3PLR – NWEZE V. THE QUEEN
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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OGALA NWEZE AND 16 OTHERS
V.
THE QUEEN
FEDERAL SUPREME COURT OF NIGERIA
25TH OCTOBER, 1957.
F.S.C.178/1956
3PLR/1957/63 (SC)
BEFORE THEIR LORDSHIPS:
SIR STAFFORD FOSTER-SUTTON, F.C.J. (Presided and Read the Judgment of the Court)
M.C. NAGEON DE LESTANG, F.J.
MYLES JOHN ABBOTT, F.J.
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE – Accomplice – Who is?
CRIMINAL LAW AND PROCEDURE– Evidence of an accomplice – Corroboration of.
CRIMINAL LAW AND PROCEDURE – Evidence of bad character – Wrongful admission of – Effect.
PRACTICE AND PROCEDURE – EVIDENCE – Accomplice evidence – Corroboration of.
PRACTICE AND PROCEDURE – EVIDENCE – Of bad character – Wrongful admission of – Effect.
REPRESENTATION:
G.N.A. Okafor -for 4 Appellants.
R.N. Alcock -for Respondent.
MAIN JUDGMENT
FOSTER-SUTTON, F.C.J. (Delivering the Judgment of the Court):
The only question to be determined in the case of Accused Numbered 2, 3, 4, 5, 6, 7, 8, 10, 14, 17, 28, 30 and 31 is whether there is any evidence corroborating that of the accomplice evidence, because the learned trial Judge made it clear in his judgment that he would not be prepared to convict any of the accused on the charges of breaking and entering, stealing and robbery on the uncorroborated evidence of the accomplices. After anxious and careful consideration we have reached the conclusion that there is corroborative evidence in each of these cases, and that the convictions should, therefore, stand. These appeals are accordingly dismissed.
Regarding accused No.9: The learned trial Judge found corroboration in the evidence of Bernice and Denis Ene. All that the evidence of Bernice proved was that this accused had been seen associating with some of the other accused persons some time before the Robbery, which does not, in our view, tend to conned him with the offences charged in this case. Had there been a charge of conspiracy different considerations might have applied.
As regards Denis Ene, we have no doubt that he was an accomplice, and we are of the opinion that the learned trial Judge erred in holding to the contrary. This man had been on a previous expedition at which a robbery took place, and he went on such expedition with many of the accused persons in the present case. On the first robbery he drove the motor lorry which took them to the scene, and he performed the same service in the present case, and we are satisfied beyond any doubt that he knew perfectly well what was happening, and the object of the expedition.
The trial Judge allowed this accused, No.9 to be cross-examined as to character without in our view any proper justification, and he used his admission that he had twice been convicted of theft against him.
In these circumstances we consider the conviction of this accused unsatisfactory. The appeal is therefore allowed, the conviction and sentence set aside, and we direct a verdict and judgment of acquittal to be entered in respect of each charge in his case.
The only corroborative evidence found by the learned trial Judge in the case of accused No. 11 is that of Denis Ene and Francis. Denis Ene we have already dealt with. Francis was the motor guard on the lorry on the night of the Robbery. The first occasion upon which he identified the accused, No. 11 was at the trial before Hurley, J., he had failed to pick him out as one of the members of the expedition at the preliminary inquiry, and we regard his explanation of his failure to do so as unsatisfactory. We feel quite unable to say if the learned trial Judge would have been prepared to convict on this man’s evidence, had he not misdirected himself as to the status of Denis Ene. We therefore allow the appeal, set aside the conviction and sentence, and direct that a judgment and verdict of acquittal be entered on each charge in his case.
In the case of accused No. 12, the trial Judge treated the evidence of Bernice as corroborating that of the accomplices. We have already dealt with her evidence, and the same remarks apply. This appeal is allowed, the conviction and sentence are set aside; and we direct that a judgment and verdict of acquittal be entered on each of the charges in his case.
The learned trial Judge found corroboration of the evidence of the accomplices in the case of accused No. 16, in the evidence of Madueke Ejini – described as the “Rainmaker.” He went on the expedition for the purpose of making rain. After the robbery he admits seeing certain boxes, which had been brought to the motor lorry, being broken open and their contents being flung about. He denied knowing what the contents were, but nevertheless received the sum of f100. We think it obvious that at the time he received that sum he knew quite well that it was part of the proceeds of stolen property, the fruit of the night’s work. In these circumstances he must be held to have been an accomplice, and since his is the only evidence against this accused, apart from the other accomplices, we think the conviction must be set aside. His appeal is accordingly allowed. The conviction and sentence are set aside, and we direct that a judgment and verdict of acquittal be entered in respect of each charge in his case.
DE LESTANG, F.J.: I concur.
ABBOTT, F.J.: I concur.
Appeals of four appellants allowed. Remainder dismissed.
