➥ CASE SUMMARY OF:
Jimoh Ishola (Alias Ejigbadero) v The State (1978) – SC
by Branham Chima (SAL).
Supreme Court – SC.8/1977
➥ JUDGEMENT DELIVERED ON:
Thursday, the 26th day of October, 1978
➥ AREA(S) OF LAW
➥ PRINCIPLES OF LAW
⦿ WHETHER OR NOT A WITNESS IS AN ACCOMPLICE IS ONE OF LAW
The question whether or not a witness is an accomplice is one of law not of fact and if, as here, the learned trial Judge erred in regarding P.W.(18) as an accomplice (to the crime of conspiracy) it is certainly open to an appellate court (and in this instance, the Federal Court of Appeal) to reverse the erroneous view of the learned trial Judge. — Idigbe, JSC.
⦿ THREE CLASSES OF ACCOMPLICES
There are three classes of accomplice (a) participles criminis in respect of the actual crime charged, (b) Receivers vis-a-vis the thieves from whom they receive the goods on a trial of the latter for stealing, (c) Witneses for the prosecution who, on previous occasions, were parties to crimes identical to that committed by an accused on trial, but evidence of which crimes is being offered, in the course of the trial of the accused, to prove a system and intent and to negative accident on the part of the accused. Although this third category of witnesses are not accomplices stricto senso their evidence should not be left to the jury (before whom the accused is being tried) without a warning that it is dangerous and/or unsafe to accept it without corroboration – see Enahoro v. The Queen (1965) 1 All NLR 125 at 142 (adopting Lord Simonds, LC., in Michael John Davies v. Director of Public Prosecutions (1954) AC 378 at 400). These persons (i.e. associates or participants in the crime or offence) fall within the category of offenders set out in Section 7 and Section 10 of the Criminal Code. According to Section 7:- “(a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids another person in committing the offence; (d) every person who counsels or procures any other person to commit the offence is guilty of the offence. Everyone, therefore, who falls within any of the categories (a) – (d) is a participant in the actual offence, that is, an accomplice. The party who falls within (a) is the perpetrator of the offence; the one who falls within (b) prepares the way for, or facilitates the crime; the one who falls within (c) assists in the preparation of the crime and, the one who falls within (d) foments or incites its commission. — Idigbe, JSC.
⦿ PRIOR CONDUCT OF THE ACCUSED IS ADMISSIBLE TO EXPLAIN ACCUSED’S CONDUCT
Surely, the general rule in criminal as well as in civil cases that the evidence must be confined to the point in issue cannot be applied where the facts which constitute distinct offences are at the same time part of the transaction which is the subject of the charge. Evidence is necessarily admissible as to acts which are so closely and inextricably mixed up with the history of the criminal act itself as to form part of one chain of relevant circumstances, and so could not be excluded in the presentment of the case without the evidence being thereby rendered unintelligible. Thus, in cases of murder, evidence is admissible to show prior assaults by the accused upon the murdered person or menaces uttered to him by the accused, or to show conversely the irritable behaviour by the deceased to the accused. Again, the relations of the murdered man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the person charged with the crime, can be admitted to prove as integral parts of the history of the alleged crime for which the accused is on his trial. (See R. v. Bond (1906) 2 KB 389 as per Kennedy, J., at pp. 400 and 401). — Idigbe, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Chief Sobo Sowemimo.
⦿ FOR THE RESPONDENT
S.O. Ilori, Esq.
