West African Court of Appeal Year: 1952 Vol: 14 Page: 584-586 17-Jul-21

1. ABOT GYANG, 2. PAM NAFAM . . . Appellants v. THE QUEEN . . . Respondent

Lagos
11-Oct-54
FOSTER-SUTTON, P., DECOMARMOND, AG. C.J. (NIGERIA), AND COUSSEY, J.A.

1. ABOT GYANG, 2. PAM NAFAM . . . Appellants v. THE QUEEN . . . Respondent

Page 1 of 3

(Page 584)

Criminal Law-Murder by one of two thieves-Murder probable.

Evidence Ordinance, section 177 (2)-Evidence of accused incriminating co-accused-One counsel for both
undesirable.

Section 177 (2) of the Evidence Ordinance provides that:-

“Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a
co-accused the accused who gives such evidence shall not be considered to be an accomplice.”

The two accused went out together to steal from a compound; the deceased surprised No.1 as he was digging a
hole in the wall with a piece of iron and held him down; he called for help, and No.2 came and stabbed the
deceased mortally with a knife, and they both ran away.

In his statement to the police No.1 gave those facts and said that when they set out No.2 had a knife, and he
repeated them in evidence at the trial, saying that No.2 was carrying a knife at his waist.

No.2 denied knowledge of the crime in his statement to the police. The admissible evidence against him, up to the
close of the case for the Crown, was that No.1 wife heard No.1 and No.2 talk together that night outside No.1 's
house, to which she said No.2 was a frequent visitor, and then they seemed to go off together; that the cloth he was
wearing next morning had blood-stains; and that in his statement to the police he denied knowing where No. l's
house was. It was submitted for him that there was no case for him to answer, but the I trial Judge ruled against
him; then counsel closed his defence.”

The same counsel represented both accused; he called No.1, who gave evidence (as above stated) implicating
No.2.
On appeal it was argued for No.2 that there was no case for him to answer at the close of the case for the Crown
and, as his case was then closed, the evidence given by No.1 could not be used against No.2; also that No.2 had
been prejudiced by having the same counsel and there had been a miscarriage of justice.

Held: As regards accused No.1: he admitted going to commit a felony with No.2 who had a knife and used it to aid
No.1 to escape; on his own showing No.1 was rightly convicted of murder.

Held also: As regards accused No.2: (1) the evidence of No. l’s wife and the blood-stained cloth did raise a prima
facie case against him; it was followed by the evidence of No.1, which clearly implicated him and did not, in view
of section 177 (2) of the Evidence Ordinance, require corroboration, but there was corroboration in the evidence
of No.1 's wife and the blood-stained cloth.
(2) No substantial miscarriage of justice occurred by reason of No.2 being represented by the same counsel.

Per curiam: Where it is apparent that the defences conflict steps ought to be taken to have separate counsel.

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1. ABOT GYANG, 2. PAM NAFAM . . . Appellants v. THE QUEEN . . . Respondent
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Case cited:-
(1) Rex v. Akinpelu Ajani and Others, 3 W.A.C.A. 3.

Application by accused No.1; Appeal by accused No.2: No. 144/1954.

(Page 585)

Akinyele Martins for Appellants.

F. Williams, Crown Counsel, for the Crown.

The following judgment was delivered:

Foster-Sutton, P. Both of the prisoners in this case applied for leave to appeal from a conviction for murder.
The facts are fully discussed in the judgment of the learned trial Judge, Bennett, Ag. J. It is therefore sufficient to
say that the substance of the case for the prosecution was that the first applicant, Abot Gyang, accompanied by the
second applicant, Pam Nafam, set out on the night of the 8th March, 1954, with the intention of stealing a goat,
that they selected the deceased man's premises to break into, that while the first applicant was trying to dig a hole
in the wall of the compound with a piece of iron he had taken with him they were is surprised by the deceased who
knocked the first applicant over and held him Ii down, that a struggle then ensued and that while the deceased was
holding the I first applicant down on the ground the latter called out and the second applicant, who appears to have
run a short distance away, returned and stabbed the deceased several times with a knife thus effecting the release
of his companion and they both then ran away.

According to Dr. McLelland, whose deposition taken at the preliminary inquiry was put in evidence, there were
five incised wounds, the fatal one being a stab wound between the 11th and 12th ribs on the left side of the body
which penetrated the abdominal cavity and caused the intestines to protrude.

