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JUSTUS OLAYEMI OSOSAMI
V.
THE COMMISSIONER OF POLICE
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
5TH DAY OF FEBRUARY, 1952
CRIMINAL APPEAL— W.A.C.A. 3664
2PLR/1952/67 (WACA)
OTHER CITATION(S)
2PLR/1952/67 (WACA)
(1952) XIV WACA PP. 24-25
LEX (1952) – XIV WACA 24-25
BEFORE THEIR LORDSHIP:
VERITY, C.J., NIGERIA
JIBOWU, Ag. S.P.J., NIGERIA
COUSSEY, J.
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BETWEEN:
JUSTUS OLAYEMI OSOSAMI – Appellant
AND
THE COMMISSIONER OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal from the decision of the Supreme Court dismissing the appeal from the Magistrate
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REPRESENTATION
Appellant in person
E. Egbuna, Crown Counsel — for Respondent (the Police)
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
APPEAL:- Appeals in Criminal Cases — Court sitting on public holiday — Where sitting at instance of defence — Conviction of defendant — Miscarriage of justice — Relevance of in determining appeal — West African Court of Appeal Ordinance, section 11 and proviso in review
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PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Public Holidays — Court sitting at request of defence
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CASE SUMMARY
During the trial, the case was adjourned to a day which was later proclaimed a public holiday, and though the Magistrate pointed it out, the defence submitted he could sit on that day and desired him to hear a witness who might not be available afterwards. The Magistrate heard him and believed his evidence, but eventually convicted the appellant nevertheless.
The appellant, in his appeal to the Supreme Court, sought to add a ground that owing to the Magistrate’s sitting on a public holiday, the proceedings were null and void; the Judge refused to allow this ground to be added and dismissed the appeal. The appellant appealed further on that point.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. A public holiday is, like a Sunday, a dies non juridicus, and the Magistrate should not have sat on a public holiday, but he did so at the request, and in the interests of the defence.
2. There was neither prejudice to the defence nor any substantial miscarriage of justice, and the Court would apply the proviso to section 11 of the West African Court of Appeal Ordinance and dismiss the appeal.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.J.
This is an appeal from a decision of the Supreme Court confirming a conviction in the Magistrate’s Court, Kano. It appears that in the course of the trial before the Magistrate, the case was adjourned to a certain day which was subsequently proclaimed a public holiday. When the Court sat on that day the learned Magistrate drew the attention of Counsel for the present appellant to the fact that the day was a public holiday. Counsel for the appellant who desired that a witness for the defence should be heard and who intimated that there might be difficulty in securing his attendance at a later date, submitted that the Court was competent to sit on a public holiday.
The Magistrate continued the hearing therefore on that day, heard the witness for the defence, heard also on that day submissions of Counsel for the defence and then adjourned. On a subsequent day he heard submissions of the Counsel for the prosecution, and on a further day still, he delivered judgment convicting the appellant. The appellant appealed to the Supreme Court, and after submitting certain grounds of appeal, sought to add further a ground of appeal that the Magistrate having sat on the public holiday did so without jurisdiction and the proceedings were therefore null and void. The learned Judge of the Supreme Court in the circumstances refused to allow this ground of appeal to be added. The appellant has now appealed to this Court.
It has recently been held by this Court that a public holiday in this Country is like a Sunday dies non juridicus and that no law proceedings can be held on such a day, and therefore the appellant might be held to have established the point raised by him in his ground of appeal, but by reason-of section 11 of the West African Court of Appeal Ordinance and the proviso thereto, this Court must look further than that, and although the point raised by the ground might be upheld, if this Court considers that no substantial miscarriage of justice has actually occurred, it will dismiss the appeal.
Now it is difficult to see how in this case the irregularity of the Magistrate sitting on a public holiday can possibly have occasioned any miscarriage of justice. He did so at the request of Counsel for the appellant in the interests of the appellant that his witness might be heard. He heard the witness, in fact he accepted the truth of that witness’s statement, but nevertheless convicted. Everything that the Magistrate did, although it was irregular, was done in the interests of the defence and at the request of the defence. The defence was fully heard, even though part of it was heard without jurisdiction and we cannot see that the defence has therefore been prejudiced in any way by the action of the Magistrate, even though irregular, or that any substantial miscarriage of justice can possibly have occurred. Although therefore it is incumbent upon us to say that the Magistrate should not have sat on a public holiday, the appeal must be dismissed.
Appeal dismissed.