Sylvester Utteh Vs. The State (1992)

LawGlobal-Hub Lead Judgment Report

KUTIGI, J.S.C. 

In the High Court of Lagos State holden at Lagos, the appellant and another person were charged with (a) conspiracy to commit felony, to wit stealing, contrary to S.516 of the Criminal Code, (b) demanding with menace with intent to steal, contrary to S. 406 of the same Code and (c) stealing, contrary to S.309 (9) of the Criminal Code Law, Cap. 31 of the Laws of Lagos State. They both pleaded not guilty to all the three counts.

It was common ground that at the time of the alleged offence, the appellant was a Police Officer and the other accused person, an Immigration Officer.

At the trial six witnesses gave evidence for the prosecution. The accused persons did not testify, resting their case on that of the prosecution. At the conclusion of the hearing and after counsel’s addresses and submissions, the learned trial Judge, Oguntade J (as he then was), gave careful consideration to the totality of the evidence adduced and to all the submissions made on behalf of the accused persons, and came to the conclusion “that the prosecution , had, with regard to counts 2 and 3, established the case against both accused persons beyond reasonable doubts.

He therefore found them guilty as charged on those counts and sentenced them to terms of imprisonment. He however, acquitted and discharged them on the first count of conspiracy to commit felony.

Dissatisfied with the decision of the trial court, both accused persons appealed to the Court of Appeal, and in the lead judgment of the Court delivered by Awogu, J.C.A. on the 26th March, 1990, with which Ademola and Kalgo, J.J.C.A. concurred, their appeal was dismissed. The appellant, still dissatisfied with the decision of the Court of Appeal has further appealed to this Court.

The facts of this case, as accepted by the learned trial Judge are contained in, the evidence of PW.2, and they are as follows:-

On or about the 25th day of August, 1984, the two accused persons went to the house of one Dante Noaro, an Italian national, then resident in Lagos, in order to arrest him because his passport was not good. Dante took them to the house of his business associate, PW.2 at No.31 Beecroft Street, Lagos. On getting there PW.2 observed that Dante was in tears and asked him what the matter was. Dante told him, in the presence of the accused persons, that he had been arrested because his passport was not good. 2 PW then asked the accused persons in what way Dante’s passport was not good. At that stage the appellant introduced himself to PW. 2 as a Senior Police Officer from the C.I.D. whose superior officer had sent him on the mission. The other accused told PW.2 that he was an Immigration Officer and further informed PW.2 that when the Immigration came by such bad passports, as that of Dante they always arranged the deportation of the holders. It was in evidence that at that point somebody called PW.2 out of the house and on his return to the room, he was told by Dante, in the presence of the two accused persons, that the accused had agreed to overlook his offence if he (Dante) paid them N60,000.00. When PW.2 wanted to know what the N60,000.00 was for, the appellant got annoyed and stated that he thought that PW.2 was a person who appreciated a favour. Dante then pleaded with 2 PW, to allow the matter to be settled as suggested by the accused persons. He said that he had N15,000.00 in his house at Surulere which he would give the accused persons and pay the balance later. At that stage the second accused person spoke and said that they would be prepared to accept N20,000.00. Dante then drove the accused persons and P.W.2 to his house at Surulere where he gave them the NI5,000.00 leaving a balance of N5,000.00 which it was agreed, would be paid on the 29th August, 1984.

On 29/8/1984, the 2nd accused alone went to the house of PW.2 at No. 31, Beecroft Street to collect the balance of N5,000.00 as previously arranged. He met Dante there who gave him N2,000.00. As the 2nd accused and Dante came out of PW.2’s house, he was arrested by policemen who took him to the NSO Headquarters at Awolowo Road where the sum of N2,000.00 was found on him.

As stated earlier, after the dismissal of the two accused persons’ appeal by the Court of Appeal, it was the appellant alone who has further appealed to this Court on three grounds of appeal.

Arising from the grounds of appeal filed, the appellant has formulated three issues for determination in this appeal and they are as follows:

“1. Whether or not the evidence of PW.2 was sufficient for the conviction of the Appellant in the absence of the evidence of the complainant:

2. In the alternative, whether such conviction based on the hearsay evidence of P.W.2 can be sustained.
3. Whether the role played by P.W.2 did not amount to that of an accomplice.

