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11TH NOVEMBER, 1960.

F.S.C. 133/1960

3PLR/1960/8 (SC)



SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided and Read the Judgment of the Court)







CHIEF F. R. A. WILLIAMS Q. C. (with him E. B. CRAIG) -for the Appellant.

  1. O. EBOH, Senior Crown Counsel, – for the Crown.



CRIMINAL LAW AND PROCEDURE – Witnesses – Trial Judge calling witnesses – Section 200, Criminal Procedure Ordinance – Principles applicable.





ADEMOLA, C.J.F. (Delivering the Judgment of the Court):

The appellant was tried with another, one Ladejo by name, in the High Court at lbadan before Quashie-Idun, J., (as he then was) on a charge of stealing the sum of £2,725-3s-9d, property of his employers, Barclays Bank, D.C.O. At one point during the trial, the learned Senior Crown Counsel offered no further evidence against the said Ladejo, who was thereupon discharged. The case proceeded against the appellant, who was later convicted and sentenced to a term of 5 years imprisonment with hard labour. He has now appealed against the conviction.

On 17th June, 1960, we heard his appeal. There was no appearance by the appellant, although he was served with hearing notice, nor was he rep­resented. The learned Senior Crown Counsel who appeared for the Crown had little to say in favour of the appellant and after considering his appeal, it was dismissed.

The appellant later brought it to the notice of the Court that owing to the fact that he had been transferred from one prison to another, he only re­ceived the hearing notice at llesha prison the day before the hearing of the appeal and had not the time to contact his Counsel who had been briefed to argue his appeal. On ascertaining the truth of his complaint, his appeal was reopened and when it came up for hearing on the 21st October, 1960, Chief Rotimi Williams, Q.C., appeared with Mr. Craig for the appellant.

For the purpose of this appeal it seems unnecessary to state the whole facts in the case. Suffice it to say that the appellant, who was a bank cashier, was found short of the amount of £2,725-3s-9d when his cash box, which had previously been checked with his books by Ladejo and found correct, was taken out of the strong room opened with duplicate keys and checked by the accountant in the presence of witnesses. The appellant had previously absented himself from work under the pretence that he was ill and could not be contacted. He and Ladejo were later arrested and prosecuted for stealing the amount.

The original grounds of appeal filed are as follows:­

  1. That the learned trial Judge erred in law in calling the second ac­cused to give evidence against the appellant.
  2. That the Judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence.

At the hearing of the appeal, leave was sought and granted to argue ad­ditional grounds filed by Chief Rotimi Williams. They are as follows:­

  1. The procedure adopted at the trial is irregular in that the witness Samuel Olayiwola Ladejo was called by the Court at the end of the case for the prosecution for the purpose of being examined by the learned Counsel for the prosecution and in order to rebut statement made by the appellant in Exhibit “F.”
  2. The learned trial Judge was wrong on the facts in failing to ob­serve that the witness Ladejo may well have been guilty of steal­ing the money either alone or in conjunction with the appellant.
  3. The learned trial Judge erred on the facts in accepting the evi­dence of Ladejo to the effect that when the cash box was opened on 29th April, 1959, its contents were arranged as he (Ladejo) had found them on the 17th April.

Ground 2 of the original grounds was argued with Grounds 2 and 3 of the additional grounds. Counsel argued that from the facts before the learned trial Judge, it was possible for Ladejo to have stolen the money sol­ely or for Ladejo and the appellant together to have stolen the money. The facts of the case did not, in my view, support the view that Ladejo could have stolen the money solely because the appellant himself in his statement to the Police stated that he was present when Ladejo checked the money with his books, and there is no evidence on record that the opportunity was available for Ladejo to have had access to the money thereafter.


With regard to the alternative, namely that Ladejo and the appellant both stole the money together, it would, if this were so, make no difference to the guilt of the appellant, and therefore the point was not worthy of our consideration.


It is the first ground of appeal as well as the first additional ground of ap­peal that we are really concerned with. Events which led to this ground of ap­peal may be shortly mentioned here. It would appear that after some of the witnesses for the Crown had given evidence, the learned Crown Counsel, either of his own volition or having been prompted by the learned Judge, of­fered no further evidence against Ladejo who was promptly discharged. More witnesses were called by the Crown, and it appeared that after the last witness for the Crown had been called, the learned Judge himself, purport­ing to act under section 200 of the Criminal Procedure Ordinance, decided Ladejo should be called to give evidence. He recorded as follows:


In view of the statement of the defendant (Exhibit “E”), 1 think it is necessary to call Samuel Ladejo, who was the 2nd de­fendant and who was discharged yesterday. I issue a subpoena on him to come and give evidence.


