Gabriel Ogundowole Vs Commissioner Of Police (1970)
LawGlobal-Hub Lead Judgment Report
B. A. COKER, J.S.C.
The appellant was tried on an information which charged him and another person on 9 counts as follows:
“Statement of Offence-Count 1
ROBBERY, contrary to S. 402 of the Criminal Code.
Particulars of Offence
Gabriel Ededey, Frank Odita on or about the 18th June, 1970, at Aba in the Aba Judicial Division robbed Nathaniel Ezekwem of 150 singlets valued 50, 256 ladies skirts valued 89p 12s 0d, 272 gowns valued 91p 16s 0d, 61 pairs of trousers valued 44p 19s 9d, 93 blouses valued 24p 6s 0d and immediately before the time of such robbery did use personal violence to the said Nathaniel Ezekwem.
Statement of Offence-Count 2
STEALING, contrary to S. 390 of the Criminal Code.
Particulars of Offence
Gabriel Ededey, Frank Odita on or about the 18th June, 1970, at Aba in the Aba Judicial Division stole 150 singlets valued 50, 256 ladies skirts valued 89p 12s 0d, 272 gowns valued 16s 0d, 61 pairs of trousers valued 44p 19s 9d, 93 blouses valued 24p 6s 0d the property of Nathaniel Ezekwem.
Statement of Offence-Count 3
STEALING, contrary to S. 390 of the Criminal Code.
Particulars of Offence
Gabriel Ededey, Frank Odita on or about the 19th June, 1970, at Aba in the Aba Judicial Division stole 1 carton of stout (small) valued 3p 5s 0d, 1 crate of small Fanta valued 2, 1 packet of Asepso soap valued 11p 5s 0d, 1 carton of milk valued 4, 1 carton of Tate sugar valued 316s 0d, 1 dozen tins of Bournvita valued 2p 2s 0d, 2 dozen cakes of Lux soap valued 1p 10s 0d, 1 dozen cakes of Rexona soap valued 15s, 1 roll of Gold Leaf cigarettes valued 1p 2s 0d, the property of Julius Anyanwu.
Statement of Offence-Count 4
ABUSE OF OFFICE, contrary to S. 104 of the Criminal Code.
Particulars of Offence
Gabriel Ededey, Frank Odita on or about the 18th June, 1970, at Aba in the Aba Judicial Division, being persons employed in the public service of Nigeria, namely, Police Officers, in the abuse of the authority of your office as superior police officers did an arbitrary act by instructing mobile police men (Mopol 9) under your command to rob Julius Anyanwu, a trader, of his wares at the Aba market, an act prejudicial to the rights of the said Julius Anyanwu.
Statement of Offence-Count 5
STEALING, contrary to S. 390 of the Criminal Code.
Particulars of Offence
Gabriel Ededey, Frank Odita on or about the 18th of June, 1970, at Aba in the Aba Judicial Division stole 3 cartons of fish valued 33p 3s 9d the property of Herbert Nwagbara Atubi.
Statement of Offence-Count 6
STEALING, contrary to S. 390 of the Criminal Code.
Particulars of Offence
Gabriel Ededey on or about the 21st June 1970, at Aba in the Aba Judicial Division stole one Phillips transistor radio set with a loudspeaker valued 17 the property of Ujuata Nwosu.
Statement of Offence-Count 7
STEALING, contrary to S. 390 of the Criminal Code.
Particulars of Offence
Gabriel Ededey on or about the 21st June 1970, at Aba in the Aba Judicial Division stole 1 sewing machine valued 27pounds the property of Mrs. Akobundu.
Statement of Offence-Count 8
STEALING, contrary to S. 390 of the Criminal Code.
Particulars of Offence
Gabriel Ededey on or about the 21st June, 1970, at Aba in the Aba Judicial Division stole one wall clock valued 9p 10s 0d the property of Emmanuel Uwaekwe.
Statement of Offence-Count 9
Assualt occasioning harm, contrary to s.355 of the Criminal Code.
Particulars of Offence
Gabriel Ededey on or about the 19th June, 1970, at Aba in the Aba Judicial Division unlawfully assaulted Timothy Onuoha thereby occasioning him harm.”
At their trial some 16 witnesses gave evidence for the prosecution and at the end of the trial the 2nd accused, by name Frank Odita, was discharged and acquitted. The appellant, who was the 1st accused, was convicted on counts 5, 6, 7, 8 and 9 of the information and sentenced accordingly. The incidents culminating in the charges against the appellant concerned his activities on the 18th, 19th and 21st June, 1970, at Aba and Mbawsi in the East-Central State respectively.
It was given in evidence that on the 18th June, 1970 the appellant was the acting Chief Superintendent of Police in charge of the Aba police detachment; he was also the Squadron-Leader of the Mobile Police Force known as Mopol 9 and was also the Principal Police Officer, Aba. The 2nd accused was the Assistant Superintendent of Police in Aba and the second-in command to the appellant. A prosecution witness, Timothy Onuoha (4th P.W.) had testified that on the 20th June, 1970 at about 2 p.m. a mobile police van, together with some mobile police officers, invaded his petrol station at No. 82 Asa Road, Aba and beat him up severely. He testified as follows:
“I attempted to run away and another one of them held me back, tore my singlet and they used a piece of wire to flog me and I bled. The 1st accused was the man who started to beat me. He was the one who flogged me with a piece of wire when his gun dropped from him. He then looked round and said ‘Ibo man, you own these vehicles’ and I said that they were not mine but belonged to my customers. He went to one of the vehicles, drew out the driver and beat him. When he was about to go he turned to me and brandished his fist on me and said that he was the head of the mobile police in Aba.”
He then had to see a doctor who also gave evidence that on the 20th June, 1970 he treated Timothy Onuoha and found as follows:
“. . . that the chest was swollen, the face was swollen, he had a slight abrasion on the left shoulder and he found it difficult to breathe in and out. ”
Again both P.W. 2 (Robert Ibezabo), P.W. 5 (Chief Ugorji Eke) and P.W. 6 Godfrey Ifeadike testified to having called the appellant and warned him that his mobile police personnel had been molesting the inhabitants of Aba and had been raiding, and pillaging. The witnesses also stated that the appellant had told them that money in the sum of 400pounds and over had been stolen from his wife and that the purpose of the several operations was to enable him retrieve the money. The 7th P.W. (Olukayode Uanreroro) a Sub-Inspector of Police in the mobile police force, gave evidence about the details of the activities of the appellant between the 18th and the 21st June, 1970. He stated that on the 18th June, 1970 the appellant instructed him to turn out the whole of the mobile force at Aba numbering 114 and he gave the appellant the details of the men available for the parade and their ranks as well as the type and quantity of arms and ammunition which they had with them. The appellant was in the command Rover with the red flag and followed by the bus carrying the men with arms, some of them with pistols, some with sub-machine guns and others with Mark 4 rifles.
They all followed the appellant, according to P.W. 7, until they reached a spot on the Ehi-Asa Road where they were instructed to “disembus”. They did so and were instructed by the appellant “to start arresting people and to carry the articles around into the lorry”. He testified further that:
“As soon as we landed and began to arrest people others fled in panic and abandoned their goods and these goods we were asked to carry into the police lorry which we brought with us. In obedience we began to carry the goods into the lorry and the areas covered by the operation were the market and both sections of Ehi Road. During the operation private cars were seized, one of which was occupied by an Inspector of Police-Inspector Nwankiti. He was instructed by the 1st accused to arrest himself and take the car to the police station and he did but he was released the following day.”
The P.W. 7 stated that the goods seized and carried away by them included singlets, beverages, clothing materials, gari in bags as well as other foods. They had whips with them, which they were instructed to use freely. The operation went on all night and they did not return to the barracks until about 5 a.m. The witness further testified that on the following day, i.e. the 19th June, he learned that the operation had been resumed and that some men had left with the appellant for the market area. He did not take part in the operations of that day but according to him, he arrived at the scene in time in order to save his sister who, according to him, had been mistakenly beaten-up by the appellant. The witness testified further that the goods removed from the market area on the 18th June were eventually removed to the police stores where the kits and rations were being kept.
Some 5 cartons of fish were also seized as well as some live chickens and some 5 pedal bicycles. He testified further that after warning the 2nd accused that the fish and live chickens were perishable goods, the 2nd accused instructed him that the appellant had directed that 2 cartons of fish and all the chickens should be sent to the appellant. Later, one Mr. Atubi (he gave evidence as P.W. 8) appeared to claim the fish and he was advised by the 2nd accused to put up his claim for the cost of the fish and that this would be paid to him. The witness further stated that on the 21st June, 1970 and on the instructions of the appellant, he proceeded at the head of a mobile police unit, comprising 25 men, “to a compound at Mbawsi” in order to track down some smugglers as well as some arms and ammunition. He did get to Mbawsi with his men and carried out the operation.
The goods seized by them included some bales of clothing, one hand Singer sewing machine, one wall clock and a Phillips radio with loudspeaker. They were off-loaded in the quarters of the appellant on his instructions.
There were other witnesses who gave evidence pointing to the complicity of the appellant. P.W. 8 (Herbert Atubi) an Aba trader, saw the appellant at the Aba police station on the 19th June, 1970 where he was boasting that “Aba was rough but he was going to teach the people of Aba a little bit of lesson”; and P.W. 9 (Nathaniel Ezekwem) an Aba trader, P.W. 10 (Theophilus Akobundu) a Mbawsi trader, P.W. 11 (Ujuaku Nwosu) a trader from Mbawsi, P.W. 12 (Salome Nwosu) housewife and trader of Mbawsi and P.W. 13 (Eunice Uwakwe) all gave evidence depicting the widespread looting and general beating and flogging of people that took place during those days. The story of the 7th P.W. was substantially corroborated in material particulars implicating the appellant by the 14th P.W. (police constable Felix Ekioteme), the 15th P.W. (Sylvanus Obi) and the 16th P.W. (Longinus Egbuchulam) who were as well police officers and took part in the various operations of looting, robbing and beating-up.
P.W. 8, that is Herbert Atubi, claimed, as stated before, the fish removed from his store. P.W. 10, that is Theophilus Akobundu, claimed the wall clock stolen from the house of one Chimele Nwosu. P.W. 11 (Ujuaku Nwosu) and P.W. 12 (Salome Nwosu) claimed the Phillips radio carried away as well.
At his trial the appellant gave evidence in his defence and denied ordering the mobile police to raid Aba or anywhere else on the dates named on the charge as well as taking part in any looting of property or assaulting Timothy Onuoha (4th P.W.) as given in evidence. He stated that the whole story was concocted against him by his subordinates who did not like him.
In the course of a reserved judgment, in which the learned trial judge (Ikpeazu J.) extensively reviewed the evidence, he observed as follows:
“I am satisfied on the evidence of the P.W. 7 Olukayode Uanreroro, P.W. 14 Felix Ekioteme, P.W. 15 Sylvanus Obi whom I consider truthful that the operations on the two occasions were mounted headed and directed by the 1st accused Gabriel Ededey for the purpose of recovering the sum of money reported to be stolen from his wife in the shed at Ehi road near the market.”
Later, in the same judgment, he observed thus:
“The 1st accused may not be a darling of his subordinates. He certainly is not. He is a tin god and a bully and terror to them as I can gather from the facts and circumstances of this case but taking all that into account I am perfectly satisfied that the police officers who testified in this case did so free from bias and P.W. 7, P.W. 15 and 2nd accused impressed me as witnesses of truth and I believe them and prefer their evidence wherever it conflicts with that of the 1st accused. I find the offences of stealing in counts 6, 7 and 8 firmly established against the 1st accused. I also accept the evidence of P.W. 4 Timothy Onuoha that he was unlawfully assaulted by the 1st accused at his petrol station. This evidence is supported by the accused’s own driver who was at the scene.”
The learned trial judge then convicted the appellant on counts 5, 6, 7, 8 and 9 of the information and sentenced him to various terms of imprisonment with hard labour.
This appeal is from that conviction. Before us the complaints were that as regards the counts of stealing there was no direction about corroboration of the evidence of the other police officers who should have been regarded as accomplices and that with regard to the count of assault on Timothy Onuoha, there was no proper direction that the identity of the appellant as his assailant should have been proved by the 4th P.W. and that there were inconsistencies in the evidence of the witnesses who told the story of the assault.
We have already set out the charges against the appellant on the several counts. Count No. 9 charges the appellant with assault occasioning harm on P.W. 4 (Timothy Onuoha) who told the court with meticulous detail what happened to him at his petrol station on the 19th June, 1970.
Undoubtedly, the witness saw the leader of the police group, which attacked him, and there is evidence from him that he had even instructed a solicitor to write the appellant claiming compensation from him for this same assault. Part of the evidence of the 4th P.W. on the point of the identification of the appellant is as follows:
“I did not know the 1st accused before the incident. His identity was disclosed to me by himself. He was the first person to assault me. He and one other came out of the van and started to beat me. The others were in the van and came out when they wanted to beat the other people. ”
Apart from all this, however, there is the evidence of the appellant’s own driver, Sylvanus Obi (15th P.W.) who undoubtedly knew the appellant and indeed gave evidence that the appellant was the leader of the police terror group that assaulted the 4th P.W. on the day of the assault. We think, therefore, that the identity of the appellant in connection with count No.9 was firmly proved. So was the charge itself generally. Dr. Anyaezo Ohiaeri (3rd P.W.) saw and treated the injuries on the 4th P.W. We cannot for ourselves see any inconsistencies in the evidence of the witnesses who had testified to this count (i.e. count No. 9) and do not consider that the complaint on appeal before us is justified.
Concerning the counts of stealing, i.e. Nos. 5, 6, 7 and 8, there was no dispute as to the asportation of the items of property involved. In the course of his judgment the learned trial judge observed concerning these counts as follows:
“I am quite satisfied that the 1st accused withheld the radio, sewing machine and wall clock ostensibly to recoup the loss sustained by the wife and he thereby deprived the owners of their goods. The act of Mr. Ededey as a senior police officer in misappropriating property of people to recoup himself for loss of money sustained by himself or his wife is to my mind the pinnacle of piracy and a very grave official scandal.”
Learned counsel appearing for the appellant had argued that prosecution witnesses Nos. 7, 14 and is, who were subordinate police officers acting and obeying the instructions of their boss, the appellant, should be regarded and treated as accomplices. The learned trial judge did not think that they were and we are in complete agreement with him.
None of those witnesses benefited in any way from the operations of June 1970 and the learned trial judge, as he was entitled to do, accepted their evidence in the way they gave it. We cannot accede to the argument that the police officers under orders by the appellant could have done otherwise. In support of his arguments on this ground of appeal-learned counsel for the appellant has relied on the provisions of section 7(b) and section 10 of the Criminal Code, cap. 30 (Laws of Eastern Nigeria, 1963), and has argued that by virtue of these sections of the Criminal Code those witnesses should be regarded “as parties to the offence”. The sections as far as they are material read as follows:
“7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
10. A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence. . ..”
Evidently, section 10 does not even come in for any consideration in this con. That section is concerned with giving assistance or protection to a known offender after he had committed the offence and for the purpose of enabling him to escape punishment. With respect to section 7(b), the offence postulated is that of doing or omitting to do something for the purpose of making it possible or easier for another person to commit the offence. The subsection envisages the complicity of a person not actually committing the offence himself, but whose act or omission is deliberately aimed at the purpose or purposes specified in the provision. The witnesses sought, by learned counsel for the appellant, to be treated as accomplices, were indeed engaged with the appellant on the act or the omission grounding the charges before the court though with different intents. We do not agree that the facts and circumstances of the present case warrant the application of section 7(b) or section 10 to those witnesses; rather the conditions operating in the area of the country concerned at the material time taking into consideration the actual acts or performances of those witnesses seem to justify the application to them of the provisions of section 32(b) of the Criminal Code.
We are however disturbed by the conclusions of the learned trial judge with respect to count No. 5 of the information, which charged the appellant with stealing 3 cartons of fish. The learned trial judge concluded that there was no evidence of the theft of 3 cartons of fish as charged and yet convicted the appellant on the same count for stealing 2 cartons. Clearly, the man Herbert Atubi (P.W. 8) gave evidence that during the operations some quantity offish was stolen from his store. He had also gone to the Aba police station to demand their return or payment for them. When he was requested to forward a bill to the police station for their value, he did so but according to him he was never at any time paid for the fish. Apart from this witness there were the 7th P.W. and the 14th P.W. who also gave evidence concerning this charge. P.W. 16 stated in his evidence as
follows:
“I handed two cartons of fish to Felix Ekioteme and Egbuchulam, mobile policemen, to deliver to the 1st accused on the instruction of the 2nd accused.”
In his evidence, the 14th P.W., Felix Ekioteme testified with respect to the stolen fish as follows:
“We went to the P.W. 7 as directed and he gave us three cartons of fish two of which he said were to be sent to the 1st accused and one to the 2nd accused. He also gave us five live chickens, which were to be sent to the 1st accused. We took possession of the fish and chickens and distributed them as directed by P.W. 7.
We did not meet the 1st accused and we delivered 2 cartons of fish and the 5 chickens to his wife. I did not meet the 2nd accused in and I left the fish in his kitchen. On his return I told him of the fish and he told me that the 1st accused wanted the fish and asked me to send it to him but I did not do so but I gave the carton of fish to Israel, a house boy to A.S.P. Idonije who was living in the same compound with us. I helped him lift the fish and he carried it to the 1st accused’s house.”
As for the 16th P.W. (Longinus Egbuchulam) he testified concerning the fish as follows:
“I remember 19th June, 1970. I was given three cartons of fish by P.W. 7. Out of these I delivered two cartons to the wife of the 1st accused and went to the house of the 2nd accused with the remaining one. As we were about to off-load it the houseboy of the 1st accused came to us and said that his master wanted the third carton brought to his house. We then took it to his house and off-loaded it and put it in the store. . . . I did not know the name of the 1st accused’s boy who came to demand the return of the fish.”
As stated before, in his evidence at his trial, the appellant denied all knowledge of the fish. and the delivery of any part of it in his house. That was all the evidence given by the prosecution witnesses and manifestly none of the witnesses said that any fish was in fact at any time delivered by him to the appellant. The case for the prosecution in short is that the appellant knew that the fish was delivered to his house and that he approved of that act. If that is so, we cannot see the evidence in support of it. The learned trial judge found that:
“They delivered the 2 cartons to the 1st accused.” He then stated:
“On this finding I find the charge of stealing 2 cartons of Atubi’s fish proved against the 1st accused.”
With respect, we cannot agree to this inference. Findings of fact must be predicated on admissible and accepted evidence and we are unable to find on the records any evidence in support of the learned trial judge’s finding in this respect. Not a single witness stated that he had delivered any fish to the 1st accused and we are of the view that on the totality of the evidence before the court on that count, i.e. count No.5, the appellant should have been given the benefit of the doubt and be discharged. We propose to do so now.
In the end the appeal succeeds with respect only to the conviction and sentence on count No. 5 of the information and it fails with respect to the other counts on which the appellant was convicted. We quash the conviction of the appellant on count No.5 and set aside his sentence on that count as well. We order that a verdict of acquittal and discharge on that count be entered for him. With respect to counts Nos. 6, 7, 8 and 9, the appeal fails and it is dismissed. The conviction on these counts and the sentences of the appellant thereon are affirmed.
Other Citation: (1970) LCN/1837(SC)
