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DICKSON EJUKOLEM
V.
INSPECTOR-GENERAL OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
18TH DAY OF AUGUST, 1952
2PLR/1952/42 (WACA)
OTHER CITATION(S)
2PLR/1952/42 (WACA)
(1952) XIV WACA PP. 161 – 162
LEX (1952) – XIV WACA 161 – 162
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BEFORE THEIR LORDSHIPS:
DE COMARMOND, Ag. C.J. NIGERIA
JIBOWU, AG. S.P.J., NIGERIA
JOHNSTON, J.
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BETWEEN:
DICKSON EJUKOLEM — Appellant
AND
INSPECTOR-GENERAL OF POLICE — Respondent
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ORIGINATING COURT(S)
Appeal by convicted person: No. 3833.
REPRESENTATION
F. R. A. Williams — for Appellant
Fatayi Williams, Crown Counsel — for Inspector-General of Police
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Magistrate calling witnesses after close of defence – Appeals from Magistrates – Criminal Appeals – Order on appeal for re-trial – Circumstances of case
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PRACTICE AND PROCEDURE ISSUE(S)
INTERPRETATION OF STATUTE:- Magistrates’ Courts (Appeals) Ordinance, section 43(a)(i) – Power to order a re-trial
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CASE SUMMARY
Appellant was charged on two counts with unlawful possession of mineral ore. After the close of the case of the defence the Magistrate apparently did not regard the evidence as sufficient to convict upon and called three additional witnesses, and convicted the appellant of both counts.
Appellant appealed to the Supreme Court complaining (a) that the Magistrate ought not to have called those witnesses, and (b) that he had misdirected himself on onus of proof. The Judge allowed the appeal but, under a misapprehension relating to the type of tin mentioned in: the first count, ordered the appellant to be re-tried on that count. The appellant appealed further on the ground that in the circumstances of his case the order was not justified.
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DECISION(S) OF THE WEST AFRICAN COURT OF APEPAL
Held (allowing the appeal and setting aside a re-trial) that:
1. It was right to allow the appeal owing to the Magistrate’s calling additional evidence after the dose of the defence to strengthen the prosecution’s case but wrong to order a re-trial as this enabled the prosecution to call that evidence and therefore unfair to the appellant.
2. Moreover, the Judge was under a misapprehension relating to the tin for which the appellant was to be re-tried. (Editor’s Note: On the question of additional evidence being called, after the close of the defence, by the Court suo motu: see Asuquo Edem and others v. R., 9 W.A.C.A. 25; Nelson Ohanyere, W.A.C.A. No. 3033, at Lagos, on 5th October, 1949, in cyclostyled judgments; Horvat v. Police, 20 N.L.R. 52).
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MAIN JUDGMENT
The following judgment was delivered:
JIBOWU, AG. S. P. J., NIGERIA.
This is an appeal by the appellant against the order of re-trial made by Hubbard, J., at the Supreme Court, Jos, on the 6th day of June, 1952. The circumstances leading to the making of the order were that the appellant was, on the 19th day of December, 1951, charged on two counts with being in unlawful possession of some bags of metalliferous minerals contrary to section 430(1) of the Criminal Code, before the Magistrate, Jos. who convicted him on both counts and sentenced him to a fine of £100 or 6 months’ imprisonment on each count; the sentences of imprisonment were to run consecutively in default of payment of the fines.
He appealed against these convictions to the Supreme Court, Jos, which allowed the appeal and set aside the convictions on the grounds:-
(1) that the learned Magistrate had wrongly admitted the evidence of three witnesses after the close of the case for the defence, and
(2) that the learned Magistrate had misdirected himself on the question of the onus of proof resting on the accused, now appellant.
The Crown Counsel who appeared for the Respondent asked the learned Judge to send the case back for re-trial under the powers vested in him by section 43(a)(i) of the Magistrate’s Courts (Appeals) Ordinance, and the learned Judge then ordered a re-trial of the appellant on count l.
Against this order of re-trial the appellant has appealed to this Court on the ground: “that the decision is erroneous in point of law in that the learned trial Judge ought not in the circumstances of this case to have made the order of re-trial”.
Section 43(a)(i) of the Magistrate’s Courts (Appeals) Ordinance appears to invest the Supreme Court on appeal from a conviction by the Magistrate with power to “reverse the finding and sentence, and acquit or discharge the accused or order him to be re-tried by a court of competent jurisdiction, or commit him for trial”.
The question which then falls for determination by this Court is whether the learned Judge was justified in the circumstances of this case in making the order of re-trial.
It appears to us that the learned Magistrate did not consider the evidence before him at the close of the case for the defence sufficient to enable him to convict the appellant, hence he found it necessary to call three additional witnesses to strengthen the case for the prosecution. The learned Magistrate should, in the circumstances, have acquitted and discharged the appellant instead of calling more witnesses. We are satisfied that the learned Judge rightly allowed the appellant’s appeal and set aside his conviction, but he should, in our view, have acquitted the appellant as the Magistrate ought to have done at the close of the case for the defence. By ordering a re-trial of the appellant, the learned Judge offered the prosecution another chance of preparing their case anew and of bringing any new evidence they may wish, including the very evidence the admission of which led to the appeal being allowed, in order to secure a conviction against the appellant. We consider this not to be in keeping with the spirit in which criminal justice should be administered.
Furthermore, the learned Judge made the following remarks in his judgment: “Suspicion, however, does fall on the tin at Gindiri Camp, because 60 bags of tin were loaded on to a lorry at about 4 a.m. on the road between Jos and Gindiri Camp.
“I add that the fact that 240 bags of tin had been stolen from a railway wagon shortly before the tin was discovered at Gindiri Camp presumably cannot be said to throw suspicion on that tin, since the tin in the wagon was no doubt export tin of the proper grade for shipping, while none of the tin at Gindiri, nor indeed at Jos, was up to that standard.”
The tin found at Gindiri Camp was the subject matter of the first count of the charge against the appellant.
The remarks of the learned Judge about the quality of the tin found at Gindiri Camp and at Jos were based on the evidence of the Inspector of Mines, the sixth witness for the prosecution, who assayed samples of tin taken from the bags of tin found in both places.
The fact that the samples of tin examined did not come up to the shipping grade was evidence that the bags of tin found both at Gindiri Camp and Jos could not have been part of the stolen tin. In the circumstances, we are of the view that the learned Judge erred in making the order of re-trial. The learned Crown Counsel appearing for the respondent does not support the order for a re-trial. We therefore quash the order of re-trial and direct that a judgment and verdict of acquittal be entered.
Appeal allowed; order of re-trial set aside.
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