The Queen V. Chukwuji Obiasa (1962)

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BAIRAMIAN, F.J

This appeal was allowed at the hearing on the 30th November, 1962, for reasons which will be stated now.

The appellant was convicted of murdering one Ntakpu Ngbanyi on 1st December, 1961, at Okpai in the Warri Judicial Division. The last person Ntakpu was with was one Musa Tarbua, a fishman in the service of one Mangolo Sokara, who was absent from Okpai on that day. Musa went in the evening with Ntakpu in the canoe to the bank of the river. He left Ntakpu in the canoe, and went ashore either to cut or to collect sticks he had cut nearby; he was not long away; he did not hear any shout; but when he came back Ntakpu was not there. He looked for him, but could not find him; a friend helped in the search, without success.

When Sokaro came back and learned of it, he reported to the police; and three policemen arrived at Okpai on the 6th to investigate. For some un-known reasons, they went to the appellant’s house in the evening of the 7th, and made a search, during which they found a cutlass under a basket in the ceiling; he explained that he had it there to be out of his children’s reach. He was not arrested, but his cutlass was retained.

On the following day, about 9 or 10 in the morning, the police collected about forty men of Okpai, and kept them until 11 at night, trying to get a clue from one or another, but to no avail. The police then decided to bring the headman of the Okpai people; and now to quote from the evidence of p.c. Felix Chegwe, the only one who knew the local language:

“At that juncture the accused got up and said there was no need to bring the headman to suffer for what he had not done. The accused then said that he had killed the deceased Ntakpu. He spoke in Aboh which I understand. We arrested accused as a result of what he said. He was charged with murder and cautioned. I recorded his statement in Aboh language.”

That was done between 11 p.m. and midnight, doubtless on the maxim that one should strike while the iron is hot. This is what the translation states:-

About fifteen days ago I observed that my canoe was stolen by one Ntakpu. About eight days ago today I saw Ntakpu and Musa going towards waterside but Musa was about few yards ahead the deceased Ntakpu. So I had to follow the deceased behind. When I got to waterside, I noticed that Musa had already pulled away the canoe they brought ashore leaving the deceased behind, i.e. Ntakpu. It was at this stage, I hit Ntakpu on his oxipot with one stick and he fell down and died. After this, I had to put the dead body in a canoe and pulled away together with the stick I used in killing him to the centre of the river Niger and threw them away.

I never delegated any of these people – Mbanugo, Esumai, Ilenwa George and Exeamili to go and beg Mangolo for anything. The last paragraph suggests that the appellant was asked questions. The word “oxipot”, presumably for “occiput”, the anatomical term for the back of the head, makes one wonder whether Aboh has a special word for the back of the head, whether the appellant said that he hit Ntakpu on the back of the head, or whether the word was used by P.C. Felix Chegwe himself. He introduced into his English translation the words “in the night”, and could not tell the Court below why he added those words which were not in the Abob text.

The defendant gave evidence admitting that he made a statement at the request of the police but repudiating the contents of the confession. The core of the judgment will now be given:-

In the case of R. v. Walter Sykes, 8 Cr. App. R. 233, Ridley, J. said of confessional statements-

I think the Commissioner put it correctly; he said “A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the Police, and then by you and us in Court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?

Applying the test laid down in Sykes’ case I am of the view that there are other circumstances in this case which are consistent with the confessional statement of the accused. There is evidence that the deceased went to the bank of the river with the 3rd Prosecution Witness and has not been seen since then; the 4th Prosecution Witness said he made enquiries in their hometown in Northern Nigeria but the deceased was not there; the scene of crime is near Okpai the hometown of the accused and he therefore has the opportunity of committing the crime; the matchet found in his house is said to have human blood stains; the accused’s confession to the crime in the presence of a crowd and his subsequent taking of Police to the scene of crime and telling them of how he killed the deceased and disposed of the corpse.

On the accused’s own confession coupled with circumstances enumerated above I find him guilty of Murder.

The ground of appeal was, briefly, that the tests in Sykes were not properly applied.

It is true that Ntakpu has not been seen; it is also true that Ose Okatapo, who helped Musa in the search, testified in cross-examination that he had written to Ntakpu’s father at their village in the Northern Region, and had a letter that Ntakpu was not at home; but did not show it to the Police.

To say that the appellant has the opportunity of killing Ntakpu merely because the appellant lived at Okpai does not advance matters: any number of other men, either an Okapi, or a Bachama, the tribe to which Ntakpu be-longed, of which some lived outside Okpai by the bank, had an equal opportunity.

As for the matchet, to count that against the appellant was a grievous mistake, particularly in view of what the judgment said earlier on the point that, although the Crown evidence was that it was dispatched to the pathologist on the 12th, the report from him was that it was received on the 10th by registered post. In the earlier portion of the judgment, it was said:–

“The error in dating might be typographical as recorded in exhibit B. In any case the accused is not prejudiced thereby.” But the report that the matchet had human bloodstains on it is used as a circumstance against the appellant. Why is the 10th a typographical error? The point was in favour of the appellant, and in the absence of evidence from the pathologist that there had been a mistake in writing the 10th, no mention of the matches should have been made as a circumstance against the appellant. Moreover, the report says that the matches was received by registered post; but the evidence of p.c. Felix Chegwe is that a policeman was detailed to take it to the pathologist. It is not unlikely in the circumstances that the re-port of the Pathologist referred to a matchet in another case.

To come now to the confession. It is true that there was a crowd when the confession is said to have been made, but it is also true that no person was called as a witness to confirm the fact that the appellant made any confession. The president of the Customary Court was there, but was not asked to countersign the confession, nor called as a witness. For what occurred on the following day, when the appellant was taken to the river, one has to depend on what p.c. Felix Chegwe testified.

Before the hearing of the appeal began, learned counsel for the Crown informed the Court that he could not support the conviction. The circumstances in which the confession was said to have been made left much to be desired. What the trial Judge regarded as props within the statement in Sykes were, with respect, no props at all. Musa said clearly in his evidence:–

“I asked the deceased to wait in the canoe”: the confession states:-

“I noticed that Musa had already pulled away the canoe they brought ashore leaving the deceased behind, i.e. Ntakpu”.

On the one point on which there was evidence to check the confession by, it left Ntakpu without the canoe on land, whilst Musa left him in the canoe.

The Court would like the police witnesses in this case, as well as other members of the police, to bear in mind that they have a duty to test the truth of the facts stated in confession as far as they can, and should not rest satisfied when it is made. In this case, they made no attempt to contact the police in the Northern Region, to find out whether Ntakpu did or did not return home. What is more, they do not seem to have investigated whether there was any truth in the confession that the appellant’s canoe had been stolen a forthnight before Ntakpu disappeared. The appellant is a farmer- it is noted above his statement and he is a man of Okpia. That story about Ntakpu stealing his canoe furnishes the motive for his stalking Ntakpu and Musa, in the hope that he might have a chance to knock Ntakpu down without Musa seeing him. There is no evidence that the appellant had a canoe, or that it had been stolen. If the police made enquiries and learnt that he had no canoe, or that no canoe of his had been stolen, then, they had a duty to say so in their evidence; if they did not make any e

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Other Citation: (1962) LCN/1001(SC)