➥ CASE FACT/HISTORY
The case for the prosecution may be summarised thus: The appellant (known also as Ejigbadero) who claimed to have purchased a vast area of land in the area of Alimosho village, in or about 1970, proceeded sometime in 1975 to clear a large area of the same of the various crops and economic trees thereon in an attempt to develop the same. In the process he was challenged by a number of villagers in Alimosho (of whom the deceased was one) who not only claimed that their crops on the land had been wantonly damaged without reference to them but also that the land being their own the appellant was, in effect, a trespasser. In the event a number of unpleasant incidents occurred between the appellant and the villagers. Complaints to the police at Agege of assault and malicious damage to crop and property were freely made by either side. Investigations of these complaints by the police appeared, in respect of every one of them to be rather slow and in the meantime, the appellant who frequently come to Alimosho village with a number of people – who according to the appellant were his workmen but according to the villagers were his (the appellant’s) thugs – threatened and beat up violently a number of the villagers. In particular, he gave special attention to the deceased, who according to the prosecution witnesses he once stabbed near the eye-brow with a dagger or knife, and on several other occasions was heard to say that he would kill “one day.” On the 22nd day of August, 1975, Sabitu Raji Oba, the wife of the deceased who testified as P.W. (1) returned to the village in the night from the market. She and the husband sat outside their building at about 8 p.m.; she had just warned her husband of the presence of the appellant and some of “his thugs” in the village. She had seen them on her way back to the house; it was a moonlight night. As she was giving the husband (the deceased) this warning there was an explosion from a gun. The deceased groaned and fell down from the chair he sat on; he had been fired at and he sustained injury in the region of the head from where blood was seen to ooze. P.W. (1) immediately turned to the direction of the sound of the explosion from which the smoke of gun powder was seen to emerge and she saw six people running away towards a nearby bush; she recognised distinctly the appellant who, holding a gun, was in the rear. Although she saw the back of the appellant she was able to recognise him; in particular, apart from the gun held by the appellant, she recognised that the appellant at time and venue “wore English dress a short-sleeved dress … over long trousers.”
In his defence the appellant denied that he was at Alimosho village that night. He set up an alibi by maintaining that he was at his party (that of naming of his infant child) throughout that night (i.e. the night of the 22nd day of August, 1975) and in particular that he did not leave the party between the hours of 8 and 9.30 p.m. In the view of the learned trial Judge the witnesses he called to support his plea of alibi D.W.(2) police sergent Bashiru Ajape, – D.W.(3) Jacob Gbadekesin Oyelakin a Sales Manager of the Leventis Motors Ltd. and D.W. (4) Emmanuel Olayinka George a legal practitioner were each miserably untruthful in the evidence each gave and we think that even on the printed evidence, the learned trial Judge justifiably rejected their evidence. In the event, the appellant’s plea of alibi failed.
In a well considered judgment the learned trial Judge, after a very careful review of the evidence before him, accepted the testimony of the principal witnesses for the prosecution P.W.(1), P.W.(2), P.W.(3), P.W.(6), P.W.(18) and P.W.(24) who each impressed him very much. He accepted, in particular the testimony relating to the appellant’s unsuccessful attempt to persuade P.W.18 to join in the “operation” in which the deceased was killed and his (the appellant’s) departure in the company of his group from and return to the factory that night (22/8/75) at about the hours of 8 p.m. and 9 p.m. respectively. Accordingly, he found the appellant guilty, as charged in the indictment, of the offences of (a) conspiracy to murder and (b) murder of Raji Oba.
On appeal from the said judgment of the learned trial Judge, the Federal Court of Appeal (Mamman Nasir P., Adetunji Ogunkeye and Ijoma Aseme, JJ.C.A.) allowed the appeal in respect of the count of conspiracy to murder, affirmed the conviction on the second count (dealing with the charge of murder) and dismissed the appeal.
This appeal is from the said judgment of the Federal Court of Appeal.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether PW18 is an accomplice and thus a tainted witness?
A. PW18 IS NOT AN ACCOMPLICE NOR A TAINTED WITNESS
“We draw particular attention to the part of the above quotation in capitals; and as in Omisade (supra) and Enahoro (supra) we see no reason for further extension of the term ‘accomplice’. However, we think that Section 515 aforesaid under certain circumstances can have some relevance on the question whether any particular witness (whether for the prosecution or defence) in a criminal trial could be worthy of credit. But the mere failure of a witness to report to the police a person who designs to commit an offence does not ipso facto make him unworthy of credit should he testify at a subsequent trial of the offender for the contemplated offence nor does it make him an accomplice were he to testify on behalf of the prosecution in such a trial. Such a witness may have very good reasons for failing to make any such report. In the case of P.W. (18) he gave good reasons under cross-examination why he failed to report the appellant to the police; he had seen other persons against whom the appellant had committed an offence arrested instead of the appellant being arrested. Part of the testimony of P.W. (18) under cross-examination which learned trial Judge believed reads:- “I did not report to the police because I have seen so many acts of the accused. There was a day a fight took place in the farm instead of the police arresting the thugs brought by the accused the police arrested the villagers. And the police at Agege belong to the accused person…….. The accused is usually called by his hooligans …….Lion the father of Moradewun.’ We call him also ‘Baba’.” The balance of this part of the testimony of the witness (P.W. 18) clearly shows that appellant was regarded by him as a terror and in virtue of his special position within the Police Authorities in the vicinity of Alimosho Village he would not readily be disposed to make a report against him (the appellant). When P.W. (18) thought it was reasonably safe to make a report (i.e. as soon as he learnt of the arrest of the appellant, four days after the murder) he made a statement to the police on the events of 22nd August, 1975, and gave the details of the plot by the appellant and his group to kill the deceased.”
