Rex V. Joseph Afolabi Lagos (1941)
LawGlobal Hub Judgment Report – West African Court of Appeal
Murder—Accused taken to scene of crime before formally charged Appeal from—Special circumstances—Admission of evidence as to. what mnvictianby Supremohappened on that occasion—is accused’s silence sufficient cowl. corroboration of accomplice’s evidence 7–Jury not directed to consider whether by his silence accused acceptegl the allega-tions ‘made by another accused.
Held : (a) Silence may be sufficient provided Jury properly directed but in this case they were not. Appeal allowed and accused acquitted. (b) Evidence at scene of crime in special circumstances properly allowed.
There is no need to set out the facts.
Cases referred to
Rex v. Ajege anor. (2 W.A.C.A. 353). Rex v.. Bodom # ors. (2 W.A.C.A. 390). Rex v. Feiiigenbaum, L.R. 1919 K,11. 431. Rex v. Christie, L.R. 1914 A.C. 50;
A. Ridehalgh for Crown.
R. E. Phillips (with him E. A. Bannerman) for Appellant. The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
In this case the appellant was charged with another man, named Emmanuel Kodjo, in the Supreme Court at Accra with murder contra. section 221 of the Criminal Code. The particulars given being:—
” Emmanuel Kodjo and Joseph Afolabi Lagos on the ” 24th day of November, 1940, at Wli Ahoe Todzi Road in ” the Ho District in the Eastern Province murdered Haruna ” Moshie.”
The trial was held with a jury and resulted in the acquittal of Emmanuel Kodjo and the conviction of the appellant. It is against that conviction that the present appeal is brought.
Shortly the facts relied upon by the prosecution were that the appellant was engaged in smuggling cigarettes from French neoland; that Emmanuel Kodjo and another man named Nicholas
Kwaku were .engaged to carry the smuggled cigarettes; that the
v.three of them had reached Wli Ahoe in the Ho District with the
Joseph
Afolt.bitwo carriers each carrying a load of smuggled cigarettes when they
Lagos.fell in with a patrol of the Preventive Service, consisting of the
deceased man Haruna Mashie and Corporal Adjebi Kanjarga;
Kingdon,
petrifiesthat they attacked the two preventive men and the appellant
andkilled Haruna Moshie, whilst Adjebi Kanjarga was seriously
Graham Paul
wounded. Nicholas Kwaku was not charged along with the appellant and Emmanuel Kodjo but was called by the Crown as a witness for the prosecution. Both the appellant and Emmanuel Kodjo gave evidence at their trial. –
The evidence of Nicholas Kwaku was that it was the appellant who killed Haruna Moshie, and Emmanuel Kodjo said the same. The appellant’s story was that he was not present with the other two when the fracas with the preventive men took place, having gone by another road and arrived at his destination (the house of one Amedu Lagos at Fodome) in the afternoon before the murder took place.
In these circumstances we think that the learned trial Judge was right to treat both Nicholas Kwaku and Emmanuel Kodjo as accomplices and to instruct the jury that corroboration of their story must be looked for. He put to the jury five matters which might be treated as corroboration, viz :-
(a) The appellant’s silence on a particular occasion,
(h) a point ” stressed by the Crown that second accused would ” be very unlikely to allow goods which had cost a ” considerable amount of money to a man in bis position, ” and promised a considerable profit if safely brought to ” their destination, to be carried by two carriers, one of ” whom was previously unknown to him, and the other ” only slightly known to him without his accompanying ” them “,
(c) the allegation of the Crown that the –appellant’s alibi was false,
(//) a desire on the part of the appellant to avoid publicity when he reached Fodome,
(e) the sedulous way in which he is alleged to have spread the story of his carriers having killed the police man, it being suggested that he did this to prepare his defence, if arrested.
Of these by far the most important is (a) and it forms the subject, of the only ground of appeal with which we shall find it necessary to deal.
In summing up to the jury the learned trial Judge said this :—
” It is alleged by the Crown that when 2nd accused was taken to ” the spots where the knife and rifle were found, and to the place ” where the body of the police man was found, and 1st accused said
The ground of appeal in regard to this is as follows : —Petrides
and
” Misdirection— Graham Paul
” 1.—As TO CORROBORATION-C. B.
” The learned trial Judge told the Jury that the fact that the ” 2nd accused did not deny the allegations made against him by the 1st ” accused when the police took them to the locus in quo was some ” corroboration (p. 72). The trial Judge did not tell the Jury, however, ” that 2nd accused was silent all through the journey (p. 34) although ” he had previously told several persons that he had not accompanied ” the carriers and that he was only told of the murder by let accused ” at Fodome. (Vide Amadu Lagos p. 17) (Tafo Lagos pp. 21, 22) and ” that 2nd accused made his statement to the police (immediately after ” their return from the locus in, quo) “.
