treatment is required – Medical and legal implications
BRETT, J.S.C. (delivering the judgment of the Court)-
The appellant was convicted of murdering his wife, Amama Wang, who was admitted to Etinam Hospital on the 19th July, 1962, suffering from a fracture and dislocation of the neck and extensive burns on both legs, developed paralysis of the arms and legs, and died on the 4th August, 1962. A postmortem examination showed the cause of death as damage to the brain stem and spinal cord arising from the fracture and dislocation of the neck, and the doctor who conducted the examination stated that the injury to the neck might have been caused by a sudden throwing of the deceased to the ground or any hard object, causing either a direct or indirect injury to the neck, and that holding a person with his or her two legs up and suddenly allowing him or her to fall to the ground, the head touching the ground first, would produce that sort of neck injury.
It is not now in dispute that the deceased received the injury to her neck as the result of an assault committed on her by the appellant, and it seems equally clear that after she had received the injury the appellant did all he could to treat her, indeed the bums on her legs were the result of a well-meant but misguided attempt to keep her warm. The appellant sent for the wife of a neighbour, Ekpe Udo, who arrived to find him trying to treat her, and asked them both what was the matter. The appellant said nothing, but the deceased said that the appellant had “put his hands between her legs, carried her up, and knocked her to the ground headlong”. When asked why he had done this she said it was because she had permitted someone to cut sticks in their premises and the appellant suspected the man was her lover. The appellant still said nothing.
The following day the deceased sent for her brother, Tom Ikrang, and in the presence of the appellant she told him that the appellant “put his hand between her two legs, carried her up, and threw her headlong to the ground”. Tom Wang asked the appellant why he had done this and the appellant said the deceased abused him. Tom Wang took the deceased to hospital in his car the same day.
It was submitted that the evidence of Ekpe Udo and Tom Wang as to the statements made by the deceased was hearsay and inadmissible. The trial judge admitted it as part of the res gestae, which we do not consider it was, but we have no doubt that it was properly admitted as evidence of accusations made in the presence of the appellant in circumstances in which he might reasonably have been expected to comment on the accusations, as in fact he did comment on the accusation made to Tom Wang. We would add this, however, that these two witnesses gave their evidence in Ibibio, and that we recognise that the references in the English version to throwing or knocking the deceased to the ground “headlong” may simply mean “head-first” and need not necessarily imply great rapidity or violence.
The appellant made two statements to the police, one before and one after his wife’s death. He also gave evidence at his trial. The judge made the comment that the first statement, Exhibit B, was made through an interpreter, but the evidence was that it was made in Ibibio and written down in English by the police officer to whom it was made and who had himself interpreted it, and while it has frequently been said that a statement should, if possible, be written down in the language in which it is made, it is not ipso facto made inadmissible by a failure to follow this procedure. The judge, however, decided to ignore the statement, as not being legal evidence, and he cited the decision in R. v. Golder  1 W.L.R. 1169, approved in this Court in R. v. Ukpong  All N.L.R. 25. With respect, these cases deal with previous statements inconsistent with a witness’s sworn evidence which are put to a witness in cross examination in order to discredit his evidence. They have no application to a confession made by an accused person. A man’s confession was always admissible in evidence against him at common law, and its admissibility remains unaffected by the fact that he is now competent to give evidence himself. The judge was clearly mistaken in the view that the first statement, Exhibit B, was not legal evidence. On the other hand, the second statement, Exhibit C, was not clearly proved to have been recorded or interpreted by the witness who produced it, and ought not to have been treated as evidence.
In his evidence in the High Court the appellant said that he and his wife had had a quarrel about her allowing a young man to cut sticks, that without his using or threatening violence she started to run away, and that she fell and injured her neck when stepping over a fence. The judge disbelieved this story, and counsel for the appellant has not asked this Court to take a different view. In convicting the appellant of murder the judge relied primarily on the statements made by the deceased to Ekpe Udo and Tom Wang and evidently attached importance to the use of the word ‘headlong’ on which we have already commented. There was no evidence as to the physique of the deceased, but it is not a simple matter to throw a grown person to the ground so that his or her head strikes the ground first, and the judge did not advert to this difficulty. If he had felt free to consider the appellant’s first statement, Exhibit B, he would have seen what is at least a reasonable explanation of the unquestioned facts and in our view the appellant is entitled to have the case decided on the assumption that the story told in that statement is substantially the truth.
The statement reads as follows:
“On the day in question, I was in my house when an unknown man came into my house and asked me of my wife. I questioned him of what he wanted her for and he told me that he was the servant of the Principal at Nsit People’s Grammar School and that he was sent to come and collect Indian bamboo. I told him to go that such a thing was not available in this house. When I had told him to go, he refused and my wife came and directed him to cut the bamboos. I came back and saw the bamboos and questioned my wife about it then she told me that she did not know the man. Then I sent for my brother’s wife to question about the man and she came and told me that she does not know the man also.
When my brother’s wife arrived, my wife started to talk to her. I told her to go out and she refused then I pushed her outside. As she got outside, she started to pray that nothing should be better for me. I told her to go inside the house and she refused then, I went to her then she held the fence stick then I held up her legs and she fell on the ground and hit her head. I did this by mistake and I did not know that it would be so serious like that. Then I took her to Etinan Hospital on the following day and she was admitted.”
The question is, can it be said to be satisfactorily proved that the appellant intended to kill his wife or to do her grievous harm, or that the assault which he committed on her was of such a nature as to be likely to endanger human life. In our view an intent to kill or to do grievous harm is not established, and there must at least be a doubt whether the assault was of such a nature as to be likely to endanger human life. Mr Nwokedi, Acting D.P P , has not tried to uphold the conviction for murder.
An unlawful killing was amply proved, and the judgment of the Court will be that a verdict of guilty of manslaughter is substituted for the verdict of guilty of murder found by the High Court, and a sentence of seven years’ imprisonment with hard labour is passed in substitution for the sentence passed at the trial.