Kwabena Yeboah V. The Queen (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law and Procedure—Committal for trial for misdemeanour—
Informationfor murder—Adjournment oftrial without reason recorded—Crown not calling someone who had confessed to the murder—Crown not calling all witnesses on back of information.
Criminal Procedure Code (Cap. 10), section 192^4 ; section 240.

Facts

(The substance of the case was that a body of armed men came to install their favourite as a Chief in the appellant’s village, and a riot ensued in which some persons were killed. The appellant was found guilty of murdering one but the Court of Appeal thought it was manslaughter in the circumstances.)

The appellant was committed with others for trial for misdemeanours but the Crown filed an information against him for murder; it was objected for him that the depositions did not warrant it and he was prejudiced thereby. Section 192A of the Criminal Procedure Code reads:—

“ Notwithstanding anything in this Code contained, where a person charged has been committed for trial, the information against him may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed in any preliminary investigation or deposition taken before a Magistrate in his presence, being counts which may lawfully be joined in the same information; provided that nothing in this section contained shall prevent the preferring of two or more informations against any accused person in respect of facts disclosed in any one summary enquiry.”

After plea, the appellant’s trial was adjourned to the next assize, but no reason for the adjournment was recorded, contrary to section 240 of the Code (text in judgment infra); it was argued that the trial at the next assize was a nullity for want of jurisdiction.

The Crown did not call all the persons named on the back of the information. In fact, following the committal, the Crown put in three informations against three distinct persons for murder, and in the present appellant’s trial called only those whose evidence was relevant to his case; and counsel for the appellant did not apply to cross-examine any of the others.

Someone had confessed to the murder of which the appellant was accused. The Crown did not call him because his confession was untrue and was later by him retracted. The defending counsel was aware of the confession but did not call the man or ask for his statement.

It was complained on appeal, in these two respects, that the Crown had not put before the trial Court all the material evidence.

Held

(1) The information was founded on evidence sufficiently disclosed in the preliminary investigation to found the charge of murder, as provided for by section 192A of the Criminal Procedure Code, and the appellant was not prejudiced thereby.

(2) The omission to record the reason for adjourning the trial to the next assize did not affect the jurisdiction of the Court, nor was there anything to show that the appellant was prejudiced by that omission.

(3) No purpose would have been served by offering the evidence of witnesses whose testimony related to the other murders, nor was there any obligation to call a man who, out of a desire apparently to exculpate the appellant, had made a confession which did not accord with other facts known and proved and was untrue; moreover it was open to defending counsel to call him and to ask for any of the others who were not called by the Crown.

Verdict of manslaughter substituted.