ARUA EME (APPELLANT)

v.

THE STATE (RESPONDENT/APPELLANT)

(1964) All N.L.R. 409

Division: Supreme Court

Date of Judgment: 23rd December, 1964

Case Number: S.C. 374/1964; from Eastern Nigeria

Before: Ademola, C.J.N.; Brett, Bairamian, Onyeama, and Ajegbo J.J.S.C.

Appeal by second defendant against conviction: (referred to below as the defendant).

Briefly put, section 287(1)(a) provides that when a defendant who has no Counsel is called upon for his defence the court shall inform him that he may (1) make an unsworn statement (2) give evidence on oath and be examined, or (3) say nothing at all, and the court shall also ask him whether he has witnesses and hear him and his witnesses. Section 288 states that failure to comply with those requirements does not per se vitiate the trial if the court called on the defendant for his defence and asked him if he had witnesses and heard him and his witnesses (text in judgment).

The trial Judge did not ask the defendant, who was without Counsel, if he had witnesses: the defendant stated to the trial Judge that he was elsewhere, having gone to collect a debt. In his statement to the police he had said that he did not find the debtor at home, and he did not suggest that he saw anybody who could support his story. The judge convicted the defendant; and the main point in the appeal was the effect of the judge's failure to ask him if he had witnesses, as required by section 287(1)(a). Counsel for the defendant submitted that in light of section 288 such failure impaired the trial to the extent that the appeal must be allowed in any event, and that then the court could order an acquittal or a retrial, but could not dismiss the appeal on the ground that there was no substantial miscarriage of justice.

HELD:

(1)     (a)     A proviso is intended to qualify the enacting clause, and ought not to be so constructed as to import a provision into the enacting clause which is not there and enhance the effect of that clause.

(b)     Section 288, which is a saving [section or] clause, is in substance a proviso to section 287(1)(a), and the implication in section 288 that the trial is vitiated where the defendant is not asked if he has witnesses cannot be imported into section 287(1)(a).

(2)     Failure to comply with section 287(1)(a) of the Criminal Procedure Act, although an irregularity, does not render a trial null; the effect of such failure must depend on the circumstances of each case, and the court is at liberty to allow the appeal and order an acquittal or a retrial, or dismiss the appeal if there was no substantial miscarriage of justice.

(3)     In this case the defendant had no witness who could have helped him, and there was no miscarriage of justice.

N.I.P.C. and Mansour v. B.W.A. Limited [1962] 1 All N.L.R. 556.

West Derby Union v. Metropolitan Life Assurance Society [1897] A.C. 647, 651, and 655.

Oladimeji v. The King 13 W.A.C.A. 275 over-ruled.

Salawu Atunde v. C.O.P. 14 W.A.C.A. 171 approved.

Appeal dismissed.

Other cases cited:-

Oke v. I.G. of Police 14 W.A.C.A. 645; Igwenagu v. I.G. of Police (1959) N.R. N.L.R. 80.

J.O. Cole for the Appellant.

F.O. Offiah, Senior State Counsel, for the Respondent.

Onyeama, J.S.C. (delivering the judgment of the court).:-The applications for leave to appeal by the three appellants from the judgment of Nkemena, Ag. Judge dated the 12th of June, 1964, in the High Court at Port Harcourt, on question of fact were refused on the 24th of September, 1964, as the facts of the case were quite clear and fully justified the conviction of the appellants of the offences charged-; in the case of the third appellant, Arua Eme, his complaint that the learned trial Judge erred in law by refusing him the right to call his defence witnesses to corroborate his statement, raised a point of law and his appeal on this point was adjourned for a full court.

The record of the proceedings at the trial does not show, as it does in the case of the other accused persons, that the appellant Arua Eme, who was the second accused, and who was not defended by Counsel, was asked if he had any witnesses to examine as required by section 287(1)(a) of the Criminal Procedure Act (Cap. 43).

As the effect of the failure by a trial court to comply with this provision of the Criminal Procedure Act is a maker of importance on which there have been conflicting views and decisions, Mr J.A. Cole, of Counsel, was assigned to the appellant and the point was fully argued.

