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11TH OCTOBER, 1974

SUIT NO. SC 123/1973.

3PLR/1974/18 (SC)



(1974) All N.L.R 599







Mr. R. O. A. Akinjide for the Appellant.

Mr. B. Morey-Bassey, Ag. D.P.P., South-Eastern State (with him Mr. E. E. Ekanem, State Counsel, South Eastern State) for the Respondent.


Criminal Law Appeal Torts Assault Powers of Magistrate under 5.300 of the Criminal Procedure Law (Cap. 31) of the East Central State.


FATAI-WILLIAMS, J.S.C. (Delivering the Judgment of the Court): In the Magistrate’s Court at Calabar, the appellant, a housewife and a teacher, was convicted of the offence of unlawfully assaulting one Stella Mbukpa, another housewife, by spitting on her face. According to section 351 of the Criminal Code of the South-Eastern State under which she was charged, the offence is a misdemeanour and an offender is liable, If convicted to imprisonment for one year.


After considering the evidence and stating that the prosecution have proved their case to his satisfaction, the learned Chief Magistrate found the appellant guilty of the offence and accordingly convicted her. Thereafter, the learned Chief Magistrate, after hearing the plea of the learned counsel for the appellant in mitigation, and in substitution for a sentence of imprisonment or a fins, apparently exercised the power conferred upon him by section 300 of the Criminal Procedure Law of the East-Central State which is applicable in the South-Eastern State and ordered as follows:


“I have carefully weighed the evidence of the P.W.s (i.e. prosecution witnesses and the denial of offence by the accused together with the evidence of D.W.2 (i.e defence witness 2). I had followed the rigorous cross-examination of P.W.s by the defence counsel. I find as a fact that on that occasion the accused spat on P.W.1. Prior to that spitting there was altercation that drew a crowd. Temper had run high and subsequent upon this P. W.1 stood in the year a few feet away from where accused stood at the verandah and was narrating the past incident to P. Ws 2 and 3. the presumption of fact is that P. W 1 must have mentioned the accused’s name and perhaps in a derisive manner as is characteristic of women quarelling. I conclude that the accused in order to spite P.W.1, spat on P.W.1. The point to consider then is whether in law the accused’s spitting amounted to assault on P.W.1 as charged. Certain human behaviours or acts done under normal circumstances would be regarded as insignificant and therefore Ignored but some acts done under other given circumstances would be very seriously regarded by the persons affected. This is the situation in this case………. Before the spitting both parties had engaged themselves in vulgar abuses thus accused cannot now claim that such verbal and derisive references to her name without other gestures or a threatening advance from P.W.1 justified or excused her spitting on P.W.1’s face in presence of her family ………. If the spitting was done after the banging noise upstairs followed by the altercation and some threatening of menacing advances from P.W.1 then it might have been provoke assault (which) could have been excused If not justified in law.” (Italics ours)


In the appeal to the High Court of the South-Eastern State against her conviction, the learned judge after reviewing the evidence again and concluding that the appellant was not provoked by the complainant (P.W.1) dismissed the appeal after finding as follow:


“On the whole 1 do not find anything wrong with the decision of the learned Chief Magistrate (except that on the available evidence he ought to have bound the appellant and the 1st P.W. over to keep the peace) and I do not intend to disturb that decision.” (Italics ours)


A number of points were urged upon as at the hearing of the further appeal to this court. The p* which, however, commended itself to us is the effect which the finding of the learned Chief Magistrate that both parties had an altercation and that “before the spitting both parties engaged themselves in vulgar abuses” should have had on him (the Chief Magistrate) when he was considering whether the appellant was innocent or guilty of the alleged assault. It cannot be gainsaid that this was also what the learned judge who heard the appeal in the High Court had in mind when he observed that, on the available evidence, the learned trial chief Magistrate ought to have bound both the appellant and the complainant over to keep the peace.


To our mind, the evidence which the learned Chief Magistrate accepted, and on which he based the conviction of the appellant, is indicative of quarrel between two housewives with all its ramifications and which culminated in the spitting. Therefore, the learned Chief Magistrate was in error in isolating the fact of spitting from what transpired between the parties before and then basing the conviction of the appellant upon it. Had he considered the whole incident together, including the reprehensible part played by both the complaint and the appellant, he would have realised the desirability of apportioning blame appropriately between the parties. we are therefore in complete agreement with the views of the learned judge who heard the appeal that both parties, and not the appellant alone, should have been bound over to keep the peace.


The power of the court to bind over both the complainant and an accused person to be of good behaviour will be found in section 300 of the Criminal Procedure Code (Cap. 31) to which we have referred earlier. The section reads:


“On any summary trial the court may, whether the complaint be dismissed or not bind over the complainant or defendant, or both or any of them, with or without a surety or sureties, to be of good behaviour, and may order any person so bound, in default of compliance with the order, to be imprisoned for any term not exceeding three months, with or without hard labour, in addition to any other punishment to which such person is liable.,’ (Italics ours)


From the foregoing, it is obvious that both the learned Chief Magistrate who heard the case and the learned judge who hear the appeal have the power to bind the parties over without convicting the appellant.


On the whole, it seemed to us that the conviction of the appellant, in these circumstances, would be inconsistent with an order which binds the two parties over to be of good behaviour since it would be implicit in such an order that both the complainant (P.W.1) and the appellant were jointly to blame for the incident. For this reason, the learned judge should have allowed the appeal and set aside the conviction and the order made against the appellant. It was not possible for us to reconcile his observation with this order dismissing the appeal. We therefore came to the conclusion that he was in error in making the order.


At the hearing of the appeal on 3rd October, 1974, and for the reasons which we now set out above, we allowed the appeal and set aside the conviction of the appellant. We also set aside the conviction of the appellant. We also set aside the order made by the learned Chief Magistrate on 21st June, 1972, that the appellant should enter into a recognizance to keep the peace and to be of good conduct for 12 months. Instead, we ordered that the appellant be acquitted and discharged.


Appeal allowed.



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