THOMAS SHORUNKE Vs. KING

JUDGEMENT

(1.) This is an appeal in forma pauperis brought by special leave from a judgment of the West African Court of Appeal dated the 27 April 1940, whereby, the appellant appeals against his conviction by the High Court of the Protectorate of Nigeria on 13 February 1940, for breaking and entering a building and committing a felony therein. The appellant, a police constable, was charged, together with three other constables and three other persons, with having broken and entered a store at Ogbomosho and having stolen therefrom ?300. There were other indictments not now material. The charge was originally investigated in the District Magistrate's Court at Ibadan and after the evidence had been given for the prosecution the appellant together with the rest of the accused reserved his defence. All seven defendants were then committed for trial at the nest Ibadan Assizes. The trial began on 1 February 1940, when the appellant pleaded not guilty and stated that he was represented by a barrister-a Mr. Wells Palmer. As this gentleman was not in Court the learned Judge adjourned the trial until the following morning and gave instructions that a wire was to be sent to Mr. Wells Palmer informing him of the adjournment. He also asked the police to give every facility to the appellant to get in touch with his lawyer or employ one locally if necessary. Mr. Wells Palmer replied that he was not appearing and the trial proceeded on 2 February, and continued on the following days. During that day's sitting a list of witnesses and documents was handed by the appellant to the Court but he refused to tell the police anything about the contents of the papers required for production or the evidence expected to be given by the witnesses whose names were set out. The learned Judge at the end of the sitting warned the appellant that he must give the gist of the evidence required, in order that it could be judged if relevant, and told him that if relevant, free subpoenas would be issued, but not otherwise.

(2.) On 3 of February the Solicitor General, who was appearing for the prosecution, informed the Court that he had endeavoured to assist the appellant to sort out his witnesses and documents. The appellant, however, had refused his assistance- quite rightly, as the learned Judge observes in the course of his judgment - as he did not want to disclose his defence to the Crown's representatives. The Solicitor-General appears mistakenly to have thought that the learned Judge had instructed the police to assist the appellant and accordingly asked that they might be relieved from any further obligation to assist in collecting witnesses or documents. In the circumstances the learned Judge reconsidered his decision and determined to see the accused in chambers on the rising of the Court in order to discover what witnesses and documents would be necessary in the interests of justice to be produced on the appellant's behalf. In the course of this day's proceedings and during the appellant's cross-examination of one of the prosecution witnesses, the Solicitor-General objected to one of the questions put as being irrelevant and the appellant thereupon informed the Court that he would ask no more questions and make no statement until he got a lawyer. He did thereafter throughout the whole course of the trial remain mute and refuse to take any further part in the proceedings. Nevertheless in accordance with his promise the learned Judge saw the accused in his private room at the close of the day. At this interview the learned Judge, the interpreter, the appellant and one other accused alone were present, though a police officer had been in the room originally and the Solicitor-General came in for a moment to say that all the necessary documents would be produced.

(3.) On this occasion the appellant repeated his assertion that a lawyer was being sent to defend him and was then asked to give a list of the names of the witnesses he wished to call, and the reasons for calling them, in order that subpoenas could be issued by the Court to avoid delay. The reason for this requirement, the learned Judge says, was because it appeared that several were being called from Ondo and it was doubted if they could give any relevant evidence. The appellant replied that he did not wish to give the purpose for which his witnesses were being called and that a list had already been furnished. The learned Judge seems to have thought this list confused and to have asked for a fresh one; the accused man however failed to furnish a fresh list and again refused whether from timidity, suspicion or obstinacy, to state the purpose for which he was calling his witnesses. Their Lordships have seen the list furnished by the appellant, and, though it contains a list of both witnesses and documents and perhaps might be clearer, think it sufficient to show the names of the witnesses desired and the places where they were to be found. At a later point in his judgment the learned Judge states that on this occasion the accused was told that he would get no further assistance, and that he could make his own arrangements about subpoenas, but as the appellant was then, and had for some three months previously, been in prison, it is difficult to see what further arrangements he could make.