Daniel Obi & Ors. V. The State (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C 

In the Charge No. LA/24C/70 in the High Court of Lagos, the 1st to the 6th appellants – Daniel Obi (alias Danike), Stephen Nwabene (alias Obi), Augustine Ibe (alias Ben), Roland Ojei, Ndubuisi Okorie and Sule Alabi Williams (alias Adagudu) – were together with one John Hazoume charged on information containing two counts of murder and one of robbery.

The counts in the information were in the following terms:

“Statement of Offence – 1st Count:

Murder, contrary to Section 319 (1) of the Criminal Code.

Particulars of Offence:

John Hazoume (m), (2) Daniel Obi alias Danike (m), (3) Stephen Nwabene alias Obi (m), (4) Augustine Ibe alias Ben (m), (5) Roland Ojei (m), (6) Ndubuisi Okorie (m) and (7) Sule Alabi Williams alias Adagudu (m), on the 9th day of November, 1969, at Lagos in the Lagos Judicial Division, murdered Mufutau Balogun (m).

Statement of Offence – 2nd Count:

Murder, contrary to Section 319 (1) of the Criminal Code.

Particulars of Offence

John Hazoume (m), (2) Daniel Obi alias Danike (m), (3) Stephen Nwabene alias Obi (m), (4) Augustine Ibe alias Ben (m), (5) Roland Ojei (m), (6) Ndubuisi Okorie (m), and (7) Sule Alabi Williams alias Adagudu (m), on the 9th day of November, 1969, at Lagos, in the Lagos Judicial Division murdered Edwin Effiong (m).

Statement of Offence – 3rd Count:

Robbery, contrary to Section 402 of the Criminal Code.

Particulars of Offence

John Hazoume (m), (2) Daniel Obi alias Danike (m), (3) Stephen Nwabene alias Obi (m), (4) Augustine Ibe alias Ben (m), (5) Roland Ojei (m), (6) Ndubuisi Okorie (m), and (7) Sule Alabi Williams alias Adagudu (m), on the 9th day of November, 1969, at Lagos, in the Lagos Judicial Division, robbed one Mufutau Balogun (m) of the sum of 12,000pounds and at the time of such robbery did use personal violence on the said Mufutau Balogun (m).”

All the accused persons were tried by a Judge, (George J.), with a jury. The trial was a protracted one. In all, 38 witnesses gave evidence for the prosecution and 9 for the defence. After due hearing of relevant evidence and the summing up by the learned trial Judge, the jury returned a unanimous verdict in which John Hazoume was found not guilty on all the counts, but the 1st to the 6th appellants guilty on all the three counts of the information.

The learned trial Judge thereupon acquitted John Hazoume and convicted each of the 1st to the 6th appellants separately on the 1st and 2nd counts of murder and also separately sentenced each of them on each of the said counts to death. He also convicted each of them of robbery and sentenced each of them to 40 years imprisonment with hard labour on that count.

The 1st to the 6th appellants have now appealed against their conviction. The only ground of appeal argued before us on behalf of the 1st to the 5th appellants concerns the question of corroboration and was that the learned trial Judge failed to direct the jury sufficiently not to convict on the uncorroborated evidence of accomplices and that there was no evidence or corroborative evidence that the 3rd appellant knew that there was going to be a robbery involving the use of guns or that he agreed to take part in such robbery.

For the 6th appellant the grounds argued were as follows:-

1. The learned trial Judge failed to direct the jury properly or sufficiently on the law relating to accomplices. The 27th and 28th prosecution witnesses having confessed to participation in the alleged crime, the learned trial Judge ought not to have left the jury with the impression that it was open to them to treat either of them otherwise than as an accomplice.
2. The learned trial Judge further failed to direct the jury properly on the law and practice relating to accomplices when he said:

“The warning I am giving you here is not that you cannot convict the uncorroborated testimony of an accomplice but that it is dangerous to do so.”

The jury should have been directed that they ought not to convict on the uncorroborated testimony of an accomplice and it was not enough to have warned them merely of the danger of convicting upon such evidence.

3. The learned trial Judge erred in law in failing to direct the jury that there was no corroboration of the evidence of the 27th prosecution witness to the effect that the 7th Accused aided the 2nd Accused in the commission of the alleged offences by giving him a gun with ammunition.
4. The case against the 7th Accused was not proved beyond reasonable doubt in that it was not established that any of the guns issued to the said Accused person at the relevant and material period was identical with any of the guns used for purposes of the robbery.
5. The finding against and conviction of the 7th Accused is unreasonable and cannot be supported having regard to the evidence.’

