Division: High Court (North) (C.A.)

Date of Judgment: 16th December, 1961

Case Number: CRIMINAL APPEAL No. K/60CA/1961

Before: Hurley, C. J.

              Reed, J.

The appellant is recorded as answering:-I have got witnesses namely....

and thereafter follow the names and addresses of witnesses. These witnesses were duly called and gave evidence but the appellant himself did not give evidence or state his defence.

Upon the application of the appellant the original Hausa record of proceedings in the court below was produced and the sworn court interpreter has interpreted the question set out above as follows:-

Samuel, have you any witnesses to say that you did not commit this offence, that is to say, that you received £550 which you are denying?

It appears, therefore, that the appellant was not asked if he wished to give evidence on his own behalf, or otherwise state his defence, and did not, in fact, do so.

This Court considered the effect of non-compliance with section 389 by a Native Court in Ubi Yola v. Kano Native Authority, (1961) All N.L.R. 549; (1961) N.N.L.R. 103. In this case the trial court omitted to ask the appellant for his witnesses. The appeal court stated:-

We note that the language of the section (section 382) requires that there shall be no interference with the findings of the trial court unless a failure of justice has actually been occasioned. A mere possibility that a failure of justice might have been occasioned is not enough to justify interference.

The appeal court went on to say that no failure could have been occasioned unless the appellant had in fact wished to call witnesses. The appellant having stated that he had two eye-witnesses, the appeal court "upon the assumption that the appellant has two witnesses" said:-

We are compelled to the conclusion that a failure of justice has been occasioned by the omission of the trial court to comply with section 389, and allowed the appeal.

It is clear from the record in the case before us that the appellant did not admit the evidence which was given against him and we feel obliged to hold that the failure to inform him of his right to state his defence, whether by giving evidence or otherwise, occasioned a failure of justice. We must, therefore, allow this appeal, the reason being that a failure of justice was occasioned in the sense that the appellant was prejudiced in his defence. He was not given the full scope in defending himself which the law entitled him to. Neither were the appellants in Ubi Yola's case (supra) and Tambaya Filani v. Bornu Native Authority, (1961) All N.L.R. 473; (1961) N.N.L.R. 100. In the last mentioned case, however, it made no difference, because there was nothing that could have been added to the defence. Here, as in Ubi Yola, there was something that could have been added had the defence been given its full scope-the appellant's own version of his defence as a connected narrative, whether evidence or statement of defence, such as his co-accused delivered. We cannot say that that would have had no weight and without that the defence was embarrassed or prejudiced and there was a failure of justice. If one of his witnesses had not been heard, we would have had to ask, what that witness would have said before we could have been satisfied that there was prejudice or embarrassment. But there is no need to ask what the appellant himself would have said; we know he had something material to say.

We must decide whether to order a retrial. The Federal Supreme Court has set out the principles on which an appeal court should act in deciding whether or not to order a retrial. In Yesufu Abodundu and others v. The Queen, 4 FSC 70 at 73 it is stated:-

We are of the opinion that, before deciding to order a retrial, this Court must be satisfied (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to section 11(1) of the Ordinance, (b) that, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time, (d) that the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial, and (e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.

We now apply these principles to the case before us. There has been an error in law of such a character that the trial was not rendered a nullity but we were unable to say that there had not been a failure of justice. The evidence as a whole discloses a substantial case against the appellant. There are no special circumstances such as would render it oppressive to put the appellant on trial a second time. The offence of which the appellant was convicted is not trivial; the consequences to the appellant or to any other person of the conviction or acquittal of the appellant are not trivial. In our view to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.

Accordingly we make the following order: Appeal allowed and the conviction and sentence set aside. The appellant shall be retried by the Chief Magistrate, Kano.

Appeal allowed: Retrial before Magistrate ordered.