Raimi Ishola Vs The State (1972)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
In Charge No. AG/3C/71 of September 6, 1971, Raimi Ishola (the appellant in this case) and three others were charged with conspiracy to burgle, breaking into and stealing from a radio store belonging to one Israel Oguntoye along Baleke Road, Boji Boji Agbor, contrary to Sections 443, 353(1) and 331 of the Criminal Code, Cap. 28 of Western Nigeria Laws, 1959 and applicable in the Mid-Western State of Nigeria. Before the commencement of the trial, the 4th accused person escaped from prison custody and as he could not be traced, the case proceeded against the remaining three.
A ‘no case’ submission made on behalf of the 1st accused by his counsel was over-ruled by the learned trial Judge, who held that the 1st and the 2nd accused persons had a case to answer but who discharged the 3rd accused for want of evidence. At the end of the trial, 1st and 2nd accused were convicted as charged and sentenced to terms of imprisonment on December 6, 1971, by Aghoghovbia, J., at the High Court of the Agbor Judicial Division in the Mid-Western State. From this decision only the 1st accused had appealed to this Court.
The case for the prosecution was that, on the night of July 3, 1970, the radio shop of Ishola Oguntoye (P.W.2) was burgled at about 3.30 a.m. by three men while Gabriel Adibe (P.W.3), a shop boy, was asleep there. The latter, on being awakened, managed to remove the transistor radio sets into an adjoining chemist shop where he was confronted by the three men, one of whom asked him to stop where he was whilst being searched all over. During similar searches of the two boys sleeping in the chemist’s shop, P.W.3 escaped to a nearby compound of P.W.4, a friend of P.W.2’s, to whom he reported what was happening at the radio store. P.W.4 then went with three soldiers living with him to the radio store but, as they approached, someone in front of the store ordered them to get back, which they did. One of the soldiers, however, shouted to his house boy to get him his rifle, whereupon the burglars took to flight and bolted away with 13 transistor radio sets. P.W.4 and the three soldiers ‘returned to the scene to find that the front door of the shop had been forced open. The incident was later reported to the police.
Police searches of the premises of the 1st accused’s landlord, Godfrey Okoh (P.W.l) on July 4, 1970, resulted in the recovery of two sets of transistor radio, out of which was one of the 13 burgled from P.W.2’s store, from the room occupied by the 2nd accused who had been lodged there by the 1st accused who himself occupied the other two of the three rooms let to him by P.W.1.
The transistor radio burgled from PW.2’s store was found in the 2nd accused’s room, while an old set which was not among the lot stolen was found in the 1st accused’s room. The 1st accused said that the stolen transistor radio (Exhibit D) had been brought to the room of the 2nd accused and that even the old set found in his own room belonged to the 2nd accused who had come over to him from Benin to look for the job of a driver. As he was about to visit Onitsha when the 2nd accused arrived in his house on June 30, 1970, he asked him to wait until his return; but when he arrived back at about 6.30 p.m. on July 3, 1970, he found the 2nd accused with several transistor radio sets and when he questioned him about them, the 2nd accused answered that he had brought the radio sets from Benin. Under cross-examination, 1st accused admitted that 2nd accused was his friend whom he had first met in Onitsha before the recent civil war, and also that some two weeks before the incident he had met him again in Onitsha-Ugbo. He had agreed to employ the 2nd accused at the end of June, 1970, but that he still had not employed him at the date of the incident.
The 2nd accused stated in his defence that the 1st accused, a lorry owner, had invited him down to Agbor from Benin to work for him as a driver. On the third day of his arrival, he was taken out by the 1st accused for drinks at about 6 p.m. at the Cabino Hotel, where they were soon joined by the 4th accused, now at large, who told 1st accused that they were waiting for him outside; he was later invited by the 1st accused to accompany him, along with one short Ibo boy and the 4th accused, to the house of the 3rd accused. When the Ibo boy demanded to know who he was, 1st accused told him not to worry; the Ibo boy then bought them drinks, after which 1st accused invited them all to his house. As they were near to the Cabino Hotel, 1st accused told him (2nd accused) the other three men were all soldiers and that they were going to bring some transistor radio sets. The 2nd accused said that he thereafter accompanied the three soldiers without realizing that they were going to burgle a radio store. On arrival there, the 3rd accused instructed the 2nd accused to remain outside and order away anyone who came near. The 2nd accused said that, as the 3rd accused broke open the front door of the store, he panicked, and ran back to the 1st accused’s house, where the 3rd accused and the others turned up with transistor radio sets, of which each, as well as the 1st accused, took one set, leaving him (the 2nd accused) out of the sharing. The 1st accused, however, gave him his old comet set which, because it was not ‘talking well”, he returned to the room of the 1st accused and collected the new set, Exhibit D, therefrom while the 1st accused was asleep. According to the 2nd accused, this was how the police came to find Exhibit D in the room of the 2nd accused and the old one in that of the 1st accused. He explained that the police came in to search as they (1st accused and himself) were awaiting the arrival of 1st accused’s lorry from Agbor so that he could start work as his driver.
