3PLR – OKOLI UKATA V. THE QUEEN

POLICY, PRACTICE AND PUBLISHING,  LAW REPORTS – 3PLR

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OKOLI UKATA

V.

THE QUEEN

FEDERAL SUPREME COURT OF NIGERIA

29TH OCTOBER, 1958.

F.S.C.63/1958

3PLR/1958/60 (FSC)

BEFORE THEIR LORDSHIPS:

SIR ADETOKUNBO ADEMOLA, F.C.J. (Presided)

MYLES JOHN ABBOTT, F.J.

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

REPRESENTATION:

CRIMINAL LAW AND PROCEDURE – Principal accused discharged and acquitted of offence – Aider and Abettor of the offence convicted – Whether proper.

PRACTICE AND PROCEDURE – EVIDENCE – Of accomplice – Requirement of corroboration of.

COUNSELS:

1. T. Dundas – for Appellant.
2. O. Kazeem, Crown Counsel – for Respondent.

MAIN JUDGMENT

MBANEFO, F.J. (Delivering the Judgment of the Court):

The appellant and two others were tried in the High Court of Lagos on an Information con­taining, as amended, three counts. The first count charged all three accused with office breaking and stealing contrary to section 413 (1) of the Criminal Code; the second count charged them with office breaking with intent con­trary to section 414, and the third count with stealing contrary to section 390 (9) of the Criminal Code.

The particulars of offence in each count allege that the offence was com­mitted at the office of the Yaba Branch of the African Continental Bank Li­mited on the 9th June, 1957. On that date the appellant was a night watch­man employed by the African Continental Bank Limited and posted to watch the office. Before the High Court the appellant was the third accused. The first accused was a Manager of the Bank, and until the 3rd June, 1957, in charge of the Yaba Branch. On the 3rd June, Mr.  Okigbo was instructed to take over from the first accused as Manager. From that date until the 9th the 1st accused was attending the office daily to complete the handing-over of the affairs of the Branch to Mr.  Okigbo. The second accused was the Ac­countant of the Bank at the same branch. From the appellant’s evidence at the trial he knew both accused as officials of the Bank. He had not, until the 10th June, known Mr.  Okigbo.

The prosecution’s case was that the three accused persons, on the night in question, broke into the Bank and stole a total of £7,246-4s-0d. The prin­cipal witness for the prosecution was Dele Lawal (8th P. W.) who was at the time a driver employed by the 1st accused. Dele Lawal said that on the night of the 9th June, 1957, he drove the 1st and 2nd accused to the office of the Bank at Yaba, that on arrival the 2nd accused instructed the appellant, who was then on duty as night watchman at the Bank, to go to the gate and keep watch and to let him know if anybody was coming; that while the appellant was outside keeping watch the 1st and 2nd accused aided by Dele Lawal broke in the store and stole. At a certain time while the operation was on, Dele Lawal saw a flash of light from a motor car which appeared to park in front of the Bank. He ran out and saw the appellant who told him that the car was merely passing. After they had completed their job, before leaving, the 1st and 2nd accused spoke to the appellant a language which Dele Lawal did not understand.

At the conclusion of the case for the prosecution all the accused persons including the appellant gave evidence each in his own defence. The 1st and 2nd accused persons called witnesses. In his judgment, the learned Judge found that Dele Lawal was an accomplice and that it would be unsafe to rely on his uncorroborated evidence. Not being able to find any corroboration of Dele Lawal’s evidence as against the 1st and 2nd accused he acquitted and discharged them.

The appellant in his evidence said that he was on duty on the night in question but that he did not see or take part in any office breaking or steal­ing. The Judge accepted his evidence that he was on duty but had disbelieved him when he said he did not take part in the offence. After rejecting his evi­dence the Judge found corroboration in appellant’s denial, and also, in the part of his evidence in which he said that he was on duty that night. Relying on Dele Lawal’s evidence he convicted the appellant of aiding and abetting. Having read all the evidence given for the prosecution and in particular Dele Lawal’s, it appears that the persons the appellant was said to have aided and abetted were the 1st and 2nd accused persons. There was no suggestion either in the evidence or in the learned Judge’s finding that there were other people involved in the offence. The Judge said that if the appellant had not given any evidence he would not have convicted him. Of Dele Lawal he said that he did not form a satisfactory impression of him and that his statement to the Police at the outset did not improve his claims to credibility. In other words the Judge was saying here that he would not have believed Dele Lawal but for the appellant’s evidence. The appellant’s evidence did not, in our view, improve Dele Lawal’s credibility or indeed the quality of his evidence, nor did it in the circumstances afford adequate corroboration of Dele Lawal’s evidence.

In convicting the appellant the Judge did not take into consideration the fact that the 1st and 2nd accused were the appellant’s superior officers and that there was no evidence that he knew or might have known that the 1st ac­cused was being transferred to another post. The appellant’s duty began at 7 p.m. and ended at 6 a.m. the following day. There is ground for saying that the appellant could not have known that the 1st accused had fallen out of favour with his employers. So that when the 1st and 2nd accused arrived at the Bank that night and the 2nd accused instructed the appellant to go and keep watch the appellant would have had no reason to disobey or suspect the instruction. Nothing has been suggested to show that he knew or would have known that they were there for a dishonest or criminal purpose.

The Judge said that the appellant should have heard when the lock of the strongroom was being ripped off by the burglars. There is no evidence to support this. The lock of the strongroom was inside the office. There is evidence that it was not unusual for the 1st and 2nd accused to attend the office at night to do some work. Even if the appellant had heard any noise he would have had no reason to suspect the two accused, the Manager and Accoun­tant respectively, of breaking into the strongroom which was in their charge.

There is one other question to consider, although it was not raised in ar­gument before us. The Manager and the Accountant were acquitted at the trial. By that verdict the two men were exonerated of the offences charged.

If they were not guilty of breaking into the office and stealing could it be said that the appellant, aided them in doing the very thing the Court found they did not do? A situation almost similar to this arose in R. v. Rowley 32 Cr. App. R. 147 where the prisoner was charged on the same indictment with the principal felons being an accessory after the fact to a felony. He pleaded guilty and was convicted. The persons charged with him as principal felons were later found not guilty of committing the felony and were acquitted and discharged. The prisoner then appealed against his conviction. The Court of Criminal Appeal allowed his appeal and quashed the conviction. Hum­phreys J. giving the judgment of the Court of Criminal Appeal said:

“It would be absurd to say that he assisted and comforted persons whom he knew had committed a felony when they had not in fact committed a felony.”

Those words apply with equal force to the facts in the present case.

It may be added that in a recent case of Surujpaul v. The Queen (1958) WLR 1050 the Privy Council considering a similar point quoted with approval Rowley’s case and doubted the decision in an earlier case of R. v. Hughes (1860) Bell 242.

For the above reasons we think that the appellant was wrongly con­victed and that the conviction and sentence should be quashed. We accord­ingly order that a judgment and verdict of acquittal be entered and that the appellant be discharged and released from custody.

ADEMOLA, F.C.J.: I concur.

ABBOTT, F.J.: I concur.

Appeal allowed.