Mohammed Wal Dungus Vs The State (1973)
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FATAYI-WILLIAMS, JSC.
On the 9th day of September, 1971, at the Bornu Upper Area Court No. 2, the appellant was convicted of the offence of receiving thirteen heads of stolen cattle knowing them to have been stolen. His appeal to the Maiduguri High Court against the conviction was dismissed on 22nd November, 1972. He has now appealed to this court.
PAGE| 2 The facts can shortly be stated as follows. On 21st April, 1971, at about 12 noon, one Mallam Yauwa reported to the police that thieves had stolen his 33 heads of cattle and 18 sheep. The cattle and sheep were valued at £3,116. The animals, according to the complainant, were stolen while his son was looking after them at the pastures in Dambowa District. During the search for the missing cattle, Mallam Yauwa found four of them with one Mamman Hurso at Gulumba in Dikwa Division. When questioned, Mamman Hurso said he bought the four heads of cattle from one Gujja for £95. Gujja in turn said he bought them from the appellant. The sale was carried out inside the cattle pen in the appellant’s house.
During the course of the inquiry into the complaint by the Bornu Area Court as provided for in Section 158 of the Criminal Procedure Code, the court asked the appellant if he had any question to ask the complainant. The appellant said he had none to ask him. At first he denied selling the four heads of cattle to Gujja. Later he admitted the sale. To a question asked by Mallam Yauwa that during the search for his cattle, he and the police received information that after the thieves has stolen the 33 heads of cattle, they took 28 out of them to the appellant’s house and that the appellant bought 13 out of the 28 heads of cattle for £143, the appellant replied – “Yes, it is true, twenty-seven heads of cattle were taken to my house.
Hamma and Gorgel, the two drove the cattle to my house and offered them to me to buy. I bought 13 heads of cattle at £143.” The Upper Area Court then put the following question to the appellant – “It is stated that you bought the 13 heads of cattle at £143. Is it true this is what the cattle would fetch in the market at present?” And the appellant replied – “I knew it is not their actual price that I paid for them. At present a cow could not be bought £40 or £50 because cattle in these days are very dear and everybody knows this.”
During the course of the inquiry, the appellant admitted selling three heads of cattle to one Suleiman Wal-Lawan (P.W.3) for £54 and a one-and-a-half year old cow to one Ibrahim Wal-Mohammed (P.W.4) for £15. After the inquiry had been completed, the Judge of the Upper Area Court, pursuant to the provisions of Section 160 of the Criminal Procedure Code, thereupon framed the charge of receiving the 13 heads of cattle knowing them to have been stolen, against the appellants.
When asked if he was guilty of the offence or not, the appellant replied – “I have not committed this offence. Wal-Halim and his friend Hamma, the two brought 27 heads of cattle to my house. They said here are cattle if I wish to buy. I asked them how they obtained the cattle. They told me that the cattle are their personal property and they wanted to sell them and that they are not stolen ones. On this condition I believed them and bought 13 heads of cattle, they accepted my offer and I gave them £143.They received the money and went away. Later it came to light that the cattle were stolen ones. I do not know the cattle to have been stolen at the material time when I bought them.”
All the four witnesses called by the appellant to testify on his behalf denied knowing anything about the transaction. Hamma (4th D/W) who bears the same name as one of the persons the appellant said had offered to sell him 27 heads of cattle, denied that he was present when the sale of the cattle took place. With respect to this denial, the appellant observed as follows :- “The witness knows the facts of the matter but he refused to tell the truth just to avoid telling the truth.” In convicting the appellant, the Upper Area Court Judge observed that not only was the appellant unable to tell the court the persons from whom he bought the cattle, the actual sale was carried out “in a house hidden, not in open market where public go.” The trial Judge also observed that the price of £143 which the appellant paid for the cattle was far below the market value, cattle being very dear at the material time. Lastly, the trial Judge found that of the four witnesses called by the appellant, three said they knew nothing about the transaction while the fourth admitted buying a cow from the appellant for £18 but that when he heard that the cow had been stolen, he returned it to the appellant without even bothering to ask for the return of his money. The appeal to the High Court was dismissed. In dismissing the appeal, the Court observed as follows:- “He said he bought them from one Wal-Halim and ‘his friend Hamma’ but he did not produce either of these people or ask for them to be called as witnesses. He admitted buying these cattle at his house – not in the open market and paying £11 a head which is a gross undervalue. The Judge considered these matters in his judgment.” In the appeal now before us, the main, and indeed, the only serious complaint of Mr. Nnadi who appeared for the appellant, is about the question put to the appellant by the trial Judge when the complaint against him was being inquired into.
It will be recalled that when the trial Judge asked the appellant whether it was true that the sum of £143 which the appellant paid for the thirteen heads of cattle was ‘what the cattle would fetch in the market at present,” the appellant replied that he knew that what he paid for the cattle was not their actual price. He also went on to explain to the trial Judge that cattle were very dear at the material time and that as a result a cow would fetch between £40 and £50. Learned counsel then submitted that as the answer to the question asked by the court was clearly incriminating, the court should have complied with the provisions of Section 235(2) of the Criminal Procedure Code of the Northern States before allowing the appellant to answer the question. We shall have more to say about this section later. Mr. Sulu-Gambari, Acting Senior State Counsel, North Eastern State, who appeared for the respondent, submitted, in his reply, that there was nothing wrong in the question asked by the trial Judge if the purpose was to obtain from the appellant an explanation of an aspect of his line of defence.
