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.