3PLR – UDOFA V. THE KING
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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UDOFA
V.
THE KING
WEST AFRICAN COURT OF APPEAL, NIGERIA
LAGOS, 1ST MARCH, 1950
CITATIONS
[1956] VIII WACA 30
BEFORE THEIR LORDSHIPS:
VERITY, C.J. (NIGERIA)
RHODES & BAIRAMIAN, J.J.
BETWEEN
- UDOFA UNWA IDIONG
- NKANANG AKPAN UMO
AND
THE KING
REPRESENTATION
- O. Awoyele for Appellants.
Lloyd, Crown Counsel, for Respondents.
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE:- Murder – administration of a certain concoction to the deceased, a pregnant woman, for the purpose of securing abortion, resulting in her death – section 316 (3) of the Criminal Code – Where death is caused by criminal act not likely to endanger human life the person concerned – when manslaughter would be an appropriate charge instead of murder – duty of appellate court to substitute same
CRIMINAL LAW AND PROCEDURE:- Death caused by innocent agent of person knowingly committing a crime – Whether the principal who instigated the agent is criminally responsible and agent innocent – Construction of section 316 (3) of the Criminal Code
PRACTICE AND PROCEDURE:- Nature of Oath administered in Court – Whether a court oath sworn in the name of a pagan deity by a married person rebuts the presumption of monogamous marriage
CHILDREN AND WOMEN LAW:- Women and healthcare options – Murder – Unlawful abortion leading to death of woman – Access to primary and pre-natal care – procurement of abortion through abortificient concoction prepared by a herbalist – Implication for justice administration
CHILDREN AND WOMEN LAW:- Women and Justice administration – Criminal trials and evidence – Rule relating to the competence and compellability of the spouse of a monogamous marriage to give testimony – Presumption of monogamy – Section 161 of the Evidence Ordinance (Cap. 63) – Whether automatic for wife of a Christian marriage who swears on a Bible – Whether inapplicable to a wife who takes judicial oath with a Quran or Ogun – Whether there are forms of monogamous marriage between parties who are not Christians and who would not be sworn on the Bible – Duty of prosecution thereto
HEALTHCARE LAW: Care of pregnant woman – procurement of abortion through abortificient concoction prepared by a herbalist – access to primary and pre-natal care – view of court thereto
RELIGION LAW: Nature of Oath administered in Court – Whether a court oath sworn in the name of a pagan deity by a married person rebuts the presumption of monogamous marriage otherwise attributable to a spouse who swears by the Bible
PRACTICE AND PROCEDURE – EVIDENCE:- Evidence of wife – whether not admissible unless it is proved affirmatively that she is a wife of a non-monogamous marriage
PRACTICE AND PROCEDURE – EVIDENCE:- Admission – When retracted – Whether conviction cannot be sustained on same – how considered by court
PRACTICE AND PROCEDURE:- Criminal proceedings – Evidence of spouse – where a spouse is called as a witness for the prosecution – need for it to be established by evidence that the marriage is non-monogamous
INTERPRETATION OF STATUTE:- Construction of section 316 (3) of the Criminal Code
MAIN JUDGMENT
The following judgment was delivered:
VERITY, C.J.:-
These are appeals by two persons convicted of murder before Hallinan, J., the allegation being that each was concerned in the administration of a certain concoction to the deceased, a pregnant woman, for the purpose of securing abortion, and resulting in her death.
It is submitted on their behalf that there is insufficient admissible evidence to warrant their conviction and particular objection was raised by Counsel at the hearing of the appeal to the admission of the evidence of Unwa Mbobo, who described herself as the wife of the first appellant. Apart from the fact that it appears from the record that this witness was sworn “on Ogun” and that her husband is stated to be a pagan, there is nothing to show that the marriage was other than a monogamous marriage within the meaning of section 161 of the Evidence Ordinance (Cap. 63) or that the witness was not a “wife” as defined by section 2 of the Ordinance, and therefore a competent and compellable witness only upon the application of the first appellant.
This question has been dealt with by this Court in a number of cases. In R. v. Afamodu Laoyo (1) it was said that where a witness was sworn on the Koran she was “ presumably a Mohamedan,” but the Court added “a point of this importance should not be left to presumption.” In R. v. Ajiyola & Others (2) where both the witness and the person charged were sworn on the Bible the Court said “ it must be taken that they are husband and wife of a “Christian marriage and the woman was only a competent witness if called upon the application of the person charged.” In R. v. Ajobodu Afenya (3) it was laid down that it is necessary for the prosecution to show that the marriage is not monogamous and that this cannot be presumed. This decision was followed in R. v. Udon 6 Others (4).