“We adopt the view of the West African Court of Appeal in Yaw Azumah (supra) and are satisfied that failure by P.W. (18) to report to the police at the earliest opportunity the offence contemplated by the appellant on 22nd August, 1975, did not necessarily detract from his credit and, on the view we have taken, earlier on, in this judgment, he does not qualify under category (1) (Participes Criminis) as an accomplice. The only other section under which a person may be considered a participes criminis is Section 8 which is inapplicable to the facts relating to P.W.(18) and the appellant.”
II. Whether the evidence were inconsistent and thus the Appellant should not have been convicted on that?
RULING: IN RESPONDENT’S FAVOUR.
A. THE INCONSISTENCIES WERE NOT MATERIAL INCONSISTENCIES
“We considered carefully the argument of learned counsel and were satisfied that the inconsistencies referred to were in our view, not material inconsistencies. We were also satisfied that the learned trial Judge, in his very careful review of the evidence of the prosecution witnesses, was not unmindful of these inconsistencies which in our view he justifiably, also considered to be insignificant or de minimis. However, we were quite satisfied that inspite of these inconsistencies there was ample evidence on which a jury or a Judge sitting as both Judge and jury could come to the conclusion that the appellant was guilty; and, above all, were satisfied that the learned trial Judge after careful review of the over-all evidence before him was satisfied beyond any shadow of doubt that it was the appellant who killed the deceased.”
“Whereupon this appeal was, at the end of the arguments and submissions both written and oral of learned counsel for the appellant – this court not having found it necessary to call upon learned counsel for the respondent – dismissed on the 22nd day of September, 1978.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ A SPECTATOR IS NOT AN ACCOMPLICE
This court also decided in Enahoro v. The Queen (supra) at p.144 that a spectator is not an accomplice and in doing so it rejected the minority judgment [Mbanefo, Ag. JSC.,(as he then was) in Michael Adedapo Omisade & Ors. v. The Queen (1964) 1 All NLR 233 at 293 – 294. The question in Omisade (supra) was whether Dr. Onabamiro, a witness for the prosecution was, a participes criminis and as such, an accomplice. According to the evidence, he was present with three other persons when one of them put up the proposal of capturing by force or seizing power from the Federal Government of Nigeria and assigned tasks to that effect; remaining silent he neither affirmed nor rejected the proposal. Later he bought and studied books on revolution; but on the evidence he certainly did nothing towards carrying out the task assigned to him. Later he stumbled into a meeting of the others present when the proposal for seizure of government and assignment of tasks therefore was made, and he advised them that their plan was not feasible although on that occasion he offered to take an oath of secrecy. The majority of the court ( a court of five Judges) thought he was certainly not an accomplice; the fifth (Mbanefo Ag. JSC. as he then was) held the view that he was or, at least, a “tainted witness” in the light of Section 40 of the Criminal Code.
⦿ WHEN A JUDGE SITS BOTH AS A JUDGE AND JURY
It is quite another thing when a Judge sits both as trial – Judge and jury. In this connection we draw attention, with approval, to the observations of the West African Court of Appeal in R. v. Adebanjo & ors. (1935) 2 WACA 315: “…..We think it (is) going altogether too far to demand that a Judge, sitting as both judge and jury, should commence his judgment by directing himself as to the burden of proof, the doctrine of reasonable doubt, and the elements which constitute the offences with which the accused is, or are, charged. To our minds it must be presumed that a learned Judge, sitting as both Judge jury, has directed himself aright in matters of law unless the contrary appears from the judgment……..” (Underlining supplied by this court) – See (1935) 2 WACA at P. 321 per Atkin, J.
➥ REFERENCED (OTHERS)