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REX
V.
PHILIP JONAH AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
12TH DAY OF NOVEMBER, 1934
2PLR/1934/42 (WACA)
OTHER CITATION(S)
2PLR/1934/42 (WACA)
(1934) II WACA PP. 120 – 125
LEX (1934) – II WACA PP. 120- 125
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BEFORE THEIR LORDSHIPS:
DEANE, C.J., GOLD COAST (GHANA)
WEBBER, C.J., SIERRA LEONE
BUTLER-LLOYD, ACTING C.J., NIGERIA
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BETWEEN:
REX — Respondent
AND
PHILIP JONAH AND OTHERS — Appellant
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REPRESENTATION
O. Alakija — for Appellant
Ivor Brace — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME — COMMON DESIGN/CONSPIRACY:- Joint commission of felony (robbery) resulting in Murder — Elements of Proof required — Identification by one Accused of another accused — Admissibility of such evidence
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Evidence of an accomplice — What does not constitute — Use of secondary evidence when primary is available — Attitude of court thereto
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (quashing the conviction):
1. When a statement is made in the presence of prisoner implicating him, and the truth of that statement is at once unequivocally denied by the prisoner, it is not evidence against the prisoner and should not be allowed to go to the jury: if the statement is admitted wholly or in part, by words or by conduct, it is admissible not because of the statement itself but because of the prisoner’s admission. Upon this authority, the statement of Lasisi implicating the prisoner ought not to have been given in evidence against the appellant.
2. The trial Judge was wrong in directing the jury that second accused had pointed out first accused as a member of the gang; that statement should never have been allowed to go before the jury at all so far as appellant was concerned, seeing that it was denied in toto by the first accused and was not evidence against him, or if it had to go before the jury as being evidence against second accused, himself, the trial Judge should have explained to the jury that it did not and could not in any way affect the first accused.
3. The use of secondary evidence when primary evidence is obtainable, is contrary to the spirit of English rules of evidence.
4. The trial Judge was under a complete misapprehension when he stated that the second accused’s evidence that he was a member of the gang was the evidence of an accomplice, since second accused had given no such evidence, but had, on the contrary, said he had never seen the appellant until after his arrest, and that was the only evidence on the point given by him—the alleged statement not being evidence in any sense.
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MAIN JUDGMENT
The following judgment was delivered:
DEANE, C.J., GOLD COAST.
On 21st December, 1933, á gang of men, who had whitened their faces so as to conceal their identity as far as possible, executed a night raid at the house of one, Adebiyi Omoba, at Alagba Village, and carried away his property – they also in the course of the raid inflicted injuries upon Adebiyi Omoba as the result of which he died a day or two after. Later, on information obtained by the police, eight men were arrested, and in due course brought to trial on 1st October, charged with the murder of Adebiyi Omoba, and of them appellant and three others were convicted on the charge, the other four being acquitted. Against his conviction and sentence of death the appellant has appealed.
Four elements must necessarily be proved to sustain a conviction in a case of this kind: it must be proved –
1. That a common design was formed to break in and rob.
2. That in the execution of that design violence was used.
3. That as the result of that violence death ensued.
4. That the person charged was one of the persons who took part in the raid.
As to the first three elements being present in the occurrences which took place that night there is no dispute; the controversy in this case centres around the proof that appellant was present taking part in the raid, and it will be necessary therefor to examine in what way the Crown has discharged the onus upon it to prove that requisite of the conviction.
For a short statement of the facts that were placed before the jury in order to establish that allegation against the appellant I cannot do better than refer to the statement of how he summed up to the jury, forwarded to this Court by the learned trial Judge: “As regards the first accused” (the appellant) he states –
“I pointed out that there was no direct evidence that he was a party to the common design or that he took any active part in carrying it out – except the statement of the witness Agbabiaka that the second accused on Lasisi Makinde had at an identification parade on 17th April, 1934, identified the first accused as a member of the gang who conceived and carried out the common design … As regards other evidence against the accused I pointed out that there was nothing whatever except the evidence about the two plates and the cup.”
Now in the last part of this statement the learned Judge is referring to the fact that, about four months after the night of the raid, two plates and a cup were found by the police at the house of the accused which were claimed by the wife of the deceased, one Adeoti, as part of the property stolen and as strenuously claimed as their property by the accused and his wife. They were common crockery such as might be in the possession of any one, and although the prosecution laid stress upon certain characteristics which were pointed out as identification marks, by which they were known to Adeoti as confirming her ownership, those characteristics were not in our opinion of such a convincing nature that the presence of them can be relied on as satisfactory evidence of identification.
