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Appeal from conviction by the High Court.

Murder contra section 319 of the Criminal Code-Failure to 1'dentify body fatal to conviction.

Held: (I) Failure to identify the body examined by a medical witness as the one found by other witnesses is fatal to a conviction.

(2) The fact that the wife of an accused person called by the Crown is sworn on the Koran and presumably a Mohammedan is not sufficient to show she was not the wife of a monogamous marriage. That fact should be definitely given in evidence.

The facts are sufficiently set out in the judgment:

I. F. Cameron for 1st Appellant. O. O. Alakija for 2nd Appellant.

D. Hagley for Crown.

The appeal was allowed on the 17th January, 1940 and on the 23rd January, 1940 the following joint reasons for judgment were delivered :-

KINGDON, c.]., NIGERIA, BUTLER LLOYD AND CAREY, JJ.

The appellants in this case were convicted by Ames, Assistant Judge, sitting in the High Court of the Ibadan Division 'of the murder of an unknown woman at Oyo.

Shortly the facts are that the body of an unknown woman was found about 11/2 miles from Lunku. The Sergeant of the Native Administration police who was sent to get it described it as on the road lying on its back" there was a wound on front of head, another wound on cheek" The Native Administration policeman who was first sent to the spot says the corpse was naked and had a cut on forehead and left arm and right cheek. Another man named Elekuru who went with the Native Administration Sergeant and policeman describes the body as smelling, with wound on forehead and both cheeks and left arm and private part; the three men mentioned took the body to the Adeoyo hospital. This was on the 15th July, 1939.

On the same date Dr. Dale, Medical Officer in charge of the hospital, held a post mortem there on an unknown woman, but he did not know who brought in the body on which he performed the post mortem. The results of his examination are given in his evidence thus-::-

" There were wounds on both cheeks each about three inches long and a wound on the forehead about six inches long with an extensive fracture of the bone beneath it. A large piece of bone had been driven into the brain from this wound on the forehead and the brain was extensively damaged. In my opinion this injury was the cause of death."

As a result of investigation by the Native Administration police the two appellants were arrested and charged with the murder of the unknown woman whose body was found on the road. As already recorded they were convicted and sentenced to death.

There is a number of highly unsatisfactory points in this case, of which the most striking is the failure to identify the body examined by the Doctor as the. one found by the Crown witnesses. The learned Trial Judge saw this difficulty and refers to it at length in his judgment and even describes the' point as one of importance. Our only comment on this is that we think the point was not only important but was vital. Without the medical evidence we can find nowhere in the record any sufficient evidence to prove that the death of the woman whose body was found by the Crown witnesses was due to violence. The prosecution thus failed to prove one of the essential matters which must be proved before a conviction for murder can result, and on this ground alone the convictions could' not be' allowed to stand. Apart" from this fatal defect in the evidence, short reference may be made to some of the other unsatisfactory features of the case.

First of all the investigation by the Native Administration police appears to have been most inadequate. They seem to have been more concerned 'with extracting confession from the accused than in making genuine investigations. It is almost inconceivable that the' identity of the deceased woman could not have been established by proper enquiries.

Another point is that much unsatisfactory evidence was given as ~o the "alleged mutilation of the private parts of the corpse. Elekuru (videsupra) speaks of seeing a wound on the part, but the two police witnesses who were with him do not do so. In this connection the Native Administration police alleged a confession by the first appellant that he had removed the private parts for the purpose of juju-thus a motive for the crime was provided. The Trial Judge quite rightly found that it was not proved that the body was mutilated by removal of some part of the private part. In this connection it is worth noting that the Doctor makes no mention of finding signs of mutilation of the private parts of the body on which he held a post mortem. This indicates one of three things, namely either that the body which he examined was not the body of the woman of whose murder the appellants were convicted, or that his examination was inadequate, or that some of the police evidence is concocted. In any event the matter is left without any satisfactory explanation. Another unsatisfactory feature of the case is thus referred to by the Trial Judge-

" Also two policemen went to bring back the body and, as they said searched round about • for weapons' without finding a cloth and stick or club, which were produced in Court and said to have been found there subsequently.

" When this cloth and club were thus subsequently found the police who went .and found them were not those who had gone before while the body was still there. They had no knowledge, of themselves, as to where they were o go and search: and the place was described to them at the Police Station; and it was not thought necessary to send with them anyone who had seen the body there. Consequently, although this cloth and the stick have been produced before me, there is no one who can swear that they were found near where the body had been found."

Another minor point is that the wife of the 2nd accused was called as a witness for the prosecution without it being definitely given in evidence that she was not the wife of a monogamous marriage. It is true that she was sworn on the Koran and was therefore presumably a Mohammedan: but a point of this importance should not be left to presumption.

The Trial Judge seems to have convicted the 1st appellant mainly as the result of an incident which occurred in Court during the trial, which, in his view, amounted to an admission of murder by the 1st accused. The Judge was entitled, just as a Jury would have been, to take into consideration such an occurrence in the course of the trial, but even this cannot exempt the prosecution from discharging the onus of proving the cause of death.