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REX
V.
MICHAEL NWEZE
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
27TH DAY OF JULY, 1940
LEX (1940) – VI WACA PP. 190 – 191
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OTHER CITATION(S)
2PLR/1940/44 (WACA)
(1940) VI WACA PP. 190 – 191
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
CAREY, J.
BROOKE, J.
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BETWEEN:
REX — Respondent.
AND
MICHAEL NWEZE — Appellant
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REPRESENTATION
J. S. R. Cole — for Crown
A. Alakija — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE: Perjury committed before the face of the Court during the pendency of an ongoing Criminal trial — How properly treated pursuant to section 41 of the Criminal Procedure Ordinance — Where action is taken before the close of trial — Legal effect
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. There is no rule of law which prevents a Judge before whom perjury is committed from taking action immediately under section 41 of the Criminal Procedure Ordinance, but it is a wise precaution to postpone such action until after the close of the case under trial.
2. Where action is taken in a criminal trial before the close of the trial, and the accused person thereafter is convicted and then appeals on the ground that the fair trial of the case was prejudiced by such action, the appellate Court will examine the proceedings very carefully to ascertain whether in fact prejudice resulted, and, if it did, it may be necessary to quash the conviction.
3. In this case no prejudice resulted, Conviction upheld.
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MAIN JUDGMENT
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 4 of his grounds of appeal. They are as follows:
“3. That the learned Judge having arrested my first witness and sentenced him to three months imprisonment for perjury before the completion of the case made me frightened to produce my two other witnesses
“4, That assuming that my first witness committed perjury the trial being a criminal and not a civil one the learned judge was wrong in law 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 Judge before whom perjury is committed from taking action immediately under section 41 of the Criminal Procedure Ordinance, but we are of opinion that it is a wise precaution to postpone such action until after the close of the case under trial. Where action is taken in a criminal trial before the close of the trial, and the accused person thereafter is convicted and then appeals to this Court on the ground that the fair trial of the case was prejudiced by such action, this Court will examine the proceedings very carefully to ascertaining in fact prejudice resulted, and, if it did, it may be necessary to quash the conviction. We have accordingly examined the present case very carefully from this point of view, and we are satisfied that in the present case no prejudice to the fair trial of the Appellant did, in fact, result In particular it is apparent that there is no and 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.
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