IN THE SUPREME COURT OF NIGERIA

On Monday, the 28th day of January 1963

(FSC 329/62)

Between

EMMANUEL IBEZIAKO .............................................................. APPELLANT

And

COMMISSIONER OF POLICE ............................................................ RESPONDENT

Appeal by convicted person:-

Section 21(4) of the 1960 Constitution of the Federation (section 22(4) of the 1963 Constitution) provides as follows:-

"Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty: provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts."

The Magistrate, acting under the Criminal Procedure Code (N.R.), explained to the accused the First Information Report sent in by the police under section 118; later he heard most of the prosecution witnesses, who were also cross-examined by the defence, then he framed a charge, to which the accused pleaded not guilty, and offered to recall witnesses; he next heard the remaining witnesses for the Prosecution, and finally called on the defence, who did not adduce evidence. He convicted the accused, who failed on appeal to the High Court, and appealed further to the Supreme Court, complaining that the procedure of taking prosecution evidence to a point at which, in the words of section 160(1), "the magistrate is of opinion that there is ground for presuming that the accused has committed an offence", and then framing a charge, means that, contrary to section 21(4) of the Constitution, when the accused was 'charged' the presumption of innocence was gone; and his further complaint was that it was both unheard of and wrong for the magistrate to draft the charge as he had known about the case from the prosecution witnesses who had given evidence.

There was some argument on the word 'charged' in section 21(4) of the Constitution, whether it meant 'charged by the police' or 'Charged in Court'.

HELD:

(1)     It is in court that a person is proved guilty; 'charged' in section 21(4) of the 1960 Constitution means 'Charged in Court'.

(2)     On the further complaint, a procedure cannot be attacked on the ground of being unusual, but only on the ground that it is repugnant to natural justice, equity and good conscience.

(3)     The procedure provided by the Criminal Procedure Code (N.R.) does not mean that the magistrate frames the charge having weighed the evidence and decided to convict: it only means that he is formulating the appropriate charge for the offence which prima facie appears to have been committed: the weighing of the evidence is left until after all the evidence has been heard.

Cf. (a) Practice Note on 'no case' submission in [1962] 1 All E.R. 448;

      (b) Criminal Procedure Ordinance (or Act), section 332, on converting a preliminary inquiry into a summary trial, and framing a charge under section 304(2);

      (c)     Criminal Procedure Ordinance, section 162, section 163, on the trail Court's power to alter or amend the charge; and see R. v. Ijoma, 12 W.A.C.A. 220.

PER CURIAM:

(a)     Section 21(4) of the 1960 Constitution lays the burden of proof of guilt on the prosecution, and the proviso has regard to the burden which the accused has to prove particular facts under the common law (e.g. insanity) or under special statutory provision.

Woolmington v. D.P.P. [1935] A.C. 462, 481.

Carr-Briant [1943] 1 K.B. 607.

         (b)     It is best that the charge be framed as soon as some evidence shows that there is a prima facie case.

Appeal dismissed

Other cases referred to:-

Scapetta v. Lowenfeld 27 L.T.R. 509; Bukar of Kaligari v. Bornu Native Authority 20 N.L.R. 159.

APPEAL from the High Court of Northern Nigeria sitting on appeal from the magistrate's court:

Chief F.R.A. Williams, Q.C. (with him G.C. Nzegwu) for the Appellant.

I.M.Lewis, Q.C., Attorney-General, North (with him I. M. S. Donnell) for the Respondent.

Ademola, C.J.F. (delivering the judgment of the court):-This appeal raises a question of very great importance for Northern Nigeria where the Criminal Procedure Code is in force. The appellant was convicted by the Magistrate of the Jos Magisterial District on a charge of offering or giving gratification to a public servant contrary to section 118 of the Penal Code. He appealed to the High Court and failed. This appeal to this Court is a second appeal and the ground of appeal, as amended, reads:-

"The procedure adopted in the court below (the magistrate's court) for the trial of the appellant contravened the provisions of section 21(4) of the Constitution of the Federation because the presumption of innocence provided for under that subsection was violated."

Sub-section 21(4) referred to provides that:-

"Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty:

Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts."

That provision enshrines a principle which has always been observed in our courts, and which is succinctly enunciated in Woolmington v. The Director of Public Prosecutions, 1935, A.C. 462 at 481, where Lord Sankey, L.C. said as follows:-

"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception."

The exceptions to which Lord Sankey was alluding were certain principles at Common Law, such as insanity, in which the burden proof lies on the accused persons. There are also a few statutes that create some presumptions which an accused person has the duty to rebut. These were referred to in the case of R. v. Carr-Briant [1943] 1 K.B. 607 where the standard of proof required of an accused person, or proof upon the preponderance of evidence was discussed.

