Onyedire Christopher V The Queen (1961)

LawGlobal-Hub Lead Judgment Report

TAYLOR, F.J

The appellant was convicted, at the trial held in the High Court of Umuahia, of the murder of one GODWIN ONYEDIRE, by shooting the said GODWIN ONYEDIRE and then striking him with the barrel of his gun while he lay on the ground. There were no eye witnesses to the shooting, but both the 2nd prosecution witness, the mother of the deceased, and the 3rd prosecution witness, who was a brother of the appellant and father of the deceased had, before the murder, seen the appellant holding a gun near the market; further, after hearing the gun shot, P. W. 2, who was nearby, looked in that direction and saw the appellant striking the deceased on the head with the barrel of his gun. The third prosecution witness ran out and witnessed the same incident. When the appellant saw them coming towards him, he dropped his gun, ran into the bush, and was not seen again in the district till his arrest some 13 months later, while he was awaiting trial on some other offence. Learned Counsel for the appellant has argued three grounds of appeal, the first of which reads as follows:–

“The appellant was prejudiced by the refusal of the learned trial Judge to grant him an adjournment for the purpose of calling Karimu of Abeokuta in support of his defence of (a) alibi and (b) insanity.”

The facts relating to this ground are that the appellant during the Prelimi-nary Investigations had stated that he did not have any witnesses to call at his trial. At his trial he was represented by learned Counsel, and it came out for the first time, during his examination-in-Chief, that his defence was that he was away at Abeokuta at the material time and for some time afterwards. He deposed in cross-examination that during this period he was staying with one man by name Karimu. After his cross-examination the recorded notes of the trial Judge read thus:-

Nedd says that accused says he wishes to call Karimu as a defence wit-ness. He concedes that the accused did not mention his name to the police; he told the Magistrate that he did not intend to call witnesses, and has made no application for any process to obtain the witness. In these circumstances the trial cannot now be adjourned to obtain a witness whose evidence has never been mentioned before. “No defence witness”.

Mr. Cole, for the appellant, has urged that by virtue of s.186 (1) of the Criminal Procedure Ordinance, there was a duty placed on the trial Judge in such circumstances as this to have issued a Summons for Karimu to give evi-dence as he was a person likely to give material evidence. The section reads as follows:-

(1)          If the court is satisfied that any person is likely to give material evidence for the prosecution or for the defence the court may issue a summons for such person requiring him to attend, at a time and place to be mentioned therein, before the court to give evidence respecting the case and to bring with him any specified documents or things and any other documents or things relating thereto which may be in his possession or power or under his control.

This section gives the trial Judge a discretion in the matter, but the exercise of that discretion did not arise in the present case. What the trial Judge did was to refuse to grant an adjournment to enable the defence, at that late stage to call Karimu as a witness, and the question here is whether he was justified in so doing. The two cases to which our attention was drawn-to wit:- Rex v. Modem and Inyang, 12 W.A.C.A. 224 and Shorunke v. the King (1946) A.C. 316 – can clearly be differentiated from the case on appeal before us. In the former the appellant at the preliminary inquiry informed the Magistrate that he wished to call three witnesses at his trial but refused to disclose their names. At his trial he stated in the course of his evidence that he wished to call two witnesses, but Counsel closed his case without calling any witnesses. The report then reads that:–

The learned trial Judge refers at length to this aspect of the trial and after rehearsing previous personal experience in regard to the “utterly worthless” evidence of “most” witnesses called by accused persons, came to the conclusion that the witnesses in this case were not called by Counsel because “they probably had no-thing relevant to say.”

In the case of Shorunke v. The King their Lordships expressed the view that it was not within the province of the trial Judge in determining whether or not he should allow witnesses to be summoned on behalf of the accused, to take into consideration the probability of the witness being able to give material evidence, though their Lordships added that “in any case the Court can always protect itself by issuing process, but if convinced that the lateness of the application is not due to mistake or justified reason it can refuse to adjourn the trial.”

As I have said, nothing has been put forward as showing that the trial Judge in refusing to adjourn the trial exercised his discretion wrongly, or, to put it in the words of their Lordships in Shorunke v. The King, it has not been shown that the lateness of the application made to the trial Judge for adjournment was due to any mistake or justified reason.

There was no substance in this ground of appeal, or in the second ground which stands or falls by the first ground. The third ground, which deals with the facts of the case, is also without substance as there was abundant evidence, in the evidence of the 2nd and 3rd prosecution witnesses, who saw the appellant striking the deceased on the head with the barrel of his gun, and of the 4th prosecution witness who saw the appellant running away pursued by the 3rd prosecution witness, to justify the conviction.

Other Citation: (1961) LCN/0892(SC)