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.”
According to the learned Chief Justice, at the end of the case for the prosecution, the learned Acting Senior Magistrate had ruled as follows:
“In the absence of medical evidence a charge under Section 355 of the Criminal Code against the accused person cannot be sustained. For this reason I hold that there is no prima facie case for the accused person to answer on counts 1 and 2. He is discharged and acquitted on counts 1 and 2.
I hold that the accused has a prima facie case to answer in respect of count 3 and I now call on him for his defence in respect of this count. Accused informs the court that he has nothing to say and rests his case on that of the prosecution.”
The learned Chief Justice then made the following observation:
“In the case before me in the passage to which I have made mention the learned Acting Senior Magistrate did make mention that he informed the accused of his right to give evidence and call witnesses and it is apparent on the record itself that after holding that a prima facie case was made out, the Magistrate did call on the accused for his defence in respect of this count and the accused stated that he has nothing to say and rested his case on that of the prosecution.”
Considering that the learned Acting Senior Magistrate had satisfied the requirements of Sections 287 (a) and 288 of the Criminal Procedure Act, the learned Chief Justice proceeded to dismiss the appeal before him.
Against this dismissal, the present appeal has been brought before us on the following main ground:
“That the learned appellate judge erred in law and in fact in holding that on the record of appeal the requirements of Section 287 (1) (a) and Section 288 of the Criminal Procedure Act were complied with.”
Chief Fani-Kayode, learned counsel for the appellant, argued that the learned Chief Justice had erred in holding that, on the basis of the record of appeal the learned Acting Senior Magistrate had complied with the requirements of Sections 287 (1) (a) and 288 of the Criminal Procedure Act, since in his view it was the learned Chief Justice himself who had raised the relevant question for the first time when he said:
“It seems to me that what I have to ask myself here is whether the learned trial Magistrate complied with the provisions of Section 288. In other words, did the learned trial Magistrate call upon the defendant for his defence and ask him if he had any witnesses and heard the defendant and his witnesses and other evidence, if any”
Learned counsel further pointed out that it is not sufficient for the purposes of Section 287 (1) that the learned trial Senior Magistrate should in effect be deemed to have impliedly taken the necessary statutory steps by merely calling upon the accused “for his defence in respect of this count.” It is his submission that the record of the magistrate’s court must show that the accused had the three alternative possibilities under Section 287 (1) (a) specifically put to him and that only then can Section 288 apply. He referred us to the case of Atunde v. Commissioner of Police, 14 WACA 171 which is, however, not quite to the point. While we think that there is merit in this contention, we must draw attention to the state of the record before the learned Acting Senior Magistrate, the relevant portion of which reads as follows:
“I hold that the accused has a prima facie case to answer in respect of count 3 and I now call on him for his defence in respect of this count.
(Sgd.) A. Olufemi Jacobs,
Acting Senior Magistrate.
Accused informs the court that he has nothing to say and rests his case on that of the prosecution.”
We note that the portion before the learned Acting Senior Magistrate’s signature is insufficient by itself to satisfy the requirements of Section 287 (1) of the Criminal Procedure Act and that the portion inserted below that signature cannot be taken to supplement the earlier portion for the purposes of the two sections of the Act. It seems to us that the portion below the signature was an after-thought, inserted as such, when the learned Senior Magistrate was about to write his judgment later on the same day that the hearing was concluded. This portion cannot be regarded as forming a part of the record stricto sensu, apart from the important circumstance that it is covered neither by the preceeding signature nor by the following one at the end of the learned Senior Magistrate’s judgment itself. Nor, in our view, is the failure of the learned trial Magistrate cured by the mere inclusion of the following second paragraph in his judgment:
“The accused was informed of his right to give evidence and call witnesses but he chose to rest his case on that of the prosecution.”
We consider it strange that, in the circumstances we have just outlined including the only reference made by the learned trial Magistrate in the passage just quoted, the learned Chief Justice should have proceeded to argue as follows:
“When the accused was called for his defence, the accused said, I repeat, ‘he has nothing to say and rests his case on that of the prosecution.’ Now that phrase means, and can only mean, one thing. That the accused does not choose to say anything, to give any evidence, and that he does not choose to call any witnesses and that he rests his case on that of the prosecution. It seems to me that in these circumstances it would be straining the words to say that the defendant was not called upon for his defence and asked if he had any witnesses to call when he has made it quite clear to the court on being called upon for his defence that he has nothing to say and rests his case on that of the prosecution.”
It is obvious to us that the learned Chief Justice inadvertently imputed to the accused what he learned trial magistrate inserted below his signature, as the accused’s ipsissima verba. We have already observed that this particular statement should be ignored. But, even if it were not, it could not possibly be regarded as satisfying the requirements of Sections 287(1) and 288 of the Criminal Procedure Act.
We also think that the learned Chief Justice is in error when he found as follows and proceeded “for that reason and for that reason alone” to dismiss the appeal:
“I find it extremely difficult to hold that Section 288 of the Criminal Procedure Act still requires the court even after the defence has been called upon to make a defence, and the accused person says that he has nothing to say and that he rests his case on the case for the prosecution, that there is still a duty on the court to ask the appellant/accused person whether he intends to call any evidence, for that would seem to me to be surplusage and incompatible with his previous statement that he rests his case on the evidence of the prosecution.”
It is hard to believe that, after finding as the learned Chief Justice did that the accused’s counsel “was not in court and the accused person did not cross-examine the 2nd witness for the prosecution” and that thereafter “the case continued and other persons gave evidence and it appears from the record that learned counsel for the appellant made no further appearances in court” the learned Chief Justice should have held that the accused would have appreciated the legal nicety of saying, if in fact he did say, that ‘he rests his case on that of the prosecution,” much less appreciate the three alternative courses of action open to him at that stage in the trial, without the issues being put to him specifically by the learned trial Magistrate. We hold that Section 287 (1) of the Criminal Procedure Act lays a duty upon the court of trial to put the three alternatives to the accused specifically and also to draw his attention to the provision of Section 288 of the Act, especially, as is this case, where the accused is either not represented by counsel at his trial or is so represented but his counsel is not in court at the material stage in the proceedings. The court record must show clearly that the trial court has done so: see our judgment in Arua Ema v. The State (1964) All NLR 416.
Mr. Ejiwunmi, Deputy Director of Public Prosecutions for Lagos State, said he could not support either the learned Acting Senior Magistrate or the learned Chief Justice on this point, because his study of the records did not show that Sections 287 (1) and 288 had been complied with. Indeed, he drew our attention to the Arua Ema Case in support of his submission. We agree with him and commend his stand in this matter.
We will accordingly allow this appeal, and the appeal succeeds. The judgment of the Chief Justice of the High Court of Lagos State in Appeal No. LD/25CA/72 dated February 16, 1973, is hereby set aside.
The appellant is discharged from and acquitted of the charge of unlawfully assaulting P.C. No. 24281 Sunday Ugbodu contrary to Section 356 subsection 2 of the Criminal Code. The sentence of two years’ imprisonment with hard labour imposed on the appellant is hereby quashed and, if he is in custody, he should be released forthwith.
Other Citation: (1973) LCN/1681(SC)