During the argument before us, a number of cases were referred to on the meaning of the word "charged" in the subsection. It was said it may mean "charged by the police" in accordance with plice practice, or "Charged in Court" in the nature of formal accusation. It seems unnecessary to discuss these cases for, whether or not the subsection can mean "charged by the police", there is no doubt that it is right to understand it in the present case meaning "Charged in Court", having regard to the context; it is in court that an accused person is proved guilty, and it is there he would have, if the law so provided in regard to the offence charged, "the burden of proving particular facts." It is common ground that the appellant was not "charged" at the beginning of the proceedings in the magistrate's court. The nature of his present complaint will be better appreciated if the proceedings there are summarised.

The appellant appeared as the 2nd accused person, with a co-accused, and both had Counsel. The First Information Report (which, as required by section 118 of the Criminal Procedure Code, is sent by the police to the court) was explained to them, and they were cautioned; they close to say nothing. The note is "For P.I.". They were remanded on bail, and it was on a later day that the note reads "for trial". Crown Counsel appeared for the prosecution, and addressed the court on the evidence to be adduced. The accused had their Counsel. Five witnesses were called, examined and cross-examined, over several days. Then the Magistrate framed two charges-

one against each of the accused-which he read and explained to them, and each pleaded not guilty; copies of the charge were handed to Counsel on either side.

The form of the charge, in respect of the appellant, is:-

"I Jeffrey Richard Jones, Acting chief Magistrate, Jos, charge you Emmanuel Ibeziako that you...and thereby committed an offence under section 118 of the Penal Code Law, 1959."

The case was adjourned for some days. At first Counsel for the defence said they wished to recall one witness, but at the resumed hearing he said they did not so wish. The prosecution called three more witnesses; the defence said they were not calling any evidence, and Counsel addressed the court. Judgment was given on a later day convicting the two accused; they appealed, one of their grounds being similar to the one advanced by the appellant in his further appeal from the High Court, where the Magistrate was upheld. Before us Chief Rotimi Williams argued for the appellant and Mr Ian Lewis, Attorney-General of the Northern Region, argued for the respondent.

There was no suggestion that any section of the Criminal Procedure Code had been contravened. It will be convenient to start with the provisions of the relevant sections of the Criminal Procedure Code.

The First Information Report was sent to the court under section 118 of the Procedure Code, with which we are not at present concerned. Section 158 and section 159 of the Code provide as follows:-

"158. (1)     When the magistrate decides not to convict the accused under section 157 or when an accused person states that he intends to show cause why he should not be convicted the magistrate shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution.

(2)     The magistrate shall ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and shall summon to give evidence before him such of them as he thinks necessary.

(3)     The accused shall be at liberty to cross-examine the witnesses for the prosecution and, if he does so, the prosecutor may re-examine them.

"159. (1)     If upon taking all the evidence referred to in section 158 and making such examination of the accused as the magistrate thinks necessary for the purpose of enabling him to explain any circumstances appearing in the evidence the magistrate finds that no case against the accused has been made out which if not rebutted would warrant his conviction the magistrate shall discharge him.

(2)     The magistrate may discharge the accused at any previous stage of the case, if for reasons to be recorded by him he considers the charge to be groundless.

(3)     A discharge under this section shall not be a bar to further proceedings against the accused in respect of the same matter.

They are to be read with sections 144 and 145 of the Code which are as follows:-

"144.When the accused persons appears before a court taking cognizance of an offence, the court may require the police officer, if any, in charge of the investigation, or any police officer acting on his behalf, to state a summary of the case and, if the court shall think fit, to produce the case diary for its inspection; and upon the application of any such police officer or of its own motion, the court may give such directions as to the matters to be proved and how they are to be proved, and what documents or other exhibits are to be produced as the court may think fit." (Amended by N.R. No. 20 of 1960).

"145.When a court has exercised its powers under section 144 it shall inform the accused person that he is not required to say anything at that stage, but that if he wishes to inform the court of the substance of his defence he can do so in order that the court may give him such advice as it may think fit." (Amended by N.R. No. 20 of 1960).

The learned Magistrate clearly did not act under sections 144, 145 or 159; heard some evidence-in fact most of the prosecution evidence-and formulated the charge before hearing some more prosecution witnesses and calling upon the accused person for his defence.

We refrain in this matter from expressing an opinion about sections 144, 145 and 159 as they were not acted upon, but in this connection, it is necessary to observe that section 235 of the Code gives the court power, if it thinks it necessary, to put questions to the accused without previously warning him. The section provides:-

"235. (1)     For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the court may at any stage of an inquiry or trial, without previously warning the accused, put such questions to him as the court considers necessary and in such case shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

(2)     The accused shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the court may draw such inference from such refusal or answers as it thinks just.

