REX
V.
IBRAHIM BAUCHI
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
12TH DAY OF JANUARY, 1938
2PLR/1938/54 (WACA)
OTHER CITATION(S)
2PLR/1938/54 (WACA)
(1938) IV WACA PP. 30 – 31
LEX (1938) – IV WACA PP. 30 – 31
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
CAREY, J.
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BETWEEN:
REX — Respondent
AND
IBRAHIM BAUCHI — Appellant
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REPRESENTATION:
C. N. S. Pollard — for Crown
Appellant not present
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Possession by night of instruments of housebreaking contrary to Section 417(c) of Criminal Code — Admissibility in evidence of previous convictions — Distinction between evidence before the jury and evidence before the Court/Judge — When Court/Judge would be obliged to receive evidence of prior conviction(s)
CRIMINAL LAW AND PROCEDURE — CONVICTION:- Where liability to increased punishment depends on the proof of previous convictions — Duty of Court/Judge to inform the accused as part of the charge — Effect of failure thereto
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:-
1. the prisoner cannot be sentenced under Section 417(c) of Criminal Code imposing the increased sentence unless the fact that he is liable to the enhanced penalty was brought to his notice before he was called on to plead,
2. It is the duty of the Judge in a case where liability to increased punishment depends on the proof of previous convictions to inform the accused as part of the charge that it proposed to prove these convictions against him.
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MAIN JUDGMENT
Case Stated by High Court.
The following joint opinion was delivered:
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.
This is a case stated for the opinion of the West African Court of Appeal by the Judge of the Kaduna-Makurdi Judicial Division.
The Judge held as follows:
“(a) a previous conviction must not be brought to the notice of the Court (except where under the law of evidence it is permissible to do so) unless it forms an essential ingredient of the offence, and that
(b) the prisoner cannot be sentenced under the sub-section imposing the increased sentence unless the fact that he is liable to the enhanced penalty was brought to his notice before he was called on to plead, but that
(c) a practice by which the accused is given notice in writing that it is intended to give evidence of previous convictions—these should be set out in detail-which renders the prisoner if he pleads guilty or is convicted by a finding of guilty liable to an increased penalty would be unobjectionable, and that
(d) the Court would in such case feel justified in using the special sub-section in suitable cases for the purpose of sentence.”
And our opinion is desired as to whether the above decisions are correct in law.
We are of opinion that sub-paragraph (b) is a correct statement of the law but sub-paragraph (a) is incorrect in stating that previous convictions with certain exceptions must not be brought to the notice of the Court. The rule is that with the same exceptions previous convictions must not be brought to the notice of the jury, and although of necessity the Judge may be himself performing the functions of a jury the rule does not apply to him.
This being the rule, it is the duty of the Judge in a case where liability to increased punishment depends on the proof of previous convictions to inform the accused as part of the charge that it proposed to prove these convictions against him.
The practice to which sub-paragraphs (c) and (d) refer is therefore unnecessary.