JAMES OGBEIDE v COMMISSIONER OF POLICE (U/21.CA/64) [1964] NGHC 43 (28 December 1964)

**JAMES** **O****GBEIDE** **(APPELLANT)** **_v_.** **COM****MI****S****S****I****ON****E****R** **O****F** **P****O****L****I****C****E** **(****R****ES****P****O****N****DE****N****T****)** **(19****6****4****)** **A****l****l** **N****.L.****R****.** **5****9****9** **Div****i****si****o****n:** High Court, (mid-west) **D****at****e** **o****f** **Judgment:** 28TH December, 1964 **C****as****e** **Num****b****er:** U/21._CA/64_ **Before:** Ekeruche, J. The appellant appeared before the Magistrate's Court, charged-with the offence of refusing or neglecting without reasonable cause to attend court in compliance with the requirements of a subpoena served on him contrary to section 191(_a_) of the Criminal Procedure Act; the accused pleaded guilty but stated in allocutus that his failure to attend was due to ill health and that he sent a letter to that effect to the court. He was found guilty and sentenced to a fine of £20 or two months' imprisonment with hard labour in default. On appeal it was submitted that the conviction is unreasonable in view of the reasons given by the appellant in allocutus; that the sentence is excessive having regard to the antecedents and character of the accused person. **_HELD_**** _:_** (1) Any explanation given by an accused person in allocutus, if accepted at all, can only go to mitigate sentence and cannot avail him as a defence to the charge. (2) For a cause to be reasonable so as to afford a defence under section 191(_a_) of the Criminal Procedure Act, which the Appellant is charged, the events must be such as actually to make it legally and physically impossible for the appellant to attend Court, and the reasons put forward here do not amount to reasonable cause. (3) The punishment meted to the appellant, although it represented the maximum prescribed by law, is within the legal competence of the lower court and as such there is no good reason in the particular case to take the view that it is excessive. _Appe_ _a_ _l_ _di_ _s_ _mis_ _s_ _ed_ _._ _A_ _c_ _t_ _r_ _e_ _f_ _er_ _r_ _e_ _d_ _t_ _o_ _:__-_ _Cr_ _i_ _mi_ _n_ _a_ _l_ _P_ _ro_ _c_ _ed_ _u_ _r_ _e_ _Ac_ _t_ _Ca_ _p_ _._ _4_ _3_ _,_ _s_ _e_ _c_ _t_ _io_ _n_ _19_ _1_ _(a_ _)__._ _Akaek_ _e_ , for the Appellant. Ekeruche, J.:-The appellant was charged before the Magistrate's Court, Ubiaja with the offence of refusing or neglecting without reasonable cause to attend Court in compliance with the requirements of a subpoena served on him contrary to section 191(_a_) of the Criminal Procedure Act and he pleaded guilty. The Magistrate's Court found him guilty and sentenced him to a fine of £20 or two months' imprisonment with hard labour in default. He now appeals to this Court against the conviction and sentence on the grounds:- 1\. That the conviction is unreasonable, unwarranted and cannot be supported having regard to the evidence, i.e. the nature of accused's plea. 2\. That the sentence is excessive having regard to the antecedents and character of the accused person and the plea of his Counsel. Learned Counsel for appellant in arguing the first ground referred to the reasons given by appellant at his "allocutus" for not coming to Court by which he said he had lost a relation and sent a letter about it to the court through one of the witnesses in the case in which he was to have given evidence and argued that the reason was in effect denial of guilt and that being so the conviction was wrong. In my view the explanation given by appellant if accepted at all can only go to mitigate sentence and cannot avail him as a defence. For a cause to be reasonable so as to afford a defence under the subsection under which appellant was charged, the events must be such as actually to make it legally and physicallycally impossible for him to attend Court. Reasons of sentiment as were the reasons put forward by appellant do not amount to reasonable cause. The ground of appeal fails. As regards the appeal against sentence, I must say that the punishment meted to appellant although it represented the maximum prescribed by law was within the legal competence of the lower court and I can find no reason in the particular case to take the view that it was excessive. The appeal against sentence also fails. The appeal is dismissed. The conviction of appellant and the sentence passed on him are affirmed. The sentence is to take effect from today.