Cigari Shehu Vs J. B. Ogedengbe (1960)
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This is an appeal from the judgment given by the High Court of the Northern Region on the 9th March, 1960, which dismissed the appeal from the decision on the 20th November, 1959, of a Magistrate convicting the appellant of an offence under section 355 of the Criminal Code, on a charge that he, on the 24th August, 1959, at Sokoto, unlawfully assault James Bandele Ogedengbe and caused him harm.
There is a preliminary point to mention first, which was raised on the respondent’s behalf when this appeal first came on for hearing; it was that the appeal had not been brought in proper form and could not be entertained. It was based on the fact that no rules have been made and no forms provided for a further appeal from a decision of a High Court on an appeal from a Magistrate. We have already held in Nwobiala v. Inspector General of Police, F.S.C. 235/1960, that the point is without substance.
The appellant pleaded not guilty, so the issue was: did he unlawfully assault the complainant and cause him harm?
The complainant’s evidence was that as he was driving a car, when he reached the part in front of the Sultan’s Palace, he saw a car coming at full speed and slowed down; that that car halted and the appellant got out of it with a stone in his hand; that a crowd came out of the Palace and were crossing the road, which obliged him to go very slowly; that four persons came round the back of the appellant’s car, pointing at him, the complainant, and shouting “that is him, that is him”; that the appellant shouted “kill him, kill him,” and threw the stone in his hand through the windscreen which broke; and that the stone hit him on the forehead. The complainant’s driver, who was with him, gave evidence to the effect. The defence was an alibi, which the Magistrate did not believe, for reasons which he gave in his judgment; he also gave reasons for believing the complainant and his driver. Briefly, that was the core of the case.
The defence of alibi is common, and should be anticipated. In this case the prosecution called the Senior Superintendent then in charge of the Nigeria Police at Sokoto, A.M. Smith, who, in consequence of complaints, gave some advice to the N.A. Police, later he went to the area outside the Sultan’s Palace; there he saw a large unruly crowd, many of whom carried stones; and he saw the appellant come from the Palace to its gate, and stand there watching the activities of the crowd. Mr. Smith left for the Police Station, and saw the complainant just after 2.30. He saw the complainant about 3.30 outside the Police Station, in a wounded condition.
It has been argued for the appellant that Mr. Smith’s initial evidence in chief, up to the point where he spoke of the complainant’s condition at about 3.30, was irrelevant to the issue, and should not have been admitted; or that, If admitted, it should not have been used to test the credibility of the N.A. Police witnesses called by the defence. That portion of Mr. Smith’s evidence was admissible as showing that the appellant, who is a member of the party known as the N.P.C., and was the Sultan’s representative, was at the Palace and saw the unruly crowd just outside, about an hour before the complainant was wounded: for, an hour later, he was among the unruly crowd who stoned the car of the complainant, a secretary of another party known as the Action Group, and it was he, according to the complainant, who threw the stone at the complainant. Mr. Smith’s evidence gave the background of party ferment which supplied the motive of the assault committed by the appellant It was a truculent crowd composed mainly of youths aged about seventeen. There were N.A. Police on duty outside the Palace, but they did nothing. What was more, between 2 and 2.30 p.m., when there, Mr. Smith made three arrests, and as it was in N.A. area, he handed the prisoner to the N.A. Police, who released them. Mr. Smith’s evidence was relevant, as we have said, and could be used for any proper purpose, including that of testing the credibility of N.A. Police defence witnesses. Grounds 2 and 3 of the grounds of appeal must therefore fail. Grounds 4 and 5 complain that the Magistrate in his judgment was prejudicial to the appellant and did not consider his defence properly; that the Magistrate glossed over conflicts in the prosecution evidence, but took a prejudicial view in debatable instances in the case for the defence.
One instance given is drawn from the judgment towards the end of p.39 of the Record, which reads;-
“The Chief of Police at one stage stated clearly that he saw this incident occur. Later he shifted his ground. He denied there was a large crowd milling round with stones in their hands and he said proper bail bonds were made out for the three arrested children and proper sureties taken and the registers entered. He did not produce any of these documents.”
The point made for the appellant is that the Chief of the N.A. Police was not asked by the defence to come and produce documents. It has been pointed out on behalf of the respondent, the complainant, that his witness, Mr. Smith, was cross-examined (at the top of p.4 of the Record); he said he checked if the three persons he had arrested were bailed; but no bail bond was shown, and there was no entry in the register, also that the Chief of the N.A. Police gave evidence for the defence that:-
“We charged and bailed the boys. There were three sureties;”
and that this evidence was meant to show that Mr. Smith had been untruthful. The Magistrate’s comment, that no bail bonds were produced, was therefore proper.
The other instance given was drawn from p.38 of the Record, where the Magistrate states in his judgment that N.A. P.C. Doso must have been asleep, etc. This p.c. was on duty on a beat up to the Palace gate; he saw Mr. Smith’s car there at 2 p.m.; but, according to him, there was no crowd and no disturbance. The Magistrate’s comment may be florid, but, as he believed Mr. Smith, he was naturally unable to rely on anything p.c. Doso had said.
