Rex V. Obi Bekum & Ors (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

Robbery contra. section 402 of the Criminal. Code—Essentially dilerent from Robbery under English law—Necessity for corroboration of accomplice’s evidence—Corroboration required as to violence used and the purpose of it and that the crime was actually committed—Circumstantial evidence sufficient.

Held : Appeal dismissed.

There is no need to set out the facts. Case cited :—

1? V. Baskertrille (1916) 2 IC.B. C. IV. Reece for Crown.

Appellants present in person.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J:, GOLD COAST. GRAHAM PAUL, C.J., SIERRA LEONE.

The four appellants were charged in the High Court of the Enugu-Onitsha Division with robbery with violence contrary to section 402 of the Criminal Code, the particulars of the offence charged being that in or about the month of April, 1940, they robbed Agbora Atam,, of one portmanteau and immediately before such robbery did use personal violence to the said Agbora Atam.

The trial did not begin in the High Court until 13th March, 1941, the reason for the delay being that the four appellants were first charged in the High Court with the murder of the said Agbora Atam and two other men. On all the murder charges the first, second and fourth accused were acquitted and discharged by the High Court and the third appellant was convicted on one of the murder charges on 4th ^–December_‘ 1940. The conviction of the third appellant watt quashed by this Court on appeal. Subsequently all four appellants were charged with robbery as stated and all were convicted and each sentenced to ten years imprisonment with hard labour. Against these convictions the appellants have now appealed.

The only direct evidence against the appellants on the charge of robbery is that of one Boke Bissong who gave a detailed account as an eye witness of an attack by the four appellants and Boke

Bissong himself on ” an Nde man ” and his two companions in the course of which the fourth appellant fired his gun at ” the Nde man ” and afterwards reported that he had shot `_` the Nde man.” The date of this attack is given as ” ^–about twelve months ” before 13th March, 1941 (the date of the trial).. There is no direct evidence either by Boke Bissong or any other witness that ” the Nde man ” was Agbora Atam. The only indication to be found in the record that Agbora Atam was an ” Nde man ” is that his sister Lucy Meh who gave evidence was ” sworn on gun in Nde ” but Boke Bissong says that the object of the attack on ” the Nde man ” and his companions was the stealing of a certain portmanteau containing money which ” the Nde man ” and his companions had left in the house of the fourth accused while they went out from fourth accused’s house to buy meat and that it was while they were on the way to buy meat that they were attacked by the four appellants and Boke Bissong acting in concert.

After the attack on ” the Nde man ” and his companions the conspirators, according to Boke Bissong, returned to the house of the fourth appellant who produced the ” portmanteau ” or box and two fowls belonging to the Nde man and his two companions and the conspirators divided up the contents of the portmanteau, and the fowls. The portmanteau or box was soon afterwards found in the but of the fourth appellant by the police investigating the case. The box has been identified by other witnesses as the box of Agbora Atam with which he set out on the road about the time of the attack to which Boke Bissong referred.

It is obvious that the witness Boke Bissong was an accomplice in the attack on ” the Nde man ” and his companions. FUtbermore each of the appellants gave evidence that Boke Bissong was his enemy, and to the effect that he was the thief who W SS trying to throw-the• blame on the appellants to save himself. Clearly in these circumstances the evidence of Boke Bissong requires the most careful scrutiny and is insufficient to convict the appellants without corroboration. The learned Judge in the Court below realised this and expressly states in his judgment that Boke Bissong’s evidence ” requires corroboration.” The learned trial Judge found what he considered adequate corroboration of Boke Bissong’s evidence and accordingly convicted the appellants.

Before considering whether there was sufficient corroboration of Boke Bissong’s evidence it is necessary first to consider the legal aspect of the charge and how the evidence bears upon it. The offence charged is under section 402 of the Criminal Code but section 401 is the section which defines the offence of robbery and it is in the following terms :—

” Any person who steals anything, and, at or immediately ” before or immediately after the time of stealing it, uses or ” threatens to use actual violence to any person or property i

” order to obtain or retain the thing stolen or to prevent or ” overcome resistance to its being stolen or retained, is said. ” to be guilty of ‘robbery.”

It is dear that ” roberry ” as defined by section 401 is essentially different from ” robbery ” under English law which consists in the felonious and forcible taking from the person of another, or in his presence against his will of any money or goods to any value, by violence or putting him in fear. It is also clear that under English law even accepting Boke Bissong’s evidence there would be no ” robbery,” as the box and its contents were taken neither from the person of the owner nor in his presence.

