ALHADJI JIBRIN OKABICHI & ORS (APPELLANT)
THE STATE (RESPONDENT)
(1975) All N.L.R. 69
Division: Supreme Court
Date of Judgment: 27th March, 1975
Before: Coker, Fatayi-Williams and Iirikefe, JJ.S.C.
APPEAL from the High Court, Lokoja (Kwara State).
The appellants were charged and convicted in the Lokoja High Court for the culpable homicide of the deceased. Evidence showed that only the first appellant originally knew about the death of the deceased and that the first appellant sent the other appellants (except the second) to the place where deceased's corpse lay and instructed them to carry out the corpse therefrom and hang it to a tree in the bush to give the impression that deceased hanged himself.
These appellants complied with his instructions and evidence clearly connected them with the hanging of the corpse in the bush where the police and some village search party discovered them.
Evidence showed that second appellant had called out the deceased from his home on the fateful date and that deceased had never been alive since then; that evidence was given by a girl of tender age who did not understand the nature of an oath.
The trial Court convicted all the seven appellants of culpable homicide punishable with death pursuant to S. 221 Penal Code. On appeal to the Supreme Court,
(1) that there was no corroboration of the evidence against the second appellant as required by S. 182 Evidence Law (Cap. 40-Laws of Northern Nigeria), and that what the learned trial Judge regarded as corroboration is not corroboration, hence second appellant's conviction must be quashed.
(2) That there was no evidence of complicity in the murder of the deceased against the other appellants, except the first, hence they could not be convicted of culpable homicide. Therefore these appellants are discharged on the conviction under S. 221 Penal Code, but must be convicted of the offence of Screening under S. 167 Penal Code by virtue of the provisions of S. 216 and S. 217 Criminal Procedure Code Law (Cap. 30 of Northern Nigeria).
(3) that first appellant's appeal lacked merits, hence his conviction for culpable homicide affirmed.
Cases referred to:
R. V. Baskerville  2 K.B. 658
Omishade & ors v. The Queen  1 All N.L.R. 233 at 253
R. v. Modan (1938) 4 W.A.C.A. 39
Olaleye v. The State  1 All N.L.R. 300 at 303
Okafor v. C.O.P. (1965) N.M.L.R. 89
R. v. Fallon L & C 217
R. v. Watson 12 Cr App. Reports 62
R. v. Ukpe (1938) 4 W.A.C.A. 141
Begu & ors v. Emperor (1925) A.I.R. 130
Mangal Singh v. The King Emperor (1937) L.R.I.A. 134
Statutes referred to:
Penal Code, SS. 79, 167 and 221 (a),
Evidence Law (Cap. 40 Laws of Northern Nigeria 1963), SS. 182(1), 182(3)
Criminal Procedure Act, S. 171 (A)
Criminal Procedure Code Law (Cap. 30 Laws of Northern Nigeria 1963) SS. 36 (1) (c), 192, 216, 217, 236,
Indian Code of Criminal Procedure, SS 236 & 237
Indian Penal Code, SS. 201, 302
Constitution of the Federation of Nigeria 1963, S. 22
Supreme Court Act 1960, S. 26 (1)
APPEAL from the High Court, Lokoja.
Suit No. S.C. 299/74
Mr F. O. Akinrele for the Appellants.
Mr T. A. Oyeyipo, P.S.C. (Kwara State) for the Respondent.
COKER, J.S.C. (Delivering the Judgment of the court)-The seven appellants were all tried and convicted by Adesiyun J. (High Court, Lokoja) for culpable homicide punishable with death pursuant to section 221 (a) of the Penal Code and sentenced to death. The charge against them reads as follows:-
"THAT YOU, (1) Alhaji Jibrin Okabichi, (2) Abdul Saba, (3); Obaje Eze, (4) Abdullahi Labuja, (5) Achimi Ameh, (6) James Agada and (7) John Owuchala, on or about the 4th day of April, 1972, at Ankpa in Kwara Judicial Division did commit culpable homicide punishable with death in that you caused the death of one Daniel Abutu by inflicting wounds on his neck with the intention of causing his death and thereby committed an offence punishable under section 221 (a) of the Penal Code read with section 79 of the Penal Code."
