pages.gif

The 10th accused George Olushile, 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 Raji 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 A wujale of Ijebu Ode contra. to section 513 of the Criminal Code.

The 11th accused Theophilus Adenuga Tunwashe (aliaoS 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 prevent 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. l0 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 (altOas Rolagbade), 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, IH29. 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 A wujale. ·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 Wl' 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 prob:1bly 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 Awujale'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 are 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 had labour. His appeal against that conviction and sentence was dismissed Oil the 28th of January, 1935, and in the meantime, that is, during the period 29th December, 1934 to the 5th of January, 19;16, the preliminary investigation into these charges had been commenced and concludee1. 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, If)35, 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 Adehanjo should be called as a witness for the prosecution although he was known to he 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 2f)th of January, 1935, Sir ·William Geary wrote to the Chief Secretary to ask whether the Crown intended to call Yesl1fu 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, 1 f)35, 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 3]st of January Sir "rilliam 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 t.11at 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 e.Ttr71SO. The facts therein may be stated thus:-

Dora Harris was tried together with four of her persons before the Recorder at Liverpool. Two of them, .J. 'V. Benton and 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. Benton and Meagher pleaded guilty to the charge of stealing, but Dora 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 satisfaction" we should " hear the boy on. the subject. The prosecution, as' is usual in " these cast's, do not call him. I think we might as well. I do " not know what he is going to say, but I have some ic1"ea ;'.

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:-

(1) 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

(2) 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 Gear;\' relied and on which, apparently, }Ir. Brace acted though Sir William Geary's allegation that otherwise there would he a denial of justice may have affected his mind. The dictum itself is unsupported by anything to be found in the judgment of the Court quashing Dora Harris' conviction, but anything emanating from so great an authority on the law as Lord Hewart deserves our most respectful consideration, so we must ask ourselves what he meant to convey when he said during the argument-" in civil cases the dispute is between the parties and " the judge merely keeps the ring, and the parties need not call " hostile witnesses, but in criminal cases the prosecution is bound " to call all the material witnesses before the Court, even though " they give inconsistent accounts, in order that the whole of the " facts may be before the jury".

Taken in their widest possible meaning these words can be read as laying down the proposition that the prosecution must call every person who knows, or says that he knows, anything material about a case, even though such persons give accounts utterly at variance and inconsistent with the story put forward by the prosecution. But it is sufficient to state that proposition to show that Lord Hewart cannot have intended to propound it, because if it is true then the defence in every case can compel the prosecution to call all the witnesses for the defence and so give itself the great advantage of being able to cross-examine its own witnesses. That, of course, would be absurd, and as all dicta must be read subject to the facts of the case in which they occur, we think that all Lord Hewart probably meant to convey was that where there is a material and available witness whom the defence, for good reason, do not wish to call, he should be called by the prosecution even though his account is not entirely consistent with the story put forward by the prosecution. Be that as it may, however, we feel confident that Lord Hewart's dictum has not altered the general rule of law whereby witnesses who support the case for the prosecution are called by the prosecution and cross-examined by the defence, and witnesses who support the case for the defence are called be the defence and cross-examined by the prosecution. In this case Idumota was not a witness on the back of the information, and was well known to be entirely advers9 to the story of a conspiracy put forward by the prosecution; in point of fact he had been subpoenaed to give evidence on behalf of the 7th accused and had been interviewed in prison on behalf of the 11th accused and given a statement to his counsel. Such being the circumstances we are clearly of opinion that Crown Counsel was under no obligation to call Idumota as a witness for the prosecution, and we are surprised to find Sir William Geary, with Idumota's statement in his pocket, backing his legal arguments founded on Lord Hewart's dictum with allegations that a denial of justice would be caused if the Crown did not accede to them. Although Idumota was called as a witness for the prosecution, the learned trial Judge treated his evidence as evidence given for the defence and in the very special circumstances of this case we think that he was justified in doing so. For the same reason we reject Mr. Wells-Palmer's ingenious argument that because the prosecution by his witnesses had put forward two entirely different versions of the facts, the accused were entitled at law to verdicts of acquittal on the conspiracy charge .. To hold in his favour on such a submission would be to exalt a mere technicality of no merit whatever above the claims of justice.

