Appeal Court 27th April, 1940. Appeal from conviction by High Court.

 

Breaking and entering and stealing-Section 410 of Criminal Code-: Misdirection-Alleged want of fair trial and miscarriage of Justice.

The facts are set our in the judgment: the Court agreed with the findings of fact of the Trial Judge but the judgment contains comments on the recognised' functions of a Judge in Nigeria to assist an accused person not represented by Counsel in putting his defence before the Court.

Held: There was no irregularity in the course taken.

The facts of the case are sufficiently set out in the judgment.

C. N. S. Pollard for Crown.

Sir W. Geary (with hilL A. Soetan) for 3rd Appellant.

A. Soetan (alone) for 1st, 2nd, 5th and 6th Appellants. J. E. C. David for 4tb Appellant.

The following reasons for Judgment ,vere delivered :­KINGDON, C.J., NIGERIA, PETIUDES, C.]., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LE0NE.

In this case the six Appellants were convicted in the High Court of the Ibadan Division of breaking and entering the shop of one Samuel Aluko at Ogbomosho during the night of the 30th-·31st July, 1939 and stealing therefrom £300 the property of the said Samuel Aluko. They were each sentenced to seven years imprisonment with hard labour. Each of them now appeals to this Court against his conviction. The breaking alleged is not an actual breaking but the obtaining of entrance by an artifice which by the provisions of Section 410 of the Criminal Code is deemed to be a breaking and entering.

1st  Appellant Amida Gbadamosi   -lst accused

2nd Appellant Amusa Kalikasa       -2nd accused

3rd Appellant Thomas Sorunke       -4th accused

 4th Appellant Richard Ukwani          -5th accused

5th Appellant Joseph Olisa               -6th accused

6th Appellant Christopher Jolaosho--7th accused.

To avoid confusion it should be stated that, owing to there having been another accused who was acquitted, .the numbering of the last four Appellants is different from their numbering as accused. The following table explains this :-

The 3rd, 4th, 5th and 6th Appellants were all policemen.

The 3rd accused, Who was acquitted, is named Saka Sadike.

In these Reasons for judgment" the numbering as Appellants will be used save in quotation from the proceedings in the trial Court.

The learned Trial Judge sets out the facts of the case as disclosed by the witnesses for the prosecution as follows :-

