Prophet Malim Sheriff Kajola Vs Commissioner Of Police (1973)

LawGlobal-Hub Lead Judgment Report

ELIAS, C.J.N.

In appeal No. LD/25CA/72 before Taylor, CJ., in the High Court, Lagos State, the accused/appellant appealed against the judgment of the Acting Senior Magistrate, Apapa, in which he had been convicted and sentenced to two years imprisonment with hard labour on the following charge:

“That you Prophet Malim Sheriff Kajola on the same day, time and place, unlawfully assaulted P.C. No. 24281 Sunday Ugbodu while in the execution of his lawful duty and thereby committed an offence punishable under Section 356 subsection 2 of the Criminal Code.”

The main ground of appeal was as follows:

“That the learned trial magistrate erred in law in failing to comply with the requirements of Section 287 subsection 1 (a) and Section 288 of the Criminal Procedure Act.’

Now, Section 287, subsections 1 (a) and (b) of the Criminal Procedure Act provides as follows:

“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:-

(1) 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

(2) 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

(3) he need say nothing at all, if he so wishes, and in addition the court shall ask him if he has any witnesses to examine or other evidence to adduce in his defence and the court shall then hear the defendant and his witnesses and other evidence, if any; and

(b) if the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence.”

And Section 288 of the same Act reads:

“Failure to comply with the requirements of paragraph (a) in Section 287 shall not of itself vitiate the trial provided that the court called upon the defendant for his defence and asked him if he had any witnesses and heard the defendant and his witnesses and other evidence, if any.”