Muktar Yerima V Bornu N.A. (1968)

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LEWIS, J.S.C. 

On the 23rd of May, 1967 the Chief Alkali in the Maiduguri “A” Limited Native Court convicted the appellant of rape contrary to section 282(t)(e) of the Penal Code and sentenced him to a fine of £20. Section 283 lays down that (whoever commits) rape “shall be punished with imprisonment for life or for any less term and shall also be liable to fine.” On the 17th of August, 1967 an Inspector of Native Courts reported the case to the High Court giving as his reasons “sentence does not fit the crime as provided for in the Penal Code”, and he did so by virtue of the powers conferred on him by section 52(1) of the Native Courts Law (cap. 78 of the Laws of Northern Nigeria 1963) which reads-

“52 (1) Subject to the provisions of section 47, every inspector, if in his opinion, there has been a miscarriage of justice in any case before a native court to which he has access under the provisions of section 49, may of his own motion or in his absolute discretion on the application of any person concerned, report that case to the court to which an appeal in such case would lie”.

In JD/38CA/1967 the High Court sitting at Jos on the 16th of February, 1968 considered the report of the Inspector of Native Courts and heard counsel on behalf of the present appellant, who was allowed to raise the issue not only of sentence, which and been referred to the High Court, but also of the conviction generally, but overruled counsel’s objection that section 389 of the Criminal Procedure Code had not been complied with as the High Court held that notwithstanding the non-compliance with section 389 there had been no failure of justice, so that by virtue of section 382 of the Criminal Procedure Code the conviction should not be reversed. The High Court accordingly confirmed the conviction but substituted for the sentence of a fine of £20 that had been imposed a sentence of 4 years imprisonment with hard labour and 6 strokes of the cane.

Against that decision the appellant has brought this appeal to this court and Mr. Brown-Peterside on his behalf has argued a number of grounds of appeal. The first two grounds which he argued together raised a constitutional point and they were:-

“That the proceedings before the appellate court were a nullity, in that section 52 of the Native Courts Law, cap. 78 Laws of Northern Nigeria, under which the review was undertaken is repugnant to sections 22(8) 22(5)(b) and 22(2) of the Constitution of the Federation of Nigeria and therefore unconstitutional,” and “Section 52 of the Native Courts Law, cap 78 Laws of Northern Nigeria under which the review was undertaken also contravenes section 22(8) of the Constitution of the Federation of Nigeria, hence all proceedings held pursuant to that section (i.e. 52 of the Native Courts Law aforesaid) are also null and void and of no legal effect.”

In fact in his argument before us counsel did not refer to section 22(8) of the Constitution of the Federal Republic of Nigeria but rested his case on sections 22(2) and 22(5)(b) which read:-

“(2) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.

(5) Every person who is charged with a criminal offence shall be entitled:-

(b) to be given adequate time and facilities for the preparation of his defence.,,

Mr. Brown-Peterside contended that as no time limit was laid down in section 52(1) of the Native Courts Law, unlike for instance section 28 of the former Native Courts Ordinance (cap. 142 of the Laws of Nigeria 1948) which prescribed a period of 6 months for the exercise of the powers of review therein provided, this power under the Native Courts Law could be exercised beyond the reasonable time laid down by section 22(2) of the Constitution. He further submitted that though the power had in this case been exercised within some 2 months and 25 days of the conviction it was nonetheless unreasonable as in his submission a reasonable time would be within 2 months, though he showed no authority or basis for this figure of 2 months other than that it would assist his client on this appeal.

Before however we have to determine what is a reasonable time within the meaning of section 22(2) of the Constitution it is first of all necessary for us to determine whether section 22(2) applies at all. Mr. Brown-Peterside submitted that the section should apply to appeals as a person is still being charged until the appeal is finally disposed of. We do not think that this is so as a person is charged only until he is convicted and it is the conviction that has to be appealed against and the appeal court has either to sustain or to allow the appeal against conviction. In any case however it seems clear to us that the wording of section 22(2) is dealing only with trials at first instance. Not only is a person not charged after his conviction at his trial but the words “unless the charge is withdrawn” can only apply to proceedings at the trial itself as no charges withdrawn after conviction. More-over the provisions of section 22(5) of the Constitution, which should be read in conjunction with section 22(2), read:-

“5. Every person who is charged with a criminal offence shall be entitled:-

(a) to be Informed promptly, in language that he understands and in detail, of the nature of the offence;

(b) to be given adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or by persons of his own choice who are legal practitioners;

(d) to examine in person or by his legal representatives the witnesses called by the prosecution before any court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to the witnesses called by the prosecution; and

(e) to have without payment the assistance of an interpreter If he cannot understand the language used at the trial of the offence:”

(The provision does not apply to this appeal).

These provisions of section 22(5) deal with the rights of a person who is charged with a criminal offence, and none of them is in the least appropriate for anything other than the trial at first instance, not even section 22(5)(b) which Mr. Brown- Peterside craved in aid of his argument pertaining to what happened at the hearing on review before the High Court. Having regard therefore to our view that section 22(2) and section 22(5) (b) do not pertain to hearings subsequent to a conviction after trial it does not become necessary in this appeal to determine what is a reasonable time for the purpose of section 22(2) of the Constitution.

Mr. Brown-Peterside however argued a further ground of appeal which reads ‘that the Chief Alkali erred in law in failing to call upon the appellant to state his defence and this error led to failure of justice.” Counsel contended that section 289 of the Criminal Procedure Code which reads:-

“Upon charging an accused person a native court shall call upon him to state his defence and to inform the court of the names and whereabouts of any wit-nesses whom he intends to call In his defence and the court shall procure the attendance of such witnesses and hear their evidence in like manner in all respects as a magistrate acting under section 163.”

had not been complied with here as all that the accused at his trial was asked according to the record was “Did you commit this offence or not?” and that the High Court was wrong to apply the provisions of section 382 of the Criminal Procedure Code, as it did, to the failure of the Chief Alkali to comply with section 389. He pointed out that by virtue of section 386(2) of the Criminal Procedure Code the native court was bound to apply section 389 and further submitted that to ask a person “are you guilty?” was tantamount to including an affirmative answer. The learned Attorney-General of the North East State for his part submitted that it was section 161 of the Criminal Procedure Code, which reads:-

“(1)If the court is of opinion that the offence is one which having regard to section 160 it should try itself, the charge shall then be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make.

(2) If the accused pleads guilty, the court shall record the plea and may In its discretion convict him thereon.

(3) The court shall before convicting on a plea of guilty satisfy itself that the accused has clearly understood the meaning of the charge in all its details and essentials and also the effect of his plea.”

that had first to be complied with and that as this was a provision by which native courts were only guided it was sufficient if the accused was asked, as was done here, “did you commit this offence or not?” — the important words “or not’ taking the matter out of the position put forward by Mr. Brown- Peterside If a court asked only “did you commit this offence?” In fact the learned Attorney General with the agreement of Mr. Brown-Peterside showed that a transcription of the original Hausa record of the question put to the accused was “did you perform this offence or did you not perform this offence?” which emphasises even more the alternative.

Now section 155 of the Criminal Procedure Code, which is the first section in Chapter 16 of the Code, reads:-

“Subject to the provisions of Chapter XXXIII the procedure laid down in this chapter shall be observed by magistrates’ courts and native courts.”

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So clearly not only does section 161 which is within Chapter 16 apply to nati

Other Citation: (1968) LCN/1549(SC)