Appeal Court.
14th May, 1940.
Failure to call an eye-witness
of the transaction not fatal to
conviction.
Appeal dismissed.
Held: It is a matter of severe
comment that an eye-witness of the
all-important transaction was not
called as a witness, but the
failure to do so is not fatal in
this case to the conviction.
There is no need to set out the
facts.
C. F. H. Benjamin (with him
K. A. Bossman) for
Appellant.
A. J. Ainley, Acting
Solicitor-General for Crown.
The following joint judgment was
delivered :-
KINGDON, C.J., NIGERIA, PETRIDES,
C.J., GOLD COAST AND GRAHAM PAUL,
C.J., SIERRA LEONE.
It is a matter of severe comment
that in the particular
circumstances of this case the man
Adamu was not called as a witness
for the prosecution; he was an
eye-witness of the all important
transaction and it was clearly the
duty of the prosecution to put
him into the witness-box. The
failure to call him, however, was
not made a subject of comment by
the defence in the trial Court or
of appeal in this Court, and we
are of opinion that it is not
fatal to the convictions.
The whole case turns purely on the
question of fact. Were the coins
which were subsequently found in
the possession of the first
witness for the prosecution, the
identical coins which were paid to
him by the appellant? In the trial
Court two out of the three
assessors gave their opinion that
the appellant was not guilty, the
third that the appellant was
guilty. The Judge agreed with the
third and convicted the accused.
There was ample evidence upon
which the Judge could so convict
more especially in that, if the
evidence of the Police Constable
Analena was, believed, the
appellant gave a different story
when first interviewed from that
which he gave in Court. The fact
that one of the prosecution
witnesses, the appellant's own
brother, gave evidence supporting
the appellant's case, does not
necessarily disprove the
prosecution. case as sworn to by
the other witnesses. We cannot
reverse the finding of the Trial
Judge and the appeal is dismissed.
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