Criminal Law and
Procedure-Rights of defendant
called upon for his defence-Reasons
for judgment. Criminal Procedure
Ordinance-Sections
245, 286, 287 (1)
(a), and 288. Magistrates'
Courts (Appeals) Ordinance,
section
21 (3)-Reasons for decision.
Put briefly, section 245 of the
Criminal Procedure Ordinance
requires reasons to be given for
the decision, but the proviso
largely nullifies that
requirement in the case of a
Magistrate; though section 21
(3) of the Magistrate's Courts
(Appeals) Ordinance contemplates
that reasons will be transmitted
with the record.
Section 286 provides that at the
end of the prosecution case the
defendant shall be discharged if
no case has been made against
him to answer, or, if a case has
been made out, be called upon
for his defence. And section 287
(1)
(a)
provides that if the defendant
has no counsel he shall be told
his rights-viz. that he may give
evidence and be examined, or
make a statement, or say nothing
-and be asked also whether he
has witnesses; but
non-compliance does not
per se
vitiate the trial if the Court
called on the defendant for his
defence and asked him
if
he had witnesses and heard him
and his witnesses and other
evidence, if any: section 288.
The appellant was being tried
with another, who, he had told
the police, had given him the
stolen twine to sell. Neither
was discharged at the end of the
prosecution case; the record did
not say whether the appellant
was informed of his rights but
merely that he elected to give
evidence (an indication that he
was so informed); and
immediately after he testified
in chief, he was convicted, with
this added remark, " I believe
he was with second accused but I
have not got the evidence-second
accused discharged ".
In the appeal to the Supreme
Court the Judge thought there
had been irregularities but they
had not affected the appellant
as he had not offered any
explanation
in
his evidence about the bundles
of twine he had sold to the
witness called by the police.
The appellant appealed further
and his Counsel complained that
no reasons had been given for
the conviction, and submitted
that the appellant had been
adversely affected because he
was not asked if he had
witnesses to call and owing to
the co-defendant being put on
his defence he was misled into
thinking he would have the
chance to examine his
co-defendant's witnesses and
also the co-defendant, should he
give evidence. Counsel for the
police submitted it was a fit
case for re-trial.
Held:
As there was a bare possibility
that the appellant might have
been prejudiced by the
irregularities of the
co-defendant not being
discharged before the defence
began and of the appellant not
being asked about witnesses,
are-trial would be ordered.
Per curiam:
It is desirable that reasons be
given except where the reason
for a decision is quite obvious.
Further appeal by convicted
person from Supreme Court's
decision affirming the
Magistrate: No. 3791.
G.
B. A. Coker
for Appellant.
Oki,
Crown Counsel, for Respondent.
[pg 171]
The
following judgment
was delivered:
de Comarmond, Ag. C.]., Nigeria.
This is an appeal from a
decision of Jibowu, J.,
dismissing an appeal against a
conviction pronounced by the
learned Chief Magistrate, Evelyn
Brown.
The accused was charged together
with a man called Lamidi Alabi
with stealing 70 bundles of
fishing twine. The facts
established by the prosecution
were that one Makuako had missed
70 bundles of twine which he had
just bought and which he had
left at a certain spot. He
complained to the police and a
constable went with him to
search for the missing articles.
Seventeen bundles of the twine
were found in a shop kept by a
woman. The latter volunteered to
point out the man from whom she
had bought the twine. She took
the complainant and the
constable to a shop where the
present appellant was found with
six bundles of the twine in his
possession. The appellant denied
having sold the twine to her and
was arrested. He said that the
six bundles in his possession
had been entrusted to him for
sale by a man (second accused)
whom he pointed out; he then
escaped but was recaptured. The
second accused denied the
allegation made against him by
the first accused (i.e. present
appellant).
These events occurred on the
same day.
The two accused were not
defended by Counsel in the
Magistrate's Court.
The learned Magistrate did not
discharge the second accused at
the close of the case for the
prosecution and, according to
the record, the first accused
(i.e. present appellant) elected
to give sworn evidence. There is
no mention that the first
accused was informed by the
Magistrate of his rights to make
an unworn statement, or to give
evidence on oath or to say
nothing; neither was he asked
whether he had any witnesses to
examine or other evidence to
adduce. On the face of the
record therefore there is no
indication that section 287 (1)
(a)
of the Criminal Procedure
Ordinance (Cap. 43), was
complied with.
