Rex V. Jonathan Adebanjo & Ors (1935)
LawGlobal Hub Judgment Report – West African Court of Appeal
Conspiracy to kill—unlawful incitement to kill—unlawful attempt Appealto prOcUre preparation of juju medicine—unlawful failure to from prevent commission of a crimequestion of Crown calling a Conviction relevant but possibly hostile witness—presumption that Judge – by Highsitting as Judge and Jury correctly directs himself in law— Court. degree of evidence necessary to support convietion—previOus statements by Crown Witnesses not privileged—Effect of knowledge of additional evidence during course of Appeal—Convictions quashed.
The facts of this ease are sufficiently set out in the judgment.
0. Alakija for 1st and 5th Appellants.
2nd and 3rd Appellants in person.
0. Moore for 4th, 6th, 8th and 9th Appellants. E. A.- Akerele for 7th Appellant.
A. Akiwumi for 10th Appellant.
W. Wells-Palmer for 11th Appellant.
A.’ R. W. Sayle for Crown.
The following judgment was delivered :— AITKEN, J.
In this ease all the accused were charged with having, on fivers days between the let of January, 1934, and the 20th of October, 1934, in the Province of Ijebu Ode, conspired together s.ad with other persons unknown to kill Daniel Adesanya the Awujale of Ijebu Ode contra. to section 324 of the Criminal Code.
The 10th accused George Oluthile, the Olisa of Ijebu Ode, was also charged with having, between the 1st of July, 1934, and the 20th of October, 1934, at Ijebu Ode in the Province of Ijebu Ode, unlawfully incited Itaji the Agbon of Ijebu Ode, Ogunade the Apebi of Ijebu Ode and Asani the Kakanfo of Ijebu Ode, to kill Daniel Adesanya the Awujale of Ijebu Ode contra. to section 513 of the Criminal Code.
The 11th accused Theophilus Adenuga Tunwashe (alias Folagbade) was also charged with having, in or about the month of July, 1934, in the Province of Ijebu Ode, unlawfully attempted to procure Ajiboye to prepare juju medicine for the purpose of killing Daniel Adesanya the Awujale of Ijebu Ode contra. to section 513 of the Criminal Code.
The 11th accused Theophilus Adenuga Tunwashe (alias Folagbade) was further charged with having, between the months of May and October, 1934, although he knew that Jonathan Adebanjo (the 1st accused) and Belo Taiwo (the 2nd accused) designed to kill Daniel Adesanya, the Awujale of Ijebu Ode, failed to use all reasonable means to preyent the commission of that crime contra. to section 515 of the Criminal Code.
It will be observed that the wording of the second of these charges is not in accordance with the wording of the section under which it is laid, and it must be assumed that the difference is deliberate because the third charge, which is also laid under the same section 513, follows strictly the language that section employs. When we come to consider the conviction of the 10th accused on this second charge we will have to deal with the question of the variation in language between charge and section.
The 11th accused were duly committed for trial on these charges, and the trial itself took place before Brooke, J., the Protectorate High Court Judge, at Ijebu Ode. It lasted from the 1st to the 15th February, 1934, inclusive, and on the 18th of that month the learned Judge read a considered judgment convicting all the accused except No. 10 on the first charge of conspiracy, and convicting No. 10 accused on the second charge of incitement to kill, and convicting No. 11 accused on the third and fourth charges of attempting to procure the killing of the Awujale by juju medicine and neglecting to prevent the commission of the intended crime of killing the Awujale. All the accused applied for, and were granted, leave to appeal against their convictions, but before we proceed to deal with those appeals it is necessary to refer to certain historical events at Ijebu Ode as they appear in the record before us, which form a back ground, so to speak, to the legal drama of the trial and conviction of the accused.
Theophilus Adenuga Tunwashe (alias Folagbade), the 11th accused, was formerly the Awujale of Ijebu-Ode, but was deposed by the Governor, apparently sometime towards the end of the year
1928, and banished from the Province of Ijebu Ode =and the territories adjacent thereto by an Order of the Governor dated the 28th of January, 1929. He was succeeded in the chieftainship by one Ogunaike, who lived for only a short time after his appointment, and it seems that the position was again vacant in the year 1932. On the death of Ogunaike there was evidently a strong party in Ijebu. Ode Who desired to see the 11th accused restored to his former position, and prominent amongst those who worked for his restoration was a certain Yesufu Idumota Adebanjo. The Governor, however, was adamant in his refusal to allow the 11th accused to be restored, and eventually the present Awujale Daniel Adesanya was duly elected, though not without difficulty, and recognised by the Governor in a plain speaking oration delivered at Ijebu Ode on the 10th of November, 1933. –Unfortunately faction flourishes in West Africa just as elsewhere, and there can be no doubt that the present Awujale succeeded to a troubled heritage. Though open opposition was probably crushed, latent opposition remained; and the usual product of latent opposition in West Africa is intrigue.
