David Uso Vs Commissioner Of Police (1972)

LawGlobal-Hub Lead Judgment Report

T.O. ELIAS  C.J.N 

Charge No. MB/22C/1969, the accused was charged with stealing one sokoto and agbada 8 pounds: 10/, one gold ring valued 2 pounds and the sum of 27 pounds: 10/ in Central Bank of Nigeria Currency notes, the property of one Anthony Obanor, contrary to Section 331 of the Criminal Code Law, Cap. 28, Vol. 1 of the Western Nigeria, 1959, as applicable in the Mid-Western State of Nigeria. On July 27, 1970, the accused was convicted of stealing only one sokoto and agbada by A.A. Giwa-Amu, Senior Magistrate, in the Benin Magisterial District.

The facts are briefly as follows. The wife of the accused sold a piece of land to Anthony Obanor (P.W. 1) for 120 pounds in 1966. Later, an army officer was seen clearing the land with a view to building thereon. The wife of the accused later agreed to refund the purchase price to the complainant (P.W.1), plus an additional sum of 20 pounds out of the 30 pounds he had already expended on trimming the land. The accused thereupon issued a cheque for 140 pounds in favour of P.W.1 and, when duly presented on December 2, 1968, the cheque was marked “stopped” and returned unpaid. P.W.1 called at the house of the accused to tell him about it, and he was invited by the latter to accompany him to a place in town. At Ehonder Street, fight ensued between the accused and P.W.1, during which the offence was alleged to have been committed by the accused getting hold of P.W.1’s agbada and sokoto and running away with both.

The Magistrate in his judgment observed:
“The 2nd and 3rd prosecution witnesses corroborated the evidence of the complainant in all material particulars in so far as that part of evidence of the complainant respecting the commission of the offence is concerned. The prosecution witness 4 denied that part of the evidence of the accused that the agbada and sokoto were admitted by the prosecution witness to have been handed to him by the complainant, and the prosecution witness 5 also denied the allegations made by the accused that it was he who advised the accused to swear to the affidavit – Exhibit “K”, and that the prosecution witness 4 admitted to him that he was in possession of the agbada and sokoto.”

The accused denied stealing the agbada and sokoto of the complainant (P.W.1), plus the gold ring and the sum of 27 pounds:10/ allegedly contained in the agbada pocket. After dealing at length with the issue of the stopped cheque, the Senior Magistrate then concluded:

“I am satisfied from the totality of the evidence before me that the accused person stole the agbada and sokoto of the complainant on 3/12/68. I cannot convict the accused for stealing the 27 pounds: 10/ and the gold ring inside the agbada since this has not, in my opinion been proved.

In the sequel, I am of the opinion that since the prosecution has established conclusively that the accused person stole the agbada and sokoto only, I can convict the accused for stealing them. I find the accused person guilty of stealing the agbada and sokoto and I convict him accordingly.”

Against this decision of the Senior Magistrate, the accused appealed to the High Court, Benin, on the original omnibus ground that the decision is altogether unwarranted and cannot be supported having regard to the evidence. With leave of the Court, the following four additional grounds were filed and argued;

“That the decision is erroneous in point of law:-
(i) The judgment was not based on the review of evidence of the prosecution witnesses and defence in the point or points for determination, e.g, stealing of the agbada and sokoto, the decision thereon and the reasons for the decision.
(ii) That there has been a failure of justice in that the learned Senior Magistrate has failed to consider the conflicting evidence of the 1st, 2nd 3rd and 5th Prosecution Witnesses and the corroboration evidence of the accused and defence witnesses – all in regard to the subject of the charge.
(iii) That the learned Senior Magistrate had failed to resolve in favour of the accused doubts raised in the evidence of the prosecution witnesses and defence in respect of the charge.
(iv) That the learned Senior Magistrate erred in law by making a finding without due regard to Section 200 of the Criminal Procedure Act Cap. 43 Laws of the Federation of Nigeria and Lagos by failing to call any of the officials of the Inland Revenue and with hand-writing expert with regard to Exhibit ‘J’ in the proceedings. Page 29 lines 30 – 37.”

Learned counsel for the defence was allowed to abandon ground 3, while the learned Chief Justice, quite rightly in our view, observed: “Whether or not Exhibit ‘J’ is forged is immaterial to the point or points for determination in this case.” Under the original omnibus ground, the appellate Judge regarded as untenable learned counsel’s argument that it was wrong of the Senior Magistrate to have found the accused guilty of only part of the articles alleged stolen and that he should have found the accused guilty of stealing all the articles or none: R. v. Tyson (1945) 11 WACA 90. The arguments in relation to grounds 1 and 2 were similarly dismissed by the learned appellate Judge because, in his view, the Senior Magistrate had satisfied the requirements of Section 245 of the Criminal Code Law even though he had not reviewed separately the evidence of each prosecution by the latter to accompany him to a place in town. At Ehonder Street, fight ensued between the accused and P.W.1, during which the offence was alleged to have been committed by the accused getting hold of P.W.1’s agbada and sokoto and running away with both.

