Dominic Okolo & 3 Ors V. The State (1974)
LawGlobal-Hub Lead Judgment Report
G. IRIKEFE, J.S.C.
The two appellants in this case and two others were tried before the Lagos Assizes on an information which reads as follows:
STATEMENT OF OFFENCE
Robbery with violence contrary to section 401 and punishable under section 402 of the Criminal Code.
PARTICUURS OF OFFENCE
Dominic Okolo (m), Festus Harris (m), Bassey Equere (m) and Sunday John Nwasoro (m) on or about the 1st day of April, 1970 at Surulere in the Lagos Judicial Division, being armed with a dangerous weapon, namely a gun robbed Sherifatu Abina (f) of the sum of N31,000 and gold trinkets all to the total value of N3,120 property of the said Sherifatu Abina and at the time of the robbery did use personal violence to the said Sherifatu Abina (f).
They were convicted by Adefarasin J. and each was sentenced to a term of 40 years imprisonment with hard labour. Against this conviction, this appeal has been brought.
The two appellants presented their arguments in person. The second appellant supplemented his argument with a lengthy written document in which he endeavoured to attack several aspects of the trial. It seems to us, after listening to the appellants, that their complaints may be summarised as follows:
(a) That the learned trial judge was in error not to have treated the 5th P.W. IBRAHIM OLADEJO as an accomplice or at least as a witness with an interest of his own to serve.
(b) That the learned trial judge was in error to have accepted the evidence of the complainant, 7th P.W. (MADAM SHERIFATU ABINA), when such evidence had been discredited by cross-examination and
(c) That the sentence passed on conviction was excessive. The facts on this case briefly are as follows:
On the 1st of April, 1970, the second appellant, Festus, Harris, who was a ticket collector at the Ajegunle Motor Park, approached the 5th P.W.,
IBRAHIM OLADEJO sometime in the afternoon of that day, for the hire of his Taunus combi bus, Registration No. LM 3308, P.W.5 was told that his vehicle was to be used by the 2nd appellant and one Nicholas for the removal of their personal effects from an address at Yaba. There was no evidence as to what the charge for the hire was to be. P. W. 5 then set off in his vehicle with the three men mentioned above in it. On the way, they stopped and took on two other men who later became the 1st and 4th accused in the case.
There is evidence that P.W.5 was persuaded to drive to several addresses on the mainland area of Lagos from one of which the men in the vehicle collected a pillowcase which contained a sub-machine gun and 2 pistols. The weapons were shared, the 4th accused taking the sub-machine gun while the 1st accused (now 1st appellant) and Nicholas each had a pistol.
At this time it was already dark, and after P.W.5 had meandered from street to street while the men in the vehicle were looking for likely victims to be robbed, they eventually came upon the complainant in this case, P.W.7 (MADAM SHERIFATU ABINA), at about 11.15 p.m. P.W.5 was ordered to block the path of P.W.7 with his vehicle after which the men jumped down and pounced upon her. The struggle was for the possession of a handbag which P.W.7 was then carrying. This bag, according to the testimony of P.W.7, contained cash to the value of over N3,100, some gold trinkets and a small transistor radio. In the course of the struggle, P.W.7 received a stab wound from one of her assailants on the wrist.
The men eventually succeeded in snatching the bag from P.W.7 and in making good their escape before other persons were attracted to the scene. There is also evidence that while the struggle was on, one of the men, identified as the 1st appellant in this case, fired a shot into the air in order to scare away people who might be inclined to come to the aid of P.W.7.
As the conviction which is the subject of this appeal appears to be based exclusively on the evidence of P.W.5, P.W.7 and that of the 2nd appellant, we propose to examine such evidence in some detail.
