–
UDO NDO ALIAS UDO UDO OBOT
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
30TH DAY OF OCTOBER, 1953
APPEAL NO. 209/1953
LEX (1953) – XIV WACA 352 – 353
OTHER CITATION(S)
2PLR/1952/75 (WACA)
(1953) XIV WACA PP. 352 – 353
BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
COUSSEY, J.A.,
DE COMARMOND, S.P.J., NIGERIA
–
BETWEEN:
UDO NDO ALIAS UDO UDO OBOT – Appellant
AND
THE QUEEN – Respondent
–
ORIGINATING COURT(S)
Application for leave to appeal
–
REPRESENTATION
Applicant not represented by counsel.
C. O. Madarikan — for the Crown
–
ISSUE(S) OF
CRIMINAL LAW AND PROCEDURE:- Confession of murder — Circumstantial corroboration — Killing an escaping burglar
–
CASE SUMMARY
The body of the deceased was found about a quarter of a mile from the house of the accused; it had a number of severe wounds, and the accused said in a statement he made after caution after being arrested and charged with murder, that the deceased broke into his house during the night and stole some meat (pieces were found in the deceased’s pocket), that he chased the deceased (who, be it noted, was unarmed) and cut him with his matchet (which he showed to the police, to whom he also showed the damage done to his house). Though he had confirmed his confession before a senior officer, he denied in Court that he had made it but the trial Judge accepted it as having been made. He was convicted of murder and applied for leave to appeal.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (refusing the application) that:
(1) The circumstantial corroboration of the statement, coupled with the statement, which was accepted by the Judge, provided ample evidence of guilt.
(2) The applicant was entitled to apprehend the deceased as a felon but was not justified by the circumstances in killing the deceased, who was unarmed.
–
–
MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C. J., NIGERIA.
This is an application for leave to appeal against a conviction for murder.
The case for the Crown is that the body of the deceased was found about a quarter of a mile from the house of the accused bearing no less than eight wounds, some of them of great severity and which were the cause of death.
As a result of information received by the police the accused was arrested and charged with murder. After being cautioned he made a statement in which he alleged that the deceased broke into his house during the night, and that he chased him and cut him with a matchet; which he showed to the police.
At the trial he completely denied making any such statement.
While it is true that the conviction of an accused person solely on his own subsequently retracted statement is to be viewed with extreme caution, in this case the signed statement made to one police witness and subsequently confirmed before a senior officer is supported by the evidence of a third police officer as to statements made by the accused immediately upon his arrest and the action of the accused in showing to that officer the matchet with which he alleged he had cut the deceased and the damage he then said had been done by the deceased in breaking into his house, as well as by the finding in the pocket of the deceased pieces of meat then alleged by the accused to have been stolen by the deceased from an iron pot in his kitchen shown also by the accused to the police corporal. This extremely circumstantial corroboration of the signed statement, the truth of the evidence regarding which the learned trial Judge accepted, provides in our view ample evidence upon which the Judge was justified in finding as a fact that the applicant killed the deceased in the circumstances set out in his statement.
The sole remaining question is whether those facts constitute the prime of murder.
A person who in the night finds another in the act of committing a felony is entitled to use such force as may be necessary to apprehend the felon even to the extent of killing him in order to prevent his escape but it would be an unhappy state of affairs if when he has caught up with the escaping felon who is unarmed he should be at liberty to back him to death with a lethal weapon such as a matchet. This goes far beyond the force which would be justified by the circumstances and is in our view clearly murder. We do not think that any reasonable argument could be adduced to the contrary and leave to appeal is therefore refused.
Application refused.