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JOSEPH OGUNBAYODE OGUNDIPE AND OTHERS
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
25TH DAY OF FEBRUARY, 1954
APPEAL NO. 219/1953
2PLR/1954/78 (WACA)
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OTHER CITATION(S)
2PLR/1954/78 (WACA)
(1954) XIV WACA PP. 458-461
LEX (1954) – XIV WACA 458-461
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
VERITY, C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
JOSEPH OGUNBAYODE OGUNDIPE AND OTHERS – Appellants
AND
THE QUEEN – Respondent
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ORIGINATING COURT(S)
Appeals by persons convicted of murder before de Comarmond, S.P.J., and a jury
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REPRESENTATION
Alli Balogun — for the first Appellant
A. Tejuoso — for third, seventh, eighth and eleventh Appellants
G. B. A. Coker — for second, fourth and ninth Appellants
Tejuoso, with Coker — for filth and sixth Appellants
The tenth Appellant in person
Madarikan, Crown Counsel — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:— Trial for murder — Victim’s body not found — Concerted attack — Criminal Code, sections 8 and 316 — Evidence affecting each accused — Case of murder or nothing — Question of “accomplice vel non” left to jury — Direction on corroboration
PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Accomplice — Corroboration — Evidence Ordinance, section 177(1)
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CASE SUMMARY
The appellants were convicted of the murder of a person whose body was not found. The trial Judge devoted part of his summing up to the evidence of the victim’s death: “His belongings were found in his house, and he has never been seen again, and you have got the evidence of the attack upon him and you know that blood (which was human) was found leading from that place, Tapa Street, to the foreshore”, was the gist of the direction, besides some other circumstances.
It was a case of murder or nothing as the result of a concerted attack. The trial Judge explained murder by reference to section 316 of the Criminal Code (an intention to cause death or grievous harm, or an act likely to endanger human life done in the prosecution of an unlawful purpose, is the relevant part of the section) and directed the jury on the effect of section 8 of the Code, which provides that “when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence”. At the same time the Judge put together the facts for and against each accused.
Incidentally the Judge also directed the jury on manslaughter but made it plain that it was a case of murder or nothing (though no defence of manslaughter seems to have been set up).
A question was raised especially about one witness being an accomplice. The Judge left it to the jury to say whether he was and directed them in these terms:
“When a man is an accomplice and gives evidence, you may in strict law act on his evidence and convict an accused person. However, chiefly where there is a jury, a Judge must warn the jury and say that it would be unsafe for you to act on the evidence of an accomplice unless what he says is corroborated by independent evidence which connects the accused with the crime … if this man had a hand in it you had better look for corroboration”;
and the Judge enlarged on the subject. The provision in section 177(1) of the Evidence Ordinance is as follows:
“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.”
The complaints on appeal were:-
(1) That the verdict was unreasonable and against the weight of evidence.
(2) On the evidence that the victim (whose body was not found) was dead.
(3) That the question whether a particular witness was an accomplice ought not to have been left to the jury; that he was an accomplice; and that there was no corroboration of his evidence. (Note: There were other witnesses as regards the attack on the deceased; the supposed accomplice stood alone in saying that the body was taken and put into a canoe; and the Judge told the jury,” If you believe Aka’s evidence on what took place in front of 8 Tapa Street that is all that is necessary. The other part of Aka’s evidence about seeing the body carried to the lagoon completes the picture-rounds it off, but it is not essential because Apalara was then dead.”)
(4) That the Judge did not direct the jury properly on the possibility of returning a verdict of manslaughter.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeals) that:
(1) There was nothing which would justify interference with the verdict of the jury.
(2) The question whether the death of the victim had been proved was clearly and adequately put to the jury, and the evidence, which was obviously accepted by the jury, was ample.
(3) Whether a certain witness was an accomplice was a question of fact for the jury to decide; and the direction on corroboration was correct.
(4) On the question of manslaughter the Judge put the position to the jury as favourably as the evidence justified, and if they had found a verdict of manslaughter it would have been in the face of the evidence.
(Editor’s Note: On the effect of section 8 of the Criminal Code on persons taking part in a concerted attack see Sunday Kala Alagba and Others v. The King, Privy Council, 12 Dec., 1950, in 19 N.L.R. 128.
On accomplices see now Davies v. Director of Public Prosecutions, House of Lords, 19th February, 1954, in 2 W.L.R. 343; 38 Cr. App. R. 32. The persons who, if called as witnesses for the prosecution, have been treated as accomplices are set out in the case of Davies, and the categories are closed. The cases fall into two classes. “In the first, the Judge can properly rule that there is no evidence that the witness was, what I will, for short, call a participant. The present case (that is Davies’s) in my view, happens to fall within this class, and can be decided on that narrow ground. But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a ‘participant’. In such a case the issue of ‘accomplice vel non’ is for the jury’s decision: and a judge should direct them that if they consider on the evidence that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after that warning, they still think fit to do so”: per Lord Simonds, C., in the case of Davies.
