3PLR – MWOKE V.  I. G. P.


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F.S.C. 160/1961

26TH JANUARY, 1962.

3PLR/1962/95 (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]



APPEAL – Appellate court – Evidence not before the court – Whether court can look at the record of proceedings of another trial to determine the veracity of accused.

CRIMINAL LAW AND PROCEDURE – Conviction – Conspiracy and specific offence – Acquittal for conspiracy – Whether inconsistent with conviction for specific offence.

CRIMINAL LAW AND PROCEDURE – Prejudicial evidence – Reception of – Effect.

EVIDENCE – Admissibility – Prejudicial evidence – Attitude of appellate court.

EVIDENCE – Circumstantial evidence – Sufficiency thereof.



Appellant in person.

J.O. Williams, Crown Counsel -for the Respondent.



ADEMOLA, C.J.F. (Delivering the Judgment of the Court): The appellant and nine others were arraigned before the Chief Magistrate, Lagos, charged on three counts, to wit:


(1)     conspiracy to break into a store at Ann Barracks, Yaba, contra Section 517 of the Criminal Code;


(2)     breaking into the said store contra Section 413 of the Criminal Code, and


(3)     stealing from the said store the sum of £13,468.19.4d., property of the Nigerian Government contra Section 390(4)(g)(9) of the Criminal Code.


Seven of the men accused pleaded guilty to the charges. Two others were found guilty on the three counts after the trial. The 10th accused, who is the present appellant, was found not guilty on the 1st count, namely, con­spiracy, but was found guilty on the 2nd and 3rd counts. He was sentenced to a term of 3 years and 5 years respectively, sentences to run concurrently. His appeal to the High Court, Lagos, was on the 27th March, 1961, dismissed. He has now appealed to this Court.


That the strong room of Ann Barracks, Yaba, was broken into and an amount of £13,468.19. 4d. was stolen there was ample evidence. A hole was cut in the wire fence around the strong room by means of a pair of metal shears which were found at the scene of the crime. Unlike the evidence against the first nine accused persons before the learned Chief Magistrate, the evidence upon which the appellant was convicted was purely circumstan­tial. It was classified under three heads thus by the learned Chief Magistrate: “The following are briefly the evidence which shows the 10th Accused person as being concerned in the theft (1) a few days before the breaking and stealing he saw Mr. Caulcrick in the presence of witnesses and warned him about sharing the fate of the late Mr. Akinosho, the ex-paymaster, into whose shoes Mr. Caulcrick had stepped. (2) The 10th Accused is shown to have had access to the tin shear which was used in cutting a fence near the strong room – infact, the 10th accused had taken the shear soon before the theft was committed. (3) The 10th Accused who had managed to get himself put on sick leave was shown during the period of the sick leave to have been about. It was at this period that he visited Mr. Caulcrick. It was at this time that the store breaking and stealing took place.”


We now deal separately with the consideration given to each of these three heads by the learned Chief Magistrate.


He disbelieved the appellant that he did not threaten Caulcrick with the fate of the late Akinosho if he did not give him a bribe of £200. The explana­tion about Akinosho was the fact that the strong room had been burgled a month earlier during the tenure of office of the late Akinosho whom Caul­crick succeeded.


The appellant had maintained that he did pay a visit to Caulcrick on the 19th July, 1958, and not on the 26th July as suggested by Caulcrik in his evi­dence. The object of the visit, he said, was to discuss a bribe of £10 which he had given to Caulcrik at one time to give employment to a relative. Refer­ence was made in argument by Counsel to the matter of this bribe which was said to have ended in Court proceedings at which the appellant was prose­cuted for attempting to obtain money by false pretences but was acquitted. In the appeal to the High Court, much was made of this point and as it would appear the record of such proceedings was available but not put in evidence at the trial before the learned Chief Magistrate, the Judge of appeal felt “there may be something in favour of the appellant in the proceedings.” He sent for it and examined it. Having examined the record, the learned Judge of appeal found that “there is nothing in it to support the appellant’s conten­tion that his visit to Caulcrick was on 19th July nor that it was in connection with the return of a bribe of £10″. Intact the complainant in the case was not Caulcrick. For this reason, the learned Judge of appeal found against the ap­pellant on this issue. With respects to the learned Judge of appeal, we think it was wrong for a Judge on appeal to look at a record of proceedings not in evidence before him in order to decide the veracity of the evidence of an ac­cused person in a different case. It is clear that once it was discovered that Caulcrick was not the complainant in the record of proceedings in the case, the appellant is held to be a liar and that prejudiced his appeal. The proceed­ings which the learned Judge examined are not before us, but it appears from the Record in this case, however, that Caulcrick had given evidence in a case against the appellant at one time.


To return to the findings made by the learned Chief Magistrate on this point; we have asked ourselves that if it were true the appellant did visit Caulcrick and asked him for a bribe of £200 in order that he might give Caul­crick a tip as to what he was to do to prevent the fate of Akinosho happening to him, is this evidence by itself enough to draw the inference that the appel­lant was one of those who burgled the strong room of Ann Barracks, or that he knew that the barracks would be burgled a few days later? We have come to the conclusion that this evidence by itself is insufficient to arrive at such a conclusion.


