Ugorji Ezekpe & Anor V. The Queen (1962)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J

The two appellants were convicted on four counts of corruption as policemen, and on a count of false pretences; they were acquitted on the 6th count, which accused them of demanding money with menaces with intent to steal. Their complaint is that they should not have been convicted having regard to the evidence and its quality. It will be summarised.

One Lawrence, who traded and lived at Mubi in the Sardauna Province, and who belonged by origin to a village near Onitsha, came to Onitsha on the 22nd February, 1961, and left at the shop or store of one Felix, with the latter’s houseboy, four large cartons to keep. That was at 7 a.m. Towards 10 a.m., the houseboy paid a truckboy to take them to his master’s house; but shortly after, the two appellants came and asked for his master. The houseboy fetched him, and his friend Gabriel came too. Felix and Gabriel and the two appellants sat in the room having kolanuts and beer. Felix nodded to Gabriel, who went out and with the houseboy’s help took the cartons to the house next door. Felts opened the bargaining; his evidence was-

As we were drinking i asked them what could be done to stop searching my house. The 1st accused said I should make a move. I asked what I should do and he said I should bring £25 etc.

They bargained at £10, which Felix paid, and they went away.

Shortly after, the houseboy went to the shop and called Felix: for the appellants had come back again. Felix, with Gabriel and the houseboy, went to his house, or rather to the one next door, and found the appellants by the cartons, who said their boss was not satisfied and wanted E500. Again Felix asked them what help they could give him; there was bargaining, and it ended there at £300. Then Felix and Gabriel and one of the appellants, using the taxi in which Felts had come, went to the Bank, where Felix drew out £300; in the car they concluded on £250, and the appellant with them asked them to tell his companion that it was £150; he was dropped near a hotel; the others went on and gave the companion a note from the one who had got down earlier, and he went away. Then Felix put the cartons into the taxi and took them to his brother’s house.

Lawrence came back three days later; he heard the story, and said the cartons were Galleon cigarettes, not Craven A’s; Felix and Gabriel and Lawrence went to look at them, and they were Galleons- quite innocent and not smuggled, as everyone had thought. Lawrence admitted that he had at other times dealt in contraband, but not on this occasion; he told an absurd story about buying Galleon cigarettes at Jos and bringing them to Onitsha to sell to clients of his. Felix, when bribing the police, had is in mind that when Lawrence came back, he would pay the cost of buying them off; but Lawrence was not willing. Felix ran to the barracks, where he saw one appellant, who told him to see the other; and the other told him he would see the first. Felix went two or three days in succession, and then according to what he said in chief, he reported to the Police. That was untrue, by the way; it was not until April the 26th that he reported. In between, Felix consulted his relatives, who advised him to report.

The appellants made statements; they gave their movements on the 22nd February -one was on duty in court, the other not; they also said that after the search in the Onitsha market in December, when smuggled cigarettes were seized and some persons taken Into custody, Felix and a friend of his asked each of the appellants for the name of the informer because they all had to share the loss, but the appellants refused to tell; and that Felix threatened to see them punished. The appellants gave evidence at the trial; the one who had been on duty on 22nd February called witnesses on the time he left the court. The station diary showing the movements of policemen was put in. They were not believed; and the trial Judge thought that the bank cashier, who had said as a witness for the Crown, that it was near 4 p.m. when Felix came to draw money, was also not truthful.

Dealing with the counts of corruption, the learned Judge thought they were properly laid: for the policemen were entitled to know what was in the cartons, but Felix did not wish to let the cartons be taken or himself to be arrested, and paid money to have the matter closed. As regards the count of demanding money with menaces with intent to steal, he accepted the submission of the defence that there was no threat that could unsettle the mind of the complainant (Felix) – which implies that Felix was not a victim pure and simple. However, in the last paragraph but one, just after saying that he was Impressed with the evidence of Felix, Gabriel, the houseboy, and the driver, the learned Judge says

