OKORUWA & ANOR (APPELLANT)
THE STATE (RESPONDENT)
(1975) All N.L.R. 262
Division: Supreme Court
Date of Judgment: 1st May, 1975
Before: Elias, C.J.N., Sowemimo and Ibekwe, JJ.S.C.
APPEAL from the High Court, Ubiaja.
The two accused persons were charged in Ubiaja High Court with manslaughter and negligent driving. They were found guilty only of manslaughter and sentenced to five years imprisonment. One of the two accused appealed to the Supreme Court.
Appellant contended on appeal that the learned trial Judge erred in law in sentencing appellant before conviction and also before judgment which was reduced into writing, signed and dated before being "dictated" by him in open court.
Appellant further contended that the procedure whereby the learned trial Judge recorded that he dictated his judgment in court is contrary to S. 245 Criminal Procedure Act which required that a judge must record his judgment in writing; that he must give reasons for his decision; that the judgment should be dated and signed by the judge at the time of pronouncing it. While a magistrate may give an oral judgment and record his conclusions briefly, a judge must give a written judgment in open court.
The Supreme Court also indicated that the learned trial Judge would appear to have recorded what looked like a regular judgment only after he had dictated a slightly different version of it to a stenographer in open court. It was also noted that once a judge has pronounced a judgment, he is functus officio and the any judgment reduced into writing or any reasons given subsequently is void.
(1) That as the learned trial Judge has failed to deliver a written judgment in accordance with S. 245 Criminal Procedure Act, the purported judgment is a nullity and the sentence pronounced against the appellant are null and void.
(2) That, although only one of the two accused has appealed, both the present appellant and his co-accused, who is still in prison are hereby discharged and acquitted, as there has been no conviction of both and no proper judgment delivered in the case; and
(3) that it is unnecessary to consider the other grounds of appeal.
Cases referred to:
Sylvannus Unakalamba v. Commissioner of Police (1958) 3 F.S.C. 7. The Queen v. Timothy Fadina (1958) 3 F.S.C. 11.
Statute referred to:
Criminal Procedure Act (Cap. 43), S. 245 1958 Edition of the Laws of the Federation.
APPEAL from the High Court, Ubiaja.
SUIT NO. S.C. 448/74.
Mr C. O. Ihensekhien for the Appellant.
Mr W. D. O. Agbahowe, Principal State Counsel (Mid-West), for the Respondent.
ELIAS, C.J.N. (Delivering the Judgment of the court)-On Thursday, April 24th, 1975, we heard the appeal from the judgment of Omo Eboh, J., given in Charge No. U/11c/71 at the High Court at Ubiaja, Mid-Western State of Nigeria, in which he purported to have sentenced each of the two accused persons to 5 years' imprisonment I.H.L. on the 1st count of manslaughter, but in which he did not pronounce sentence on the 2nd count of negligent driving in respect of both accused persons.
Of the five grounds of appeal filed before us, Mr Ihensekhien learned Counsel for the appellant who alone has appealed, began by arguing the first ground which reads as follows:-
"The learned trial Judge erred in Law in so far as-
(a) He sentenced the appellant before conviction.
(b) The judgment was not reduced into writing and signed and dated before it was "dictated".
(c) He sentenced the appellant before judgment.
(d) The judgment was reduced into writing, dated and signed when he was already functus officio.
(e) The judgment was never pronounced in Court."
Learned Counsel drew our attention to the following portion of the Record of Appeal, at p. 19: "Judgment is dictated in Court.
The 1st accused is sentenced to 5 years I.H.L. on 1st count, no sentence is given on the 2nd count.
The 2nd accused is sentenced to 5 years I.H.L. on 1st count and no sentence is given on the 2nd count.
(Sgd.) J. OMO EBOH,
He also contrasted this passage with the following also recorded by the learned trial Judge as part of the judgment which he apparently wrote the same day:
"None of the two accused is desirous of an option of a fine. 1st and 2nd accused persons are sentenced to 5 years I.H.L. each on the 1st count of manslaughter. No sentence is pronounced on the 2nd count of negligent driving in respect of both accused persons.