There were fourteen witnesses for the prosecution but none of the appellants gave any evidence or called any witnesses. There is but little evidence concerning the killing of Daniel Abutu but such evidence as there was sufficiently established that the 1st appellant, Alhaji Jibrin Okabichi, had either killed the deceased or had aided others in doing so. Yesufu Ogidi, P.W. 1, however, gave evidence to the effect that appellants Nos. 3, 5, 6 and himself and one Issa Jibrin were responsible for carrying the corpse of the deceased from the under-cellar of an uncompleted building and planting it on a tree in the bush to give the impression that Daniel Abutu had hanged himself. It was in this bush and in this position that his corpse was discovered by the villagers and the police. P.W. 1 testified thus:-
"Accused one then asked us to go to an underground house between 10 pm. and 11 p.m. There, we should remove a dead body to a bush. He added that John Mechanic would drive us to the place. I was going there at about 10.30 p.m. when I met accused 4. I also met accused 3, accused 5, and accused 7. Before I arrived at the scene I met a vehicle with the accused persons I had just mentioned. I lit my torch light I also met Issa Jibrin holding a torch light and John Mechanic. When I lit my torch light, I saw accused 3, 5, 6, 7 and Issa Jibrin carrying the corpse of Abutu into the vehicle John Mechanic then drove us away in the vehicle into the bush."
According to the witness, on getting into the bush they took over the corpse from the motor vehicle, laid it on the ground where the 3rd appellant shaved the hair off the head of the corpse. He testified further as follows:-
"Accused 7 asked us to bring the corpse, we then lifted the corpse up. Accused 7 then tied a rope round the neck of the corpse. He also wrote something on a piece of paper which he put inside the pocket of the deceased. Before lifting up of the corpse to accused 7, he ordered us to cover our faces with our gowns and we did so. It was then that accused 7 put rope around the neck of the deceased. It was at this stage that I said if the errand sent us by our boss was right; at this stage accused 7 slapped me on my face."
The mission to the cellar of the uncompleted building and the bush where the body was suspended on a tree, was confirmed by John Okeme, who was the 2nd P.W. There was as well evidence that on getting the news of the disappearance of the deceased, Daniel Abutu, on the 5th April, 1972, the 3rd P.W., Laja Olugbami, along with others, organised a search for the corpse on the following day. The search took him and the others to the house of Daniel Abutu where the young child of Daniel Abutu (i.e. Mary Ojoma) 5th P.W., related to him the story of how the 2nd appellant, Abdul Saba, had come into the house of the deceased and called him out and his failure to return ever since. The young witness, Mary Ojoma, was a school girl of some nine years old at the time of her testimony and indeed stated that she did "not know the value of oath." She however indisputably identified the 2nd appellant, Abdul Saba, as the person who had called out her father on the day of his death. There was further evidence, at any rate from the 2nd P.W., John Okeme, that on the instructions of the 1st appellant, he drove appellants Nos. 3, 4 and 7 on the 8th April, 1972, to the cellar of an uncompleted building near the D.O.'s house. This witness said that on arriving at the uncompleted building-
"About five minutes later, I heard footsteps and got out of the vehicle and stood by it. I saw when the people put a dead body inside the vehicle. I saw when accused 4 lit a torch light and off it. As I was about to re-enter the vehicle and kick it, P.W. 1 came out and entered the motor with them. Among the people I know are P.W. 1 accused 3 and accused 7.
When we arrived at about ½ mile to Egbechi, I stopped after hearing some beatings on the vehicle. There, the dead body was taken down from the vehicle. They took the dead body through a foot-path to the bush. P.W. 1 asked Issa Jibrin to light his torch. Issa came down from the vehicle and followed them.
I reversed the vehicle before they came back. They all re-entered the vehicle. I later returned the vehicle to the yard before I went to my house. On the following morning I went to the house of the accused one but I did not meet him. His son called Abutu said he was away to the farm.
On Monday, when I saw accused one in front of his car, I asked him whose corpse did he asked us to convey last Saturday ? He made a sign with his hand to his mouth that I should keep quiet."
