Doka Baba Alhaji And Others Vs The State (1967)

LEWIS, J.S.C.

The five appellants who were the first, second, third, sixth and seventh accused at their trial were convicted of brigandage contrary to section 297 of the Penal Code by Reed S.P.J. in the Jos High Court in case JD/5C/67 on the 1st of June, 1967.

The case for the prosecution was that the accused were a gang travelling in the train from Kano to Port Harcourt on the 10th of March, 1966 and just before the train arrived at Iri station, they jointly held and robbed one Bonniface Nweke of £200. Bonniface Nweke had reported the accused to a policeman in plain clothes on the train who had in turn called P.C. Cyril Udom, but when they asked the accused to hand over the money they threatened the policemen with knives and then the accused other than the first and second accused jumped out of the moving train whilst when the train was about to reach Iri station the second accused jumped out and broke his leg and the first accused was arrested.

Now, whilst the plain clothes policeman was never called, evidence on oath was given at the preliminary inquiry by the victim, Bonniface Nweke and by P.C. Cyril Udom and the learned trial Judge upon an application by the prosecution under section 239 of the Criminal Procedure Code exercised his discretion at the trial and admitted the depositions of these two witnesses as they could not be brought to Jos owing to the unsettled conditions in the country then. When he came to give judgment the learned trial judge said of the victim’s evidence-

“Now the only direct evidence of the robbery of Bonniface Nweke is the evidence in the deposition of Bonnfface Nweke. It is very unfortunate that he could not give evidence; for reasons already recorded he could not but his deposition is evidence in this court. Nevertheless the court has not had the advantage of seeing him and studying his demeanour in the witness box; and I would not, therefore, convict on his evidence unless there was corroboration.”, but having decided that because he had not seen the witness he wanted corroboration of his evidence, he found-

“the evidence of the first, the second and the third prosecution witness is, in my view capable of providing corroboration of Bonnfface Nweke’s evidence in his deposition.”

So far as P.C. Cyril Udom’s deposition was concerned the learned trial judge said-

“I now refer to the evidence of P.C. Cyril Udom contained in his deposition exhibit K. Again it is unfortunate that I have not the advantage of seeing him In the witness box and studying his demeanour. If his evidence Is true there is corroboration of Bonniface Nweke’s evidence; the behaviour of the accused persons when P.C. Cyril Udom saw them was consistent with Bonniface Nweke’s story and Inconsistent with the explanations of the accused persons.”

Now on analysing the evidence of the first, second and third prosecution witnesses whom the learned trial judge believed and whom he thought afforded the necessary corroboration of the victim’s story, it seems to us that it establishes no more than that the first and second prosecution witnesses knew that all the accused frequently travelled on the train and got off at Iri and the third prosecution witness knew all the accused except the third accused so travelled, but the first and second prosecution witnesses saw only the third, sixth and seventh accused at Iri on the 10th of March, 1966, whilst the third prosecution witness saw only the first, sixth and seventh accused at Iri on that date.

The defence of the accused was not one of alibi as they did not deny being on the train but the first accused claimed that he was gambling with Bonniface Nweke and when Bonniface Nweke refused to pay they argued and a man in plain clothes said he was a policeman and that the first accused should keep quiet but the first accused was then beaten up. The second accused said he saw this happen and said he got beaten up too but whilst the third, sixth and seventh accused admitted being on the train they denied having anything to do with or knowing of any robbery of Bonniface Nweke.

In our view the evidence of the first, second and third prosecution witnesses could not amount to corroboration of the evidence of Bonniface Nweke as they did not in any way corroborate the actual act of brigandage but only went to show the presence of the first, third, sixth and seventh accused (they did not mention the second accused) at Iri at that date and this was not in dispute. What was in dispute was whether the accused jointly robbed Bonniface Nweke and the first second and third prosecution witnesses’ evidence did not assist as to that.

Mallam Belgore for the respondent submitted to us that there was no legal requirement that there must be corroboration of evidence contained in depositions duly admitted and once therefore the learned trial Judge had admitted the depositions Mallam Belgore submitted that he could rely on the evidence of Bonniface Nweke without looking for corroboration. That the courts in England have appreciated the need to use every effort to obtain witnesses before admitting their depositions was shown in R. v. Collins 26 Cr. App. R. 177; [1938] 3 All E. R. 130 when the prisoner was charged with breaking into the pavilion of a bowling club and stealing 11 s at Chester County Sessions, and at the trial no prosecution witness except one, a police officer, was present because none of them was served with notice to appear at the Sessions as the accused having previously indicated an intention to plead guilty they were only conditionally bound over to attend the trial.

