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22ND MAY, 1959.


3PLR/1959/23 (SC)








LOUIS NWACHUKWU MBANEFO, F.J. (Read the Judgment of the Court)








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



CONFLICT OF LAWS – Evidence Ordinance – Decisions of English Courts – Evidence Ordinance preferred and followed.

CRIMINAL LAW AND PROCEDURE – Murder- Crowd acting in concert – Common intention – Section 8, Criminal Code.

CRIMINAL LAW AND PROCEDURE – Reading of Deposition to refresh witness’s memory – Conditions governing – Where read – Propriety of – Section 215(1) of Evidence Ordinance.

EVIDENCE – Reading Portion of deposition to refresh witness’ memory – Section 215(1) Evidence Ordinance-Application of.



  1. Agbaje for appellants.
  2. George, Assistant Director of Public Prosecutions, Western Region, for respondent.




The six appellants were amongst ten persons charged with the murder of Gbadamosi Oshuntoki. At the conclusion of the trial four of them were acquitted and discharged and the appellants were found guilty. The appellants have appealed against their convictions. It is not in dispute that the deceased was a member of the political party known as the Action Group and the appellants were members of the opposing political party known and referred to as the N.C.N.C. About the 28th March, 1958, Alhaji Adelabu, a prominent leader of the N.C.N.C., was killed in a motor accident. Some of his supporters in and around Ibadan believing that he was killed by their political opponents decided to avenge his death on members of the Action Group. It was in evidence and accepted by the learned trial Judge that on the 28th March 1958, between 10.00 and 11.00 a.m. a group of N.C.N.C. members, numbering about 60, approached Arulogun village shouting their party slogans. They were armed with guns, cutlasses, axes and cudgels. They went into the market and there attacked two men, Salawu Aboderin and Napoleon; the latter subsequently died of the injuries received by him at the hands of the crowd. Salawu Aboderin ran to his house and locked himself up in a room. The crowd chased him there and set fire to his house. When he could not bear the suffocation caused by smoke from the fire he jumped down from the ceiling and ran. The crowd caught hold of him and cut and beat him with cutlasses and cudgels and only left him when they thought that he was dead. As it happened he did not die, but subsequently recovered from his Injuries. After they left Aboderin they went to the deceased’s house which was nearby and there attacked the deceased. His left hand was completely severed from the body and as he ran they chased him and inflicted more wounds on him with cutlasses. He ran into the house of one Alfa, where he fell down and died. It is not in dispute that a crowd of N.C.N.C. members attacked and killed the deceased. The learned trial Judge found that the appellants were amongst the crowd who attacked and killed the deceased and found them guilty accordingly.

The Judge’s finding has been attacked on this appeal on sir grounds. The first point argued (ground 2 of the additional grounds) was that “[he learned trial Judge erred in law in granting the prosecution leave for the deposition to be read to the 1st prosecution witness to refresh his memory’. The incident complained of occurred when the 1st prosecution witness was giving evidence in chief. He said he saw the 6th, 8th, 9th and 10th accused in the crowd and added that he also saw the 7th and all the other accused. This statement seemed to the Counsel leading him not to agree with his deposition taken by the Magistrate during the preliminary enquiry and so he applied to the Court to read a portion of the witness’s deposition to him in order to refresh his memory, and cited as authority for the application the case of R. v. Williams. Relying on that authority and with defence counsel not objecting the Judge granted the application. The relevant portion of the deposition was then read to the witness, after which he said that he recognised the 7th, 8th, 9th and 10th accused. The difference with his former evidence was that whilst he mentioned the 6th accused before the deposition was read to him, after it was read he dropped his name from those he said he recognised in the crowd. R. v. Williams is cited in Phipson on Evidence, Ninth Edition, at page 491. In dealing with the question of refreshing memory, Phipson says:

“A witness may refresh his memory by reference to any writing made or verified by himself concerning, and contemporaneously with, the facts to which he testifies; but such documents are no evidence per se of the matters contained.”

The reason of this rule is that a witness should not suffer from a mistake due to lapse of memory. After citing the principle, Phipson goes on to set out and discuss what conditions must exist before a witness could be allowed to look at the statement to refresh his memory. The first condition dealt with is under the heading “By whom document may be written”. It says that a statement must have been written by the witness himself or others, providing in the latter case that it was read by him when the facts were fresh in his memory and he knew the statement to be correct. As authority for the proposition that the deposition of a witness taken down by a Coroner or Magistrate comes within the principle enunciated above, Phipson cites R. v. Williams. Thereafter he goes on to discuss the question of contemporanelty which he says is another condition which must be fulfilled before a witness can be allowed to look at his statement to refresh his memory. It is not unusual that the deposition of a witness could be taken down by a Coroner or Magistrate so soon after the event as to be considered contemporaneous with it and in that case the witness may be allowed by the Court to look at the deposition. If that was the position in R. v. Williams there can be no objection to the principle of that case. But if the principle of the decision is that no matter how long after the event the deposition is taken the witness could still be allowed to look at it to refresh his memory then the decision would be in violent contradiction to the provisions of section 215(1) of the Evidence Ordinance which reads as follows:

“A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.”

