The Queen V. Bello (1962)

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BRETT, FJ 

The appellant was convicted of murder contrary to section 319 of the Criminal Code. The evidence accepted by the Judge established that about the 21st March, 1960, the appellant and two other men, who have not been found, waylaid a dealer in cloth called Mallam Fodi and his assistant, Ahmadu Gusamu, as they were returning from Amshi market to Daciya in Bomu Province carrying loads of cloth, and shot at them with arrows. The appellant wounded Ahmadu Gusamu and robbed him of his cloth; the other two shot their arrows at Mallam Fodi and killed as well as robbing him. Ahmadu Gusamu was able to identify the appellant, and the identification was corroborated by the discovery of pieces of the stolen cloth in the possession of persons who had received them from the appellant or his admitted associates, and by a statement made to the police by the appellant in which he admits that he took part in an armed robbery with two other men whom he named, though not that he himself shot an arrow. The murder was clearly committed in the prosecution of a common purpose, and it is immaterial that the appellant did not himself shoot an arrow at Mallam Fodi, indeed under section 8 of the Criminal Code it would be immaterial even if it were true that the appellant himself did not shoot an arrow at all. So far as the merits are concerned there is no substance in the grounds of appeal argued before us.

It is submitted, however, that the trial was a nullity in that the provisions of section 185 of the N.R. Criminal Procedure Code Law, 1960, were not observed. That section reads as follows:-

No person shall be tried by the High Court unless-

(a) He has been committed for trial to the High Court in accordance with the provisions of Chapter 17; or

(b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court; or

(c) A charge of contempt is preferred against him in accordance with the provisions of section 314 or section 315.

In this case a preliminary enquiry has ostensibly been held and the magistrate has purported to commit the appellant for trial to the High Court, but when the case was called for hearing in the High Court crown counsel submitted that for reasons which are not now material the preliminary inquiry was a nullity and should be set aside; he coupled with this submission a verbal application for leave to prefer a charge without preliminary enquiry. The Judge upheld the submission and set aside the preliminary inquiry. His ruling continues :-

I give leave for a charge to be preferred without the holding of a preliminary inquiry. I order that the accused shall be charged with the charge preferred by the prosecution and attached to his application and appearing hereunder.

The charge was thereupon read and explained to the appellant and he pleaded not guilty to it.

It was not suggested that the appellant was in any way embarrassed in making his defence by the course that was followed, but the submission made on his behalf is that under the Criminal Procedure Code the prosecution has no power to prefer a charge, and that in ordering that the appellant should be charged on the charge preferred by the prosecution the Judge did something which he had no power to do. Preferring a charge, it is said, is the same as framing it, and that is the function of the magistrate, subject only to the power of the Director of Public Prosecutions under section 181 of the Criminal Procedure Code to amend or alter the charges on which an accused person has been committed for trial; a Judge cannot give himself leave to prefer a charge. We find no substance in this submission, and we consider that the procedure adopted was authorised by section 185 of the Criminal Procedure Code. We shall not attempt to define what is meant by “preferring” a charge since we are of the view that on any interpretation the effect of the reference to “the charge preferred by the prosecution” was not to vitiate the order made by the Judge. As for the submission that the Judge cannot give himself leave to prefer a charge it is enough to say that the wording of section 185(b) is designed to cover the case where one Judge gives leave for a charge to be preferred and the case is tried before another Judge (as in R. v. Rothfield, 26 Cr. App. R. 103) as well as that where the same judge gives leave and tries the case.

The appeal is dismissed.

Other Citation: (1962) LCN/1004(SC)