With regard to the first issue for determination, it was the submission of Chief Shola Rhodes, learned counsel for the appellant, that since the demand of the bribe was not made in the presence of PW.2, his evidence alone relating to the demand was insufficient in law to sustain the conviction of the appellant. He contended that the only evidence that must be adduced to sustain the appellant’s conviction was that of the complainant himself, Dante or that of any other person who was present when the demand was made. The evidence of PW.2 on the issue of demand, he further submitted was hearsay and should not have been admitted by the trial court: In support of his submission, he cited Subramaniam v. Public Prosecutor (1956) 1 WLR. 965 and Pharmacists Board of Nigeria v. Franklin Adegbesote (1986) 5 NWLR, (Pt.44) 707.

In his reply learned counsel for the respondent contended that in the circumstances of this case, failure to call the complainant to testify could not be fatal to the case of the prosecution. He submitted that – “it is where an omission to call a material witness will prevent an issue or issues in a particular case from being resolved one way or the other, or where there are gaps or missing links in the prosecution’s case that the failure will be fatal to the prosecution’s case.” It was his contention that such situation did not arise in this case, citing in support of his submissions Okomoju v. The State (1981) 6-7 SC. 1,18; Udofia v. The State (1981) 11-12 SC.49, 63 and Oladele v. The State (1991) NWLR (Pt.170) 708, 719 E.

Now the evidence of PW.2 as to what actually transpired in his house on 25/8/1984 is as follows:

“I know the two accused persons. I remember 25th August, 1984. On 25th August 1984, I received a visit from a business partner of mine by the name Dante Noaro at about 9 a.m. He came with the two accused persons. I was in my house at 31 Beecroft Street, Lagos when Dante Noaro came with the two accused persons. Dante and I are partners in suit cases manufacturing. Dante Noaro is an Italian. I saw Dante Noaro. He was in tears. I asked him what the matter was. I asked the question in the presence of the accused persons. He said that the accused who were policemen had come to arrest him. I asked him what his offence was. He said in the presence of the accused persons that he was arrested because his passport was not good. I then asked the accused persons in what way the passport of Dante Noaro was not good. The 2nd accused introduced himself as an Immigration officer to me and the 1st accused said he was a boss from the C.I.D and that his own superior boss had sent him on the mission. The 2nd accused said that the passport of Dante Noaro was not good and that whenever the Immigration came by such passports they arranged the deportation of the holders.

At about this time some people came to call me out. I went out briefly to attend to them. When I came in later Dante Noaro in the presence of the accused persons told me that the accused persons had agreed to overlook his offence. I queried why they wanted N60,000.00 from Dante Noaro. The 1st accused was angry. He said that he had taken me for a good person but that he then knew that I was not the kind of person to be done a favour. Dante pleaded with me that I should allow him to come to a settlement with the accused persons. He then said that he had N15,000.00 in his house at Surulere. He said he was willing to give that sum to the accused persons and to promise paying them the balance later. The 2nd accused spoke and indicated their readiness to compromise for a sum of N20,000.00.The accused persons, Dante Noaro, myself and Dante’s driver drove in Dante’s car to Dante’s house at Surulere. Dante was living at Oladeinde Street Aguda, Surulere. In Dante’s house, the two accused persons and I stayed in Dante’s sitting room while Dante went into his room. He brought out N15,000.00 which he placed on a table. The money was brought out of Dante’s room in a bag. At the sitting room Dante brought out the N15,000.00 from the bag. He placed the money on the table. The 2nd accused lifted the money and showed it to the 1st accused. The 2nd accused then wrapped the money while the 1st nodded in agreement. They took the money and went their way but not before we had agreed to give them the balance of N5,000.00 on 29th August 1984. Dante, the driver and I then came in Dante’s car to Lagos. I travelled out of Lagos on 25th August, 1984. I came back at about 2 p.m on 29th August 1984. Shortly after I arrived, Dante also came to my house at 31 Beecroft Street, Lagos. The 2nd accused came to my house at about 2 p.m. He wanted to come and collect the balance. On 25th August, 1985 I had seen Dante’s passport with the 2nd accused.

