Emmanuel Ibeziako v. Commissioner of Police (1963)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.F. 

This appeal raises a question of very great importance for Northern Nigeria where the Criminal Procedure Code is in force. The appellant was convicted by the Magistrate of the Jos Magisterial District on a charge of offering or giving gratification to a public servant contrary to section 118 of the Penal Code. He appealed to the High Court and failed. This appeal to this Court is a second appeal and the ground of appeal, as amended, reads::-
“The procedure adopted in the Court below (the Magistrate’s Court) for the trial of the appellant contravened the provisions of section 21 (4) of the Constitution of the Federation because the presumption of innocence provided for under that subsection was violated”.
Sub-section 21 (4) referred to provides that:-

“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty:
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts:”

That provision enshrines a principle which has always been observed in our courts, and which is succinctly enunciated in Woolmington v. The Director of Public Prosecutions, 1935, A.C. 462 at p. 481, where Lord Sankey, L.c. said as follows::-

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.”
The exceptions to which Lord Sankey was alluding were certain principles at Common Law, such as insanity, in which the burden of proof lies on the accused persons. There are also a few statutes that create some presumptions, which an accused person has the duty to rebut. These were referred to in the case of R. v. Carr-Briant [1943] 1 K.B. 607 where the standard of proof required of an accused person, or proof upon the preponderance of evidence was discussed.

During the argument before us, a number of cases were referred to on the meaning of the word “charged” in the sub-section. It was said it may mean “charged by the Police” in accordance with Police practice, or “charged in Court” in the nature of formal accusation. It seems unnecessary to discuss these cases for, whether or not the sub-section can mean “charged by the police”, there is no doubt that it is right to understand it in the present case meaning “Charged in Court”, having regard to the con; it is in court that an accused person is proved guilty, and it is there he would have, if the law so provided in regard to the offence charged, “the burden of proving particular facts.” It is common ground that the appellant was not “charged” at the beginning of the proceedings in the Magistrate’s Court. The nature of his present complaint will be better appreciated if the proceedings there are summarised.
The appellant appeared as the 2nd accused person, with a co-accused, and both had counsel. The First Information Report (which, as required by section 118 of the Criminal Procedure Code, is sent by the Police to the court) was explained to them, and they were cautioned; they close to say nothing. The note is “For P.I.”. They were remanded on bail, and it was on a later day that the note reads “for trial”. Crown Counsel appeared for the prosecution, and addressed the court on the evidence to be adduced. The accused had their counsel. Five witnesses were called, examined and cross-examined, over several days. Then the Magistrate framed two charges – one against each of the accused – which he read and explained to them, and each pleaded not guilty; copies of the charge were handed to counsel on either side.
The form of the charge, in respect of the appellant, is-
“I Jeffrey Richard Jones, Acting Chief Magistrate, Jos, charge you Emmanuel Ibeziako that you. . . and thereby committed an offence under section 118 of the Penal Code Law, 1959.” The case was adjourned for some days. At first counsel for the defence said they wished to recall one witness, but at the resumed hearing he said they did not so wish. The prosecution called three more witnesses; the defence said they were not calling any evidence, and counsel addressed the court. Judgment was given on a later day convicting the two accused; they appealed, one of their grounds being similar to the one advanced by the appellant in his further appeal from the High Court, where the Magistrate was upheld. Before us, Rotimi Williams argued for the appellant and Mr Ian Lewis, Attorney-General of the Northern Region, argued for the respondent.
There was no suggestion that any section of the Criminal Procedure Code had been contravened. It will be convenient to start with the provisions of the relevant sections of the Criminal Procedure Code.
The First Information Report was sent to the court under section 118 of the Procedure Code, with which we are not at present concerned. Section 158 and section 159 of the Code provide as follows:-”
158.
(1) When the magistrate decides not to convict the accused under section 157 or when an accused person states that he intends to show cause why he should not be convicted the magistrate shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution.

(2) The magistrate shall ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and shall summon to give evidence before him such of them as he thinks necessary.

(3) The accused shall be at liberty to cross-examine the witnesses for the prosecution and, if he does so, the prosecutor may re-examine them.

“159. (1) If upon taking all the evidence referred to in section 158 and making such examination of the accused as the magistrate thinks necessary for the purpose of enabling him to explain any circumstances appearing in the evidence the magistrate finds that no case against the accused has been made out which if not rebutted would warrant his conviction the magistrate shall discharge him.

(2) The magistrate may discharge the accused at any previous stage of the case; if for reasons to be recorded by him he considers the charge to be groundless.

(3) A discharge under this section shall not be a bar to further proceedings against the accused in respect of the same matter.

They are to be read with sections 144 and 145 of the Code which are as follows::-

“144. When the accused persons appears before a court taking cognizance of an offence, the court may require the police officer, if any, in charge of the investigation, or any police officer acting on his behalf, to state a summary of the case and, if the court shall think fit, to produce the case diary for its inspection; and upon the application of any such police officer or of its own motion, the court may give such directions as to the matters to be proved and how they are to be proved, and what documents or other exhibits are to be produced as the court may think fit.” (Amended by .N.R. No. 20 of 1960).

“145. When a court has exercised its powers under section 144 it shall inforn the accused person that he is not required to say anything at that stage, but that if he wishes to inform the court of the substance of his defence he can do so in order that the court may give him such advice as it may think fit.” (Amended by N.R. No. 20 of 1960).