Matthew Obakpolor Vs The State (1991)

LawGlobal-Hub Lead Judgment Report

E. O. I. AKPATA, J.S.C. 

One of the methods by which criminal proceedings could be instituted in the High Court in Bendel State and a number of other States in the country was by information filed in the court after the accused had been committed for trial by a magistrate following a preliminary Inquiry. The practice of conducting such an Inquiry before an information is filed has been discontinued. This appeal however relates in the main to a procedural irregularity in the committal of the appellant for trial following a preliminary Inquiry in 1986.

On an information filed by the Attorney-General of Bendel State, the accused, now appellant, was charged with the murder of one Dele Kukuru on or about the 4th day of August, 1985 at Sapele in the Sapele Judicial Division of Bendel State. The charge arose from the committal of the accused to the High Court for trial by the Magistrate who conducted a preliminary inquiry under the provisions of Part 36 of the Criminal Procedure Act or Law.

At the trial it was the case for the prosecution that on 4th August, 1985, as soon as four persons, including the deceased Dele Kukuru and P.W.1, Joseph Boyitie alighted from a bus, they saw two other persons running towards their direction. The two persons were apparently being pursued by some people shouting “thief, thief”. The accused who was one of the persons being pursued was armed with a dagger. On getting to where the four persons were he stabbed all four of them, inflicting varying degree of injuries on them. The deceased fell down the moment he was stabbed. The other three who tried to render help to the deceased had to flee in disarray because the accused still pursued them, welding menacingly the dagger he was armed with. The incident took place along a well lit street.

P.W.1 had known the accused before the date of the incident. The corpse of the deceased who had died from the stab which lacerated the chamber of his heart resulting in severe internal haemorrhage was recovered that night by the police at the Sapele Clinic. This was after P.W. 1 and others had reported the incident at the police station. P.W. 1 in his statement mentioned the accused by name as the assailant.

Following the incident the accused took refuge in the house of his friend, P.W.2 John Agbamisa, whom he told that he had been engaged in a fight with certain persons and that one of those he stabbed had died. He pleaded with P.W.2 to allow him spend the night in his house. After the accused had eaten and was overcome by sleep, P.W.2 sneaked away to the police station and lodged a complaint against the accused. The police went with him to his house where the accused who was still asleep was chained by them without resistance. He was woken up and searched and a blood stained dagger was recovered from his person.

In his defence the accused set up an alibi to the effect that he was at P. W.2’s house from 5p.m. on 4/8/85, that is, before the incident leading to the death of the deceased, to 2 a.m. of the following day when he was arrested. According to him he had gone there to collect his wrist watch from P.W.2 whom he did not meet at home. While waiting there for the arrival of P.W.2 he fell asleep and was woken up by two armed policemen who apprehended and took him to the police station. He denied telling P.W.2 that he had stabbed someone.

In his address, learned counsel for the accused submitted that the committal of the accused to the High Court for trial was null and void because of non-compliance with the provisions of sections 314 and 323 of the Criminal Procedure Act (C.P.A.). He also argued that the prosecution had not proved the guilt of the accused beyond reasonable doubt. Learned counsel for the prosecution however submitted that there was compliance with the relevant provisions of the C.P.A. and that if there was infact non-compliance such non-compliance was not prejudicial to the accused.

In a reserved judgment the learned trial Judge held that the magistrate complied with the relevant provisions of the C.P.A. He was also satisfied that the prosecution had proved its case beyond reasonable doubt and rejected the defence of alibi. The accused was therefore found guilty of the offence of murder and was convicted and sentenced accordingly.

Dissatisfied with the decision of the trial High Court, the accused appealed to the Court of Appeal (Benin Division) by filing four grounds of appeal. Prominent amongst his complaints was the question whether the learned trial Judge was right in holding that he was properly committed for trial by the Magistrate at the preliminary inquiry to the High Court for trial.

It must be mentioned that on 21st of September, 1987 at the High Court of Justice holding at Sapele, the charge on the information filed was read and F explained to the accused person and he pleaded not guilty to it. No objection was raised to the committal order of the Magistrate then. The case was adjourned to 28th September, 1987 for hearing. On that date counsel for the accused argued, following a “notice of preliminary objection” filed by him on behalf of the accused that the committal proceeding in the magistrate court was null and void on the ground that the Magistrate failed to comply with section 314(1) of the C.P.A. This section reads:

“314.(1) If at the close of the evidence for the prosecution a prima facie case has in the opinion of the Magistrate been established against the accused, immediately after the last witness for the prosecution has been bound over to attend the trial the magistrate shall again read the charge or read the amended or substituted charge to the accused and explain the nature thereof to him in ordinary language and inform him that he has the right to call witnesses and, if he so desires, to give evidence on his own behalf.”

The application was opposed on a number of grounds, one of which was that there was no proper application before the court. The learned trial Judge ruled that:

“it is obvious from the record of the preliminary proceeding that the learned trial Magistrate read and explained to the accused the charge and in fact complied with section 312 of the C.P.A. (as evidenced by pages 14 to 16 of the record). In the circumstance the objection raised by counsel for the accused is hereby overruled”,