It is clear from these decisions that while the testimony of the spouse of an accused person who is sworn on the Bible will be excluded on the presumption that the marriage was a “Christian marriage” and therefore necessarily monogamous, no contrary presumption arises from the fact that the witness was not sworn on the Bible. The Evidence Ordinance does not define a “ wife” as the wife of a Christian marriage, but of a monogamous marriage, and there may well be forms of monogamous marriage between parties who are not Christians and who would not be sworn on the Bible, as, for example, a marriage under section 27 of the Marriage Ordinance (Cap. 128).
In our view, therefore, in the present case no presumption arises from either the fact that the witness was sworn “on gun” or from the fact that the first appellant is stated to be a pagan. There is no proof that the marriage was not a monogamous marriage; the witness not having been called upon the application of the person charged was not a competent or compellable witness and her evidence was inadmissible.
In view of the earlier cases to which we have referred we might have thought that it would be unnecessary again to deal with this question at length and that care would have been taken, before adducing or admitting such evidence, to see that the foundation for its admission had been laid. Had we so thought, however, it appears that we should have erred. We cannot, therefore, refrain from stressing that it is essential that where a spouse is called as a witness for the prosecution it shall be established by evidence that the marriage is non-monogamous. The absence of such proof will lead to the rejection of the evidence and may lead to an unfortunate miscarriage of justice.
This does not necessarily dispose of these appeals, for it remains to be considered whether, if the evidence wrongly admitted had been excluded, the learned trial judge would inevitably have come to the same conclusion, having regard to the other evidence before him.
It was submitted on behalf of the appellants that the only other evidence upon which the trial judge convicted the appellants was that furnished by the statements made by them to the police and which they thereafter retracted, and it was further submitted on authority of R. v. Ekpo (5) that a conviction cannot be supported only by an extra-judicial confession subsequently retracted. We have examined the record in that case and are of the opinion that the judgment therein cannot be taken as laying down a general rule that in no circumstances can a conviction be supported solely by a retracted confession, but that the dictum therein is related to the facts of that case, in which there was no evidence whatsoever, other than the retracted confession, which implicated the appellant in any way with the commission of the crime. It is not so in the present case, for it is beyond dispute upon the whole of the admissible evidence that the deceased was at one time pregnant, that the first appellant procured the administration of a certain concoction to her by the second appellant and that the deceased died shortly afterwards. These facts are uncontradicted and the sole issue is as to the purpose for which the so-called medicine was administered. It is necessary to examine the statements made by the appellants in order to ascertain this purpose. There can be no doubt, and the learned trial judge had none, that the statements as translated for the use of the Court below, clearly indicated that the concoction was administered for the purpose of procuring an abortion and that both appellants acted with that intention. Upon perusal of the translations (Exhibits D.E.2 and REA), however, we were struck with certain ambiguities appearing on the face thereof and sought to obtain a fresh translation to the end that such ambiguity might be removed. We therefore caused such fresh translations to be made and admitted the evidence of the translator, one whose native language is that in which the original statements were made. The translation furnished in this manner throws a new light at least upon the statement made by the second appellant, for while, according to the original translation, it was apparent that he knew well that the purpose of administering “medicine” to the deceased was to procure abortion, the fresh translation, which we accept as the more accurate, is equally open to the construction that, whatever may have been the intention of the first appellant, the second appellant was unaware that his services as a native doctor were required for any other purpose than to relieve the pain which the deceased was suffering owing to retention of the placenta or “after birth” and that he administered what he believed to be an abortifacient for the purpose of securing its expulsion. This raises a serious doubt as to the intention and purpose of this appellant which should be resolved in his favour, and, had this translation of his statement been before the learned trial judge, then, in the absence of the inadmissible evidence of the first appellant’s wife we do not think that he would inevitably have come to the conclusion that the second appellant acted in pursuance of an unlawful purpose. If he did not act in pursuance of such a purpose, then he would be guilty of no offence, even though his act occasioned the death of the deceased, unless indeed he acted with such criminal negligence as to justify a conviction for manslaughter, of which there is no evidence.
