Dickson Ejukolbm V. Inspector-General Of Police (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Procedure—Magistrate calling witnesses after close of defence.
Appeals from Magistrates—Criminal Appeals—Order on appeal for re-trial—Circumstances of case.
Magistrates’ Courts (Appeals) Ordinance, section 43 (a) (i)—Power to order a re-trial.

Facts

Appellant was charged on two counts with unlawful possession of mineral ore. After the close of the case of the defence the Magistrate apparently did not regard the evidence as sufficient to convict upon and called three additional witnesses, and convicted the appellant oh both counts.

Appellant appealed to the Supreme Court complaining (a) that the Magistrate ought not to have called those witnesses, and (b) that he had misdirected himself on onus of proof.

The Judge allowed the appeal but, under a misapprehension relating to the type of tin mentioned in the first count, ordered the appellant to be re-tried on that count. The appellant appealed further on the ground that in the circumstances of his case the order was not justified.

Held

It was right to allow the appeal owing to the Magistrate’s calling additional evidence after the close of the defence to strengthen the prosecution’s case but wrong to order a re-trial as this enabled the prosecution to call that evidence and therefore unfair to the appellant. Moreover, the Judge was under a misapprehension relating to the tin for which the appellant was to be re-tried.

(Editor’s Note: On the question of additional evidence being called, after the close of the defence, by the Court suo motu see Asuquo Edem and others v. R.t 9 W.A.C.A. 25; Nelson Ohanyere, W.A.C.A. No. 3033, at Lagos, on 5th October, 1949, in cyclostyled judgments; Horvat v. Police, 20 N.L.R. 52).

Appeal allowed; order of re-trial set aside.