Bako Bahar and others were tried and convicted in an Area Court on a charge of using criminal force, punishable under section 265 Penal Code. The charge lumped together both the main offenders and the abettors, cited four sections of the Penal Code for the main offence. The trial Court took a composite plea on all the offences from all the accused, and then convicted on the plea of guilty. The Upper Area Court, to which they appealed, heard thirteen witnesses, and substituted a conviction for the offence of wrongful restraint punishable under section 256 Penal Code. Bako Bahar appealed to the High Court.

HELD:

1.      Each offence must be charged under a separate head of charge: Section 212 Criminal Procedure Code and must convey to the accused the details and essentials of the offence. This was not done here, and led to a failure of justice.

2.      The plea of each accused must be taken separately, and separately on each head of charge. This was not done here, and led to a failure of justice.

3.      The judgment of the Upper Area Court took into account the number of witnesses on both sides as a relevant factor in itself. This was wrong. What is primarily relevant is quality of evidence not quantity.

4.      The Upper Area Court was wrong to substitute a conviction for an offence when the original charge had not put the accused on notice of the ingredients of that offence, and when the defence to that offence might have been substantially different.

5.      The Upper Area Court was wrong to hear additional evidence. In a criminal appeal from an area court an appeal court has no power to hear additional evidence: Section 58 Area Courts Edict. The term 'hear' in that section does not mean 'retry'.

6.      The trial Court accepted the words of the prosecutor that Bako had previous convictions. This was not evidence and it was wrong to act on it. Nor are previous convictions relevant unless for a similar offence, but the trial Court was not told for what offences Bako had been previously convicted.

7.      The trial Court referred to "P.C. order 1959" and "P.C. Rules 1959" when it meant 'Penal Code.' The Penal Code is the schedule to the Penal Code Law-See section 2 Penal Code Law.

Appeal allowed: Verdicts and sentences of both lower court set aside

Cases referred to:

Muktar Yerima v. The State (1969) S.C.O.P.E. 2

Amadu Gwaqwarawa v. Kano N.A. Police (1969) S.C.O.P.E. 108

Duval v. Commissioner of Police (1962) 2 All N.L.R. 115

Maye Rukuba v. Commissioner of Police (unreported) JD/29CA/67

CRIMINAL TRIAL

Appellant in person.

M. Sulemanu, State Counsel, for Respondent.

Jones, S.P.J.:-Delivering the judgment of the court: Appellant was tried and convicted in the Area Court of Yelwa of the offence of using criminal force, punishable under section 265 Penal Code. He appealed to the Upper Area Court at Sokoto, which substituted a conviction for the offence of wrongful restraint, punishable under section 256 Penal Code and reduced his sentence to six months' imprisonment. He now appeals on six grounds all of which amount to the general ground.

M. Sulemanu, State Counsel, says that he does not support the conviction, on the grounds, inter alia, that in the trial Court it was based on a plea of guilty which was, to say the least, suspect since six accused persons were charged together, four of them with an offence different from that of appellant, and the pleas of all were recorded as a single plea. The record reads as follows on this point:-

"Court has charged Bahar and Noma Alewa under section 262 to 265 and abettors-Ubandawaki, Maginga Adamu and Yusufu, all of you court has charged you under section 83 of the P.C. Order 1959.

Court to Bako, Noma Alewa and the other four accused persons.

'Do you understand your charges?'..."

and later,

"Court to all accused persons: 'Do you plead guilty?' Answer: Bako, Noma Alewa and the abettors (the rest four accused persons) said they pleaded guilty."

Nowhere was any explanation of the charge given to the accused persons, and nowhere did the trial Judge make sure that any of them understood the nature of the charge in all its details and essentials and also the effect of his plea in compliance with section 161 Criminal Procedure Code which now applies to area courts (see Muktar Yarima v. The State (1969) S.C.O.P.E. 2).

We, therefore, agree with learned State Counsel that both the charge was improperly presented to the accused and his plea improperly taken. We cannot be sure that he understood the charge; indeed, it is hard to see how he could possibly have understood it since it refers not to a single section but to four sections. And we certainly cannot think that if he did plea guilty (and of this there must be doubt) he understood the meaning and effect of his plea. Duval v. Commissioner of Police (1962) 2 All. N.L.R. 115.

The proper way to frame a charge and take a plea can be simply stated. Each single offence must be charged in a separate head of charge (S.212 C.P.C.) and each accused persons must have his plea taken separately on each offence with which he is charged and separately from every other accused person. Only if this procedure is followed can the court even begin to ensure that the accused understands the offence or offences with which he is charged and ensure that he understands his plea and its effect. The trial Judgment followed none of this procedure.

Mr Sulemanu, State Counsel also submits that it was not open to the Upper Area Court to substitute the offence of wrongful restraint because the ingredients are not such as would have been notified to the accused by the charge and the defence might, therefore, have been substantially different. We agree with this also.

We, therefore, allow this appeal, set aside the verdicts and sentences of both lower courts and enter a verdict of acquittal.

We think we should mention other irregularities in the proceedings of the lower courts. As State Counsel has pointed out, if the conviction of the Upper Area Court had been allowed to stand then the maximum sentence provided by the Penal Code for that offence is one month's imprisonment only.

The trial Court is recorded in translation as having charged and convicted the accused under a penal provision referred to variously as 'P.C. Order 1959' and 'P.C. 1959 Rules'. We are aware that the translation may not be in the correct legal terms. Nevertheless, the Penal Code, which is the schedule to the Penal Code Law is neither an Order nor a Rule nor anything except plain Penal Code as described in section 2. Penal Code Law. It should be so cited in charges and judgments.

In considering sentence the trial Court accepted the word of the prosecutor that appellant had two previous convictions. This was not evidence, because the prosecutor was not a witness. Even if it had been evidence, the prosecutor did not say what those two previous convictions were for. They would be relevant only if they had been for the same type of offence as that for which appellant was not convicted. In Amadu Gwaquarawa v. Kano N.A. Police (1969) S.C.O.P.E. 108 the then Chief Justice of the Northern States said with regard to the acceptance by a court of the prosecutor's statement that the accused was a habitual criminal:-

"We cannot too strongly condemn this practice...This Court has repeatedly pointed out that previous convictions alleged against an accused person must either be admitted by him or proved against him before sentence, and he must have an opportunity of denying them and putting the prosecution on proof of them."

In Maya Rukuba v. Commissioner of Police (unreported) JD/29CA/67, the Appeal Court said:-

"Either the record of previous convictions should have been exhibited to form part of the record or the Chief Magistrate should have recorded details of each conviction which the appellant admitted... Some of the convictions may... have no relevance to the sentence passed on appellant."