In regard to the first appellant, however, different considerations arise, for there can be no doubt arising from consideration of either of the translations of his statement that his purpose was to procure the abortion, that he succeeded in inducing the second appellant to administer a certain concoction to the deceased, albeit innocently so far as the second appellant was concerned, and that as a result the deceased died. If, therefore, the act of administering the so-called medicine to the deceased was a crime, then the first appellant may properly be held to be guilty of that crime, for it is a well established principle of law that, as stated in Stephen’s Digest of the Criminal Lam (6th Edition, page 30), “whoever commits a crime by an innocent agent is a principal in the first degree.” In the present case, if the second appellant administered the medicine innocently, and the Crown has not established that he did so otherwise, and if, as it appears from the evidence, he did so at the instigation of the first appellant, who had himself an unlawful purpose, then, as was held by Platt, J., in R. v. Clifford (6), it is the same as if the unlawful act (in that case forgery) had been done by the first appellant himself.
We are of the opinion, therefore, that whereas the second appellant has not been shown to be more than an innocent agent, the first appellant, who procured him to administer the medicine, is a principal in the doing of the act in the prosecution of an unlawful purpose.
The final submission of Counsel was, however, that even if the facts were as we have stated, the first appellant was wrongly convicted of murder and should have been found guilty of manslaughter. Counsel cited certain passages in Archbold’s Criminal Pleading (31st Edition, page 880) in which reference is made to certain cases, the reports of which are not available to us. In R. v. Whitmarsh (7), Bigham, J., is stated to have told the jury in a case where the prisoner was charged with the murder of a woman as the result of a felonious operation performed by him upon her that “ if they were of opinion that the deceased died as a result of the prisoners unlawful operation, he was guilty of murder, but added that if they should be of opinion that the prisoner could not, as a reasonable man, have expected death to result, they might find a verdict of manslaughter”. This view is stated to have been followed by Lawrence, J., in R. v. Bottomley (8), and similar directions were given by Avory, J., in R. v. Lumley (9).
It is submitted by Crown Counsel that this case falls within section 316 (3) of the Criminal Code which, in so far as is relevant to the present case, provides that
“ a person who unlawfully kills another … if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life … is guilty of murder.”
The section further provides that in such case-
“ it is immaterial that the offender did not intend to hurt any person.”
While it might appear from the last-mentioned provision that the intention or expectation of the offender is immaterial and that the directions given to the jury in the cases to which we have referred would be inappropriate under the local Code, we are of the opinion that this is not so if effect is given to the precise terms of the section in regard to the nature of the act. It is to be observed that the act must be one of such a nature as to be “ likely to endanger human life,” and we think that an act cannot be said to be likely to have a certain result if a reasonable man would not expect it to have such a result, even though in the event that result ensued.
It is necessary for us to consider, therefore, whether in the circumstances of the present case as established by the evidence, the act of the first appellant was likely to endanger human life in the sense that a reasonable man would expect that it probably would do so.
In the first place there is no sufficiently cogent evidence if indeed there be any evidence at all, as to the nature of the concoction or the likely results of its administration. If the analyst’s certificate (which in the light of its terms is of dubious admissibility) is to be disregarded, there is no evidence as to the nature of the concoction or its probable effects. If, on the other hand, the certificate is to be regarded as evidence of the nature of the concoction, then it would appear that its administration could not reasonably be expected to procure abortion, let alone endanger human life. Even if we are to assume that the second appellant, as a native doctor, had sufficient knowledge of the nature of the leaves selected by him, whatever they may have been, to be aware that they could be effectively used as an abortifacient, there is no evidence whatever that the administration of that particular abortifacient would be likely to endanger human life. The furthest the medical evidence goes in this case is that
“if a drug is administered to a woman who has a pregnancy of three or four months’ duration, this, if strong enough, might cause contractions so strong as to rupture the womb.”
and so cause death, as in this case, from shock and haemorrhage.
On this evidence we are not prepared to hold that the Crown has established beyond reasonable doubt that the act of the appellant was of such a nature as to be likely to endanger human life in the sense in which we have interpreted this phrase, even though, in fact, it occasioned the woman’s death.
The facts proved do not, therefore, in our opinion, fall within section 316 of the Criminal Code. They do, however, constitute an unlawful killing and the first appellant is therefore guilty of manslaughter within the meaning of section 317 of the Code.
The appeals are allowed to this extent, that the conviction of the first appellant for murder is quashed and the sentence of death set aside, but we substitute a verdict that he is guilty of manslaughter and sentence him to five years’ imprisonment.
The conviction of the second appellant is quashed and a verdict of acquittal substituted.
Appeal of second appellant allowed and verdict of acquittal substituted.
Conviction of first appellant of murder quashed and verdict of manslaughter substituted.