This provision is clearly in line with the principle enunciated above by Phipson. Where there is a conflict between the provisions of the Evidence Ordinance and a decision of a Court in England the Courts in this country would be bound to follow the Evidence Ordinance. It may, however, be mentioned that in the report of the case of R. v. Williams referred to above, it is not stated how much time elapsed between the event about which the witness was speaking and the taking of this deposition. The deposition in that case might very well have been within the rule of contemporanelty. In this country it must be shown that the statement comes within the provisions of section 215 of the Evidence Ordinance before the witness could be allowed to look at the document to refresh his memory. In this case the deposition was taken five weeks after the event in question and the Assistant Director of Public Prosecutions, Western Region, who appeared before us, conceded that the deposition could not be brought within section 215 of the Evidence Ordinance. We, therefore, agree with appellant’s counsel that the Judge acted in error in allowing the 1st prosecution witness’s deposition before the Magistrate to be read to him at the trial to refresh his memory. As It is not clear from the record how much of the deposition was read to the witness we cannot say how much of the evidence of the 1st prosecution witness after the deposition was read to him was affected by it. The incident happened very early in the witness’s evidence and the material part of his evidence affecting the appellants was given after the incident. The result of this ruling, therefore, is to exclude the evidence of the 1st prosecution witness when we come to consider the strength of the case made out against the appellants referred to in his evidence, namely, the 4th, 5th and 6th appellants.

Another question of law argued by appellants’ counsel was ground 6:-

‘The learned trial Judge misdirected himself in law when he held that all persons who were seen in the crowd which attacked the villagers and the deceased on that day are guilty.”

In finding the appellants guilty the Judge relied on Section 8 of the Criminal Code. That section reads as follows:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

It has not been and cannot be disputed that there is evidence from which the inference could be drawn that those who constituted the crowd that invaded Arulogun Village on the 28th March, 1958, had a common purpose. They were members of the same party and the motive was to avenge the death of their leader. They were armed with lethal weapons and attacked and wounded or killed their opponents at sight. According to the 6th prosecution witness, Layiwola Ajagbe, when the crowd arrived at the village they said “Kill anybody in the village”. The 5th prosecution witness, Adebanjo Orekoya, who was himself attacked and wounded, said that as he ran he heard some of the crowd shout “Papa Ijebu is not dead – bring his head”. It is clear that the intention of the crowd whoever composed it, was to kill. The defence has not suggested any other reason for the behaviour of the crowd. Indeed, appellants’ counsel in the Court below opened his final address by saying that the illiterate members of the N.C.N.C. wrongly believed that Adelabu, a leader of the N.C.N.C., was murdered by his political opponents after they had conspired to do so and in that belief began to attack their political opponents. Anybody who knew the purpose of such a crowd and joined it could not escape responsibility for its criminal action. The Judicial Committee of the Privy Council dealing with section 8 and 316 of the Criminal Code in Sunday Kala Ajagbe and Others v. The King, said:

“It is clear that if two or more persons have formed a common intention to attack another or others with intent to kill or do grievous harm or in a manner likely to endanger human life and have in fact taken part together in such an attack on others resulting in death as a probable consequence, all are guilty of murder.”

The Privy Council also approved the statement of the trial Judge in that case to the effect that once a common design is formed “it does not matter which of the accused did what”. The crowd in the present case having formed a common design to attack and kill members of the Action Group, their political opponents, any member who joined it with full knowledge of the common intention was equally guilty of the murder of the deceased who was killed in the attack. The learned trial Judge did not, therefore, misdirect himself on the law when he held that anybody who joined this hostile crowd with that knowledge was as guilty as the actual perpetrator of the crime.

Having disposed of these two points of law it remains to consider what evidence there was against each appellant. Disregarding the evidence of the 1st prosecution witness for the reasons already stated there is no other evidence to connect the 6th appellant with the crowd that killed the deceased. He was not mentioned by any of the other witnesses.

There is, however, overwhelming evidence that the 1st, 2nd, 3rd, 4th and 5th appellants were not only amongst the crowd, but were also armed. Each of them was identified by at least two witnesses as being amongst the crowd that descended on the village and attacked and killed the deceased.

Mr. Agbaje, for the appellants, referring to the evidence of the 2nd prosecution witness, submitted that there were two crowds and that that being so the members of one crowd could not be held responsible for what the other crowd did. On a careful examination of the evidence it is clear that the appellants were identified as being amongst the crowd that attacked the village at the time and place in question and that some members of that crowd in fact killed the deceased. The two crowds if in fact there were two, were composed of members of the N.C.N.C.; their purpose was the same – to attack their opponents – and they were operating in the same village at the same time. On that evidence without more the Court could be justified in presuming that it was one crowd split into two. Be that as it may it is clear from the evidence that the appellants were in the same crowd. This is borne out in the evidence of the 2nd and 4th appellants as witnesses who identified the 1st, 2nd, 3rd and 4th appellants as being in the same crowd; the 5th prosecution witness who saw the 2nd and 5th appellants in a crowd; the 9th prosecution witness who saw the 3rd and 4th appellants in the same crowd and the 10th prosecution witness who identified the 4th and 5th appellants as being in the same crowd. These witnesses were talking of the crowd that killed the deceased. It is, therefore, an inescapable inference to be drawn from the evidence of these witnesses taken together that the 1st, 2nd, 3rd, 4th and 5th appellants were operating together with the same crowd. We are satisfied that there was ample evidence to justify the learned trial Judge in reaching the conclusion he did about the guilt of these appellants and their appeals were accordingly dismissed.

As regards the 6th appellant his appeal was allowed and his conviction and sentence set aside and he was acquitted and discharged.

Appeal of 1st, 2nd, 3rd, 4th and 5th Appellants dismissed.

Appeal of 6th Appellant allowed.


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