...Appeal Court. 18 October, 1937.

Coining offences-Possession of mould contrary to section 148 (3) (c)  of the Criminal Code; possession of tools contrary to section 148 (3) (d) of the Criminal Code; possession of more than three .counterfeit coins contrary to section 152 (3) of the Criminal Code -Witnesses for prosecution at preliminary investigation not called at trial-Sufficiency of evidence-Discussion by Court.

Held: Appeal allowed and convictions quashed.

C. N. S. Pollard for Crown. Appellant in person.

The Court allowed the appeal and later gave its reasons m writing.

There is no need to set out the facts.

The following reasons for judgment were jointly delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND BUTLER-LLOYD, J.

When we allowed this appeal we announced we should give our reasons for so doing.

Mr. Pollard, Crown Counsel, stated he could not support the conviction because :-

(a) although some four witnesses, besides those called at the trial, had given evidence at the preliminary inquiry, the trial Judge acceded to the request of the prosecution not to call these four witnesses but to offer them to the accused should he wish to have their evidence.

(b) although appellant was charged on three counts with being in possession at his house at Otu-Jeremi on the 8th Novem­ber, 1936, with four pieces of counterfeit silver coin, knowing them to be counterfeit with intent to utter them, and of certain apparatus adapted for coining knowing them to be so adapted, the trial Judge admitted evidence that on the 7th November a bundle consisting of a pair of bellows and a box containing materials peculiar to counterfeiters (Ex. " A ") had been seized by P.C. David Awosika at a house at Otan, although there was not sufficient evidence to show that appellant was in the house or to connect him with the bundle, and

(c) that there was not sufficient evidence that accused was present at the house raided at. Otu-Jeremi on the 8th' November or that he was in control of the room in which the coining apparatus was found on that date.

Lord Hewart, C.]., in the course of the argument in the case of Rex v. Dora Harris, 1927, 2 K.B.D. 587, observed:-

•• In civil cases the dispute is between the parties and the Judge mereiy keeps the ring, and the parties need not calI hostile witnesses, but in criminal cases the prosecution is bound to calI alI the materia! witnesses before the Court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury .... "

In the 29th edition of Archbold it is stated at page 494: " Although in strictness it is not necessary for the prosecutor to call every witness whose name is on the back of the indictment, it has been usual to do so, that the defendant may cross':examine them:

R. v. Simmonds, 1 C. & P. 84; R. v. Beezley, 4 C. & P. 220; R. v. Bull, 9 C. & P. 22; R. v. Vincent, 9 C. & P. 91; R. v. Barley, 2 Cox 191." At page 495 of the same authority a number of cases are referred to in which it was held that the prosecution was not bound to call all witnesses, but they ought to be available so that the defence might call them if it thought fit.

9 Halsbury (2nd edition), paragraph 232, reads :-

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."

In our opmion this paragraph contains a correct statement of the usual and proper practice on the point we are now considering.

It is not necessary for this Court to decide whether the convic­tion should be quashed in this case because the four witnesses were not called by the prosecution either for the purpose of giving evidence or giving the accused an opportunity of cross-examination, as it is clear that the conviction cannot be upheld on other grounds.

The accused was not charged with any offence in respect of the things found in Exhibit " A," and apart from the fact that P.c. David Awosika stated that accused resembled one of the two men who were concerned with this exhibit there is nothing to connect the accused with any offence in respect of that exhibit. How then could the production of the bellows and other materials found at Otan on the 7th November have any bearing on the offence charged which is alleged to have been committed the next day at Otu-Jeremi? We can see no link between the two offences except that the discovery of Ex. "A" led to inquiries which resulted in the finding of the articles, the subject-matter of this charge.

In our opinion the evidence as to the finding of Exhibit " A" Rex and its contents was irrelevant to the offence with which the accused  was charged and was calculated to prejudice the accused

      Although in our opinion there was ample evidence on which the  trial Judge could find that appellant was present at the house at, Otu-Jeremi on the 8th November, we consider that the evidence that appellant was in control of the room in which the coining apparatus  was found was not sufficiently cogent to justify his conviction of the offences charged.

We therefore quashed the convictions.