The learned trial judge after carefully setting out the testimony of P.W.5 observed towards the end of it as follows:
“The 1st accused then held the pistol (Exhibit 13) and sat beside him. The evidence of the 5th prosecution witness was that the 1st and 4th accused persons (particularly the 4th accused) gave orders to him as to where he was to go and that they pointed their guns at him. I believe that this was so. I do not therefore consider the 5th prosecution witness to be an accomplice. Assuming however that the 5th prosecution witness was an accomplice, I must say that his evidence seems to me to be the truth. In a rather detailed manner, he gave an account of what happened on that day. I believe that he spoke the truth. His evidence is corroborated on several material issues with regard to the part played by each and everyone of the accused persons. By the provisions of section 117(1) of the Evidence Act, an accomplice is a competent witness but where the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material part implicating the accused, the judge shall warn the jury (or himself) that it is unsafe to convict on such evidence. In the case of each of the accused persons, there is abundant independent evidence which definitely associates each of the accused persons with the crime with which he is charged. See R. v. Modam (1938) 4 W.A.C.A. p. 39.
As I have said earlier, I believe the evidence of the 5th prosecution witness and I do not believe he was an accomplice. Quite apart from the evidence of the 5th prosecution witness, there is abundant evidence implicating each of the accused persons. I will now proceed to deal with the case of each of them.”
The court of trial appears to have dealt with the evidence of P. W. 7 on the footing that it was corrobarative of that of P.W.5 although in the same breath it had held that the latter not being an accomplice, his evidence required no such corroboration. When dealing with the testimony of P.W.7 in so far as it affected the 1st appellant, the court observed inter alia as follows:
“The 7th prosecution witness who was robbed of her handbag containing N3,100 and jewelry said she saw the 1st accused at the scene and that it was he who fired the gun into the air. Quite apart from this face was the fact that the 2nd accused, giving evidence on oath, stated that the 1st accused had held a gun in the vehicle and had held the driver of the vehicle at gun point and forced him to drive to where he and the 4th accused persons directed. On this particular point, I think the 2nd accused spoke the truth. Again, the 7th prosecution witness, Madam Abina, identified the 1st accused as one of those who had robbed her. While I concede that the witness had made an earlier statement in writing to the police in which she had said that she could not identify the persons who had attacked her. I am satisfied with her explanation and I believe that at the time she made the statement she was confused and dazzed and not in her right mind. When she was later seen by Assistant Superintendent of Police, Mr. Samson Alade and Chief Inspector, James Awe, 2nd prosecution witness, she told them that she would recognise the men who had robbed her if she were to see them. This was what prompted the Assistant Superintendent of Police to make an order for an identity parade.”
We feel that the above appraisal was unnecessarily generous to P.W.7 and could not have satisfactorily resolved the conflicts revealed in her testimony. We should like to advert to some of them. Under cross-examination by the 1st appellant, P.W.7 deposed at the trial as follows:
“The van was LM 3308. I knew the number on that day. It is true that I gave evidence in this case at Yaba Magistrate’s Court. It is a lie that I was charged with perjury at Yaba Magistrate’s Court and locked up for 2 hours. It is untrue that the Magistrate cross-examined me. I told the Magistrate the number of the vehicle. I had written it down. At the police station, I was bleeding and feeling dizzy I showed the Magistrate where I had written the number. I had picked the piece of paper from the ground and written the number on it. I, was at the Lagos University Teaching Hospital for 2 days. The Magistrate took the piece of paper on which I had written the number. It is not true that a policeman wrote it for me. (The 1st accused called for the paper Exhibit “A” tendered in the lower court. Court directs that it be shown to him) I wrote down the number on this paper. I did not write the other things on this paper, but I wrote the number. This was the paper I had picked from the floor. (Court: The paper is at the instance of the 1st accused tendered and marked Exhibit 17): I did not say at the Magistrate’s Court that the jottings on Exhibit 17 were recorded for me. I did not say to the Magistrate that I did not know the number of the vehicle on the day of the incident.”
As against the above, the deposition of P.W.7 during the committal proceedings which was put in as part of the defence of the 1st appellant and marked as exhibit 20 discloses the following:
“Cross-examined by Akande: The jottings on the reverse side of Exhibit “A” viz: date of offence, date of identification parade, registration number of vehicle were recorded for me yesterday by a Police Officer. On the date of the incident I did not know the registration number of the vehicle.
