Rex V. Kelfalla & Ors (1939)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law and Procedure—Witnesses on depositions—Should Appeals from be called by prosecution for crosss-examination–Evidence of conviction accomplice—Corroboration of.by Court. Cir suit
Held : 1. Witnesses who have given evidence at the preliminary investigation must be called at the trial for cross-examination by the defence : it is improper merely to offer them as witnesses for the defence. [Rex versus Chipi Chigeri 3 W.A.C.A. 201 followed].
2. Where the trial Judge expressed the view that a Crown witness is an accomplice and requires corroboration, a conviction cannot be sustained on the evidence of that witness if in fact it was uncorroborated.
There is no need to set out the facts.
E. S. Beoku-Betts for Crown.
R. B. Marke (with him C. E. Wright) for Appellants. The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST
AND GRAHAM PAUL, J.
In this case the five Appellants were convicted by Lane Ag. C.J. sitting with Assessors in the Circuit Court of the Protectorate of Sierra Leone of the murder of an unknown man near Giehun on the 11th April, 1938.
Shortly the facts alleged by the Prosecution are as follows :—
A stranger whose identity has not been discovered came to a place called Lalehun. He passed through Lalehun and the same evening he was murdered at or near the farm but of one Damanya near Giehun. The murder, it is alleged, was committed’ at twilight and the fact of the murder was reported to the Paramount Chief of the District, Jo Kwi, at Lalehun the same night. The suggestion of the prosecution is that the murder was organised by that Chief himself. Chief Jo Kwi however was not charged with any complicity in the murder and was a witness for the Crown at the preliminary investigation.
After the report had been made to the Chief the Crown
L.;ase is that the Chief ordered that the body be buried and the day after the murder was committed a party went to the spot and buried the body in a place where (according to the Assessors who sat on the case in the Court below) it was not +n accordance with native law and custom to bury the body of an unknown stranger.
The motive suggested for the murder was that it was a cannibalistic ritual murder and that mutilation was done on that account.
The case for the defence was that the evidence of the witnesses for the prosecution was a tissue of lies concocted for the purpose of getting the Paramount Chief and his subordinate into trouble. The first and second accused are Sub-Chiefs under the Paramount Chief Jo Kwi. The third accused is a messenger of the Paramount Chief. The fifth accused is a servant of the Paramount Chief. The fourth accused is a farmer and trader living at Panguma, the headquarters of the Paramount Chief.
All five accused have appealed to this Court against their convictions on grounds both of fact and law. There are only two grounds of appeal with which it is necessary to deal.
One is that added as No. 5 by leave of the Court at the hearing of the appeal namely :—
That the learned Trial Judge acted wrongly and improperly in allowing the Prosecution not to call and give evidence for the prosecution three of the witnesses for the prosecution who had given evidence in the preliminary Investigation “.
The incident referred to is recorded thus :—
” Bodley—Not calling Aruna Mendia, Algina, Jo Kwi ; Offered to defence to call as witnesses not for cross-examination.
Marke objects and says the witnesses should be produced for examination.
Bodley—This is the right procedure followed here. Prosecution
witnesses should be offered to defence—not for cross-examination “.
” I do this now. Eg. R. v. Vandi Gbou fr ors. My witnesses are here. Arch. p. 505—R. v. Woodhead, R. v. Cassidy.
Order—I hold that the witnesses need not be offered for cross-
examination but merely produced to be called by defence if desired “.
The question of the proper procedure to be followed when the Prosecution does not consider it necessary or desirable to call one or more of the witnesse3 on the depositions was considered by the West African Court of Appeal in the case of Rex v. chip’ Chigeri (3 W.A.C.A. 201). 1 he conclusion arrived at was that the usual and proper practice was that set out at 9 Halsbury (2nd Edn.) p 232 as follows :-
” All the witnesses whose names are on the back of the indictment should be called by the prosecution. Even if it is not proposed to call a witness whose name is at the back of the indictment, counsel for the prosecution should, unless there are reasons to the contrary, place him in the witness-box so that the defendant may have an opportunity of cross-examining him “.
