OMISADE & ORS. V. THE QUEEN
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170
NIGERIAN SUPREME COURT CASES
[1964] N.S.C.C.
ber in
Marchant v. Lee Conservancy Board
(1874) L.R. 9 Ex. 60 for the absence
of any contractual bar to the reduction of a pension once granted, but the local
Act from which the trustees in that case derived their powers, as cited in the re-
port, was obviously only permissive, and there is nothing to suggest that the Act
contained anything to correspond to the elaborate provisions of the Local Gov-
5
ernment Law and the regulations made under it for the appointment, discipline
and retiring benefits of employees. It seems clear that in that case the trustees had
a general discretion with regard to the grant and quantum of retiring benefits, which
they had exercised
ad hoc
in making the original grant, so that it could fairly be
said that 'the resolution" (granting the annuity) "conferred a mere bounty on the
10
plaintiff; the elements of a contract are entirely wanting". In Western Nigeria the
Letter of Appointment and the Declaration and Form of Agreement in Appendices
B1 and B2 to the Local Government (Staff) Regulations only refer to those regu-
lations as part of the terms of service, but those regulations obviously do not con-
tain the whole of the terms of service, since some are contained in the Local
15
Government Law, and some arise by necessary implication, such as the Council's
obligation to pay its employees their salaries. We do not hesitate to hold that the
Retirement Benefits Regulations also form part of the terms of service and that
once a pension is granted it is part of the implied contractual obligations of the
Council to pay it. It would be inconsistent with the basis of good faith on which
20
the service of a council's employees rests to regard a pension earned and granted
as "a mere bounty'.
The action brought in the Chief Magistrate's Court was therefore one which he
had the power to entertain, and the appeal must be allowed. Judgement is en-
tered for the plaintiff for the sum of £478-18-6d as claimed. The appellant must
25
have his costs in all three Courts, which we estimate at a total sum of 150 guineas.
Appeal dismissed.
30
OMISADE & ORS V. THE QUEEN
MICHAEL ADEDAPO
OMISADE & OTHERS
V
THE QUEEN
APPELLANTS
RESPONDENT
SUIT NO. FSC 404/1963
35
SUPREME COURT OF NIGERIA
40
ADEMOLA,
C.J.N.
BRE1 I ,
TAYLOR,
BAIRAMIAN,
MBANEFO,
1st July, 1964
J.S.C.
J.S.0
J.S.C.
AG. J.S.C.
45
Legislation - Constitution of the Federation, 1960, s.21(9) (s.22(9) of the 1963
Constitution) - Criminal Code, S.7, S.10 first para., S.40, S.41(b), S.49, S.516,
and S.518(6) - Criminal Procedure Act, S.166 and S.167 - Evidence Act, S.31,
50
S.154(1), S.159 opening sentence and proviso (a), S.177(1), and S. 178(1) and
(2) (a).
OM1SADE & ORS V. THE QUEEN
171
Criminal Appeals - Distinction between civil appeals and criminal appeals on
facts.
Criminal Law - Being concerned in unlawful possession of arms - Proof of
5
personal possession unnecessary - Charge containing incomplete particulars -
Defence not embarrassed - No miscarriage of justice - Accomplice - Category
of participes criminis - Person present at formation of conspiracy - Not
joining in it - Corroboration - (a) Approvers and informers who are accomplices
in treason - (b) Not every part cf accomplice's evidence need be corroborated
10
-
(c)(i) where corroborative evidence is made up of several items - (c)(ii)
Where there are several defendants - (d) Must be independent evidence of a
material particular inzplicating defendant - Defendant's statement (i) admitting
alleged act but not mess rea, not truly confessional - May or may not be
corroborative - (ii) in form of question and answer, admissible if free and
15
voluntary - Treason - Overt Acts - Number of witness required - Witness
for prosecution who is an accomplice charged separately - Competent but
undesirable witness while charge still pending against him.
ISSUES:
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1. How many witnesses are required to prove treasonable felony?
2.
Whether S.177(1) of the Evidence Act applies in cases of treasonable felony to
informers and approvers.
3.
Can an accomplice who is charged with a similar offence but who is not on
trial in the case before the court, be a competent witness for the prosecution.
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4. What is corroborative evidence with regard to the evidence of an accomplice;
how far must it extend; and how should it be treated?
5.
When is a statement truly confessional?
6.
Would the fact that a defendant's statement was made in the form of "question
and answer' automatically render it inadmissible?
