Rex V. Akpan Udo Modem & Anor (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Murder–Conviction on evidence of one witness alone—Defence of Alibi—Appeliants notice at preliminary enquiry and in witnessbox during trial of intention to call witnesses —Appellants Counsel not callingwitnesses—No application by Counsel to call witnesses or for adjournment tosecure their attendance—Appellants case closed—Duty of Counsel and Courtin these circumstances.

Facts

First appellant, at the preliminary enquiry, told the Magistrate he wished to call witnesses to support his defence of an alibi to’a charge of murder, but refused to disclose their names. He repeated his desire when giving evidence at his trial where he was for the first time represented by Counsel, but Counsel closed his case without calling any witnesses.

The trial Judge, in his judgment, concluded that Counsel did not call the witnesses because ” they probably had nothing relevant to say “.

Held

(i) following Shorunke v. The King (1) that it is not within the province of the trial Judge in determining whether or not he should allow witnesses to be called on behalf of the accused, to take into consideration the probability of the witnesses being able to give material evidence;

2. Where a client insists that he wants to call witnesses, his Counsel should either (a) accede to his client’s request and apply for the witness to be summoned, or (b) ask leave to withdraw from the defence. He should not close the case without calling witnesses;
3. the trial Judge should not have presumed, from the failure of Counsel to call witnesses that their evidence would have been unfavourable to the accused;
4. application should have been made for the witnesses to be summoned and for any necessary adjournment to secure their attendance;
5. the defence of the first appellant was not adequately investigated ;
6. had that been done, and the defence established, the value of the evidence of the witness upon whose evidence both appellants were convicted would have been destroyed.

Appeals allowed.