The counsel for the defence has asked me to treat the 3rd and the 6th prosecution witnesses (viz. Felix and Gabriel) as accomplices. It is not easy to draw a line of demarcation between an accomplice and a victim in a case of this nature. The 3rd prosecution witness did not want to face the ordeal of the prosecution under the Customs Ordinance where not only (that) the goods may be confiscated, but the fine may be three times the value of the goods. He could also be imprisoned and at the same time pay the fine and forfeit the goods. In such circumstances one could be forced to accede to any demand if he could afford it. I am therefore of opinion that the 3rd and 6th prosecution witnesses are not accomplices but victims. If on the other hand it is to be held that they are accomplices, I have to say that their evidence is amply corroborated by that of the 2nd and the 4th prosecution witnesses, the house boy and the driver, that there is no need for warning. Again if it is to be held that the corroboration did not cover all the counts then I seriously warn myself on the danger of relying on the 3rd and 6th prosecution witnesses in convicting the accused persons.

With respect, that is not reassuring.

Whether a witness for the Crown is a participes criminis is a matter to be decided in the circumstances of each case: see The Queen v. Ezechi, (1962) 1 All N.L.R. 113, which cites Davies v. D.P.P., (1954) A.C., 378, 400-402, and reviews a number of cases of corruption on the point whether the witness was an accomplice or victim.

In a sense, as no person cares to part with money if he can help it, but does so in order to stave off investigation or prosecution, it may be said that he is the victim of the Policeman’s avarice. If the sum was large, or there was double payment, the policeman looks more and more of a villain and the man who paid more and more of a victim – which may make one forget that one is not concerned so much with the question whether he was a victim as with whether he was an accomplice, and lose one’s poise of judgment. It would be wiser to focus one’s attention rather on the question of accomplice vel non, and ask oneself-

(A) did the witness counsel the commission of the offence? or

(B) did he aid in the commission of the offence? or

(C) did he help to cover up the offence?

If the answer is yes, to any one of those questions, then the witness was an accomplice. A simple test would be to imagine Felix in the dock with the appellants; one would then say, having regard to his own evidence, that he had aided the appellants in corruption by giving them money with a view to stave off investigation, and was guilty of the offence, and therefore an accomplice. So was his friend Gabriel, who helped in the haggling over the price on the second occasion. Felix may have been fleeced; the appellants may have been only too willing: the fact remains that Felix was an accomplice, and the question of corroboration arises.

As to the nature of the corroboration needed, the case of Baskerville., (1916) 2 K.B. 658, at 667, repays reading; section 177(1) of the Evidence Ordinance provides that-

An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice: Provided that in cases tried with a jury when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular implicating the accused, the judge shall warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so and in all other cases the court shall so direct itself.

In general it is desirable to specify in the judgment the terms of independent testimony which the trial court regards as corroborating the evidence of the accomplice in some material particular implicating the accused. The amount of de tail will, of course, vary according to the circumstances of the case; and where the matter is plain and there is only one person on trial, a little may be enough. Where two or more accused are involved, the corroborating evidence against each should be carefully distinguished. It was not done in this case. Then, again, where the court thinks of convicting on the uncorroborated evidence of an accomplice, it is desirable for the court to consider whether there are not features in his conduct which should make the court hesitate in taking the risk of doing what is unsafe. That also was not done in this case.

There were a number of matters which arose for consideration in those two respects, such as whether the house-boy and the driver were not tainted by the fact of removing into hiding goods which they knew the police were after; how far the evidence of the one or the other implicated both appellants or either; whether the fact that the police showed the appellants with Felix and Gabriel to the driver, at the police station, and again later in the Magistrate’s court, did not make his identification of them unsatisfactory; whether Felix and Gabriel had not damaged their trustworthiness by being untruthful over the contents of the cartons, and Felix by deliberately lying over the date of his reporting to the police: but it is not proposed to go into them here, for it is plain that the trial Judge viewed Felix and Gabriel as victims. That error was abound to affect his approach to the case and his appraisal of the evidence; and the last paragraph but one of the judgment, which has been quoted, makes it plain that he was so affected, and that the mention of the accomplice warning was no more than of form.

The appeals are allowed, the convictions and sentences are quashed, and verdicts of acquittal shall be entered for both appellants.

Other Citation: (1962) LCN/1002(SC)