After we had given them N15,000.00 the 2nd accused went away with Dante’s passport. In my presence Dante handed over to the 2nd accused a sum of N2,000.00. He said that was that he had then. I do not now remember in what denominations the N2,000.00 was, I asked the 2nd accused for Dante’s passport. The 2nd accused said that the passport would be released when he got the balance of N3,000.00. The 2nd accused and Dante went out of my house. Shortly later I was called to see what was happening. I saw that some persons who had guns surrounded Dante and 2nd accused. I then discovered that the 2nd accused had come to my house in a car. Those who surrounded Dante and the 2nd accused also brought their own car. Dante and 2nd accused were then taken away.”

Even if it is conceded that PW.2 was not physically present in the room when the demand was first made, when he returned to the room and was told by Dante, in the presence of the accused persons, that the accused persons had agreed to overlook his offence if he paid them N60,000.00 the accused persons never contradicted what Dante had told PW.2 in their presence. Indeed when PW.2 asked them what the amount of N60,000.00 was for, he received an angry response from the appellant who told him that in his view PW.2 did not appreciate their doing Dante a favour. In any case PW.2 was present when the accused agreed to reduce their demand from N60,000.00 to N20,000.00. He was present when Dante told them that he had sum of N15,000.00 in his house which he was prepared to offer. He was also present in Dante’ s room when the two accused persons collected N15,000.00 from Dante who promised to pay up the balance of N5,000.00 on 29th August, 1984 and he was also present in his residence at Beecroft Street on 29th August, 1984 when 2nd accused collected N2,000.00 from Dante. In the circumstance I agree entirely with the submissions made on behalf of the respondent that the testimony of PW.2, which was believed by the trial court, was quite sufficient to sustain the conviction of the appellant. In my view the authorities cited by learned counsel for the appellant are inapplicable to the facts of the instant case.

In the Subramaniam case (supra) the Judicial Committee of the Privy Council did not say that in all cases hearsay evidence is inadmissible. At p.970 of the Report, the rule against hearsay is stated as follows:-

“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay C and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”

In my view the Court of Appeal was right in its decision that the evidence of PW.2 could not be said to be hearsay as it was the direct evidence of what he had seen and heard. (See Sections 75 and 76 of the Evidence Act).

With regard to the Adegbesote case (supra) this Court held that the evidence of the only witness for the prosecution relating to the ownership of the premises in question was hearsay as it was a repetition of what a shop attendant had told the witness. The shop attendant was not called to testify and there was no evidence, as there was in this case that Dante had left the country, that that shop attendant was not available.

It was further contended by the learned counsel for the appellant that since PW.2 had participated in the conversation between the accused and Dante on the amount of bribe being demanded by the accused, he must be regarded as an accomplice.

Now, in our law, the term accomplice includes:-

(a) a participant in the actual crime charged (participes criminis);

(b) a receiver of the property in respect of which the accused is accused of stealing;

(c) “where a person is charged with a specific offence on a particular occasion, and evidence is admissible and has been admitted of having committed crimes of identical type on other occasions, as proving system or intent or negativing accident, parties to such other similar offences.”

See R v. Ezechi (1962) 1 All NLR. 113 at p.116; (1962) 1 SCNLR 193

Having carefully examined the totality of the evidence adduced at the trial, I have firmly come to the conclusion that there is no merit whatsoever in the submission that PW.2 was an accomplice. Finally as to whether the evidence adduced was sufficient to sustain the appellant’s conviction, I am satisfied that it was. Consequently in my judgment this appeal fails in its entirety and it is accordingly dismissed. The judgment of the Court of Appeal, affirming that of the High Court of Lagos State, is hereby confirmed.M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Kawu, J.S.C. I agree with the judgment.

Where a narration of events or conversation took place between two or more persons in the presence of an accused person, reference to such narration or conversation at the trial of the accused by one or all such persons is admissible by virtue of the provisions of sections 76 and 8 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990, which provide as follows-

“76. All facts, except the contents of a document, may be proved by oral evidence.”

“8. 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.”