The story of the discovery of the corpse of Daniel Abutu was vividly told by the 4th P.W., Police Sergeant Stephen Daaor. He had received certain information concerning the corpse and its location. He described his recollection of the scene where the corpse was discovered as follows:-
"At the scene it looked like a forest with many trees. At the scene, Abdu Oseni pointed at a body hanging on a branch of a tree with a rope made of palm tree material tied around his neck. I moved near and examined the body and identified it as that of Daniel Salami Abutu whom I had known before. He had only a pair of trousers on without shoes. The feet were well balanced on the ground; I observed that the eye balls and the tongue were absent from the body. No hair on his head. I measured my height with the branch of the tree where the body was hanging, it was my own height (my height is 5 feet 10 inches). The length of the rope from the neck of the deceased to the branch of the tree was 2 feet."
It is pertinent to observe that this description of, the scene and the position and condition of the corpse of Daniel Abutu were also confirmed by the 10th P.W., Adeyemi Johnson, a photographer. He stated thus:-
"We entered a vehicle and drove to a place called Angwa where we alighted. We then trekked into a bush. He asked me to take a photograph of the general view of the area and I did. I saw someone with rope on his neck. The rope bent on one side where his neck bent to. That was all I saw about the man.
The 13th P.W., Police Constable Yahaya Ejiga, also said something to the same effect. He testified, inter alia, as follows:-
"At the scene which was situated in a thick bush, I asked P.W.10 to take a general view of the area. I saw a dead body hanging on a tree. I asked P.W. 10 to take the front view of the man found hanging. I also asked P.W. 10 to take the back view of the man found hanging. I then moved to the dead body for a close examination. I observed that the dead body was tied with a rope made of palm fronds tied to its neck and the other end to the tree. The two eyes were not there. The tongue was not also there. I saw a deep cut at the right side of its neck. Part of his head was shaved. I found some hairs on the ground at the scene. The body was hanging half naked with only a pair of trousers. The two legs were on the ground. I never saw sign of any struggle. The body was unfastened by us and taken to the mortuary at Ankpa."
At the close of the case for the prosecution, all the appellants decided not to give evidence and although their several Counsel proposed to address the court, the learned trial Judge took the view that in the circumstances of this case, neither side could nor should address him and he reserved his judgment. In the course of that judgment he stated that he found that the case of the prosecution was adequately proved and he directed himself accordingly. With respect to appellants Nos. 3, 4, 5, 6 and 7, who had joined in the carrying of the corpse of Daniel Abutu into the bush, the learned trial Judge observed thus:-
"The instruction of accused one to them was to go and hang an already dead person. To any reasonable person who had no hand in the killing, such instructions should have raised a suspicion in his mind and they should have asked P.W. 2 to drive the vehicle with the corpse inside it to the Police Station, Ankpa. But they too thinking that they could cover up their crime drove into the bush to hang an already dead person. I have no doubt in my mind that accused 3, accused 4, accused 5, accused 6 and accused 7 had hands in the killing of the late Daniel Salami Abutu.
He eventually convicted all the appellants of culpable homicide punishable with death under section 221(a) of the Penal Code and sentenced them to death.
On appeal before us, a number of points were raised and argued. On the Charge Sheet it is stated that the appellants were being charged under section 221 (a) of the Penal Code "read with section 79 of the Penal Code." This seems to us a novel, way of framing a charge and we are certainly not satisfied that section 79 of the Penal Code does create any offence except to state the law with respect to the complicity of accused persons who have been jointly charged with committing a criminal act. Although in the course of his judgment the learned trial Judge, dealt with this point and expatiated at some length on the implications of section 79 of the Penal Code, we are unable to see the wood for the trees. Even if it is alleged, as indeed it is not, that all the appellants jointly killed Daniel Abutu, yet that would be no justification in formulating the charge in the way it is done here by using section 79 or including that section of the Penal Code in the charge and requiring that it should be read along with the section charging a substantive offence under the Penal Code. The wording of the charge is all but perfect and although we hesitate in this case to attach blame to anyone, insistence must be founded upon the correct employment of the relevant forms and in the use of correct formulae.
