James Ikhane Vs The Commissioner Of Police (1977) LLJR-SC

James Ikhane Vs The Commissioner Of Police (1977)

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O. OBASEKI, J.S.C. 

We allowed this appeal against the order for retrial made by Belgho, C.J. (as he then was) after allowing the appeal against conviction heard by him in the High Court of Midwestern State as it then was (now Bendel State) in these proceedings, and now we give our reserved reasons.

The criminal proceedings originated in the Magistrate Court, Benin City presided over by J. O. Odiase Esquire of Senior Magistrate Grade. In that Court, the appellant was arraigned, charged and tried for a traffic offence to wit:

“On the 15th day of October, 1969, along Benin Ehor Road in the Benin Magisterial District appellant being the driver in charge of kit car No. MB 4026 operated same on the public highway to wit: Benin Ehor Road Benin City in a negligent manner, having regard to all the circumstances of the case, including the nature, condition and use of the highway and to the amount of traffic which actually is at the time or which might reasonably be expected to be on the highway and collided with Private Car No. MJ.244 and thereby committed an offence punishable under Section 18 Road Traffic Law Cap. 113 Vol. 5 Laws of Western State of Nigeria 1959 as applicable in the Midwestern State of Nigeria.”

After a full trial, the appellant was convicted and sentenced to a fine of 15 pounds or in default of payment, two (2) months imprisonment with hard labour.

Being aggrieved by the conviction, the appellant appealed to the High Court. It was that appeal that the learned Chief Justice of the then Midwestern State now Bendel State heard and allowed. He then set aside the conviction and sentence and in conclusion made an order for retrial before another Magistrate for the reasons which are contained in the closing paragraph of his judgment which reads:
“However, as I had earlier observed that the case had semblance of being uncompleted owing to the failure to carry out inspection of the locus in quo after the Court had ordered same, I am constrained to send this case back to the lower Court for retrial before another Magistrate. Retrial ordered. ”

This order of retrial is the subject of complaint in this appeal and the grounds filed and argued by Counsel for the appellant are:
(1) The learned appellate Chief Justice mis-directed himself in law in holding that “failure to carry out inspection of ‘locus in quo’ by trial Court amounts to incomplete trial” when both the prosecution and the defence have stated in clear terms that they have closed their cases;
(2) The learned Chief Justice erred in law in ordering a retrial when the conditions for ordering a retrial did not exist in the present case.

The main point made by the learned Counsel for the appellant is that the learned Chief Justice having agreed with the submission of appellant’s Counsel that the learned trial Magistrate “has adopted wrong premises in law in coming to the conclusion that the accused was a liar and so his finding of fact on that wrong premise cannot stand especially as it has led in this case to a serious miscarriage of justice” was left with no other choice in the matter than an order of acquittal and discharge.

He referred us to the case of The Queen v. Yesufu Akanni 5 FSC. 120.

Counsel for the respondent, in the course of his reply indicated to us that he could not support the order of retrial.

We find that this case contains all the basic elements for an order of acquittal and discharge rather than an order of retrial. This is more so as the learned Chief Justice of the High Court had earlier on in his judgment observed as follows:
“The doubt the learned Magistrate wanted to clear in going to the scene was not resolved apparently owing to the cancellation of the inspection resulting in failure to take evidence at the scene. The  contention of the learned Counsel for defence in this appeal is that since there was doubt in the mind of the Magistrate in an essential ingredient of the offence which he wanted to clear by ordering  inspection of the locus in quo and since the actual inspection was later cancelled, the benefit of the doubt that existed in the mind of the Magistrate ought to have been given to the accused. In the peculiar circumstances of the case, I agree with the view of the learned Counsel. ”
It is trite law that if on the whole evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an acquittal (see Joshua Alonge v. Inspector-General of Police (1959) 4 FSC 203 at 204 per Ademola, CJN. See also Woolmington v. DPP (1935) AC 462 at 481 per Viscount Sankey L.C. See also Emmanuel Ibeziako v. Commissioner of Police (1963) 1 All N .L.R. 61.

The principles which should guide the Courts in making an order of retrial has been well settled in a long line of cases but the locus classicus is the case of Abodunde and others v. The Queen 4 FSC. at 70. In that case, the Federal Supreme Court of Nigeria restated the 5 guiding principles as follows:
“We are of the opinion that, before deciding to order a retrial, this Court must be satisfied.
(a) that there has been an error in law (including) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke Section 11(1) of the Ordinance;
(b) that leaving aside the error, or irregularity, the evidence taken as a whole discloses a substantial case against the appellant.
(C) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time.
(d) that the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and
(e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”

It appears to us that the learned Chief Justice did not advert his mind to these principles before arriving at the decision to order a retrial. We are in no doubt that, guided by the above principles, his critical appraisal of the judgment of the learned Senior Magistrate would have led him only to a judgment of acquittal.

For the above reasons which we have now given, we allowed the appeal and ordered the acquittal and discharge of the appellant.

Other Citation: (1977) LCN/1885(SC)