From the foregoing it is evident that the attack by the counsel for the appellants was in the main directed against the summing up by the learned trial Judge on the question of accomplices and the lack of corroboration of the evidence given against the appellants by such accomplices. There was, however, also an alternative submission made to us on behalf of the 6th appellant which was to the effect that if even the court disagreed with the submissions of learned counsel on his behalf on his conviction on the charge of robbery, his conviction on the charge of murder should not be allowed to stand.

Mr. Akinrele, learned Counsel for the 1st to the 5th appellants, who, incidentally, concentrated his attack on the case against the 3rd appellant in his submissions contended that it was the duty of the learned trial Judge to direct the jury not to convict any of the appellants on the uncorroborated evidence of accomplices; that it was not sufficient for him to say that it was dangerous to do so; that before the 3rd appellant could be convicted it was the duty of the prosecution to show that he either had procured or counselled the commission of the offences of which he was convicted; and that there was no evidence of a common intention as distinct from a common objective on the part of the 3rd appellant to carry out the robbery involving the use of firearms with the other appellants who were convicted. Learned Counsel finally submitted that the evidence by the prosecution against the 3rd appellant did not support a common intention to rob but merely an intention to blackmail the participants in the robbery for the purpose of obtaining money from at least one of them and that the jury should have been so directed.

For the 6th appellant, Chief Williams, who concentrated his attack on the evidence of Jamiyu Sule (P.W.27) and Bashiru Adeoye (P.W. 28), pointed out that the strongest evidence against the 6th appellant was that he gave out the guns which were used in the commission of the robbery to the 1st appellant through Jamiyu Sule (P.W. 27) and that both Jamiyu Sule and Bashiru Adeoye (P.W. 28), the two taxi drivers involved in the case were self-confessed participes criminis and therefore accomplices. Learned counsel then contended that on the authority of Davies v. Director of Public Prosecutions (1954) AC 378 the learned trial Judge erred in leaving to the jury the decision as to whether or not Jamiyu Sule (P.W.27) and Bashiru Adeoye (P.W.28) were accomplices instead of himself deciding the question and thereafter telling the jury to so find in his summing up; that because of the failure to so decide the issue, the jury were left without any proper guidance but with the impression that it was open to them whether or not to treat both or either of them as accomplices; that in the circumstances it was impossible to say whether or not Jamiyu Sule (P.W.27) and Bashiru Adeoye (P.W.28) were treated by the jury as accomplices or whether or not the jury did look for corroborative evidence; and that that being so, it was impossible to hold that a miscarriage of justice did not occur.

It was further contended that it was not enough for the learned trial Judge to have warned the jury that it was dangerous to convict on the uncorroborated evidence of accomplices. He ought on the authority of Bello v. The State (1966) 1 NMLR 223; so it was contended, to have told them positively that they must not convict and that by failing to do so the learned trial Judge erred in law and the conviction of the 6th appellant, at least on the charge of murder, should therefore be set aside.

We would now consider these submissions. As regards the submissions on behalf of the 1st to the 5th appellants, there can be no question that the evidence implicating them with the commission of the offences charged was overwhelming. The case against the 3rd appellant was carefully reviewed by the learned trial Judge in his summing up to the jury. True enough the strongest direct evidence against him was given by Bashiru Adeoye (P.W.28) albeit an accomplice; but there was also evidence given by Rasheed Olawale Dosunmu (P.W.35) an officer of the Standard Bank Nigeria Ltd. of how he (3rd appellant) opened a savings account with the Standard Bank with an initial deposit of 40pounds and how on 24th November, 1969, that is, after the robbery, he also deposited 300pounds into the said account. That piece of evidence was confirmed by the 3rd appellant himself in his confessional statement, Exhibit HH, to the Police. In the statement the 3rd appellant spoke of his meeting and conversation with Stephen Nwabene (alias Obi), the 2nd appellant, about the robbery to be carried out with some armed men and how he was to be present to receive the 1st appellant’s share of the booty, and how after the robbery he had received 300pounds as his own share of the booty.

On this aspect of the case the learned trial Judge, we think, adequately summed up the case against the 3rd appellant when in his direction to the jury he said inter alia:

“You will observe in Exhibit HH, while the 4th accused was anxious that the robbery should take place, and that he should share in the proceeds of the robbery, he was not prepared to take part in it. He was present at the meeting in the house of the 2nd accused, that is if you believe the evidence of p.w.28 and it is for you to decide whether you can infer from that that he aided or procured the other accused persons in committing the act of robbery. If you believe P.W. 28, it means that he knew that the other accused carried sub-machine guns to commit the offence of robbery and also that on the 9th of November, the other accused persons went out to commit the offence of robbery.”