It is necessary to set out in detail the evidence given as to the incident in question. Sergeant Kankam of the Criminal Investigation Department at Koforidua gave the following evidence in regard to it :—
” On the 8th December, 1940, I received information that first ” accused wanted to tell me something. I told Constable Kuma ” to warn first accused that he need not tell me anything. Constable ” Kuma told him this in Ewe language. In consequence of what first ” accused told me, I chartered a lorry, and took both. first and second ” accused to Gbi Wegbe. Constable Kuma and Amegashie also went ” with us. The lorry was No. A.C. 1440 and was driven by Kwami ” Asare (identified by witness). When we got to Wegbe village, first ” accused asked the driver to stop the lorry. The first accused ” took us to a certain cocoa farm. All of us including second ” accused followed first accused to the farm. Near to a banana plant, ” first accused pointed out a knife in a sheath, It was hidden in the ” banana plant. It appeared to have been actually placed there. I ” see it now in Court. It is No. 5 for identification. Second accused ” was present when this was done. I took possession of No. 5 for ” identification. First accused, in the presence and hearing of second ” accused, said it belonged to second accused, and was the knife with ” which second accused had killed the Preventive Officer. First accused ” also said he had taken the knife from first accused, and used it on ” Corporal Adjebi Kanjarga. This was said in Ewe language and ” interpreted to me by Constable Kuma. I asked Corporal Kuma to ” ask second accused whether the statement made by first accused was ” correct or not. Constable Kuma did so, but second accused did not ” reply. First accused then asked us to follow him to the Aho-Wli” Todji Road. We all went in the lorry. First accused took us to a ” certain bush road. He said it was in that direction second accused ” had thrown a rifle which he had taken from the deceased constable. ” Second accused was present, and heard what first accused said. First ” accused went a few yards into the bush, and pointed out to us a ” broken rifle. Second accused saw the rifle. I caked Constable Kuma
” to ask second accused in Ewe if it was true that he (the second
” accused) threw the rifle there. Constable Kuma did so but second
accused made no reply. I took possession of the rifle. I see it now ” in Court. It is No. 4 for identification. Second accused did not say ” anything throughout the whole journey. I took the rifle and showed ” it to the Collector in charge of the Preventive Station at Darfu. I ” later handed Nos. 4 and 5 for identification to Constable Kuma. ” Later on the 8th December, 1940, I instructed Constable Kuma to ” charge first and second accused with the offence of murder “,
and in cross-examination-
” Second accused was cautioned by Constable Kuma just before his ” statement was taken. It was taken after the visit to the places where ” the knife and rifle were found. The place where the rifle was found ” was about twelve miles from the cocoa farm where the knife was ” found.”
It may be noted parenthetically that those parts of Sergeant Kankam’s evidence which consist of what Constable Kuma interpreted to him are not admissible but there is ample evidence to the same effect by the two witnesses Kwame Asare and Kuma both of whom understood the language spoken. This point is therefore in this case only of academic importance.
Kwame Asare the lorry driver gave the following evidence :—
” I drove Sergeant Kankam and Constable Kuma and another ” policeman, and the first and second accused from Hohoe to Fodome ” and Obi Wegbe. We stopped at Obi Wegbe. First accused led us into ” the bush.. We found a knife there. It was shown to us by first accused. ” The knife was in a sheath. It was found hidden in a banana plant. I ” see the knife and sheath now in Court. It is No. 5 for identification. ” First accused went straight to the place where it was found. First ” accused said the knife belonged to second accused. He said this in ” Ewe. Second accused heard what was said. Constable Kuma asked ” second accused if what first accused said was true. Second accused ” made no reply. Constable Kuma said to first and second accused, ” Is this the knife by which you killed the man? ‘ First accused said ” Yes.’ Second accused made no reply. First accused said second ” accused took the knife and killed the man. Second accused could hear ” first accused say that. Constable Kuma asked second accused if it was ” true. Second accused made no reply. First accused said that after ” second accused had killed the man, first accused took the knife from ” him and struck the other man. Constable Kuma asked first accused ” where the gun was. We then went near Wli in the lorry. We got ” out, and first accused led us up a path. First accused showed us a ” place where he said second accused had thrown the rifle. First accused ” found the rifle. Second accused could hear what first accused said. ” Constable Kuma asked second accused if what first accused said was ” true.- Second accused made no reply. It was a broken rifle. It is No. 4 ” for identification which I now see “,
and in cross-examination-
” Constable Kuma said to second accused ‘ Why don’t you want to ” make a reply? ‘.”
The Appellant is discharged.