" During the evening of the 29th July, 1939, the 1st and 2nd accused paid a visit to the complainant Aluko, in his house at Ogbomosho. AIuko is a clerk-in-charge of a United Africa Company store there. He lives with a wife named Dorcas Ajebe in a house separate from the Company store and there carries on a small shop of his own. This can be seen on the plan Exhibit" G." Another wife, Adedoja, lives behind the Company store. The apparent object of the visit by the 1st and 2nd accused on the 29th July last was to purchase two cases of petrol. He tendered three currency notes in payment for these. As there was no change in Aluko's house, he took the 1st and 2nd accused to the Company store, and opened the safe in their presence to get the change. When the door of the safe was open anyone could see full money bags in the safe. There were two bags of one hundred pounds each in full view, and a further pan containing one hundred pounds in a drawer in the safe. This £300 had been counted by Aluko on the same Saturday before closing the store, and before the arrival of the 1st and 2nd accused at his house. At this meeting the 1st accused informed the complainant that he wished to buy fifty cases of petrol on credit, but Aluko told him that nothing could be done before the end of the month, after stock had been taken. Further evidence was called-Eman Oyegbede-to that called at the preliminary investigation. He was called on notice, and was able to show that there was a balance in the safe at Ogbomosho at the end of July, 1939, of £300 16s. 6d. The two accused were given food by Dorcas Ajebe, in Aluko's house, on that evening before they left, sometime after lighting up time. On the 30th July, 193U, a motor driver, Salami Sumonu, employed by the 1st accused to drive his lorry J.420 went to Ago, some seven miles from Ijebu Ode. He went on instruc­tions given to him by the 1st accused's transport clerk Ola Olubajo. There he saw a pleasure car No. A.55. In it were the 4tp., 6th and 7th accused. He did not speak to them, but was informed by his master that his lorry J .420 had been chartered by the Police to go to Ogbomosho to arrest someone. The car and the lorry started off from Ago about 7 p.m. and made towards Ibadan. The occupants of the lorry were 4th and 3rd accused, a man called Tijani, Salami Sumonu and his apprentice, Abudu Lamidi. The 2nd, 6th and 7th accused were in the pleasure car, together with its driver. Mamu Police Control Post was reached, according to the record book-Exhibit" F "-at 8-12 p.m. The particulars of the lorry were taken by P.C. Jbseph Okoro. He was only called on duty at that time, and did not actually see the car A.55. He took over duty, as the 5th accused reported that he had been detailed for special duty by his brother, the Inspector. The 5th accused joined the lorry at the Central Post. The other policemen in the party were not in uniform and the 5th accused put on civilian clothes over his uniform when about seven miles from Ogbomosho the policemen changed into uniform, which they had brought with them in bundles. The 5th accused simply removed his civilian clothes which he had put over his uniform at the Control Post. The 4th accused put on the uniform of a Police Inspector. The party then moved off to the car park at Ogbomosho. There the 4th accused joined the pleasure car and the 2nd accused boarded the lorry. The lorry then moved off first, and pulled up opposite Aluko's house and shop. The 1st and 2nd accused alighted and went and knocked at the door, and were admitted by Aluko. The pleasure car then arrived with the 4th, 5th, 6th and 7th accused. On admission to Aluko's house the 1st accused commenced to talk about the 50 cases of petrol he required on credit. At once a Police Inspector and three constables rushed in and 1st and 2nd accused were arrested and hand­cuffed. !he 4th accused at once opened a portmanteau which had been brought into the house by the 1st accused. He said the coins in it were counterfeit. He then demanded the money that had been given to Aluko by the 1st and 2nd accused saying they were counterfeiters. Aluko's who was then searched. The noise of the search awoke his wife, Dorcas Ajebec A demand was then made to be taken to the U.A.C. store, and Aluko wa man-handled there by the constables. The store was locked and the 4t accused demanded it to be opened at once. Aluko opened it under pressure and the store was searched. On arrival at the safe a demand was again made for it to be opened by the 4th accused. He was informed it contained nothing but the Company's money. Alukowas then struck, and as hi wife Adedoja had been awakened by the noise he told her to bring the key of the safe. The 4th accused then said the money was only being taken for inspection purposes, and would be returned.

" On the safe being opened two bags of £100 each and a pan containing £100 were removed and taken out to the pleasure car. The two bags were carried by the police and the pan of £100 taken by Aluko himself in ca it would be spilled on the way. It was put in the pleasure car together with Aluko. The money was in the back with the police and Aluko in front with the driver. The car and lorry then left; the car going in front. The proceeded in this formation about 13 miles down the Ibadan Road. The car stopped and the lorry drew up behind, The 4th accused stepped down from the lorry and called Aluko. from the car. He got out and went back, and as he was doing so both the car and lorry moved off. Aluko tried b board the lorry but was pushed off. Later he was found on the road by h~ two wives who had got out their lorry, after the departure of their husband and followed him. He boarded their lorry and returned to Ogbomosh where he at once reported the occurrence to the Native Administration Police. On arrival at the Mamu Police Post the lorry slowed down and went through the Post without stopping. It was seen by the police on duty. He could not get the number, as it was covered with mud, but he recognised the face of the driver as that of the driver of J .420. He mad, no entry in the book. When Ijebu Ode was reached the money was! ultimately taken to the 1st accused's house. Ola Olubajo was in the house! and knocked up at dawn. He saw his master then cuter the house with a bag and a pan containing money. He was accompanied at the time bi. 2nd, 3rd, 4th, 5th, 6th and 7th accused. They all went into the back yard of the house, and from there the sound of money could be heard. Sometime! later when the 1st accused's drivers were arrested he offered this transport: clerk £5 to make a statement denying what he had seen."

After reviewing the evidence in support of these alleged facts: and considering the defences of the Appellants (except that of the 3rd Appellant, who made none) the Trial Judge accepted the story of the prosecution and convicted the Appellants as stated.