Now it is necessary in the con of the foregoing as well as for clarity to quote in extenso the evidence-in-chief of P.W.2 which runs as follows-

“I know the two accused person (sic) I remember 25th August, 1984. On 25 August, 1984 I received a visit from a business partner of mine by the name Dante Noaro at about 9 a.m. He came with the two accused person (sic). I was in my house at 31 Beecroft Street, Lagos when Dante Noaro came with the two accused persons. Dante and I are partners in suit cases manufacturing. Dante Noaro is an Italian. I saw Dante Noaro. He was in tears. I asked him what the matter was. I asked the question in the presence of the accused person (sic). He said that the accused who were Policemen had come to arrest him. I asked him what his offence was. He said in the presence of the accused persons that he was arrested because his passport was not good. I then asked the accused persons in what way the passport of Dante Noaro was not good. The 2nd accused introduced himself as an Immigration Officer to me and the 1st accused said he was a boss from the C.I.D. and that his own superior boss had sent him on the mission. The 2nd accused said that the passport of Dante Noaro was not good and that whenever the Immigration came by such passports they arranged the deportation of the holders.

At about this time some people came to call me out. I went out briefly to attend to them. When I came in later Dante Noaro in the presence of the accused person (sic) told me that the accused persons had agreed to overlook his offence. I queried why they wanted N60,000.00 from Dante Noaro. The 1st accused was angry. He said that he had taken me for a good person but that he then knew that I was not the kind of person to be done a favour. Dante pleaded with me that I should allow him to come to a settlement with the accused persons. He then said that he had N15,000.00 in his house at Surulere. He said he was willing to give that sum to the accused persons and to promise paying them the balance later. The 2nd accused spoke and indicated their readiness to compromise for a sum N20,000.00.The accused persons; Dante Noaro, myself and Dante’s driver drove in Dante’s car to Dante’s house at Surulere. Dante was living at Oladeinde, Street Aguda, Surulere. In Dante’s house, the two accused person (sic) and I stayed in Dante’s sitting room while Dante went into his room. He brought out N15,000.00 which he placed on a table. The money was brought out of Dante’s room in a bag. At the sitting room Dante brought out the N15,000.00 from the bag. He placed the money on the table. The 2nd accused then wrapped the money while the 1st nodded in agreement. They took the money and went their way but not before we had agreed to give them the balance of N5,000.00 on 29th August, 1984. Dante, the driver and I then came in Dante’s car to Lagos. I travelled out of Lagos on 25th August, 1984. I came back about 2 p.m. on 29th August, 1984. Shortly, after I arrived, Dante also came to my house at 31 Beecroft Street, Lagos. The 2nd accused came to my house at about 2 p.m. He wanted to come and collect the balance. On 25th August, 1985 I had seen Dante’s passport with the 2nd accused. After we had given them N15,000.00 the 2nd accused went away with Dante’s passport. In my presence Dante handed over to the 2nd accused a sum of N2,000.00. He said that was what he had then. I do not now remember in what denominations the N2,000.00 was. I asked the 2nd accused for Dante’s passport. The 2nd accused said that the passport would be released when he gets the balance of N3,000.00. The 2nd accused and Dante went out of my house. Shortly later I was called to see what was happening. I saw that some person (sic) who had guns surrounded pante and 2nd accused. I then discovered that the 2nd accused had come to my house in a car. Those who surrounded Dante and the accused also brought their own car. Dante and 2nd accused were then taken away. I later made a statement to the police.”

It is clear from the foregoing that the testimony of PW.2 which was not wholly based on his conversation with Mr. Dante Noaro because some aspects of the testimony relate to what he (PW.2) perceived by seeing and hearing. He was, therefore competent to give oral evidence of such happenings – See section 77, of the Evidence Act, Cap. 112, which provides-

“77. Oral evidence must, in all cases whatever, be direct-

(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;

(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;

(c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner…..……………..”

The evidence of PW.2 was a narration of what he perceived. It was not given simply as a narration by Dante Noaro of what happened between the latter and the accused persons. The events in fact took place in the physical presence of PW.2, so that the oral statements by Dante Noaro and the accused persons were part of the event which PW.2 perceived. In other words PW.2 was an eye-witness to the whole incident and as such he was amply competent to give evidence of what happened.