The relevant sections of the Criminal Procedure Act are as follows:-

"287. (1)     At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and:-

(a)     if the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely:-

(i) he may make a statement, without being sworn, from the place where he then is; in which case he will not be liable to cross-examination; or

(ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross-examination, or

(iii) he need say nothing at all, if he so wishes, and in addition the court shall-ask him if he has-any witnesses to examine or other evidence to adduce in his defence and the court shall then hear the defendant and his witnesses and other evidence, if any;"

(b)     and (2) (not relevant.)

"288. Failure to comply with the requirements of, paragraph (a) in section 287 shall not of itself vitiate the trial provided that the court called upon the defendant for his defence and asked him if he had any witnesses and heard the defendant and his witnesses and other evidence, if any."

The result of non-compliance with section 287(1)(a) was considered by the West African Court of Appeal in Oladimeji v. The King 13 W.A.C.A. 275. The court took the view that it was not open to it, as it would be in England, to consider whether the accused person in such circumstances had been prejudiced, because the obligation to ask the defendant if he had witnesses was imposed by statute, and the necessary implication in section 288 was that failure to comply with section 287(1)(a) was to vitiate the trial; the court interpreted the word 'vitiate' to mean 'render null and void' and in the case before it declared the proceedings a nullity.

The like view was taken in Adikun Oke v. Inspector-General of Police 14 W.A.C.A. 645, but no reasons were given for taking that view; apparently it was taken for granted; or it may be that the court was following Oladimeji without saying so.

About two years before Adikun Oke's case the West African Court of Appeal considered the same question in Salawu Atunde v. Commissioner of Police 14 W.A.C.A. 171 and in allowing the appeal said it was doing so because there was a bare possibility that the appellant may have been prejudiced and in view of Crown Counsel's submission that this is a fit case for a retrial; they did not say the trial was nullity. This judgment was followed in the Northern Region High Court in Igwenagu (1959) N.R.N.L.R. 80.

The case of Oladimeji is the only reported decision in which the effect of sections 287 and 288 is considered by reference to their precise wording. The reasoning in that case is based on the view that section 288 amounted to a positive enactment that failure to comply with section 287(1)(a) shall vitiate the trial; and that the word "vitiate" meant rendered null and void.

Neither section 287 nor section 288 states expressly that failure to comply with section 287 shall render the trial a nullity; this effect is said to be necessarily implied by section 288. The court in Oladimeji's case did not consider the consequences which flowed from its view. One consequence is, as was pointed out by Mr Offiah, who appeared for the respondent, that even where a defendant who is not represented by Counsel calls his witnesses, his trial is null and void merely because the trial Judge did not ask him whether he had any. The aim of section 287(1)(a) is to ensure that a defendant shall have an opportunity of making his defence; he does make it if he calls his witnesses; and the mere omission to ask him whether he has any should not per se nullify his trial. Likewise, if he has no witnesses, the omission does not deprive him of anything. Indeed, Mr Cole for the appellant does not argue that the omission nullifies the trial. His argument is that it impairs the trial, and does so to the extent that the appeal must be allowed in any event, and then the appellate court may direct an acquittal or a retrial, but has no other choice: in his submission, the court cannot dismiss the appeal on the ground that there was no substantial miscarriage of justice. In our opinion there is nothing to preclude the court from dismissing the appeal for the reasons we shall give.

We think that section 288 was intended to cut down or qualify the supposed effect of failure to comply with the requirements of paragraph (a) in subsection 1 of section 287; in substance, it is a proviso; the object of a proviso is to qualify or cut down something which has gone before, usually called the enacting clause; we think section 288 should be construed in that light. By reason of the premises, the enacting clause, namely section 287(1)(a) would, but for the proviso, have the effect which the proviso seeks to qualify, and that was the reason for adding the proviso. A proviso is sometimes added to allay fears which may be unfounded with the result that a statute is burdened with a needless proviso; for if the enacting clause does not have the effect which the proviso seeks to qualify, there is no point in adding the proviso. The trouble arises from assuming that the enactment has the effect implied by the proviso; one then goes on to infer that it does really have that effect, and to import legislation into the body of the statute; so that a proviso intended to cut down or qualify the enacting clause has the opposite result and enhances the effect of the clause.