The third instance given relates to a discrepancy between the complainant’s evidence and that of his driver, in regard to the stone-throwing. The complainant’s evidence was (at p.8 of the Record) that four persons were pointing at him and shouting ‘That is him, that is him,” and Accused said loudly :Kill him, kill him:; the driver’s evidence was (at p.11, and at p.14) that when the Accused got down from his car he shouted “Here he is, here he is,” and that was all he heard the Accused say, and that the crowd, when stoning the complainant’s car were shouting “AG. Baran, kill him, kill him.” The Magistrate said in his judgment that one or the other could be mistaken due to the tumult there obtaining, and that it was a small difference to which no significance attached. The observation seems to us just; and we would add that, if the complainant and the driver had said exactly the same thing, the defence might have argued that they had rehearsed their evidence. It has been suggested for the appellant that the Magistrate should have put the discrepancy it was described as a conflict, but it was really a natural discrepancy to the witnesses. That there would have been a discrepancy could not be known until the driver was called; and the difference in the drivers account came out partly in chief and partly in re-examination. The Magistrate, very properly in our view, did not recall the complainant, and asked no question of the driver on the point.
Attention was also drawn to the fact that the Magistrate did not, in his judgment, comment on the fact that the complainant, in his statement to the Police, did not mention the appellants car number. The complainant explained, under cross-examination, by the appellant, that he was not well when he made his statement; in fact he was in hospital. When Counsel for the defence arrived, the Magistrate read the evidence out; but in his address Counsel did not refer to the point; which explains why the Magistrate said nothing about it in his judgment. We do not think that on this account it can be said that the Magistrate did not consider the defence with fairness. The statement was not asked for by the defence; it may have been very short; the omission of a man in hospital to mention the car number did not affect his veracity as a witness
We think that grounds 4 and 5 must fail.
The argument under ground 6 is that the conduct of the N.A. Police was made a feature of the trial by the Magistrate, and that the High Court on appeal upheld him wrongly. Besides the appellant, the following gave evidence for him: Momon Gore p.c. of Sokoto N.A.; Yesuf Argungu, p.c. of the N.A.; Haisukwoi Doso, p.c. of the N.A.; Ahmadu Basturu, subinspector of the N.A. Police; Sulaiman Dandu, Chief of the N.A. Police; and one M. Macido, an N.A. road overseer. Macido’s evidence was that he visited the appellant at his home and was with him at the time when, according to the charge, he assaulted the complainant; but the Magistrate did not believe him. The Magistrate examined at length the evidence of the N.A. Police Witnesses, and concluded that they were untruthful; he accepted the evidence of Mr. Smith of the Nigeria Police, and concluded that the members of the N.A. Police had perjured themselves “from the highest to the lowest” because of their unwillingness to take Mr. Smith’s advice and to stop violence. The High Court was of the opinion that, although the Magistrate’s language was intemperate, it was with the N.A. Police witnesses that he was dealing.
Learned Counsel for the appellant sought to enforce his argument by citing from the remarks of the N.A. Police made by the Magistrate before passing sentence. The remarks on the N.A. Police are high pitched; the Magistrate was plainly cross with them for their neglect of duty, which, in his opinion, contributed to what occurred later the stoning of the complainant by the appellant, and of his car by members of the crowd, who looked up to the appellant, a person of great standing. The complainant was then driving a car, and members of the crowd were crossing and re-crossing the road. He might have lost control of the wheel, or unwittingly pressed his foot on the accelerator, and knocked someone down. The stone broke through the windscreen and struck him on the forehead above the right eye, and there were bits of glass in the wound. He might have been blinded or stunned, or his skull might have been cracked. We can understand why the Magistrate was so irate, but the language he used was both loud and harsh, and the castigation of the N.A. Police inordinately vehement and beyond the bounds of what was called for. It would have been enough to say that some members of the N.A. Police had neglected their duty to preserve law and order, and that a copy of the judgment would be sent to the appropriate authority, and to explain to the appellant briefly why his offence was grave. Whilst deprecating the tone and language used before passing sentence, we do not think that they reveal any bias or unfairness in the conduct of the trial or in the consideration of the evidence before conviction. This was considered with meticulous care though the language is at times florid and the tone not subdued. Ground 6 must fail.
Grounds 7 and 11 arose in this way. In his final address Learned Counsel for the appellant at the trial, dealing with Mr. Smith said this:-
“The Nigeria Police in Sokoto Province are not precluded from prosecuting offences in Sokoto. He should have prosecuted the accused himself if what he said was true. I did not ask him about this in cross-examination.”
That being so, there was no need for the Magistrate in his judgment to say more than this: “As Mr. Smith was not asked why he did not prosecute, I cannot draw any inference adverse to his veracity.” His comments are:-
“Superintendent McGill Smit
Other Citation: LCN/0836/1960(SC)