We now turn to the second head or the second series of events upon which the learned Magistrate relied, namely, that the appellant had access to the shears used in the commission of the crime. The shears were traced to be the property of the Orthopaedic Hospital. The appellant worked in the hos­pital in the electrical section. He and others who work in that section and also those in other sections could borrow the shears from the store-keeper for use. The store-keeper would direct the blacksmith to give it out to the in­dividual concerned. There was evidence that the appellant as well as others borrowed shears and other instruments from time to time. The learned Magistrate in his judgment found that the appellant “had taken the shears soon before the theft was committed.” In our view there was no evidence be­fore him to support this finding. The evidence of Okekunle (4th witness for the prosecution), the Assistant Store-keeper and of the blacksmith, Lasisi Durosinmi (9th witness for the prosecution) as they affect the appellant, may be summarised in a few words, namely, that the appellant as well as other workers in the hospital who have to use shears and other instruments for their work may apply to the store-keeper for his requirements. The store­keeper will direct the blacksmith to give the instrument to him. The appel­lant has asked for a loan of shears and other instruments from time to time. So have others. They were always returned. In June or July, the shears were missing. We fail to see how the missing shears could be attributed to the ap­pellant.


We now consider the third head. The appellant “had managed to get himself put on sick leave” at the relevant period the store was broken into. During this period of sick leave, according to the findings of the learned Chief Magistrate, the appellant was about and he visited Caulcrick. It is dif­ficult to see what connection sick leave had to do with the breaking and ste­aling in this matter since the offence was committed at night and in any case the appellant did not work at night. From the evidence before the Court, it was evident that, apart from his work in the hospital, the appellant had ample opportunity to go about during the day – possibly after work – to sell his wares; he imports and sells clocks, shirts, blouses, ties, etc. We therefore see no circumstances in his sick leave which connect him with the crime.


There is one aspect of the trial before the learned chief Magistrate to which we feel it is our duty to refer. As we mentioned earlier in this judg­ment, the store in question was broken into and money stolen from it a month earlier; that is, in June 1958. There was not an iota of evidence that the appellant was suspected to have been connected with the offence. The learned Chief Magistrate, however, in the penultimate paragraph of his judgment made reference to the matter as follows:


……The bank book of the 10th Accused Exhibit “AAA” was produced in evidence. It shows the accused to be in credit of the sum of £759.10. Od. The 10th accused did not put any money in his account after the barracks strong room had been broken into. There was little opportunity for this as he was arrested soon after the theft. I entirely disbelieve that the 10th accused out of legiti­mate trade in goods made a saving of up to £905. He earned £13 per month from Orthopaedic Hospital. I have however refrained from taking Exhibit “AAA” into consideration as the 10th Ac­cused is not now charged before me for the offences relating to Ann Barracks theft early in June, 1958. Up to June 1, 1958, the 10th Accused was worth only 10/- in his savings. But all that are not relevant to the case in hand I have no consideration to the bank-account in question. I am convinced that the 10th Accused took part in the breaking and assisted the others. I think that the other accused persons for reasons known to them are reluctant to say that 10th Accused took part. Taking the evidence as a whole the irrebutable inference that can be arrived at is that the 10th Accused aided the commission of the offences and took part in the offences in the 2nd and 3rd counts. I find the 10th Accused person guilty on the 2nd and 3rd counts.”


We are of the opinion that the view taken by the learned Chief Magis­trate of the Bank book of the appellant and relating a deposit in it to the breaking and stealing in June, 1958, is to say the least unnecessarily prejud­icial to the appellant.


One other point we think we ought to mention. Although the point was not fully argued before us as the appellant had not the benefit of his appeal being argued by Counsel, we nevertheless feel we must call attention to the possible inconsistencies when in one information a verdict of an acquittal for the offence of conspiracy is returned and a verdict of guilty returned on the counts charging with specific offences on the same set of evidence. The mat­ter was fully dealt with by this Court in the case the Queen v. Ligali & Laja, 4 F.S.C. 7 at pp 10 and 11; [1959] SCNLR 14. In the case it was pointed out that the evidence proving the specific offences was in no way connected with the evidence adduced to prove the conspiracy and therefore a verdict of guilty returned on the charge dealing with specific offence was not inconsis­tent with a verdict of not guilty on the count charging conspiracy.


We are unable to say that such is the position in the present case where the same evidence was adduced to prove both the conspiracy and the specific charges.


For the foregoing reasons we feel that the evidence before the learned Chief Magistrate was insufficient to convict the appellant. His appeal will, therefore, be allowed. The convictions are quashed and we direct that a judgment of acquittal be entered. The appellant is discharged forthwith.


UNSWORTH, F.J.:         I concur


TAYLOR, F.J.:      I concur.


Appeal Allowed.



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