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F.S.C. 2/1962

22ND JUNE, 1962.

3PLR/1962/40 (FSC)





SIR LIONEL BRETT, F.J. (Presided and Read the Judgment of the Court)





CRIMINAL LAW AND PROCEDURE – Proceeding before the Native Court-Failure to comply with the Criminal Procedure Code- Effect of.

CRIMINAL LAW AND PROCEDURE – Retrial – Power of Federal Sup­reme Court to order retrial – Whether exercisable when ground of appeal is raised for the first time.

CRIMINAL LAW AND PROCEDURE – Section 395(2) of the Criminal Procedure Code – Signing of record of proceedings – Whether president of native court bound to sign it.

PRACTICE AND PROCEDURE – APPEAL – Grounds of appeal – When not raised on the appeal before the High Court- Whether it can be raised before Supreme Court



  1. A. Cole -for the Appellant.
  2. A. Isikalu – for the Respondent.


BRETT, F.J. (Delivering the Judgment of the Court):      The appellant was convicted in the Court of the Shehu of Bornu on a charge of culpable homicide punishable with death, contrary to s.221 of the Penal Code, and sentenced to death. His appeal to the High Court was dismissed and he ap­pealed to this Court. His appeal first came up for hearing on the 30th March, 1962, when Mr. J.A. Cole, who had been assigned to argue the appeal on his behalf, made three submissions: first, that there had not been a proper com­pliance with s.393 of the Criminal Procedure Code, which requires a Native Court, before passing a sentence of death to ascertain and record the wishes of the blood relatives of the deceased as to whether the sentence should be carried out; secondly, that the record of proceedings in the trial Court left it open to doubt whether the same members had composed the Court on the several occasions when it sat to try the case; and thirdly, that there had been a breach of s.395(2) of the Criminal Procedure Code in that the record of the proceedings on one of the hearing days was signed not by the president of the Court but by a certain M. Baba Gana, whose status did not appear. The hearing of the appeal was adjourned so that the Crown might file an affidavit containing fuller information on the matters raised in Mr. Cole’s second and third submissions, and leave was given to the appellant to file a counter-af­fidavit if he wished.


At the resumed hearing on the 8th June the three judges who had sat on the former occasion were not all available and counsel were informed that the hearing would begin de novo. Mr. Cole did not, however, repeat the first submission which he had made at the former hearing and we need say no more about it. As regards the second submission, an affidavit was filed in which Baba Gana, who described himself as clerk to the Shehu’s Court, swore that the same three members, namely Talba Abba Kaka, Alkali Has­san and Alhaji Bukar Elmiskin, had made up the Court on each of the five occasions when it sat to try the case and in the face of this affidavit, which was not contradicted, Mr. Cole rightly conceded that he could not pursue the submission.


As regards the third submission, Baba Gana stated in his affidavit – “I am the person who signed the proceedings of the case on behalf of the Legal Adviser on 22nd December, 1960, in the belief that as the case was not com­pleted but merely adjourned there could be no objection to this”, and it is to be observed that the accuracy of that part of the record which is signed by him has not been challenged. In order to deal fully with the submission, it would be necessary to consider the correct interpretation not only of s.395(2) of the Criminal Procedure Code but also of s.386. Section 395(2) provides that:­


“(2)   The Judge or president of the court shall sign or seal the record of the proceedings”,


and the question would arise whether, in a case of which the hearing extends over two or more days, it is enough if the Judge or president signs or seals the record at the conclusion of the proceedings on the last day, or whether he must do so on every day of the hearing. Section 386 distinguishes between the section of the Code by which a Native Court is to be guided and those, in­cluding s.395, by which a Native Court is to be bound; it goes on to provide that where a Native Court has failed to be guided or properly guided by the provisions of the Code an appellate Court shall apply the principles laid down in those sections of the Code and of the Native Courts Law, 1956, which enable a decision to be upheld notwithstanding an error or irregularity if it appears that the accused has not been prejudiced or if it does not appear that a failure of justice has been occasioned, but it says nothing about the principles to be applied where a Native Court has failed to comply with a sec­tion by which it is bound.


These are questions of which the importance extends beyond the pre­sent case, and since they were not raised in the High Court we have not the advantage of knowing what view the Judges of the High Court would take of them. Section 30 of the Federal Supreme Court Ordinance, 1960, provides that in an appeal from a High Court sitting in its appellate jurisdiction this Court may exercise any power that could have been exercised by the High Court, so that any decision as to the powers of this Court in such a case to dis­miss an appeal notwithstanding an error or irregularity would by implication be a decision as to the powers of the High Court, and although we also have power to order a retrial we have no power to remit the appeal to the High Court so as to enable these questions to be argued before it. Though they are important questions, they do not fall into any of the classes of questions which we should feet bound to consider, even when raised for the first time on a second appeal: they do not, for example, go to the jurisdiction of the trial Court, and no grounds have been urged for supposing that a substantial miscarriage of justice has occurred. In the circumstances we think it advisa­ble to leave these questions to be decided later, if they arise in other pro­ceedings, and to rest our decision on the formal ground that in an appeal from a High Court sitting in its appellate jurisdiction an appellant cannot succeed in this Court on a technical ground of appeal not touching the merits of the case if he did not raise it in his appeal to the High Court. The appeal is dismissed.


TAYLOR, F.J.:      I concur.


BAIRAMIAN, F.J.:         I concur.


Appeal Dismissed.



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