We observe generally that with respect to the 1st appellant Alhaji Jibrin Okabichi, there was very little to be said or argued. He it was who had announced the death of Daniel Abutu to the other appellants (except the 2nd appellant) and his subsequent behaviour like getting the properties of the deceased and his family hurriedly to be carted off to his hometown, the report off his grouses against Daniel Abutu to Yesufu Ogidi, the 1st P.W., his callous, heartless instructions to the 3rd, 4th, 5th, 6th and 7th appellants to remove the corpse of Daniel from the cellar of the uncompleted building and then to plant it in the bush in a way to simulate suicide by hanging, his pretentious assistance to the search-party on the 6th April, 1972, when he very well knew not only that Daniel Abutu had been killed but also the place where the corpse lay: they are other incriminating facts, but it is easy to see that the conclusion that he was one of the killers of Daniel Abutu was completely inescapable. No argument of any substance has been addressed to us to justify our interference with the findings of fact made against this appellant by the learned trial Judge and his application of the law to those facts. The appeal of the 1st appellant, Alhaji Jibrin Okabichi, will be dismissed.
One of the grounds of appeal argued relates to the 2nd appellant, Abdul Saba. He was not present with the others when and where they were removing the corpse of the deceased and the complaint against him is that it was he who had called out Daniel Abutu from his house on the morning of the day that he was killed. This evidence was given by the witness Mary Ojoma, 5th P.W., who knew him very well (but not his name) and who indeed identified him several times in the course of a series of difficult identification parades. She was a girl with immense prudence and she did not hesitate to tell the court that she was no more than nine years old. She did not know the nature of an oath and so gave her evidence unsworn. The learned trial Judge was of course aware of the implications of this for in the course of his judgment and concerning this point he observed thus:-
"I think this is a convenient place to deal with the evidence of P.W. 5 a girl of about nine years of age who did not know the value of oath and therefore gave an unsworn evidence. She impressed me as a truthful witness. I watched her demeanour in the witness box, she was unshaken during the long and rigorous cross-examination. But her evidence requires corroboration."
The appeal of the 2nd appellant turns substantially on whether the evidence of the girl Mary Ojoma was in any way corroborated as required by law. It should be appreciated that the requirement for corroboration in this case is statutory and not just a rule of practice. Sections 182 (1) and 182 (3) of the Evidence Law (cap. 40 Laws of Northern Nigeria 1963) prescribe as follows:-
"182. (1) In any proceeding for any offence the evidence of any child who is tendered as a witness and does not, in the opinion of the court, understand the nature of an oath, may be received, though not given upon oath, if, in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.
A person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution is corroborated by some other material evidence in support thereof implicating the accused.
Now, the learned trial Judge dealt with this point in the course of his judgment and in deciding to convict the 2nd appellant, the learned trial Judge observed in this respect as follows:-
"In my opinion the evidence of P.W. 7 and P.W. 11 corroborated the evidence of P.W. 5. I believe P.W. 5, P.W. 7, P.W. 8 (the photographer) and P.W. 11."
The 7th P.W., Julius Akpata, a Deputy Superintendent of Police stationed at Lokoja, conducted the identification parades involving the 2nd appellant and compiled the "report of the identification parade." He testified to the details of the identification parades at the several positions and, needless to say, pointed out that during such parades the 5th P.W., Mary Ojoma, identified the 2nd appellant as the man who had called out her father on the day that he was killed. The 8th P.W., Eghabor, is a photographer of the Benji Photo Studios, who took the shots at the identification parades and produced and tendered the relevant negatives and prints. Another witness, Lawrence Oko, the 11th P.W., was an Inspector of Police who had watched the entire identification parade proceedings, undoubtedly saw the 2nd appellant being identified by the witness Mary Ojoma and told the court so. These are the witnesses whose testimonies the learned trial Judge accepted and regarded as being corroborative of the evidence of the 5th P.W.
That leads logically to a consideration of what would amount to corroboration. The evidence that is required or regarded as corroboration is clearly not a repetition of the evidence to be corroborated, otherwise there would be no need for the original evidence. It is usual to refer to the case of Rex v. Baskerville  2 K.B. 658, where at page 667 in a passage, classical and noted for its erudition and exposition of the principle, Lord Reading, C.J. described the nature and meaning of corroboration, in language which can hardly be surpassed for clarity, as follows:-
"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute. The language of the statute, 'implicates the accused', compendiously incorporates the test applicable at common law in the rule of practice. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.
