Lawrence Agbaje V. The Republic (1964)

LawGlobal-Hub Lead Judgment Report

BRETT, J.S.C.

In this case the applicant was tried on a charge of murder in the High Court of Lagos before Coker J. (as he then was) sitting with a jury. The judge directed the jury that there was evidence of provocation which would, if they accepted it, justify them in convicting the applicant of manslaughter only and, acting on this direction, the jury convicted of the lesser offence. The sentence imposed was one of 9 years imprisonment with hard labour, and the chief ground on which leave to appeal is sought is that the sentence is excessive having regard to the age of the applicant.

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The applicant, who appeared in person before this court, alleges that his present age is only 15. He certainly looks as though his age might not be more than 15 or 16. He stated in this court that on his arrest he told the police officer to whom he was making a statement under caution that his age was 14, but the police officer wrote down his age as 17; when he came to give evidence in the High Court he stated his age as 17 and he explained this to us by saying that he had heard his statement read out and felt unable to contradict the age set out in that statement. He said in evidence that he had been examined by a prison doctor, who had estimated his age as 20 or 21.

Having regard to the applicant’s own admission on oath, we do not feel able to say that the trial judge was wrong, in view of Section 208 of the Criminal Procedure Act, in trying him as an adult. The sentence is a severe one for a person of his age, but he is in some respects fortunate that the jury took a favourable view of the evidence as to provocation and we are not disposed to interfere with the sentence.

We would, however, comment on the extent to which the learned trial judge permitted the jury to intervene in the case by putting questions to witnesses. Of the nine witnesses called for the prosecution, five were questioned by the jury and three were recalled at the request of the jury after a visit to the scene of the crime. In the record of proceedings, at the close of the evidence of the other four witnesses for the prosecution, there appeared the words “By Jury no questions,” which leads us to suppose that the jury may have been invited, as a matter of course, to question the witnesses. The applicant and two of his four witnesses were also questioned by the jury, and the answers by the applicant to the jury’s questions include:

“I do not smoke anything at all”

which suggests that the jury were speculating whether the applicant was under the influence of some narcotic at the time, although such a suggestion formed no part of the case either of the prosecution or of the defence.

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Strictly speaking, there was nothing contrary to law in this. Sections 222 and 223 of the Evidence Act, when read together, give the jury the amplest powers of asking questions. Section 222 reads in part as follows:-

“The court or any person empowered by law to take evidence may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order or, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.”

Section 223 reads as follows:-

“In cases tried by jury or with assessors, the jury or assessors may put any questions to the witnesses, through or by leave of the judge, which the judge himself might put and which he considers proper.”

Nevertheless it is the traditional function of a jury to decide cases on the evidence brought out before them by the contesting parties and we are of the opinion that in the exercise of his discretion to decide what questions are proper the judge should discourage a jury from asking questions other than those designed to clarify answers given to questions asked by one of the parties.

Apart from the danger that a jury may step or seem to step outside its proper function, it must be borne in mind that juries are not skilled in the law of evidence and may inadvertently bring out irrelevant matters which are seriously prejudicial to one of the parties. It is true that the judge can direct a witness that he need not answer such a question, but a direction of that kind might well lead a jury to suppose that the witness had something discreditable to hide, and the mischief is done once an improper question is asked: of. R. v. Baldwin 28 Cox C.C. 17. In our view the only safe course is to restrict the asking of questions by a jury within the limits which we have suggested.

In the present case, however, it does not appear to us that any substantial miscarriage of justice has taken place and leave to appeal was refused when the matter came before the court on the 18th September, 1964.

Other Citation: (1964) LCN/1123(SC)