The first applicant gave a voluntary statement to the police after his arrest on the 9th March, Exhibit “J”, in which
he told the story I have already summarised. In that statement he admitted that when they set out on the night in
question to steal he was carrying a “small iron” and his companion had a covering cloth and a knife. He gave
evidence on oath at the trial during the course of which he repeated much the same story and again, in cross-
examination, admitted that his companion was carrying a ..knife at his waist”.

On his own showing the first applicant went out on the night of March 8th in company with another man with the
intention .of committing a felony and while he was endeavouring to effect his escape in a struggle with the
deceased his companion came to his aid and stabbed the deceased until he collapsed and they then made their
escape.

In the light of his statement, exhibit “J” , and the other evidence there was, in our view, nothing that could usefully
be said in favour of the first applicant and we, therefore, refused his application for leave to appeal.

The second applicant gave a statement to the police after his arrest in which he denied having had anything to do
with the crime, and at the close of the case for the prosecution at the trial the only admissible evidence against him,
the first applicant's statements to the police and to the seventh prosecution witness not being admissible as
evidence in so far as he was concerned, was, firstly, the evidence of the twelfth prosecution witness, Hwok Du,
wife of the first applicant, who testified that the second applicant was a frequent visitor to their house and that on
the night in question she was at home and heard the second applicant talking to her husband outside the house and
that they then appeared to her to leave together, and secondly, the fact that the Kano cloth he was wearing on the
morning of the 9th March when the police went to his house and arrested him had numerous human blood-stains
on it which he alleged were cam-wood dye stains. There was also the fact that in his statement to the police,
exhibit “K”, the second applicant denied knowing where the first applicant's house was.

At the close of the case for the prosecution the learned trial Judge ruled, on a submission by counsel who appeared
for the defence of both accused that a prima facie case had not been made out against the second accused, that

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1. ABOT GYANG, 2. PAM NAFAM . . . Appellants v. THE QUEEN . . . Respondent
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there was a prima facie case for him to answer.

(Page 586)

Counsel then announced that the second accused would no longer participate in the case and that he was closing it.
He then proceeded to call the first accused who gave evidence, to which I have already referred, implicating the
second accused in the crime.

We considered it unfortunate that the same counsel appeared for both men because their cases obviously
conflicted. That being so, and having regard to the other circumstances, we granted leave to appeal to the second
applicant and assigned counsel to act on his behalf.

Counsel for the appellant strongly urged that the learned trial Judge erred in ruling that there was a prima facie
case for the second accused to answer at the close of the case for the prosecution, and that since his counsel then
closed his case in so far as the second accused was concerned and called no evidence on his ii behalf, any
evidence given by the first accused in his own defence could not be Ii; used against the second accused. He cit-ed
the case of Rex v. Akinpelu Ajani and Others (1) in support of this contention.

This argument, however, depends upon the correctness of the contention that the trial Judge was wrong in ruling
that there was a prima facie case. In our view there was a prima facie case, that is to say the evidence of the wife
that the Ii second accused frequently visited their house and that on the night of the murder she heard him in
conversation with her husband and that the two men then left together, coupled with the evidence that the Kano
cloth he was wearing the following morning had numerous human blood-stains on it, which he alleged were only
cam-wood dye stains, to justify the trial Judge holding that there was a case for the second accused to answer.

In these circumstances the evidence given by the first accused which clearly implicated the second accused was
admissible against the latter, and since section 177 (2) of the Evidence Ordinance (Cap. 63), provides that ,. where
accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-
accused the accused who gives such evidence shall not be considered to be an accomplice “the evidence of the
first accused did not, as a matter of law, require corroboration, although, in our view, if corroboration had been
necessary it is to be found in the evidence of the wife and of the blood stained cloth.

Counsel also urged that the second accused was gravely prejudiced by reason of the fact that one counsel
represented both accused at the trial, and that we ought to hold that it occasioned a miscarriage of justice.

As I have-already observed, we are of the opinion that they ought to have been separately represented, and we
trust that in future in cases such as this where it is apparent that the defences conflict that steps will be taken to
ensure that they are separately represented. After careful consideration, however, we came to the conclusion that
no substantial miscarriage of justice has actually occurred in this case by reason of the procedure complained of.

Counsel for the appellant also criticised other aspects of the evidence, but it is clear from the judgment of the
learned trial Judge that he very carefully weighed and considered the evidence and we are satisfied that he came to
a correct conclusion on it.

For these reasons we dismissed the appeal of the second accused, Pam Nafam.

Application of accused No.1 for leave to appeal refused.

Appeal of accused No.2 dismissed.

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