3PLR – BAKO BAHAR V. YAURI N.A. POLICE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
BAKO BAHAR
V.
YAURI N.A. POLICE
HIGH COURT OF KANO
26TH NOVEMBER 1970
APPEAL NO. SO/7CA/68
3PLR/1970/24 (HC-K)
JONES, S.P.J.,
ALHAJI ABUBAKAR ZAKI, SH. CT. J.
MAIN ISSUES
CRIMINAL PROCEDURE-charge, duplicity-each offence to be charged in a separate head of charge.
CRIMINAL PROCEDURE-plea-to be taken separately for each head of charge—to be taken separately for each accused: Ss. 161 & 212 C.P.C. Criminal Procedures—Judgement-number of witnesses not of itself a relevant consideration,—quality not quantity: S. 269 C.P.C.
CRIMINAL PROCEDURE-Penal Code-how cited.
PRACTICE AND PROCEDURE – Appeal—Area Courts from -no power in appeal Court to hear additional evidence in Criminal cases: S. 58 Area Courts Edict.
PRACTICE AND PROCEDURE – Appeal—Meaning of ‘hearing the whole case whether in whole or in part’ in S. 58 Area Courts Edict.
PRACTICE AND PROCEDURE – Appeal-substitution of conviction for different offence on-when appeal court may and may not.
PRACTICE AND PROCEDURE – Evidence-of previous convictions,—prosecutor’s statement not evidence.
REPRESENTATION
Appellant in person.
- Sulemanu, State Counsel, for Respondent.
JONES, S.RJ.:- Delivering the judgement of the Court: Appellant was tried and convicted in the Area Court of Yelwa of the offence of using criminal force, punishable under S.265 Penal Code. He appealed to the Upper Area Court at Sokoto, which substituted a conviction for the offence of wrongful restraint, punishable under 5.256 Penal Code and reduced his sentence to six months’ imprisonment. He now appeals on six grounds all of which amount to the general ground.
- Sulemanu, State Counsel, says that he does not support the conviction, on the grounds, inter alia, that in the trial court it was based on a plea of guilty which was, to say the least, suspect since six accused persons were charged together, four of them with an offence different from that of Appellant, and the pleas of all were recorded as a single plea. The record reads as follows on this point:
“Court has charged Bahar and Noma Alewa under section 262 to 265 and abettors – Ubandawaki, Maginga Adamu and Yusufu, all of you court has charged you under section 83 of the PC. Order 1959.
Court to Bako, Noma Alewa and the other four accused personsili. ‘Do you understand your charges?’…”
and later,
“Court to all accused persons: `Do you plead guilty?’ Answer: Bako, Noma Alewa and the abettors (the rest four accused persons) said they pleaded guilty.”
Nowhere was any explanation of the charge given to the accused persons, and nowhere did the trial judge make sure that any of them understood the nature of the charge in all its details and essentials and also the effect of his plea in compliance with S.161 Criminal Procedure Code which now applies to area courts (see Muktar Yarima v. The State (1969) S.C.O. PE. 2).
We, therefore, agree with learned State Counsel that both the charge was improperly presented to the accused and his plea improperly taken. We can-not be sure that he understood the charge; indeed, it is hard to see how he could possibly have understood it since it refers not to a single section but to four sections. And we certainly cannot think that if he did plea guilty (and of this there must be doubt) he understood the meaning and effect of his plea. Duval v. Commissioner of Police (1962) 2 All. N.L.R. 115.
The proper way to frame a charge and take a plea can be simply stated. Each single offence must be charged in a separate head of charge (5.212 C.P.C.) and each accused persons must have his plea taken separately on each offence with which he is charged and separately from every other accused person. Only if this procedure is followed can the court even begin to ensure that the accused understands the offence or offences with which he is charged and ensure that he understands his plea and its effect. The trial judgement followed none of this procedure.
Mr. Sulemanu, State Counsel also submits that it was not open to the Upper Area Court to substitute the offence of wrongful restraint because the ingredients are not such as would have been notified to the accused by the charge and the defence might, therefore, have been substantially different. We agree with this also.
We, therefore, allow this appeal, set aside the verdicts and sentences of both lower courts and enter a verdict of acquittal.
We think we should mention other irregularities in the proceedings of the lower courts. As State Counsel has pointed out, if the conviction of the Upper Area Court had been allowed to stand then the maximum sentence provided by the Penal Code for that offence is one month’s imprisonment only.
The trial court is recorded in translation as having charged and convicted the accused under a penal provision referred to variously as ‘P.C. Order 1959’ and ‘PC. 1959 Rules’. We are aware that the translation may not be in the correct legal terms. Nevertheless, the Penal Code, which is the schedule to the Penal Code Law is neither an Order nor a Rule nor anything except plain Penal Code as described in section 2. Penal Code Law. It should be so cited in charges and judgements.