Counsel on behalf of the 1st, 2nd, 3rd, 4th and 6tt Appellant' filed the following grounds of appeal :--

"1. Conviction is wrong in law in that 'the learned Tri~ Judge ignored or omitted to direct himself on sever: points which appear to be in favour of the accused.' of which the following particulars were given :-

" Misdirection:

"(1) The learned Trial Judge omitted to. direct himself on :-

(a) Serious contradictions between the evidence that the Appellants Nos. 3, 5 and 6 were see at Ago I woye between 5.30 and 7 p.m. 0 30-7-39 and the evidence that  they were a Ijebu-Ode at 6.20 p.m. on that day.

 (b) The question of the hour the offence was committed.

(c) Improper exclusion of evidence regarding the Ijebu-Ode Police Station Diary containing entry that Nos. 3, 5 and 6 Appellants were at Ijebu-Ode Police Station on 30-7-39, at 6.20 p.m. which diary was produced by the prosecution at the trial but not tendered.

 (d) Serious contradictions in the evidence at the trial and the original statement of Salami Sunmonu--- Ex. " K " as regards (1) the time all the accused left Ago-Iwoye for OgbomoshCl and (2) the place where he stopped his lorry at Ogbomosho (3) his absence or presence from the scene of the crime.

(e) Serious contradictions between the evidence at the trial and the original statement of Aluko- Ex. " H ".

(f) Serious contradictions between the evidence. at the trial and the original statement of Yesufu Lateju-Ex. " J

(g) Absence of the evidence of either the owner or driver of car A.55."

    2. Want of fair trial:

"(a) Irregular interview between the trial Judge and the 1st and 3rd Appellants in the Judge's Chamber, during which the trial Judge made use of disparaging expressions and threatening remarks to the said Appellants,

"(b) Irregular pressure on the Appellants to disclose their defence to the prosecution by Order of Court.

"(c) Threatening remarks to all the Appellants in open Court on refusal to disclose t heir defence to the prosecution.

"(d) Exclusion at trial of material exhibits previously tendered at the preliminary investigation.

" (a) Photo of 3rd Appellant.

"(b) Ijebu-Ode Police Station Diary.

"(c) Paper containing the names of the 3rd and 6th Appellants found in Aluko's wallet.

"(e) Improper identification :-

(1) by persons who knew the names of the Appellants and had known them personally for a long time.

                         (2) Sending photographs to identifying witness before hand.

        (f) Wrongful admission of evidence to wit :--

" Portmanteau alleged by prosecution to be the property of the 1st Appellant and said to have been found in the house of the said Appellant 'while conducting a search of the house in the absence of the said Appellant who was then in custody."

" 3. Miscarriage of Justice:

" (a) Employing accomplices as Crown witnesses~ against the Appellants knowing them to b such accomplices.

"(b) Refusal to check the statements of the Is Appellant which might have proved the innocence of the other Appellants."

" 4. Misdirection:

., The learned trial Judge misdirected himself generally upon the evidence before the Court."

The following particulars were given :-

" The learned trial Judge misdirected himself in holding that-

" (a) The evidence of Mr. Hodge, the Superintendent of Police was on the face of the deposition a witness for defence.

"(b) There are certain discrepancies in the evidence given by the prosecution witnesses on minor  details, whereas most of the said discrepancies were of rather serious nature in relation t the defence of alibi set up by the appellants and the veracity of the witnesses for prosecution. "

"5. Verdict against weight of evidence in that the evidence before the Court does not support the conviction of the accused and the verdict is unreasonable."

The 4th appellant's grounds of appeal are :-

" 1. The learned Judge misdirected himself ;--

" (a) Generally upon the evidence before the Court in holding that the irregular identification all the 5th accused was regular.

" (b) With regards to the alibi of the 5th accused" "(c) In that the evidence of the accomplices were' not corroborated.

"2. Verdict against weight of evidence."

Dealing first with the grounds filed on behalf of the 1st, 2nd, 3rd, 5th and 6th appellants. As to ground 1 we are of opinion that the learned Trial Judge directed himself very fully as to the evidence and that there was no misdirection or important omission of direction as suggested. Paragraph (c) of this ground is dealt with under ground 2 (d) (b).

