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F.S.C. 460/1962

6TH MAY, 1963.







JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)




CRIMINAL LAW AND PROCEDURE – Murder – Conviction based on contradictory statements of accused – Propriety of.

CRIMINAL LAW AND PROCEDURE – Murder – Evidence which falls short of confession – Whether capable of proving charge.

PRACTICE AND PROCEDURE – EVIDENCE – Confession – Evidence falling short of confession – Whether capable of proving charge.



  1. A. Cole -for the Appellant.

I.C.E. Ihejetoh, Crown Counsel- for the Respondent.


TAYLOR, F.J. (Delivering the Judgment of the Court):   The appellant, Chukwu Nwanjoku, was one of three accused persons charged with the mur­der of one Ovoba Enyim. The trial was held at the Abakaliki Sessions of the High Court of the Eastern Region presided over by Allagoa, Ag. J.


The deceased, Ovoba Enyim, on the fatal night, slept outside his house in order to watch his yam bam which was roughly five yards away from his house. His wife slept in the house on the night in question. She gave evi­dence that while she was sleeping she heard her husband exclaim “My father”. She got up to see what had happened, and three men rushed into the house. Out of these three men she was able to identify only one and that was the 3rd accused. She gave evidence as to the part played by the three persons that night and the articles stolen by them. She was held by the neck, and her arms were tied together; she was unable to raise an alarm. After the three persons had run away, she went to look for her husband, Ovoba Enyim, and found him dead near the kitchen with injuries round his neck resembling matchet wounds. The 4th Prosecution Witness gave evidence that in the same month that the deceased died, the latter came to see him and they went to the house of the present appellant, accompanied also by the 2nd Prosecu­tion Witness who was the father of the deceased; that the appellant accused the deceased of having had carnal knowledge of his wife; that the appellant took hold of certain articles of the deceased and further refused to drink the palm wine that had been taken to his house for this purpose.


The 3rd Prosecution Witness, a Police Constable, deposed that during the investigations:­


“I invited 2nd accused; 1st accused happened to be around. 2nd accused said four days before deceased died that 1st accused came to his house and wanted him to burgle the house of de­ceased because deceased was wealthy. 1st accused therefore in­tervened and said that it was he and 2nd accused who murdered the deceased.”

The 7th Prosecution Witness, the District Superintendent of Police, Akure, before whom the 2nd accused was taken for the purpose of confirm­ing the statements he, the second accused, had made to the 5th Prosecution Witness, gave evidence that when the 1st and 2nd accused were brought be­fore him, the former, i.e. the present appellant, remarked that:­


“Is it not true that both of us used to go out to steal together.’ `2nd Accused said No.’ “


The appellant, in his Statement to the Police, exhibit “C1” stated inter alia that:­


“It was Ovoba Ezamgbo and I who murdered the deceased Ovoba Enyim. It was Ovoba Ezamgbo who held the deceased by the throat until he died. I was present. But I took no part in kil­ling the deceased.


On Izziogo market day about seven days ago being 13. 2. 62 at about 9 p.m. one Ovoba Ezamgbo came to my house in com­pany of other three persons whom I do not know at all.”


A little later on the statement reads thus:­


“There Ovoba Ezamgbo told me that they were going to the de­ceased’s house and that he Ovoba Ezamgbo would hold the de­ceased by the throat until he died. I told Ovoba Ezamgbo not to kill but to steal any of the deceased’s property. Ovoba Ezamgbo and the other three men left my house to the deceased’s house. I did not go with them.”


At the trial, the present appellant did not give evidence but his Counsel took further part in the proceedings by cross-examining the 2nd accused who in his examination-in-chief had deposed that he did not go anywhere with the present appellant on the night in question. Under cross-examination he stated that:­


“I told the 5th Prosecution Witness that 4 days before the inci­dent that the 1st accused invited me to go with him to steal in the house of the deceased but that I declined the invitation.”


The learned trial Judge found the 2nd and 3rd accused persons Not Guilty on the evidence before him and in the case of the present appellant he held inter alia that :­


“The case against 1st accused is quite clear. First of all he admit­ted he murdered the deceased.”


After quoting exhibit “C1” in detail the trial Judge goes on to say that:


”In one breath he states he was present and in another breath he states he did not go with the others to the deceased’s house. On this point I accept the suggestion of his Counsel made to 2nd ac­cused under cross-examination that he (1st accused) went to the house of the deceased on the night of the 14th February, to steal, and I find that he did not only steal but with other persons un­known strangled the deceased to death.”


With the greatest respect to the learned trial Judge we find it difficult to see how a question put by learned Counsel, divorced of the answer to it, can be accepted by the trial Judge in effect as evidence adduced in the case. In short, the evidence against the appellant rests solely on contradictory state­ments made by himself.


Mr. Cole, learned Counsel for the appellant argued that at the worst the evidence might be sufficient evidence of a confession on a charge of stealing, but certainly not on a charge of murder. A confession is defined in S. 27(1) of the Evidence Ordinance as :­


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


In our view there is nothing in the statement, exhibit “C1” when read as a whole or in the evidence adduced by the other witnesses which can amount to a confession in law by the appellant that he committed the crime of mur­der of the deceased by strangulation. Outside exhibit C1 and the oral state­ments said to have been made by the appellant to the 3rd and 7th Prosecution Witnesses, there was no other evidence in any way connecting the ap­pellant with the crime.


It is in our view most unsafe to convict the appellant of the capital crime of murder on evidence which fell short of being a confession of that crime. Mr.. Ihetejoh, who appeared for the respondent, rightly in our view, was unable to support the conviction.


For the reasons already given we allowed this appeal on the 4th April 1963 when we indicated that we would put our reasons for so doing into writ­ing later on. The conviction and sentence of death passed on the appellant were set aside and a verdict of Not Guilty entered.


BRETT, F.J.:         I concur.


COKER, AG. F.J.: I concur.


Appeal Allowed.



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