Sunday Omega V. The State (1964)

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COKER, J.S.C. 

The appellant was in the High Court of the Jos judicial division of Northern Nigeria (Bate J.) convicted on three counts of robbery and brigandage contrary to sections 298 and 301 of the Penal Code. He was tried along with three others and he was the first accused. The second and fourth accused were acquitted and discharged whilst like the appellant the third accused was convicted on some of the counts charging him with robbery and brigandage. The trial Judge accepted the case for the prosecution to the effect that the appellant was a member of an armed gang of robbers which had waylaid the several persons on the several dates as described on the charge. He rejected the defence of alibi put forward by the appellant.

Learned counsel for the appellant submitted that the verdict was not supported by the evidence and in particular suggested that:

(i) the evidence of the 10th prosecution witness, Lukuman Agai, on which alone the appellant was convicted on the count of robbery is unreliable and uncertain in view of the fact that this witness failed to identify the second accused during an identification parade and indeed identified someone else who was not a suspect, and

(ii) the identification parade at which the appellant was identified by the 5th prosecution witness, Maman Kasada, was improperly conducted as the witness was in the course of the investigation of the case shown photographs of the accused persons and a knife alleged to have been seized from the witness.

With regard to (i) we point out that although the 10th prosecution witness failed to identify the second and third accused persons during the identification parade, he certainly identified the appellant. The evidence established that it was the appellant who offered to drive him to Onitsha and received his fare, and who later threatened him with his gun after ordering him out of the motor-car in which they were all travelling and eventually robbed him of his money. It is true that the witness said that he had been sitting at the back of the car while it was in motion, but he would have had ample opportunity to observe the appellant while paying his fare and while the actual robbery was taking place. The learned trial Judge considered the tenth prosecution witness a truthful witness as to the events and rightly in our view regarded his evidence as sufficiently reliable to ground the conviction of the appellant on the charge of robbery.

With regard to (ii) we observe that although answers were elicited from the 5th prosecution witness in the course of his cross-examination to the effect that he was at some time during the investigation of the case shown the photographs of the accused persons and the knife seized from him, the witness was not examined as to what stage of the investigation he was shown these photographs, for unless it was clear that the photographs were shown to the witness in order to enable him to identify the suspects at a subsequent identification parade, we cannot see how the propriety of the identification parade in the circumstances of the present case can be impugned. The learned trial Judge adverted to this point in his judgment and observed that it was not clear whether this (i.e., the showing of the photographs) was before or after the identification parade and that the police officer who conducted the parade was not questioned on the point. We do not think that there is any substance in this point.

We are satisfied that the learned trial Judge gave adequate consideration to all the evidence and that he rightly concluded that the accepted evidence justified the verdict.

Learned counsel for the appellant also submitted that the refusal of the trial Judge to grant the appellant an adjournment in order to call his witnesses in support of his defence of alibi resulted in a miscarriage of justice. It is to be noted that before the actual trial of the appellant, there was a preliminary investigation by a Magistrate. Apparently when the appellant was being committed for trial before the High Court at the end of the preliminary investigation, the Magistrate as enjoined by the provisions of section 174 of the Criminal Procedure Code Law 1960, asked him for the names of his witnesses and if these particulars were not then available requested the accused to furnish them at a subsequent time. The records of the case show that the appellant failed to comply with the Magistrate’s further direction (pursuant to section 174 (2) of the Criminal Procedure Code Law 1960) that he might supply the names of his witnesses within a week of the order of committal. Learned counsel for the appellant however contended that despite this failure or neglect on the part of the appellant, the refusal by the Judge to adjourn the hearing resulted in a miscarriage of justice. In the course of his argument, counsel suggested that such refusal is tantamount to an infraction of the provisions of section 22(5) of the Constitution of Nigeria which requires that an accused person should be given adequate time and facilities for the preparation of his defence. Counsel also referred to the cases of:

(1) Danjuma Dan Buhari Rimin Auzinawa v. Kano Native Authority (1956) 1 FS.C.27, where, in allowing the appeal, the Federal Supreme Court observed as follows, at p. 28:-

“In cases such as this the accused should always be asked if he has any witnesses he wishes to call in support of his defence, and it is obviously desirable that care should be taken by the trial Court to ensure that the question and answer are recorded.”

That was a murder case and although the point on which the appeal turned was not taken in the Court below, the appellant did indicate in the course of his appeal that he always had witnesses to call.

(2) Jalo Guri and Another v. Hadeiia Native Authority (1959) 4 F.S.C. 44, in which the Federal Supreme Court held, applying the principles of Danjuma’s case, (supra), that the application of Maliki Law as to “hiraba” (highway robbery) which precludes persons accused thereof from having any opportunity to exonerate themselves, although relaxed to some extent in that case, was a procedure which is repugnant to natural justice, equity and good conscience; and

(3) Dixon Gokpa v. Inspector-General of Police [1961] All N.L.R. 423 where it was held by the High Court of Eastern Nigeria on an appeal from a conviction by the Magistrate’s Court that a refusal by the Magistrate to allow the appellant an adjournment in order to secure the presence of his Counsel amounted to a refusal to give him a fair chance of defending himself and of doing so with the aid of Counsel when he was represented by one.

