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Appeal from conviction by High Court.

Murder' contra. sec. 319 Criminal Code-Four persons jointly charged with murdering three others-Each murder separate charge at same trial-Law of Nigeria, differing from English Law, excludes joining any other charge (whether murder or otherwise) with murder charge-insufficient corroborative evi(1ence of death.

Held: Appeal allowed, conviction quashed.

There is no need to set out the facts.

Cases referred to:-

R. v. Jones, 13 C.A.R. 86 j 1918 2 K.B. 416.

R. v. Davis, 26 C.A.R. 95.

Appellant in person.

C. w. Reece for Crown.

The following joint judgment was delivered: KINGDON, C.J., NIGERIA, BUTLER LLOYD AND BAKER, JJ.

The appellant was charged jointly with three other men before Pearson, Assistant Judge, in the High Court of the Enugu. Onitsha Judicial Division with having murdered three persons, each of the three alleged murders being made the subject of a separate charge at the same trial.

The three charges were as follows:-

(1) :Murder, contra. section 319 of the Criminal Code.

Particulars

OBI BEIWM, DIKU OWANG, OTU OI{WA BEKUM and EBA ODU in the month of April, 1940, in the Province of Ogoja, did murder AGBORA ATAM.

(2) Murder, Contra. section 319 of the Criminal Code.

Particulars

OBI BEKUM, DlKU OWANG, OTU OJ{WA BEKUM and EBA ODU at the same time and place did murder an unknown Munchi man.

(3) Murder, contra. section 319 of the Criminal Code.

Particulars

OBI BEKUM, DlKU OWANG, OTU OJ{WA BEKUM and EBA ODU at the same time and place did murder an unknown Munchi man.

It will be observed that the second and third charges are in identical terms, the man alleged to have been murdered being in each case, described as " an unknown Munchi man." The story of the prosecution was that the four accused together with a fifth man named Boke Bissong conspired together to kill Agbora A tam and the two unknown Munchi men in order to rob them of a box containing money and other things; that they carried out their plan by attacking the three unsuspecting men on the main road from Ogoja to Ikom, killed all three and divided the spoil; that the bodies of the two unknown Munchi men were thrown into a shallow stream of running water, whilst the body of Agbora A tam (who was last seen alive running away wounded into the' bush) was seen a month later in the bush by Boke Hissong; that a month later Hoke Hissong and the four accused threw the bone,; of Agbora Atam into the river, all except, the head which was hung in a tree; and that four months later Boke Bissong took the head and hid it in the bottom of an Ikpung-' Nkpa' tree, where it was' subsequently found by the police.

The principal evidence called to support this story was that of Boke Bissong himself who was called as the eleventh witness for the prosecution' He was of course, an accomplice and his evidence required corroboration. If it had been properly corroborated, it would have been sl.1fficient to warrant the conviction of all four accused of all three murders. The learned trial Judge. however. held at the close of, the case for the prosecution, that there was not sufficient evidence against the first and second accused and discharged them forthwith. He called upon the third and fourth accused for their defence. After hearing it, the Judge held that in the case of the fourth accused there was not sufficient corroborative evidence of homicide and discharged him. The Judge, however, found sufficient corroboration as against the third accused, and recorded the following findings:-

" Find 3rd accused I Not Guilty.

II Guilty.

III Not Guilty."

In other words the Judge acquitted the third accused on the first charge of murdering Agbora Atam, convicted him on the second charge of murdering " an unknown Munchi man" and acquitted him on the third charge of murdering " an unknown Munchi man." Against the conviction upon the second charge the third accused appealed to this Court.

At the hearing of the appeal, Counsel for the Crown intimated that he would not seek to uphold the conviction, and we gave formal judgment allowing the appeal.

There are, in our view, two reasons, each of them sufficient in itself, which necessitated the quashing of this conviction.

The first is that the whole trial was bad for irregularity by the joinder of the three charges at the one trial. The Nigerian Law on this point is materially different from the English Law. In England it is a rule of caution that counts charging other offences should not be inserted in an indictment for murder. (Rex 17. Jones, 13 Cr. App. R. 86 j 1918 2 K.B. 416), and the rule applies also to the joinder of more than one charge of murder in the same indictment. (Rea v. Davis 26 Cr. App R. 95). But if this rule of caution is disregarded, a conviction resulting at the trial will not necessarily be quashed when the accused has not in fact been prejudiced by the joinder.