By court: I made two statements to the Police dated 1/4/70 and the other dated 14/4/70. My statement dated the 1/4/70 that I cannot identify any of my attackers.”
This statement, exhibit 18, made by P.W.7 to the police on the day she was attacked in quite brief and reads:
“Today 1/4/70 around 11.15 p.m. I closed from my shop at No.5 Ile Logo Street, Surulere and on my way home along Suenu Street, Surulere, three men came down from a Kia-Kia bus number unknown and stole from N3,100 cash, trinkets, ear ring all valued at N20. Total value N3,120. I don’t know the people and I cannot identify them if seen. One of them fired a shon on the air. As I was struggling with them they wounded me with a sharp instrument on my right hand.”
We fail to find in the above account anything to support the suggestion that P.W.7 was dazed, confused and not in her right mind at the time the statement was being recorded. It seems to us equally unlikely that the police would have insisted on a statement being recorded were her condition such as the learned judge held that it was.
We are of the view that where a witness such as P. W. 7 is shown to have made a previous statement inconsistent with her evidence at the trial, the correct approach in law is that the jury (or court) should not merely be directed that the evidence given at the trial should be regarded as unreliable, but should also be directed that the previous statement, whether sworn or unsworn, does not constitute evidence on which they can act. See R. v. Golder & Ors. 45 C.A.R. p. 5 and The Queen v. Joshua (1964) 1. ALL Nigerial Law Report page 1 at page 3. Adverting again to the case of P.W.5, although the court of trial was at pains to hold that he was not an accomplice, we are of the view that certain aspects of his testimony point the other way. The record shows for instance:
(a) that as from the afternoon of the date of the incident he willingly drove the men from one address to another on the mainland of Lagos without being shown the loads he had been hired to carry;
(b) that he willingly participated in this “waiting-game” until quite late at night;
(c) that after he had actually witnessed the robbery and made good his escape, he chose not to make for the nearest police station, but ran to Oyo where he remained in hiding until he was ferretted out by the police consequent upon the information given by the 2nd appellant, then in custody;
(d) that he did not report to the owner of the vehicle LM 3308 that it had been used for the robbery.
(e) that he was one of those initially charged in this case during the committal proceedings and later turned state witness.
It may well be that if the learned judge had adverted; his mind to the facts set out above, he would have been constrained to treat P.W.5 at least, as a witness with a purpose of his own to serve. He was clearly in error in holding otherwise.
Again, as pointed out earlier on in this judgment, the learned judge relied on part of the testimony of the 2nd appellant on oath in these proceedings in convicting the 1st appellant, without apparently warning himself of the danger inherent in relying on such evidence. The rule requiring such a warning, though not a rule of law, is one dictated by prudence. In R. v. Prater 44 C.A.R. p. 83 the Court of Criminal Appeal in England expressed the view that where it appears that a witness, whether a co-prisoner or a Crown Witness, may have some purpose of his own to serve in giving evidence, it is desirable in practice that a warning should be given to the jury with regard to the danger of acting on his uncorroborated evidence similar to that which is given in the case of accomplices, whether the witness can properly be classed as an accomplice or not. See also our decision of the full court in The State v. Akpan Udo Ukut & Ors. reported in 1965 1 All Nigeria Law Reports at page 306 in which the case R. v. Prater (Supra) and all other relevant English and local authorities were considered.
As we are in no position to say whether the learned judge in this case would have convicted had he properly directed himself on the lines herein before set out, it is our view that the convictions should not be allowed to stand. It is also our view that this is not an appropriate case for the application of the proviso to Section 26(1) of the Supreme Court Act as was requested by the Deputy Director of Public Prosecutions, Lagos State.
In the result, this appeal succeeds and it is allowed. The convictions of the two appellants are set aside and it is ordered that they be acquitted and discharged. For the 1st appellant, the above orders are of academic interest only, as the record shows that he is at the moment serving a term of 80 years imprisonment imposed in respect of other offences.
Other Citation: (1974) LCN/1949(SC)