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REX
V.
ASUQUO EDEM AND OTHERS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
22ND DAY OF JANUARY, 1943
2PLR/1943/41 (WACA)
OTHER CITATION(S)
2PLR/1943/41 (WACA)
(1943) IX WACA PP. 35 – 39
LEX (1943) – WACA PP. 35 – 39
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
BAKER, J.
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BETWEEN:
REX – Respondent
AND
ASUQUO EDEM AND OTHERS
Re 1. ASUQUO EDEM
2. BASSEY EDEM
3. ASUQUO ISANG IDIOK – Appellants
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REPRESENTATION
E. H. Hunter – for Crown
E. J. Alex Taylor with E. E. E. Anwan – for Appellants
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — MURDER:- Proof of — Death of deceased by lynching via strangulation for allegedly bringing about death of a third party via witchcraft — Invocation by defence of a custom — How proved — Legal effect
CRIMINAL LAW AND PROCEDURE:- Procedure — Calling of fresh witness by Judge at close of evidence for defence — Question arising “ex-improviso” — Legal effect
RELIGION AND LAW — BELIEF IN WITCHCRAFT:- Belief that death can be caused to another via witchcraft — Murder via strangulation of person so accused for refusal to submit to ordeal proving innocence — How treated by Court
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CASE SUMMARY
The appellants were charged with murder. It was alleged for the prosecution that the motive for the murder was the belief that the murdered man had caused the death of another person by means of witchcraft.
The three appellants each gave evidence but called no other witnesses. During his evidence one of the appellants introduced fresh matter relating to native custom in cases of suspected witchcraft, which if true would have seriously discredited the evidence of the witnesses called by the Crown.
The trial Judge then called a Native Chief, who had been sitting in Court, to testify as to his knowledge of native custom on the question thus raised.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held: (dismissing the Appeal)
1. In a criminal trial the Judge has the right to call a witness not called either by the prosecution or the defence and without the consent of either, if in his opinion this course is necessary in the interests of justice. But it is equally well established that, in order that injustice should not be done to an accused person, the calling of such a witness after the close of the case for the defence should be limited to cases where something has arisen ex improviso; which no human ingenuity could foresee on the part of the accused.
2. If the calling of this witness was irregular, Court was entitled to act under the proviso to section 10(1) of the West African Court of Appeal Ordinance; 1933 (No. 47 of 1933) and hold that no substantial miscarriage of justice had actually occurred, since two eye-witnesses, whose evidence the Judge believed, testified to the actual murder of the deceased by the three appellants.
Cases referred to:-
R. v. Frost (9 C. & P. at p. 129).
R. v. Harris (28 Cox 432).
[NOTE.— See Evidence Ordinance, 1943, (Nigeria) sec. 222].
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND BAKER, JJ.
In this case the three appellants were convicted in the Calabar-Aba Judicial Division of the High Court sitting at Eket of the murder of one Bassey Uno at Oti Oron. There was a fourth accused at the trial named Edet Edem who was acquitted.
Shortly the facts are that a man living in the house of Edet Edem had died and it was suspected that his death was due to witchcraft. Bassey Uno was accused of causing the man’s death by witchcraft. During the night of the 2nd-3rd January the second appellant went to Bassey Uno’s house and asked him either to replace the man who had died or to prove his innocence. Bassey Uno refused, whereupon he was set upon by the second appellant who was joined by the first and third appellants, and the three of them strangled Bassey Uno to death.
The only ground of appeal with which it is necessary to deal is contained in Grounds 1 (ii) and (iii) of the amended Grounds of Appeal which read
“1. The learned trial Judge erred in law:
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(ii) In the course taken by him of calling the witness Umo Iduk which was not in accordance with the recognised rules governing proceedings at a criminal trial.
(iii) In calling Umo Iduk and basing his judgment on his testimony in so far as it clearly showed that the prosecutor had not established their case beyond all reasonable doubt and it was therefore the duty of the learned trial Judge to give the benefit of the doubt to the accused persons.”
As to this the record shows that at the close of the case for the prosecution, the fourth accused, Edet Edem, was discharged, and then each of the appellants in turn gave evidence at his own election. No other witnesses were called for the defence, and there is no record of any address by counsel for the defence. After the evidence of the third appellant, the court recalled one of the prosecution witnesses (no exception has been taken to this), and then of its own motion called a man sitting in Court, Umo lduk, a Native Court member, to give evidence as to the custom obtaining in the locality when a man was suspected of having died of witchcraft.
It is contended on behalf of the appellants that the calling of this witness by the Court was so irregular as to necessitate the quashing of the conviction.
Now it is well established law that in a criminal trial the Judge has the right to call a witness not called either by the prosecution or the defence and without the consent of either, if in his opinion this course is necessary in the interests of justice. But it is equally well established that, in order that injustice should not be done to an accused person, the calling of such a witness after the close of the case for the defence should be limited to cases where something has arisen ex improviso; which no human ingenuity could foresee on the part of the accused. (R. v. Frost, 9 C. & P. 129 at p. 159; R. v. Harris 28 Cox 432; 20 Cr. App. Rep. 86)
We are of opinion that the calling of the witness Umo lduk was a proper procedure and within the limits of the powers of the Judge as laid down in the cases referred to; in other words that the witness was called, to clear up a point which had arisen ex improviso and which no “human ingenuity could foresee, on the part of the accused.
So far as the record goes the evidence for the prosecution was solely as to fact, no evidence was led as to custom, and it did not appear that any question as to custom was in issue when the prosecution case was closed. It was not until the first appellant gave evidence that the question of custom arose, the question then being — When a man from one village dies in another and witch-craft is suspected, whose business is it to make enquiries, the people of the village in which he died or the members of his family from his own village? It had been elicited from one of the prosecution witnesses that the accused, who came from the village in which Ekpo Uto had died, had collected money (for the purpose of finding out the cause of Ekpo Uto’s death). The first appellant denied this, saying
“I never collected any money to find out the cause of the death of Ekpo Uto. It is not customary for the relatives of the man in whose house the person dies to subscribe to find out who is the witch. It is for the family of the dead man to do.”
Thus he alleged for the first time the existence of a custom, which, if correct, would tend to discredit some of the evidence of a prosecution witness as conflicting with that custom. The learned trial Judge thought that that was a point which should be cleared up one way or the other, and consequently called an independent witness to clear it up. We hold that his doing so was regular and in accordance with the established principles upon which a witness can be called by the Court in a criminal trial.
We may add that even if we had held that the calling of this witness was irregular, we should have been disposed to act under the proviso to section 10(1) of the West African Court of Appeal Ordinance; 1933 (No. 47 of 1933) and hold that no substantial miscarriage of justice had actually occurred, since two eye-witnesses, whose evidence the Judge believed, testified to the actual murder of the deceased by the three appellants.
There is no substance in the other grounds of appeal. The appeals of all three appellants are dismissed.
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