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OLADIMEJI
V.
THE KING
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
9TH DAY OF NOVEMBER, 1951
2PLR/1951/37 (WACA)
OTHER CITAITON(S)
2PLR/1951/37 (WACA)
(1951) XIII WACA PP. 275-276
LEX (1951) – XIII WACA 275-276
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BEFORE THEIR LORDSHIPS:
VERITY, Ag. P.
LEWEY, J.A.
JJBOWU, J.
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BETWEEN:
OLADIMEJI – Appellant
AND
THE KING – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, CR. APP. 3572
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REPRESENTATION
C. E. Shyngle — for Appellant
C. B. O’Bierne, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Failure at close of Prosecution case to ask Accused if he had any Witnesses to call – Trial a Nullity.
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CASE SUMMARY
The appellant was convicted of manslaughter. Section 287 of the Criminal Procedure Ordinance (Cap 43), provides that at the close of the prosecution case the Court shall ask the accused if he has any witnesses to call. The accused was not so asked and appellant’s Counsel argued that this was a fatal irregularity, having regard also to section 288 of the said Code.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal; declaring the Proceedings a nullity. and ordering a Trial):
1. Section 287 applies to trials before the Supreme Court, and, read in conjunction with section 288, the effect is that if an accused person is not asked if he has witnesses to call the trial is vitiated.
2. If a trial is vitiated it is of no effect, and is therefore a nullity. The Court therefore ordered the appellant be tried before a Court of competent jurisdiction.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, AG. P.
This was an appeal from a conviction in the Supreme Court for manslaughter. After hearing argument we held that the trial had been a nullity and directed that the appellant be tried before a Court of competent jurisdiction, but before another Judge, and announced that we should give our reasons at a later date.
There was but one ground of appeal which alleged that there was an irregularity in the course of the trial in that the learned trial Judge did not ask the accused person whether he had any witnesses to examine.
By section 287 of the Criminal Procedure Ordinance (Cap 43), it is prescribed that at the close of the case for the prosecution the Court shall, if a Prima facie case has been made out, inform the defendant of the three alternatives open to him, and further, shall ask him if he has any witnesses to examine or other evidence to adduce in his defence.
It is true that this section falls within that Part of the Ordinance (Part XXXIII) which relates to summary trials, but by virtue of section 361 it is equally applicable to trials upon information, for this section provides that:-
“In addition to the provisions of this Part” (that is to say, Part XXXVII which relates to trials upon information) “and to the other express provisions of this or any other Ordinance relating to the trial of indictable offences, the provisions of this Ordinance relating to” (inter alia) “all other incidental matters relating to the trial of a case … shall be applicable to a trial on information”.
This section is not very happily expressed nor very conveniently placed in the Ordinance, but we have no doubt that it is effective to apply to trials upon information the provisions of sections 287 and 288, and it is therefore a statutory requirement that the Court shall ask a defendant whether he has any witnesses. The latter section, moreover, provides that:-
“Failure to comply with the requirements of paragraph (a) in section 287 shall not in itself vitiate the trial, provided that the Court called upon the defendant for his defence and asked if he had any witnesses and heard the defendant and his witnesses and other evidence, if any.”
This section again, as is the case with so many sections in this unhappy Ordinance, might very easily have been more satisfactorily drafted, for it is difficult to understand what other evidence but witnesses it would be possible for the Court to hear, but its meaning is, in our opinion, sufficiently clear, and if failure to comply with the provisions of paragraph (a) of the section shall not in itself vitiate the trial when amongst other things the Court has asked the defendant if he had any witnesses we think it is necessarily implied that if the Court has not done so the trial is vitiated.
In this the statute law of Nigeria is to be distinguished from the law of England, where there can be but little doubt that when the Court has not asked the accused person if he has any witnesses, it will still be open to the appellate Court to consider whether the accused person has been prejudiced thereby and whether such failure has occasioned a miscarriage of justice. It is not so in Nigeria. The obligation to ask the defendant if he has any witnesses is a statutory requirement and if it has not been complied with the trial is vitiated.
The word “vitiated” has not so far as we are aware received judicial interpretation and Counsel were unable to refer us to any such interpretation for it is a word not apparently in general use by legal draftsmen, but we think that the meaning it has in ordinary use is such that it is proper to conclude that if a trial is vitiated it is of no effect and is therefore a nullity.
For these reasons, in the present case the Court not having asked the defendant if he had any witnesses, we held the trial to be a nullity and ordered that the appellant should be tried.
Appeal allowed. Proceedings declared a nullity. Trial ordered.
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