Ogor Michael Vs The Queen (1961)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J. 

The appellant was convicted on the 7th November, 1960, in the High Court of the Western Region at Abeokuta, by Charles, J., of murdering one Chuckwumeka Ogor at Apoje on the 3rd May, 1960. He appeals against conviction, and his first ground is that

The appellant was prejudiced upon his trial by the failure of the learned trial Judge to comply with the provisions of section 223 and section 224 of the Criminal Procedure Ordinance, Cap. 43, Laws of  Nigeria.

His learned Counsel, Mr. Cole, stated that the appellant complained about having been tried without any proper investigation having fast been made into his fitness to stand his trial, in spite of the fact that the Crown had, before the trial, a certificate from a medical officer which raised that question, and of the fact that the question was raised immediately after the appellant pleaded not guilty, and arose again after the first witness for the Crown was heard.

Reference was made at the hearing to the case of Podola, 1959, 3 All E.R. 418, as showing that a complaint of that sort may be made in an appeal against conviction; and there was no dispute on that point. There was, however, a divergence in the submissions of Counsel on whether sections 223 and 224 of our Criminal Procedure Ordinance relates solely to an inquiry into a defendant’s fitness to stand his trial where the matter arises before he pleads to the charge itself, or extend also to a case where the matter arises after he has pleaded to the charge, and also to a case where some evidence has been taken.

It is provided in section 223 (5) that-

Any court before which a person suspected to be of unsound mind is accused of any offence may, on the application of a law officer or crown counsel, made at any stage of the proceedings prior to the trial, order that such person be sent to an asylum for observation. The medical officer may, etc.

The words “prior to the trial” indicate that no plea has been taken and, at any rate, that no witness has been heard on the charge itself. On the other hand, the section begins as follows:

(1) When a judge holding a trial or a magistrate holding a trial or an inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence the judge, jury, or magistrate, as the case may be, shall in the first instance investigate the fact of such unsoundness of mind.

Subsection (2) provides for the investigation of that fact, and subsection (3) goes on to provide that-

If the judge, jury or magistrate, as the case may be, is not satisfied that such person is capable of making his defence, the court shall postpone the trial or inquiry and shall discharge the jury, if any, and shall remand such person for a period not exceeding one month to be detained for observation in an asylum

The words “a judge holding a trial” in subsection (1) suggest that the defendant has pleaded to the charge, and can include a case in which evidence has begun to be heard. In subsection (3) the words “the court shall postpone the trial” suggest that the trial has not begun, but they are not conclusive: for there is section 226 which provides that-

Whenever an inquiry or trial is postponed under section 223 or 224 the court may at any time reopen the inquiry or commence the trial de novo and require the accused to appear or be brought before such court.

The words “commence the trial de novo” suggest that, before the trial was postponed, evidence had been heard on the charge itself.