After this somewhat lengthy digression it will make for clearness if we re-state the judgment from which the 11 accused have appealed before we proceed to deal with the grounds on which their appeals are based. The learned Judge, sitting as both Judge and jury, convicted all the accused except No. 10 of conspiring to murder the Awujale of Ijebu-Ode; convicted No~ 10 accused of inciting certain named persons to kill the A wujale; and convicted No. 11 accused of attempting to procure the killing of the Awujale by juju medicine and of neglecting to prevent the killing of the Awujale designed by Nos. 1 and 2 accused. At the trial itself the first, second and third accused had not the advantage of counsel's assistance in making their defences, but we were fortunate in having the assistance of counsel on behalf of all the accused and the case was very fully argued throughout a period of seven days. Nevertheless, the only grounds of appeal argued were-

1. Misdirection in law,

2. Misreception of evidence, and

3. Verdicts against the weight of evidence.

A good deal was said on the first two grounds, but all the learned counsel engaged devoted by far the greater part of their arguments to the task of convincing us that the verdicts could not be supported by the evidence before us. In doing so we think that they were right, because the first two grounds of appeal do not appear to us to be substantial. They can be disposed of in a comparatively few words.

To take ground 1 first, we think it going altogether too far to demand that a Judge, sitting as both Judge and jury, should commence his judgment by directing himself as to the burden of proof, the doctrine of reasonable doubt, and the elements which constitute the offences with which the accused is, or are, charged. To our minds it must be presumed that a learned Judge, sitting as both Judge and jury, has directed himself aright in matters of law unless the contrary appears from his judgment. In this case no error in law appears anywhere in the learned Judge's judgment. so that the first ground of appeal fails.

The second ground of appeal also fails. It is true that the record discloses several irregularities in regard to the admission of documents in evidence before a proper foundation for their reception had been laid, but before the end of the case was reached every single document tendered in evidence by' the prosecution appears to have been adequately proved except three letters written by the 11th accused to Idumota in the year 1933. These were tendered in evidence by the prosecution, but withdrawn on objection being taken by the defence. Later on, when the 11th accused himself was giving evidence, they were put to him by his counsel Sir William Geary for explanation and so, apparently, received in evidence for or against him. In such circumstances it is hardly for the defence to complain, and though they were not strictly admissible in evidence they were perfectly innocent letters of no probative value whatever. They can therefore be disregarded, just as the learned trial Judge appears to have disregarded them, and we have been unable to find any oral evidence on the record which was inadmissible against one or more of the accused. As to the somewhat numerous irrelevant documents put in evidence by Sir William Geary, the prosecution never raised any objection to their admission in evidence so we do not feel called upon to deal with them. We thus come to the third ground of appeal, but before we can deal with it and the very important additional evidence we admitted during the hearing of these appeals, it is necessary to attempt some concise statement of the case put forward by the prosecution and the way it was met by the defence. This is no easy task to accomplish in view of the formidable mass of evidence supplied by forty-six witnesses for the prosecution, twelve for the defence, the eleven accused themselves, and approximately seventy documents. We must also deal with the case against the lath accused separately, but fortunately it is agreed by both parties, that is by both prosecution and defence, that if the evidence against the 11th accused fails to support the conspiracy charge against him, it fails to support the other two offences with which he was charged. We will therefore deal with the conspiracy charge first, and leave the much shorter case against the lath accused, that of having incited certain persons to kill the Awujale, to be dealt with later.

