Godwin Josiah V. The State (1985)

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ESO, J.S.C.

On 1st November, 1984 when this matter came before the Court, I allowed the appeal of the appellant, set aside the judgment of the High Court of Bendel State sitting at Ogwashi-Uku and the Court of Appeal, and ordered a retrial by the High Court of Bendel State sitting in Benin City. I will now give my reasons for the course I took and the orders I made.

Let me first state the facts of the case that are relevant to the point of law that have arisen here. The appellant, Godwin Josiah, was one of three prisoners arraigned before the High Court of Bendel State sitting at Ogwashi-Uku.

At the end of the prosecution case, two of the prisoners were discharged by the court and the appellant was the only one left to face trial. The case was, at that stage, adjourned for further hearing till another date. It is pertinent at this stage to observe that throughout the trial, that is from the beginning to the end, the appellant was not represented by counsel.

What followed after two of the accused persons had been discharged is better reproduced from the record –

“The accused in person (sic) is present in Court.

Avbenaghegha State Counsel appears for the Attorney-General. Court: To the accused: – I now call you to state your defence. The right of the accused are explained to him and the accused says:- ‘I like to give evidence in my defence on oath…..”

What these rights were, that were explained to the accused person, had not been specifically set out in the record. Now, s.287 of the Criminal Procedure Law of Bendel State (Cap. 49) Laws of Bendel State of Nigeria, which is the relevant provision in issue, provides-

“At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence; the court shall call upon him for his defence and –

(a) if the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely-

(i) he may make a statement, without being sworn, from the place where he then is; in which case he will not be liable to cross examination; or

(ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross examination, or

(iii) he need say nothing at all, if he so wishes ” (Italics for emphasis)

This is the position only where a person is not represented by a legal practitioner. If he is represented, there is no problem, for the legal practitioner knows fully the implications of the accused person electing to pursue any of the three courses and to this, I will return anon.