The Queen V Samaila Asaba And Ors (1961)

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ADEMOLA, C.J.F 

The appellant and three others were tried on the 27th July, 1961, at Kano, Northern Region, on a charge of culpable homicide punishable with death. He was convicted and sentenced to death. He has appealed to this Court against his conviction.

It would appear from the evidence before the learned trial Judge that the appellant and three others hired a taxi in which lethal weapons were hidden; they drove 32 miles out of Kano city to a place called Madobi to burgle the Post Office there. The appellant, who appeared to be the leader of the gang during the operation, killed the Nightwatchman, Umoru Nayaya. The learned trial Judge after an exhaustive and well considered judgment, which deserves our commendation, found that the taxi driver (3rd witness for the prosecution) was an accomplice to the crime; he therefore warned himself of the necessary corroboration of the evidence of this witness. He found corroboration in the evidence of the 1st, 2nd and 4th accused persons who were charged with the appellant and whose evidence seriously implicated the appellant. He came to the conclusion, on the evidence before him, that there was no common intention formed by the accused persons to use violence, and that the act which resulted in the death of the deceased was an entire and independent act of the appellant.

The following four additional grounds of appeal were filed and argued:-

1. That the learned trial Judge misdirected himself by stating that the other accused persons who gave evidence against the 3rd accused were not to be considered as accomplices.

2. That the conviction of the appellant was based on uncorroborated evidence of accomplices.

3. That the record of proceedings was incomplete—Exhibits 1 and 3 not shown on record.

4. That the accused should not have been called upon at the close of the case for the prosecution.

Ground 3 was not seriously argued and may be considered abandoned.

Arguing grounds 1 and 2 of the additional grounds Counsel directed our attention to the definition of accomplice in Section 79 of the Penal Code and pointed out from the record portions where 1st, 2nd and 4th accused persons can be regarded as actively assisting the appellant in the commission of the crime. He then submitted that these men being accomplices themselves, their evidence cannot corroborate the evidence of the taxi driver (3rd witness for the prosecution) whom the Judge has found to be an accomplice. This argument was, however, disposed of by inviting Counsel’s attention to Section 177(2) of the Evidence Ordinance which reads:-

(2) Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be an accomplice.

Further, the position of accused persons tried jointly and the duty of the Judge were considered by this Court in the case R. v. Onuogbe and Others (1957) 2 F.S.C. 10 at p. 12 and there is hardly any need for a restatement of the law here. In the present case, the learned trial Judge gave himself the necessary warning. This is what he said:- But the other accused who gave evidence against the 3rd accused are not to be considered as accomplices. This does not, of course, prevent me from treating their evidence with reserve. Each was obviously anxious to disclaim any responsibility and was under the strongest temptation to unload the blame on to somebody else. I have given careful consideration to the 3rd accused’s allegation that the accused and presumably Nwosu have deliberately tried to frame him as an act of revenge. I am unable to accept this allegation. I observed no indication in the evidence of the accused that they were prejudiced against the 3rd accused or that they were acting in concert to tell a fabricated story against him.

In regard to ground 4 of the appeal, Counsel drew our attention to the record of appeal and invited us to say that at the close of the case for the prosecution there was no evidence against the appellant and he should not have been called upon to offer a defence. It was submitted that although Counsel for the appellant did not make this submission to the Court, it was the duty of the Court, after the close of the case for the prosecution, to draw attention to it and to discharge the accused person. Reliance is placed on the decision in the case of Eregie v. Inspector-General of Police, 14 W.A.C.A. 453, and the exposition of the law on submission of no case to answer made in R. v. Ajani, 3 W.A.C.A. 3 at p. 7, by Kingdom, C.J.

The sum total of the argument is that the learned trial Judge by allowing the appellant to give evidence put him into a position unnecessarily that he could comment unfavourably about him. Further, that opportunity was laid open for the other accused persons to go into the witness box and implicate the appellant.

The learned Solicitor-General submitted that on this point of no case to answer, cases are divided into two categories-

(1) If it was not submitted to the Judge that there was no case to answer, it was the duty of the Judge to look at the case on the whole and not to withdraw the case from jury.

He referred to the following cases:

R. v. George, 1 C.A.R. 168.

R. v. Jackson, 5 C.A.R. 22 at p. 23.

(2) The other type of cases in which submissions were made by Counsel after the case for the prosecution had been closed.

The following cases were referred to by him: R. v. Joiner, 4 C.A.R. 64. R. v. Power, 14 C.A.R. 17 at p. 18 and (1919) 2 K.B. 572 at p. 573-574. R. v. Ajani, 3 W.A.C.A. 3 at p. 7, and R. v. Abbott (1955),2 Q.B. 497; (1955) 2 All ER. 899 at p. 900, where R. v. Power (supra) was fully dealt with. In Abbott’s case, Goddard, C. J. pointed out that it was wrong to say that R. v. Power is an authority for saying that the Appeal Court will sustain a conviction resulting in a case where a Judge wrongly overruled a submission of no case to answer and called upon an accused person whose evidence or that of his co-accused implicates him in the crime. The learned Chief Justice (Goddard, C.J.) at p. 505 of the Report (R. v. Abbott (supra) ) continued: –

It is then said that Rex. v. Power has given a different interpretation to Section 4 of the Criminal Appeal Act. There is no question that in Power’s case a submission had been made on behalf of an appellant to the Commissioner at the Central Criminal Court which he overruled. Both prisoners went into the witness box; one prisoner gave evidence against the other, and certainly supplied a great deal of evidence against the appellant. The Court in that case actually quashed the conviction on the ground that the summing-up was entirely defective and had not put the appellant’s case to the jury at all. That was the decision of the Court, and it is rather remarkable that in the report in The Times Law Reports that is the point which is reported, the point concerning the giving of evidence by one prisoner against the other not being dealt with at all.

To put the position clearly, if at the close of the case for the prosecution, a submission of no case to answer was wrongly overruled and the case continued resulting in the conviction of the accused, an appeal against the conviction resulting from the proceedings will succeed.

The alternative case submitted to us, however, in this appeal is where Counsel made no submission of no case at the close of the case for the prosecution. On this point the learned Solicitor-General referred us to the civil case Payne v. Harrison (1961) 3 W.L.R. 309 at p. 313 and also Erezie v. Inspector-General of Police, 14 W.A.C.A. 453. In the latter case reference was made to Section 286 of the Criminal Procedure Ordinance which reads:

286. If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge, discharge him.

This is similar wording as Section 191(3) of the Criminal Procedure Code of the Northern Region, with which we are concerned. We have been asked to say that in such a case the word “may” in the Section gives the trial Judge a discretion in the matter, that he is not bound to withdraw the case or discharge the accused but he may look at the case as a whole. It was submitted that a proper consideration of R. v. Abbott (supra) supports this view. The point, we feel, will have to be decided sooner or later, but we think in deciding this appeal it is hardly necessary to give an opinion. We have considered the whole evidence offered by the prosecution before the trial Judge in this case, and we are not able to agree with Counsel for the appellant, that, at the close of the case for the prosecution, had a submission of no case been made, it would have succeeded. Counsel for the appellant in the Court below must undoubtedly have come to the same conclusion and did not follow up such submissions made by each of the Coun

Other Citation: (1961) LCN/0885(SC)