See also in this connection the observations of the Supreme Court in Omishade & ors v. The Queen  1 All N.L.R. 233 at page 253. Corroboration is evidence which may be direct or circumstantial but in any case it is the duty of the court to ascertain that whatever evidence is being used or regarded as corroboration is independent of the evidence to be corroborated and is such as supports the story of the main evidence to the effect that it renders that story more probable and that it implicates the accused person in some material particular. See R. v. Modan (1938) 4 W.A.C.A. 39. No stereo-typed category of evidence is envisaged and a great deal depends upon the circumstances of each case for what may in a given set of circumstances amount to corroboration may not be so in another set of circumstances. In Olaleye v. The State  1 All N.L.R. 300 at page 303, this Court observed on this point as follows:-
It is manifest that in the case of Jones, supra, the court of Criminal Appeal regarded the incidence of gonorrhoea on the victim as corroborative of the evidence implicating the appellant in the circumstances of that case. We are not ourselves convinced that in every case where gonorrhoea occurs in both the accused and the victim the court must regard this as corroborative evidence implicating the accused. Great care must be taken to isolate individual cases for individual consideration and it is idle to contend that there cannot be cases in which the collateral circumstances can and do make the incidence of venereal infection of the victims a matter of corroboration. Such is the case where the court or the jury is satisfied that the victim was not previously infected and the age of the infection in her, like cause and effect, are reasonably only referable to the act of the accused complained of."
In the case in hand, what is required to be corroborated is the fact that the 2nd appellant had called out Daniel Salamii Abutu from his home on the morning of the 4th April, 1972. None of the prosecution witnesses Nos. 7, 8 or 11 saw this or gave evidence to confirm the girl's testimony concerning this. None of these witnesses knew anything about the calling out of Daniel Abutu and none of them was in possession of evidence direct or circumstantial even remotely but independently asserting this fact and therefore tending to support the evidence of the girl Mary Ojoma.
As stated before, the argument before us on appeal is that there was no corroboration of the evidence of the 5th P.W. concerning the 2nd appellant. There will still be no corroborative evidence if what the learned trial Judge treated as corroboration is in fact such evidence as is not or does not amount in law to corroboration. We are in no doubt in this case that the evidence relied upon by the learned trial Judge in this case as corroborating the 5th P.W. is not in fact such, for the several identifications of the 2nd appellant by the 5th P.W. is not in fact corroboration of her own story, since the various exercises of identification constitute no more than a repetition of her story by herself and is therefore not cumulative evidence of the fact being sought to prove, that is to say, the implication of the appellant as the person who had come to the house of Daniel Abutu to call him out to death. In Okafor v. Commissioner of Police (1965) N.M.L.R. 89, this Court observed as follows in respect of the principle that the Court of Appeal would intervene and may set aside a conviction if what the judge in fact treated as corroboration is not so corroborative of the main evidence. At page 90 of that Report this Court stated as follows:-
"Mrs Hussain, who argued the appeal, submits (among other things) that what was regarded as corroborative evidence was not such: it did not implicate the appellant in the commission of the offence. Malam Buba, the learned Solicitor-General (Northern Region), agrees that taken alone none of those items is corroborative, but submits that taken together they do amount to corroboration.
The court with respect finds it hard to follow Mallam Buba's submission: if not one of the items of evidence implicates the appellant in the commission of the offence, the court cannot see how, when they are united, they can implicate him. Each may raise suspicion, united, they may make that suspicion very strong: but their union cannot give them a quality-the quality of being corroborative evidence in the true sense-which none of them has."
Evidently, in the case in hand, there is no evidence de hors that of the little girl Mary, which tends to confirm her story or to give the slightest suggestion that her story may be true. There is clearly no corroboration of her evidence in the material particular: we have already alluded to the evidence of the witnesses which the learned trial Judge regarded as corroboration and pointed out simply that there is nothing in the evidence of those witnesses which has the slightest character of corroborating the evidence of the 5th P.W., Mary Ojoma. The appeal of the 2nd appellant will succeed on that ground.
