Raimi Ishola Vs The State (1972)

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T. O.ELIAS, CJN 

In Charge No. AG/3C/71 of September 6, 1971, Raimi Ishola (the appellant in this case) and three others were charged with conspiracy to burgle, breaking into and stealing from a radio store belonging to one Israel Oguntoye along Baleke Road, Boji Boji Agbor, contrary to Sections 443, 353(1) and 331 of the Criminal Code, Cap. 28 of Western Nigeria Laws, 1959 and applicable in the Mid-Western State of Nigeria.

Before the commencement of the trial, the 4th accused person escaped from prison custody and as he could not be traced, the case proceeded against the remaining three. A ‘no case’ submission made on behalf of the 1st accused by his counsel was over-ruled by the learned trial Judge, who held that the 1st and the 2nd accused persons had a case to answer but who discharged the 3rd accused for want of evidence.

At the end of the trial, 1st and 2nd accused were convicted as charged and sentenced to terms of imprisonment on December 6, 1971, by Aghoghovbia, J., at the High Court of the Agbor Judicial Division in the Mid-Western State. From this decision only the 1st accused had appealed to this Court.

The case for the prosecution was that, on the night of July 3, 1970, the radio shop of Ishola Oguntoye (P.W.2) was burgled at about 3.30 a.m. by three men while Gabriel Adibe (P.W.3), a shop boy, was asleep there. The latter, on being awakened, managed to remove the transistor radio sets into an adjoining chemist shop where he was confronted by the three men, one of whom asked him to stop where he was whilst being searched all over.

During similar searches of the two boys sleeping in the chemist’s shop, P.W.3 escaped to a nearby compound of P.W.4, a friend of P.W.2’s, to whom he reported what was happening at the radio store. P.W.4 then went with three soldiers living with him to the radio store but, as they approached, someone in front of the store ordered them to get back, which they did. One of the soldiers, however, shouted to his house boy to get him his rifle, whereupon the burglars took to flight and bolted away with 13 transistor radio sets. P.W.4 and the three soldiers ‘returned to the scene to find that the front door of the shop had been forced open. The incident was later reported to the police.  

Police searches of the premises of the 1st accused’s landlord, Godfrey Okoh (P.W.l) on July 4, 1970, resulted in the recovery of two sets of transistor radio, out of which was one of the 13 burgled from P.W.2’s store, from the room occupied by the 2nd accused who had been lodged there by the 1st accused who himself occupied the other two of the three rooms let to him by P.W.l. The transistor radio burgled from PW.2’s store was found in the 2nd accused’s room, while an old set which was not among the lot stolen was found in the 1st accused’s room. The 1st accused said that the stolen transistor radio (Exhibit D) had been brought to the room of the 2nd accused and that even the old set found in his own room belonged to the 2nd accused who had come over to him from Benin to look for the job of a driver.

As he was about to visit Onitsha when the 2nd accused arrived in his house on June 30, 1970, he asked him to wait until his return; but when he arrived back at about 6.30 p.m. on July 3, 1970, he found the 2nd accused with several transistor radio sets and when he questioned him about them, the 2nd accused answered that he had brought the radio sets from Benin. Under cross-examination, 1st accused admitted that 2nd accused was his friend whom he had first met in Onitsha before the recent civil war, and also that some two weeks before the incident he had met him again in Onitsha-Ugbo.

He had agreed to employ the 2nd accused at the end of June, 1970, but that he still had not employed him at the date of the incident.   The 2nd accused stated in his defence that the 1st accused, a lorry owner, had invited him down to Agbor from Benin to work for him as a driver. On the third day of his arrival, he was taken out by the 1st accused for drinks at about 6 p.m. at the Cabino Hotel, where they were soon joined by the 4th accused, now at large, who told 1st accused that they were waiting for him outside; he was later invited by the 1st accused to accompany him, along with one short Ibo boy and the 4th accused, to the house of the 3rd accused. When the Ibo boy demanded to know who he was, 1st accused told him not to worry; the Ibo boy then bought them drinks, after which 1st accused invited them all to his house.

