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REX
V.
BANG WEYEKU
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
12TH DAY OF JULY, 1943
2PLR/1943/40 (WACA)
OTHER CITATION(S)
2PLR/1943/40 (WACA)
(1943) IX WACA PP. 195 – 196
LEX (1943) — WACA PP. 195 – 196
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BAKER, J.
BROOKE, J.
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BETWEEN:
REX — Respondent
AND
BANG WEYEKU — Appellant
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REPRESENTATION
E. H. Hunter — for Respondent
L. Odunsi — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Murder — Proof of — Evidence— Admissibility of statement of deceased in absence of accused — Dying declaration — Res gesta — Proper treatment of
CRIMINAL LAW AND PROCEDURE:- Verdict — Verdict based primarily on inadmissible evidence — Where without such evidence same verdict not inevitable — Legal effect
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CASE SUMMARY
On a charge of murder the principal evidence against the accused was that deceased shortly after he had been stabbed said “Bang has shot me.” Accused was not present. There was no evidence that deceased believed himself in danger of death. There was other evidence to connect the accused with the crime, but it was by no means conclusive. The trial Judge admitted the evidence of deceased’s statement and it was primarily on that evidence that accused was convicted.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held, the evidence of the deceased’s statement was inadmissible, whether as a dying declaration or as part of the res gesta and it was impossible to say that without this evidence the trial Judge must inevitably have come to the same conclusion as he did, the appeal was allowed.
Case referred to:-
Rex. v. Bedingfield (14 Cos: 341).
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, BAKER AND BROOKE, JJ.
In this case the appellant was convicted in the High Court of the Calabar-Aba Judicial Division sitting at Bamenda in the British Cameroons of the murder of one Tata Ngawe by stabbing him in the stomach with a sharpened elephant grass stem.
The principal evidence against the appellant was that of several witnesses that Tata shortly after he was stabbed said “Bang has shot me” or words to that effect. This evidence was admitted by the learned Trial Judge and it is evident that it was primarily upon this evidence that he convicted the appellant. We are of opinion, however, that all the evidence of what the deceased said implicating the appellant was wrongly admitted.
The deceased had only a small wound and there is nothing to indicate that he believed himself to be in danger of death; the evidence was therefore, not admissible as a dying declaration. Further the statements were clearly not part of the res gesta as they were made an appreciable time after the actual wound was inflicted and not in the presence of the appellant. Upon this point in evidence of a statement made by a deceased person in such circumstances we are of opinion that the case of Reg. v. Bedingfield (14 Cox. 341) must be taken as the guide as to the law. We find it impossible to say that, apart from this inadmissible evidence, the learned Trial Judge must inevitably have come to the same conclusion as he did, for although there is other evidence to connect the appellant with the crime, it is by no means conclusive.
For these reasons the appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered.
The appellant is discharged.