After refusing the prisoner’s application for an adjournment, the depositions were proved in accordance with section 13 of the Criminal Justice Act, 1925, and read to the jury. The Chairman then summed up to the jury and they were invited to convict and did convict the prisoner. He appealed to the Court of Criminal Appeal which expressed the view that the course taken at the trial was not contrary to the language of the Act and refused on that ground alone to quash the conviction but the appeal was allowed because of the inadequacy of the summing up. Commenting on the course adopted at the trial, the court stated that-

“The result of It was to deprive the jury of the inestimable advantage – the one great advantage to which those who uphold the system of trial by a jury always point of the opportunity not only of seeing the witnesses who give evidence, and of hearing what they have to say, but also of observing their demeanour in the witness box, and of themselves exercising the right, if they chose, to ask the witnesses questions and further of hearing the witnesses cross-examined by the accused, ff he so desires. Nothing of the sort took place here.” and went further to point out that it would be eminently undesirable to follow such a course in the future.

It was not suggested here, however, that the learned trial judge wrongly exercised his discretion to admit the depositions and we appreciate that once the requirements of section 239(1) of the Criminal Procedure Code have been met, as they were here, the deposition of a witness may, in the discretion of a trial Judge, be read and accepted as evidence, but when the evidence in the deposition stands alone in proving a vital part of a prosecution case then we consider that a judge should before accepting the evidence in the deposition be cautious and appreciate that he will be acting on the evidence of a witness whom he has not seen and whose veracity he has been personally unable to assess so that he may well in appropriate cases consider it desirable as here, to seek corroboration.

Here the learned judge decided not to convict on the evidence in the deposition of Bonniface Nweke that he was robbed by the appellants and with that exercise of discretion one cannot quarrel. The learned judge thought that the evidence of Audu Tanko prosecution witness 1, Hausa Zaria prosecution witness No. 2 and Isufu Buzu prosecution witness No. 3, afforded corroboration; Mallam Belgore conceded that their evidence did not do so. He argued, however, that as the trial Judge accepted the evidence in the deposition of P.C. Cyril Udom he could have relied on k. The difficulty in the reasoning lies in the fact that the trial judge was not willing to act on the deposition of Bonniface Nweke without corroboration: and ft is hard to see how the deposition of the constable of the complaint made to him by Nweke could be corroboration, in the sense of implicating the accused as being evidence or tending to show that Nweke had been robbed by them.

We note from a passage already quoted, that, in speaking of the constable’s deposition, the learned judge comments that “the behaviour of the accused when P.C. Cyril Udom saw them was consistent with Bonniface Nweke’s story and inconsistent with the explanations of the accused person.” If the trial judge had been willing to act on the deposition of Bonniface Nweke without corroboration, then that comment would have been valid in the sense that on the evidence as a whole there was no ground for reasonable doubt on the guilt of the accused. As however, he was not willing to act on Nweke’s deposition without corroboration, we think that he should have acquitted them.

The appeals of the five appellants are accordingly allowed and their convictions and sentences are set aside and a verdict of acquittal in respect of each accused is entered.

BAIRAMIAN, J.S.C.:- The ground on which my learned brethren have allowed the present appeal is in substance this: the trial judge took the view that as the only direct evidence of the robbery was in the deposition of Nweke, whom he had not the advantage of seeing, he would not convict on it without corroboration, but what he regarded as corroboration was not corroborative In the true sense, and he should have acquitted the accused persons.

My learned brethren do not, however, confine their judgement to the ground of their decision, but say more: they cite R. v. Collins, (26. Cr. App. R. 177; [1938] 3 All E.R. 130) and relying on a passage in it make, In regard to a deposition admitted under section 239 (1) of the Criminal Procedure Code, the following observation, namely that-

“when the evidence in the deposition stands alone in proving a vital part of a prosecution case then we consider that a judge should before accepting the evidence in the deposition be cautious and appreciate that he will be acting on the evidence of a witness whom he has not seen and whose veracity he has been personally unable to assess so that he may well in appropriate cases consider it desirable, as here, to seek corroboration.”