(Sgd.) J. OMO EBOH,
Learned Counsel submitted, and we agree with him, that the learned trial Judge was clearly in error in having "dictated" his judgment in court, as there is no provision in the law for a high court judge to dictate his judgment in court. Section 245 of the Criminal Procedure Act (Cap. 43) of the 1958 Edition of the Laws of the Federation, is against such a proceeding in its provision which reads as follows:-
"The judge or magistrate shall record his judgment in writing and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the judge or magistrate at the time of pronouncing it: Provided that in the case of a magistrate in lieu of writing such judgment it shall be a sufficient compliance under this section if the magistrate-
(a) records briefly in the book his decision thereon and where necessary his reasons for such decision and delivers an oral judgment, or
(b) records such information in a prescribed form."
It is therefore clear that a magistrate, but not a judge, may give an oral judgment and record his conclusions briefly. This is because of the large number of cases which the magistrate has to handle, often by summary procedure. A judge has no similar excuse. In the present appeal, we note a slight disparity between the sentences which the trial Judge pronounced in the first passage cited above and those in the second passage, also cited above. Whereas the sentences in the first passage made no reference to the particular offence of manslaughter for which he sentenced both accused on the 1st count, there was no reference to manslaughter in the first passage.
Again, although the four-page judgment which appears immediately below the passage in which the learned trial Judge purported to have dictated his judgment is made to look like a formal and regular judgment of the learned trial Judge in the matter, it seem to us nevertheless that it must have been written later and perhaps revised by the learned trial Judge. It does not seem to us that it was a judgment written, signed and dated before it was pronounced, as required by Section 245 of the Criminal Procedure Act. In Sylvanus Unakalamba v. Commissioner of Police (1958) 3 F.S.C. 7, the Federal Supreme Court laid it down that "judgments must be reduced into writing and signed and dated before they are pronounced ........ Once a judge or a magistrate has pronounced judgment, he is functus officio and any judgment reduced into writing or any reasons given subsequently are of no effect and cannot be looked at by the Court of Appeal." The judgment in the case itself was that of a high court judge and the Supreme Court felt constrained to point out that the practice of giving judgments and then subsequently filing reasons therefore is not in accordance with the law. Similarly, in The Queen v. Timothy Fadina (1958) 3 F.S.C. 11, the trial Judge, at the conclusion of the trial, delivered a judgment based on notes made by him during the trial, which notes did not form part of the Record of Appeal. Having convicted the appellant and sentenced him, the learned trial Judge then read the judgment which formed part of the Record of Appeal. The Supreme Court held that the subsequent judgment should be disregarded.
We are also of the opinion that the judgment in the present case does not record a formal conviction of the appellant and his co-accused, but only the punishment on one of the two counts with which they were both charged. On this ground also, we think that the judgment cannot stand.
We think that the judgment, having apparently been dictated to a stenographer in court, has not been "delivered" in accordance with Section 245 of the Criminal Procedure Act, and that it is highly irregular on that account also. It is not obvious what was intended by the learned trial Judge in appending a formal judgment to his note in which he had written that the judgment was dictated in court. Is this judgment to be regarded as an appendix to that note or is it a judgment written as for reasons for judgment previously delivered? In either case, it is not judgment according to the Act. As we consider it unnecessary for learned Counsel for the appellant to go on to argue his other four grounds of appeal, we stopped him. We then invited the learned Principal State Counsel for the Mid-Western State to express an opinion on the submission of learned Counsel for the appellant on the first ground of appeal argued thus far. He conceded that the learned trial Judge was wrong to have "dictated" his judgment in court and thereafter to have appended what looked like a regular judgment.
Since we take the view that the purported sentence without a formal conviction has been given by the trial Judge in a purported judgment which we now hold to be improper and irregular, we think that the co-accused who has not appealed is entitled to be acquitted and discharged along with the appellant. We, therefore, acquit and discharge both accused persons. We hereby set aside the purported judgment of Omo Eboh, J., in Suit U/11c/71 given on August 14, 1973.