It is to be noted that the 2nd accused made two statements to the police – Exhibits F and F1 – in the first of which he denied the charges in their entirety, while in the second he made a confessional statement. The evidence of the 2nd accused in court was at variance with his statement to the police in Exhibit F, and there was no corroboration of the evidence contained in Exhibit F1. With regard to the 2nd accused, the learned trial Judge found as follows:
“I do not believe the story of the 2nd accused that he did not know that they were going out to burgle when he accompanied the 3rd and 4th accused persons and the short Ibo boy to the store of the 2nd P.W. that night. From his evidence he stayed long enough for the break in to have been completed before he allegedly ran away to the house of the 1st accused. Why did he order the 3rd and the 4th P.Ws. together with the soldiers to get back if he was not playing his part in the burglary The three other members of the gang surely took some time inside the compound before coming back to break the front door of the radio shop and yet the 2nd accused was there all the time.”
The finding of the learned trial Judge in respect of the 1st accused was this:
“I have warned myself sufficiently of the want of independent evidence in this case and one does not normally readily find an independent witness nature. The Statement to the Police, Exhibit H1, by the 1st accused is at variance with his evidence in court under cross-examination. He denied being at home on the 4th July, 1970 and yet he signed the search warrant Exhibit ‘E’ executed in his house that day. At least he was present when the search was conducted in his apartments on the 4th July, 1970. In Exhibit H1, he said he saw the 2nd accused with several sets of transistor radios on the 1st July, 1970 but under cross-examination by the 2nd accused he said it was on the 3rd July, that he saw him with the radio sets and questioned him about them.
From the prevarications of the 1st accused coupled with the evidence of the 2nd accused I am satisfied that the 1st accused did conspire with others to burgle the Radio Store of the 2nd P.W. While I hold that he may not physically have taken part in the actual burgling I find, under Section 7(d) of the Criminal Code Law that the 1st accused is an accessory to the offence of burglary.”
From this decision, the 1st accused has appealed to the Court on the following three original grounds:
“1. That the learned trial Judge erred in law by convicting the Appellant when the Appellant had no case to answer and there was no credible evidence against him.
- That the learned trial Judge misdirected himself in law by not properly evaluating the evidence of the 2nd accused with regard to Exhibit ‘F.’
- That the learned trial Judge erred in law by convicting the Appellant on the uncorroborated evidence of the 2nd accused.”
Mr. S. I. O. Giwa-Amu, learned counsel for the appellant sought and was granted leave to file the following 6 additional grounds of appeal:
“4. The learned judge erred in law at lines 17 to 21 of page 16 of the record of proceedings by casting upon the appellant the burden of ‘clearing up his relationship with the 2nd accused’ when the prosecution had not alleged and/or proved that the relationship was otherwise than innocent and had not established a case against the Appellant.
- The learned judge misdirected himself by holding at lines 14 to 20 of page 27 in the record of proceedings as follows:
‘From the evidence in this case……..The 1st accused has not shown that the 2nd accused had some associates in Agbor from or with whom he could have obtained those sets of radios….. he was the connecting link between the 2nd accused and the rest of the gang.’
Whereas there was no reliable evidence to support his views and there was no burden on the Appellant to show that the 2nd Accused had other associates in Agbor.
- The learned judge erred in law by failing to warn himself in any part of his judgment that it is unsafe to convict the Appellant on the uncorroborated evidence of the 2nd Accused.
- The learned judge misdirected himself by relying on the so-called ‘prevarications’ of the Appellant in finding that he conspired with others to commit the crime when such ‘prevarications’ were not consistent only with guilt.
- The learned judge misdirected himself by failing to ‘see any cause why the 2nd Accused should have told any lies against the 1st Accused’ when the 2nd Accused was proved to be a liar seeking to extricate himself from conviction.
- The learned judge erred in law by not recording that Exhibit ‘Fl’ was admissible only against the 2nd Accused and/or by holding
(a) that the court is not precluded from considering all the evidence in a case as a whole; and
(b) that Exhibit “F1″ confirms that testimony of the 2nd Accused.”
