Rex V. Matthias Enema (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal law and procedure—Failure to call material witness—The appellant (charged with Stealing, contra. section 390 (5) of the Criminal Code) in the Magistrate’s Court gave a name as a witness whom he wished to call: he was not called.

Conviction quashed.

Un.sworth for Crown.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, GRAHAM PAUL, C J., SIERRA LEONE AND BUTLER LLOYD, J.-

In this case the appellant was convicted upon two counts for stealing by a person in the public service contra. section 390 (5) Criminal Code. Upon the first count a most material witness was Mr Milne, the .Assistant District Officer, in charge of the Prison where the appellant was a warder. The appellant, in the Magistrate’s Court, gave Mr Milne’s name as a witness whom he wished to be called. Mr Milne was not called, and the learned Acting Solicitor-General has intimated that in view of this failure to call a material witness he will not seek to uphold the conviction on this count. The conviction and sentence upon count one are accordingly quashed and it is directed that in respect of count one a judgment and verdict of acquittal be entered. There is no substance in the appeal against the conviction upon count two and the appeal against the conviction on that count is dismissed.

The appeal against sentence is dismissed.