Paul Yabugbe Vs C.O.P (1992)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.S.C

Will a public officer who has committed, a criminal offence in purporting to carry out any public duty be immuned from prosecution if within three months of committing the offence he has not been charged to court What is the meaning of the word “prosecution” within the con of the Public Officers Protection Law These and other questions call for resolution in this judgment.

The appellant, who was, at the time material to this case, 3rd June, 1979, an Assistant Superintendent of Police, was arraigned as the third accused along with two others, first and second accused persons, before the Magistrate’s Court, Oyo on a charge of unlawfully assaulting one Olayiwola Afolabi and causing him harm and thereby committed an offence contrary to and punishable under section 296 of the Criminal Code Cap 28, Volume One, Laws of Western Nigeria 1959.

The facts of the case that led to the arrest and prosecution of the appellant and the first and second accused persons who were Police Constables are these: Olayiwola Afolabi was a Senior Magistrate. On 3/6/79 at about 7.00 p.m, he drove in his car in company of his wife, PW.2, his sister-in-law, PW.3, and two of his children aged between two and four years, to Akesan Market, Oyo. On getting there he parked at a point very close to the grass verge on the right side of the road, not far from the Motor Traffic Division of the Nigerian Police.

His wife and her sister got down and went into the market while PW.1 and his two children remained in the car. About fifteen minutes later the first accused who was in uniform went to PW.1 on the instruction of the third accused the appellant, and requested him to move his car from where it was parked because, according to first accused, it was causing obstruction. PW.1 who was certain from all indications that he was not causing obstruction and that parking there was not prohibited explained to the first accused that he was waiting there for his wife who had gone into the market to buy some food stuffs.

The first accused returned to the Motor Traffic Division and told the appellant of the refusal of PW.1 to remove his car from where it was parked. The appellant who was in mufti personally went to PW.1 and asked him to move from the place. When PW.1 would not move the appellant asked for his vehicle particulars. PW.1 doubted his authority to ask him for his particulars since he was in mufti. It was at this stage the appellant informed PW.1 that he was the police officer in charge of the Motor Traffic Division and sent one of the police constables, to go for his identity card at the Police Station.

Before the constable returned the wife of PW.1 had come out of the market. The appellant would not allow her to enter the car. He indicated he would place the matter a test case. According to the prosecution, the appellant ordered the first and second accused to arrest, beat and put PW.1 in the cell. This order, the first and second accused carried out zealously. PW.1 was kicked and dragged to the police station. He was beaten to a state of semi-coma. His clothes and pants were torn leaving him half-naked.

PW.2, the wife of P.W.1, in dismay went for P.W.5, Mr. Oladosun Gbadegeshin, a lawyer by profession who lived very close to the Motor Traffic Division. P.W.5 arrived to find PW.1 on the floor with only his pants, which was in shreds, on about the same time PW.6, Hamzat Taiwo Ayanlaye, a Civil Servant was attracted to the scene because of the large crowd gathered there. When he found that PW.1 was the victim of the assault he exclaimed in disgust that the police men were inviting trouble for themselves for beating up a magistrate to the point of death. The disclosure by PW.6 that PW.1 was a magistrate had a chilling effect. Calm prevailed. The appellant readily agreed that PW.1 be taken to the Oyo State Hospital where he was attended to by PW.4, Dr. Wahabi Lawal. PW4 testified as to the nature of injuries sustained by PW.1 and the fact that he was on admission for three days. PW.8, Afolabi Fagbile, an Inspector of Police, produced a sketch plan of the scene, Exhibit A.

It was the defence of the accused persons, including the appellant, that when the appellant who was the Divisional Traffic Officer came to the Traffic Once on inspection and observed before he drove into the premises that P.W.1 was causing obstruction he sent the first accused to him to move his car from where it was parked. Not only did P.W.1 refuse to move his vehicle, he also refused to surrender his vehicle particulars. At a stage, according to the defence, P.W.1 grabbed the first accused by his shirt and slapped him. On seeing PW.1 assaulting the first accused, the second accused joined his colleague in effecting the arrest of PW.1.

The defence tendered in evidence three documents, namely: (i) Exhibit N. a letter dated 11th June, 1979, written to the Commissioner of Police by the Chief Registrar, Oyo State, High Court, on the directive of the Chief Judge, drawing the attention of the Commissioner to the report the Chief Judge had received relating to the assault on the person of PW.1. The Commissioner of Police was urged to look into the matter; (ii) Exhibit P. another letter dated 19/6/79, also by the Chief Registrar on the directive of the Chief Judge, disclosing to the Commissioner of Police that a delegation of three members of the Magistrates’ Association of Nigeria met the Chief Judge in respect of the subject matter of Exhibit N. and urged the Commissioner of Police to speed up his investigation into the matter as “any undue delay with regards to this matter may lead to unforeseen and unpleasant circumstances”; (iii) Exhibit Q. which is undated is another letter from the same source to the Commissioner of Police informing him that “since it appears that you are not doing anything to speed up enquiries about the case mentioned above and allow Mr. Afolabi get speedy justice, the Chief Judge of Oyo State will give a free hand to the Magistrates’ Association of Nigeria and Mr. Afolabi, to take any action whatever they deem fit to get appropriate redress for what Mr. Afolabi properly regards as unprovoked assault on him by a policeman.”

It was therefore the defence of the accused persons that the trial Senior Magistrate was disqualified from trying the case he being a member of the Magistrates’ Association of Nigeria and that the maxim nemo judex in causa sua was applicable.

In his judgment the learned trial Senior Magistrate Mr. J.O. Moradeyo came to the conclusion from the totality of the evidence adduced before him. Including the sketch plan Exhibit A, that PW.1 caused no obstruction. He was satisfied that PW.1 was unlawfully assaulted and was caused harm within the meaning of section 296 of the Criminal Code, he was also satisfied that, granted that PW.1 resisted arrest which was not conceded, the force used was more than necessary in effecting the arrest of PW.1 and that there was excess of violence. The learned senior magistrate was a) so of the view that a person who breaches the Road Traffic Law is only “contravened” and not arrested. Only persons who commit any offence under the Criminal Code are arrested.

The learned senior magistrate rejected the submission that the maxim nemo judex in causa sua was applicable to the case as it was not the Magistrates’ Association that was trying the case. Besides, said the senior magistrate, the accused persons opted to be tried by him summarily when the charge was read to them as required by section 304(2) of the Criminal Procedure Act. Each of the accused persons was accordingly found guilty and sentenced to a term of twelve months imprisonment without an option of a fine.

On appeal to the High Court the question of the powers of the police to effect an arrest was fully gone into. Falade, J., the appellate judge, observed thus at page 90 of the record of proceedings: