Ozude V Inspector-general Of Police (1965)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

The Court allowed this appeal at the hearing, and will now give its reasons in writing. We then said that the trial was marred by the reception of hearsay evidence, and that the trial magistrate was not alive to the fact that the principal witness, namely Lazarus Uka, was an accomplice.

His evidence was that there being a case of assault and breach of the peace against some villagers, the corporal (who is the appellant) asked for £60, which he reduced to £50 on a later day; Lazarus says also that he went with £40 in the company of Mba Kanu and Ogboni Kanu to the corporal’s house-incidentally it was also the police station-but the corporal allowed him only to enter the parlour, and his two companions stopped at the verandah which led to the parlour. Inside the parlour, Lazarus gave the corporal the £40, saying it was £40. Next day the corporal asked him for another £10; Lazaurus said it could not be had, and the corporal asked for a bottle of schnapps, which Lazarus brought later. That was the core of his evidence. Mba Kanu was one of those arrested and bailed by Lazarus Uka. Mba Kanu’s evidence was that Lazarus came and told them that the corporal wanted £60 to spoil the case; that the people got £40 and charged Lazarus Uka to go with Mba Kanu and Ogboni Kanu to take the money; they went and found the corporal sitting inside his house, but he asked two of them to wait outside, and it was Lazarus alone who went inside with the corporal. Afterwards he came out, and the three of them went and told the people that they had carried out their task. Mba Kanu also spoke about his buying a bottle of schnapps, which he gave to Lazarus, who took it to the accused.

Ogboni Kanu’s evidence is on the same lines; he adds that when Lazarus came out of the parlour, they asked him whether he had given the £40 to the corporal, and he said ‘Yes’. Now, what Lazarus Uka told his two companions, and what he told the other villagers regarding the corporal’s demand and acceptance of a bribe was hearsay of a damaging nature, but the trial magistrate let it come in without apparently being alive to the fact that it was inadmissible evidence. Mr. Emembolu has argued that it was admissible under section 8 of the Evidence Act, which provides that:-

“Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.”

We have never known of section 8 being used as warrant for admitting hearsay evidence affecting a defendant. Mr. Emembolu cited Reg. v. Gandfield and another (1846) 2 Cox’s C.C., p. 43. There was a burglary; a witness was in bed in the house with a woman who passed as his wife; he, fearing the vengeance of the prisoners, had not mentioned the circumstances for three days; Erie, J. allowed him to be asked whether he had given any directions to her that “had induced her also not to tell of it”, on the ground that the terms of his directions were necessary in order to account for her subsequent conduct. The wife was called later; she was asked what passed between her and her husband. The report reads:-

“Witness-He told me he had seen-”

“Erie, J.-We cannot have that. His account of the affair is not evidence. Did he give you any directions?”

“Witness-He told me not to tell of it. He said that he was out with his horses late at night, and should not be safe; and if I told of it, he would not speak to me for a long time. `

“Erie, J.-Conversations that explain a man’s conduct are admissible in evidence.”

All that was allowed of the conversation between husband and wife was what served to explain why the wife was late in telling of what she knew. We note that Erie, J. did not allow her to give his account to her of the affair: the learned judge said it was not evidence. Likewise in the present case, the account given to others by Lazarus Uka of the affair between him and the corporal was not evidence, and those others could not give evidence of the account given to them. The point that hearsay evidence was wrongly given before the trial magistrate was in our view well taken.

On the other point, that Lazarus Uka was an accomplice, the trial magistrate was asked by the defence to regard him as such, but counsel for the prosecution argued he was not, but was a victim. The magistrate’s judgment says nothing about it, although it was a vital point. The appellate judge says in his Judgment that as Lazarus Uka could be charged under section 116(2) of the Criminal Code, he was an accomplice, but he was corroborated by Mba Kanu. The learned judge says that Mba Kanu was not an accomplice, but on his line of reasoning he, too, was an accomplice, for his evidence was that he went with Lazarus to bribe the corporal, and so did Ogboni Kanu. The fact that these two did not go into the parlour with Lazarus makes no difference: the three of them went as the envoys of the people to bribe the corporal.

Mr. Emembolu has argued that Lazarus Uka should be regarded as a victim. We cannot agree. If he is truthful, after the trouble in the village in which the man who kept the lorry accounts was assaulted in the course of a row, and after he bailed out those who had been arrested, the corporal asked him for a bribe to spoil the case, and he went to tell the villagers about it and took the money for that purpose. In what sense was he a victim? If it is wrong for a corporal to ask for a bribe to spoil a case, it is equally wrong for anyone to give him a bribe to spoil the case. Lazarus knew it was wrong; before the A.S.P.: Umuahia, he equivocated and denied giving the money to the corporal. The trial magistrate remarks, however, that he testified in court to support the report of constable Friday Onyekwere.

It was this constable who started the trouble. The corporal was newly arrived in Biakpan; the constable heard a rumour that he had been given £40 to stifle the case in the investigation of which the constable had taken part, and began a fuss apparently for the good name of the Police Force. There was a note from the constable to the corporal one of those days which said:-

Please see the man I handed over to P.C. Chukwu is properly dealt with. He is with single barrel at least £10 is good for him. In such cases we get more.” No more need be said.

We did not think the learned magistrate applied his mind sufficiently to the quality of the evidence against the appellant; we also thought the learned judge of the High Court erred in thinking there was corroboration of Lazarus Uka and also in thinking that Mba Kanu was not an accomplice. We allowed the appeal on the two grounds of reception of prejudicial hearsay evidence, and on the ground that the magistrate did not regard the main witnesses as accomplices; also that the appellate judge erred in this latter respect.

Other Citation: (1965) LCN/1271(SC)