JELR 81145 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1942 8 WACA 123-126
Core Terms Beta
2nd accused
port harcourt
15th may
3rd accused
trial of the appellant
criminal code
evidence of lance-corporal okolo
only person
proper conduct of a criminal trial
property of the war department
sum total of the evidence
voluntary statement
witness box
1st accused
1st may
aba judicial division of the high court
case of this nature
c.j. nigeria
close of the case
conviction of the appellant
en bloc
facts of the case
gold coast
hard labour
hearing of the appeal
lance-corporal of police
leading question cuts
piece of evidence
present case
subject of the charge
trial judge
very root of the principle
years imprisonment


Reasons for judgment The appellant was charged in the Aba Judicial Division of the High Court at Port Harcourt along with two other men with the offence of Stealing contra section 390 of the Criminal Code. The appellant was the third accused and the other two were Augustine Ume (1st accused) and Bernard Anyanwu (2nd accused). The particulars given of the alleged offence were:-

“Accused persons on or about the 15th May, 1942, at Port “Harcourt in the Province of Owerri in the Aba Judicial Division, “did steal 2 Army Padlocks valued 4s, the property of the War “Department.”

The trial resulted in the conviction of the appellant and the acquittal of the second and third accused. The appellant, against whom no previous conviction was alleged, was sentenced to three years imprisonment with hard labour and twelve strokes with a cane, the maximum for the offence. He appealed to this Court against his conviction, and on the hearing of the appeal we allowed the appeal and quashed the conviction. We now give the reasons which led us to take this course.

Shortly the facts of the case are that the three accused lived together at No. 102 Bonny Street, Port Harcourt. Acting upon , information received on the 15th May, 1942, a Lance-Corporal of Police named Okolo searched the house m the presence of the 1st and 2nd accused but in the absence of the appellant. Lance- Corporal Okolo found the two padlocks the subject of the charge in the house, both were identified as the property of the War Department, one having the initial “ W.D” on it, whilst on the other the mark had been partially filed off.

The 1st and 2nd accused were immediately arrested and taken to the charge office where they were formally charged and each made a voluntary statement. The appellant was subsequently arrested on the 11th June and upon being charged and cautioned also made a voluntary statement.

The appellant had been a storekeeper, V.R.D., Port Harcourt, where padlocks were kept and the 1st accused was a labourer v. .R.D. In June two padlocks were missing from the store of which the appellant had been in charge.

At the close of the case for the prosecution the evidence against the appellant may be summarised as consisting of three point (a) As storekeeper he had especial opportunity of stealing the padlocks from the store of which he was in charge.

(b) The padlocks were found in the house, of which he was one of the three occupants.

(c) In his statement to the Police the appellant admitted knowledge that the padlocks” were brought into our room by Augustine Ume.”

This admission of knowledge that the padlocks were in the room is perhaps the most damning of the three points. On the other hand, in his favour. (1) It was not proved that the appellant was the only person who had such access to the store as would make the theft easy, or that the store kept by the appellant was the only source from which such padlocks could be stolen or otherwise dishonestly obtained.

(2) In his statement the appellant alleged that he was at Enugu from the 1st May till the 3rd June, and this was not contradicted. If that is so it is difficult to see how he could have committed the theft at Port Harcourt on the 15th Mayas alleged. It is true that in a case of this nature it is usually difficult to prove the exact date of the theft, and not essential that it should be proved, but in the present case the evidence is particularly vague; for instance it was not established until .Tune that two padlocks were missing from the store, and no evidence was given as to the number of padlocks kept in the store.

(3) There is one piece of evidence which points to either the 1st or 2nd accused being the culprit rather than the appellant. It is the evidence of Lance-Corporal Okolo that he found the first padlock on the table in the 1st and 2nd accused’s room. That was fourteen days after the appellant, according to his undisputed evidence, had gone to Enugu.

(4) There are two further pieces of evidence which point to the 2nd accused rather than the appellant as the culprit. They are

(i) The evidence of Lance-Corporal Okolo that when he found the first padlock the 2nd accused said “The padlock is mine”; and

(ii) The fact that at least one of the padlocks was found under the 2nd accused bed. If the sum total of the evidence against the appellant had rested there it would not in our opinion have been such as to have made it safe to convict the appellant, because it does not sufficient eliminate the possibility that someone other than the appellant was the thief. And we are quite unable to say whether, if that had been the sum total of the evidence against the appellant, the learned trial Judge would still have convicted. In other words us we do not know to what extent his decision was influenced by the statements of the other two accused which became evidence against the appellant when each in turn swore to the correctness of his own statement. It is the manner in which these statements became evidence against the appellant which constitutes a grave irregularity and fatally prejudiced the trial of the appellant. It happened in this way. All the accused, on being called on for their defence, elected to give evidence on oath. Upon the 1st and 2nd accused going into the witness box in turn and being sworn each had his statement (Exhibits “C,” and “D” respectively) put to him, and each swore that it was correct, and that he wanted to adopt it as his evidence on oath and had nothing to add. The statements thereupon took on the nature of sworn evidence in the case and became evidence against the 3rd accused. But the questions by which they were put to the two witnesses were of the most flagrantly improper and leading nature. When a person is tried singly or when his statement in no way implicates or prejudices a co-accused it may be permissible to take his evidence in this way, but when the statement implicates a co-accused then the procedure of putting it in en bloc by a leading question cuts at the very root of the principle upon which evidence against an accused is to be given, namely, that it should, wherever possible, be given orally in Court by the witness so that both the Court and the accused may have the advantage of hearing it and observing the witness’s demeanour.

In our opinion the manner in which these statements became evidence against the appellant constituted a serious departure from the proper conduct of a criminal trial, and that in consequence the trial of the appellant was not a fair one so that a grave miscarriage of justice resulted. For this reason we allowed the appeal and quashed the conviction.