Learned State Counsel further submitted that as the appellant was not compelled to answer the question, there was no failure of justice. Finally, Mr. Sulu-Gambari contended that, even assuming that the evidence produced by the appellant’s answer was wrongly admitted, there is still some evidence, which the court accepted, from which it could be inferred that the appellant bought the heads of cattle knowing them to have been stolen. We think there is merit in the complaint of the learned counsel for the appellant.
In this connection, we refer to the provisions of Section 235 of the Criminal Procedure Code which read- “235(1). For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the court may, if the accused so agrees, at any stage of an inquiry or trial, after explaining to the accused the effect of sub-sections (2) and (3), put such questions to him as the court considers necessary and in such case shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. (2). The accused shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the court may draw such inference from such refusal or answers as it thinks just. (3). The answers given by the accused may be taken into consideration in the inquiry or trial. (4). The sole purpose of such examination shall be to discover the line of defence and to make clear to the accused the particular points in the case for the prosecution which he had to meet and there shall be nothing in the nature of a general cross-examination for the purpose of establishing the guilt of the accused.
PAGE| 5 (5). No oath shall be administered to the accused for the purposes of an examination under this section.” (The underlining is ours.) We are also aware of the provisions of Section 386 of the same Code which stated as follows- “386(1). In any matter of a criminal nature a native court shall be guided in regard to practice and procedure by the provisions of this Criminal Procedure Code other than those provisions which relate only to any court other than a native court. (2). Notwithstanding the provisions of sub-Section (1), all native courts shall be bound by the provisions of Sections 388, 389, 390, 391, 393, 392, 394 and 395. (3). The fact that a native court has not been guided or properly guided by the provisions of this Criminal Procedure Code shall not entitle any person to be acquitted or any order of the court to be set aside.”
Admittedly, the trial court in the instant case, because of the above provisions, is not bound by the provisions of Section 235 of the Criminal Procedure Code. The court is only required to be guided by it. Nevertheless, we must not overlook the overriding provisions of Section 22(9) of the Constitution of the Federation which read – “22(9). No person who is tried for a criminal offence shall be compelled to give evidence at his trial.” When the appellant was questioned by the trial Judge about the prevailing market price of the stolen cattle, he was not warned, as required by Section 236 sub-section (1)(b) of the Criminal Procedure Code, that he was not bound to give evidence and that if he did so, his evidence may be used at his trial.
In fact, he was not even asked if he agreed that he should be questioned at all at that stage in the proceedings. Considering the circumstances, the appellant was, as it were, left with no alternative but to give an answer, which, having regard to the way the question was couched, could make him, and indeed made him, incriminate himself. This is precisely what the provisions of Section 235 sub-sections (1) and (4) of the Criminal Procedure Code say that the court should not do. Moreover, Section 22(9) of the Constitution, to which we have earlier referred, provides that an accused person must not be compelled to give evidence.
Therefore, by not warning the appellant that he was not bound to answer what is undoubtedly a loaded question, the trial Judge failed to be guided by the appropriate provisions of the Criminal Procedure Code. A case in point, referred to by Mr. Nnadi in the course of his argument before us, is that of Umaru Guribi v. Sokoto N.A. (unreported but see Appeal No. K/52C/67 delivered on 6th November, 1968), the facts of which are not unlike those of the case in hand. PAGE| 6 In that case Hurley, C.J., rightly in our view, observed as follows: “Then the court asked the appellant, ‘Are these statement true,’ and that was wrong also. By Section 22(9) of the Constitution of the Federation, no person who is tried for a criminal offence shall be compelled to give evidence at the trial, and that means that he must not be questioned about the facts of the case without first being told that he is not compelled to answer or, as Section 235(2) of the Criminal Procedure Code says, that he will not make himself liable to punishment by refusing to answer. The trial court put the question to the appellant and recorded his answer without telling him that.
The result was that the case was not properly tried, and the conviction must be set aside.” We think the question was ill-advised and, therefore, both the question and the answer to it must be completely discountenanced. The next question is whether this omission has occasioned a failure of justice. This question is particularly apposite because of the provisions of Section 288 of the Criminal Procedure Code. The section reads – “288. A court exercising appellate jurisdiction shall not in the exercise of such jurisdiction interfere with the finding or sentence or other order of the lower court on the ground only that evidence has been wrongly admitted or that there has been a technical irregularity in procedure, unless it is satisfied that a failure of justice had been occasioned by such admission or irregularity.”
In the instant case, quite apart from the evidence as to the sale of the 13 heads of cattle to the appellant at a gross undervalue, there is also evidence, which the trial court accepted, that the 13 heads of cattle were among those stolen from the complainant; that the sale to the appellant, which took place soon after the theft, was conducted secretly in the house of the appellant and not in the open market; that the appellant did not produce those from whom he bought the cattle; that all the four witnesses whom he called denied any knowledge of the sale of cattle to him; and that one of these witnesses (Mohammadu Wal-Hassan – D/W3) admitted buying one cow from the appellant for the paltry sum of £18.
Added to all these is the significant admission of the appellant himself that when the heads of cattle were offered by “Wal-Halim and his friend Hamma” to him to buy, they told him “That the cattle are not stolen.” One is tempted to ask, why should the vendors make this comment and having made it, why did it not put the appellant, if he was all that innocent, on his guard and cause him to make further inquiries before he bought?
Be that as it may, we are of the view that, even without the evidence of the amount which the appellant paid for the cattle, there still remained credible, abundant and weighty evidence from which the trial court could infer, and rightly inferred, that the appellant bought the thirteen heads of cattle knowing them to have been stolen.
We are satisfied therefore, that the conviction of the appellant could easily be sustained on other evidence and has occasioned no failure of justice.
Other Citation: (1973) LCN/1700(SC)
