3PLR – BABILLA V QUEEN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

PETER BABILLA

V.

THE QUEEN

FEDERAL SUPREME COURT OF NIGERIA

F.S.C.4/1961

15TH JUNE, 1961.

3PLR/1961/16  (FSC)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

LIONEL BRETT, AG. C.J.F. (Presided and read the Judgment of the Court)

EDGAR IGNATIUS GODFREY UNSWORTH, F.J.

JOHN IDOWU CONRAD TAYLOR, F.J.

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE: Breaking and entering – Effect of failure to prove that premises was locked

CRIMINAL LAW AND PROCEDURE: Chapter II Criminal Code – Distinction between felonies and misdemeanors immaterial.

PRACTICE AND PROCEDURE – EVIDENCE – Of accomplice – Misdirection of jury/Warning by Judge – Conviction on the basis of the testimony of an accomplice – Nature of caution to be applied- Evidence Act Sec. 177(1)

ETHICS – LEGAL PRACTITIONER: failure of prosecutor to prove key element of offence charged

REPRESENTATION

Appellant absent, not represented.

G. Peters, Crown Counsel -for the Respondent.

MAIN JUDGMENT

BRETT, AG. C.J.F. (Delivering the Judgment of the Court):

The appel­lant is one of seven persons who were charged jointly before the High Court of the Southern Cameroons on an information containing two counts. The first charged them with breaking and entering the store of the Cameroons Development Corporation and stealing therein, the second with breaking and entering the same store with intent to steal therein. Five of the persons charged were acquitted completely, and the appellant and one other were convicted: The fording is not explicit, but it would appear that the learned Judge convicted the appellant on both counts although they were based on a single breaking and entering; a sentence of two years imprisonment with hard labour was imposed on the information as a whole.

The evidence showed that on the morning of the 26th June, 1960, it was found that the store had been entered and a quantity of cigarettes stolen from it, but the prosecution omitted to prove that the store had been closed the previous evening, and it is clear that the convictions for breaking and en­tering cannot stand. The question arises, whether we should substitute a conviction for stealing for the conviction for breaking and entering and ste­aling on the first count.

The grounds in which the store stands run down to the beach at Bota, and the evidence was that the stolen property was carried to the beach, loaded into a canoe and taken by canoe some two miles to a place called Sokolo. In these circumstances there can be no question of mistaken iden­tity, and the case against the appellant turns on the credibility of the witness Motuma, and on whether the Judge directed himself correctly with regard to it.

Referring to another witness the Judge said “this was a felony and I con­sider him an accessory, and that there must be corroboration.” He went on at once to say “The witness Motuma was again an accessory. On the other hand my own firm impression was that he was a witness of truth. Neverthe­less there are established principles of caution which I would seek to apply in favour of the accused, and which will serve to acquit them unless I find the preponderance of evidence against them convincing’. The distinctions drawn in English law between felonies and misdemeanours are immaterial for the purposes of Chapter II of the Criminal Code, and without wishing to be hypercritical, we think the word “accomplice”, which is used in s. 177 of the Evidence Ordinance, is preferable to “accessory” in such a context. What is more serious, we feel that the passages cited leave it uncertain whether the learned Judge was saying that on the facts of the case he would not convict on the evidence of an accomplice unless there was corrobora­tion, or whether he was saying (as in law he would have been entitled to say) that subject to the “principles of caution” he would feel free to do so if he was satisfied that the accomplice could be believed. In the event he convicted the appellant on the uncorroborated evidence of Momma, and justified his doing so by saying “The ancillary part which Motuma played renders his evi­dence less impeachable than that of a person concerned in the actual burglary would be, and his evidence, tested to the full in the witness box, was convincing.`”

When a Judge is sitting without a jury, s.177 (1) of the Evidence Ordi­nance requires that he shall direct himself that when the only proof against a person charged with a criminal offence is the evidence of an accomplice, un­corroborated in any material particular, it is unsafe to convict any person upon such evidence, although he has a legal right to do so. It is without pre­cedent to differentiate between degrees of complicity in relation to the warn­ing to be given of the danger of acting on the uncorroborated evidence of an accomplice, and we consider that it would be a misdirection to direct a jury that it might properly make such a differentiation. The learned Judge un­doubtedly scrutinized the evidence of Motuma with special care, but we feel bound to hold that taking the passages cited together he misdirected himself as to the degree of suspicion with which Motuma’s evidence was to be re­garded. He also omitted in his judgment to refer to the fact that between the date of the offence which formed the subject of the charges and the trial in the High Court Motuma himself had been convicted of stealing a clock and sentenced to one month’s imprisonment. We are unable to say that the mis­direction has led to no substantial miscarriage of justice, and we do not think it safe to substitute a conviction for stealing on the first count. The convic­tion and sentence are therefore set aside, and a judgment of acquittal is en­tered.

There is one further matter to which we think it desirable to refer. It is stated at page 46a of the record that on the day on which judgment was deli­vered the “charge” was amended by some alteration to the date referred to. It does not appear whether this was done before or after judgment was deli­vered, and if it was done before there is the precedent of Regina v. Kano and Arisah 20 N.L.R. 32, for the alteration of a count after the addresses of counsel and before judgment, but we would draw attention to s. 164 of the Criminal Procedure Ordinance for the procedure to be followed when an amendment is made at any stage, and to Regina v. Eronini 14 W.A.C.A. 366, for the consequences of a failure to follow the correct procedure. How­ever, the point was not raised before us, and we have preferred to decide this appeal on a point going to the merits of the case.

UNSWORTH, F.J.:

I concur.

TAYLOR, F.J.:      l concur.

Appeal Allowed.