On the nature of corroboration needed see R. v. Baskerville, 1916, 2 K.B. 658, and in this volume Ohene Djan and Atta Mensah v. The Queen, W.A.C.A. on 11th June, 1954.
On whether and in what circumstances a direction on manslaughter should be given when not raised as a defence see Mancini v. Director of Public Prosecutions, 1941, 28 Cr. App. R. 65.)
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The appellants were charged with the murder, on or about the third day of January, 1953, of one Bisiriyu Apalara.
The case came for trial before de Comarmond, S.P.J., and a jury. The hearing of the case took approximately five weeks, at the end of which the jury brought in an unanimous verdict of guilty against each of the appellants.
At the hearing of this appeal Mr. Alli Balogun appeared for the first appellant, Mr. A. Tejuoso for the third, seventh, eighth and eleventh appellants, Mr. G. B. A. Coker for the second, fourth and ninth appellants, and Mr. Tejuoso, leading Mr. Coker, for the fifth and sixth appellants, the tenth appellant argued his own case and the Crown was represented by Mr. Madarikao.
In the record of the proceedings before the Court below the appellants, in the order in which they appear on the appeal record, are referred to as accused No. 1, 3, 4, 5, 6, 10, 11, 15, 18, 19 and 20, respectively.
Leave (? was sought) to amend the grounds of appeal filed by the appellants who were represented by counsel (? who) intimated that the amended grounds of appeal were intended as a substitution for the original ones filed.
Although the ground of appeal, as filed, was somewhat differently worded, each appellant relied upon the ground that the verdict is unreasonable or cannot be supported having regard to the evidence.
We have examined the evidence against each appellant with anxious care and are satisfied that there was evidence against each one of them upon which the jury could properly come to the conclusion they did. The evidence, in each case, was carefully and fairly dealt with by the learned trial Judge in his summing-up to the jury who had the advantage of seeing and hearing the witnesses, and there is, in our view, nothing which would justify our interfering with the verdict of the jury, in any one of the cases, on the ground of appeal in question.
It was also submitted by counsel that the learned trial Judge failed to direct the jury properly as to the nature of evidence required in the absence of the corpus delicti and they referred to isolated passages in the summing-up in support of this contention.
We are unable to agree with this submission. It appears to us that there was ample evidence, if accepted by the jury as it clearly was, that Apalara died on the night of the 3rd January, 1953, as a result of injuries inflicted upon him and we are of the opinion that this aspect of the matter was clearly and adequately put to the jury by the trial Judge when he summed up the case to them.
Failure adequately to direct the jury where witnesses for the prosecution had contradicted themselves was also urged as a reason for quashing the convictions, a complaint which, in the light of the careful directions given by the learned trial Judge to the jury on the point, is, in our view, ill-founded.
Counsel also argued that the trial Judge erred in leaving the question whether the seventh witness called by the prosecution, Yesufu Aka, was an accomplice, to the jury, and submitted that the convictions of appellants 5, 6, 8 and 9, accused Nos. 6, 10, 15 and 18, respectively, ought not to be upheld because the only evidence against them was that of Yesufu Aka, who, they submitted, was clearly an accomplice, and in the absence of corroboration of his evidence the jury ought not to have convicted.
On the first point we invited counsel to refer us to authority for their proposition and they were unable to do so, no doubt for the good reason that the question whether a witness for the prosecution is an accomplice, or ought to be regarded as such, is a question of fact for the jury to determine, and the learned trial Judge properly, we think, left it to them to decide; on the second point. we are of the opinion that the trial Judge’s directions to the jury as to the danger of convicting an accused person on the uncorroborated evidence of an accomplice, were in accordance with the law and practice on the subject. It follows, that, in our view, there is no substance in the complaint.
Mr. Coker also submitted that the learned trial Judge “did not direct the jury properly on the possibility of returning a verdict of manslaughter”, and that it was his duty to do so even if the defence bad not raised the point, and he complained of passages in the summing-up to be found at page 310 and 410 of the record. In this connection we think it only necessary to say that the learned trial Judge put the position to the jury as favourably as the evidence justified its being put, and that if they had found a verdict of manslaughter it would have been in the face of the evidence.
The tenth appellant, accused No. 19, in substance, repeated the evidence he gave in the Court below, and denied that the statement he was alleged to have given to the police, exhibit “C1″.was a voluntary one. He denied attending the meeting held at the Bale’s house on the 2nd January, 1953, or being at the scene of the crime on the night of the 3rd January, 1953. His statement “C1” places him at the scene on the night of the 3rd January, 1953, and there was ample evidence, obviously accepted by the jury, showing his complicity in the crime.
For these reasons we are of the opinion that there is no substance in any of the appeals and they are, therefore, dismissed.
Appeals dismissed.
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