Division: Federal Supreme Court

Date of Judgment: 26th January, 1961

Case Number: FSC 336/1960

Before: Brett, F.J.J.

             Taylor, F.J.J.

             Bairamian F.J.J.

Benson for Appellant.

Nwokedi, Senior Crown Counsel, for Respondent.

Taylor, F.J., delivering the Judgment of the court:-This appeal was dismissed on the 9th January, 1960, and we now give our reasons for doing so.

The appellant was charged with and convicted of the murder of one Akpan Uduak, on or about the 12th day of July, 1960, at the sessions of the High Court of the Calabar Judicial Division held at Ikot Ekpene by Kaine, J.

The facts shortly are that the deceased and the appellant some two years before the incident the subject matter of this appeal had had some dispute over a palm bush, which had been resolved in favour of the deceased. That in spite of this settlement the appellant still threatened the deceased that he would kill the latter if he continued to go to the palm bush. On the day in question the appellant's son died and the deceased, who had attended a meeting, was returning home when the appellant was seen to run out of his house with a hatchet and attack the deceased who was ratcheted to death. There were three eye-witnesses to the crime, to wit: the fourth prosecution witness, who was the wife of the deceased, the fifth and sixth prosecution witnesses, who were the children of the deceased. The appellant denies being the one who killed the deceased, though he admits that the act took place near the fence at the back-yard of his compound.

The learned Trial Judge, after reviewing the evidence, held that:-

As I have said I am satisfied with the evidence of the eye-witnesses that it was the accused who did it.

Learned Counsel for the appellant was unable to find any point of substance that could be urged in favour of the appellant and with this we agree. There is, however, one aspect of the trial to which attention should be drawn, and that is the use made by the learned Trial Judge of the statement made by the appellant's mother to the police, which was exhibit "A" at the hearing. This statement was put in by the prosecution after leave had been obtained to treat the appellant's mother, prosecution witness 3, Adiaha Udo Akang as a hostile witness.

The learned Trial Judge, after making it clear in the passage to which I have made reference that he was satisfied with the evidence of the eye-witnesses and that his findings would have been the same even if the statement was not admitted, yet went on to say a little later on in his Judgment that:-

Although the accused said in his evidence that he did not believe that the deceased had any hand in the death of his son, yet the statement which his mother made to the police revealed that the accused was told by a native doctor that the deceased was responsible.

This is, of course, a misuse of the statement made by the appellant's mother to the police, and in this respect we would like to refer to the case of Regina v. Golder, 1960, 1 W.L.R. 1169, at 1172, where Lord Parker, C.J., said that:-

In the Judgment of this Court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the Jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.

It did not, however, result in any miscarriage of justice for the net result was that the learned Trial Judge gave consideration to a further possible defence though it was not set up by the appellant, i.e. the defence founded on witchcraft.

Appeal dismissed.