We note, however, that the
learned Magistrate did mention
in his notes that the first
accused" elected" to give sworn
evidence. It is therefore not
unlikely that the Magistrate did
comply with the law, but there
is no record of his so doing.
Section 288 of the Criminal
Procedure Ordinance lays down
that noncompliance with the
requirements of section 287 (1)
(a)
shall not of itself vitiate the
trial provided that the Court
called upon the defendant for
his defence and asked him if he
had any witnesses and heard the
defendant and his witnesses and
other evidence, if any.
As already mentioned, the first
accused did give evidence. He
was not crossexamined either by
the prosecution or by the second
accused. According to the
record, immediately after the
first accused had given
evidence, the learned Magistrate
found him guilty and added the
following remark: " I believe he
was with second accused but I
have not got the evidence-second
accused discharged ".
We do not consider it necessary
to deal with all the grounds of
appeal filed in this Court but
we wish to mention that we
struck out one ground on a point
of law which had not been
mentioned in the grounds argued
before Jibowu, J. In so doing we
followed the decision of this
Court in
Valentine Esiaba
v.
Commissioner of Police,
W.A.C.A. 3122 (Cyclostyled
Reports, July, October-December,
1950, p. 30). The disappearance
of that ground did not in the
present instance prejudice the
appellant because his Counsel
was allowed to present the point
under another ground which was
to the effect that the whole
proceedings were so irregular as
to result in a miscarriage of
justice.
The first ground argued by
learned Counsel for the
appellant was that the appellant
was deprived of the opportunity
of cross-examining the second
accused. This ground is
misconceived. The appellant
could not rely on having the
[pg 172]
opportunity to
cross-examine his co-accused
because he could have done so
only if the co-accused elected
to give evidence.
The next ground was, in effect,
that the learned :.Yl2.gistrate
had not given reasons for his
decision as laid down in section
245 of the Criminal Procedure
Ordinance.
Section
245 provides that the Judge or a
Magistrate shall record his
judgment in writing and shall
set out the point or points for
determination, the decision
thereon and the reasons
therefore. There is, however, a
proviso to the effect that in
the case of a Magistrate it
shall be sufficient compliance
with the section if the
Magistrate records briefly his
decisions and where necessary
his reasons and delivers an oral
judgment, or if he draws up a
formal conviction.
This proviso nullifies to a
large extent the initial
provisions of the section, in so
far as Magistrates are
concerned. The important point
about section
245 is that it does not provide
that non-compliance with its
provisions invalidates a
conviction. It is certainly
desirable that reasons be given
except where the reason for a
decision is quite obvious. We
would point out that section 21
(3) of the Magistrate's Courts
(Appeals) Ordinance (Cap. 123)
contemplates the transmission of
reasons with the copy of the
proceedings when there is an
appeal.
In the present case we are of
opinion that the learned
Magistrate should have been more
explicit. The matter need not be
laboured further in view of the
nature of our decision in the
present appeal.
The substantial ground of appeal
was that there had been a
miscarriage of justice because
the proceedings were irregular.
Jibowu, ]., agreed that there
had been an irregularity but he
took the view that such
irregularities in no way
affected the appellant because
he had no defence about the 17
bundles sold by him to the
woman.
This observation of the learned
Judge is very pertinent: the
appellant did not offer any
explanation about the 17 bundles
when he gave evidence. Mr. Coker
for the appellant has submitted
that the appellant was adversely
affected because he was not
asked whether he had witnesses
to call or evidence to adduce,
and also because the second
accused having been put on his
defence, he (the appellant) was
misled into thinking that he
would have an opportunity of
cross-examining the witnesses of
the second accused or the second
accused himself (if he elected
to give evidence).
We doubt whether the outcome of
the trial would have been any
different had the Magistrate
discharged the second accused
before the defence opened and
had he asked the appellant about
witnesses. However, as there is
a bare possibility that the
appellant may have been
prejudiced and in view of Crown
Counsel's submission that this
is a fit case for a re-trial, we
have decided to allow the
appeal, quash the conviction and
order a re-trial by a Court of
competent jurisdiction, i.e. by
a Magistrate if the appellant
elects summary trial or by the
Supreme Court if he does not
(sections 8 and
43 of Cap. 123).
The appeal is therefore allowed,
the conviction is quashed and a
re-trial is ordered as set out
above.
Appeal allowed: order for
re-trial.
[pg173]
