[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]





F.S.C. 357/1961

30TH MARCH, 1962.

3PLR/1962/40 (FSC)





BEFORE THEIR LORDSHIPS                                        

SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided and Read the Judgment of the Court)





CRIMINAL LAW AND PROCEDURE – Defence of accused – Right to make – Section 287(1)(b) Criminal Procedure Act – Non compliance with – Effect.

CRIMINAL LAW AND PROCEDURE – No-case submission upheld by Magistrate Court – No-case submission overruled by High Court – De fence not offered at lower court-High Court duty to remit case to Magis­trate to call upon the accused to make defence.

PRACTICE AND PROCEDURE – APPEAL – Fresh point – Raising of on appeal – Right of accused to make de­fence – Whether fundamental .



Arikpo -for the Appellant.

Emembolu, Ag. Senior Crown Counsel -for the Respondent.


ADEMOLA, C.J.F. (Delivering the Judgment of the Court): The appellant was the third accused in a case before the Magistrate, Calabar Magisterial District. The three accused persons were discharged by the learned Magis­trate on a charge of stealing. The Commissioner of Police was dissatisfied with the judgment of the learned Magistrate. He appealed to the Judge, Calabar division. After hearing arguments on both sides, the learned Judge of appeal dismissed the appeal in respect of the first two but allowed the ap­peal as against the 3rd accused who is now the present appellant. He then proceeded to pass sentence upon him. He was fined £50 or an alternative im­prisonment of 6 months with hard labour. Against that conviction and sen­tence he has appealed to this Court.


The appellant and indeed the two others tried with him were, at the time material to the charge of stealing, Police Constables. They were alleged to have stolen 9 yards of woollen materials which came to their possession by virtue of their office. From the point that was taken up in this appeal, it is un­necessary to go into the facts of the case before the learned Chief Magistrate; the procedure adopted at the trial forms the only argument in this appeal.


The ground of appeal (2nd ground) argued was that the appellant was deprived of the benefits of the provisions of Section 287(l)(b) of the Crimi­nal Procedure Act and that this vitiated the trial before the learned Magistrate. Section 287(1)(b) of the Criminal Procedure Act reads as follows:­


287    (1)     At the close of the evidence in support of the charge if it ap­pears to the Court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the Court shall call upon him for his defence and –


(b)     if the defendant is represented by a legal practitioner, the Court shall call upon the legal practitioner to pro­ceed with the defence …………”


The complaint in this case was that the appellant was never called upon for his defence before sentence was passed upon him. We observed, how­ever, that the point was not argued before the Judge of appeal: it was taken for granted that Section 287 was complied with, and this is what the learned Judge said in his judgment:


“Seven witnesses gave evidence for the prosecution and at the end, the defence Counsel who appeared for the respondents submitted that the prosecution had not made a case against the accused persons and without waiting for any ruling from the learned trial Magistrate rested their case on their submission. In other words, they had not been called upon under Section 287 of the Criminal Procedure Ordinance to make any defence before they rested their case. They therefore rested their defence on the evidence available to Court.”


Counsel for the appellant has submitted that what the learned Judge said was true of the 1st and 2nd respondents before him (Judge) but it was not correct with regard to the appellant.


Our attention was called to the Record of Proceedings in the Magis­trate’s Court which elicit the following facts. When the three accused per­sons were arraigned before the learned Magistrate, Mr. Oputa (Eronini with him) appeared for the 1st and 2nd accused whilst Mr. Uku (with him Mr. Nkereuwen) appeared for the 3rd accused (present appellant). After the close of the case for the prosecution the notes made by the learned Magis­trate read:­


“Mr. Oputa: We are not putting the 1st and 2nd accused on their defence and we rely on our submission, that is to say, we close our case and rely on the evidence of the pro­secution.”


This was followed by a short submission. The notes then continued:


“Mr. Uku associates himself with Mr. Oputa’s submission ad­ding that in so far as duplicity has been proved, that amounts to miscarriage of justice ……..”


Then followed a somewhat lengthy submission, after which the learned Crown Counsel made his submissions, and Mr. Uku replied. There was no reply by Mr. Oputa. The Magistrate then concluded the proceedings that day as follows:­


“Adjourned till 6-5-61 for judgment.”


On 6th May, 1961, he delivered a judgment, and as I stated earlier, dis­charged the three accused persons.


Now, it is important to note that neither before making his submission nor at the end, or indeed at any time did Mr. Uku say he was not calling his client to give evidence in his own defence or that he was relying on his sub­mission as did Mr. Oputa. What he said was that he associated himself with submissions made by Mr. Oputa, and then continued to add more. He ad­dressed the Court at some length, judging from the notes of the learned Magistrate, and not at any time was he recorded as having said he relied on his submissions and was not calling his client for his defence.


The position, therefore, on the 6th May, 1961, when the learned Magis­trate made his ruling was, as far as the appellant was concerned, either a dis­charge on the submission of no prima facie case, or a ruling that a case was made out against him, in which case he would be called upon for his defence. As it was, the learned Magistrate adopted the former course and he was, with the others, discharged.


On an appeal by the Commissioner of Police against his discharge, it is clear the appellant could not be in a worse position than he was at the end of the case against him in the Magistrate’s Court. In other words, if it was found that he was wrongly discharged by the learned Magistrate, it was still open to him to make his defence before judgment. Therefore the only course open to the Judge of appeal would be to send the case back to the learned Magis­trate to call the appellant to make his defence.


Unfortunately, the point was overlooked by the learned Judge of ap­peal that the appellant was still entitled to make his defence, nor did his Counsel (another Counsel not Mr. Uku argued his appeal before the Judge) call the attention of the Judge to it.


As we pointed out earlier, the point was never raised before the Judge of appeal. We allowed it to be argued in this Court because it is fundamental that an accused person should have the benefit of making his defence and we are of the view that it is such a fundamental right that the Court should enter­tain it at any time.


What then should be done? We do not think in the circumstances of this case that it would be appropriate to send the matter back to the learned Magistrate (who had previously discharged him) to proceed with the trial by calling upon the appellant for his defence. We think, in the circumstances, the conviction recorded against the appellant by the learned Judge of appeal should be quashed.


The appeal is therefore allowed. We direct that the fine of £50, if paid, should be refunded to the appellant.


UNSWORTH, F.J.:         I concur.


TAYLOR, F.J.:      I concur.


Appeal allowed



error: Our Content is protected!! Contact us to get the resources...