Criminal Procedure-Magistrate
calling witnesses after close of
defence. Appeals from
Magistrates-Criminal
Appeals-Order on appeal for
re-trial Circumstances of case.
- Magistrates' Courts
(Appeals) Ordinance, section
43 (a) (i)-Power to order a
re-trial.
Appellant was charged on two
counts with unlawful possession
of mineral ore.
After the close of the case of
the defence the Magistrate
apparently did not regard the
evidence as sufficient to
convict upon and called three
additional witnesses, and
convicted the appellant on both
counts.
Appellant appealed to the
Supreme Court complaining
(a)
that the Magistrate ought not to
have called those witnesses, and
(b)
that he had misdirected himself
on onus of proof. The Judge
allowed the appeal but, under a
misapprehension relating to the
type of tin mentioned in the
first count, ordered the
appellant to be re-tried on that
count. The appellant appealed
further on the ground that in
the circumstances of his case
the order was not justified.
Held: It was right to allow the
appeal owing to the Magistrate's
calling additional evidence
after the close of the defence
to strengthen the prosecution's
case but wrong to order a
re-trial as this enabled the
prosecution to call that
evidence and therefore unfair to
the appellant. Moreover, the
Judge was under a
misapprehension relating to the
tin for which the appellant was
to be re-tried.
(Editor's Note: On the question
of additional evidence being
called, after the close of the
defence, by the Court
suo motu
see
Asuquo Edem and others
v.
R.,
9 W.A.C.A. 25;
Nelson Ohanyere,
W.A.C.A. No. 3033, at Lagos, on
5th October, 1949, in
cyclostyled judgments;
Horvat
v.
Police,
20 N.L.R. 52).
Appeal by convicted person: No.
3833.
F. R. A. Williams
for Appellant.
Fatayi Williams,
Crown Counsel, for
Inspector-General of Police.
The following judgment was
delivered:
Jibowu, Ag. S.P.J., Nige!ia.
This is an appeal by the
appellant against the order of
re-trial made by Hubbard, J., at
the Supreme Court, Jos, on the
6th day of June, 1952. The
circumstances leading to the
making of the order were that
the appellant was, on the 19th
day of December, 1951, charged
on two counts with being in
unlawful possession of some bags
of metalliferous minerals
contrary to section 430 (1) of
the Criminal Code, before the
Magistrate, Jos, who convicted
him on both counts and sentenced
him to a fine of £100 or 6
months' imprisonment on each
count; the sentences of
imprisonment were to run
consecutively in default of
payment of the fines.
He appealed against these
convictions to the Supreme
Court, Jos, which allowed the
appeal and set aside the
convictions on the grounds:-
(1) that the learned Magistrate
had wrongly admitted the
evidence of three witnesses
after the close of the case for
the defence, and
(2) that the learned Magistrate
had misdirected himself on the
question of the onus of proof
resting on the accused, now
appellant.
The Crown Counsel who appeared
for the Respondent asked the
learned Judge
[pg161]
to send the case back for
re-trial under the powers vested
in him by section
43 (a)
(i) of the Magistrate's Courts
(Appeals) Ordinance, and the
learned Judge then ordered a
re-trial of the appellant on
count 1.
Against this order of re-trial
the appellant has appealed to
this Court on the ground: that
the decision is erroneous in
point of law in that the learned
trial Judge ought not in the
circumstances of this case to
have made the order of re- trial
".
Section 43
(a)
(i) of the Magistrate's Courts
(Appeals) Ordinance appears to
invest the Supreme Court on
appeal from a conviction by the
Magistrate with power to reverse
the finding and sentence, and
acquit or discharge the accused
or order him to be re-tried by a
court of competent jurisdiction,
or commit him for trial".
The question which then falls
for determination by this Court
is whether the learned Judge was
justified in the circumstances
of this case in making the order
of re-trial.
It appears to us that the
learned Magistrate did not
consider the evidence before him
at the close of the case for the
defence sufficient to enable him
to convict the appellant, hence
he found it necessary to call
three additional witnesses to
strengthen the case for the
prosecution. The learned
Magistrate should, in the
circumstances, have acquitted
and discharged the appellant
instead of calling more
witnesses. We are satisfied that
the learned Judge rightly
allowed the appellant's appeal
and set aside his conviction,
but he should, in our view, have
acquitted the appellant as the
Magistrate ought to have done at
the close of the case for the
defence. By ordering a re-trial
of the appellant, the learned
Judge offered the prosecution
another chance of preparing
their case anew and of bringing
any new evidence they may wish,
including the very evidence the
admission of which led to the
appeal being allowed, in order
to secure a conviction against
the appellant. We consider this
not to be in keeping with the
spirit in which criminal justice
should be administered.
Furthermore, the learned Judge
made the following remarks in
his judgment: •• Suspicion,
however, does fall on the tin at
Gindiri Camp, because 60 bags of
tin were loaded on to a lorry at
about 4 a.m. on the road between
Jos and Gindiri Camp .
.. I add that the fact that 240
bags of tin had been stolen from
a railway wagon shortly before
the tin was discovered at
Gindiri Camp presumably cannot
be said to throw suspicion on
that tin, since the tin in the
wagon was no doubt export tin of
the proper grade for shipping,
while none of the tin at Gindiri,
nor indeed at Jos, was up to
that standard."
The tin found at Gindiri Camp
was the subject matter of the
first count of the charge
against the appellant.
The remarks of the learned Judge
about the quality of the tin
found at Gindiri Camp and at Jos
were based on the evidence of
the Inspector of Mines, the
sixth witness for the
prosecution, who assayed samples
of tin taken from the bags of
tin found in both places.
The fact that the samples of tin
examined did not come up to the
shipping grade was evidence that
the bags of tin found both at
Gindiri Camp and Jos could not
have been part of the stolen
tin. In the circumstances, we
are of the view that the learned
Judge erred in making the order
of re-trial. The learned Crown
Counsel appearing for the
respondent does not support the
order for a re-trial. We
therefore quash the order of
re-trial and direct that a
judgment and verdict of
acquittal be entered.
Appeal allowed; order of
re-trial set aside.
[pg 162]
