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F.S.C. 89/1962

19TH JULY, 1962.

3PLR/1962/21 (FSC)





SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided and Read the Judgment of the Court)





[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]



CRIMINAL LAW AND PROCEDURE – Proof of crime – Onus on the pro­secution – Effect of failure to discharge the onus.

EVIDENCE – Burden of proof in criminal cases – On whom onus lies – How discharged.



A. Aiyeola -for the 1st Appellant.

2nd – 7th Appellants absent, Not represented.

Omo-Eboh, Assistant D.P.P. -for the Respondent.



ADEMOLA, C.J.F. (Delivering the Judgment of the Court):      In the High Court of the Western Region holden at Ijebu Ode, thirteen accused persons were charged on 6 counts of burglary and 6 counts of stealing. At the hear­ing, six of them pleaded Guilty to the charges; they were accordingly sen­tenced to various terms of imprisonment. The case proceeded against the re­maining seven accused persons. Each was later found Guilty on the 12 counts and sentenced. From the convictions and sentences passed they have appealed to this Court.


For purposes of the appeal the names of the appellants have been en­tered in the following order:


the 1st appellant was the 9th accused in the Court below,

the 2nd appellant was the 2nd accused,

the 3rd appellant was the 4th accused,

the 4th appellant was the 5th accused,

the 5th appellant was the 7th accused,

the 6th appellant was the 8th accused, and

the 7th appellant was the 1st accused.


At the hearing before us, the 7th appellant was represented by Counsel; the others were not represented nor were they present to argue their appe­als. Earlier, we heard applications for leave to appeal filed by all the appel­lants. Leave was granted to 2nd, 3rd, 4th and 7th appellants; and applica­tions of the 1st, 5th and 6th were refused. We then proceeded to hear the ap­peals.


The case against the appellants was that they, and those convicted with them, carried out a raid in a village known as Araromi; they created confusion among the people by entering the village at night shouting and beating the roofs of the houses with sticks. They created such a pandemonium that most of the villagers fled helter-skelter into the bush where they remained till next morning. Meanwhile the men burgled several houses and stole their be­longings.


The main evidence relied upon by the prosecution came from two ac­complices who were the 1st and the 25th witnesses for the prosecution. For purposes of this appeal, it seems unnecessary to set out the facts.


We take first the case against the 7th appellant. The evidence against him that he joined in the raid and was the leader of the gang of about 18 men, was that of the 1st and the 25th witnesses for the prosecution, who, as al­ready pointed out, were accomplices. The learned trial Judge did find they were accomplices. He then reviewed their evidence, and without directing his mind to the rule of practice that it is dangerous to convict on their uncor­roborated testimonies, found that “the evidence against him was over­whelming. The witnesses called by this appellant deposed to the fact that the evidence given against him was false; they were disbelieved by the Judge, presumably because the witnesses themselves were accused persons in the case.


The learned Assistant Director of Public Prosecutions has asked us to regard as corroboration the fact that when the 11th accused, Isaac Oluyemi, was taken to Mowe village (where all the accused persons reside) by Sergeant Major James Kodaolu to look for the stolen goods and Isaac re­fused to tell the Police where the goods were hidden, it was on the persua­sion of the 7th appellant that Isaac showed the Police where he hid some of the stolen goods in his custody. We cannot but reject such evidence as in any way corroborative of the evidence of the two accomplices. On the other hand, the 7th appellant is a very senior man in the village, and if he used his good influence to extract the truth from a burglar and helped to recover some of the stolen properties, we fail to see why he himself should be re­garded as having participated in the crime. We find the suggestion rather preposterous and difficult to accept. The case against this appellant appears to us rather devoid of reasoning because he was not arrested until six months after all the others had been arrested and charged. No satisfactory explana­tion was made why the accomplices who later implicated him were so reti­cent about the part he was supposed to have played in the commission of the crime.


The case against each of the appellants Nos. 2, 3 and 4 is that the 1st wit­ness for the prosecution, when he took the Police to Mowe village pointed them out, among so many others who were sitting outside the house of the 7th appellant, by a gas light. In Court, both he and the other accomplice (25th witness for the prosecution) did not mention their names in evidence as being connected with the crime; in fact, under cross-examination they de­nied that these three men went with them to burgle the houses. The learned Judge, in his judgment, said he disbelieved these two accomplices and stated that “the case against these men was proved beyond all reasonable doubt”. The fact is that there is no evidence connecting these three men with the crime other than the fact that they were at one time pointed out by the 1st witness for the prosecution. We find it difficult to see what evidence the learned Judge relied upon as proving the case against them beyond all reasonable doubt.


It is the duty of the prosecution to prove its case beyond all reasonable doubt, and where the prosecution has not discharged this onus, the accused is entitled to an acquittal no matter what impression the trial Judge himself may have about the guilt of the accused.


In the present case the 2nd, 3rd, 4th and 7th appellants should have been discharged after the close of the prosecution’s case as there was no evi­dence upon which each of them could be put on their defence.


In the circumstances, the appeals of the 2nd, 3rd, 4th and 7th appellants are allowed. They are accordingly found not guilty on all the counts with which they are charged; they are acquitted and discharged.


The appeals of the 1st, 5th and 6th appellants are dismissed.


DE LESTANG, C.J. (Lagos):     I concur.


TAYLOR; F.J.:      I concur.


Appeal of 2nd, 3rd, 4th and 7th Appellants allowed.


Appeal of 1st, 5th and 6th Appellants dismissed.



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