Arua Eme V. The State (1964)

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ONYEAMA, J.S.C. 

The applications for leave to appeal by the three appellants from the judgment of Nkemena, Ag. Judge dated the 12th of June, 1964, in the High Court at Port Harcourt, on question of fact were refused on the 24th of September, 1964, as the facts of the case were quite clear and fully justified the conviction of the appellants of the offences charged; in the case of the third appellant, Arua Eme, his complaint that the learned trial judge erred in law by refusing him the right to call his defence witnesses to corroborate his statement, raised a point of law and his appeal on this point was adjourned for a full court.

The record of the proceedings at the trial does not show, as it does in the case of the other accused persons, that the appellant Arua Eme, who was the second accused, and who was not defended by counsel, was asked If he had any witnesses to examine as required by section 287(1) (a) of the Criminal Procedure Act (Cap. 43).

As the effect of the failure by a trial court to comply with this provision of the Criminal Procedure Act is a matter of importance on which there have been conflicting views and decisions, Mr J. A. Cole, of Counsel, was assigned to the appellant and the point was fully argued.

The relevant sections of the Criminal Procedure Act are as follows:

“287    (1) At the close of the evidence in support of the charge If it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and:

(a) If the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely

(i) he may make a statement, without being sworn, from the place where he then is; in which case he will not be liable to cross examination; or

(ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross- examination, or

(iii) he need say nothing at all, If he so wishes, and in addition the court shall ask him If he has any witnesses to examine or other evidence to adduce in his defence and the court shall then hear the defendant and his witnesses and other evidence, If any;”

(b) and (2) (not relevant.)

“288    Failure to comply with the requirements of paragraph (a) in section 287 shall not of itself vitiate the trial provided that the court called upon the defendant for his defence and asked him If he had any witnesses and heard the defendant and his witnesses and other evidence, If any.”

The result of non-compliance with section 287(1)(a) was considered by the West African Court of Appeal in Oladimeji v. The King 13 W.A.C.A. 275. The court took the view that it was not open to it, as it would be in England, to consider whether the accused person in such circumstances had been prejudiced, because the obligation to ask the defendant If he had witnesses was imposed by statute, and the necessary implication in section 288 was that failure to comply with section 287(1) (a) was to vitiate the trial; the court interpreted the word ‘vitiate’ to mean ‘render null and void’ and in the case before it declared the proceedings a nullity.

The like view was taken in Adikun Oke v. Inspector-General of Police 14 W.A.C.A 645, but no reasons were given for taking that view; apparently it was taken for granted; or it maybe that the court was following Oladimejl without saying so.