Under section 401 of the Nigerian Criminal Code however the question is quite different and according to Boke Bieong the four appellant) and Boke Bissong did use actual violence to the owner or owners of the box ” immediately before,” although not ” at ” the time of stealing and dividing up their property. The owners left the house of fourth accused to buy meat. They were followed and attacked by Boke Bissong and the four appellants and have never been seen since. At the conclusion of the attack Boke Bissong and the four appellant) returned to fourth accused’s house and divided up the spoil. It follows therefore that if Boke Bissong’s evidence is adequately corroborated the offence of robbery under Nigerian law was proved against all the appellants.

It is of course not necessary that there should be confirmation by independent evidence of everything the accomplice says, but only some independent evidence connecting the accused with the crime and there must be such independent evidence in regard to each accused before he can rightly be convicted.

That means that the presence or absence of adequate corroboration must be separately considered as regards each of the four appellants.

Ele Obi is the main corroborating witness. She is one of the wives of the third appellant. At or about the same date as the attack to which Boke Bissong speaks. Ele Obi saw Boke Bissong and the four appellants on the road in- the morning. The learned Judge came to the conclusion that the occasion to which Ele Obi has spoken was the same occasion as Boke Bissong described. There was justification for this conclusion for the peculiar circumstances of Ele Obi’s occasion tally in important particulars very exactly with those of Boke Bissong’s occasion.

First of all it was about the same date; it was in the morning; Boke Bissong and the four appellants were seen together on the’ road; Ele Obi was accompanied by Beku, another wife of third appellant; they were attracted to the spot where Boke Bissong and the four appellants were by the sound of a shot; they were sent

away by the five men who at the time gave no reason for sending them away though later the third appellant explained to Ele Obi that ” they were killing people ” at the time. Ele Obi says she didn’t see what they were doing at the time but there was no suggestion by any of the appellants either in cross examination of Ele Obi or in their evidence that there had been the occasion to which Ele Obi spoke but that it was an innocent one. Their expiess case was not that Ele Obi and Beku met them under these peculiar circumstances about the date of the alleged concerted attack but that it was an innocent meeting of the five men. There is no attempt to explain why they sent the women away. The appellants’ case was that Ele Obi’s whole story was a lie.. But the learned trial Judge who saw and heard the witnesses believed the evidence of Ele Obi. On that evidence the learned trial Judge, specially directed by himself as to the need for corroboration of Boke Bissong, was entitled to come to the conclusion he did.

On that view the learned Judge was justified on the evidence in finding as a fact that all the appellants took part in the murderous attack on ” the Nde man ” and his companions.

As against the third appellant there is the additional evidence that he told Ele Obi that they were killing people at the time

So much for the ” violence.”

As to the purpose of the violence no motive or explanation is offered by any of the accused either in cross-examination or in evidence, and it is in evidence that soon after the attack the portmanteau was found in possession of the fourth accused by the police when they investigated the matter in the first instance. That evidence is certainly corroborative of the story of Boke Bissong as regards the fourth accused having stolen the property of ” the Nde man ” and his companions. What enabled him to do so was the fact that as a result of the concerted attack the owners never came back to fourth accused’s house to claim their property. In these circumstances under section 7 (b) of the Criminal Code it is difficult to see that the independent evidence as to finding the portmanteau in the possession of one of the conspirators cannot be regarded as corroboration against the other conspirators as regards the ” robbery.” Where an accomplice gives evidence that there was a murderous attack by himself and others on persons in order to steal their property and there is, as here, independent evidence that the others did take part in the murderous attack, and part of the property is found in possession of one of the conspirators that is sufficient corroboration as regards the stealing. As it is put by Lord Reading, C.J., in the case of Rex v. Baskerville (1916 2 LB. at p. 667).

” The corroboration need not be direct evidence that the ” accused committed the crime; it is sufficient if it is merely ” circumstantial evidence of his connection with the crime.”

Corroboration is also required of the evidence that the crime has been committed ; the finding of the portmanteau or bon in the house of the fourth appellant provides this.

Accordingly it seems clear that the learned Judge in the Court below, who heard and saw the witnesses for the prosecution and the appellants give their evidence, and who sufficiently directed himself as to the need for corroboration of the accomplice’s evidence, was juatified in finding that there was sufficient corroboration of the evidence of Boke Bissong to convict the appellants as he did.

The four appellants were heard in support of their appeal but their only complaint was that having been acquitted on a charge of murder they did not understand how they could be subsequently charged and convicted of robbery on the same occasion as was the basis of the murder charge. It is natural that they should be disappointed /hat their acquittal on the murder charge did not end the matter but their natural disappointment does not of course affect the legal question before us in this appeal.

In this appeal the Court had the benefit of the assistance of Crown Counsel who considered that he could not support the convictions. The main foundation of his view was the definition of robbery under English law.

We agree with his view that under English law it would be impossible to support a conviction of ” robbery ” in this case but, as we have explained, the definition of ” robbery ” in Nigeria is essentially different from that of the English law.

The appeals of all the appellants are dismissed.