SAMUEL BOBAYE v KANO NATIVE AUTHORITY (CRIMINAL APPEAL No. K/60CA/1961) [1961] NGHC 33 (16 December 1961)

**SAMU****E****L** **B****O****BAY****E** **(AP****P****ELL****A****NT****)** **_v._** **KANO** **NATIVE** **AUTHORITY** **(RESPONDENT)** **(****1962)** **N.N.L.R.** **59** **(1961)** **All** **N.L.R.** **817** **Div****i****si****o****n:** High Court (North) (C.A.) **D****at****e** **o****f** **Judgment:** 16th December, 1961 **C****as****e** **Num****b****er:** CRIMINAL APPEAL No. K/60CA/1961 **Before:** Hurley, C. J. Reed, J. Appeal from Kano Provincial Court. The appellant was charged in a Native Court with an offence under section 311 of the N.R. Penal Code. He pleaded not guilty to the charge. The following question was put to him in Hausa:- "Samuel, have you any witnesses to say that you did not commit this offence, that is to say, that you received £550 which you are denying?" He called witnesses in his defence but was not asked by the court if he wished to give evidence on his own behalf, or otherwise to make a statement to the court in his defence. He did not give evidence or make a statement. He was convicted of the offence. On appeal to the High Court he alleged as one of his grounds of appeal that the trial was irregular because of the failure on the part of the trial court to ask him if he desired to give evidence or to make a statement to the court. **_HELD_**** _:_** (1) The failure of a Native Court to comply with section 389 of the N.R. Criminal Procedure Code, by omitting to inform an accused person of his right to state his defence, whether by given evidence or otherwise, is an irregularity and can occasion a failure of justice. (2) An appellate court will order a retrial where the trial proceedings have been irregular and the circumstances are such that to refuse a retrial would occasion a greater miscarriage of Justice than to grant it. _App_ _e_ _al_ _e_ _d_ _a_ _l_ _lo_ _w_ _ed_ _:_ _Co_ _n_ _vi_ _c_ _ti_ _o_ _n_ _qu_ _a_ _sh_ _e_ _d_ _:_ _R_ _et_ _r_ _ia_ _l_ _be_ _f_ _or_ _e_ _Mag_ _i_ _st_ _r_ _at_ _e_ _Or_ _d_ _er_ _e_ _d_ _._ _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _U_ _b_ _i_ _Y_ _o_ _l_ _a_ _v_ _._ _K_ _a_ _n_ _o_ _Na_ _t_ _iv_ _e_ _A_ _u_ _th_ _o_ _rit_ _y_ _,_ _(1961)_ _All_ _N_ _.L.R._ _549_ ; (1961) N.N.L.R. 103. _Tamb_ _a_ _y_ _a_ _F_ _i_ _lan_ _i_ _v_ _._ _Bo_ _r_ _n_ _u_ _Na_ _t_ _iv_ _e_ _A_ _uth_ _o_ _rit_ _y_ _,_ _(1961) All N.L.R. 473_ ; (1961) N.N.L.R. 100. _Yesuf_ _u_ _Abodu_ _n_ _d_ _a_ _v_ _._ _Th_ _e_ _Queen_ _,_ 4 FSC 70. _La_ _w_ _ref_ _e_ _rre_ _d_ _t_ _o_ _:__-_ _N_ _.R_ _._ _Cr_ _i_ _min_ _a_ _l_ _P_ _roc_ _e_ _dur_ _e_ _C_ _o_ _de_ _,_ 1960, (N.R. No. 11 of 1960) secs. 382, 386(2), 389. APPEAL from Kano Provincial Court. _Agbam_ _u_ _ch_ _e_ for the Appellant. _Co_ _r_ _co_ _r_ _a_ _n_ , Crown Counsel, for the Respondent. Reed, J. (delivering the Judgment of the court):-This is an appeal against the decision of the Provincial Court, Kano, convicting the appellant of an offence under section 311 of the Penal Code. One of the grounds of appeal-the third additional ground-reads:- The trial of the appellant was irregular for failure on the part of the court to observe the provisions of section 389 of the Criminal Procedure Code N.R. No. 11 of 1960. Section 389 of the Criminal Procedure Code reads: Upon charging an accused person a Native Court shall call upon him to state his defence and to inform the court of the names and whereabouts of any witnesses whom he intends to call in his defence and the court shall procure the attendance of such witnesses and hear their evidence in like manner in all respects as a magistrate acting under section 163. Section 386(2) states that all Native Courts "shall be bound by the provisions" of, _inter_ _alia_ , section 389. At 2 of the certified true English translation of the record of proceedings in the court below the following question is shown as having been put to the appellant: Have you got anything to say or witnesses who can prove that you have not committed the offence.... The appellant is recorded as answering:-I have got witnesses namely.... and thereafter follow the names and addresses of witnesses. These witnesses were duly called and gave evidence but the appellant himself did not give evidence or state his defence. Upon the application of the appellant the original Hausa record of proceedings in the court below was produced and the sworn court interpreter has interpreted the question set out above as follows:- Samuel, have you any witnesses to say that you did not commit this offence, that is to say, that you received £550 which you are denying? It appears, therefore, that the appellant was not asked if he wished to give evidence on his own behalf, or otherwise state his defence, and did not, in fact, do so. This Court considered the effect of non-compliance with section 389 by a Native Court in _Ubi_ _Yola_ _v._ _Kano_ _Native_ _Authority,_ _(1961)_All N.L.