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REX
V.
GORDIN OKOYE
WEST AFRICAN COURT OF APPEAL, LAGOS
10TH DAY OF MAY, 1938
2PLR/1938/66 (WACA)
OTHER CITATION(S)
2PLR/1938/66 (WACA)
(1938) IV WACA PP. 64-65
LEX (1938) – IV WACA PP. 64 – 65
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
CAREY, J.
GRAHAM PAUL, J.
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BETWEEN:
REX — Respondent.
AND
GORDIN OKOYE — Appellant
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ORIGINATING COURT(S)
APPEAL FROM CONVICTION BY HIGH COURT
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REPRESENTATION
C. N. S. Pollard — for Crown
Appellant not present
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Perjury contrary to section 118 of Criminal Code — Proof of — Necessity of setting out the exact words alleged to constitute perjury in the particulars — Effect of failure thereto
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Record of proceedings of a Native Court — Whether considered evidence for the purposes of proceedings of the High Court
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. The testimony alleged to be given is not sufficiently proved. The exact words alleged to constitute the perjury were not set out in the particulars, as should always be done, more especially as section 47A of the Protectorate Courts Ordinance provides for a record to be kept by Judge and expressly provides that that record or a certified true copy thereof shall be admitted as evidence of the proceedings and of the statements made by the witnesses.
2. In this case one witness swears that the testimony alleged to be given by the appellant was so given, and a certified true copy of the record in the case was put in presumably to corroborate the witness’s evidence. But on examination this record does not corroborate that the appellant gave the testimony alleged. Some testimony is recorded which is capable of being interpreted so as to corroborate but is also capable of a different interpretation. This is not sufficient and the conviction cannot be upheld for this reason alone.
Appeal allowed, conviction quashed, etc.
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MAIN JUDGMENT
The following joint judgment was delivered:–
KINGDON, C.J., NIGERIA, CAREY AND GRAHAM PAUL, JJ.
The appellant in this case was convicted in the High Court of the Enugu-Onitsha Division of perjury contrary to section 118 of the Criminal Code and sentenced to six months I.H.L. He appeals to this Court and counsel for the Crown agrees that there is no evidence to support the conviction.
In the first place the testimony alleged to be given is not sufficiently proved. It is regrettable that the exact words alleged to constitute the perjury are not set out in the particulars. This should always be done, more especially as section 47A of the Protectorate Courts Ordinance provides for a record to be kept by Judge and expressly provides that that record or a certified true copy thereof shall be admitted as evidence of the proceedings and of the statements made by the witnesses.
In this case one witness swears that the testimony alleged to be given by the appellant was so given, and a certified true copy of the record in the case was put in presumably to corroborate the witness’s evidence. But on examination this record does not corroborate that the appellant gave the testimony alleged. Some testimony is recorded which is capable of being interpreted so as to corroborate but is also capable of a different interpretation. This is not sufficient and the conviction cannot be upheld for this reason alone.
In addition the evidence that what the appellant is alleged to have said is untrue is also insufficient.
No witness is called to prove this of his own knowledge. Instead the evidence relied upon consists of
(a) a record of proceedings in a Native Court which per se is not evidence, and
(b) the evidence of the other witnesses in the same case in which the alleged false testimony was given.
his is only hearsay; though the record is admissible as evidence of the statements made by the witnesses it is not evidence of the truth of such statements.
The appeal is therefore allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered.
The appellant is discharged.