And further:-

“I have already told you that robbery and murder are two distinct offences and that in order to bring a person within the category of offenders on the first and second counts, it must be shown that he knew that they were going to use a degree of violence which might involve killing or doing grievous bodily harm. Did the 4th accused know that the others carried guns Would you say that he did not know the degree of violence contemplated

x x x x

In Exhibit HH, the 4th accused admitted receiving the proceeds of the robbery. It is now for you to decide, as a matter of fact, whether he aided the accused persons in committing the offence of robbery. You must first decide whether to believe Bashiru Adeoye. Having decided that, you will look for corroboration of his evidence.

x x x x

In his statement, Exhibit HH which I gave read to you, he said “I advised him say he must go with them to let Danike show him where the money will be shared.” Did he counsel Did he procure It is for you to decide.”

In view of the foregoing we are satisfied that on this aspect of the case, Mr. Akinrele was not justified in his criticism of the direction to the jury on the case against the 3rd appellant given by the learned trial Judge.

The learned trial Judge was also criticized by both Mr. Akinrele and Chief Williams for his alleged failure to direct the jury not to convict on the uncorroborated evidence of accomplices. Chief Williams even went further. As already stated he contended that the learned trial Judge erred in failing to tell the jury that Jamiyu Sule (P.W.27) and Bashiru Adeoye (P.W. 28) were accomplices. This criticism in our view was again not justified. Indeed it was ill-founded because in his direction to the jury in dealing with the case of the 6th appellant the learned trial Judge positively was of the view that Jamiyu Sule (P.W.27) and Bashiru Adeoye (P.W. 28) were accomplices.

On this point the learned trial Judge said:

“The 7th accused himself gave evidence on his behalf. Let me remind you that the evidence of Jamiyu Sule is to the effect that the 7th accused handed over to him two sub-machine guns which he handed over to the 2nd accused. I have also told you and I still remind you that p.w.27 is capable of being an accomplice. Since he could also have been charged with the commission of this offence under the provisions of Section 7, then it is a matter of fact for you to decide whether in actual fact he is an accomplice or not. Let me tell you my own view. It is this, that if you believe the evidence of P.W. 27 then he could have been charged with the commission of the offence in the same way as the 7th accused has been charged. He is, therefore, in my view, an accomplice and his evidence needs corroboration.

x x x x

If you do believe the evidence of p.w.27, you should look for corroboration because it is dangerous to convict on the uncorroborated evidence of an accomplice.”

Surely the last paragraph of the above quoted passage of the direction to the jury by the learned trial Judge is in accord with the rule of practice which “deserves all the reverence of law” and was relied upon by this court in Chief Odofin Bello v. The State (supra) “namely, that it is not safe to convict on the evidence of an accomplice unless such evidence has been corroborated in a material particular.” The direction by the learned trial Judge in this case on appeal is certainly more favourable to the appellant than the “first proposition” to which we were referred by Chief Williams as stated in the passage of the judgment of Lord Simonds, L.C., in Davies v. Director of Public Prosecutions (supra) when he said at p. 399:-

“First Proposition:

‘In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the Judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated.’ ”

In any case, as was, rightly, in our view, pointed out by Mr. Ejiwunmi, Acting Deputy Director of Public Prosecutions, Lagos State, the first proposition as formulated above was an obiter dictum.

The material evidence against the 6th appellant by the prosecution was given by Jamiyu Sule (P.W.27), Kaiser Kanuri (P.W.25) and Titilola Michael (P.W.33). The most damaging evidence being given by Jamiyu Sule (P.W.27) who was an accomplice. There was also an admission by the 6th appellant under cross-examination that the sub-machine gun No. KR123588, Exhibit C, which was proved to have been the gun used in the robbery in the course of which the two murders were committed, was issued to him by the Military Authorities on 3rd November, 1969, that is, six days before the robbery. That admission confirmed the evidence given by Jamiyu Sule (P.W.27) that Exhibit C was supplied to the robbers by the 6th appellant. There was also the evidence given by Sergeant Titilola Michael (P.W.33) that he it was who issued Exhibit C to the 6th appellant; and Kaiser Kanuri (P.W.25) also swore that he recovered Exhibit C from the 6th appellant in December, 1969.

It seems to us abundantly clear from a careful scrutiny of the proceedings that the summing up by the learned trial Judge, the subject matter of the complaints in these appeals, if anything, was most favourable to the appellants. Chief Williams himself had conceded that the 6th appellant was rightly convicted on the charge of robbery. The verdicts returned by the jury were reasonable and amply supported by the evidence before the court, in our view.

In all the circumstances of this case, we are satisfied that the appellants were rightly convicted. The appeals therefore fail and are dismissed. The conviction of the appellants and the sentences passed on them are affirmed.

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SC.372/1970