Peter Uche & Anor V. The Queen (1964)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

The two appellants, with two others who have not appealed, were convicted in the High Court at Jos on two counts – No. 1 and No. 5 of the charge – and the first appellant was also convicted on a count of offering a bribe to the police.

The first count stated that the four defendants with a person unknown committed brigandage by stopping vehicle KB 7141 and robbing the occupants of £420 in all, an offence contrary to section 297 of the Penal Code punishable under section 301; the 5th count, which was added by Holden J., stated that the four defendants with a person unknown robbed Frank Nwachukwu of £370 being at the time armed with dangerous and offensive weapons, an offence contrary to section 296(2) punishable under section 298(c).

It was objected at the end of the trial that the offence having become brigandage, which is robbery by five or more persons, could not revert to robbery. The judgment deals with the objection in this way

“The mere fact that in banding together with four others to commit robbery an accused person has made himself guilty of brigandage which is punishable with up to fourteen years under section 301 does not in my view mean that he has not committed robbery, for I do not see how there can be brigandage without robbery.”

The objection made in the appeal is that it was wrong to convict both under the first count and under the fifth, and although it is of no practical importance in this case as the two sentences of seven years on each of those counts were ordered to riot together, it is desirable to explain why it was a mistake to convict both of brigandage and of robbery. Section 296 of the Penal Code defines the term robbery, and goes on to provide in 297 that-

“297. When five or more persons conjointly commit or attempt to commit a robbery or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt amount to five or more, every person so committing, attempting or aiding is said to commit brigandage.”

Thus brigandage is robbery, or attempted robbery, by a group of five or more persons acting together. It is not argued that the fifth count could not be added: the argument is that it is wrong to convict both of brigandage under the first count and of robbery under the fifth. With this we agree: it is convicting of robbery twice over- once under the label of brigandage and again under the label of robbery.

We do not lose sight of the fact that the first count is robbery aggravated by numbers, and that the fifth count is robbery aggravated by the fact of being armed; but in either case the offence is robbery at bottom. In the present case the first count is brigandage by robbing the occupants of the van of £420 in all, the fifth count is robbing with arms Nwachukwu of £370: but Nwachukwu was one of those occupants, so the defendants were convicted twice over for robbing him, and although the terms were ordered to run together, there were in law two punishments, and that in our opinion was a mistake. As between the first and the fifth count, the first does not mention the names of “the occupants” of the van who were robbed; the fifth, which gives the name of the person robbed, is the better count.

To pass now to the appeal on the facts. Five persons booked themselves for Federe on the Jos-Zaria bus. The four defendants were identified by a witness when they were entering the bus. Five persons got down at Federe about 8 p.m., but the conductor could not say who they were. About 2 o’clock after midnight a van coming towards Jengri hill, about five to eight miles from Federe, had to stop at a bend because the road was blocked with stones. There was a stationary lorry there; people were standing outside the lorry with their hands lifted in despair. Five men, masked and armed with sticks and matchets and pistols, came up to the van and robbed the occupants of it. The present case relates to this robbery. The fifth man could not be found; he is described in the counts as the unknown man. The occupants could not identify any of the robbers.

The defendants in this case set up a defence of alibi but the learned Judge did not believe it.

As regards the first appellant, there was also the evidence of two police constables, who testified that when they found him at Umuahia in the Eastern Region and charged him with the robbery and cautioned him, he admitted it and offered to bribe them with a bottle of gin and some currency notes, asking them to let him go and say that he could not be found. He testified that, on the contrary, the constables invented the story; the truth, he said, was that they took his gin and his money wrongfully. The learned Judge did not believe him; he believed them and convicted him on the count of corruption.

It was objected that as the provisions of section 126 of the Criminal Procedure Code were not complied with, evidence of the confession could not have been given. Briefly put, that section provides that a police officer, when satisfied that a confession is made voluntarily, may record it in his case diary, read it over to the person making the confession, have it signed by him, and himself sign it too; and subsection (4) provides that-

“(4) Subject to the provisions of the Evidence Ordinance and of any rules made under paragraph (f) of subsection (1) of section 373 of this Code, the record of a confession in the case diary if made by a police officer in accordance with this section shall be admissible as evidence against the person who made the confession and if so admitted shall be read out in court.”

The argument for the appellant is that as the confession was not so recorded, evidence of it could not have been given: the argument for the respondent is that Section 126 expressly permits the prosecution to put in the record of a confession made in the case diary; and that on the face of it, section 126 is an exception to the rule in section 122. As to rules of court on statements, the rules made by the Chief Justice under section 373(l) are at page B 323 of the Laws of the Northern Region for 1960, vol. II; they are on the lines of the old Judges’ Rules; the last provides as follows-

“9. Save as provided in the Evidence Ordinance, no statement made to a police officer by a person against whom he has decided to make a complaint shall be admissible in evidence in any court unless such statement is made in accordance with these rules.”

These rules were not referred to by learned counsel on either side; the view we are taking is without the aid of argument: Seeing that the provisions of the Evidence Ordinance are saved by Rule 9, we think that a confession which is admissible under that Ordinance may, though not recorded in writing, be received in evidence. We do not know of any decision that evidence of an oral confession which was made after caution and was free and voluntary cannot be given if it is not recorded and signed; nor was it so argued. The argument seems to be that because the Criminal Procedure Code permits the record of a confession in the case diary to be given in evidence, it prohibits any other evidence of a confession made to a police officer. This would be a change in the law of Evidence by implication; but the implication does not seem to us to be necessary; and we think that if any such change had been intended, clear language to effect it would have been used.

The evidence against the first appellant sustains the conviction in our view; but we think that the evidence against the second appellant does not. In truth his conviction was based on guilty association: he was seen with the first appellant entering the bus at Jos, and the reasoning seems to be that he must have been with him at the scene of the robbery. That does not necessarily follow; nor does the failure of the second appellant’s alibi serve in this case to prove his guilt. It is ordered as follows-

The conviction and sentence of Alexander Nwosu in the Jos High Court Charge No. JD/30C/1962 dated 11 December, 1962 is set aside, and a verdict of acquittal shall be entered.

In regard to Peter Uche, in that Charge, his conviction and sentence under the fifth count for robbery with arms and his conviction and sentence under the fourth count for offering a bribe to the Police shall stand, but the conviction and sentence for brigandage under the first count is set aside on the ground that it is wrong in law to have a conviction and sentence twice over for the same robbery. 

Other Citation: (1964) LCN/1131(SC)