To return for a moment to the 11th accused, when he was banished from Ijebu Ode and the adjacent territories he seems to have gone to Ilorin, which is a Yoruba town though situate in the Northern Provinces. So far as we are aware his conduct from the time of his banishment up to the end of the ,year 1933 gave rise to no complaints, though it seems clear_ that he never abandoned the hope that he would be allowed to return to Ijebu Ode at sometime or other, and possibly in his former rank and position as Awujale. What happened between the 1st of January and the 20th of October, 1934, formed the subject matter of the trial of the accused and will be dealt with at considerable length in this judgment; but at noon on the latter date the Yesufu Idumota Adebanjo we have already mentioned shot the Awujale in the presence of hundreds, if not thousands, of people during an official visit of the Lieutenant-Governor of the Southern Provinces to Ijebu Ode, and severely wounded him. It is easy to imagine the dismay and consternation that dastardly crime must have caused amongst the supporters of the Awujale and the exultation it probably caused amongst the more unscrupulous of his opponents. Assuming that the attempted assassination was the result of a conspiracy against the. Awujale, it would be placing too high an estimate on human nature in Ijebu Ode to expect people to come forward at once and accuse the conspirators; but as soon as it became known that medical science had saved the Aw-ujale’s life, then the righteous anger of his supporters and, indeed, of all decent people at Ijebu Ode, would create an atmosphere favourable to false informers and over-zealous partisans. Such, in point of fact, was the situation that arose, and the dangers of that situation aTe sufficiently manifest to need no elaboration on our part. On the 14th of November, 1934, the would-be assassin Yesufu Idumota Adebanjo, having been duly convicted of the crime of attempted murder, was
sentenced to fourteen years imprisonment with hard labour. His appeal against that conviction and sentence was dismissed on the 28th of January, 1935, and in the meantime, that is, during the period 29th December, 1934 to the 5th of January, 1935, the preliminary investigation into these charges had been commenced and concluded. As we have already mentioned the trial of the 11th accused on these charges before the learned High Court Judge began on the 1st of February, 1935, and at the very outset an incident occurred which has led to much argument before us and appears to call for our careful consideration; we are here referring to Sir William Geary’s application, which was agreed to by Crown Counsel, that Yesufu Idumota Adebanjo should be called as a witness for the prosecution although he was known to be adverse to the case put forward by the Crown and had not been called as a witness at the preliminary investigation. The circumstances in which Sir William Geary made his application are as follows : —On the 29th of January, 1935, Sir William Geary wrote to the Chief Secretary to ask whether the Crown intended to call Yesufu Idumota Adebanjo as a witness for the prosecution. If not, might he (Sir William Geary) be allowed to visit and speak with Idumota in prison in the interests of his client the 11th accused. In reply to this letter he received a telephone message next day from the Chief Secretary informing him that the Superintendent of Prisons had been instructed to allow him to see Idumota if he so desired. This message was confirmed by a letter from the Chief Secretary dated the 31st of ‘January, 1935, which further stated that the question of calling Idumota as a witness had been left to Mr. Brace, Crown Counsel, who had already proceeded to Ijebu Ode, but that the Attorney-General did not think that Mr. Brace would call him. On the same 31st of January Sir William Geary not only interviewed Idumota at the prison at Lagos and took a statement from him, but also replied to the Chief Secretary’s letter of even date, demanding that Mr. Brace should put Idumota in the box at the earliest opportunity, otherwise there would be a denial of justice. He concluded this letter with a request that it should be produced at the trial and that request was acceded to.
It was in these circumstances that Sir William Geary, as counsel for the 11th accused, applied at the very outset of the trial that Idumota should be called as a Crown witness, and since he based his application on the case of Rex v. Harris (1927) 2 K.B. p. 587, we have decided to examine that case in extenso. The facts therein may be stated thus : —
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the Recorder at Liverpool. Two of them, J. W. Benton anC. K. Meagher, were charged with stealing a quantity of goods, and the other three prisoners, who were all women, were charged with receiving those goods knowing them to have been stolen. Bentor, and Meagher pleaded guilty to the charge of stealing, but Dore
Harris and the other two women charged with receiving pleaded not guilty and the case against them proceeded whilst Benton and Meagher, not having been sentenced, remained in the dock.
Evidence was led on the part of the prosecution which undoubtedly established a prima facie case against the three women, whereupon each of them went into the witness box and gave evidence to the effect that they had bought the goods not knowing them to have been stolen. They were cross-examined by counsel on behalf of the prosecution, and that concluded the case both for the prosecution and the defence.
At that late stage the recorder invited the prisoner Benton to give evidence, and when the latter agreed to do so the learned recorder remarked : ” I think it is more satisfactory we should ” hear the boy on the subject.. The prosecution, as is usual in. ” these cases, do not call him. I think we might as well. I do ” not know what he is going to say, but I have some idea “.
The prisoner Benton then went from the dock to the witness box and gave evidence which made the case against Dora Harris much stronger than it was before. Counsel for Dora Harris was allowed to cross-examine him, but she was not asked whether she would like to go back to the witness box to give further evidence, nor was she given any other opportunity of contradicting Benton’s evidence. Upon the conclusion of his evidence the recorder was of opinion that there was no case against one of the women charged with receiving, and accordingly directed the jury to return a verdict of not guilty against her. Counsel for Dora Harris then addressed the jury, the recorder summed-up, and eventually Dora Harris was convicted and sentenced to fifteen months imprisonment with hard labour.
From this conviction she appealed on two grounds, and on two grounds only :—
- That the learned recorder acted wrongly and irregularly in calling a co-prisoner as a witness after the case for the defence had been closed, and
- That the learned recorder had failed to give the jury the appropriate warning as to the danger of acting upon the uncorroborated evidence of an accomplice.
Both these grounds were argued before the Court of Criminal Appeal consisting of Lord Hewart, C.J., Avory and Salter, JJ., the first at much greater length than the second ; and during the argument on the first ground Lord Hewart made the remark on which Sir William Geary relied and on which, apparently, Mr. Brace acted though Sir William Geary’s allegation that otherwise there would be a denial of justice may have affected his mind.