As the learned Judge, moreover, reminded the jury even if Adeoti’s evidence were true as to the ownership of the plates and cup, the fact of the plates and cup being in the possession of the accused might be accounted for by the accused or his wife having purchased, or otherwise acquired, stolen property without the first accused being a party to the common design or present at the carrying out of it.” The evidence, therefore, afforded by the plates and cup was, we may take it held by the learned Judge, even if the jury believed that they belonged to Adeoti, to be of small value to prove that accused had been present at the raid, although no doubt it was put forward as a circumstance to be taken into consideration along with the other evidence. The other evidence which is referred to as “direct evidence that accused was a party to the common design” and “took an active part in carrying it out” was the statement made by the witness Agbabiaka that the second accused, Lasisi Makinde, had at an identification parade on 17th April, 1934, identified the first accused as a member of the gang who conceived and carried out the common design.
Now as to this statement it would appear that the second accused had made a statement to a police Superintendent by the name of Agbabiaka in which he had given the names of a number of men who with himself he alleged had constituted the gang which raided the house of the deceased on the 21st December, 1933; and at an identification parade held on 17th April, 1934, had identified the appellant as one of the men; whereupon the appellant had at once denied the truth of the statement implicating him.
At the trial of the case, moreover, in October, Lasisi in the witness box had denied that he had ever identified the accused as a member of any raiding rang, and had gone further and sworn that he had never seen him before his arrest. Now in the case of R. v. Norton 1910 K.B.D. 496, it was laid down that when a statement is made in the presence of prisoner implicating him, and the truth of that statement is at once unequivocally denied by the prisoner, it is not evidence against the prisoner and should not be allowed to go to the jury: if the statement is admitted wholly or in part, by words or by conduct, it is admissible not because of the statement itself but because of the prisoner’s admission, and upon this authority it is clear that the statement of Lasisi implicating the prisoner ought not to have been given in evidence against the appellant.
For the Crown, however, it is argued that R. v. Norton is no longer law and that it was laid down in the case of R. v. Christie (1914) 10 C.A.R. 141 that evidence could be given by anyone present of a statement identifying a prisoner it will be necessary therefore to examine that case to see how far it bears out this contention.
Christie’s case was e case of a man being charged with an assault upon a very young boy: from the report of the case it appears that at the trial the mother of the boy stated in evidence that about 10 a.m. he left her and that she next saw him about 10.30 a.m. after describing his then condition, she stated that she took him across the fields, and there saw a man with whom she had a conversation and Christie was then fetched. She was asked whether the boy said anything in the presence and hearing of Christie: she answered in the affirmative and objection was raised to the admission in evidence of the conversation — her evidence was then interrupted and the boy was called. He related the story of the assault, and when asked by counsel if he could see the man in Court who committed it, he pointed to Christie — counsel for the defence did not cross examine — the evidence of the mother was then resumed, and she was again asked whether the boy said anything in Christie’s presence — counsel for the defence again objected, and argued upon the authority of the Court of Criminal Appeal in the King v. Norton that the evidence was not admissible, inasmuch as Christie had denied the statement made in his presence — the evidence was admitted.
The mother then stated that as she and the boy were going towards Christie the boy said: “That is the man, Mum.” Crooks, a police constable, was standing close to Christie and asked: “What man?” The boy went up close to Christie and said: “That is the old man, Mum”, and proceeded to give a description of the acts done by Christie, who replied: “I am innocent.” Police constable Crooks, when called, said that the boy in answer to the question “which is the man” went up to Christie, touched him on the sleeve and said: “That is the man.” The police constable asked: “What did he do to you?” and the boy then gave an account of the various acts done by Christie, who answered “I am innocent— I have been asleep in the fields since 8 o’clock last night.”
Christie was convicted and appealed to the Court of Criminal Appeal. The Court was of opinion that this evidence of the mother and of the police constable had been admitted contrary to the rule laid down in R. v. Norton and quashed the conviction. The matter then came before the House of Lords at the instance of the Attorney General, who argued that the evidence was admissible. At the argument before that House, counsel for the respondent took no objection to the admission of the statement “that is the man,” but objected to the admission of the additional words describing various acts done by Christie. Lord Reading in his judgment stated — “In my judgment, it would be a dangerous extension of the law regulating the admissibility of evidence if Your Lordships were to allow proof of statements made narrating or describing the events constituting the offence on the ground that they form part of, or explain, the act of identifications. I have found no case in which such statement has been admitted.”
Lord Moulton said—
“Speaking for myself I have great difficulty in seeing how this evidence is admissible on the ground that it is part of the evidence of identification to prove identification of the prisoner by a person who is, I shall assume, an adult, it is necessary to call that person as a witness — identification is an act of the mind and the primary evidence of what was passing in the mind of a man is his own testimony, where it can be obtained. It would be very dangerous to allow evidence to be given of a man’s words and actions, in order to show that by this extrinsic evidence that he identified the prisoner if he was capable of being called as a witness and was not called to prove by direct evidence that he had thus identified him. Such a mode of proving identification would in my opinion be to use secondary evidence where primary evidence was obtainable, and this is contrary to the spirit of the English rules of evidence.”
