Joseph Ogunbayode Ogundipe V. The Queen (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law and Procedure—Trial for murder—Victim’s body not found—
Concerted attack—Criminal Code, sections 8 and 316—Evident affecting each
accused—Case of murder or nothing—Question of manslaughter—Question of
“accomplice vel non ” left to jury—Direction on corroboration.
Evidence—Accomplice—Corroboration—Evidence Ordinance, section 177 (1).

Facts

The appellants were convicted of the murder of a person whose body was not found. The trial Judge devoted part of his summing up to the evidence of the victim’s death: “ His belongings were found in his house, and he has never been seen again, and you have got the evidence of the attack upon him and you know that blood (which was human) was found leading from that place, Tapa Street, to the foreshore ”, was the gist of the direction, besides some other circumstances.

It was a case of murder or nothing as the result of a concerted attack. The trial Judge explained murder by reference to section 316 of the Criminal Code (an intention to cause death or grievous harm, or an act likely to endanger human life done in the prosecution of an unlawful purpose, is the relevant part of the section) and directed the jury on the effect of section 8 of the Code, which provides that “when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence”.

At the same time the Judge put together the facts for and against each accused.
Incidentally the Judge also directed the jury on manslaughter but made it plain that it was a case of murder or nothing (though no defence of manslaughter seems to have been set up).

A question was raised especially about one witness being an accomplice. The Judge left it to the jury to say whether he was and directed them in these terms:

“When a man is an accomplice and gives evidence, you may in strict law act on his evidence and convict an accused person. However, chiefly where there is a jury, a Judge must warn the jury and say that it would be unsafe for you to act on the evidence of an accomplice unless what he says is corroborated by independent evidence which connects the accused with the crime … if this man had a hand in it you had better look for corroboration ”: and the Judge
enlarged on the subject.

The provision in section 177 (1) of the Evidence Ordinance is as follows: “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.”

The complaints on appeal were:—
(1) That the verdict was unreasonable and against the weight of evidence.
(2) On the evidence that the victim (whose body was not found) was dead.
(3) That the question whether a particular witness was an accomplice ought

not to have been left to the jury; that he was an accomplice; and that there
was no corroboration of his evidence. (Note: There were other witnesses as
regards the attack on the deceased; the supposed accomplice stood alone in saying
that the body was taken and put into a canoe; and the Judge told the jury,
“If you believe Aka’s evidence on what took place in front of 8 Tapa Street
that is all that is necessary. The other part of Aka’s evidence about seeing the
body carried to the lagoon completes the picture—rounds it off, but it is not
essential because Apalara was then dead.”)

(4) That the Judge did not direct the jury properly on the possibility of returning a verdict of manslaughter.

Held

(1) There was nothing which would justify interference with the verdict of the jury.
(2) The question whether the death of the victim had been proved was clearly and adequately put to the jury, and the evidence, which was obviously accepted by the jury, was ample.

(3) Whether a certain witness was an accomplice was a question of fact for the jury to decide; and the direction on corroboration was correct.

(4) On the question of manslaughter the Judge put the position to the jury as favourably as the evidence justified, and if they had found a verdict of manslaughter it would have been in the face of the evidence.

(Editor’s Note: On the effect of section 8 of the Criminal Code on persons taking part in a concerted attack see Sunday Kata Alagba and Others v. The King, Privy Council, 12 Dec., 1950, in 19 N.L.R. 128.

On accomplices see now Davies v. Director of Public Prosecutions, House of Lords, 19th February, 1954, in 2 W.L.R. 343; 38 Cr. App. R. 32. The persons who, if called as witnesses for the prosecution, have been treated as accomplices are set out in the case of Davies, and the categories are closed.

The cases fall into two classes. “ In the first, the Judge can properly rule that there is no evidence that the witness was, what I will, for short, call a participant. The present case (that is Davies’s) in my view, happens to fall within this class, and can be decided on that narrow ground. But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a ‘participant’

In such a case the issue of ‘accomplice vel non’ is for the jury’s decision: and a judge should direct them that if they consider on the evidence that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after that warning, they still think fit to do so per Lord Simonds, C., in the case of Davies.

On the nature of corroboration needed see R. v. Baskerville, 1916, 2 K.B. 658, and in this volume Ohene Djan and Atta Mensah v. The Queen, W.A.C.A. on 11th June, 1954.

On whether and in what circumstances a direction on manslaughter should be given when not raised as a defence see Mancini v. Director of Public Prosecutions, 1941, 28 Cr. App. R. 65.)

Appeals dismissed.