The scope of the rule on hearsay under the common law has been a matter of controversy. For instance the Editorial Note in the case of R. v. Willis. (1960) 1 All E.R. 331 states as follows-

“It has long been settled law in England that the so-called hearsay rule relates only to evidence that is tendered to prove the truth of the facts stated. A statement can be ‘hearsay” if it is tendered to prove the truth of the fact that were heard to be stated; but if its relevance is that it was in fact made, evidence to its having been made is original evidence. Thus, the facts that a statement was made may explain the hearer’s state of mind and be admissible for that purpose; similarly, as the present case shows, the fact that a statement was made may be admissible to explain the hearer’s subsequent conduct when questioned by the police.”

Happily the rule of evidence at common law is not applicable in Nigeria where the provisions of the Evidence Act specifically deal with a given situation – See Jimoh Amoo & Ors. v. The Queen (1959)4. F.S.C. 113 at p.115 (1959) SCNLR 272. In the present case, the evidence of PW.2 is admissible by virtue of the provisions of sections 8, 76 and 77 of the Evidence Act Cap. 112 to prove the fact of the statement made by Mr. Dante Noaro In addition, the other aspect of the testimony of PW.2 also proved the facts constituting the offences for which the appellant was convicted. In the light of the aforesaid the absence of the evidence of Mr. Dante Noaro at the trial, (who had then left Nigeria) was not fatal to the case for the prosecution.

It is for these and the fuller reasons contained in the judgment read by my learned brother Kawu, J.S.C. that I too will dismiss the appeal and uphold the decision of the Court of Appeal; affirming that of the High Court.P. NNAEMEKA-AGU, J.S.C.: The appellant was, with one other person, in a Lagos High Court, arraigned on a three count charge of conspiracy to commit a felony, demanding with menaces with intent to steal, and stealing. The victim of the offence was one Dante Noaro, an Italian who, at the time of the trial, had left the country.

In support of the charge, the prosecution called five witnesses, among whom was Alhaji Sule Olaiya (PW.2), a business partner of Noaro. According to the charge, the menaces were that Noaro would be arrested, charged and deported for drug trafficking and because he was an illegal immigrant. Testifying on the charge PW.2 said:

“I was in my house at 31 Beecroft Street, Lagos when Dante Noaro came with the two accused persons. Dante and I are partners in suit cases manufacturing. Dante Noaro is an Italian. I saw Dante Noaro. He was in tears. I asked him what the matter was. I asked the question in the presence of the accused persons. He said that the accused who were policemen had come to arrest him. I asked him what his offence was. He said in the presence of the accused persons that he was arrested because his passport was not good. I then asked the accused persons in what way the passport of Dante was not good. The 2nd accused introduced himself as an Immigration Officer to me and the 1st accused said he was a boss from the C.I.D, and that his own superior boss had sent him on the mission. The 2nd accused said that the passport of Dante Noaro was not good and that whenever the Immigration came by such passports they arranged the deportation of the holders.

At about this time some people came to call me out. I went out briefly to attend to them. When I came in later Dante Noaro in the presence of the accused persons told me that the accused persons had agreed to overlook his offence. I queried why they wanted N60,000.00 from Dante Noaro. The 1st accused was angry. He said that he had taken me for a good person but that he then knew that I was not the kind of person to be done a favour. Dante pleaded with me that I should allow him to come to a settlement with the accused persons. He then said that he had N15,000.00 in his house at Surulere. He said he was willing to give that sum to the accused persons and to promise paying them the balance later.”

There was no mention of drug trafficking. The appellant and his co-accused did not testify. Rather they rested their case on that for the prosecution and addressed the court on the evidence. So, the evidence on behalf of the prosecution remained uncontradicted. Furthermore, the 2nd accused person had made a confessional statement which was tendered at the hearing as exhs. “B” and “L”. After the addresses of counsel, the learned trial Judge, Oguntade, J (as he then was), found both accused persons guilty of demanding with menaces and stealing but discharged them on the charge of conspiracy.

The appellant’s appeal to the Court of Appeal was dismissed. He has further appealed to this court. The main contentions on behalf of the appellant are that the evidence of P.W.2 was hearsay, that the evidence of PW.2 was not sufficient to support the conviction of the appellant, and that, in any event, PW.2 was an accomplice whose evidence required corroboration but was not corroborated.

