Alhaji Isiyaku Mohammed V Kano Native Authority (1968)

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ADEMOLA, C.J.N.

The appellant was originally convicted in the Urban Area Court of Kano on a charge of criminal breach of trust and sentenced to a term of 8 years imprisonment with hard labour. He appealed to the High Court of the Kano Judicial Division (as it was then) which dismissed his appeal against conviction but reduced the sentence to 4 years imprisonment with hard labour. This then is a second appeal.

The appellant was employed by Alhaji Dantata & Sons and on 1st February, 1967 he was entrusted with a sum of £5,086:17s:6d in Kano for delivery in the ordinary course of business to one Hamza in Garin Gabas. The car in which he was to travel developed engine trouble and he took the money to his house for delivery next day. From the evidence before the court, it would appear that the appellant had been entrusted in the past with such large sums of money.

The amount was kept in a room upstairs which was locked up for the night. Early next morning a friend of the appellant who slept in the adjacent room reported that the room had been broken into and the window was found to have been interfered with. On examination of the room it was found that the case containing the money were missing save for an amount of £300 in coins in three boxes.

The appellant made a report to the police that the whole amount had been removed. During the police investigations which followed, apart from small amounts discovered in the house a sum of £830 was found in a kitchen in the house and which amount, it was alleged, the appellant was concealing. The investigations were made by one Inspector Markifa and his assistants.

The appeal before us was argued mainly on the conduct of the trial in the Urban Area Court. It was submitted that the appellant did not have a fair hearing as required by section 22 of the Constitution, and that the High Court of Justice of the Northern States which heard the appeal erred in failing to quash the conviction on the ground that the appellant had been deprived of his right to fair hearing. Section 22(2) of the Constitution reads:-

“(2)Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.”

It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two, The true test of a fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial, whether, from his observations, justice has been done in the case. We feel obliged to agree with this.

In his argument before us, counsel for the appellant directed our attention to certain portions of the judgments in the courts below about which he complained. We feel compelled to refer to a few. The first which we would like to examine is a portion in the penultimate paragraph of the judgment of the appeal court. It reads:-

“The appeal against conviction is dismissed. We are compelled to this conclusion with some reluctance in view of the irregularities in the investigation of the case and the conduct of the prosecution. It may be doubted whether a jury would have convicted after hearing the evidence of the appellant’s treatment at the Army Barracks..”

Now, what are the irregularities in the investigation and the conduct of prosecution to which the court of appeal referred? During the investigations the police officer (Inspector markifa) who led the investigation team, after examining the broken window through which access was gained into the appellant’s room from where the money was alleged stolen, found the nature of the breaking suspicious.

In his evidence before the Urban Area Court Inspector Markifa referred to the broken shutter of the window and pointed out that it was broken on the hinge side and that it was a panelled shutter and the frame of the panelling had been pulled apart at the joints. He gave as his opinion that this could not have been done when the shutter was bolted shut. The court later accepted this opinion tendered by the witness.

At the end of the prosecution”s case the area court judge viewed the site and examined the room where the money was kept. There is nothing to show that the appellant himself was present at this viewing or that there were questions asked of witnesses on the spot, particularly Inspector Markifa: See R. v. Oyefolu and Others 13 W.A.C.A. 186.

A note which was apparently made later forms part of the record. The record however does not show that the appellant was aware of the observations of the judge or that it was read out to him and invited to make comments or that he cross-examined any of the witnesses present at the locus in accordance with the view expressed by the West African Court of Appeal in R. v. Dogbe 12 WA.C.A 184.

The most serious part in this matter which causes some concern is the fact that the first witness for the prosecution Inspector Markifa was also the prosecutor in the Urban Area Court. As soon as he finished his evidence he assumed the role of the prosecutor.

From the evidence of this witness, to which we have referred, it is dear that his evidence was not merely formal; he carried out investigations in the case. At one stage in his evidence he tried to show that the appellant was trying to steal even the three bags of coins containing £100 each which he said earlier were not removed when the house was burgled. This is    what the Judges of Appeal in the High Court had to say on this point:-

“The evidence about the appellant’s attempt to get rid of the three bags of coins before his house was searched was incoherent and unsatisfactory. Coming as it did from the prosecutor and investigation office and his assistants led by him in evidence – a prosecutor who tendered the appellant’s statement exhibit H without disclosing how it was obtained and cross- examined the appellant suggesting that he had not in fad been beaten – this evidence seems hardly worthy of credence.”

In this connection we have to refer to the appellant’s statement exhibit H which was admitted in evidence. Much as Inspector Markifa tried to cover up or avoid giving evidence of how the appellant was taken from the police charge office to the army barracks, it was evident that the appellant was taken to the army barracks and there he was mercilessly whipped by two or more soldiers, the marks of which were still on his back during the trial.

The Urban Area Court judge admitted in evidence statements (exhibit H & F) made by the appellant after the bearing by the soldiers as voluntary because the beating was not carried out by the police but by persons “entirely alien to prosecution authority’ as put by the Urban Area Court judge.

We are satisfied from the evidence on record that these statements were extorted from the appellant and their reception as evidence against the appellant was clearly wrong. Inspector Markifa, the witness and prosecuting officer, told the court that the statements were made voluntarily and did not inform the court that the appellant had been whipped before making them.

There is yet another serious point to which we must refer and which strengthens the view we have taken of this matter that Inspector Markifa cannot be regarded as an unbased witness and prosecutor in this case. We have referred to a sum of £830 found in the appellant’s house during the search conducted by him. In his evidence about this discovery the Inspector left the court with the impression that this was part of the money alleged stolen. He did not say that the amount was not part of the amount alleged stolen until it was elicited from him by the accused under cross-examination that it clearly was not as the notes had different marks to the stolen notes.

The question we have to ask ourselves is whether taking into account all these circumstances we have enumerated about the conduct of this case, the appellant has had a fair hearing?

For the purpose of the test which counsel has suggested and which we mentioned earlier in this judgment, the burden is on the appellant to show that the irregularity and the conduct of the trial complained of led to a failure of justice. In the case Buraimoh Ajayi and anor v. Zaria Native Authority [1963] 1 All N.LR. 169 this court held that a fair trial was denied to the two appellants because the interpretation to them of the proceedings at their trial was defective. We are of the opinion in the present case that the conduct of Inspector Markifa to which we have referred in this judgment must leave an observer with the ‘impression that the appellant has been denied a fair trial.

Further, it cannot be said that justice was done to an accused person whose statement was admitted in evidence and relied on by the Urban Area Court, when that statement was made after he had been taken to an army barracks from the police charge office and there beaten up by soldiers. We are satisfied that the appellant has discharged the onus which the law placed upon him.

The Court of Appeal, in its judgment, referred to the irregularities in the investigations and the conduct of the trial but at the same time upheld the conviction with some reluctance. That court also expressed grave doubt whether a jury would, in the circumstances, have convicted the appellant. We are of the view that these are sufficient and enough reasons for the court to have discharged the appellant.

We feel compelled to say that for all these reasons the conviction of the Urban Area Court cannot be supported and this appeal must be allowed. We therefore set aside the decision of the Urban Court and allow this appeal. The appellant will therefore be acquitted.

Other Citation: (1968) LCN/1550(SC)