UBI YOLA v KANO NATIVE AUTHORITY (Criminal Appeal No. K/21 CA/1961) [1961] NGHC 16 (2 August 1961)

**U****B****I** **YO****L****A** **(****AP****P****EL****L****A****N****T****)** **_v._** **KANO** **NA****TIVE** **AU****THORITY** **(R****ESPONDENT)** **(19****61)** **N.N.L.R.** **1****03** **(1961)** **All** **N.L.R.** **571** **Div****i****si****o****n:** High Court (North) (C.A.) **D****at****e** **o****f** **Judgment:** 2nd August, 1961 **C****as****e** **Num****b****er:** Criminal Appeal No. K/21 CA/1961 **Before:** Hurley, C. J. Bate, J. Appeal from Native Court. The appellant was charged with Culpable Homicide Punishable with Death before the court of the Emir of Kano. The trial court failed to comply with section 389 of the N.R. Criminal Procedure Code, in that it omitted to ask the appellant for the names and whereabouts of his witnesses. The appellant was subsequently convicted. He appealed. At the hearing of the appeal the court granted a short adjournment for Counsel for the appellant to ascertain whether the appellant would have called witnesses if he had been given the opportunity of doing so. Counsel for the appellant duly reported to the court that the appellant had two eye-witnesses whom he had named and who would have given evidence that the appellant had acted under provocation. **_HELD_**** _:_** (1) Section 382 of the N.R. Penal Code requires that there shall be no interference by an appellate court with the findings of the trial court unless a failure of justice has actually been occasioned. (2) Where an accused wishes to call witnesses, an omission by the trial court to call upon the accused to inform the court of the names and whereabouts of his witnesses amounts to a failure of justice sufficient to warrant the setting aside of a conviction and sentence by an appellate court. (3) Where, because of an irregularity in the trial proceedings, an appellate court decides that a failure of justice has been occasioned, but that there was a considerable body of evidence that the appellant committed the offence of which he was convicted; the appellate court will set aside the conviction, but will order a retrial. _Ap_ _p_ _e_ _a_ _l_ _a_ _l_ _l_ _o_ _w_ _e_ _d_ _:_ _C_ _o_ _n_ _vi_ _c_ _t_ _i_ _o_ _n_ _q_ _u_ _a_ _s_ _h_ _e_ _d_ _:_ _R_ _e_ _t_ _r_ _ia_ _l_ _o_ _rd_ _e_ _r_ _e_ _d_ _._ _O_ _rdinance_ _s_ _referr_ _e_ _d_ _to:__-_ _N_ _.R_ _._ _Cr_ _i_ _min_ _a_ _l_ _P_ _roc_ _e_ _dur_ _e_ _C_ _o_ _de_ _,_ 1960, (N.R. No. 11 of 1960) sections 392, 388, 389. _N.R_ _._ _Pe_ _n_ _a_ _l_ _C_ _od_ _e_ _,_ 1959, (N.R No. 18 of 1959) section 221. APPEAL from Native Court. _Thoma_ _s_ for the Appellant. _Co_ _r_ _co_ _r_ _a_ _n_ , Crown Counsel, for the Respondent. Bate, J. :-(delivering the Judgment of the court):-The appellant was convicted by the Emir of Kano of culpable homicide punishable with death contrary to section 221 of the Penal Code. Mr Thomas who appeared for the appellant abandoned the grounds of appeal set out in the notice of appeal and obtained leave to argue four additional grounds. Of these he abandoned the third but argued the rest. The first additional ground of appeal is that the conviction is bad in law in that the provisions of sections 388 and 389 of the Criminal Procedure Code were not complied with by the trial court. Counsel abandoned his complaint with regard to section 388 but submitted that there had been no compliance with section 389 in that the trial court had omitted to call upon the appellant to inform the court of the names and whereabouts of his witnesses. The Crown Counsel who appeared for the respondent conceded that this was so. He also reminded us that the provisions of section 389 were by virtue of section 386 of the Criminal Procedure Code binding upon the trial court. He asked for a retrial. We agree that the trial court failed to comply with section 389 in that it omitted to ask the appellant for his witnesses. We have given careful consideration to section 382 of the Code and in particular to the question whether a failure of justice has been occasioned by the omission. We note that the language of the section 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. It is obvious that no failure could have been occasioned unless the appellant had in fact wished to call witnesses. We therefore gave Counsel for the appellant a short adjournment to confer with the appellant in order to ascertain whether the appellant would have called witnesses if he had been given the opportunity to do so. After conferring, Mr Thomas informed us that the appellant had two eye-witnesses whom he named and who, the appellant had said, would give evidence that the appellant had acted under provocation. We think that we should accept this. Upon the assumption that the appellant has two witnesses as to provocation, 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. We therefore consider that the conviction and sentence must be set aside. It is unnecessary for us to consider the other grounds of appeal. There is however a considerable body of evidence that the appellant committed the offence of which he was convicted. We therefore take the view that there should be a retrial. The appeal is allowed and the conviction and sentence are set aside. The appellant shall be retried by the High Court of Justice at Kano, if upon preliminary investigation he shall have been committed for trial. The Chief Magistrate, Kano, shall hold a preliminary inquiry with the least possible delay. _Appea_ _l_ _allowe_ _d_ _._ _C_ _onvictio_ _n_ _qu_ _a_ _shed_ _._ _Retr_ _i_ _a_ _l_ _or_ _d_ _ere_ _d_ _._