Rex V. Michael Nweze (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Opinion expressed that it is a wise precaution to postpone taking action under section 41 of the Criminal Procedure Ordinance until after the close of the case under trial. Where action is taken before the close, the Appeal Court will examine the case closet,. to ascer!ain if prejudice to the accused resulted therefrom.

Held : Since in this case no prejudice resulted, Conviction upheld. There is no need to set out the facts.

J. S. R. Cole for Crown. A. .Alakija for Appellant.

The following joint judgment was delivered :— KINGDON, C.J., CAREY AND BROOKE JJ.

In this case the Appellant was charged in the High Court of the Calabar—Aba Judicial Division jointly with another man with stealing a motor tyre, contra. sec. 390 of the Criminal Code.

Both were convicted and sentenced.

The appellant now appeals to this Court against his conviction.

The only substance in his appeal is contained in Grounds ‘3 and of his grounds of Appeal. They are as follows :—

3. That the learned Judge haying arrested my first witness and sentence  him to three months imprisonment for perjury before the completKu of the case made me frightened to produce my two other witnesses
4. That assuming that my first witness committed perjury the trial being s. criminal and not a civil one the learned Judge was wrong in la. in proceeding to arrest him before conviction thereby prejudicing hIs mind against defence.”

As to Ground 4 there is no rule of. law which prevents a Judi before whom perjury is committed from taking action immediate, under section 41 of the Critninal Procedure Ordinance, but we a:.! of opinion that it is a wise precaution to postpone such action un-_^–L after the close of the case under trial. Where action is taken in

criminal trial before the close of the trial, and the accused perscs thereafter is convicted and then appeals to this Court on the grouz.⁴_, that the fair trial, of the case was, prejudiced by such action, Court will examine the proceedings very carefully to ascertain

in fact prejudice resulted, and, if it did, it may be necessary to ^Rex

V.

quash the conviction. We have accordingly examined the present N„_en case very carefully from this point of view, and we are satisfied

Kingon,

that in the present case no prejudice to the fair trial of the Appellant

C. J., ^dCarey

did, in fact, result In particular it is apparent that there is no and Brooke,

substance in the complaint set out in Ground 3 quoted already, because at the close of the case for the prosecution the Appellant gave the names of his witnesses as Michael and Udo Udo. He gave no other names. Michael was called and was the witness who was dealt with for perjury. Udo Udo was also called, immediately after Michael. Therefore the Appellant’s statement that he was frightened to produce his two other witnesses is simply untrue.

The appeal is accordingly dismissed.