It was strongly argued that the conviction of the 3rd, 4th, 5th, 6th and 7th appellants was misconceived inasmuch as these persons had only always seen the deceased Daniel Abutu after he had been killed. The evidence is that it was the 1st appellant who had directed these appellants to the under-cellar of the uncompleted building where they would see the corpse of a man obviously already dead. Learned Counsel then argued before us against their conviction for culpable homicide punishable with death that at the worst they would be accessories after the fact to the murder of Daniel and as such could not be convicted of the substantive offence. All the appellants in this case are charged on the same charge with culpable homicide punishable with death and no one of them is being charged either as an accessory after the fact or indeed of any other offence.
There is of course a long line of decisions (English and Nigerian) which supports the submission of learned Counsel. See R. v. Fallon L & C 217; R. v. Watson 12 Cr. App. Reports 62, etc. For instance, if the accused person is charged with being an accessory after the fact, he could and would, if his guilt is established, be convicted accordingly. See R. v. Ukpe (1938) 4 W.A.C.A. 141. That, however, will be proper if the accused is charged not with the principal offence but as being an accessory after the fact to that offence. In the present circumstances and the present case the argument of learned Counsel has overlooked the incidence in Nigeria of statutory provisions designed to breach this apparent lacuna in the law. (See the provisions of the Criminal Procedure Act, section 171(A) which applies to Lagos State). In the Kwara State, where the present offence was stated to have been committed, the provisions of sections 216 and 217 of the Criminal Procedure Code Law, cap. 30 (Laws of Northern Nigeria, 1963) are certainly designed to ensure that that loophole was closed. The sections provide as follows:-
"216. If a single act or series of acts is of such a nature that it is doubtful which of several different offences the facts which can be proved will constitute, the accused may be charged with having committed all or any one or more of such offences and any number of such charges may be tried together; or he may be charged in the alternative with having committed some one or other of the said offences.
217. If in the case mentioned in section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it."
Thus, section 216 authorises the charging of an accused his case may carry, either as having committed all, or as being charged on one in the alternative of the other. Section 217 authorises the court to apply the facts proved against an accused person in convicting of any offence which those facts could support even though he had been charged for a different offence. The only limitation is that the offence of which he is found guilty is such that "he might have been charged" under the provisions of section 216. We have already referred to the provisions of section 216. We have already referred to the provisions of section 216 of the Criminal Procedure Code Law by virtue of which a person could be charged with as many offences as the evidence available for his case could support. These statutory provisions override the common law and leave no room for its application. Thus, in a case which went on appeal to the Privy Counsel from the High Court of Judicature at Lahore, which has statutory provisions similar to sections 216 and 217 of the Criminal Procedure Code Law, the Privy Council held that a conviction for some other offence triable on the same facts was proper. The Privy Council in the course of its judgment in Begu & ors. v. Emperor (1925) A.I.R. 130, referred to sections 236 and 237 of the Indian Code of Criminal Procedure thereto applicable and then observed thus at page 131 of the Report:-
"If in the case mentioned in s.236, the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
The illustration makes the meaning of these words quite plain. A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. That is what happened here. The three men who were sentenced to rigorous imprisonment, were convicted of making away with the evidence of the crime by assisting in taking away the body. They were not charged with that formally, but they were tried on evidence which brings the case under s.237.
Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure.
The Privy Council took the same course in Mangal Singh v. The King Emperor (1937) L.R.I.A. 134. The appellant in that case had been charged to court with an offence under section 201 of the Indian Penal Code. At his trial, the court found that there was sufficient evidence to warrant his conviction for another offence under section 302 of the Indian Penal Code and although he was not charged with the latter offence under that section, yet he was convicted of that offence in virtue of the powers conferred on the court by section 236, 237 of the Indian Code of Criminal Procedure. The Privy Council again stated the guidelines and emphasized the import of the requirement that the offence of which he is convicted should be one of which he could have been charged by virtue of the provisions of the earlier of the two sections. The Privy Council observed thus at pages 141, 142 of that Report as follows:-
"Their Lordships should perhaps add that they have reached the conclusion stated apart altogether from consideration of the terms of S.201 of the Indian Penal Code. It appears to them that the proper avenue of approach in this case-particularly having regard to the structure of the charge is, first and foremost, to consider whether the case under s. 302 of the Indian Penal Code has been made out. If so, that is an end of the matter. If, on the other hand, their Lordships thought that the case under that section was not proved, then, and only then, would it be proper to consider whether an offence under s.201 of the Indian Penal Code had been established."
