SUPREME COURT
CITATION: (1964) ANLR 1
CORAM
ADEMOLA CHIEF JUSTICE NIGERIA
TAYLOR JUSTICE SUPREME COURT
BAIRAMIAN JUSTICE SUPREME COURT
BETWEEN
GABRIEL SHOFOLAHAN JOSHUA APPELLANT
AND
THE QUEEN RESPONDENT
ADEMOLA, C.J.N.
The appellant, who at the material time was the president of the Grade B Customary Court at Ikare in Ondo Province, was on the 13th day of September, 1963, convicted on two counts of Judicial Corruption contra to Section 98(1) of the Western Nigeria Criminal Code. On the first count he was charged with corruptly asking for a sum of £25 from one Oladele, a litigant, in order that a civil suit to which he (Oladele) was a party might be decided in his favour; the second count was that he corruptly received the amount of £ 17 from the said Oladele for the aforesaid purpose. The appellant was sentenced to a term of two years' imprisonment with hard labour on each count, sentences to run concurrently.
The appellant has appealed against his conviction, and the only ground of appeal argued was the first additional ground for which leave was sought and granted to argue. It reads:-
"The leamed trial Judge erred in law and on the facts in failing to direct himself to the effect that the evidence of the third Prosecution Witness was unreliable and ought not to be accepted."
The said third Prosecution Witness, Momodu Sanni by name, described himself in his evidence as a personal friend of the appellant and also a friend of the man Oladele who was the plaintiff in the case before the appellant.
The evidence of this witness (Momodu Sanni) before the High Court relating to the demand is worth recording. After the witness had deposed to the fact that he and his friend Oladele went to the Court before the appellant for the case, he said:-
"When the accused saw me he called me and asked what 1 had come for. I told him I had come with my friend named Ezekiel Oladele. I also told him Oladele was my friend. He then asked me what he could do for me. I asked him to help me with the case which Oladele had before him. He then suggested that we should both come round to his house after the court had risen. We went to his house. The accused called me at about 8.00 a.m. and suggested we should come to his house. Ezekiel Oladele and I went to the accused's house later that day at about 2 p.m. At his house, the accused asked me again what help I wanted him to render us. I told him we would like either to recover the £100 or see that the woman is returned to my friend. The accused then told us that he wanted £25 before he could give us the assistance we wanted. I begged him to take £20 but he refused. After this Ezekiel and I left his house."
He then proceeded to say how he and his friend Oladele within the space of two months paid at different times, various sums of money all totaling £ 17 to the appellant. This evidence was given on the 2nd September, 1963. Earlier, and indeed in March 1963, this witness gave evidence at Owo in the preliminary evidence in the case. In his evidence he denied ever giving ,my money to the appellant. As a result of that evidence he was arrested by the Police and prosecuted for making a false statement to the Police. He pleaded not guilty before the Magistrate and the matter was adjourned. Then the Preliminary Investigations were continued at Ado Ekiti on the 4th July, 1963, after the witness had been contacted again by the Police and warned that he could now give evidence in accordance with the statement originally made to the Police. At that hearing the witness gave evidence which in effect was the same as his evidence before the High Court. The charge against him for making a false statement to the Police was then withdrawn and he was discharged by the Magistrate.
The above is the background to the aforesaid ground of appeal and to the submission made by the appellant's Counsel before us in support of this ground of appeal that the evidence of this witness before the High Court should not have been accepted and the trial Judge should have attached no weight to it in the absence of a satisfactory explanation as to why he gave such contradictory evidence.
It is clear in the circumstances to which we have referred that the witness Momodu Sanni has perjured himself in one of his statements before the Magistrate because indeed the proceedings before the Magistrate at the Preliminary Investigation were taken on oath, and the strongest consideration must be given by the trial Judge as to what reliance ought to be placed' on the evidence of such a witness. It does not appear that the learned Judge in his judgement gave to this matter the consideration it deserves.
In the case of a witness who had made previous statetments inconsistent with the evidence given at the trial the Court has been slow to act on the evidence of such a witness.
In the case Regina v. Golder [1960] 1 W.L.R. 1169 at p. 1172, Lord Parker C.J., delivering the judgement of the Court, on this point said as follows:-
"In the judgement of this Court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the Jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed- that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act."
But this is not the end of the matter. The, learned trial Judge in his consideration of the evidence of the witness Momodu Sanni before him, treated it as well as evidence of his friend Oladele (fourth prosecution witness) as evidence of accomplices. He was unable to find any corroboration of their evidence but after giving himself the necessary warning about the evidence of accomplices, he found their evidence substantially true and convicted the appellant on their evidence.
Now, it would appear that the only means whereby the learned trial Judge arrived at the conclusion that the evidence of the witness Momodu Sanni (third prosecution witness) was reliable was by questions put to the witness by the Court at the end of his re-examination by the learned Crown Counsel. This is a minute of the evidence as recorded by the Judge:-
"By Court.-There is no difference between what I said in the written statement which I originally made to the. Police and the evidence which I have given to this Court today."
This evidence is clearly inadmissible; the written statement which presumably is in existence, was not throughout the trial produced, nor was any attempt made to tender it as evidence. We are of the view that the learned Judge was wrong to have admitted this evidence and to have relied on such inadmissible evidence. In such a case the proper thing for the Judge to do is to disregard in toto the evidence of such a witness.
In that event, what was left of the evidence before the learned trial Judge was the evidence of Oladele, fourth prosecution witness, the second accomplice. The proper warning the Judge ought to have given himself was to ask himself the question If Momodu Sanni's evidence be wholly eliminated, is there here enough evidence to establish the guilt of the appellant?" It is difficult for us to say what answer the learned Judge would give himself on such a question. Can we be sure he would convict the appellant on the evidence of the fourth witness for the prosecution alone?
In the case R. v. Atkinson, 24 C.A.R. 123, where in similar circumstances a Judge had failed to direct the Jury to disregard the evidence of a witness, and the matter came up for the consideration of the Court of Appeal, this is what the Court said:
"In the opinion of the Court if the jury had been directed to ignore the evidence of Miss Billingham as being the evidence of not merely an accomplice, but of an accomplice who, on her own confession, had com mitted perjury, they would then have had to consider whether the rest of these somewhat nebulous matters were sufficient to establish the guilt of the appellant. In our opinion, it is not possible to say that if the jury had been so directed, they must certainly or would inevitably have arrived at the conclusion at which they did arrive."
For these reasons, we are of the opinion that the verdict in this matter cannot be supported and the appeal must be allowed. The conviction is therefore quashed and it is ordered that a verdict of acquittal be entered on both counts. The appellant is discharged.