Mr. Giwa-Amu chose to argue these nine grounds thus. Under grounds 1 and 2 which he argued together first, the gravamen of his contention is that no prima facie case was established against the appellant, and no incriminating evidence was adduced against him at the end of the case. The first accused was convicted only on the second statement (Exhibit Fl) of the 2nd accused which contradicted the latter’s first statement (Exhibit F). The learned trial Judge should have paid due heed to Exhibit F as the statement of a self-confessed co-accused, and Section 27 (3) of the Evidence Act (Cap. 62 of 1958 Edition of the Laws of the Federation and Lagos) provides a warning to a trial Judge as to how to treat Exhibits F and Fl, in these words:
“(3) Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or a jury, where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”
Under grounds 3 and 6, which he next argued together, Mr. Giwa-Amu contended that Exhibit F1 required corroboration as was laid down in Oyediran v. The Republic (1967) NMLR 122, at p. 127 as follows:
“There was no independent evidence of someone else not an accomplice against the 5th appellant in respect of these counts, and we had pointed out before that the provisions of Section 177(2) of the Evidence Act will not operate to avoid the necessity of corroboration of the evidence of a self-confessed accomplice. See Akpan Udo Ukot & 3 Ors. v. The State (1). The learned trial Judge did not seem to have considered this aspect of the case and in the circumstances the conviction of this appellant on counts 5, 6 & 7 must be quashed and the sentences passed thereon set aside.”
He maintained that the learned trial Judge did not warn himself sufficiently of the danger of convicting an accused person upon the uncorroborated evidence of a co-accused, and referred to Odofin Bello v. The State (1967) NMLR 1, at p.6. especially this passage:
“The aim of the warning, no doubt, is to dissuade the jury from convicting without corroboration, and the usual effect of it is acquittal. The position of a judge sitting without a jury is in no way different and he ought to lean heavily against convicting in such circumstances. He must bear in mind that he would be relying on the evidence of a corrupt person to convict someone who is presumed to be innocent, and that he would be doing something admittedly dangerous.”
Finally, in further support of his argument, he referred to Section 177(1) and (2) of the Evidence Act which reads:
“(1) An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice: Provided that in cases tried with a jury when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular implicating the accused, the judge shall warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so and in all other cases the court shall so direct itself.
(2) Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be an accomplice.”
Mr. Giwa-Amu next argued grounds 4 and 5 together, cited Section 21 (4) of the Constitution of the Federation as laying down the presumption of innocence of an accused person and insisted that the onus lies on the prosecution to prove the accused guilty and that it was not for the 1st accused to prove that the 2nd accused had no other associates in Agbor with whom he could have burgled P.W.2’s radio shop. Under ground 7, he pointed out that the ‘prevarications’ in the evidence of the 1st accused referred to by the learned trial Judge were not necessarily consistent with the guilt of the 1st accused. He cited in support Haruna & Anor. v. Commissioner of Police (1967) NMLR 145, at p. 153; Rex v. Lamidi Balogun (1942) 16 NCR 75, at p.77. Under ground 8, Mr. Giwa-Amu argued that there was abundant evidence to show that the 2nd accused was a liar who was anxious to extricate himself by implicating the 1st accused after the latter had exposed him by giving evidence as to the large number of transistor radio sets found with the 2nd accused. Under ground 9, Mr. Giwa-Amu returned to a further examination of Exhibit F1 in the light of Section 27(3) of the Evidence Act, and pointed out that this 2nd accused’s statement is admissible against the maker only and not against the appellant who never adopted it either by word or by conduct. He contended that Exhibit F1, which is the only basis for the learned trial Judge’s conviction of the 1st accused, should not have been so relied on. There was, learned counsel submitted, no other evidence implicating the appellant throughout the proceedings.
Mr. Aghahowe, learned counsel for the respondent, began by replying that Exhibit F1 is admissible and has been rightly admitted by the learned trial Judge against the 1st accused since, even if it incriminates the 1st accused, it becomes evidence in the case for all purposes once the trial Judge believed it to be true for the most part. When, however, we asked him to point to any evidence establishing the exact relationship between the 1st and the 2nd accused in so far as the charge of conspiracy is concerned, the learned counsel conceded that he could not find any on the record. Both the 1st and 2nd accused strongly denied having conspired with anybody, nevertheless, after unsuccessfully arguing that even if there is no direct evidence of conspiracy, the appellant could still be convicted of burglary and stealing, learned counsel finally agreed that, after studying the record, he himself had doubts about the guilt of the appellant.
We are of the view that the learned trial Judge should not have convicted the appellant on the basis of Exhibit F1 and the evidence in court of the 2nd accused, which he apparently treated as corroboration. On the evidence before the court there was no proof of conspiracy and the appellant took no part in the burglary committed at the radio store of P.W.2, nor was any of the stolen radio sets found with him as a result of police search. The conviction clearly cannot stand.
The learned trial Judge’s decision in Suit No. AG/3C/71 delivered in the High Court of Agbor in the Mid-Western State on December 6, 1971 by which he convicted the appellant of conspiracy, burglary and stealing and sentenced him to various terms of imprisonment, is hereby set aside.
The appeal is allowed, and the appellant is discharged and acquitted.
Other Citation: (1972) LCN/1377(SC)