(3)     The answers given by the accused may be taken into consideration in the inquiry or trial.

(4)     The sole purpose of such examination shall be to discover the line of defence and to make clear to the accused the particular points in the case for the prosecution which he has to meet in his defence and there shall be nothing in the nature of a general cross-examination for the purpose of establishing the guilt of the accused.

(5)     No oath shall be administered to the accused for the purposes of an examination under this section."

It is, however, with sections 160(1) and 161(1) of the Code we are mostly concerned. They read:-

"160. (1)     If when the evidence referred to in section 158 and the examination referred to in section 159 have been taken and made or at any previous stage of the case the magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which such magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame a charge under his hand declaring with what offence the accused is charged and shall then proceed as hereinafter provided."

"161. (1)     If the magistrate is of opinion that the offence is one which having regard to section 160 he should try himself, the charge shall then be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make."

The question raised before us by Chief Rotimi Williams is, at what stage should the Magistrate charge the accused. According to section 160 of the Code, he argued, the Magistrate may continue to take evidence against an accused person until such time as he thinks a case has been made out against him; at the stage he makes up his mind about the accused he charges him. The submission is that the presumption of innocence must be present when an accused person is charged and begins to stand his trial; but the procedure of taking prosecution evidence to a point at which, in the words of section 160(1):-

"the magistrate is of the opinion that there is ground for presuming that the accused has committed an offence", whereupon the magistrate shall frame a charge for the offence."

Whereupon the magistrate shall frame a charge for the offence, means that, when the charge is framed the presumption of innocence is already gone, and that this violates the provisions of the fundamental right entrenched in section 2(4) of the Constitution of the Federation (supra).

Counsel further complained that it was unheard of in Nigeria for a mgistrate to draft a charge and that it was wrong in the instant case for the magistrate to have drafted the charge, as he had known all about the case from the witnesses who gave evidence for the prosecution. We find ourselves unable to agree with this view. We do not think; it is a sound objection to a procedure, that the Legislature of a Region has shown preference for a particular system of procedure, provided it is clear that such procedure or law does not administer, observe or enforce the observance of, any principle of law which is repugnant to natural justice, equity and good conscience. A procedure is not contrary to natural justice merely because it is foreign to English Law-See Scapetta v Lowenfeld 27 L.T.R. 509; Kano Native Authority v. Obiola 4 FSC 226; Bukar of Kaligari v. Bornu Native Authority 20 N.L.R. 159. In the last case, Bairamian, J. (as he then was), said:-

"It must be presumed that the court followed the right procedure It differs from the English procedure; but that is not enough for attacking it."

The procedure adopted in the present case as laid down in section 160 of the Procedure Code is not dissimilar with the "no case" decisions in English law, and these principles are laid down as a pactice note by Parker, L.C.J., which is reported in [1962] 1 ALL E.R. 448. It is as follows:-

"Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, this Court has had on many occasions to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld:-

(a)     when there has been no evidence to prove an essential element in the alleged offence;

(b)     when the evidence adduced by the prosecution has been so discredited as result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."

We are satisfied that at the time the Magistrate drafted the charge he was not weighing the evidence before him; this he did after hearing the whole case. Up to that stage all the learned Magistrate was doing was making an enquiry, and this was so until the charge was framed by him. The procedure followed by the Magistrate is not unlike that provided by section 332 of the Criminal Procedure Ordinance (which was in force in the Northern Region before it was replaced there by the new Criminal Procedure Code, and is still in force in Lagos and other Regions). Under section 332 of the Criminal Procedure Ordinance, a Magistrate holding a preliminary enquiry may, in the course of it, turn it into a summary trial, subject of course to certain conditions, whereupon he may, under section 304(2), "cause the charge to be reduced into writing, if this has not been already done," and go through the procedure for a summary trial. That does not mean that the magistrate has made up his mind to convict; it only means that he thinks it is a case suitable for summary trial and which need not be committed to the High Court. The evidence heard up to that point shows that there is a prima facie case: but it may well be that further cross-examination of witnesses originally called, or of those, if any, called after the summary trial begins, or the evidence for the accused, may raise a reasonable doubt, in which case he will be acquitted.

We have given anxious consideration to the objection to the magistrate being required to frame the charge in the Northern Region; we feel that this means no more than that the magistrate is formulating what seems to him to be the appropriate charge for the offence which prima facie appears to have been committed, and it does not mean that the magistrate has made up his mind that the accused person is guilty. During our research we have had occasion to refer to the power provided in the Criminal Procedure Ordinance for the trail Court to alter or amend the charge before it which, when exercised, sometimes has the effect of re drafting the whole charge or information. The idea in the Northern Region is that the charge should be framed by the magistrate instead of being left in the hands of lay prosecutors to frame.