Now the case for the prosecution on the conspiracy charge may be summarised as follows :-In or about May, 1934, the 1st and 2nd accused approached an Ifa Priest named Ajiboye, who lives at Irolu in the Ijebu Ode Province, and asked him to make some medicine for them which would kill the Awujale and so help them to secure the return of the ex-Awujale, the 11 th accused. The 1st accused also read to him a letter to the same effect which, according to the 1st accused, had been written by the 11th accused. According to Ajiboye he refused to make any such medicine for them, though on the 29th of May. 1934, we find No. 1 accused writing a letter to No. 11 accused, which in point of fact was never proved to have reached the latter, to the effect that Ajiboye had given the 2nd accused something so effective that when the latter got a chance to use it " you will hear that fire has really caught them". Although Ajiboye is an illiterate the highly incriminating letter which the first accused is alleged to have read out to him was left in his possession. More than four months later, the exact date appears to have been the 11th of October, 1934, the 2nd and 3rd accused went to Ajiboye with a letter from the 1st accused, which was read to Ajiboye by a literate woman called Martha who was then staying with him as his patient. This letter, which was also left with Ajiboye, complained that so far there has been no results of all that he claimed to have done a complaint which cannot easily be reconciled with his statement in the witness box that he had refused to do anything at all for the ex-Awujale; and to propitiate the complainant (1st accused) Ajiboye admits that on this occasion he gave the 2nd and 3rd accused a non-poisonous black powder" for luck". Documentary evidence fixes the date of this letter and interview as being, in all probability, the 11th of October, 1934, for on that date we find the 1st accused writing to the 11th accused saying that the 2nd accused was going to Ajiboye that morning, and that he (the 1st accused) would give the 2nd accused a letter fo1' Ajihoye to that effect. Nine days later, on the 20th of October, 1934, Idumota made his attempt on the Awlijale's life, and three days after that the 2nd and 3rd accused visited Ajiboye and destroyed the two incriminating letters which had been left with him, Martha's literary services being required to pick them out from amongst the other letters and papers in Ajiboye's possession.

Now this evidence establishes a strong case against the 1st and 2nd accused, and a much weaker case against the 3rcl accused who was not present on the first occasion when Ajiboye was asked to do something to kill the Awujale. 1Ve are agreed that Ajiboye must be regarded as an accomplice-a consideration which appears to have escaped the notice of the learned trial Judge, That his evidence was corroborated by Martha, and the letters of the lst accused, which are in evidence, leave no doubt in our minds that Ajiboye had been approached to do something to help the cause of the ex-Awujale and had not been so approached in vain. His evidence, however, presents two difficulties: -in the 'first place under cross-examination by the 1st accused he appears to have gone back on his evidence in chief and stated that what he was asked to do was " to make medicine to make a11 well for the ex-A wujale to return", and in the second place his statement, in re-examination, that 1st accused told him that the 11th accused was the writer of the first destroyed letter, though evidence against the lst accused is not evidence to prove that the 11th accused did, in fact, write that letter, nor does the evidence of Martha, who states that thiii first destroyed letter was signed " amongst other names by Adenuga" (one of the names of the 11th accused), serve to bring home the letter to him since she could not say whether the letter or the signature" Adenuga " were in his had writing. It is, of course, somewhat unlikely that a man like the 11th accused would be writing so dangerous and incriminating a letter as the one under discussion to a man like Ajiboye, but setting that aside we rather think that the learned trial Judge accepted Aiiboye's and Martha's evidence as proving that the 11th accused either wrote that letter himself or signed it amongst others, whereas their evidence does not amount to that. The learned Solicitor-General argued before us that this destroyed letter and the damaging letter written by the 1st accused to the 11th accused on the 29th of May, 1934, were evidence against the 11th accused because of the nexus of the conspiracy between the 11th accused and the 1st, 2nd and 3rd accused. that would undoubtedly be so, could the 11th accused's connection with the conspiracy be established aliunde; but seeing that the only evidence to connect him with the conspiracy consists of the correspondence between him and the 1st accused, the ordinary rules of proof apply to all that correspondence before it can be relied on to establish the necessary connection. To set out all the admissible letter, and the few relevant entries in the 11th accused's diary, in full, would be to extend this already lengthy judgment to inordinate length. It must suffice to say that after three most careful examinations of every detail of it, we have all come to the conclusion that it falls short of establishing the necessary connection between the 11th accused and the 1st, 2nd and 3rd accused in regard to what we may call the Ajiboye conspiracy, and contains nothing to establish any connection between the 11th accused and the other accused in regard to the alleged later conspiracy to get Idumota to shoot the Awujale. It may be remarked, in passing, that we are in as good as a position to weigh the documentary evidence as the learned trial Judge himself. It is also to be observed that in his judgment the learned trial Judge states that " the 1st, 2nd and 3rd accused went to Ajiboye with the message to obtain the assistance of this witness and thereby entered the conspiracy". Here he was definitely wrong in fact,. since Ajiboye only mentions the 1st, and 2nd accused as having visited him on that occasion. The net result of our examination into the case for the prosecution so far is this: -that tile prosecution has failed altogether to connect the 11th accused with any conspiracy to kill the Awujale, but that a strong case has been made out against the 1st and 2nd accused, if Ajiboye's evidence can be accepted as proving an intent to kill, and a much weaker case has been made out against the 3rd accused, which is further weakened by the learned Judge's faulty recollection of the evidence against him.