In considering sentence the trial court accepted the word of the prosecutor that appellant had two previous convictions. This was not evidence, because the prosecutor was not a witness. Even if it had been evidence, the prosecutor did not say what those two previous convictions were for. They would be relevant only if they had been for the same type of offence as that for which appellant was now convicted. In Amadu Gwaquarawa v. Kano NA. Police (1969) S.C.O.P.E. 108 the then Chief Justice of the Northern States said with regard to the acceptance by a court of the prosecutor’s statement that the accused was a habitual criminal:
“We cannot too strongly condemn this practice… This court has repeatedly pointed out that previous convictions alleged against an accused person must either be admitted by him or proved against him before sentence, and he must have an opportunity of denying them and putting the prosecution on proof of them.”
In Maya Rukuba v. Commissioner of Police (unreported) JD/29CA/67, the Appeal Court said:
“Either the record of previous convictions should have been exhibited to form part of the record or the Chief Magistrate should have recorded details of each conviction which the appellant admitted…. Some of the convictions may… have no relevance to the sentence passed on appellant.”
Appellant appealed to the Upper Area Court. That Court proceeded to hear evidence. It heard six witnesses for Appellant and seven for Respondent. Not one of these witnesses was not available at the trial and none of their evidence was such that it could not with reasonable diligence have been adduced at the trial. The Upper Area Court should not have heard a single witness. The then Chief Justice, Hurley, C.J., delivering the judgement of the Appeal Court in Igboko Oroko v. Chukwu Ede (1964) N.N.L.R. 118 said this:
“An appeal court does not inquire into disputes; it inquires into the way in which disputes have been tried and decided… each party must make the whole of his case in the trial Court and must call all his witnesses there… For this reason an appeal court should not allow all additional evidence to be adduced unless the evidence could not by the exercise of reasonable diligence have been obtained for use at the trial”.
That was the civil case, and the learned Chief Justice was referring to the then equivalent of the present S.59(2) Area Court Edict which allows additional evidence in civil cases. The case before us is a criminal case. It should be noted that there is no such provision in S.58 Area Courts Edict which deals with appeals in criminal matters. This section gives an appeal court the power to order a retrial before some other court (not before itself as was done here) and also provides for the appeal court ‘hearing the whole case… whether in whole or in part’. The meaning of this phrase, ‘hearing the whole Case’ may not be clear to some area court judges. We can see no practical difference between ‘hearing’ and ‘rehearing’ (which is mentioned in S.59 with regard to civil matters). Certainly, it does not mean ‘retrying’. This was explained fully by the then Chief Justice in the case of Igboko Oroke, which we have mentioned above, when he said this:
“A rehearing is not a retrial. A rehearing covers the original case and no more. The evidence is heard again, but no other evidence… the witnesses to be heard should be the same witnesses who testified at the trial…”An appeal court may hear the evidence of all or some of the witnesses who testified at the trial, but no new witnesses. If it hears new witnesses it is retrying the case, and that is not its job. We think an appeal court may need to rehear or hear a witness if the evidence he gave at the trial is not clear from the record, or if there is some point which he appears to be able to explain but which the record leaves unexplained. We think that this is what section 58(1) (iii) means by ‘hearing the whole case… Whether in whole or in part.’ We repeat: it does not mean retrying the case.
In the same case the learned Chief Justice pointed out that even if additional evidence persuades the appeal court that the trial judge had erred as to the facts that is rarely a justification for making a different findings of fact. He said:
“In such a case the appeal court should order a retrial but is not justified in reversing the trial judgement.”
A last point. The Upper Area Court Judge mentions in his judgement as a reason for his decision the number of witnesses who gave evidence on each side. This is irrelevant. It is not quantity but quality of evidence which matters. It is not how many witnesses gave evidence that matters in the last resort, but what sort of evidence they gave and whether it was consistent with other witnesses for that party and whether it was credible.
Number might be a factor when consistency is in question, but numbers of witness are never a main factor and are never a factor standing alone. There are statutory provisions such as that there shall be no conviction on the uncorroborated evidence of a child who has not been sworn, and that a per-son shall not be convicted of rape of a girl under fourteen years of age upon the uncorroborated evidence of a single witness. And there are certain similar rules of practice. That is not what we are talking about here. What we are saying here is that the fact that one side calls more witnesses than the other is not of itself ground for believing that side and disbelieving the other. A court cannot divest itself of its duty to evaluate the evidence and assess the credibility of the witnesses merely by counting heads.
We repeat that we allow this appeal. We set aside the verdicts and sentences of both lower courts and enter a verdict of acquittal.
Appeal allowed: Verdicts and sentences of both lower Courts set aside.
