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29TH JUNE, 19661

3PLR/1961/40 (FSC)












Appellants unrepresented.

O. Offah, Senior State Counsel, for the respondent.



CRIMINAL LAW AND PROCEDURE: House Breaking and Stealing – How the two offences are to be charged – Attitude of Court to charging both under different counts

PRACTICE AND PROCEDURE – HIGH COURT: Sparse judgment – essential preliminary to conviction –  Need for court to keep documentary record of the review of evidence and review of defence made before – Effect of failure to do so

PRACTICE AND PROCEDURE – CHARGES AND SENTENCES: When two offences should be charged as one count – Relevance during sentencing – when sentences should run concurrently and not consecutively

 ETHICS – COURT: Failure of court to keep or provide record of the review of evidence and review of defence before it – Attitude of appellate thereto – Effect on judgment thereto



ADEMOLA, C.J.N. (delivering the judgment of the Court):-


The two appellants were charged with two others before Nkemena, J., in the High Court of the Calabar Judicial Division on two counts, namely-


(1)     Housebreaking contrary to section 411 (a) of the Criminal Code.


(2)     Stealing contrary to section 390(4)(b) of the Criminal Code.


They were found guilty on the two counts and sentenced to various terms of imprisonment. The two appellants (3rd and 4th accused persons) have appealed to this Court against their convictions and sentences.


We are not concerned with the facts of the case which, in any case, do not appear from the judgment in the High Court which is as follows:-


”The accused are charged with housebreaking and stealing contrary to sections 411 (a) and 390(4)(b) of the Criminal Code Law.


The case is one of facts. The evidence against each of the accused is overwhelming. It is a surprise that none of them pleaded guilty. I find each of them guilty on the two counts.”


The learned trial judge proceeded to pass sentences on the four accused persons about which we shall have something to say anon. With this concluding part of the trial we feel somewhat concerned. Section 245 Criminal Procedure Act dealing with conclusions of a trial is as follows:-


“The judge or magistrate shall record his judgment in writing and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the judge or magistrate at the time of pronouncing it:


Provided that in the case of a magistrate in lieu of writing such judgment it shall be sufficient compliance under this section if the magistrate-


(a)     records briefly in the book his decision thereon and where necessary his reasons for such decision and delivers an oral judgment, or,


(b)     records such information in a prescribed form.”


The section clearly lays it down that a judgment at any rate of the High Court must contain the point or points for determination, the decision thereon and the reasons for the decision. It is not enough to say, as the learned judge put it in this case, that the facts are overwhelming. In view of the fact that we have had before us lately judgments somewhat similar to the present one, we feel bound to say that we think the learned judge’s judgment is far too meagre and does not satisfy the requirements of the section. As we said in another connection in R. v. Fadina, (1958) 3 F.S.C. 11 at p. 12:-


An accused person is entitled to have his case fully considered on the point or points for determination, also to the decisions thereon and the reasons for such decisions.”


Here there is no review of the evidence and no review of the defence made by either appellant which, according to section 245 above, is an essential preliminary to conviction, and without which the conviction cannot be allowed to stand.


Having dealt with the judgment, we now examine and deal briefly with sentences passed by the learned trial judge. A separate term of imprisonment was recorded on each count, for example 1st accused 7 years on the 1st count and 3 years on the 2nd count; in each case sentences were to run consecutively. It is more usual to charge in this type of case on one count only, thus housebreaking and stealing contrary to sections 411 (a) and 390(4) of the Criminal Code.-see Form 16 to the Second Schedule of the Criminal Procedure Act.


One pre-supposes that a man who breaks into a house or burgles a house must have done so with the intention of stealing therein, and so it is usual to charge the two offences in one count. If however two separate courts are laid, we are of the view that sentences passed on the two counts-housebreaking and stealing-should be made to run concurrently and not consecutively as the learned judge did in this case.


In the circumstances we have come to the conclusion that this case must be remitted to the court below for a new trial. We therefore set aside the conviction and sentence and order the appellants to be retried before another judge.



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