Mora v. R Crim. App. 286 –D – 71; 3/7/71; Onyiuke, J.

Mora v. R Crim. App. 286 –D – 71; 3/7/71; Onyiuke, J.

The appellant was charged with theft, obtaining by false pretences and house breaking. He was acquitted on four accounts but was convicted on the court of theft and sentenced to 2 years imprisonment. In his sworn testimony the appellant claimed the stolen articles as his and asked the court to call the Police Officer who searched his house to tender the receipts and other documents which he alleged were removed by the Police Officer from his house. He also asked for one Mtumwa to be called to give evidence because, he alleged, it was he who had made the furniture for him. The magistrate rejected the application on the ground that the addresses of the witnesses given by the appellant were vague. On not support the conviction in view of the Magistrate’s refusal to call the two witnesses whose evidence was material to the defence.

            Held: (1) “[T]he reasons given by the learned magistrate were not in the circumstances sufficient to refuse the application and [he] should have given the appellant an opportunity to call his witnesses [who] were very material to the defence and their evidence could affect the verdict ……….. Under s. 206(2) of the Criminal Procedure Code it was the duty of the court to help the appellant by adjourning the trial and issuing process to compel the attendance of such witnesses.” (2) “The reason that the addresses were vague was unconvincing. The appellant could have been asked to act as a pointer in regard to witness Mtumwa [and the Police Officer could have been traced]. It was wrong for the learned magistrate to proceed to judgment without listening to such important defence witnesses.” (3) Appeal allowed. Case remitted to court below to enable appellant call his witnesses if available.