Apart from the evidence led to show that., on the 6th of November, 1934, the 7th accused visited Ajiboye and warned him to say nothing to the police who were then busy making enquiries, there is nothing whatever in the evidence to connect the 4th, 5th, 6th, 7th, 8th and 9th accused with the Ajiboye conspiracy. It was therefore necessary to connect them with some other plot to kill the Awujale, and this was done by adducing evidence to show that a meeting of conspirators took place at Idumot.a's house on the night before the Awujale was shot by the latter, and to show that. at that meeting words were spoken which conclusively involved all the conspirators present in the guilt of airing and sustaining Idumota in his enterprise of killing the Awujale. The fullest account of this meeting, and the only account of its object and the incriminating words spoken thereat, comes from the witness Ajatu who is a wife of Idumota. But she is corroborated in a greater or lesser degree by no fewer than seven witnesses, including her own two infant children, as to the presence of some one or more of the accused in Idumota's house during the evening or night of the 19th of October, 1934. The most important of those witnesses was the soothsayer Salami Balogun, who states that he was called to the meeting by the 5th accused, and then told to " consult the oracle" about something they intended to do the nature of which was not disclosed to him. The result of all this evidence may be tabulated as follows, the" direct witnesses" being those who either saw one or more accused in Idumota's house or entering into it, and the " indirect witnesses" being those who saw one or more of the accused in the neighbourhood of his house on the evening in question, thus:-

Direct Witnesses. Indirect Witnesses.

1st accused 6

2nd accused 2

3rd accused Ajatu only

4th accused 2

5th accused 2

6th accused 5

7th accused 5

8th accused 3 1

9th accused 3 1

In addition to these witnesses there was a certain Saibu Sambo who swore that 1st accused actually accompanied Idumota to the Awujale's Palace, where the shooting took place, on the morning of the 20th of October, 1934; there was another witness who swore that he saw the 5th accused and Idumota exchanging signals in the yard of the Awujale's Palace shortly before the latter shot the Awujale; there were two witnesses who swore that they heard No.4 accused exclaim in the street, shortly after the Awujale had been shot, " he is a crazy man, he was told to hit him (i.e. the Awujale) in the chest"; there were three witnesses who purported to recognise the pistol used by Idumota as one that belonged to the 7th accused, awl finally there Were two witnesses who swore that they heard that 7th accused remark "something tragic has occurred" some three minutes or so before it became known what the gun shot really portended. It will thus be seen that, assuming the witnesses for the prosecution can be believed, about which we will have a few words to say presently, the prosecution succeeded in building up a really strong case against the 1st, 2nd, 6th, 7th, 8th and 9th accused; a somewhat weaker but still a strong case against the 4th and 5th accused; and a very much weaker case against the 3rd accused.

We must next ask ourselves how this case for the prosecution was met by the defence and here, fortunately, we can be really concise. It was met by a complete denial on the part of every accused of having taken part. in any conspiracy against the Awujale; by Idumota's evidence that he shot the Awujale with .his own gun and without consulting with anyone beforehand or being asked by anyone to do so, by alibis set up by the 7th, 8th and 9th accused supported in the case of the 7th accused by six witnesses by evidence of considerable weight to show bias on the part of more than a few witnesses for the prosecution j and by evidence to show that the 3rd accused only visited Ajiboy'e for the purpose of obtaining medicine for his wife.

The learned Judge's judgment, though of considerable length, may be dealt with even more concisely. In effect he simply accepted all the evidence for the prosecution on the charge of conspiracy, and rejected all that given for the defence, including Idumota's. This, of course, sitting as .Judge and jury, he was fully entitled to do j indeed, every conviction where entirely contradictory stories are put forward on behalf of· the prosecution and the defence involves an acceptable of the first and a rejection of the second-a simple yet inevitable process which some of the learned counsel who argued the appeal before us hardly seemed to appreciate.

