Rex V. Togom Modam & Ors (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Murder contra. Section 319 of Criminal Code—Question of corroboration of an accomplice’s evidence considered.

Held : Corroboration existing, appeals dismissed.

There is no need to set out the facts. C. N. S. Pollard for Crown.

Appellants in person.

The following joint judgment was delivered

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.

In this case the three accused were charged with the murder of a Hausa man named Mallam Garuba Katsina. The principal evidence against them was that of the third witness Mbom Nwage. He was undoubtedly an accomplice in the crime and the question was whether there was sufficient corroboration of his evidence to justify convictions. The learned trial Judge decided that in the case of the first accused the corroboration was insufficient and discharged him, but in the case of the other two the trial Judge found sufficient corroboration and convicted them both.

They have now appealed to this Court. The case of the second accused (first appellant) presented no difficulty. At the trial he gave evidence on oath and swore alternately that the murder was committed by the third witness only, and that it was committed by the third witness, the third accused (second appellant) and himself together. The man’s own evidence justified the conviction.

The case of the third accused (second appellant) presents greater difficulty. He also gave evidence on oath and admitted that he and second accused had helped Mbom to dispose of the body but denied taking part in the murder itself. The finding of fact made by the trial Judge is that-

” After an abortive attempt on the life of Yongo (sixth ” witness for prosecution) the second and third accused, ” Aroboh Mumuna and Magbok Illa, accompanied awl ” assisted by an unidentified man, not in custorly, on the ” 14th day of December, 1937, at the Abia river bridge on ” the Ofunata—Bansara.”

” road with malice prepense, set upon and murdered ” Mallam Garuba Katsina an itinerant trader. ” Thereafter they concealed the body and the property ” of the deceased.”

The trial Judge finds corroboration of the story of the accomplice Mbom in the evidence of Yongo. Before us the learned counsel for the Crown has expressed doubts as to whether the evidence of Yongo does sufficiently corroborate the accomplice’s evidence so as to warrant conviction and has drawn our attention to three cardinal principles of the law regarding corroboration of the evidence of accomplices. The first is that corroboration must be by an independent witness and not by another accomplice. The second is that corroboration must go to identify the accused with the crime and not merely to establish that a crime has been committed. And the third is that where there is sufficient warning of the necessity for corroboration and matters are suggested as corroboration which in fact are not and there is in fact no corroboration at all, a conviction may be quashed on appeal.

We have accordingly given very careful consideration to the case of the third accused, bearing these principles in mind, but also remembering the other principle that it is not necessary that the corroborative evidence should corroborate the accomplice’s evidence in detail, but what is essential is that there should be some independent evidence which definitely associates the accused with the crime. Does the evidence of Yongo do this? We think that it does. First it should be observed that as against the third accused there is the evidence not only of one accomplice—Mbom. but also of a second, viz., the second accused. This, if believed and corroborated, is sufficient of itself to justify the conviction of third accused. Looking at the case as a whole, there can be no doubt but that the murder was committed by a gang of whom the second accused was one. Yongo’s evidence shows that shortly before the murder the third accused was at the place of the murder in company with second accused and offering violence to a passerby, it is admitted that third accused helped to dispose of the body shortly after the crime. We think that this evidence can properly be held definitely to associate the third accused with the murder and to corroborate the evidence of the two accomplices Mbom and Aroboh to the effect that the third accused was one of the gang which committed the murder.

There is no other matter of substance in either appeal.

The appeals of both appellants are dismissed.