1.       EDE OKP ALU

                                2.       UDU NWOZI OF Nealo AND TWO OTHERS      Appellant.

 

 Murder-reference by Officer Administering of the Government under section 22 West African Court of Appeal Ordinance, 1933-admissible evidence will not secure quashing the other credible evidence sufficient to support conviction exists­ misdirection in law by trial Judge-where person charged with murder not proved to be actual killer provisions of section 7 Criminal Code must be invoked-not invoke  by trial Judge but no miscarriage of justice followed-proviso to section 10 (1) of West African Court of Appeal Ordinance invoked.

The facts. of this case are sufficiently set out in the judgment.

Appellant not present and not represented.

A. W. Sayle for Crown.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, WEBBER, C.J., SIERRA LEONE, AND BUTLER-LLOYD, .J.

In this case four accused were tried before the High Court of the Enugu Division for murder; the last two were discharged at the close of the case for the prosecution the first two were convicted. The whole case of the conviction of the second accused, named Udu Nwozi, has been referred to this Court by the Officer Administering the Government under the provisions of section 22 of the 'Vest African Court of Appeal Ordinance, 1933, in order that it may be heard and determined by the Court as if it were an appeal by the said Udu Nwozi against his conviction.

Udu Nwozi, who is hereinafter referred to as the appellant, did not wish to appear before this Court and was not represented, but the Court had before it his petition to the Governor, which is merely a prayer for the exercise of the prerogative of mercy. The learned Crown Counsel, who appeared on behalf of the Crown, assisted the Court by putting before it everything which~ in his opinion, could possibly be urged on behalf of the appellant.

The case is not without difficulty beca1).se (a) it was not proved, and the Court below did not find as a fact, that the appellant actually killed the murdered in an himself and (b) a certain amount of hearsay, and therefore inadmissible evidence was wrongly admitted by the Court below; and (c) the summing up contains a clear misdirection upon the law.

As to (a) there are, of course, many circumstances in which a man can be guilty of murder without actually killing the victim with his own hands; such cases always require great care at the trial and on appeal should receive the closest scrutiny. If the crime is brought home a murderer of this class is frequently equally as blameworthy as, or more blameworthy than, the actual killer. this applies to the present appellant. the point is more fully dealt with later under (c).

As to ( b) this Court will not as a general rule quash a conviction merely on the ground that some evidence has been wrongly admitted. against an accused person, provided that there is other credible evidence which is sufficient to support the conviction. In this case the other such evidence is amply sufficient. Indeed the facts are practically admitted by the appellant. There will therefore be no interference with the conviction on this ground.

As to (c) the passage referred to is paragraph 17 of the summing up which reads:-

" 17. Both prisoners rely upon the defence that it was " not their hand which struck the fatal blow and they were " careful not to be on the actual scene when it was struck. " In my view, this defence, in, the light of the facts set fort. " above, cannot avail. At the least they must both be held " to be principal,; in the second degree, for they were both, at " least, constructively present when the crime was committed. " Even if they were absent, the provisions of section 7 of the " Criminal Code might be invoked with the same result, but "that, in my opinion, is unnecessary. I accordingly find " both prisoners guilty " .

As to this, in the first place the expression "principal,; in the second degree", though having a recognised meaning in English law is not used in Chapter U of the Nigerian Criminal Code which deals with" Parties to Offences" and consequently has no actual meaning in Nigerian law. It should be avoided. But this is only a matter of name and unimportant.

The material misdirection is to the effect that it was not, in the trial ,Judge' s opinion, necessary to invoke the provisions of section 7 of the Criminal Code in order to pronounce the appellant guilty. This opinion is clearly wrong for under the law of Nigeria before an accused person can be convicted of murder, either it must be found as a fact that he actually killed a person or the Provisions of section 7 (b), (c) or (d) of the Criminal Code must be invoked. In this case the trial ,Judge did not, and on the facts proved could not, find as a fact that the appellant actually killed the deceased, t11erefore the provision of section 7 of the Criminal Code must be invoked under one of the headings (b), (c) or (d).