We point out that sections 236 and 237 respectively of the Indian Code of Criminal Procedure are in pari materia with sections 216 and 217 respectively of the Criminal Procedure Law, cap. 30 (Laws of Northern Nigeria, 1963).
In the course of argument, learned Counsel for the respondent stated that he was unable to support the conviction of appellants Nos. 3, 4, 5, 6 and 7 of culpable homicide punishable with death; but he urged forcefully upon us that they could have been charged with an offence of Screening under section 167 of the Penal Code and that we should by virtue of the provisions of sections 216 and 217 of the Criminal Procedure Code convict them of that offence. Section 167 of the Penal Code reads as follows:-
"167. Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of the offence to disappear with the intention of screening the offender from legal punishment, or with a like intention or intending to prevent his arrest gives any information respecting the offence which he knows or believes to be false or harbours or conceals a person whom he knows or has reason to believe to be the offender, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine."
Undoubtedly, these appellants knew that the 1st accused had hands in the killing of Daniel Abutu and the learned trial Judge found this much when in the course of his judgment he remarked:-
"Accused 3, accused 4, accused 5, accused 6 and accused 7, no doubt have had prior discussing with accused one before P.W. 1 arrived at the house of accused one on 8/4/72 as to how the corpse should be removed otherwise they would not have walked to the yard of the Ministry of Works direct where P.W. 2 conveyed them in a vehicle to the uncompleted underground building where the corpse of the deceased was whereas P.W. 1 walked to the place and the corpse was being put into the vehicle when P.W. 1 arrived later at the scene."
That finding is undoubtedly supported by the evidence relevant and properly produced against those appellants in the present case and clearly they could have been charged with that offence of Screening in the first instance on the evidence available to the prosecution. True enough, all these appellants denied any complicity in the killing of Daniel Abutu and in removing his corpse from the uncompleted building into the bush but the evidence for the prosecution would, if accepted by the court, as indeed it was, justify their conviction for an offence under section 167 of the Penal Code. We think that although the appeals of the 3rd, 4th, 5th, 6th and 7th appellants for culpable homicide would succeed it is proper to substitute for each of them a conviction for Screening under section 167 of the Penal Code.
Lastly, it is not unimportant to advert to a point which learned Counsel for the appellants had argued before us and in respect of which he had asked us to hold that there had been a failure or miscarriage of justice and order that the appellants be retired. The argument concerns the rights of address by Counsel for accused persons and the attitude of the court to the exercise of such rights. The present appellants were all tried at the High Court, Lokoja, and were severally represented by learned Counsel throughout. At the end of the prosecution case, all the appellants one by one indicated to the learned trial Judge that they did not wish to give any evidence and had no witnesses to call. Learned Counsel appearing for the appellants thereafter requested the court to adjourn for some one hour to enable them to study the legal position with respect to address of Counsel in the events that had happened. The court adjourned for one hour and on its resumption learned Counsel submitted that they were entitled to address the court on behalf of the appellants. On the other hand, learned State Counsel who appeared for the prosecution opposed the application of Counsel for the appellants and suggested to the court that section 192 of the Criminal Procedure Code Law did not apply. The learned trial Judge refused the several applications of learned Counsel for the appellants and ruled, inter alia, thus:-
"From all the authorities cited by the defence Counsel, none supports their application to address this Court since after the close of the case for the prosecution, all the accused have chosen not to give evidence and or call witnesses on their behalf. This case has therefore to be adjourned for judgment."
Neither the learned Counsel for the appellants nor the learned State Counsel was allowed to address the court which then adjourned for judgment.
