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HOME           7  WEST AFRICA COURT OF APPEAL

 

 

                                         LAGOS, 6TH NOVEMBER, 1941       

          COR. BUTLER LLOYD, AG. C.J., BROOKE AND JEFFREYS, .JJ.. 

                                                                                          

                                                                                  REX                                                                    Respondent

                                                                                     v

                                                   EMANUEL ADEBOW ALE AND FIVE OTHERS                     Appellant 

        

                                                    

pg 142 Appeal Court, 6th Nov., 1941.Appeal from convictions and sentences in Supreme Court.

Criminal law and procedure--Charges of Stealing, contra. section 390 (4) and of Receiving stolen property, contra. section 427 of the Criminal Code-Misdirection--Failure to warn jury as to statements made by co-accused-Guilty knowledge­ Possession 01' control of stolen property-Material witness­ Redundant verdict and sentence.

The first three appellants were charged with offences against section. 413 (1) and 390 (4) (c) and also against section 427 and receiving stolen property, which consisted of a number of cases of gin stolen from a Customs Warehouse. The first three appellants were convicted of stealing and receiving, and the last three appellants were found guilty of receiving. The principal ground of appeal raised by all appellants was that the jury was not warned that statements made by co-accused and their evidence in Court should be regarded as that of accomplices requiring corroboration.

Held: (1) that neither the statements 1101' the evidence contained anything material which could be regarded as prejudicing the others and the rule as to corroboration applies only to witnesses called for the prosecution:

(2) . there were circumstances from which guilt~· knowledge could be inferred by the jury and it could not be said that their verdict was wrong:

(3) assistance in disposing of stolen property is expressly stated in section 427 to be sufficient proof of receiving:

(4) by virtue of section 8 (2) of the Criminal! Code a wife could only be called on the application of her husband:

(5) the first three appellants having been found guilty on the first count of Stealing, there was no need to take a verdict on the second:

Evidence supported either count.

Verdicts and sentences of first three appellants under section 390 (4) (c) quashed, their convictions and sentences on charge of receiving upheld and the sentences of other three appellants reduced.

Cases cited:-

R. v. Barnes and Richards 27 C.A.R. 154.

R.       v. Mallam Mahamado W.A.C.A. (unreported) 23rd March, 1940.

 

Akerele for 1st Appellant-ADEBOWALE.

Sir William Geary and Alakija for 4th Appellant-JAFFAR

. A. O. Thomas for 2nd Appellant-V Aseo DA GAMA.

Cole and Alakija for 5th Appellant-GFELLER.

Moore and Taylor for 6th Appellant-SAIDI.

3rd Appellant (Apena) not represented.

Reece for Crown.

The following joint judgment was delivered:-

BUTLER LLOYD, ACTING C.J., BROOKE AND JEFFREYS, JJ.

'fhe appellants in this case were tried at the Lagos June Assizes before Mr Justice Baker and a jury as to the first three of them on two counts alleging offences against sections 413 (1) and 390 (4) (c) and against section 427 of the 'Criminal Code. The last three appellants were charged with an offence against the latter section only. A large number of witnesses was called and the trial lasted for over a fortnight. All the appellants with the exception of No. 5 who made an unsworn statement gave evidence on oath. 'At the conclusion of the trial the jury, after a retirement lasting more than three hours, found the first three appellants guilty of larceny and receiving, another person accused jointly with them being acquitted. The jury also found the last three appellants guilty of receiving. Against these convictions all have now appealed and in every case, the grounds of appeal in slightly varying terms allege misdirection by the learned trial Judge.

The record contains what is obviously merely a summary of the learned trial Judge's summing-up and we desire to emphasise once again the necessity for shorthand reporting in all Criminal trials in the Supreme Court.,

In a recent speech Lord Hewart then Lord Chief Justice referred to this matter in the following terms:-

" Those who know anything of the work of the Court of " Criminal Appeal are well aware that it simply could not " exist without the help of a competent shorthand writer on " every trial on indictment."

And yet so long as the present state of affairs exists it is precisely this impossibility with which we are faced every time this Court sits as a Court of Criminal Appeal.

