Hamuzat Badmos V. Commissioner Of Police (1948)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Evidence of accused incriminating co-accused–Evidence Ordinance, section 177 (2).

An accused person who gives evidence which incriminates a co-accused is not an accomplice of the co-accused, and though such evidence should be suspiciously regarded and cautiously accepted, it does not require corroboration.

Case referred to :

(1) R. v. Barnes and Richards, 27 Cr. App. R. 154; (1940), 2 A.E.R. 229; 56 T.L.R. 379; 84 Sol. Jo. 258.

Appeal from the Supreme Court of Nigeria (Appellate Jurisdiction). Akerele for Appellant.

Field, Crown Counsel, for Respondent.

The following judgment was delivered:

Ames, Ag. C.J. We agreed that this appeal should be dismissed but said that we would give a short statement of our reasons.

The only ground of appeal to which we need refer is the following one

That decision is erroneous in point of law in that the Evidence Ordinance relating to the evidence of accomplice did not oust the decision in Rex v. A. Adu & Another reported in Vol. 17 Nigeria Law Reports.”

This section of the Evidence Ordinance is, as Mr. Akerele pointed out during his argument, taken from the headnote of the case of R. v. Barnes and Richards (1) which case has been the subject of some criticism. But whatever may be said about it, section 177 (2) of the Evidence Ordinance is the law at present in force in this country. It is clear and unambiguous and there can be no doubt as to its meaning, which is that, when an accused person tried jointly with another gives evidence on his own behalf which incrimates the other, he ” shall not be considered to be an accomplice “. This does not mean that he must be believed ; it merely means that his evidence is not open to the same objections in law or practice as may be the evidence of an accomplice who is not being prosecuted but being used by the prosecution as a crown witness.

Where any co-accused to whom this section applies incriminates another in giving evidence in his defence, no doubt every Court keeps in mind, when deciding the credibility to be given to the co-accused’s evidence, that he is an accomplice.

In this particular case before us the learned Magistrate did so. In his judgment he said as follows :—

” I am of opinion therefore that the second accused’s evidence can be used against the first accused without corroboration and is corroborative of that of the other accomplices. But in considering his evidence I do not forget that he is trying to protect himself by throwing the blame on the first accused; in other words, his evidence is open to the same objection as that of any accomplice.”

The learned Judge who heard the appeal from the Magistrate did the same. He saidi-

” Whatever the rights of that case (i.e. Barnes and Richards) were, the 361

law is now definite and beyond dispute. An accused incriminating a co-accused is not an accomplice. He has the same standing as an ordinary witness, and the learned Magistrate was perfectly justified in accepting it without corroboration, if he was satisfied with it as he was. I agree that such evidence should be suspiciously regarded and cautiously accepted but, once having come through the test of suspicion and caution, there is no reason why it should^– not be wholly accepted without having attached to it any legal disability of ‘ accomplice ‘ evidence.”

The last part of this extract from the judgment of the learned Judge is perhaps as good a statement as need be of the position as it now is in this country.

These are our reasons for having dismissed the appeal.

Appeal dismissed.