This Court had occasion to say so in N.I.P.C. and Mansour v. Bank of West Africa Limited (as yet unreported; but see FSC 478161 decided on 7th November, 1962) on the second proviso to section 15 of the Land Registration Act (Cap. 99 in the 1958 Laws of the Federation); and, on the construction of a Proviso, Lord Halsbury said it would be most formidable to give a proviso a meaning which would suggest that the previous part of the section of which it is a proviso should imply by law the existence of words there of which there is not a trace in the previous words of the section itself: see West Derby Union v. Metropolitan Life Assurance Society [1897] A.C. 647 at 651. Lord Herschell, in the same case said at 655:-

"I decline to read into any enactment words which are not to be found there, and which would alter its operative effect because of provisions to be found in any proviso. Of course a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt as to its having this scope or that, which is the proper view to take of it; but to find in it an enacting provision which enables something to be done which is not to be found in the enactment itself on any reasonable construction of it, simply because otherwise the proviso would be meaningless and senseless, would, as I have said, be in the highest degree dangerous."

With respect to the learned judges who decided Oladimeji v. The King 13 W.A.C.A. 275, they used section 288, a saving clause intended to cut down the effect of paragraph (a) in subsection 1 of section 287, as the basis for importing into that subsection a provision which is not there. They quote section 288, say that it is unintelligible-which it is-and then go on to say this:-

"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 effect, they imported into section 287 a positive enactment that failure to comply with the requirements of paragraph (a) in section 287(1) shall vitiate the trial, contrary to the accepted rule of construing a proviso, which applies equally to what is framed as a saving clause and is a proviso in substance. We must dissent from the use made of section 288 in Oladimeji v. The King; that decision must be over-ruled. The proper course in our view is to consider the effect of failure to comply with section 287(1)(a) without importing into it any implication from section 288.

We were referred to section 304(3) of the Criminal Procedure Act which provides that:-

"If the magistrate shall not inform the accused of his right to be tried by a judge of the High Court or with a jury, as the case may be, the trial shall be null and void ab initio unless the accused consents at any time before being called upon to make his defence to be tried summarily by a magistrate in which case the trial shall proceed as if the accused had consented to being tried summarily by a magistrate before the magistrate proceeded to hear evidence in the case."

There it is expressly stated that the trial shall be null and void, and the reason is want of jurisdiction. The decided cases nearly all show that proceedings are usually a nullity where the trial court has no jurisdiction in the case or where there has been such a departure from the rules of procedure that it can be said that there has, in fact, been no trial.

We think that the construction adopted by the West African Court of Appeal in Atunde v. Police is the correct one and that failure to comply with section 287(1)(a) of the Criminal Procedure Act, although an irregularity, does not render the trial null; the effect of such failure must depend on the circumstances of the particular case, and the appellate court is at liberty to allow the appeal and order an acquittal or a retrial, or dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

In the case with which this appeal is concerned, the appellant Arua Eme stated in his defence that he had been away from Port Harcourt at that time the crime with which he was charged was committed; he had gone to demand payment of a debt from an unnamed person and it was while he was returning from this debtor's house to Port Harcourt that he was involved in a fight with a group of people; later in the day he was arrested and charged with the offences set out on the information. He said that the debtor, who would, no doubt, be the witness to support his story that he was not in Port Harcourt at the material time, wrote him a letter and the letter was produced in evidence as exihibit 19. The appellant did tell the police who this debtor was in his statement, exhibit 16, but he added that he did not find this debtor at home; the debtor could not, therefore, say whether the appellant came to his house or not; and as the appellant did not suggest that he saw anybody else who could give relevant evidence on the question, there was no other evidence which the appellant could have added to his defence.