It would appear the Court adjourned for a few minutes and Ladejo was produced. Mr. Craig, for the present appellant in the Court below, objected to Ladejo giving evidence. His ground of objection was that Ladejo was once charged with the appellant. The learned Judge overruled this objec­tion, saying that he was covered by section 200 of the Criminal Procedure Ordinance.


Thereupon Ladejo was, in accordance with the learned Judge’s notes, examined by the learned Crown Counsel. After the examination, Mr. Craig was allowed to cross-examine him, and later the Judge himself put questions to the witness.


It is this procedure that has now been attacked by Chief Rotimi Wil­liams, Counsel for the appellant. We cannot but agree more with Counsel that the object of section 200 of the Criminal Procedure Ordinance is not for the trial Judge to help the Crown to make a case against an accused person. The section reads:


The Court at any stage of any trial, inquiry or other proceed­ings under this Ordinance, may call any person as a witness or re­call and re-examine any person already examined and the Court shall examine or recall and re-examine any such person if his evi­dence appears to the Court to be essential to the just decision of the case.


Where, however, the presiding Judge called a witness, neither the prosecution nor the defence is entitled to examine or cross-examine him without the leave of the Judge, which leave should be granted to any side to whom the evidence is adverse. Coulson v. Desborough (1894) 2 O.B. 316.


Although the learned trial Judge purported to have called the witness Ladejo as a witness called by the Court, he proceeded to treat him as a wit­ness called by the prosecution by allowing the learned Crown Counsel to examine him and Mr. Craig for the defence to cross-examine him. Nor can it be said in the present case that the Judge conformed with procedure whereby before the close of its case, the prosecution was allowed to call ad­ditional witnesses other than those on depositions. Such procedure is clearly not adopted in this case, and it is clear that the witness Ladejo was called as the Court’s witness by virtue of section 200 of the Criminal Procedure Ordi­nance.


We are clearly of the view that the course adopted by the learned trial Judge after calling the witness Ladejo constitutes a disregard for the princi­ple of law that the witness was the Court’s witness and he should be allowed to testify only in accordance with the principles laid down in Coulson v. De­sborough (supra).


It only remains to be considered whether this disregard of the witness’s position by the Judge and allowing him to be examined by the prosecution Counsel constitutes such a grave and substantial disregard of procedure as has caused a substantial miscarriage of justice.


In R. v. Thompson (1913) 9 Cr.Ap. Rep. 252, an appeal on an objection to an indictment on the ground of duplicity which was overruled in the Court below was dismissed on the ground that the appellant in the case was not em­barrassed or prejudiced by the error and the Court must act upon the proviso to section 4(1) of the Criminal Appeal Act, 1907-that there was no substantial miscarriage of justice.


In dismissing the appeal, the Court said (see page 266 of the Report):


One of the objects of section 4 was to prevent the quashing of a conviction upon a mere technicality which had caused no em­barrassment or prejudice. Whilst giving the right of appeal upon any wrong decision of any question of law, the object of the legis­lature was that justice should be done in spite of a wrong deci­sion, and that the court should not interfere if it came to the con­clusions that, notwithstanding the wrong decision, there had been no substantial miscarriage of justice. The court must always proceed with caution when it is of opinion that a wrong view of the law has been taken by the Judge presiding at the trial, but when it is apparent, and, indeed, undisputed, as it is and must be in this case, that no embarrassment or prejudice had in fact been suffered in consequence of the pleader having made the manifest error above mentioned, the court must act upon the proviso in this section of the Act.


See also Cohen and Bateman (1909), 2 Cr App. R. 197, and In Millet and Hanoman Ltd. (The Times, November 11th, 1958).


In the present case, it cannot be said that the examination by Counsel for the prosecution of the witness Ladejo called by the Court, went to the root of the case, when in fact the learned Judge at the same time allowed Counsel for the accused to cross-examine the witness after such examina­tion. On the facts of the case itself, it was apparent that the learned trial Judge could have arrived at the guilt of the appellant without the evidence of the witness Ladejo.


We are of the view that in this case the Court should not interfere with the verdict of the learned trial Judge despite the irregular procedure adopted by him. The appeal is dismissed.


ABBOTT, F.J.: I concur.


BRETT, F.J.: I concur:


UNSWORTH, F.J: I concur.


TAYLOR, F.J.: I concur.


Appeal Dismissed.

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