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C.A.: JONES, S.P.J.,
WHEELER, J., M. WALT S. CT. J.
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Evidence—decision of a Court, how proved in an Area Court-S.131 Evidence Law.
Evidence-admission, what is-4.19 Evidence Law. Evidence—what is evidence in Area Court. Divorce-proof of Moslem divorce.
Criminal Procedure Judgement, contents of—defence must be considered-effect of failure to make essential findings of fact.
Appeal—Findings of fact-Appeal Court’s duty as to.
Akanbi, for Appellant
Agbebi, Senior State Counsel, for Respondent.
JONES, S.PJ.:- delivering the judgement of the Court: Appellant was tried in the Upper Area Court, Kano and convicted on two heads of charge; house trespass, punishable under S.349 Penal Code, and abduction, punishable under 5.273 penal code.
The undisputed facts are that on the material day Appellant, who was a soldier, returned form the war-front and went to the house of one Sa’idu and threateningly demanded back his wife Faji, 2 p.w. who was then living with Sa’idu. Sa’idu ran away. Appellant then entered the house and forced Faji to go away with him. The prosecution case is that Faji divorced Appellant a proper period before marrying Sa’idu.
The crux of this case is whether the alleged divorce did in fact take place. The prosecution case is that it took place in the Area Court at Gwarzo. There was evidence to this effect given by Faji as 2 p.w. and by her father 1 p.w. There was also a letter from the Area Court judge which the prosecutor tendered to the court, certifying that (we are told in the judgement) the divorce had taken place in that court. That document is not before us. A certified true copy of that letter has been produced for us by the Inspector of Area Courts, but bearing in mind the case of Umaru Gwandu v. Police (1964) N.N.L.R. 58 we decline to accept it as either the exhibit itself or as a certified true copy of it.
Even if we had the exhibit before us we would not consider it valid evidence. It was produced in the lower court by a person who was not a wit-ness. In Umaru Guribi v. Sokoto N.A. (1969) S.C.O.P.E. 25, the Appeal Court held.
‘It was wrong for the trial court to allow the prosecutor to intervene in this way (i.e., by making a statement which was accepted as evidence); the only proper way for the prosecutor to put those facts before the trial court would have been to prove them by evidence….’
That court was not forgetting that the Evidence Law does not for the most part apply to Area Courts and neither are we. Area Courts must be guided by the Evidence Law, and must avoid accepting as the equivalent of evidence given in the proper way on oath, evidence ‘given in an improper way and not on oath, ‘improper way’ we mean a way which bars an accused from testing that evidence in cross-examination.
In the present case the trial judge stated in his Judgement that, he relied on the letter from the Gwarzo Area Court. He said that he did so on the authority of S.19 Evidence Law. That section deals with admissions. This letter was not an admission. An admission is a statement made by a party to the case or his agent. The Area Court Judge at Gwarzo was neither. This letter was improperly produced and improperly admitted. It was not evidence.
Mr. Agbebi, Senior State Counsel submits that there was ample other evidence to support the finding that Faji had divorced Appellant. He referred us to the evidence of 1 p.w. and 2 p.w. This was oral evidence, it was good evidence of what happened at the trial but in our view it was inadequate to prove the order of that court. A decision of a court of law is provable only by a certified true copy of that order, certified by an officer of that court so authorised. We do not think it can be proved in evidence in any other way (except, of course, by the original record itself) if the record is in existence. (See S.131 Evidence Law).
Even if we are wrong in insisting on such an observance of the rules of evidence in an Area Court we do not think that the oral evidence amounted to proof of divorce. The marriage was a Moslem one. In a criminal case the prosecution must prove its case in full; it cannot rely on specialised knowledge of the judge. In the present case, even if the judge was learned in Moslem Law he did not say so nor did he in his Judgement state that Law or show how the oral evidence proved that everything required for the divorce was done. Appellant insisted as a fact that one thing which appears to have been agreed by all to have been essential, was not done namely, the full repayment of the dowry. In this he may or may not have been correct. The judge made no finding on this point. He did not properly consider the defence at all. But a defence, however slight must be considered; Christopher Otti V. Police (1965) N.R.N.L.R. 1.
While Area Courts are still not bound by much of the Criminal Procedure Code, yet they must be careful to be guided by it. This comment applies to s.268 Criminal Procedure Code. In Abdullah Diso v. Kano N.A. (1968) S.C.O.PE 19, the Appeal Court said:
“The trial court in its judgement … does not give any reasons for its decision at all. If it had been properly guided by 5.269 C.P.C. its judgement would contain the point or points for determination, the decision thereon and the reasons for the decision.”
Mr. Akanbi, for Appellant prefers to base his submission that the trial court did not give reasons for its decision and that it should have done so, on S.395(1) (i) C.P.C. If trial courts do not give their reasons for their decisions, in particular if they do not make specific findings of fact, it is, at the least, very difficult for an appeal court to decide whether the finding of the trial court was valid on the evidence. In the present case we do not think we can accept Mr. Agbebi Senior State Counsel’s submission that there was proof of the charge without the letter from the Gwarzo Area Court for the reason, inter alia that the trial judge made no finding of fact on the other evidence on any specific point, and that being so we cannot say what his assessment of the evidence of those points was. As an appeal court it is not for us to assess the credibility of the evidence of witnesses we have not seen or heard. A bare statement that the judge believes the prosecution witness is not enough.
The result of the defects in the trial and the judgement which we have mentioned is that we cannot safely support either conviction. The reason why we cannot support the conviction for abduction is that if Appellant was still married to Faji then he had a legal right to take her from where she was, and by force if necessary (as necessary). With regard to the first head of charge house trespass, the charge states that the house trespass alleged was committed by Appellant entering Sa’idu’s house in order to commit an offence, namely abduction. There is no mention of the alternative intention of intimidation, which could also constitute this offence, and there is no finding of such an intent. That being so, the two heads of charge stand or fall together. We have found that the conviction for abduction must fail. Thus, the conviction for house trespass fails also. We set aside both convictions and sentences.
However, we think this may be a case where a retrial should be ordered. We will hear counsel on the point.