'What, then would have been the result of this appeal had we nothing before us except the evidence which was adduced before the learned trial .Judge r We should have quashed the convictions against the 11th accused, on the ground that the evidence against him, which was purely documentary, did not support those convictions. We should also, in all probability, have quashed the conviction against the 3rd accused because the case against him was a weak one at the best and the learnel1 trial Judge had misdirected himself on a very material passage in Ajiboye's evidence in his regard. The other convictions on the charge of conspiracy would, however, have had to stand bel'ause, in order to succeed on the ground that a verdict .is against the weight of evidence, " It is necessary to show that the verdict is unreasonable or cannot be supported by the evidence. It is not sufficient to show merely that the case against an appellant is a weak one j nor is it enough that members of the Court of Appeal feel some doubt as to the correctness of the verdict". If there is sufficient evidence to support a conviction and no other considerations arise, the appeal against it must be dismissed. In a case like this, where the learned Judge was sitting as both Judge and jury, it must be borne in mind that he had the very great advantage of hearing and seeing the witnesses themselves, and we who have not had that advantage are bound to treat his findings of fact with the utmost respect, and not disturb them 'unless we can be sure that they are wrong or that other circumstances have arisen which lead us to believe that a miscarriage of justice may have occurred. On the evidence before the learned Judge we certainly could not have arrived at the conclusion that his verdict against the 1st, 2nd, 4th, 5th, 6th, 7th, 8th alH1 9th accused on the charge of conspiracy were wrong in fact, though we do feel varying degrees of doubt as to whether certain parts of the evidence on which they were founded are not either fabricated or exaggerated. :Examples could easily be given in each of these categories, but they would probably serve no very useful purpose and this judgment is already of almost excessive length.· On the other hand circumstances have arisen during the hearing of the appeal which compel us to ask ourselves very seriously the question, whether a miscarriage of justice may not have occurred; and those circumstances are the discovery that Ajatu, the principal witness for the Crown, gave three previous statements to the political and police officers at Ijebu Ode, the first two of which are utterly at variance with her evidence before the learned trial Judge and the last of which is materially different therefrom. In point of fact the appeal record only discloses one such statement, and it is entered due to the conspicuous fairness of Mr. Sayle, Acting Solicitor-General, that all three statements were produced before us. Apparently Crown Counsel refused to allow counsel for the defence to see any previous statement made by Ajatu on the ground that such statements were privileged, and so deprived counsel for the defence of the advantage of cross examining her thereupon-an -advantage which they could have used effectively in view of the abundant material which would have been at their disposal. In claiming privilege for' these statements, assuming that he did so, Crown Counsel was wrong and was evidently not aware of the recent case of Re.!: 1). Clarke in the Court of Criminal Appeal in England which is reported in Vol. XXII of the Criminal Appeal Reports at page 58. Indeed, this case appears to have hitherto escaped the notice of both Bench and Bar in Nigeria. It was a very strong case of burglary, but the prosecuting counsel in effect prevented the defending counsel from seeing some descriptions of the alleged burglar given ill writing' to the police. The appellant was given leave to appeal against his conviction on that point alone, and after some severe comments on the conduct of the prosecuting counsel the English Court of Appeal gave judgment declaring that, but for the incident just mentioned they would never have granted any leave to appeal in that case" because, on the face of it, they were satisfied that so far as the evidence was concerned it was conclusive of the appellant's guilt". Then the judgment goes on to deal with the incident itself, and concludes with the following passage;-

" If in the result it had appeared that there was anything in those written descriptions which was contradictory to the evidence which was given by the police officer, or the other witnesses at their trial, or at. the police Court, we should have had seriously to consider whether any miscarriage of justice had been caused by this attitude which was unfortunately assumed by the learned counsel' for the prosecution . We have now had the opportunity of seeing the actual document's, the written descriptions, which had been taken down from the police officer and from two other witnesses who had given a description of the present appellant, and so far from there being anything in them contradictory to the evidence which the witnesses gave at the trial, or at the police Court, they appear to be substantially in accordance with their evidence, and the learned counsel, Mr. Curtis Bennet, has properly admitted that, having now seen those documents, and all intimidation having been removed from his mind, and he having carefully considered them in a calm spirit, he is quite unable to suggest that if he had read them out to the jury, or cross-examined the witnesses upon them, any different result would have followed.

are satisfied, in these circumstances, while regretting that this incident should have given rise to this appeal, that there has been no miscarriage of justice in this case, and that the application for leave to appeal against their conviction must, therefore be dismissed ".

