Yanor & Anor V The State (1965)

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IDIGBE, J.S.C.

The appellants were convicted of the offence of culpable homicide contrary to section 221 of the Penal Code (Northern Nigeria) and each sentenced to death by the High Court, Northern Nigeria (Jones, J.). A summary of the case for the prosecution is as follows. On the 7th July, 1964, an armed crowd entered the premises of the deceased-a tax-collector of Mbavaa in the Tiv Division of Northern Nigeria. The crowd got hold of the deceased, tied a rope around his waist and marched him to a spot near the compound of one Adagba (a “Kindred-head”). As they marched towards the premises of Adagba the deceased pleaded in vain with the crowd for his liberty; and from the crowd there were shouts of. “No, we are going to kill you.” The deceased’s son, P .W.1, pleaded unsuccessfully with the crowd for the liberty of his father and followed them up to the premises of Adagba. There P.W.I met PW2 and PW3 and together they watched, afraid to interfere, while the appellants-members of the crowd-dealt fatal blows on the deceased with large or heavy clubs. The deceased fell down and the rest of the crowd set upon him and beat him to death. P .W.1, PW2 and PW3 came out from their place of hiding, examined the deceased and being satisfied that he was dead, rushed to the police authorities at Gboko and lodged a report. Later the appellants were arrested. In their defence, each denied the charge and set up an alibi. The learned trial judge, after reviewing the evidence before him, accepted the case for the prosecution and found the appellants guilty as stated above.

In the course of the trial, learned counsel for appellants asked for adjournment of the trial as one of the witnesses for the defence was not available in court. This happened on the 12th December, 1964. The learned trial judge granted the application and adjourned further hearing to the 14th December, when the case was again adjourned to the 1st December as the court had been informed that the defence witness would be produced on that day. On the 15th December, a police constable (Patrick Kwaghmande), giving evidence on oath, told the court of his futile attempts to serve the particular defence witness with a witness summons. At the instance of defence counsel, the case was again adjourned to the 18th January, 1965. Thereafter the case was for the same reason and in the presence of defence counsel, adjourned to the 22nd January, 1965 and later, for the same reason, to the 1st of February, 1965.

On the 1st day of February, 1965, police constable Patrick Kwaghmande, giving evidence, told the court of the unsuccessful attempts he made to serve the particular defence witness with a witness summons. He had been to the witness’ village on “several occasions but could not find him.” He had made inquiries about the witness from many people in the village and they had told him that the witness (a man called Usman Iyamegh) “was hiding and came and went secretly” to and from the village. Finally, P C. Kwaghmande said: “I did my best to find him but could not do so.” Although the appellants were present in court, counsel for appellants was absent and the court again adjourned further hearing to the 4th of February, 1965. At the resumed hearing, learned counsel for appellants appeared and after calling one witness for the 1st appellant, made the following observation.

“The next witness for 1st accused is Usman Iyamegh who would not be served. Accused wants him to give evidence, so I ask for an adjournment to have this man served.

(underline supplied).

Counsel gave no indication as to when this witness was likely to be served with the witness summons.

Learned counsel appearing for the State opposed the application saying:-

“Every effort to find this witness has been unsuccessful. There is no likelihood that he will ever be found. The court has complied with section 177 C.P.C. The law does not require an impossibility. Further delay would not be in the interest of justice. It is not known whether this witness is even alive.”

In the course of his ruling refusing this application, the learned judge observed:-

“Every effort has been made to trace this witness. P.C. Patrick Kwaghmande has given evidence that he went several times to find this witness but failed. PC. Patrick has produced the other witnesses and I am satisfied that when he said `I did my best to find him (Usman)’ he spoke the truth. The law does not demand an impossibility, nor can justice best be served by an indefinite adjournment in these circumstances ”

(Underline supplied).

Thereafter, no more was heard of this application and the trial proceeded to conclusion and counsel for appellants addressed the court and it is significant that no complaint was made, in the address of counsel for appellants, of the refusal by the trial judge of the application for adjournment on 4th February, 1965. In this Court, the main ground of appeal argued before us reads:-

“The 1st appellant was prejudiced upon his trial in that he was not defended by a legal practitioner when PC. Patrick gave evidence on 1-2-65 to the effect that a witness for the defence of 1st appellant could not be traced.

The refusal of the learned trial judge to grant an adjournment enabling the 1st appellant to call a witness for his defence is prejudicial to his fair trial.”

In support of this ground of appeal learned counsel for appellants referred to the provisions of subsection 5(b) of section 22 of the Constitution of the Federation and also to section 186 of the Northern Nigeria Criminal Procedure Code and submitted that the proceedings of the 4th day of February, 1965 were carried out in disregard of the provisions of those sections of the law. We think it desirable to set out in detail the provisions of the sections of the law referred to by learned counsel for appellants. Section 186 of the Criminal Procedure Code (Northern Nigeria) reads:-

“Where a person is accused of an offence punishable with death if the accused is not defended by a legal practitioner the Court shall assign a legal practitioner for his defence.”

Subsection 5 (b) of section 22 of the Constitution of the Federation reads:-

“5(b) Every person who is charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence.”

In this case, the appellants from the commencement of the hearing of the charge against them had the benefit of learned counsel assigned to them by the State for their defence and save for the proceedings in court on the 4th day of February, 1965, they were in fact defended by counsel throughout the trial. When on the 1st February, 1965 the court adjourned further hearing in the case to the 4th of February, the appellants and their counsel were in court. No reason was given to the court on the 4th of February, 1965 for the absence of their counsel by anyone. The appellants themselves did not ask for an adjournment or postponement of further hearing. We take the view that the proceedings of the 4th day of February, 1965 did not in those circumstances offend the provisions of section 186 of the Criminal Procedure Code (Northern Nigeria) and section 22(5)(b) of the Constitution of the Federation. As was said by Humphreys J. in R. v. Mary Kingston:

“If he (counsel) was unable for any good reason to attend (court), his duty, as everybody knows, was to see that some other member of the Bar held his brief and was in a position to represent the accused person … In those circumstances we think it right to say that in our opinion the Assistant Recorder was perfectly justified in continuing the trial of a person although she was unrepresented “

(brackets supplied)-See 32 Cr. App. R. 183 at 187-188.

On the submission that the 1st appellant was not given adequate opportunity to produce his witness, we take the view that in the circum-stances of the trial in the lower court, the submission lacks any merit. If in the course of hearing of a criminal case an accused person applies to the court for postponement of the trial on the ground that a witness for the defence was not available to give evidence, he should normally satisfy the court on three important issues, and they are:

(1) that the witness sought to be produced is a material witness for his defence, (2) that he (the applicant) has not been guilty of laches or neglect in procuring the attendance in court of the witness, and (3) that there is reasonable expectation of his being able to procure the attendance in court of the witness at the future time to which he prays the trial to be postponed. See also R. v. Le Chavalier D’Eon (1764) 97 E.R. 955, in which case the court (King’s Bench) refused an application of counsel on behalf of an accused perso

Other Citation: (1965) LCN/1244(SC)