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AGOMA ACHAJI AND OTHERS
COMMISSIONER OF POLICE
COUR OF APPEAL
JANUARY 18, 1963
BEFORE THEIR LORDSHIPS:
J.A. SMITH, S.P.J.
APPEAL-criminal appeal-interlocutory appeal-appeal from decision allowing prosecutor to address in reply-Constitution of Northern Nigeria, s. 52 (5).
CRIMINAL PROCEDURE-addresses prosecutor’s right of reply accused giving evidence but calling no witnesses-Criminal Procedure Code, ss. 191 (1) (b), 194(1), 228.
WORDS AND PHRASES- “witness,” ibid.
R.C. Rickett for appellants;
K. Nadarajah, Crown Counsel, for respondent.
J.A. Smith, S.P.J., delivering the judgment of the Court: The appellants were Jointly tried in the court of the magistrate grade 1 for an offend of criminal trespass and each of them was acquitted. After the case for the prosecution had closed each of the appellants (then-the accused) gave evidence on his own behalf but none of them called any witnesses nor put in any document or. other evidence. Counsel for the appellants summed up their case; and then the prosecutor indicated that he wished to reply. Counsel for the appellants objected and the learned magistrate ruled: “In my view when an accused person gives evidence concerning the substance of the complaint and charge he is to be regarded as a witness. In this case the accused persons have given evidence and, it is evidence other than to character. Accordingly I hold that the prosecution has a right of reply.” The appellants have appealed against this ruling on the ground that it was wrong in law.
Mr. Rickett for the appellants submitted that the word “witness” in section 194(1) of the Criminal Procedure Code did not include an accused person giving evidence on his own behalf and consequently the prosecutor had no right of reply. The subsection reads-
(1) If the accused or any of the accused calls any witness other than to character or any document other than a document relating to character is put in evidence for the defence, the prosecutor shall be entitled to reply.”
The word “witness” in this subsection has the same meaning as that word in the context “to call witnesses” in section 191(1)(b) of the Criminal Procedure Code and as Mr. Nadarajah for the respondent pointed out, “witness” in this paragraph is to be distinguished from “evidence” in paragraph (a) of the same subsection. The subsection reads:
“(1) After the reading of the examination of the accused, in accordance with the provisions of section 190 the accused shall be examined as provided in section 235 and he shall then be asked
(a) whether he wishes to give evidence on his own behalf as provided in section 236; and
(b) whether he means to‘ call witnesses other than witnesses of character.”
It will be observed that in paragraph (a) an accused is to be asked if he wishes to give evidence on his own behalf and also in. paragraph (b) to be, asked if he means to call witnesses. Here there, is a clear distinction between the accused and his witnesses and we hold that an accused person giving evidence on his own behalf is not a witness within the meaning of that word in section 194(1)(b) of the Criminal. Procedure Code.
Both the sections we have referred to appear in Chapter XVIII entitled “Trials in the High Court.” The High Court procedure is to be followed in trials and inquiries in magistrate courts so far as may be appropriate except as otherwise provided in the Criminal Procedure Code. This is provided for in section 228. No procedure is laid down in Chapter XVI – “Summary Trials in Magistrates Courts” – as to the right of address and reply, hence the application of the procedure in Chapter XXIII.
It was first submitted that there was no right of appeal in the circumstances of this case because there had been an acquittal. It was later conceded in the course of argument that the ruling of the learned magistrate was a “decision” within the meaning of that word in section 52(5) of the Constitution of Northern Nigeria. We hold that the ruling was an “order” within the definition of “decision” in section 22(5) of the constitution, and consequently, there was a right of appeal.
In the result we find that the learned magistrate erred in holding that when an accused gives evidence on his own behalf the prosecutor has a right of reply. There is no such right in the provisions of the Criminal Procedure Code.