While the Lord Chancellor expressed his agreement with Lord Moulton as showing his doubt whether in the circumstances even the act of identification could be proved. After expressing his concurrence generally with the judgments of the other Lords he stated:
“The only point on which I desire to guard myself is the admissibility of the statement in question as evidence of identification for the boy gave evidence at the trial and if his evidence was required for identification of the prisoner that evidence ought in my opinion to have been his direct evidence in the witness box, and not evidence of what he said elsewhere.”
In the result, the House of Lords affirmed the decision of the Court of Criminal Appeal that the conviction of Christie should be quashed. They laid it down as a rule of law that an incriminating statement made in the hearing of the defendant, even on an occasion which should reasonably be expected to call for some explanation from him, is not evidence against him on his trial of the facts therein stated save in so far as he has accepted the statement, and although they also held that the rules of civil and criminal evidence are theoretically the same so that a mere denial by him of the truth of such a statement does not in law render that statement inadmissible against him, to that extent overruling R. v. Norton, they went on to point out that in practice there is a rule of prudence and discretion that such a statement should not be tendered until in the opinion of the Judge there is a foundation for a reasonable inference by the jury that the defendant accepted it or part of it — if notwithstanding this rule such a statement has been given in evidence, the Judge, if he thinks it should have been withheld, should caution the jury concerning its true effect — in this respect the judgment in R. v. Norton represents the correct practice.
Now it is to be noted that in Christie’s case, the boy gave evidence at the trial detailing the acts complained of against the accused. He was not asked, and said nothing about, what he said when he identified the accused although it corresponds with what he had just said — the evidence of his mother and of the police constable stating how he identified the accused and detailing what he said about him was held to have been wrongly treated by the trial Judge as evidence against the accused and his conviction was quashed.
This is a much stronger case than Christie’s case; here we have it that Lasisi in the witness box absolutely denied the truth of the very statement he was said to have made. But in the case of Target Tillson Birch 18 C.A.R. 26, it was held that when a witness has made a sworn statement in his depositions against a prisoner, and at the subsequent trial of the case gives evidence on oath that his deposition is untrue, even the deposition cannot be evidence against the prisoner. By no possibility, then, can it be held in the circumstances that the unsworn statement made by Lasisi is evidence at all. Yet the learned Judge treated it as such. In his summing up to the jury, we find him directing them that the identification of the first accused, if in fact, made was an identification by an accomplice. By this he means:
“If you believe the evidence of Agbabiaka that Lasisi identified the accused as a member of the gang that raided the deceased’s house that night, you have him identifying the accused as a member of the gang, but of course you must remember that his evidence is the evidence of an accomplice and therefore needs corroboration.”
That is a misdirection. Lasisi in his evidence stated that he did not know the accused before his arrest. He gave no evidence of any kind to the effect spoken of by the learned Judge, and the evidence of Agbabiaka cannot possibly make evidence of a statement by him which was denied at the time by the accused, and which was subsequently contradicted on oath in the witness box by Lasisi himself. That is apparent on the face of it. If the contents of the incriminating statement are not evidence when made by Lasisi himself it is clear that it cannot be made evidence merely because Agbabiaka says he heard Lasisi make it. Especially as Agbabiaka does not pretend himself to know anything about the facts. In a memo at the close of the case we find the learned Judge noting:
“Alakija for Philip Jonah informs Court that he desires to appeal on the ground, among others, that the jury were directed by me that the second accused had pointed out the first accused as one of the gang— I did so direct and warned the jury that the identification by the second accused was by an accomplice and could not be acted upon unless the jury were satisfied that it was corroborated.”
In our opinion, on the authority of Norton’s case, the learned Judge was wrong in directing the jury that second accused had pointed out first accused as a member of the gang; that statement should never have been allowed to go before the jury at all so far as appellant was concerned, seeing that it was denied in toto by the first accused and was not evidence against him, or if it had to go before the jury as being evidence against Lasisi himself the trial Judge should have explained to them that it did not and could not in any way affect the first accused. It should not have been allowed on the authority of Christie’s case to have been stated by Agbabiaka in his evidence, seeing that the man Lasisi, who was said to have made it, was there to give evidence himself of it, and such evidence savours of the use of secondary evidence when primary evidence is obtainable, and is therefore contrary to the spirit of English rules of evidence, to use Lord Moulton words. And lastly, the learned Judge was under a complete misapprehension when he stated that Lasisi’s evidence that he was a member of the gang was the evidence of an accomplice, since Lasisi had given no such evidence, but had, on the contrary, said he had never seen the accused until after his arrest, and that was the only evidence on the point given by him—the alleged statement not being evidence in any sense.
It follows that the only evidence against the accused was the evidence as to the plates and cup. The learned Judge misdirected the jury, therefore, in telling them that they could consider this evidence in connection with the direct evidence of Agbabiaka that accused was a party to the common design and took an active part in carrying it out, since there was no such direct evidence, and Agbabiaka could not by repeating a worthless statement by Lasisi make it evidence. The conviction must be quashed.
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