Now in this case an equally serious incident has occurred, and the first two of Ajatu's written statements have proved to be utterly at variance with her story in the witness box whilst the last one is materially different from it. Had learned counsel been able to cross-examine her on these statements, which would thereby have been brought to the notice of the learned Judge, it is at least certain that Ajatu's credibility as a witness would have been heavily depreciated if not entirely destroyed, and it is also probable that the attitude of the learned Judge towards much of the other evidence adduced by the prosecution would have undergone a decided charge. We have already explained that Ajatu is the main prop which supports the case for the prosecution in regard to the meeting of the conspirator:; at Idumota's house on the eve of the shooting. We have also expressed our doubts as to whether a good deal of the oral evidence adduced by the prosecution is not exaggerated or even fabricated. The fact that Ajatu, against whom none of the accused alleged bias, had given two entirely different statements to her evidence in the witness box, if brought to the mind of the learned trial .Judge, might well have caused him not only to adopt a far more critical attitude towards the evidence for the prosecution than he appears to have adopted, but might also have caused him to think that Idumota's evidence was something more than a mere tissue of lies after all. Rut it is not very profitable to speculate on what effect these previous written statements might have had on the mind of the learned trial Judge, though it is clear that they must have had some effect, and the simple question we must ask ourselves is this: -can we be sure that no miscarriage of justice has been carried by the omission or refusal of Crown Counsel to produce Ajatu's 'three previous statements to counsel for the defence at the trial? Our answer is that "'C certainly can not in the case of the 4th, 5th, 6th, 7th, 8th and 9th accused", and the convictions against them are accordingly quashed. There are even stronger reasons for quashing the conviction of the 3nl accused, which is quashed accordingly. This leaves only the 1st and 2nd accused to be dealt with, and though we have experience great difficulty in coming to a decision to quash their convictions we have, in all the circumstances of the case and taking a broad view of the whole facts and evidence as they appear before the Ijebu-Ode background, come to the conclusion that it would be unsafe to let their convictions stand and we have accordingly quashed them.

And now it only remains to deal with the case of the 10th accused, who was accused of an attempt to procure the commission of a felony contra. to section 51:3 of the Criminal Code, which attempt is set forth in the particulars of the offence as follows:-

"George Olushile between 1st July, 1934 and 20th October, 1934, at Ijebu-Ode in the Province of IjebuOde unlawfully incited Raji (the Agbon) Ogunade (the Apebi) and Asani (the Kakanfo) to kill Daniel Adesanya the A wujale of Ijebu-Ode ".

It will be observed that these " Particulars" are couched in language which is substantially different from that employed by the section creating the offence, but in view of the fact that counsel defending the 10th accused raised no objection thereto at the trial, and in view of the very wide latitude allowed by rule 4 (4) of the Criminal Procedure Rules; we feel that it would be exceeding our functions as a Court of Criminal Appeal to take exception to the manner in which these" Particulars" are stated at this late stage in the proceedings. Assuming, therefore, that the charge of attempting to procure the commission of a felony has been correctly laid, it is our obvious duty to examine the evidence in support of it and satisfy ourselves that it does constitute at least a prima facie case of the offence charged.

Taking the persons named in the " Particulars" in the order in which they are named, we find-

Raji the Agbon giving evidence that the 10th accused said, apropos the Awujale going alone to see the Resident with a view to putting an end to bribery, "we must get a good juju man to injure the Awujale ";

Ogunade the Apebi giving evidence that the 10th accused said, apropos the same subject, "it is necessary for us chiefs to find a way to do him (the Awujale) ill or kill him"; and Asani the Kakanfo giving evidence that the 10th accused said, apropos the Awujale's opposition to bribery, " we should get a juju man to kill the Oba ".

These three persons are the only witnesses who gave any evidence against the 10th accused on the charge of attempting to procure the commission of a felony, and he not only denied that charge in toto, but also called evidence to show that Ogunade had been suborned to give perjured evidence against him. A simple question therefore arises for us to answer, and it is this: assuming that every word which Raji the Agbon, Ogunade the Apebi and Asanithe Kakanfo have said against the 10th accused is true, does their evidence support his conviction on a charge of attempting to procure the killing of the Awujale? In our opinion the answer to this question must be in the negative, since the statements to which these three persons depose amount to little more than vague expressions of ill-will which, though· morally reprehensible, fall far short of the legal conception of an attempt. We have therefore decided to quash the conviction against the 10th accused along with all the other convictions in this case.