Before us on appeal, it was argued for the appellants that in depriving them of their right of address they had suffered a denial of justice and that this should entitle the appellant to be successful in their several appeals. Before dealing specifically with this complaint of learned Counsel for the appellants, we wish to observe that as a general statement of the law his proposition is untenable. We do not exclude the possibility of cases where a deprivation of a right to address may have some collateral and colossal effect on the case and so warrant the intervention of a Court of Appeal; but it is proper to record that a great deal may indeed and must depend upon the circumstance of each case and an appellant will have in any case the onus of showing that there had been a miscarriage of justice in his own particular case.
Section 236 of the Criminal Procedure Code Law makes ample provisions for the attitude of the court in relation to an accused person being tried in court. It is therefore not illegal or unjustified for an accused person to elect not to give any evidence at his trial although section 236 (1) (c) reserves to the court the right to "draw such inferences as it thinks just from his failure or refusal so to give evidence." The section of the Criminal Procedure Code which is now in point is section 192 and it reads as follows:-
"192. When the court calls upon the accused to enter upon the defence the accused or his Counsel may open his case stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution, and the accused may then give evidence on his own behalf, examine his witnesses, if any, and, after their cross-examination and re-examination, if any, the accused or his Counsel may sum up his case."
Section 192 postulates that it shall only come to operation after the prosecution had closed its case and the court had called upon the accused person for his defence. According to that section, the defence comprises of:-
(i) Counsel for accused stating the facts and the law on which the defence is based;
(ii) defence Counsel making comments on the evidence for the prosecution;
(iii) accused himself giving evidence and/or calling witnesses;
(iv) after the examination in three, the accused person or his Counsel may sum up his case.
Section 192 of the Criminal Procedure Code Law was indeed invoked before the learned trial Judge by learned Counsel for the appellants but the learned trial Judge rejected the application of the section merely by stating that the section does not entitle the defence Counsel to the right of addresses. We think that the learned trial Judge was mistaken. We have already analysed the provisions of section 192 of the Criminal Procedure Code Law. Even if No. (iii) of these provisions is foregone, that seems to us to be no justification for depriving the defence of the other three provisions of that section. The third provision is not a peremptory one and at all times and indeed judging by the provisions of section 36(1) (c) of the Criminal Procedure Code (and section 22 of the Constitution) is never obligatory on any accused person. If he decided to give evidence surely he still is entitled to the other three provisions and if he chose not to give evidence he still is entitled to the other provisions. We are clearly of the view that the learned trial Judge should have acceded to the request of learned Counsel for the appellants to address him.
That however has only an insignificant effect on the overall consideration of this case. Neither of the Counsel on both sides was allowed by the learned trial Judge to address him and before us it was not argued that the summing-up of the evidence by the learned trial Judge was anything but perfect or that his application of the law otherwise was defective. The appellants gave no evidence whatsoever and so the evidence available for consideration was all one way. We are satisfied that although this point was well founded as made by the learned
Counsel for the appellants, there has been no miscarriage or failure of justice whatsoever and that it is a proper occasion to apply the provisions of the proviso to section 26 (1) of the Supreme Court Act and dismiss the appeals of the applicants on the ground that there had been no miscarriage of justice even though they could have succeeded on that ground alone.
The position at the end of it all is that the 1st appellant's case is hopeless throughout and we are satisfied that no argument of any substance could have been urged or was urged before us on his behalf. His appeal is dismissed and his conviction and sentence are hereby affirmed. With respect to the 2nd appellant, Abdul Saba, the only piece of evidence against him is not, as it should have been, corroborated. His appeal must and does succeed. His conviction is quashed and the sentence of death passed on him is set aside. We enter on his behalf a verdict of acquittal and discharge.
We next turn to the other appellants, No. 3, Obaje Eze; No. 4, Abdulahi Labuja; the 5th Achimi Ameh; the 6th, James Agada and the 7th, John Owuchala. We are satisfied that the evidence against each and every one of them does not justify a conviction for culpable homicide punishable with death under section 221 (a) of the Penal Code. Such evidence however establishes in respect of each and every one of them a conviction for Screening under section 167 of the Penal Code. We allow their appeals on their convictions for culpable homicide, quash their several convictions and set aside the sentences of death passed on them. We however enter in respect of each and every one of these appellants a conviction for Screening under section 167 of the Penal Code and convict him accordingly. Each of these appellants is hereby sentenced to imprisonment for three years.
The foregoing shall be the judgment of the court.