I would rather follow the usual Supreme Court practice of not expressing an opinion on anything that is not necessary to the decision of the case in hand: an obiter dictum is not binding and may prove a source of embarrassment. I would also follow the Privy Council practice of dealing only with cases which were canvassed in argument, it is important to have the benefit of what counsel submit is the effect of a given case. The case of Collins was mentioned at the hearing by one of my learned brethren, but the reports were not in court, Mallam Belgore had not seen the case and could not offer any argument on its effect in light of its facts

.The facts in Collins were briefly these. He told the examining justices that it was unnecessary for the witnesses to appear as he would be pleading guilty to the charge; the justices bound them over conditionally to attend the trial upon notice given to them and not otherwise; and so they did not attend at Quarter Sessions. But there Collins pleaded not guilty and applied for an adjournment to call witnesses to prove an alibi; the court refused his request. Except for a police witness (who it seems was not called to testify) the prosecution witnesses were not present; the depositions were proved and read to the jury, and after a short summing up the jury found him guilty. The arguments for him on appeal were (1) that it was not right that he should lose his right of cross-examining the witnesses for the prosecution because he had said to the justices that he would plead guilty; (2) that the summing up was entirely inadequate. The Court of Criminal Appeal ruled that it could not quash the conviction on the first argument; but because the summing up was bad the court allowed the appeal.

On the first argument the court made observations from which my learned brethren have quoted the passage near the top of p.182 in 26 Cr. App. R.; between E and G at p. 132 of [1938] 3 All E.R. The court explained that the power to bind over witnesses conditionally and read their depositions at the trial was not meant to abolish the ordinary method of trial by jury; the course taken at the trial was undesirable, and for future guidance the court said (at the bottom of p. 182 In Cr. App.R.):

“in our opinion, in cases of a plea of not guilty at the trial, after the accused had pleaded guilty in the court below, the court ought to adjourn the case until some day when the witnesses, who have been bound over conditionally can be brought together …….. an this case it would have been far better if the deputy chairman had exercised in favour of the appellant what is no doubt a discretion and had granted an adjournment of the case. Notice could then have been given at least to those witnesses for the prosecution who could not be described as formal witnesses, and, on the trial, the prosecution could have proved the facts of the case.”

The Court of Criminal Appeal was directing its mind to the course taken at the trial of Collins; its remarks contemplate witnesses who can be found and notified to attend the trial in accordance with their conditional recognizance’s; and it is in that light that the case should be read: see the headnote in 26 Cr. App. R.; the note on Collins In pare 1239 in Archbold (ed. of 1966); and note (m) at p. 418 in vol. 10 of Halsbury’s Laws of England (3rd ed).

(The chapter on Criminal Law was written by Mr. Justice Humphreys and others; it was he who gave the judgment in Collins.)

I note that in Collins the Court of Criminal Appeal was not willing to quash the conviction on the ground that it was based entirely on depositions; neither did the court say that if the evidence on a vital part of the prosecution case is only to be found in a deposition, it cannot be used for convicting unless it is corroborated by oral evidence at the trial. Collins is not an authority for any such proposition; nor is it cited for that in the text books.

Collins, as I have said, is concerned with witnesses bound over conditionally and contemplates that they can be found and notified to appear. In the present case Nweke could not be found and called at the trial: It is a different situation.

The law of evidence grew up in England as pan of the practice of the courts. The earliest cases of admitting the deposition of a witness who could not be found were, I believe, that of a witness who was kept out of the way by the procurement of the accused, and in a trial for murder or manslaughter where the victim of the assault died after making his deposition. For us the cases in which the evidence in a deposition is relevant for the purpose of proving at the trial the truth of the facts which k states are set out in section 34 of the Evidence Ordinance. By the nature of things the witness – his deposition may be the only evidence on a vital part of the case cannot be called. Must the trial court not act on it without oral evidence of corroboration? For my part on principle I make no comment but leave the point open for argument when the case requires a decision; it may come up on an appeal from conviction, or on an appeal from acquittal; it is an important point on the law of evidence which I suggest might well be heard by a full court with the benefit of argument and of any authorities which might be found.

I may perhaps without breach of principle say that there may be or there may not be for all I know  some difference in the criminal law of the Northern States. In this case the depositions were tendered under subsection (1) of section 239 of the Criminal Procedure Code.

I have also read the subsections (2) and (3) which may be unfamiliar: (If memory serves, there was something similar in the law of Cyprus). There is no need for me here to say anything on what subsections (2) and (3) may mean or on what effect they may have on depositions received under subsection (1) and the point of corroboration.

Other Citation: (1967) LCN/1359(SC)