Public
Holidays-Court sitting at
request of defence. Appeals in
Criminal Cases-Court sitting on
public holiday-Where no
miscarriage of justice-West
African Court of Appeal
Ordinance, section 11 and
proviso.
During the
trial, the case was adjourned to
a day which was later proclaimed
a public holiday, and though the
Magistrate pointed it out, the
defence submitted he could sit
on that day and desired him to
hear a witness who might not be
available afterwards. The
Magistrate heard him and
believed his evidence, but
eventually convicted the
appellant nevertheless.
The
appellant, in his appeal to the
Supreme Court, sought to add a
ground that owing to the
Magistrate's sitting on a public
holiday, the proceedings were
null and void; the Judge refused
to allow this ground to be added
and dismissed the appeal. The
appellant appealed further on
that point.
Held:
A public holiday is, like a
Sunday, a dies non juridicus,
and the Magistrate should
not have sat on a public
holiday, but he did so at the
request, and in the interests of
the defence; there was neither
prejudice to the defence nor any
substantial miscarriage of
justice, and the Court would
apply the proviso to section 11
of the \Vest African Court of
Appeal Ordinance and dismiss the
appeal. ,
Appeal from
the decision of the Supreme
Court dismissing the appeal from
the
Magistrate: Criminal Appeal-W.A.C.A,
3664.
Appellant in
person.
E. Egbuna,
Crown Counsel, for
Respondent (the Police),
The
following judgment was
delivered:
Verity,
C.]. This is an appeal from
a decision of the Supreme Court
confirming a conviction in the
Magistrate's Court, Kano, It
appears that in the course of
the trial before the Magistrate,
the case was adjourned to a
certain day which was
subsequently proclaimed a public
holiday. When the Court sat on
that day the learned Magistrate
drew the attention of Counsel
for the present appellant to the
fact that the day was a public
holiday. Counselˇ for the
appellant who desired that a
witness for the defence should
be heard and who intimated that
there might be difficulty in
securing his attendance at a
later date, submitted that the
Court was competent to sit on a
public holiday, The Magistrate
continued the hearing therefore
on that day, heard the witness
for the defence, heard also on
that day submissions of Counsel
for the defence and then
adjourned.
On a
subsequent day he heard
submissions of the Counsel for
the prosecution, and on a
further day still, he delivered
judgment convicting the
appellant. The appellant
appealed to the Supreme Court,
and after submitting certain
grounds of appeal, sought to add
further a ground of appeal that
the Magistrate having sat on the
public holiday did so without
jurisdiction and the proceedings
were therefore null and void.
The learned Judge of the Supreme
Court in the circumstances
refused to allow this ground of.
appeal to be added. The
appellant
has now
appealed to this Court,
'
It has
recently been held by this Court
that a public holiday in this
Country is like a Sunday dies
non juridicus and that no
law proceedings can be held on
such a day, and therefore the
appellant might b" held to have
established the
[pg 24]
point raised by him in
his ground of appeal, but ~y
reason of section 11 of the West
African Court of Appeal
Ordinance and the proviso
thereto, this Court must look
further than that, and although
the point raised by the ground
might be upheld, if this Court
considers that no substantial
miscarriage 6f justice has
actually occurred, it will
dismiss the appeal.
