Appeal from conviction by High Court.

Murder, contra. sec. 319 Criminal Code.

Held: Relevant witnesses not having been called and evidence heard

being insufficient to support conviction the appeal is allowed.

The facts are sufficiently set out in the judgment. C. N. S. Pollard for Crown.

Appellant in person.

The appeal was allowed on the 10th August, 1938, and on the 15th August, 1938, the following joint reasons for judgment were delivered :-

KINGDON, C.J., NIGERIA, CAREY AND GRAHAM PAUL, JJ.

The appellant on 27th April, 1938, was by the High Court of the Calabar-Aba Division held at Opobo convicted of the murder of one Akpan Akpan U do Iko and sentenced to death. He applied to this Court for leave to appeal against his conviction. Crown Counsel did not oppose the application and leave to appeal was granted on 10th August, 1938-the appeal being heard on the same date and the conviction quashed. We then intimated that the reasons for our decision would be given later.

The Crown case against the appellant was that he unlawfully killed the deceased at or just outside the deceased's house; and that the killing was without any provocation by the deceased and without any excuse at all.

The appellant's case was that he wounded the deceased under quite different circumstances; that the deceased in company with three of his (deceased's) brothers came to the house of the accused and with· no provocation whatever there attacked him (accused); that in the course of that attack one of the deceased's brothers Udo Akpan Udo Iko with a stick knocked out two of the accused's teeth and that the deceased and his brothers otherwise seriously assaulted him; that the accused, being so beset and angered by th~ unprovoked attack on him, defended himself by picking up a matchet and using it against the people attacking him; and that the deceased wa3 wounded by the accused in these circumstances.

From the evidence it appears that the accused has throughout consistently told the same story, to the Chief of his town, to the Police, and to the Magistrate at the preliminary inquiry. It is Thompson manifest that in an adequate investigation of the charge of murder against the accused the three survivors of the accused's alleged. assailants were not only material but essential witnesses. Yet not one of these three people was called by the Crown. Nor is  there any evidence that any steps were taken to find and call any of  these people though the accused took the police to their mother's Graham house. It is the duty of the Crown to call all known material witnesses, whether in favour of the Crown case or not, and where,as in this case, the Crown had notice of the accused's most material allegation against these three named people it was the clear duty of those responsible for the prosecution to call these three people if the accused's allegation against them was to be contested. As it was, the Court below rejected the sworn allegation of the accused without any of the people concerned being brought forward to deny it and to be subjected to cross-examination by the accused.

The accused says that he voluntarily reported the matter to his chief who advised him to report to the police and that he did so. The Police Constable in charge of the local Police Station was not called to contradict this and on the evidence therefore the accused's statement must be accepted that he voluntarily reported the matter.

So much for the evidence not called by the prosecution.

When one examines the evidence which was called by the prosecution it appears to be quite insufficient to justify the conviction. All the eye-witnesses for the prosecution were members of the deceased's family and one of them (Johnson Akpan Udo Iko) says in regard to the accused " We had heard something " about him and we went and asked him why he had invoked juju " against us." There is not a scrap of evidence that the accused had in fact invoked juju against the deceased's family but if the members of the family, even wrongly, believed that the accused had done so their evidence against the accused must be received with caution. Particularly does this observation apply to the evidence of the deceased's widow Adiaha Akpan who said she knew of no quarrel between the accused and her husband. It does not 'appear from the summing up that the Court below appreciated this caution necessary in regard to the evidence of members of the deceased's family.

The main question of fact was whether the deceased received his fatal wound or wounds in his own house or in the house of the accused. The police witness when recalled by the Court after the accused had given evidence in his defence admitted the vitally important fact-not previously mentioned in his evidence-that there was a trail of blood leading from the accused's house to the deceased's house 300 yards away. This is certainly consistent with the accused's story that the deceased was wounded in the accused's house and then made his way to his own house where he collapsed. In regard to this the learned Judge in the Court below says that it is " hardly possible for one so severely wounded to. " have run unaided-as accused alleges-300 yards to his house "before collapsing." It is unfortunate that the learned Judge did not recall the Doctor on this point instead of hazarding his own' conjecture. There are cases in the Forensic Medicine text books, and many cases which have come before Nigerian Courts, where persons wounded as severely as was the deceased in this case have travelled longer distances than 300 yards before collapsing, so that it is certainly at least very doubtful whether the learned Judge's conjecture is correct. One of the Crown witnesses did say that after being wounded the deceased " ran to the backyard" so even according to the Crown case he retained his power of locomotion.

Again the learned Judge enters the realm of conjecture when he says that" the small traces pf blood in accused's house and on " the road are not consistent with their being shed by one so "severely wounded.'" There is no evidence as to how the deceased was clad. It might be that the cloth or clothes he wore sufficed to absorb the blood and so prevent much blood reaching the ground until he collapsed and lay on the ground possibly in agony. Where he 'did that, one would expect to find large quantities of blood and such quantities were found at the back of the deceased's house where admittedly he did collapse as a' result of his wounds. We do not consider that the evidence offers any adequate explanation of the 300 yards long trail of blood other than the explanation given by the accused's story.

It is very significant that there is no evidence whatever of any trail of blood leading from the spot" where according to the Crown the deceased was wounded to the spot where he collapsed.

The woman Adia Ekpe was called by the accused. She was a most important witness but her evidence occupies only about a dozen lines of the record. She was pushed down by one of the accused's assailants as she entered the accused's ·house in answer to the accused's shouting. It is unfortunate that she was not more closely examined as to her opportunities for seeing what was happening before and after she had been pushed down. She was not asked even' how long she was down. The sketchy evidence of this inadequately examined witness was not in our view in all the circumstances sufficient to justify the learned Judge in rejecting the accused's story as he did, particularly as the Crown witness Johnson Akpan Udo Iko admitted that there was a fight in the accused's house that day; that the fight originated from a hostile visit to the accused's house by. the deceased and his brothers and that it ended by the hostile intruders including the deceased being driven off by the accused with a matchet.

In giving the weight he did to inconsistency between the  evidence of the woman Adia Ekpo and  that of the accused the learned Judge did not in our opinion make due allowance for the Thompson frightened state in which the woman must have been. Attacked  by the violent and angry  (the deceased's brother) and knocked. down, she most probably would get up and run away as quickly as she could, which according to the accused is just what she did. , No wonder if her recollection of exactly what happened is and inaccurate

In all the circumstances to which we have referred we consider  that the Court below was wrong in holding that it was proved beyond any reasonable doubt that the version of the prosecution rather than the version of the accused was true. That being so, and the version of the accused being compatible with the justification of his acts by reason of the provisions of the second paragraph of section 286 of the Criminal Code, he should have been acquitted.

For these reasons we quashed the conviction and sentence and directed a judgment and verdict of acquittal to be entered.