Ground ~ (a) and (b). These apply only to the 1st and 3rd appellants, and more particularly to the 3rd. In criminal trials in the High Court in this country it is one of the recognised functions of the Judge to assist an accused person, who is not represented by Counsel, in putting his defence before the Court. One of the most necessary matters of assistance is in getting the accused's witnesses before the Court. In practice when the accused names his witnesses the Police undertake the finding and bringing of them. A free subpoena is issued when necessary. The Court, of course, has the right, and indeed the duty, to satisfy itself before ordering a free subpoena to issue that the request to call the witness is a proper one and is not merely f.rivolous, vexatious or obstructive. Following this practice in the present case, the Judge warned the 1st and 3rd appellants " that they must give the gist of the evidence required by them to be called, in order that it can be judged if relevant. If relevant free subpoeaas will be issued. Not otherwise ".

These two appellants, however, were unwilling to disclose their defence to the Police and next day the Solicitor-General informed the Court" that accused are not willing to disclose their defence and therefore matter not proceeded with as ordered by Court." Thereupon the Judge decided to "see the accused concerned in Chambers on the rising of the Court to-day" in order to discover what witnesses and documents are necessary in the interest of justice to be produced for the 1st and 4th accused concerned

At that interview the 1st appellant gave the purposes for which he wished witnesses called, but so far as the 3rd appellant is concerned, the interview proved abortive. Except for producing a list of names and documents" all mixed up ", the 3rd appellant refused facilities for helping him. The Judge thought he was being obstructive, whilst the 3rd appellant thought or pretended to think that the Judge spoke harshly to him. We are satisfied that throughout the Judge acted in a genuine desire to assist the two appellants and that there was no irregularity in the course he took, far less anything amounting to " want of fair trial". It may be that the 3rd appellant genuinely believed, as He alleges, that the .Judge would be prejudiced agail1st him as a result of the episode, or it may be that the 3rd appellant seized upon the occurrence as an opportunity to obstruct his trial. However this may be there certainly was no justification for the attitude thenceforward adopted by the 3rd appellant at the trial, namely to stand mute and refuse to defend himself. In this connection

it should be noted that he had already adopted this attitude before the interview, informing the Court that he would ask no more questions and make no statement until he got a lawyer. No' lawyer ever came for him.

As to ground 2 (c). we disbelieve the suggestion made in it. As to ground 2 (d) it is not correct to say that the exhibits specified were excluded; they I were merely not put in by the prosecution, it was competent to the defence to call for them and tender them in evidence if it so desired. Actually item (d) (b). the Ijebu-Ode Police Station Diary, was, at request of appellants Counsel and without objection by the Crown, admitted as an exhibit in this Court, without any decisive result.

As to ground 2 (e) (1) it certainly seems unnecessary to ask a person, who knows another well both personally and by name, to pick him out at an identification parade. But even if that were done, it would be no adequate ground for quashing the convictions.

If the suggestion in ground 2 (e) (2) were true, it would certainly show a grave impropriety; but the prosecution suggests that the photographs alleged to have been found in Aluko's shop were "planted" by or on behalf of one or more of the accused. In view of the elaborate nature of the plot this seems at least a likely explanation particularly as it was the 3rd appellant who showed the Police where to find the photographs.

There is no substance in ground 2 (f). Nor is there in ground 3 (a).

Much was made by Counsel for the appellants of ground 3 (b), but the ground was quickly cut from under his feet when Counsel for the Crown pointed out that the 1st appellant, who described himself as a fraudulent trickster by trade, would be a very poor hand at his trade if he had not taken the precaution to do the necessary" planting" in case his statements were checked.

We can find no substance in ground 4 (a) whilst ground 4 (b) is only a repetition of part of ground 1.

As to ground 5 it is sufficient to say that there was ample evidence before the Court to justify the conviction, and we see no reason to interfere with any of the Trial Judge's findings of fact.

This applies also to ground :J of the 4th appellant's grounds . of appeal.

Coming to ground 1 of the 4th appellant's appeal, paragraph (a) is already covered under ground (e) (1) of the other appellants' grounds.

As to paragraph (b) the question of whether the appellant's alibi was to be believed or not was purely one of fact for decision by the Trial Judge. He disbelieved it.

As to paragraph (c) the Judge correctly pointed out that there was ample evidence to corroborate that of the accomplices.

We are unable to find any substance in any of the grounds of appeal of any of the appellants and so dismissed their appeals.