We now endorse the opinion then expressed and state that it is intended as a guide to all Courts to which an appeal lies to this Court in order to resolve a doubt which is apparent on the face of the English decisions and text books. For instance in 1847 in the case of the Queen v. Barley (2 Cox Cr. Cas. 191) Chief Baron Pollock, after consulting Coleridge J. decided in favour of the viev, taken in the above quotation from Halsbury. On the other hand
in a number of other cases a contrary decision was given. The last of them which we have been able to find reported is Reg. v. Thompson in 1876 (13 Cox Cr. Cas. 181).
We opine that the reason there are no recent decisions on the point is that for many years now the practice as laid down in Halsbury has been followed in England, and we think it should be generally followed in British West Africa, subject to possible legislation to the contrary.
Unfortunately, owing to delays in printing, the Nigerian case of Rex v. Chipi Chigeri (supra) was not available in a convenient form as a guide to the Court below and counsel at the trial of this case, and was overlooked.
Consequently, although Counsel for the Defence claimed that the practice which that case declared to be usual and proper should be followed, he did so unsuccessfully and his contention was over-ruled.
The result iE that this Court has found itself in an exceedingly difficult position upon the hearing of this appeal. After careful consideration, however, we decided to put the appellants as nearly as possible in the same position as if the proper practice had been followed, by acceding to the appellants’ application to call Jo Kwi in this Court for cross-examination by Appellants’ counsel. His evidence was to the effect that he did not sleep at Lalehun on the night of the alleged murder nor was he there the evening before. The Crown did not attempt to show that he had ever said anything different from this. We then had to consider what might have been the effect on the Trial judge and Assessors if this evidence had been given before them.
The evidence, if true, tends to discredit the case for the prosecution. We don’t pretend to form an opinion whether it is true or not, and we find it impossible to say what effect it might have had upon the minds of the Judge and Assessors if it had been before them. It may be that it would have made no difference at all, on the other hand it is possible that it ould just have turned the scale against the convictions of the appellants. For this reason we feel compelled to quash the convictions.
The other ground of appeal of importance is numbered 1 and is that the verdict was against the weight of evidence. Under this heading Counsel for the appellants argued that the evidence against the appellants was that of accomplices only and since there was no corroboration, it would be unsafe to allow the convictions to stand. This submission could not be seriously supported in the case of the second appellant against whom the evidence, apart from that of accomplices, was abundant. But it needed careful consideration in the cases of the first, third, fourth and fifth appellants. In regard to the first, third and four appellants it is sufficient to say that we are satisfied that there was sufficient corroboration to make it unnecessary for the convictions to be
quashed on this ground. But the case of the fifth appellant was different. The evidence against him was that of Siaffa Mada, and it very definitely implicated him in the murder. In regard to this witness the learned Trial Judge recorded the following note of his summing up :—
” Siaffa Mada ?—Accomy lice—needs corroboration “.
It is an open question whether Siaffa Mada was or was not an accomplice and the Judge evidently thought it a proper precaution, upon the principle of giving an accused person the benefit of the doubt, to treat Siaffa Mada as an accomplice upon whose evidence it would be unsafe to convict unless it were corroborated. We think that the precaution was a wise and proper one. But in regard to the fifth appellant we can find no corroboration and Counsel for the Crown was unable to suggest any, indeed the only answer he made to this ground of appeal of the fifth appellant was to contend that Siaff a Mada was not an accomplice.
In the case of the fifth appellant there is therefore this further ground upon which we find it necessary to quash the conviction.
For the reasons given the appeals of all the appellants are allowed, the convictions and sentences are quashed and it is ordered that in each case a judgment and verdict of acquittal be entered.
The appellants are discharged.