v.
 

 

Appeal Court 23rd March, 1940     Appeal from conviction by the High Court.

Murder-poisoned arrow alleged cause of death-Not an Exhibit­ Assumptions by trial Judge that (a) arrow was poisoned (b) substance employed was strophantus-medical evidence, based on text-book and symptoms, described by inexpert witnesses­ inadmissibility of evidence of incriminating statements inter­preted and not confirmed and established by persons acting as interpreters-Misdirection in accepting them held in the circumstances fatal.

Held: Appeal allowed and conviction and sentence quashed. The judgment sets out the facts in full.

D. Hagley for Crown.

J. E. David for Appellant.

The following joint judgment was delivered :-

KINGDON, c.J., NIGERIA, CAREY AND BROOKE, 11.

This was an appeal from a conviction by the High Court at Bamenda, in the Cameroons under British Mandate, on a charge of murder.

The appeal was allowed by this Court for the reasons hereinafter stated.

The facts appearing from the record are that a cow belonging to a Bororo Fulani one Kili, had been killed with a view to the theft of the carcase. Abdullai, an ex-herdsman of Kili, informed one Shonte, who was the person who dealt with the Fulani in regard to any meat for sale, of the meat being available and Shonte organized a gang of whom the deceased was one to go the same night to fetch the carcase. In the meanwhile Kili had discovered his dead beast and had decided to organize a party to lie in Wait for the thieves, when they would come by night to remove the carcase. The appellant was one of Kili's party which numbered five Fulani. Kili and the appellant, if not the whole party, were armed with bows and arrows. When that night the thieves were in the vicinity of where the dead cow lay Kili's party appeared on the scene and thereupon the thieves dispersed, running in different directions. The appellant shot aI arrow either after those in retreat or according to his own story, towards two of them that he was pursuing, when they turned and chased him with matchets and were overtaking him. Kili's men caught one of the thieves and the others reported to Shonte who, on learning of what had happened, extracted an arrow head from the shoulder of the deceased and went to claim compensation from Kili, taking with him Abdullai whom he accused of causing the trouble. About 36 hours after the conflict occurred, Lotsi the wounded man died and according to the medical evidence, the cause of death was some poisoning in the wound in the shoulder wherefrom the arrow-head was removed. The wound in itself was not sufficient to cause death. There was evidence of some deposit at the back of the barbs on the arrow-head removed from the shoulder of Lotsi, the deceased, though there is no proof of what that deposit was. The appellant admitted that some of the arrows in his quiver were poisoned but he did not know if the one he fired was a poisoned one or not. Kili, in evidence, said all his party were armed with bows and arrows, but on the other members denying that fact in evidence, he was recalled and then said only he and the appellant carried bows and arrows. There seems to be some question as to whether or not Kili stated he fired an arrow that night. On a report being lodged at Bamenda the appellant was arrested. A preliminary investigation was held and the bows and arrows of Kili and the appellant and the arrow-head said to have been extracted from the shoulder of the deceased were produced thereat, but, seemingly, were not made exhibits. At the trial of the appellant none of the bows and arrows were forth­coming. The arrows of the appellant, or some of them, and the arrow-head taken from Lotsi's shoulder and retained by Shonte until produced at the preliminary investigation, had, it would seem, been sent to the Government Analyst and had not been returned at the time of the trial. The learned trial Judge assumed that the arrow-head removed from Lotsi's shoulder was poisoned and he found that the appellant fired that arrow without justification and thereby caused Lotsi's death. A further assumption of the learned trial Judge would seem to be that the substance employed to poison the arrow was strophantus, the medical evidence having been on the authority of a text-book by Manson Bahr, that strophantus is commonly used as arrow poison in West Africa and the symptoms of such poisoning, as defined by the medical witness, having been confirmed as existent in the case of the deceased by certain uneducated Africans, though in point of fact, as regards time alone. the medical evidence was that death from such poisoning would ensue in four hours, whereas the death of Lotsi occurred thirty-six hours after the wounding. The learned trial Judge did not believe that the appellant was attacked or that he fired the arrow in self­defence.

The grounds of appeal as amended and argued by Counsel allotted to the appellant were ;-

1. That the conviction is against the weight of evidence.

2. That the learned Judge misdirected himself in that :­(1) There was no evidence that accused fired the arrow, (2) No evidence that the arrow was poisoned.

(3) The particular arrow was not tendered in evidence, (4) The evidence does not prove murder.

It is abundantly clear from the record that the learned trial Judge accepted the evidence of the twelfth and thirteenth, witnesses for the prosecution as to incriminating statements alleged to have been made by the appellant when those witnesses testified to what was alleged to have been interpreted by persons whose evidence as to the correct interpretation was not called. The twelfth witness was the policeman who says he charged and cautioned the appellant and took his statement; all through an interpreter, one Isa. Isa was not called as a witness, similarly Moku, the thirteenth witness says Mbili the Bororo Headman interpreted for him. Mbili was not called, or, if he is the same person as Kili, which is possible, he was not asked one word as to his interpretation for Moku and the appellant. The appellant in evidence before the learned trial Judge said he recognised as his the arrow-head shown to him at Bamenda, which was said to have been taken out of Lotsi's shoulder, because he was short of an arrow, but that as he didn't see the shaft, he could not be certain.

It seemed to us that this failure on the part of the trial Judge to appreciate the inadmissibility as evidence of alleged statements of the appellant, when such statements were not confirmed and e5tablished by the persons acting as interpreters, was fatal to the conviction herein in that the learned trial Judge misdirected himself in accepting such statements as having been proved.

The position was that there was no arrow-head or arrow in evidence and there was no proof that it was a poisoned arrow shot by the appellant that caused the death of the deceased. In these circumstances, the conviction could not be allowed to stand.