____R__ _. 549_ ; (1961) N.N.L.R. 103. In this case the trial court omitted to ask the appellant for his witnesses. The appeal court stated:- We note that the language of the section (section 382) requires that there shall be no interference with the findings of the trial court unless a failure of justice has actually been occasioned. A mere possibility that a failure of justice might have been occasioned is not enough to justify interference. The appeal court went on to say that no failure could have been occasioned unless the appellant had in fact wished to call witnesses. The appellant having stated that he had two eye-witnesses, the appeal court "upon the assumption that the appellant has two witnesses" said:- We are compelled to the conclusion that a failure of justice has been occasioned by the omission of the trial court to comply with section 389, and allowed the appeal. It is clear from the record in the case before us that the appellant did not admit the evidence which was given against him and we feel obliged to hold that the failure to inform him of his right to state his defence, whether by giving evidence or otherwise, occasioned a failure of justice. We must, therefore, allow this appeal, the reason being that a failure of justice was occasioned in the sense that the appellant was prejudiced in his defence. He was not given the full scope in defending himself which the law entitled him to. Neither were the appellants in Ubi Yola's case _(supra)_ and _Tambaya_ _Filani_ _v._ _Bornu_ _Native_ _Authority,_ _(1961) All N.L.R. 473_ ; (1961) N.N.L.R. 100. In the last mentioned case, however, it made no difference, because there was nothing that could have been added to the defence. Here, as in _Ubi_ _Yola,_ there was something that could have been added had the defence been given its full scope-the appellant's own version of his defence as a connected narrative, whether evidence or statement of defence, such as his co-accused delivered. We cannot say that that would have had no weight and without that the defence was embarrassed or prejudiced and there was a failure of justice. If one of his witnesses had not been heard, we would have had to ask, what that witness would have said before we could have been satisfied that there was prejudice or embarrassment. But there is no need to ask what the appellant himself would have said; we know he had something material to say. We must decide whether to order a retrial. The Federal Supreme Court has set out the principles on which an appeal court should act in deciding whether or not to order a retrial. In _Yesufu_ _Abodundu_ _a_ _nd_ _others_ _v._ _T_ _he_ _Queen,_ 4 FSC 70 at 73 it is stated:- We are of the opinion that, before deciding to order a retrial, this Court must be satisfied (_a_) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to section 11(1) of the Ordinance, (_b_) that, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (_c_) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time, (_d_) that the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial, and (_e_) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it. We now apply these principles to the case before us. There has been an error in law of such a character that the trial was not rendered a nullity but we were unable to say that there had not been a failure of justice. The evidence as a whole discloses a substantial case against the appellant. There are no special circumstances such as would render it oppressive to put the appellant on trial a second time. The offence of which the appellant was convicted is not trivial; the consequences to the appellant or to any other person of the conviction or acquittal of the appellant are not trivial. In our view to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it. Accordingly we make the following order: Appeal allowed and the conviction and sentence set aside. The appellant shall be retried by the Chief Magistrate, Kano. _A_ _ppe_ _a_ _l_ _allo_ _w_ _ed_ _:_ _Re_ _t_ _ria_ _l_ _b_ _efor_ _e_ _M_ _agis_ _t_ _rat_ _e_ _o_ _r_ _der_ _e_ _d_ _._