The principal ground of misdirection raised by all the grounds of appeal is that the jury were not warned that the statements made by each appellant's co-accused and their evidence in the box should be regarded as the evidence of accomplices and not acted upon unless sufficiently corroborated. We find, however, upon a pg143 most careful scrutiny that neither the statements nor the evidence Contained anything material which could possibly be regarded as prejudicing the others. The best proof of this is that the admission of the statements was not objected to and that the co-accused themselves were not cross-examined by the others except as to one or two minor details on the evidence they had given.

It is indeed remarkable how closely their stories tallied with each other. This being so there can be no substance in the complaint that the jury were not warned that this evidence required corroboration.

Even had we thought otherwise, the recent case of Rex v. Barnes and Richards C.A.R. 27 p. 154 affords a complete answer to this ground of appeal, the head-note in that case reads:-

" Where prisoners are tried jointly and one of them gives " evidence on his own behalf incriminating a co-prisoner, the " prisoner who has given the incriminating evidence is not " placed in the position of an accomplice, nor does the rule " of practice with regard to the corroboration of an accomplice "apply to such a case. The rule applies only to witnesses " called for the prosecution."

We are unable to find any substance in such others of the grounds of appeal as alleged misdirection or non-direction.

On behalf of the three appellants who were convicted of receiving it was urged that there was insufficient evidence to support a finding of guilty knowledge. As to this we are satisfied that there was evidence to support this part of the jury's finding. The gin was sold at approximately ten per cent below the fixed price at the time. It was delivered in keroaene cases instead of the original cases in which it was imported. The negotiations for its sale were extremely tortuous and payment was made to a person who on the face of it had no interest in the gin. The quantity sold was unusually large at a time when gin was already becoming scarce. All these were circumstances which the jury were entitled to consider in coming to their verdict, and it is quite impossible to say that that verdict was wrong. On behalf of the sixth appellant it was argued that he was entitled to be acquitted in the absence of evidence, that the gin was ever in his possession or control. But it would appear that his counsel had not taken the trouble to read the section under which his client was convicted, since in addressing us he made the point that all he had done was to assist in disposing of the gin, which is expressly stated by the section to be sufficient proof of receiving.

On behalf of the fourth appellant it was argued that a material witness was not called by the prosecution. The witness referred to was the wife of the fifth appellant and it is a sufficient answer pg144 to this ground of appeal to point out that by virtue of section 8 (2) of the Criminal Code this witness could only have been called upon the application of her husband and that no such application was made at the trial.

One matter only remains to be dealt with, the question of the (redundant) verdicts and sentences in the case of the first three appellants. The record is not quite clear on the point except in the case of the third appellant who was the fourth accused at the trial but we think it must be assumed in favour of the first two appellants also that the jury found them guilty of larceny contra. section 390 (4) (c) and not of warehouse breaking contra. section 413 (1) as they were certainly entitled to do. The appellants having been found guilty upon the first count there was no need to take a verdict on the second. The case is precisely similar to a case of Rea: v. M'alla7n Maha7nado in which the judgment of this Court was given on the 23rd of March, 1940, where it was laid down that the facts proved in both counts being identical the charges were really alternative and it was wrong to convict the appellant on both. Here the evidence would in our opinion have supported conviction on either count but we think that the appellants are entitled to the benefit of such ambiguity as may exist and the verdicts and sentences under section 390 (4) (c) should be quashed.

In all other respects these appeals are dismissed.

APPEALS AGAINST SENTENCES.

By the quashing of the conviction on the first count in the case of the first three appellants, as a result of the double convic­tion on both the counts of stealing and receiving, the sentences passed on these appellants were reduced born four to three years, and it is considered that no ground for any further reduction has been made out. In the case of the last three appellants we consider that their part being only a subsidiary one, they would be adequately punished by a sentence of eighteen months I.H.L., in the case of each of them. The appeals of the first three appellants against sentence are dismissed and the sentences of three years imprisonment, hard labour, in the case of each of the other three appellants are quashed and a sentence of eighteen months imprisonment, hard labour, in the case of each of them is passed.

All sentences Will run from the date of conviction viz: July 3rd, 1941. pg 146


 

 
 
 

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