In Nigeria, however, there is an express statutory prohibition against such joinder. Rule 3 (1) in the First Schedule to the Criminal Procedure Ordinance (Cap. 20) reads:-

"Charges for any offences, whether felonies or " misdemeanours or simple offences, may be joind in the same " charge or information if those charges are founded on the " same facts, or form or are a part of a series of offences of " the same or a similar character. Provided that no other " charge shall be joined with a charge of murder."

and by section 28 of the Ordinance that rule has the same effect as if it were enacted in the ordinance itself. we read the proviso to the rule as meaning that no other charge (whether another charge of murder or a charge for a different offence) shall be joined with a charge for murder. The violation of this statutory provision must, of itself, vitiate the conviction. But even if the law in Nigeria were the same as in England we should have felt compelled in this case to hold that the joinder so prejudiced the defence that the conviction could not stand. In the first place the joinder of two counts, 'each in identical terms, alleging the murder of an unknown man must inevitably prejudice the defence. To demonstrate this it is only necessary to point out that no one knows to this day which of two men the appellant has been convicted of murdering. And in the second place the joinder in fact led, as will hereinafter appear, to confusion at the trial in regard to the respective bodies.

The second reason necessitating the quashing of the conviction is that there was in our view no corroboration of the evidence of the eleventh witness alleging the murder of the two Munchi men, and the learned trial Judge found corroboration where none existed.

At the hearing of the appeal, counsel for the Crown intimated that he would not seek to uphold the conviction, and we gave formal judgment allowing the appeal.

There are, in our view, two reasons, each of them sufficient in itself, which necessitated the quashing of this conviction.

The first is that the whole trial was bad for irregularity by the joinder of the three charges at the one trial. The Nigerian Law on this point is materially different from the English Law. In England it is a rule of caution that counts charging other offences should not be inserted in an indictment for murder. (Rex 1). Jones, ]3 Cr. App. R. 86; 19182 K.B. 416), and the rule applies also to the joinder of more than one charge of murder in the same indictment. (Rex v. Davis 26 Cr. App R. 95). But if this rule of caution is disregarded, a conviction resulting at the trial will not necessarily be quashed when the accused has not in fact been prejudiced by the joinder.

In Nigeria, however, there is an express statutory prohibition against such joinder. Rule 3 (1) in the First Schedule to the Criminal Procedure Ordinance (Cap. 20) reads:-

and by section 28 of the Ordinance that rule has the same effect as if it were enacted in the ordinance itself. 'Ve read the proviso to the rule as meaning that no other charge (whether another charge of murder or a charge for a different offence) shall be joined with a charge for murder. The violation of this statutory provision must, of itself, vitiate the conviction. But even if the law in Nigeria were the same as in England we should have felt compelled in thiR case to hold that the joinder so prejudiced the defence that the conviction could not stand. In the first place the joinder of two counts, each in identical terms, alleging the murder of an unknown man must inevitably prejudice the defence. To demonstrate this it is only necessary to point out that no one knows to this day which of two men the appellant has been convicted of murdering. And in the second place the joinder in fact led, as will hereinafter appear, to confusion at the trial in regard to the respective bodies.

In most cases where the question of corroboration arises the Rex question is " Is there independent testimony which affects the accused by tending to connect him with the crime?" But it is also essential that there should be some evidence, direct or circumstantial, which confirms the evidence given by the accomplice that the crime has been committed. It is that vital evidence which is lacking in the present case, for, apart from the evidence of the eleventh witness, there is no sworn evidence which proves that either of the unknown Munchi men is dead. There is the unsworn statement of the fourteenth witness, the child Ayi Obi, who says she saw two bodies in the stream; but the Judge, rightly in our view, disregarded her statement. It is clear that the necessity of corroborative evidence proving the death of the Munchi men was present to the learned trial Judge's mind, for he acquitted the fourth accused expressly because such evidence was lacking. But in the case of the appellant he found such evidence in two places.

First the thirteenth witness, wife of the appellant swore

" In the evening I asked my husband why he had driven us back. He (third accused) said they had been killing some people. "

This the Judge held to be sufficient corroboration in the case of the third accused. In our view it is no corroboration at all of the death of the Munchi men. It is far too :.vague and does not indicate or suggest that any particular individual is dead. Secondly the learned trial Judge records •• But the absence of corpus delicti is not fatal to the prosecution, if the actual slaying can otherwise be proved-Halsbury 2nd -Edition Volume 9 paragraph 768. And here we have evidence of one dead body being seen at the locus at the material time--tenth witness." But it is perfectly clear from the evidence that, if the body seen by the tenth witness was the body of any of the three men alleged to have been murdered, it was the body of Agbora Atam; it certainly was not the body of either of the Munchi men. The Judge then, owing no doubt to the confusion created by the joinder of charges, treated evidence about the body of one man as confirming the allegation that another was dead. The evidence of the tenth witness was, in fact, quite useless to confirm the death of either of the Munchi men.

These are the reasons which led us to quash the conviction of the appellant upon the charge of murdering one of the unknown Munchi men.