On the other hand, the learned Director of Public Prosecutions submitted that far from being a case in which the appellant was denied adequate time and facilities for his defence, the present case is one in which the appellant, who had not before the trial started given any indication of his proposals to call any witnesses, had also neglected to take advantage of the facilities offered him of arranging for the presence of his witnesses.

After the preliminary investigation in this case, the trial of the appellant commenced in the High Court on the 27th of December, 1963. He was represented by Counsel who stated that he received a copy of the depositions of the witnesses a week before the trial started but was briefed apparently a week earlier. On Saturday the 4th of January, 1964, Counsel for the appellant applied for an adjournment of the trial on the grounds that:

(a) he was indisposed and would like to consult a doctor in Eastern Nigeria and

(b) he proposed to summon witnesses on behalf of the appellant.

The trial Judge granted an adjournment on the ground of Counsel’s indisposition but refused to do so on the ground that Counsel proposed to summon witnesses. It is to be noted that an adjournment until the following Monday was in fact granted. No application for witness summonses or subpoenas for any particular witnesses was made before the trial resumed or subsequently. At that point of time, only seven out of the sixteen prosecution witnesses had been called. Later, after the close of the case for the prosecution on the 13th January, 1964 and on being examined by the Court, in accordance with section 236 of the Criminal Procedure Code, the appellant informed the Court that his defence was an alibi and that he proposed to call two witnesses (including a doctor) who are resident in Eastern Nigeria. He then asked for an adjournment of the trial to call these witnesses and also for a waiver of the necessary Court fees. The application for adjournment was opposed by Counsel for the prosecution who referred to the appellant’s non-compliance with the previous Order of the Committing Magistrate, requesting the appellant to submit the names of his witnesses within a week of that Order. The learned trial Judge refused the application for adjournment holding that there was no justification for an adjournment of the trial which had then been going on for some time.

There is nothing on the records of this case to show that the appellant at any time actually applied for the issue of subpoenas for his witnesses from Eastern Nigeria. The learned trial Judge did not accede to his application for a waiver of the summons fees and it is obvious from the evidence of the appellant himself that in view of his financial circumstances, a waiver of summons fees would have been improper in his case.

The only question is whether or not the appellant had adequate time and facilities for the preparation of his defence. An accused person is undoubtedly entitled to reserve his defence until the appropriate stage of his trial, but if he intends to call witnesses he must take timely steps to have them at his trial ready to give evidence at that stage-which means that he must summon them in advance, and that he cannot complain if, seeing that he has not summoned them, the trial court refuses to grant him an adjournment for the purpose of summoning witnesses when he is called upon for his defence. In this case the appellant would not give the names of his proposed witnesses to the committing Magistrate; at the least he should have summoned his witnesses when he had notice of trial. He had plenty of time even when he saw his counsel before the trial began; but neither he nor his counsel asked for any witnesses to be summoned, and it becomes an abuse of language to say that the trial Court is to blame for not granting an adjournment when the true blame lies on the appellant owing to his own neglect. The cases cited are not in point: their facts differ from the facts of this case. The learned trial Judge acted rightly in our view in refusing to delay the trial further by acceding to the appellant’s application for adjournment in those circumstances. That is not what was disapproved of in Thomas Sorunke v. The King (1946) A.C. 316, in which case the Privy Council held that the refusal to issue processes to compel the attendance of witnesses for an accused person unless he was prepared to disclose to the Court his reasons for wishing to call the various witnesses resulted in a grave miscarriage of justice. In that case the point that arose for determination was the propriety or otherwise of imposing such conditions upon the accused before he could be allowed to have processes issued for compelling the attendance of his witnesses. That was not the case here. We cannot subscribe to the view that a Court of trial should adjourn the hearing at the instance of any party (be it the accused or the prosecution) when it is manifest that the application for such adjournment was made only for the purpose of delaying the proceedings, and a fortiori, when, as in this case, it was being made after a total inadvertence to the directions of a Court, a compliance with which would probably have obviated the necessity for any such application. In the case of Thomas Sorunke v. The King (supra), the Privy Council expressed the view that it is not within the province of the trial Judge in determining whether or not he should allow witnesses to be summoned on behalf of the accused to take into consideration the probability of the witnesses being able to give material evidence, though their Lordships added that:

“In any case the Court can always protect itself by issuing process, but if convinced that the lateness of the application is not due to genuine mistake or justified reason it can refuse to adjourn the trial.”

We have already expressed our views that in the circumstances of the present case, no miscarriage of justice had been occasioned by the refusal of the trial Judge to adjourn the hearing of the case. This ground of appeal must also fail.

Both grounds of appeal therefore fail and this appeal is accordingly dismissed and the conviction and sentence of the appellant are hereby affirmed.

Other Citation: (1964) LCN/1107(SC)