As they were near to the Cabino Hotel, 1st accused told him (2nd accused) the other three men were all soldiers and that they were going to bring some transistor radio sets. The 2nd accused said that he thereafter accompanied the three soldiers without realizing that they were going to burgle a radio store. On arrival there, the 3rd accused instructed the 2nd accused to remain outside and order away anyone who came near. The 2nd accused said that, as the 3rd accused broke open the front door of the store, he panicked, and ran back to the 1st accused’s house, where the 3rd accused and the others turned up with transistor radio sets, of which each, as well as the 1st accused, took one set, leaving him (the 2nd accused) out of the sharing. The 1st accused, however, gave him his old comet set which, because it was not ‘talking well”, he returned to the room of the 1st accused and collected the new set, Exhibit D, therefrom while the 1st accused was asleep. According to the 2nd accused, this was how the police came to find Exhibit D in the room of the 2nd accused and the old one in that of the 1st accused. He explained that the police came in to search as they (1st accused and himself) were awaiting the arrival of 1st accused’s lorry from Agbor so that he could start work as his driver. It is to be noted that the 2nd accused made two statements to the police – Exhibits F and F1 – in the first of which he denied the charges in their entirety, while in the second he made a confessional statement. The evidence of the 2nd accused in court was at variance with his statement to the police in Exhibit F, and there was no corroboration of the evidence contained in Exhibit F1. With regard to the 2nd accused, the learned trial Judge found as follows:-

“I do not believe the story of the 2nd accused that he did not know that they were going out to burgle when he accompanied the 3rd and 4th accused persons and the short Ibo boy to the store of the 2nd P.W. that night. From his evidence he stayed long enough for the break in to have been completed before he allegedly ran away to the house of the 1st accused. Why did he order the 3rd and the 4th P.Ws. together with the soldiers to get back if he was not playing his part in the burglary? The three other members of the gang surely took some time inside the compound before coming back to break the front door of the radio shop and yet the 2nd accused was there all the time.”

The finding of the learned trial Judge in respect of the 1st accused was this:-

“1 have warned myself sufficiently of the want of independent evidence in this case and one does not normally readily find an independent witness nature. The Statement to the Police, Exhibit H1, by the 1st accused is at variance with his evidence in court under cross-examination. He denied being at home on the 4th July, 1970 and yet he signed the search warrant Exhibit ‘E’ executed in his house that day. At least he was present when the search was conducted in his apartments on the 4th July, 1970. In Exhibit H1, he said he saw the 2nd accused with several sets of transistor radios on the 1st July, 1970 but under cross-examination by the 2nd accused he said it was on the 3rd July, that he saw him with the radio sets and questioned him about them. From the prevarications of the 1st accused coupled with the evidence of the 2nd accused I am satisfied that the 1st accused did conspire with others to burgle the Radio Store of the 2nd P.W. While I hold that he may not physically have taken part in the actual burgling I find, under Section 7(d) of the Criminal Code Law that the 1st accused is an accessory to the offence of burglary.”

From this decision, the 1st accused has appealed to the Court on the following three original grounds:

“1. That the learned trial Judge erred in law by convicting the Appellant when the Appellant had no case to answer and there was no credible evidence against him.

2. That the learned trial Judge misdirected himself in law by not properly evaluating the evidence of the 2nd accused with regard to Exhibit ‘F.’

3.That the learned trial Judge erred in law by convicting the Appellant on the uncorroborated evidence of the 2nd accused.” Mr. S. 1. O. Giwa-Amu, learned counsel for the appellant sought and was granted leave to file the following 6 additional grounds of appeal:

“4. The learned judge erred in law at lines 17 to 21 of page 16 of the record of proceedings by casting upon the appellant the burden of ‘clearing up his relationship with the 2nd accused’ when the prosecution had not alleged and/or proved that the relationship was otherwise than innocent and had not established a case against the Appellant.

5.The learned judge misdirected himself by holding at lines 14 to 20

Other Citation: (1972) LCN/1531(SC)