The Magistrate in his judgment observed:
“The 2nd and 3rd prosecution witnesses corroborated the evidence of the complainant in all material particulars in so far as that part of evidence of the complainant respecting the commission of the offence is concerned. The prosecution witness 4 denied that part of the evidence of the accused that the agbada and sokoto were admitted by the prosecution witness to have been handed to him by the complainant, and the prosecution witness 5 also denied the allegations made by the accused that it was he who advised the accused to swear to the affidavit – Exhibit “K”, and that the prosecution witness 4 admitted to him that he was in possession of the agbada and sokoto.”

The accused denied stealing the agbada and sokoto of the complainant (P.W.1), plus the gold ring and the sum of 27 pounds:10/ allegedly contained in the agbada pocket. After dealing at length with the issue of the stopped cheque, the Senior Magistrate then concluded:
“I am satisfied from the totality of the evidence before me that the accused person stole the agbada and sokoto of the complainant on 3/12/68. I cannot convict the accused for stealing the 27 pounds: 10/ and the gold ring inside the agbada since this has not, in my opinion been proved.

In the sequel, I am of the opinion that since the prosecution has established conclusively that the accused person stole the agbada and sokoto only, I can convict the accused for stealing them. I find the accused person guilty of stealing the agbada and sokoto and I convict him accordingly.”

Against this decision of the Senior Magistrate, the accused appealed to the High Court, Benin, on the original omnibus ground that the decision is altogether unwarranted and cannot be supported having regard to the evidence. With leave of the Court, the following four additional grounds were filed and argued;
“That the decision is erroneous in point of law:-
(i) The judgment was not based on the review of evidence of the prosecution witnesses and defence in the point or points for determination, e.g, stealing of the agbada and sokoto, the decision thereon and the reasons for the decision.
(ii) That there has been a failure of justice in that the learned Senior Magistrate has failed to consider the conflicting evidence of the 1st, 2nd 3rd and 5th Prosecution Witnesses and the corroboration evidence of the accused and defence witnesses – all in regard to the subject of the charge.
(iii) That the learned Senior Magistrate had failed to resolve in favour of the accused doubts raised in the evidence of the prosecution witnesses and defence in respect of the charge.
(iv) That the learned Senior Magistrate erred in law by making a finding without due regard to Section 200 of the Criminal Procedure Act Cap. 43 Laws of the Federation of Nigeria and Lagos by failing to call any of the officials of the Inland Revenue and with hand-writing expert with regard to Exhibit ‘J’ in the proceedings. Page 29 lines 30 – 37.”

Learned counsel for the defence was allowed to abandon ground 3, while the learned Chief Justice, quite rightly in our view, observed: “Whether or not Exhibit ‘J’ is forged is immaterial to the point or points for determination in this case.”

Under the original omnibus ground, the appellate Judge regarded as untenable learned counsel’s argument that it was wrong of the Senior Magistrate to have found the accused guilty of only part of the articles alleged stolen and that he should have found the accused guilty of stealing all the articles or none: R. v. Tyson (1945) 11 WACA 90.

The arguments in relation to grounds 1 and 2 were similarly dismissed by the learned appellate Judge because, in his view, the Senior Magistrate had satisfied the requirements of Section 245 of the Criminal Code Law even though he had not reviewed separately the evidence of each prosecution Learned counsel, also submitted that the trial of the accused was unfair in that the Senior Magistrate personally took over from the prosecution a disconcerting cross-examination of the accused for nearly a page and a half in an all-out effort to discredit the accused on the issue of forgery and stealing of the agbada and sokoto.

We think that there is substance in this argument of learned counsel for the appellant. In our system of criminal trial, the judge as umpire is not expected to descend into the arena. This illustrates the difference between the accusatorial and the inquisitorial methods of trying an accused person – the difference between the Anglo Saxon and the Civil Law systems. Our procedure is accusatorial in the sense that the innocence of the accused is presumed until he is proved guilty by the prosecution.

Under the inquisitorial system of trial, which obtains in most Continental Legal Systems, the judge plays a dynamic role in cross-examining litigants and witnesses and the accused’s guilt is presumed until he proves his innocence. Mr. Eduvie, Senior State Counsel for the Mid-Western State, also conceded that the Senior Magistrate’s lengthy cross-examination of the accused was improper.

We think that the procedure adopted by the Senior Magistrate in the present case is wrong and that the appeal ought to be allowed on this ground alone. It is impossible to hold that the Senior Magistrate’s finding as to the guilt of the accused in respect of the only charge before the court, namely, stealing of an agbada and sokoto, was not influenced by his unnecessary preoccupation with the quite irrelevant issues as to whether or not the accused person had previously issued a cheque which he later stopped and a disputed matter of the forgery of a document.

For these reasons we will allow the appeal. The judgment of the High Court, Benin, in Criminal Appeal No. B/9CA/70 delivered on January 18, 1971, upholding the conviction of the accused, is set aside. So too is the conviction of the accused by the Senior Magistrate. The appellant is accordingly acquitted and discharged from the charge of stealing an agbada and sokoto said to belong to one Anthony Obanor.

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Other Citation: (1972) LCN/1341(SC)