30 FACTS:
The case for the prosecution was that the Action Group having failed to obtain
a majority at the Federal Elections of December, 1959, its leader, Chief Awolowo,
proposed to the executive committee of his party in September, 1960, to set up a
Tactical Committee who would recommend to the executive committee the course
35
of action to be taken; and the proposal was accepted. One Dr. Onabamiro testi-
fied that on invitation to Awolowo's house he met several persons; that Awolowo
said they should capture power by revolution and assigned duties to each of those
present; one person was to recruit 200 youths for military training abroad; he (Dr.
Onabamiro) however did not carry out his assignment and that about nine months
40
after duties were assigned, he withdrew from the Tactical Committee, advising the
others that the plan was not feasible and he offered to take an oath of secrecy
about the plot. The prosecution called witnesses who testified that persons went
to Ghana for military training; and testified of assignments for the proposed coup,
and of arms being found. Some of the defendants made statements to the police.
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The information had three counts: treasonable felony, conspiracy to levy war
against the Queen and conspiracy to effect an unlawful purpose. The trial Judge
found the appellants guilty of one or more of the counts. They raised several points
on appeal.
HELD:
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1. If the defendant does not plead guilty, at least two witnesses must testify in open
court to the overt act alleged, or one witness to one overt act and another witness
to another overt act of the same kind of treasonable felony. But that does not
mean that a witness to an overt act must be able to testify to it in its entirety: a
number of witnesses may testily to snippets which add to proof of an overt act.
172
NIGERIAN SUPREME COURT CASES
[1964] N.S.C.C.
Extra-judicial confessions, if admissible, can serve as auxiliary or corroborative
evidence, but cannot take the place of the witnesses to the overt act. Approvers
and informers that are accomplices in treasonable felony should be treated on
the same footing as accomplices in other cases.
2.
Two prosecution witnesses were charged separately in the magistrates' court
5
with unlawful possession of some of the arms referred to in counts 1 and 3 of
the information, and that charge was still pending when they testified in this
case. Counsel, who at first submitted that they were not competent witnesses,
later referred to
R. v. Charlotte Winsor
(1865) 10 Cox C.C.276, 314 and
conceded that they were competent witnesses for the prosecution, but
10
suggested that the charge against them ought to have been disposed of before
they were called as witnesses. S.154 of the Evidence Act states that anyone who
can give rational answers is competent to testify; s.21(9) of the 1960 Constitution
provides that a defendant in a criminal trial cannot be compelled to give
evidence; and s.159 of the Evidence Act provides that a defendant may give
15
evidence foi the defence on his own application. An accomplice who is
charged with a similar offence but who is not on trial in the case before the
court is a competent witness for the prosecution; but it was lamentable that
those two witnesses were called with the charges against them in the
magistrates' court kept hanging over their heads.
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3.
On whether Dr. Onabamiro was an accomplice that witness did not come within
the category of participes criminis he did not originate or counsel the formation
of the plot, did not aid in the furtherance of it, and did not assist anyone to
enable him to escape punishment; so he was not an accomplice.
4.
On corroboration of an accomplice - its nature, extent and mode of treatment.
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The submissions for some of the appellants atomised portions of the
corroborative evidence, and also meant that every part of an accomplice's
evidence had to be corroborated by independent evidence. There was also a
complaint that the trial Judge did not consider the corroborative evidence
affecting each of the accused separately: (it was done but not validly in a few
30
cases). 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. The corrobration need not be direct evidence that the accused
committed the crime; it is sufficient if it is merely circumstantial evidence of his
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connection with the crime."
5.
Not every part of an accomplice's evidence has to be corroborated by
independent evidence; the position is this: the trial Judge must ask himself
whether or not he believes the accomplice; if the Judge believes him, the judge
must warn himself that it is unsafe to convict on his evidence alone the judge
40
then looks for some additional evidence (not that of another accomplice) which
corroborated the accomplice's story.
6.
In considering whether evidence, made up of several items, is corroborative,
one must take all the little items together and consider whether they all add up
to corroboration as a whole. When there are more persons than one on trial,
45
the corroboration as to each ought to be separately considered.
7.
On contradictions in the prosecution evidence - The defence drew attention to
a number of contradictions and attacked the credibility of some witnesses. (The
trial Judge had commented on them). The trial Judge considered the
contradictions referred to; and none was such a major one which would amount
50
to a miscarriage of injustice if the verdict should stand.
8.
In their statements some of the defendants admitted going to the training
camp,.but said that they did not know what the training was for, or that they did
not like the training when they saw what it was like, the trial Judge referred to
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