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F.S.C. 54/1963

1ST JULY, 1963.

3PLR/1963/108 (FSC)





SIR LIONEL BRETT, AG. C.J.F. (Presided and Read the Judgment of the Court)





APPEAL – Trial court refusing cross-examination on bad character of accused testifying against co-accused – Whether appellate court will set aside the decision.

CRIMINAL LAW AND PROCEDURE-Accused person testifying against co-accused – Cross-examination of as to bad character – Where disallowed by judge – Effect.

CRIMINAL LAW AND PROCEDURE – Accused person testifying against co-accused – Cross-examination of as to bad character – Whether permissible.

EVIDENCE – Bad character of accused – When evidence allowed to be given thereof – Principles applicable.

PRACTICE AND PROCEDURE – EVIDENCE – Evidence Act, 5.159 d(iii) – Whether accused person called as a witness can be cross-examined as to his bad character as of right.



J.A. Cole -for the Appellant.

F.O. Nwokedi, Senior Crown Counsel (with him, Miss F.O. Ayalogu) -for the Respondent.

BRETT, AG. C.J.F. (Delivering the Judgment of the Court): The appellant and one Stephen Nwosu were charged jointly on an information containing six counts for conspiracy, fraudulent false accounting and stealing by clerks and servants, and the case for the prosecution was that these offences were committed in fraud of the Oratta Rural District Council, by which the appellant was at the material time employed as treasurer and Stephen Nwosu as storekeeper. The charges related to three pay-sheets made out by Stephen Nwosu, in each of which the net amount shown as due was substantially larger than the sum of the individual items. These pay-sheets were signed by the appellant as officer controlling expenditure and the totals shown as due were paid out from the treasury. Stephen Nwosu signed as paying officer and thus certified that the employees had been paid the sums due, but he never reported or accounted for any surplus. As regards the guilty knowledge of the appellant, particular importance was attached to one pay­sheet, Exhibit 15, which contained only seven items, making a total of £54­ 1s-9d. The net sum shown as due on the pay-sheet was £69-1s-9d, and the most cursory examination would have shown that this was too much.


Counsel representing the appellant in the High Court made no submission that there was no case to answer, and the appellant gave evidence, in which he said that he had been appointed to act as treasurer with no previous experience or training in the work, that he was overworked, and that he signed the pay-sheets in good faith without having examined them to see if the totals had been added up correctly. He admitted negligence but not fraud. While the evidence of fraud was purely circumstantial, it was essentially a question of fact whether, having heard this explanation, the judge was satisfied of the appellant’s guilt, and if the evidence had rested there it would be impossible to hold that the conviction was unreasonable or could not be supported having regard to the evidence.


However, Stephen Nwosu elected to give evidence, and he testified that he had falsified the totals shown on the pay-sheets on the instructions of the appellant, and that the appellant had in each case paid him the correct sum due as wages and kept the difference between that sum and the sum drawn from the treasury. In cross-examination on behalf of the appellant he admitted that he had inflated vouchers for the appellant’s predecessor. Counsel for the appellant later applied for permission to put questions to show previous convictions and bad character of the witness, but the judge disallowed them. In cross-examination on behalf of the prosecution Stephen Nwosu repeated that he had inflated vouchers for the appellant’s predecessor, and added that the appellant’s predecessor had been convicted for it. The Judge accepted the evidence of Stephen Nwosu against the appellant and held, quite correctly, that it was corroborated by the circumstantial evidence in the case. He expressed the view that Stephen Nwosu was merely a subordinate who could not demand any reward from the appellant for his part in the fraud but “could only do as he was told and hope for the best”.


One of the grounds of appeal is that Stephen Nwosu had previously been convicted twice of frauds of this kind, and that the Judge was wrong not to have allowed him to be cross-examined as to his previous convictions and character. There is substance in the submission as to the Judge’s ruling and at least one previous conviction is admitted by the prosecution. Section 159 of the Evidence Ordinance makes an accused person a competent witness for the defence on his own application, subject to certain provisos designed for his protection. Proviso (d) lays down that a person called as witness in pursuance of the section shall not be asked, and if asked, shall not be required to answer, any question tending to show that he had committed or been convicted of or been charged with any offence other than that wherewith he is then charged except in certain specified circumstances of which (iii) is that “he has given evidence against any other person charged with the same offence.” The whole of section 159 of the Evidence Ordinance is based on section I of the Criminal Evidence Act, 1898, and proviso (d) to section 159 of the Ordinance reproduces the exact wording of proviso (f) to section I of the Act. The Court of Criminal Appeal in England held in R. v. Ellis and Ellis [1961] 1 W.L.R. 1064, that where an accused person giving evidence had made himself liable to cross-examination as to his character or convic­tions under exception (iii) by giving evidence against another person charged with the same offence the judge had no overriding discretion to allow or disallow such cross-examination and it might be put as a matter of right. This Court is of the view that the same interpretation should be given to the corresponding provision of the Evidence Ordinance, and it follows that the trial judge was wrong to disallow the questions which counsel for the appellant wished to put to Stephen Nwosu.


It is submitted on behalf of the Crown that even if this is so there was ample evidence apart from that of Stephen Nwosu to justify the conviction of the appellant, and that since the judge was aware that Stephen Nwosu had been convicted in another case, as appears from a note made when the hearing was put off from the 14th September, 1962, to the 10th October, and had heard him admitting that he had inflated vouchers for the appellant’s predecessor, the cross-examination which he disallowed could not have seriously affected the judge’s view as to the witness’s credit. The judge should certainly have had no illusions about the general honesty of the witness, and if the cross-examination had been intended merely to destroy the witness’s credit by injuring his character there would be some force in this submission, but although this Court has not even now been supplied with exact particu­lars of the questions which it was proposed to put to the witness it appears that his previous convictions related to frauds of precisely the same kind as those in this case, which being so the cross-examination might, for all this Court can say to the contrary, have shown that the picture which he presented of himself as the mere cat’s paw, lending himself to the frauds of his superiors and getting nothing in return for it, was a completely false one, and the appellant’s story that he acted in good faith might then have appeared less improbable. It is the view of this Court that, in the well-known words used in R. e. Cohen and Bateman, 2 Cr. App. R. 197 “there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted”. The chance may in this case have been a slight one, but the Court cannot say that no chance existed, and the appeal is allowed. The conviction and sentence are set aside and judgment and verdict of acquittal are entered.


TAYLOR, F.J.: I concur.


BAIRAMIAN, F.J.: I concur.


Appeal Allowed.


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