It is convenient to begin my consideration of these contentions by considering whether or not the evidence of P.W.2, part of which I have set out above, is hearsay. Now a piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. It presupposes that if any fact is to be proved against anyone, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth and testifying to facts within his personal knowledge, subject to recognized exceptions which are not relevant in the case. As Taylor has put in his classic on “Evidence” (12th Ed. p.363):

“In its legal sense “hearsay” evidence is all EVIDENCE which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person”.

If any such evidence is designed to prove the truth of the statement and not merely the fact that the statement was made, then it is hearsay and inadmissible: see Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965, at p.969, P.C.

In our law, all facts may be proved by oral evidence (section 75 of the Evidence Act). By section 76(b) of the Act, such oral evidence includes what a witness heard, subject to the rule of exclusion of hearsay evidence. What a witness heard in the presence of an accused person cannot be hearsay.

In the instant case, the witness, PW.2. was only giving evidence of what he heard Noaro say in the presence of the appellant, to wit: that the appellant made the demand from him with threats. It is a direct account of what he heard and so is admissible oral evidence. It is not hearsay.

I shall now consider whether the evidence of PW.2, part of which is set out above, was sufficient to prove the charge against the appellant. Now, section 406 of the Criminal Code reads as follows:

“Any person, who with intent to steal anything demands it from any person with threats of any injury or detriment of any kind to be caused to him, either by the offender or any other person, if the demand is not complied with, is guilty of a felony, and is liable to imprisonment for three years.”

It is clear that, as pointed out by the learned trial Judge the ingredients of an offence under section 406 of the Criminal Code are that:

(i) The accused person made a demand from the complainant,

(ii) With intent to steal: and

(iii) the demand is accompanied by a threat of any injury or detriment of any kind.

It is clear that the nature of the demand is not specified. It could therefore be by word or conduct: see R. v. Collister and Warhurst (1956) 3 Cr. App. R. 100, p.102. And it is settled that the court must adopt an objective test to come to the conclusion that the threat operated in the mind of the victim: see Ogundowole v. Commissioner of Police (1971) 9 Cox C.C. 268, per Lord Kilowen, C.J.

It is clear from part of the evidence of P.W.2 set out above that Noaro told him in the presence of the appellant that he (the appellant) made a demand on him with a threat of arrest and deportation as an illegal immigrant if his demand was not met. The appellant did not refute it. This by itself is an admission by conduct that the demand was made. For it is the law that when a direct accusation is made against a person in circumstances which should elicit instant refutation or denial from him and he does neither, evidence of such could be given against him as evidence of admission by conduct. For this, see Bessela v. Stern (1877) 2 C.P.D. 265. No one can deny that the type of direct accusation in this case would have elicited an instant denial by any innocent person. See also R v. Norton (1910) 2 K.B. 496. Additionally, on the application of the learned counsel for the appellant in the court of trial, the statement which the witness made to the police during their investigation was tendered and admitted as Exh. F. The appellant elected not to testify: he rested his case on that of the prosecution. In that state of the facts, I am satisfied that the courts below were entitled and correct to have to find that the demand was proved. For, it is true that an accused person is, under our constitution entitled to remain silent either during investigation or in court. The prosecution is still bound, as the party, on which the onus lies – a very high onus at that – to prove its case beyond reasonable doubt. But, if at the trial the prosecution calls credible evidence which in the end remains unrebutted, the court is entitled to accept it. Indeed the standard of proof required of the prosecution in such a case is made the much higher in cases in which the defence called no evidence in denial or refutation of the evidence called by the prosecution. This is why a prudent counsel should always resort to the doubtless right of his client to rest his case on that of the prosecution with great caution. In the instant case, I am satisfied that as the demand was proved by credible evidence, when the appellant elected to rest his case on that of the prosecution he did so at his own peril.

I do not consider the contention that P.W.2 was an accomplice serious point. For the gravamen of an offence under section 406 of the Criminal Code in the making of the demand contemplated by the section, it has not been suggested that P.W. joined in making a demand on Noaro or did anything to aid the commission of the offence. I do not agree that there was anything he did on the day of the incident that made him an accomplice.

For the above reasons and the fuller reasons contained in the judgment of my learned brother Kawu, J.S.C., I also dismiss the appeal.

Other Citation: (1992) LCN/2499(SC)